/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190913.mbx C L A S S A C T I O N R E P O R T E R Friday, September 13, 2019, Vol. 21, No. 184 Headlines 2U INC: Rosen Law Files Securities Fraud Suit AARGON AGENCY: Briggs Files FDCPA Suit in W.D. Tennessee ABIOMED INC: Rosen Law Files Securities Fraud Suit AKORN INC: Settles Data Integrity Securities Litigation ALBERTSONS COMPANIES: Says Ill. Biometrics Law Unconstitutional AMERICAN SPECIALTY: Court OKs $11.75MM Settlement in ERISA Suit ANTHEM BLUE: Wonderful Co. Sues over Fraudulent Medical Bills AQUA ILLINOIS: Henderson Sues Over Contaminated Water Supply BARCLAYS: Cadwalader Wickersham Attorneys Discuss UK Class Action BLAIR'S BAIL: Sued Over Excessive Premiums for Bail Bond Purchase BOBST NORTH: Court Denies Bobst Lyon's Bid to Junk Candelario Suit CAESARS ENTERTAINMENT: Bid to Transfer Antitrust Suit Denied CALSONIC KANSEI: AC Systems Price Fixing Settlement Approved CANADA GOOSE: Cheng Files Suit Over Share Price Drop CAPITAL ONE: Faces Bowen et al Suit in S.D. New York CASA SYSTEMS: Panther Says Registration Statement Misleading CBC RESTAURANT: Faces Jones Suit Over BIPA Violation CLEVELAND, OH: Appeals Court Affirms $4MM Final Judgment in Lycan CLIME CAPITAL: Settles Class Action for $8.3MM COLLECTO INC: Kim Files FDCPA Suit in E.D. New York COMMUNITY HEALTH: Court Certifies Class in Norfolk Securities Suit CONOCOPHILLIPS COMPANY: Duffy Seeks Unpaid Overtime Under FLSA CORECIVIC TENNESSEE: Court Acknowledges Settlement Bid Joinder COVELLI ENTERPRISES: Settlement in FLSA Suit Gets Prelim Approval CROSSROADS VILLAGE: Cal. App. Affirms Antonio Class Certification CRYSTAL FARMS: Reyes Suit Over "Made With Real Butter" Label Nixed CYS GROUP: Made Illegal Unsolicited Calls, Itayim Suit Asserts DELEON LATIN: Does not Pay Minimum, Overtime Wages, Perez Says DENSO CORP: Windshield Wiper Class Action Settlement Okayed DIRECT ENERGY: 7th Cir. Affirms Dismissal of Sevugan Suit DYNAMIC RECOVERY: Kim Files FDCPA Suit in E.D. New York EPIC GAMES: Faces Class Action Over Hacked Fortnite Accounts EXPERIAN MARKETING: Bowes Seeks More Time to File Writ in Melito FACEBOOK INC: Must Face Biometric Data Privacy Class Action FAIRWAY INDEPENDENT: Valdez Labor Suit Remanded to State Court FIRST NATIONAL: Rios Files FDCPA Suit in C.D. California FORD MOTOR: 3d Cir. Affirms Summary Judgment in Coba Class Suit FULTONDALE ON TAP: Hasty Seeks Proper Wages Under FLSA GOLDSMITH & HULL: Tavares Suit Asserts FDCPA Breach GREAT AMERICAN POWER: Lechuga Files Class Suit in N.D. Illinois GTT COMMUNICATIONS: Pomerantz LLP Investigates Securities Claims GUTTERBRUSH LLC: Nathen Day Asserts Breach of TCPA HEARTLAND PAYMENT: Court Dismisses Count II in Soranno Suit HOME DEPOT: Camp Suit Remanded to Santa Clara County Superior Court HYUNDAI MOTOR: Hauser Sues over Defective Airbag Control Unit INTEPLAST GROUP: Robinson Seeks Unpaid Overtime Wages, Damages JACK MADDEN: Turner Seeks Overtime Pay for Salespersons JETS STADIUM: 3rd Cir. Affirms Gengo NJCFA Suit Dismissal JS SULLIVAN: Cooks Seek Overtime Wages for Construction Laborers L BRANDS: Schall Law Files Securities Class Action Lawsuit LOBLAW: Rana Plaza Factory Collapse Victims' Appeal Denied LTD FINANCIAL: Court Dismisses Ladevaio FDCPA Suit MARCEL AT GRAMERCY: Faces Duncan Suit in New York Southern MASSACHUSETTS: Briggs Suit Settlement Has Prelim Approval MDL 2795: Court Grants Minnesota's Bid for Continuance MINNESOTA: Court Denies Bid to Decertify Class in Murphy Suit MITSUBA: Power Window Motors Price Fixing Settlement Approved MT. GOX: Pa. Court Denied Bid to Dismiss Pearce NATIONAL AUSTRALIA: British Class Action Set to Go to Trial NATIONAL BEVERAGE: Wins Dismissal of Securities Class Suit NAVISTAR INT'L: Case Management Conference Sought in "Brown" NAVISTAR INT'L: Court Sets Nov. 13 Settlement Fairness Hearing NEKTAR THERAPEUTICS: Kessler Topaz Files Securities Class Suit NEW YORK: Settlement Reached in Marijuana Crimes Class Suit NISSAN NORTH: 9th Cir. Flips Denial of Nguyen Class Certification NORTH CAROLINA MUTUAL: Court Narrows Claims in McClendon Suit NTW LLC: Wall Sues Over Unpaid Overtime Wages OASMIA PHARMACEUTICAL: Pawar Law Files Class Action Lawsuit ON DECK CAPITAL: Court Denies Dismissal on TCPA Suit OREGON: Seeks Dismissal of Foster Care Class Action PERDUE FARMS: Workers File Anti-Trust Action Over Depressed Wages PREMIERE CREDIT: Echols Files FDCPA Suit in E.D. Pennsylvania PROGRESSIVE WASTE: Loses Bid to Dismiss Landfill Nuisance Suit R&C CLEANING: Godoy Seeks to Recover Damages for FLSA, NYLL Breach RESURGENT CAPITAL: Fowler Files FDCPA Suit in S.D. Florida REV GROUP: Continues to Defend Consolidated Suit over 2017 IPO RIAL DE MINAS II: Court Dismisses Martinez Action With Prejudice RO GALLERY: Court Dismisses GBL Claim in Rosenzweig Suit SAEXPLORATION HOLDINGS: Zhang Investor Files Securities Fraud Suit SANDERSON FARMS: Faces Wage & Benefits Class Suit in Maryland SANTANDER BANK: Court Dismisses Aversano TILA Suit SEAWORLD PARKS: Faces Mahoney Suit in E.D. Pennsylvania SEIU PENNSYLVANIA: Court Dismisses Union Dues Suit SERVICELINK FIELD: Bid to Certify Class in Britton Suit Denied SHASTA BEVERAGES: Garcia Suit Removed to C.D. California SOC LLC: Nevada Court Decertifies Class in Risinger Suit TEXTRON INC: Schall Law Files Class Action Lawsuit TRAVELERS COMMERCIAL: Callaghan Suit Moved to M.D. Florida TRIPPE MANUFACTURING: Mims Suit Asserts BIPA Violation UNITED STATES: Medicare Patients Sue Over Nursing Home Coverage UPS SUPPLY: Jones et al Seek Overtime Pay for California Drivers US BANCORP: Leeson Appeals Bankr. Ct. Ruling to W.V. Dist. Ct. USAA SAVINGS: Faces Tarter Suit in District of Massachusetts VERB TECHNOLOGY: Kirby McInerney Files Class Action Lawsuit WAWA INC: Settles Class Action Over Unpaid OT Wages for $1.4MM WINGED FOOT: Court Denies Bid to Certify Class in Clune Suit YU BROTHERS INC: Mena Seeks Pay of All Overtime Hours Worked ZB NA: Court Allows Leave to File FAC in Evans ZIMMER BIOMET: Man Launches Class-Action Lawsuit Over Hip Implants Asbestos Litigation ASBESTOS UPDATE: Aerojet Rocketdyne Faces 61 Cases at June 30 ASBESTOS UPDATE: American Biltrite Withdraws Appeal in Monaco Case ASBESTOS UPDATE: ArvinMeritor Had US$100MM Reserves at June 30 ASBESTOS UPDATE: Corning Had $145MM Non-PCC Reserves at June 30 ASBESTOS UPDATE: Corning Inc. Has $135MM PCC Liability at June 30 ASBESTOS UPDATE: Court to Set New Trial Date in Clayton's Case ASBESTOS UPDATE: Enstar Group Had $249.1MM Liability at June 30 ASBESTOS UPDATE: Expert's Opinion Excluded From Jackson Case ASBESTOS UPDATE: Flowserve Still Defends PL Lawsuits at June 30 ASBESTOS UPDATE: P.I. Claims vs. Arcata Auto Dismissed in Kuntz ASBESTOS UPDATE: Stay Motion in Peterson Case Withdrawn ASBESTOS UPDATE: Tenneco Has At Most 500 Cases in US, 50 in Europe ********* 2U INC: Rosen Law Files Securities Fraud Suit --------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of 2U, Inc. from February 25, 2019 through July 30, 2019, inclusive (the "Class Period") of the important October 7, 2019 lead plaintiff deadline in the case. The lawsuit seeks to recover damages for 2U investors under the federal securities laws. To join the 2U class action, go to http://www.rosenlegal.com/cases-register-1639.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) the Company faced increasing competition in online education and particularly regarding graduate programs; (2) the Company faced certain program-specific issues that negatively impacted its performance; (3) as a result, the Company's business model was not sustainable; (4) the Company would slow its program launches; and (5) as a result, 2U's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than October 7, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1639.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. Contact: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com [GN] AARGON AGENCY: Briggs Files FDCPA Suit in W.D. Tennessee -------------------------------------------------------- A class action lawsuit has been filed against Aargon Agency, Inc. The case is styled as Makesha Briggs individually and on behalf of all others similarly situated, Plaintiff v. Aargon Agency, Inc., John Does 1-25, Defendants, Case No. 2:19-cv-02599 (W.D. Tenn., Sept. 9, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Aargon Agency, Inc. provides mercantile and consumer credit reporting services. The Company offers national debt recovery, as well as first party, early out collection, and billing services.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com ABIOMED INC: Rosen Law Files Securities Fraud Suit -------------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Abiomed, Inc. (NASDAQ: ABMD) from January 31, 2019 through July 31, 2019, inclusive (the "Class Period") of the important October 7, 2019 lead plaintiff deadline in the case. The lawsuit seeks to recover damages for Abiomed investors under the federal securities laws. To join the Abiomed class action, go to http://www.rosenlegal.com/cases-register-1645.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) ABIOMED's revenue growth was in decline; (2) ABIOMED did not have a sufficient plan in place to stem its declining revenue growth; (3) ABIOMED was unlikely to restore its revenue growth over the next several fiscal quarters; (4) consequently, ABIOMED was reasonably likely to revise its full-year 2020 guidance in a way that would fall short of the Company's prior projections and market expectations; and (5) as a result, ABIOMED's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than October 7, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1645.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. Contact: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com [GN] AKORN INC: Settles Data Integrity Securities Litigation ------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION In re Akorn, Inc. Data Integrity Securities Litigation Civil No. 1:18-cv-01713 Hon. Matthew F. Kennelly STIPULATION AND AGREEMENT OF SETTLEMENT This Stipulation and Agreement of Settlement, dated as of August 9, 2019, is entered into between (a) Lead Plaintiffs Gabelli & Co. Investment Advisors, Inc. and Gabelli Funds, LLC, individually and on behalf of the Settlement Class; and (b) Defendants Akorn, Inc., Rajat Rai ("Rai"), Duane Portwood ("Portwood"), Alan Weinstein ("Weinstein"), Brian Tambi ("Tambi") and Ronald Johnson ("Johnson"), and embodies the terms and conditions of the Settling Parties' settlement of the claims against the Defendants in the Action.1 Subject to the approval of the Court and the terms and conditions expressly provided herein, this Stipulation is intended to fully, finally and forever compromise, settle, release, resolve and dismiss with prejudice all claims asserted in the Action against the Defendants. WHEREAS, A. The Action was commenced in the Court on March 8, 2018, by plaintiff Joshi Living Trust through the filing of a class action complaint alleging violations by Akorn, Rai, Portwood and Randall Pollard of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, captioned Joshi Living Trust v. Akorn, Inc., et al., No. 1:18-cv-01713-MFK (N.D. Ill.); B. By order dated May 31, 2018, the Court appointed Gabelli Funds as lead plaintiffs in this Action, Entwistle & Cappucci LLP as lead counsel for the proposed class and Bernstein Litowitz Berger & Grossmann LLP as local liaison counsel for the proposed class; 1 All words or terms used herein that are capitalized and not otherwise defined shall have the meanings ascribed to those words or terms as set forth in Section I hereof, entitled "Definitions". 1 C. On September 5, 2018, Lead Plaintiffs filed an amended consolidated complaint, naming as defendants the Defendants, Mark Silverberg ("Silverberg"), John Kapoor ("Kapoor"), Kenneth Abramowitz ("Abramowitz"), Adrienne Graves ("Graves"), Steven Meyer ("Meyer") and Terry Rappuhn ("Rappuhn"), and asserting (i) on behalf of persons who purchased or otherwise acquired the common stock of Akorn during the period from November 3, 2016, through April 20, 2018, inclusive, claims against Defendants and Silverberg under Sections 10(b) and 20(a) of the Exchange Act, and (ii) on behalf of Akorn shareholders of record as of June 9, 2017, claims against Akorn, Rai, Kapoor, Weinstein, Abramowitz, Graves, Johnson, Meyer, Rappuhn and Tambi, under Sections 14(a) and 20(a) of the Exchange Act (the "Proxy Claims"); D. On October 29, 2018, the parties filed a stipulation and joint motion providing for the dismissal of certain claims and defendants; E. On October 30, 2018, the Court granted the parties' motion, dismissing all of the Proxy Claims without prejudice, dismissing defendants Kapoor, Abramowitz, Graves, Meyer and Rappuhn without prejudice and dismissing defendant Silverberg with prejudice; F. On December 19, 2018, the Defendants filed an answer to the amended consolidated complaint; G. On February 21, 2019, plaintiff Johnny Wickstrom filed a class action complaint in the United States District Court for the Northern District of Illinois (the "Northern District of Illinois"), alleging violations of Sections 10(b) and 20(a) of the Exchange Act during a class period from August 1, 2018 through January 8, 2019, inclusive, and naming as defendants 2 Akorn, Rai and Portwood. The case was captioned Wickstrom v. Akorn, Inc., et al., No. 1:19-cv-01299 (the "Wickstrom Action"); H. On March 27, 2019, the Court made a finding that the Wickstrom Action was related to this Action and ordered the Wickstrom Action to be transferred to the Court pursuant to Local Rule 40.4 of the Local Rules of the Northern District of Illinois (each a "Local Rule"); I. On April 22, 2019, plaintiff Vicente Juan filed a class action complaint in the Northern District of Illinois, alleging violations of Sections 10(b) and 20(a) of the Exchange Act during a class period from May 2, 2018 through January 8, 2019, inclusive, and naming as defendants Akorn, Rai and Portwood. The case was captioned Juan v. Akorn, Inc., et al., No. 1:19-cv-02720 (the "Juan Action"); J. On April 22, 2019, Lead Plaintiffs, by and through their attorneys, filed the Second Amended Complaint, alleging claims on behalf of persons or entities who purchased or otherwise acquired the common stock of Akorn during the Class Period against Defendants pursuant to Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder; K. Also on April 22, 2019, Gabelli Funds and plaintiff Vicente Juan filed motions in the Wickstrom Action to be appointed as lead plaintiffs in that action; L. On April 23, 2019, the Court found that the Juan Action was related to this Action and ordered the Juan Action to be transferred to the Court pursuant to Local Rule 40.4; M. On April 29, 2019, plaintiff Vicente Juan filed a notice of withdrawal of his motion for lead plaintiff status in the Wickstrom Action; 3 N. On May 3, 2019, the Litigation Parties and their counsel commenced mediation before former United States District Judge Layn R. Phillips ("Judge Phillips"); O. On May 9, 2019, the Court consolidated both the Wickstrom Action and the Juan Action into this Action for all purposes; P. On May 31, 2019, plaintiffs Twin Master Fund, Ltd., Twin Opportunities Fund, LP and Twin Securities, Inc. filed a complaint against Defendants in the Northern District of Illinois, alleging violations of Sections 10(b), 18 and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, as well as one count of common law fraud (the "Twin Funds Action"); Q. On June 11, 2019, the Court found that the Twin Funds Action was related to this Action and ordered the Twin Funds Action to be transferred to the Court pursuant to Local Rule 40.4; R. On July 5, 2019, Lead Plaintiffs filed a motion in this Action seeking certification of a proposed class of all persons or entities that purchased or otherwise acquired Akorn's common stock during the Class Period and were damaged thereby; S. On July 11, 2019, plaintiffs Manikay Master Fund, LP and Manikay Merger Fund, LP filed a complaint against Defendants in the Northern District of Illinois, alleging violations of Sections 10(b), 18 and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, as well as one count of common law fraud (the "Manikay Funds Action"); T. On July 25, 2019, after extensive arm's-length negotiations facilitated by Judge Phillips, acting as mediator, the Litigation Parties reached an agreement in principle as to 4 the economic elements of a settlement and agreed to settle this Action and all issues in dispute therein on the terms set forth in this Stipulation; U. On July 30, 2019, in connection with the agreement in principle reached between them, the Litigation Parties jointly moved the Court to enter the Stay Order; V. Also on July 30, 2019, the Court found that the Manikay Funds Action was related to this Action and ordered the Manikay Funds Action to be transferred to the Court pursuant to Local Rule 40.4; W. Also on July 30, 2019, the Court entered the Stay Order through at least August 26, 2019; X. Based upon their investigation and prosecution of this case and review of materials and presentations regarding Akorn's financial condition and ability to pay, Lead Plaintiffs and Lead Counsel have concluded that the terms and conditions of this Stipulation are fair, reasonable and adequate to Plaintiffs and in their best interests. Based upon Lead Plaintiffs' direct oversight of the prosecution of this matter and with the advice of their counsel, Lead Plaintiffs, individually and on behalf of the Settlement Class, have agreed to settle and release all claims raised in the Action against Defendants pursuant to the terms and provisions of this Stipulation, after considering, among other things: (a) the substantial financial benefit that Plaintiffs will receive under the proposed Settlement; (b) Akorn's ability to pay and financial condition—including risks attendant to the renegotiation of Akorn's outstanding debt and other ongoing litigation; and (c) the significant risks and costs of continued litigation and trial against Defendants; 5 Y. Defendants have denied and continue to deny all allegations of wrongdoing, fault, liability or damage to Plaintiffs; deny that they are or have engaged in any wrongdoing or violation of law; deny that they improperly or misleadingly disclosed (or improperly failed to disclose) the status of Akorn's compliance with FDA rules and regulations concerning cGMP; and maintain that they acted properly at all times, including complying with all legal duties and public disclosure obligations. Defendants believe that further conduct of this Action could be protracted and expensive, and that it is desirable that this Action be fully and finally settled in the manner and upon the terms and conditions set forth in this Stipulation to limit further expense, inconvenience and distraction, to dispose of the burden of protracted litigation, and to permit the operation of Akorn's business without further distraction and diversion of Akorn's executives and other personnel with respect to the matters at issue in this Action. Defendants have also taken into account the uncertainty and risks inherent in any litigation. Defendants state that they are entering into this Settlement solely in order to eliminate the burden, expense, uncertainty and risk of further litigation, and to avoid the business disruptions associated therewith; Z. This Stipulation, whether or not consummated, together with any proceedings related to any settlement, or any terms of any settlement, whether or not consummated, shall in no event be construed as or deemed to be evidence supporting, or an admission or concession on the part of any Defendant with respect to any claim or of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in any of the defenses that Defendants have or could have asserted; 6 AA. Each of the Litigation Parties recognizes and acknowledges, however, that the Action has been prosecuted by Lead Plaintiffs in good faith and defended by Defendants in good faith, and that the Action is being voluntarily settled by the Litigation Parties with the advice of counsel; and BB. This Stipulation (together with the exhibits hereto) reflects the final and binding agreement between the Settling Parties, subject to approval by the Court, and constitutes a compromise of all Settled Claims between the Settling Parties. NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and among Lead Plaintiffs (individually and on behalf of the Settlement Class) and Defendants, by and through their respective undersigned attorneys and subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that, in consideration of the benefits flowing to the Settling Parties hereto from the Settlement, that all Settled Claims as against all Released Persons shall be compromised, settled, released and dismissed fully, finally and with prejudice, upon and subject to terms and conditions. [GN] ALBERTSONS COMPANIES: Says Ill. Biometrics Law Unconstitutional --------------------------------------------------------------- Cole Lauterbach, writing for the Illinois Radio Network, reports that the parent company of an Illinois grocery store chain claims Illinois' biometric privacy law is unconstitutional because the government doesn't have to comply with it. Albertsons Companies Inc., which owns Jewel-Osco, has been fighting a class-action lawsuit Bruhn v. New Albertsons Inc. since early 2018 for alleged violations of Illinois' Biometric Information Privacy Act. The class-action suit claimed the company violated the rules when it required pharmacists to use fingerprints to access a computer system to dispense medication to patients. In a motion filed with the Cook County Circuit Court, attorneys for the company argued the law was unconstitutional because public entities and financial institutions don't have to abide by it. "It is facially absurd that an employee of a government contractor working in a government building is not covered by the BIPA, but is covered when working in the non-government building next door," company attorneys wrote in the motion. The state law is widely seen as the most robust consumer-protection law of its kind in the nation because it allows people to file lawsuits in court. The law requires a company to get affirmative permission to collect an Illinois resident's biometric information and disclose what the company is going to do with it. A breach of this law is punishable by a $1,000 fine per instance or $5,000 if it's proven the company was knowingly breaking the law. One Biometric Information Privacy Act expert said she was skeptical of the company's tactic to have the class-action case tossed. "This is an extremely complex, and really awkward, procedural way to try and get the class-action thrown out," said Alexandra M. Franco, a visiting assistant professor of law at the Chicago-Kent College of Law at the Illinois Institute of Technology. She said that a challenge would have likely been brought against BIPA years ago if there were constitutional weaknesses in the statute. A company proving that a law it has been accused of breaking is unconstitutional is rare, Franco said. Franco said Albertsons claim of special legislation might not be successful. She said the law exempted government because it wasn't rational to have a state agency such as the Illinois State Police get permission from the people troopers fingerprint. "That is the only way to have the technology work for the government," she said. Should the ruling go against the grocery chain, it could be on the hook for up to $5,000 for every instance where a pharmacist in one of the company's Illinois-based Jewel-Osco stores used a fingerprint to access computers. Albertsons also asserted in its motion that the company's decision to require the use fingerprints of didn't harm the pharmacists. Franco said that was irrelevant because the Illinois Supreme Court ruled in January that Six Flags Great America should be fined under the law even though it may not have monetarily harmed the people whose fingerprints the theme park acquired. Both Facebook and Google have been sued for violating the act. Google's case was dismissed but Facebook's case may be allowed to move forward. [GN] AMERICAN SPECIALTY: Court OKs $11.75MM Settlement in ERISA Suit --------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum Opinion granting Plaintiffs' Motion for Final Approval of the Settlement Agreement in the case captioned HIGH STREET REHABILITATION, LLC, and DEFABIO SPINE AND SPORT REHAB, LLC, individually, and on behalf of all others similarly situated, Plaintiffs, v. AMERICAN SPECIALTY HEALTH INCORPORATED, AMERICAN SPECIALTY HEALTH NETWORKS, INC., CIGNA CORPORATION and CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendants. Case No. 2:12-cv-07243-NIQA. (E.D. Pa.). Dr. Steven G. Clarke, along with the American Chiropractic Association (ACA), brought this action against Defendants American Specialty Health Incorporated and American Specialty Health Networks, Inc. and Cigna Corporation and Connecticut General Life Insurance Company, seeking recovery under the Employee Retirement Income Security Act of 1974 (ERISA), related to the denial of out-of-network plan benefits claims for chiropractic services based on Cigna and ASH's Utilization Management Reviews procedures. In that complaint, Cigna's insured, Carol Lietz, also alleged distinct claims regarding administrative fees. The Terms of the Settlement The Settlement, the full terms of which are set forth in the Settlement Agreement, provides substantial economic benefits to the Class. The Settlement has three primary components: (1) Cigna and ASH will pay $11.75 million as the total settlement amount, which includes $1 million toward administrative fees and $10.75 million toward benefit claims (2) ASH will make reasonable efforts to enact certain business reforms related to the conduct challenged by Plaintiffs in this action and (3) mutual releases of all claims between the parties. When granting final approval of a class action settlement, a district court must hold a hearing and conclude that the proposed settlement is fair, reasonable and adequate. In Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), the Third Circuit set forth factors (Girsh factors) a district court should consider when reviewing a proposed class action settlement. The Girsh factors are: (1) the complexity, expense and likely duration of the litigation (2) the reaction of the class to the settlement (3) the stage of the proceedings and the amount of discovery completed (4) the risks of establishing liability (5) the risks of establishing damages (6) the risks of maintaining the class action through the trial (7) the ability of the defendant to withstand a greater judgment (8) the range of reasonableness of the settlement fund in light of the best possible recovery and(9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. The complexity, expense and likely duration of the litigation Needless to say, had the Settlement not been reached, this matter would likely have proceeded to trial on the issues of liability and a determination of damages, if any. The continued prosecution of Plaintiffs' claims against Defendants would have required significant additional expense to the Class and a substantial delay before any potential recovery. Though at the time the parties reached the Settlement, the parties had vigorously litigated this case for more than seven years and engaged in extensive fact discovery, much work remained, including fact depositions, expert discovery, and motion practices with respect to class certification and summary judgment. Further, no matter the outcome of a trial, it is likely that one or all of the parties would have appealed, leading to further litigation costs and delay in any realized recovery. Thus, the avoidance of unnecessary expenditure of time and resources benefits all parties, and weighs in favor of approving the settlement. The reaction of the class to the settlement A low number of objectors or opt-outs is persuasive evidence of the proposed settlement's fairness and adequacy. Here, Defendants identified 26,128 individuals who meet the Class definition. Those individuals identified as potential Class members were mailed notices and Class forms. As of the date of the final approval hearing held on August 16, 2019, no Class Member had objected to the proposed settlement and only two (2) members had opted out. This factor is persuasive evidence of the fairness and adequacy of the proposed settlement, and weighs in favor of a final approval. The stage of the proceedings and the amount of discovery completed The third Girsh factor captures the degree of case development that class counsel had accomplished prior to settlement. Through this lens, courts can determine whether counsel had an adequate appreciation of the merits of the case before negotiating. When evaluating this third Girsh factor, courts must evaluate the procedural stage of the case at the time of the proposed settlement to assess whether counsel adequately appreciated the merits of the case while negotiating. Settlements reached following discovery are more likely to reflect the true value of the claim. This case has been actively litigated from its commencement. Prior to reaching a settlement, the parties briefed multiple motions to dismiss, engaged in extensive discovery and negotiations over discovery issues, and participated in a successful private mediation. As a result of the extensive proceedings that preceded the parties' settlement, the parties had ample opportunity to identify and grasp the strengths and weaknesses of each party's case. Consequently, this Court finds that this factor weighs in favor of approval. The risks of establishing liability This Girsh factor weighs the likelihood of ultimate success against the benefits of an immediate settlement. The existence of obstacles, if any, to the plaintiff's success at trial weighs in favor of settlement. This factor should be considered to examine what potential rewards or downside of litigation might have been had class counsel decided to litigate the claims rather than settle them. In this case, after considering the parties' various substantive filings, the outcome of this matter with respect to liability is far from certain. Defendants have denied any liability throughout this litigation. The proposed settlement, of course, avoids the risk that Defendants be found not liable. Thus, this Court finds that this factor weighs in favor of approval. The risks of establishing damages This factor attempts to measure the expected value of litigating the action rather than settling it at the current time. The Court looks at the potential damage award if the case were taken to trial against the benefits of immediate settlement. In Warfarin Sodium I, the trial court found that the risk of establishing damages strongly favored settlement, observing that damages would likely be established at trial through a battle of experts, with each side presenting its figures to the jury and with no guarantee whom the jury would believe. In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231, 256 (D. Del. 2002), aff'd 391 F.3d 516, 537 (3d Cir. 2004). Accordingly, this factor weighs in favor of approval. The risks of maintaining the class action through trial Because the prospects for obtaining certification have a great impact on the range of recovery one can expect to reap from the class action, this factor measures the likelihood of obtaining and keeping a class certification if the action were to proceed to trial. As noted above, this action has been vigorously litigated by both sides from the outset. As such, it is likely that the issue of class certification would have been the subject of vigorous dispute. Further, even if class certification were granted in this matter, class certification can always be reviewed or modified before trial, so the specter of decertification makes settlement an appealing alternative. Accordingly, this factor weighs in favor of approval. The ability of defendants to withstand a greater judgment This factor considers whether the defendants could withstand a judgment for an amount significantly greater than the settlement. Though the parties acknowledge that Defendants have the ability to withstand a judgment greater than the settlement amount, where the defendants' ability to pay greatly exceeds the potential liability, this factor is generally neutral. This Court finds that this factor is neutral. The range of reasonableness of settlement in light of best and possible recovery and all attendant risks of litigation The last two Girsh factors, often considered together, evaluate whether the settlement represents a good value for a weak case or a poor value for a strong case. In order to assess the reasonableness of a settlement in cases seeking monetary relief, the present value of the damages plaintiffs would likely recover if successful, appropriately discounted for the risk of not prevailing, should be compared with the amount of the proposed settlement. In light of the questions of fact and law present in this litigation, the value of the proposed settlement substantially outweighs the mere possibility of future relief. Here, the Class is receiving a significant settlement amount which offers real economic benefits to Class Members. Class Members do not have to submit claims, but instead will be automatically mailed checks to offset the financial responsibility they incurred for services from an ASH-contracted provider. The Settlement also requires ASH to use reasonable efforts to implement an array of business reforms. As previously noted, the expense of a trial and use of the parties' resources would have been substantial, especially in conjunction with the post-trial motions and appeals that would have likely followed any trial on the merits. Thus, a settlement is advantageous to all parties. Therefore, these factors weigh in favor of approval. Class Certification This Court provisionally certified the following proposed class: All ONET Chiropractic Providers who provided clinical services up to the Final Approval Date to a Plan Member, and whose claims for reimbursement of such services were subjected to the ASH policies or practices as part of the claims review or benefit determination process and where some or all of the claim was denied. A plaintiff seeking class certification must satisfy all requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). To satisfy the Rule 23(a) requirements: (1) the class must be so numerous that joinder of all members is impracticable (numerosity) (2) there must be questions of law or fact common to the class (commonality) (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class (typicality) and (4) the named plaintiffs must fairly and adequately protect the interests of the class (adequacy of representation, or simply adequacy). Rule 23(a) Requirements Numerosity Under Rule 23(a)(1), the court must determine whether the potential class is so numerous that joinder of all members is impracticable. No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met. Here, the Settlement Class includes approximately 26,000 Settlement Class Members. Given the number and geographic distribution of the Settlement Class Members, joinder of all Settlement Class Members would be impracticable, and the proposed Settlement Class satisfies Rule 23's numerosity requirement for settlement purposes. Commonality and Typicality Pursuant to Rule 23(a)(2), a court must determine whether there are questions of law or fact common to the class, ordinarily known as commonality. Under the Rule, commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. It does not require identical claims or facts among class members. Under Rule 23(a)(3), a court must also determine whether the claims or defenses of the representative parties are typical of the claims or defenses of the class. Typicality and commonality are closely related and often merge. Typicality ensures that the putative class members and representative's interests are aligned so that the latter will work to benefit the entire class through the pursuit of their own goals. Typicality is met when the named plaintiffs and the proposed class members challenge the same unlawful conduct. Here, a single overarching common question whether Defendants' UMR processes violated ERISA cuts across every claim of every Settlement Class Member. In addition, Plaintiffs assert the same ERISA claim, under the same legal theories for the same wrongful conduct as the other Settlement Class Members. As such Rule 23(a)(2) and (3)'s requirements of common question of law or fact and typicality are satisfied. Adequacy Under Rule 23(a)(4), a court must determine whether the proposed class representative will fairly and adequately protect the interests of the class. To meet the adequacy requirement, a finding must be made that (1) plaintiff's interests do not conflict with those of the class and (2) the proposed class counsel are capable of representing the class. The Third Circuit has recognized that the linchpin of the adequacy requirement is the alignment of interests and incentives between the representative plaintiffs and the rest of the class and not proof of vigorous pursuit of the claim. Here, there is no conflict between the proposed Class Representatives and the Class because, as with all members of the Class, Plaintiffs seek compensation for the same claims from the same Defendants. Plaintiffs have no interests that are antagonistic to or in conflict with the Class they seek to represent and their alleged injuries are identical to those suffered by Settlement Class Members. In addition, Class Counsel have substantial experience prosecuting large-scale class actions, including ERISA class actions against health insurers. Accordingly, both prongs of the adequacy inquiry are met. Rule 23(b)(3) Requirements Having found that Plaintiffs have satisfied each of the Rule 23(a) prerequisites, this Court must determine pursuant to Rule 23(b) whether 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. These two requirements are generally referred to as the predominance and superiority factors. Predominance The predominance requirement tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Issues common to the class must predominate over individual issues. Because the nature of the evidence that will suffice to resolve a question determines whether the question is common or individual, a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case. The predominance requirement is met here. Plaintiffs allege that each Settlement Class member was subject to the same UMR practices. As such, the claims of each similarly situated Settlement Class Member address the same issues of law and fact. Accordingly, this Court finds that the questions of law or fact common to class members that involve liability predominate over questions involving only individual members. Superiority Under the second criterion of Rule 23(b), this Court must find that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The superiority element requires courts to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication. Here, a class action is the superior method of resolving the Settlement Class Members' claims. All of the Settlement Class Members' claims are based upon the same basic operative facts and legal standards. It would be a far better use of judicial resources to adjudicate all of these identical issues once, on a common basis. In addition, the Settlement provides Settlement Class Members the ability to obtain predictable, certain, and definite compensatory relief promptly. By contrast, individualized litigation carries with it great uncertainty, risk, and costs, and provides no guarantee that injured Settlement Class Members will obtain timely compensatory relief at the conclusion of the litigation. Accordingly, this Court finds that consideration of the Rule 23(b) factors weighs favorably for certification. Because of the number and nature of potential class plaintiffs and the fact that each member's potential recovery is likely to be small compared to the cost of litigating an individual case, maintaining this matter as a class action is judicially advisable and superior to other available methods. After carefully concluding the requisite vigorous analysis of the factors in Rules 23(a) and (b), this Court finds that the requirements of Rule 23 have been met and that certification of Plaintiffs' proposed class is proper. This Court grants final approval of the proposed class action settlement. The full-text copy of the District Court's August 29, 2019 Memorandum Opinion is available at https://tinyurl.com/yysmsflz from Leagle.com. HIGH STREET REHABILITATION, LLC, Plaintiff, represented by JASON M. KNOTT -- jknott@zuckerman.com -- ZUCKERMAN SPAEDER LLP, STEVEN A. SCHWARTZ -- StevenSchwartz@chimicles.com -- Chimicles Schwartz Kriner & Donaldson-Smith LLP, D. BRIAN HUFFORD -- dbhufford@zuckerman.com -- ZUCKERMAN SPAEDER LLP, JASON COWART -- jcowart@zuckerman.com -- ZUCKERMAN SPAEDER LLP & NELL Z. PEYSER -- npeyser@zuckerman.com -- ZUCKERMAN SPAEDER LLP. DEFABIO SPINE AND SPORT REHAB, LLC, Individually, and on behalf of all others similarly situated, Plaintiff, represented by STEVEN A. SCHWARTZ, Chimicles Schwartz Kriner & Donaldson-Smith LLP & JASON M. KNOTT, ZUCKERMAN SPAEDER LLP. AMERICAN SPECIALTY HEALTH INCORPORATED, Defendant, represented by ANDREW Z. EDELSTEIN -- aedelstein@mayerbrown.com -- MAYER BROWN LLP, ELIZABETH D. MANN -- emann@mayerbrown.com -- MAYER BROWN LLP,JENNIFER M. CHANG -- jchang@mayerbrown.com -- MAYER BROWN LLP, MICHAEL P. DALY -- michael.daly@dbr.com -- DRINKER BIDDLE & REATH LLP, MATTHEW H. MARMOLEJO -- mmarmolejo@mayerbrown.com -- MAYER BROWN LLP & RICHARD M. HAGGERTY, Jr. --richard.haggerty@dbr.com -- DRINKER BIDDLE & REATH LLP. AMERICAN SPECIALITY HEALTH NETWORKS, INC, Defendant, represented by ANDREW Z. EDELSTEIN, MAYER BROWN LLP, ELIZABETH D. MANN, MAYER BROWN LLP,JASON M. KNOTT, ZUCKERMAN SPAEDER LLP, JENNIFER M. CHANG, MAYER BROWN LLP, MICHAEL P. DALY, DRINKER BIDDLE & REATH LLP, MATTHEW H. MARMOLEJO, MAYER BROWN LLP & RICHARD M. HAGGERTY, Jr., DRINKER BIDDLE & REATH LLP. ANTHEM BLUE: Wonderful Co. Sues over Fraudulent Medical Bills ------------------------------------------------------------- THE WONDERFUL COMPANY LLC, on behalf of itself and others similarly situated, the Plaintiff, vs. ANTHEM BLUE CROSS LIFE AND HEALTH INSURANCE COMPANY; LUCILE PACKARD CHILDREN'S HOSPITAL STANFORD; AND DOES 1-100, the Defendants, Case No. 19STCV30239 (Cal. Super., Aug. 22, 2019), alleges that Defendants are accountable for unfair, unlawful and unconscionable behavior in connection with medical charges submitted to TWC in violation of of the Cartwright Act. The action arises from Anthem's efforts to extort from TWC payment of Stanford's unlawful and fraudulent medical bills for the benefit of Anthem. TWC, a self-insured employer who retained Anthem to act as its TPA, is a privately held company based in Los Angeles, California. It employs thousands of Californians, through its various holdings in the areas of fruit, nut, flower, water, wine, and juice production, among others. TWC is a self-funded health insurance provider for its employees. Anthem, a third party health administrator, is an Indiana corporation with its principal place of business in Woodland Hills, California. Anthem serves as the third party administrator of TWC's employee health insurance plan and, among other things, provides TWC's employees with access to Anthem's proprietary network of service providers and negotiated billing rates pursuant to the parties' 2014 Administrative Services Agreement. As part of the Agreement, Anthem, inter alia, receives claims and/or charges from various service providers, investigates and reviews such claims to determine what amounts are due and payable, disburses said amounts to the providers, and subsequently seeks renumeration from TWC for those charges, the lawsuit says.[BN] Attorneys for the Plaintiff are: Kristina Diaz, Esq. Johnny Traboulsi, Esq. Courtney E. Vaudreuil, Esq. ROLL LAW GROUP PC 11444 West Olympic Boulevard Los Angeles, CA 90064-1557 Telephone: (310) 966-8400 Facsimile: (310) 966-8810 E-mail: kristina.diaz@roll.com johnny.traboulsi@roll.com courtney.vaudreuil@roll.com - and - ANDREW S. CLARE, Esq. E-mail: aclare@loeb.com LOEB & LOEB LLP 10100 Santa Monica Blvd., Suite 2200 Los Angeles, CA 90067-4120 Telephone: (310) 282-2000 Facsimile: (310) 282-2200 AQUA ILLINOIS: Henderson Sues Over Contaminated Water Supply ------------------------------------------------------------ JOANN HENDERSON and WILLIAM HENDERSON, individually, and on behalf of all others similarly situated, Plaintiffs, v. AQUA ILLINOIS, INC., an Illinois corporation, Defendant, Case No. 2019CH10191 (Circuit Ct., Cook Cty., Ill., Sept. 3, 2019) is a class action complaint arising out of the contamination of the water supply of Plaintiffs and thousands of other residents in the village of University Park, Illinois by Aqua, which owns and operates the public water system in the Village. In the summer of 2017, Aqua began adding a different chemical mix to the Public Water System purportedly to remove iron or rust from the water. Aqua constructed improvements to the Central A venue Boosting Station in order to withdraw water from the Kankakee River. Aqua introduced its new chemical mix into the Public Water System at the Central Avenue Boosting Station. On information and belief, as early as December 9, 2017, Aqua switched the source of the Public Water System from local groundwater wells to the Kankakee River. The introduction by Aqua of the new chemical mix into the Public Water System combined with the chemistry of the water from the Kankakee River resulted in the removal of a protective layer in residential plumbing throughout the Village, causing lead to leach into the water delivered to Plaintiffs and other Village customers of Aqua via the Public Water System. Plaintiffs, on behalf of themselves and all Class members, seek damages as a result of Aqua distributing water to them that was not assuredly safe and was contaminated with unsafe levels of lead as a result of Aqua's actions and inactions, says the complaint. Plaintiffs Joann Henderson and William Henderson are residents and citizens of Illinois, residing in the Village. Aqua Illinois, Inc. is an Illinois corporation with its principal place of business in Kankakee, Illinois.[BN] The Plaintiffs are represented by: Thomas A. Zimmerman, Jr., Esq. Sharon A. Harris, Esq. Matthew C. De Re, Esq. Nickolas J. Hagman, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 W. Washington Street, Suite 1220 Chicago, IL 60602 Office: (312) 440-0020 Facsimile: (312) 440-4180 Email: tom@attorneyzim.com sharon@attorneyzim.com matt@attorneyzim.com nick@attorneyzim.com www.attorneyzim.com BARCLAYS: Cadwalader Wickersham Attorneys Discuss UK Class Action ----------------------------------------------------------------- Vincent Brophy, Esq. -- vincent.brophy@cwt.com -- and Tom Bainbridge, Esq. -- tom.bainbridge@cwt.com -- of Cadwalader Wickersham & Taft LLP, in an article for Lexology, report that on 29 July 2019, claimants brought a class action in the UK Competition Appeal Tribunal (CAT) against five investment banks, alleging potentially billions of pounds in damages from cartel conduct in the foreign exchange markets. The claim follows on from a recent antitrust infringement decision of the European Commission, by which the five defendant banks -- Barclays, Citigroup, JP Morgan, RBS and UBS -- settled the authority's long-running foreign exchange investigation. In the decision, the banks admitted that their traders had exchanged competitively sensitive information and coordinated trading in foreign exchange markets in the period 2007 to 2013. The European Commission imposed total fines of EUR 1.07 billion. A further European Commission decision is pending against non-settling bank Credit Suisse in the same investigation, which may result in further fines, as well as an extension of the scope of the UK litigation. The class is represented by Michael O'Higgins, former Chairman of the UK Pensions Regulator, and consists of a broad class of claimants, including pension funds, asset managers, hedge funds and corporates. To proceed to trial, the CAT must certify the claim by way of a collective proceedings order (CPO), i.e. it must confirm that the claim is brought on behalf of an identifiable class, raises common issues, and is overall suitable to proceed as a class action. Why does this matter? This is now the seventh CPO application since the UK introduced class actions in the Consumer Rights Act 2015. The CAT, in considering early applications, has openly stated that it intends to tread carefully in certifying proposed classes, given the novelty of class actions in the UK and the challenges that they present for the legal system: "collective proceedings on an opt-out basis can bring great benefits, if successful . . . but like almost all substantial competition damages claims they can be very burdensome and expensive for defendants . . . The eligibility conditions . . . require the Tribunal to scrutinise an application for a CPO with particular care, to ensure that only appropriate cases go forward." (Justice Roth, in Merricks v Mastercard) The certification procedure is therefore still in its infancy. Of the previous applications, none thus far have been certified by the CAT: the first application (Gibson v Pride Mobility Products) was abandoned after it failed to receive certification; the second application (Merricks v MasterCard) is on appeal to the Supreme Court after conflicting judgments before the CAT and the Court of Appeal (see here); and other applications (on claims concerning the Trucks cartel and price-fixing by UK railway operators) have yet to be heard pending the judgement of the Supreme Court. Clearly, along with this new foreign exchange claim, there is now a sufficient body of pending class actions for the CAT to develop precedent (taking into account any guidance that might result from the Supreme Court in the pending Merricks case), and clearly articulate the grounds on which class certification should be granted. More broadly, the proceedings also highlight the increased litigation risk faced by investment banks from antitrust misconduct. Naturally, such misconduct exposes banks to investigations by antitrust authorities, and also by financial regulators, including the UK Financial Conduct Authority. Misconduct now also exposes them, as a matter of course, to private litigation in Europe -- brought both on an individual and class action basis. Indeed, this new class action commenced in the CAT will run alongside an FX-related joint antitrust claim brought in the UK High Court by over 100 investors against the same five defendants, as well as HSBC. What happens next? The claimants are seeking a CPO, which would allow their class action against the defendant banks to proceed to trial before the CAT. However, the appeal in Merricks v Mastercard will not be resolved for some time, and the Supreme Court's ruling may have a bearing on this and other applications. It is thus possible that, although the CAT may consider preliminary issues, the main hearing on the CPO application may be adjourned until the Supreme Court has clarified the test for certification. [GN] BLAIR'S BAIL: Sued Over Excessive Premiums for Bail Bond Purchase ----------------------------------------------------------------- Jerome Morgan, on behalf of himself and all others similarly situated, Plaintiff, v. BLAIR'S BAIL BOND, INC., BANKER INSURANCE COMPANY, INC., Defendants, Case No. 2:19-cv-12379-LMA-KWR (Civil District Ct., Parish of Orleans, La., Aug. 29, 2019) seeks a declaratory judgment that Section B. (1) of La. Act 54 violated the Due Prices Clauses of the State and Federal Constitutions and Article II, of the Louisiana Constitution. He further seeks a declaratory judgment that La. R.S. 22:1443 limits bail bond companies and their insurers to charging a 12 percent premium to purchase a bail bond and a declaration that La. R.S. 22:822 did not allow Defendant to exceed this limitation. The Defendants have since 2005 charged premiums in excess of what Louisiana law authorizes to secure a person's release from jail. Louisiana law limits bail bond companies and their sureties to charging 12 percent of the face value of an individual's criminal bail bond. Plaintiff signed a contract with Defendants in 2014 that required him to pay a 13 percent premium to purchase a bail bond, which is 1 percent more than what state law authorizes, says the complaint. Plaintiff Jerome Morgan is a resident of Orleans Parish. Defendant BLAIR'S BAIL BOND, INC. is a domestic corporation dully licensed under the laws of the state of Louisiana.[BN] The Plaintiff is represented by: William P. Quigley, Esq. LOYOLA UNIVERSITY NEW ORLEANS 7214 St. Charles Avenue New Orleans, LA 70118 Phone: (504) 861-5591 Email: quigley@loyno.edu BOBST NORTH: Court Denies Bobst Lyon's Bid to Junk Candelario Suit ------------------------------------------------------------------ The United States District Court for the Western District of New York issued a Decision and Order denying Defendants Bobst Lyon SAS' motion to dismiss the complaint for lack of personal jurisdiction in the case captioned JAN CARLOS CANDELARIO, Plaintiff, v. BOBST NORTH AMERICA, INC., as Successor in Interest to BOBST CHAMPLAIN, INC., and BOBST LYON, SAS, f/k/a SA MARTIN, Defendants. BOBST LYON, SAS, f/k/a SA MARTIN, Third Party Plaintiff, v. JAMESTOWN CONTAINER CORPORATION, Third Party Defendant. No. 18-CV-6281 CJS. (W.D.N.Y.). The Plaintiff filed a complaint against Bobst North America, Inc. and Bobst Lyon, SAS1alleging negligence and products liability. Plaintiff was injured at Jamestown Container Corporation, his place of employment while using a Martin Transline 1228, a machine designed to feed, slot, print, fold and glue corrugated cardboard to make boxes. Plaintiff alleges that as he was operating the machine, his hand was drawn into a nip point, trapping his hand and injuring it in such a fashion that two of his fingers had to be amputated and he was caused to sustain severe skin loss over his hand requiring extensive grafting and severe loss of function of his hand. Plaintiff bears the burden of showing that the Court has jurisdiction over the defendants. Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction.When sitting in diversity, this Court's jurisdiction is consistent with the jurisdiction of the state courts of general jurisdiction. Plaintiff asserts specific2 jurisdiction over Bobst Lyon, SAS in this diversity case through two subdivisions of New York's long-arm statute. In addition to New York's Long-Arm statute, constitutional due process requires that a defendant who is not present in the territory of the forum court have certain minimum contacts with it such that maintenance of the suit does not offend `traditional notions of fair play and substantial justice. It appears that the machine at the heart of this litigation was sold by Bobst Lyon, SAS's predecessor company to Bobst, Inc., at a time when that company was authorized to do business in New York. However, the machine was not sold by Bobst, Inc. to a New York entity, but was sold to an entity in Ohio. Eleven years before the filing of this action, in 2008, Bobst, Inc., now known as Bobst Group, Inc., the entity authorized to do business in New York, and the entity that purchased the machine at issue in this case and sold it to an Ohio company, surrendered its authority to do business in New York. The Ohio company sold the machine as used equipment to Jamestown Container Corporation sometime before June 9, 2016, the date of Plaintiff's injuries. N.Y. C.P.L.R. section 302(a)(3)(i) The essence of personal jurisdiction under (a)(3)(i) is the following: regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state. The evidence before the Court at this point in the litigation does not show that Bobst Lyon, SAS, meets this requirement. Nothing before the Court demonstrates that Bobst Lyon, SAS, received any revenue from sales in New York State. Plaintiff has pointed to no connection between the sale of the machine by the Ohio company to Jamestown Container Corporation and Bobst Lyon, SAS. No substantial relationship exists between the Ohio company sale to Jamestown Container Corporation and Bobst Lyon, SAS. Bobst Lyon, SAS, addresses Plaintiff's argument that four of its machines were sold to the New Jersey corporation which then sold them to New York entities. Bobst Lyon, SAS, contends that those four sales produced about one percent of Bobst Lyon, SAS's overall revenue. The Honorable I. Leo Glasser of the Eastern District observed in Copterline Oy v. Sikorsky Aircraft Corp., 649 F.Supp.2d 5 (E.D.N.Y. 2007): District courts in this Circuit agree that where a foreign corporation derives less than five percent of its overall revenue from sales in New York, such sales are not substantial enough to force a foreign defendant to litigate in New York. The allegations concerning Bobst Lyon, SAS's statements about its revenue from New York do not support Plaintiff's position of jurisdiction under (a)(3)(i). N.Y. C.P.L.R. section 302(a)(3)(ii) The crux of personal jurisdiction under (a)(3)(ii) is that Bobst Lyon, SAS, expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. According to Plaintiff, Bobst Lyon, SAS's sale of four machines to the New Jersey corporation, which were eventually sold by that corporation to New York entities, amounted to revenue more than $8,000,000.00. Bobst Lyon, SAS, concedes that it derives substantial revenue from sales of its machines outside of France, but that it could not and should not have reasonably expected that its sale of a machine to the ultimate customer in Ohio would have consequences in New York. The New York statute's foreseeability requirement, as the courts have labeled it, relates to forum consequences generally and not to the specific event which produced injury within the state. Bobst Lyon, SAS, argues that it was not foreseeable to it that the machine it sold to an Ohio entity would end up in New York, and makes the point that a nondomicillary manufacturer's amenability to suit no longer `travel[s] with the chattel. This argument appears at odds with the holding in Fantas Foods, Inc., where the New York court stated that (a)(3)(iii) is concerned with foreseeability of forum consequences generally, and not to the specific event which produced injury within the state. Fantas Foods, Inc., 49 N.Y.2d at 326 n.4. If Bobst Lyon, SAS, is selling machines to the New Jersey corporation which it knows will enter the New York market, then it should have foreseen that one of its machines could cause harm in New York. Fantas Foods, Inc. is not concerned with whether Bobst Lyon, SAS, could have foreseen that the specific machine that caused the harm would enter New York, only that it could face forum consequences generally. By selling machines to the New Jersey corporation chargeable with the knowledge that one or more of them would end up in New York, Bobst Lyon, SAS, could have foreseen the potential for consequences in New York. Thus, it appears that personal jurisdiction is available under (a)(3)(ii). Therefore, the Court must analyze the due process impact. Due Process Bobst Lyon, SAS, relies heavily on the decision in J. McIntyre Mach., Ltd. v. Nicastro. The decision did not result in the assent of five justices, therefore, Bobst Lyon, SAS, citing the rule in Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976), relies on Justice Breyer's concurring opinion in J. McIntyre Mach. Addressing Bobst Lyon, SAS's argument that its amenability to suit did not travel with the chattel that caused the injury, Justice Breyer, in his concurring opinion in J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 891 (2011), disagreed with the majority's determination that jurisdiction could rest upon no more than the occurrence of a productbased accident in the forum State. Instead, he wrote that the Supreme Court "has rejected the notion that a defendant's amenability to suit travels with the chattel. World-Wide Volkswagen, 444 U.S. at 296). In World-Wide Volkswagen, the Supreme Court held that simply because a manufacturer's chattel finds its way into the forum state, does not mean the manufacturer should foresee being brought into court there. Instead, the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. The allegations in the complaint demonstrate prima facie that Bobst Lyon, SAS's sales to the New Jersey corporation were done with the intent to target the New York market, which would mean Bobst Lyon, SAS, could foresee being brought into court in New York. Bobst Lyon, SAS's motion to dismiss for lack of personal jurisdiction is denied without prejudice. The full-text copy of the District Court's August 29, 2019 Decision and Order is available at https://tinyurl.com/y6sbauc4 from Leagle.com. Jan Carlos Candelario, Plaintiff, represented by Joseph A. Regan, Faraci & Lange LLP, 28 East Main Street, Suite 1100, Rochester, NY 14614 Bobst North America, Inc., As Successor in Interest to Bobst Champlain, Inc., Defendant, represented by Matthew C. Lenahan -- cshank@barclaydamon.com -- Rupp Baase Pfalzgraf & Cunningham LLC &Thomas R. Pender -- tpender@cremerspina.com -- Cremer Spina Shaughnessy Jansen & Siegert LLC. Bobst Lyon, SAS, formerly known as SA Martin, Defendant, represented by Thomas R. Pender, Cremer Spina Shaughnessy Jansen & Siegert LLC. Bobst North America, Inc., As Successor in Interest to Bobst Champlain, Inc., ThirdParty Plaintiff, represented by Matthew C. Lenahan, Rupp Baase Pfalzgraf & Cunningham LLC & Thomas R. Pender, Cremer Spina Shaughnessy Jansen & Siegert LLC. Bobst Lyon, SAS, formerly known as SA Martin & Bobst Lyon, SAS, ThirdParty Plaintiffs, represented by Thomas R. Pender, Cremer Spina Shaughnessy Jansen & Siegert LLC. Jamestown Container Corporation, ThirdParty Defendant, represented by Howard J. Snyder, Smith Mazure Director Wilkins Young & Yagerman P.C., 111 John Street, 20th Floor, New York, NY 10038 CAESARS ENTERTAINMENT: Bid to Transfer Antitrust Suit Denied ------------------------------------------------------------ The United States District Court for the Eastern District of Texas, Texarkana Division, issued an Order denying Defendants' Motion to Transfer Venue of the case captioned TRAVELPASS GROUP LLC, PARTNER FUSION INC, RESERVATION COUNTER LLC, Plaintiffs, v. CAESARS ENTERTAINMENT CORPORATION, CHOICE HOTELS INTERNATIONAL INC, HILTON DOMESTIC OPERATING COMPANY INC., MARRIOTT INTERNATIONAL INC, RED ROOF INNS INC, SIX CONTINENTS HOTELS INC, WYNDHAM HOTEL GROUP LLC, HYATT CORPORATION, Defendants. Civil Action No. 5:18-CV-00153-RWS. (E.D. Tex.). This is an antitrust case involving an alleged conspiracy among hotel chains to eliminate interbrand competition for keyword internet searches. The Plaintiffs allege the Defendants, conspiring with one another and so-called gatekeeper online travel agencies (OTAs) like Expedia and others, rigged bids and engaged in a group boycott to eliminate competing paid search advertisements displayed by internet search engines by agreeing not to bid on one another's branded keywords. The Plaintiffs assert four causes of action against Defendants, including (1) violation of the Sherman Act, 15 U.S.C. Section 1 (per se bid rigging/group boycott/market division) (2) violation of the Sherman Act, 15 U.S.C. Section 1 (unreasonable restraint of trade) (3) violation of related Utah Antitrust Act Section 1 and (4) tortious interference with prospective business relations. Whether this case should be transferred pursuant to the first-to-file rule The first-to-file rule is a discretionary rule by which a district court may decline to hear a case which substantially overlaps with a case in another district court. Here, although both cases contain similar allegations regarding the existence of an unlawful agreement between the five hotel companies in violation of antitrust laws, the Court agrees with the Magistrate Judge that the cases do not substantially overlap. While the cases are related, there are many significant differences (different claimants, claims, allegations, defenses, defendants, witnesses and damages) between them. Different types of claimants and claims In their briefing in support of a motion to dismiss, Defendants acknowledged that the different types of claims and claimants in this case justify different outcomes in certain situations. Tichy is a putative class action brought by a consumer. The Tichy denial of a motion to dismiss the consumer claim does not address the lack of antitrust injury that is fatal to the Complaint brought by TravelPass, a downstream distributor of certain Defendants' hotel rooms. The Tichy action is a putative nationwide class action brought by Karen Tichy on behalf of herself and a putative class of consumers in the United States who, from January 1, 2015 through the present, paid for a room reserved from any online travel agency or Defendants' online websites. This is an individual action brought by a downstream online travel agency. TravelPass is not a member of the putative class in Tichy. Rather, TravelPass distributes Defendants' hotel room inventory and is in competition with Defendants in online travel booking. Different allegations Whether the requirements of Rule 23 are met for class certification will be a complex issue in the Tichy action not present in this case. Although both the Tichy action and this case involve allegations of Sherman Act violations, this case alleges more details of the alleged conspiracy. Additionally, this case contains a tortious interference with prospective economic advantage, a claim not present in the Tichy action. Different defendants and defenses Although the Tichy action and this case involve five of the same defendants, this case involves three defendants who are not defendants in the Tichy action (Caesars Entertainment Corporation, Choice Hotels International, Inc. and Red Roof Inns, Inc.). As mentioned by the Magistrate Judge, because TravelPass and the plaintiff in the Tichy action stand in different relationships to Defendants and the relevant markets, Defendants' arguments regarding antitrust injury and antitrust standing are accordingly different. Different damages The Plaintiffs' damages are also different than the damages sought by the Tichy class. Whereas the plaintiffs in the Tichy action allege they paid more for hotel rooms and incurred greater costs in time and effort to locate suitable rooms than they would have absent the alleged conspiracy, Plaintiffs here have alleged Defendants' conduct caused a substantial diminution in the value of its business. Defendants have also highlighted the differences in the types of antitrust injury allegedly suffered by plaintiffs in both cases. Based on these considerations, the Court exercises its discretion not to apply the first-to-file rule. The Defendants have demonstrated that similar issues may arise in both this case and the Tichy action, but they have failed to show any substantial likelihood of conflicting rulings. Whether this case should be transferred pursuant to Section 1404(a) Focusing on the Tichy action already pending in the transferee court, Defendants assert Section 1404(a) also calls for transfer to the Northern District of Illinois. The Magistrate Judge found the four private interest factors neutral and two of the four public interest factors neutral. She found the public interest factor regarding court congestion weighs against transfer and the public interest factor regarding local interest weighs in favor of transfer. Defendants object to the Magistrate Judge's conclusions on the following three factors. Cost of attendance for the parties and witnesses Defendants and Plaintiffs both point out the headquarters of Plaintiffs, Defendants and key third parties (i.e., Expedia and Google) are scattered throughout the country. Plaintiffs argued, and the Magistrate Judge agreed, the Northern District of Illinois is no more convenient than this Court with respect to witness travel given the wide geographical distribution of potential party and non-party witnesses. In their objections, Defendants assert the Magistrate Judge's analysis of the convenience of witnesses factor failed to account for the fact that without transfer trial witnesses will be forced to travel twice to appear in court in two different districts. In their response to the objections, Plaintiffs assert witnesses will still have to travel twice if this matter were transferred and the two cases continue on separate tracks. As an initial matter, regardless of how the cases might be handled in the event this case were transferred, the fact remains that Defendants have failed to identify any specific party or non-party witnesses who would be inconvenienced by retaining venue in this Court. As stated by the Magistrate Judge, the Court has no information on who any of the eight defendant's relevant witnesses may be, where they might be located, or any evidence on which to assess their convenience with respect to this transfer analysis. As exemplified in several recent opinions from within the Eastern District of Texas, specifically identifying witnesses to testify is required for the Court to perform a proper convenience analysis. Here, Defendants have not identified any specific witnesses, either before the Magistrate Judge or in their objections to the R&R. Nor have Defendants provided any evidence that any employees will likely provide testimony that will be relevant at trial in this case. Even ignoring this failure, the Court agrees with the Magistrate Judge that this factor is neutral. Defendants failed to explain their position that witnesses would only be required to travel to a single trial, likely because there is no plausible reason to believe the two cases could be tried in a single trial. Moreover, it is pure speculation that the cases would or could be consolidated for pre-trial purposes, especially as Tichy will not complete class certification discovery and briefing until September 2020. Defendants have failed to show that transferring this case to the Northern District of Illinois would actually be more convenient for any witnesses. All other practical problems that make trial of a case easy, expeditious and inexpensive Defendants object to the Magistrate Judge's conclusion that this factor is neutral. Throughout the briefing on their motion and in their objections, Defendants rely almost entirely on judicial economy (and the pendency of the Tichy action in Illinois), which is an aspect of the fourth private catch-all factor of other practical problems that make trial of a case easy, expeditious, and inexpensive, to meet their burden of demonstrating that the Northern District of Illinois is a clearly more convenient venue. Defendants assert this action and the Tichy action are similar actions which require similar discovery from overlapping witnesses and involve substantially similar issues regarding the alleged conspiracy. According to Defendants, the risk of inconsistent rulings in separate districts concerning common issues is significant and weighs heavily in favor of transfer. Although not an enumerated factor, judicial economy can be considered when determining whether it is appropriate to transfer a case in the interest of justice. The Magistrate Judge was not persuaded that this case and the Tichy action involve precisely the same issues so that allowing the two cases to proceed in different district courts would lead to the wastefulness of time, energy and money that Section 1404(a) was designed to prevent. Considering that transfer can often disrupt and stall litigation, increasing costs and adding years to the time of final resolution of the dispute as well as the procedural and substantive differences between this case and the Tichy action, the Magistrate Judge agreed with Plaintiffs that a transfer would not render the trial of this case more easy, expeditious, and inexpensive. In their objections, Defendants assert as follows: (1) forcing identical discovery to proceed on two tracks is antithetical to judicial economy and (2) requiring resolution of the core question of conspiracy by two different courts creates a risk of inconsistent results, adverse to the interest of justice. The benefits courts are attempting to actualize in keeping related cases in the same district include the ability to save time, energy and money. The Court is not convinced any of these types of benefits would be realized if this case were transferred to the Northern District of Illinois. Between the two cases, there is no reason to expect the parties would be required to engage in joint discovery, and it is implausible that the cases would be tried before a single jury. In short, Defendants have not persuaded the Court that the Northern District of Illinois would consolidate or coordinate this case with the putative class action that has already been pending for over one year. Administrative difficulties flowing from court congestion In addition to the statistics provided by Plaintiffs, scheduling orders have now been entered in both cases that establish this case will proceed to trial earlier in this district. The Court has set this case for trial in October 2020, but the Tichy action does not have a trial date. The parties informed the Court at the hearing that the briefing on class certification in the Tichy action is scheduled to end around the same time as the trial date in this case. Considering this, and further considering the statistics that show that a trial would occur significantly earlier if the case proceeds in the Eastern District of Texas, this factor weighs heavily against transfer. Accordingly, Defendants have failed to carry their burden to show that the Northern District of Illinois is clearly more convenient than this forum. The full-text copy of the District Court's August 29, 2019 Order is available at https://tinyurl.com/y664ydkj from Leagle.com. Travelpass Group LLC, Partner Fusion Inc & Reservation Counter LLC, Plaintiffs, represented by Christopher W. Patton -- cpatton@lynnllp.com -- Lynn Pinker Cox & Hurst, LLP, Jared Daniel Eisenberg -- jeisenberg@lynnllp.com -- Lynn Pinker Cox & Hurst LLP, Jason H. Kim -- jkim@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, Jeremy Alan Fielding -- jfielding@lynnllp.com -- Lynn Pinker Cox & Hurst LLP, Ruben Alan Garcia -- rgarcia@lynnllp.com -- Lynn Pinker Cox & Hurst LLP, Todd Schneider -- tschneider@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP & Christopher John Schwegmann -- cjs@lynnllp.com -- Lynn Pinker Cox & Hurst LLP. Caesars Entertainment Corporation, Defendant, represented by Lezlie Madden -- lmadden@cozen.com -- Cozen O'Connor, Aaron S. Lukas -- alukas@cozen.com -- Cozen O'Connor, David Reichenberg -- dreichenberg@cozen.com -- Cozen O'Connor, David Zerhusen, Cozen O'Connor, Jennifer Haltom Doan -- jdoan@haltomdoan.com -- Haltom & Doan, Ty William Wilson, The Davis Firm, PC & William Ellsworth Davis, III, The Davis Firm, PC, 1 Bull Street, Suite 305, Savannah, Georgia 31401 Choice Hotels International Inc, Defendant, represented by Maria Wyckoff Boyce -- maria.boyce@hoganlovells.com -- Hogan Lovells US LLP, Jennifer Haltom Doan -- jdoan@haltomdoan.com -- Haltom & Doan, Justin W. Bernick -- justin.bernick@hoganlovells.com -- Hogan Lovells US LLP & Michael E. Jones, Potter Minton, a Professional Corporation, 500 Plaza Tower 110 N. College Avenue, Tyler, TX 75702 CALSONIC KANSEI: AC Systems Price Fixing Settlement Approved ------------------------------------------------------------ Freed Kanner London & Millen LLC; Kohn, Swift & Graf, P.C.; Preti, Flaherty, Beliveau & Pachios, LLP; and Spector Roseman & Kodroff, P.C. ("Settlement Class Counsel") on Aug. 12 disclosed that the United States District Court for the Eastern District of Michigan Southern Division ("Court") has approved the following announcement of proposed class action settlements with the Calsonic Defendants, DENSO Defendants, MAHLE Behr Defendants and Panasonic Defendants (collectively "Settling Defendants"). The settlements resolve allegations against the Settling Defendants that they conspired to raise, fix, maintain, and/or stabilize prices, rig bids, and allocate markets and customers for Air Conditioning Systems sold in the United States, in violation of federal antitrust laws. The settlements affect those who purchased Air Conditioning Systems in the United States between January 1, 2001 and February 14, 2017 directly from any one of the following entities (or depending on the specific settlement agreements, their parents, subsidiaries, affiliates, and joint ventures): Calsonic Kansei Corp.; CalsonicKansei North America, Inc.; DENSO Corporation; DENSO International America, Inc.; MAHLE Behr Gmbh & Co. KG; MAHLE Behr USA Inc.; Mitsubishi Heavy Industries America, Inc.; Mitsubishi Heavy Industries Climate Control, Inc.; Mitsubishi Heavy Industries, Ltd.; Panasonic Corp.; Panasonic Corp. of North America; Sanden Automotive Climate Systems Corp.; Sanden Automotive Components Corp.; Sanden Corp.; Sanden International (U.S.A.) Inc.; Showa Aluminum Corp. of America; Showa Denko K.K.; Valeo Climate Control Corp; Valeo Electrical Systems, Inc.; Valeo Inc.; Valeo Japan Co., Ltd.; Valeo S.A.; Behr GmbH; Keihin Corp.; and Nichirin Co., Ltd. A hearing will be held on November 5, 2019, at 2:00 p.m., before the Honorable Marianne O. Battani, United States District Judge, at the Theodore Levin United States Courthouse, 231 West Lafayette Boulevard, Detroit, MI 48226, Courtroom 250, for the purpose of determining whether the proposed settlements with the Calsonic Defendants, DENSO Defendants, MAHLE Behr Defendants and Panasonic Defendants totaling $14.17 million should be approved by the Court as fair, reasonable and adequate and whether the Court should approve Settlement Class Counsel's request for an award of attorneys' fees and reimbursement of litigation costs and expenses. A Notice of Proposed Settlements (the "Notice") was mailed to potential Settlement Class members on or about August 8, 2019. The Notice describes the litigation and options available to Settlement Class members with respect to the Calsonic, DENSO, MAHLE Behr and Panasonic settlements in more detail. The Notice also explains what steps a Settlement Class Member must take to (1) object to any or all of the settlements or (2) request exclusion from one or more of the settlement classes. The Notice and other important documents related to the Settlements can be accessed at www.AutoPartsAntitrustLitigation.com/AC or by calling 1-888-737-9549, or writing to Air Conditioning Systems Direct Purchaser Antitrust Litigation, P.O. Box 2530, Portland, OR 97208-2530. [GN] CANADA GOOSE: Cheng Files Suit Over Share Price Drop ---------------------------------------------------- LI HONG CHENG, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. CANADA GOOSE HOLDINGS INC., DANI REISS, JONATHAN SINCLAIR, and JOHN BLACK, Defendants, Case No. 1:19-cv-08204 (S.D. N.Y., Sept. 3, 2019) is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired Canada Goose securities between March 16, 2017 and August 1, 2019, both dates inclusive, seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. The Company began trading on the New York Stock Exchange on March 16, 2017, following its initial public offering. On November 2, 2017, the non-profit organization People for the Ethical Treatment of Animals ("PETA") issued a press release alleging that Canada Goose suppliers used unethical measures to obtain the down and fur used in creating the Company's clothing merchandise. The PETA Press Release also stated that PETA had issued a complaint to the FTC regarding these practices because the Company represented in communications and promotional materials that its clothing was produced with down and fur from sources that treated the animals used in sourcing those materials ethically and humanely. On this news, Canada Goose's stock price fell $0.70 per share, or roughly 3.27%, to close at $20.72 per share on November 2, 2017. Nevertheless, even after the PETA Press Release, Canada Goose continued to represent that the down and fur used in producing its clothing products were collected using humane and ethical practices. Finally, on August 1, 2019, the New York Post published an article entitled "Canada Goose pulls claims about its 'ethical' treatment of animals". According to the New York Post Article, Canada Goose had abandoned its claims of ethical treatment of animals used in making its winter jackets and clothing in response to the FTC's regulatory review. The New York Post Article also reported that Canada Goose had removed from its website previous claims that the Company sourced coyote fur from animals in overpopulated areas, as well as videos purporting to show where Canada Goose obtained down for its parkas. The New York Post article also reported PETA's assertion that its complaint to the FTC in 2017 had precipitated the FTC's investigation into Canada Goose for potential violations of the FTC Act. On this news, Canada Goose's stock price fell $2.21 per share, or over 4.7%, to close at $44.58 per share on August 1, 2019. Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Canada Goose sourced the down and fur used in its clothing products in a way that treated animals in an unethical and inhumane manner; (ii) Canada Goose was thus non-compliant with relevant FTC regulations pertaining to false advertising with respect to its sourcing practices; (iii) accordingly, Canada Goose was the subject of an ongoing FTC investigation regarding false advertising; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. Plaintiff acquired Canada Goose securities at artificially inflated prices during the Class Period. Canada Goose was founded in 1957 and is headquartered in Toronto, Canada. The Company designs, manufactures, and sells premium outdoor apparel for men, women, youth, children, and babies.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Phone: (212) 661-1100 Facsimile: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Phone: (312) 377-1181 Facsimile: (312) 377-1184 Email: pdahlstrom@pomlaw.com - and - Brian Schall, Esq. Rina Restaino, Esq. Kate Kearney, Esq. THE SCHALL LAW FIRM 1880 Century Park East, Suite 404 Los Angeles, CA 90067 Phone: (424) 303-1964 Email: brian@schallfirm.com rina@schallfirm.com kate@schallfirm.com CAPITAL ONE: Faces Bowen et al Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Capital One, N.A. et al. The case is captioned as Cindy Bowen and Diane Dillashaw, on behalf of themselves and a class of all others similarly situated, the Plaintiffs, vs. Capital One Financial Corporation; Capital One, N.A.; and Capital One Bank (USA), N.A., the Defendants, Case No. 1:19-cv-07917-JGK (S.D.N.Y., Aug. 23, 2019). The suit seeks $5 million in damages. The case is assigned to the Hon. Judge John G. Koeltl. Capital One operates as a bank. The bank offers financial products and services such as personal and business checking, savings accounts, investment, mortgages, issues credit card, business loans, and commercial banking solutions. Capital One serves consumers, small businesses, and commercial clients worldwide.[BN] Attorneys for the Plaintiffs are: Courtney Elizabeth Maccarone, Esq. LEVI & KORSINSKY, LLP 55 Broadway 10th Floor New York, NY 10006 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: cmaccarone@zlk.com Attorneys for the Defendants are: Peter Manley Starr, Esq. Peter Joseph Isajiw, Esq. Robert Warren Gray, Jr., Esq. KING & SPALDING LLP 1180 Peachtree St. NE, Suite 1600 Atlanta, GA 30309 Telephone: (404) 572-2767 E-mail: peter.starr@davispolk.com pisajiw@kslaw.com bgray@kslaw.com CASA SYSTEMS: Panther Says Registration Statement Misleading ------------------------------------------------------------ PANTHER PARTNERS, INC., Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. JERRY GUO, WEIDONG CHEN, GARY D. HALL, LUCY XIE, JOE TIBBETS, BILL STYSLINGER, BRUCE R. EVANS, CASA SYSTEMS, INC., MORGAN STANLEY & CO., LLC, MACQUARIE CAPITAL (USA) INC., BARCLAYS CAPITAL INC., STIFEL, NICOLAUS & COMPANY, INCORPORATED, WILLIAM BLAIR & COMPANY, L.L.C., RAYMOND JAMES & ASSOCIATES, INC., NORTHLAND SECURITIES, INC., DANIEL S. MEAD and ABRAHAM PUCHERIL, the Defendants, Case No. 654585/2019 (N.Y. Sup., Aug. 13, 2019), asserts strict liability claims under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 against Casa, the Company's underwriters for the SPO and certain officers and directors of Casa. The Plaintiff brings this securities class action on behalf of all persons who purchased Casa common stock directly in the Company's public stock offering that closed on April 30, 2018 (the SPO). According to the complaint, the Underwriter Defendants conducted the SPO, drafted the Registration Statement, disseminated the statements alleged to be false and misleading, and solicited purchasers of Casa's common stock. The Underwriter Defendants delivered the shares in the SPO against payment and the shares trade on NASDAQ. Panther Partners, Inc., purchased shares of the Company's common stock directly in the SPO, and has been damaged thereby. The Defendants were key members of the SPO working group and executives of Casa who pitched investors to purchase the shares sold in the SPO. The Defendants, other than Pucheril, signed the Registration Statement and, as directors and/or executive officers of the Company, participated in the solicitation and sale of the Company's common stock to investors in the SPO for their own financial benefit and the financial benefit of Casa. Defendant Casa and the Individual Defendants are strictly liable for the false and misleading statements made in the Registration Statement, the lawsuit says. Attorneys for the Plaintiff are: Samuel H. Rudman, Esq. James I. Jaconette, Esq. Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: 631 367-7100 Facsimile: 631 367 1173 E-mail: srudman@rgrdlaw.com jamesj@rgrdlaw.com bcochran@rgrdlaw.com - and - Jack G. Fruchter, Esq. ABRAHAM, FRUCHTER & TWERSKY, LLP One Penn Plaza, Suite 2805 New York, NY 10119 Telephone: 212 279-5050 Facsimile: 212 279-3655 E-mail: jfruchter@aftlaw.com CBC RESTAURANT: Faces Jones Suit Over BIPA Violation ---------------------------------------------------- EBONY JONES, on behalf of herself and all other persons similarly situated, Plaintiff, v. CBC RESTAURANT CORP. d/b/a CORNER BAKERY CAFE Defendant, Case No. 2019CH10119 (Circuit Ct., Cook Cty., Ill., Aug. 30, 2019) is a Class Action Complaint against Defendant for violations of the Illinois Biometric Information Privacy Act. Starting in 2017, Defendant required employees to use a biometric time clock system to record their time worked. The Defendant required Plaintiff and other employees to scan their fingerprints in Defendant's biometric time clock each time they started and finished working, including punching in and out for lunch breaks. In enacting the Biometric Information Privacy Act, the Illinois legislature recognized that biologically unique identifiers, like fingerprints, can never be changed when compromised, and thus subject a victim of identity theft to heightened risk of loss. As a result, Illinois restricted private entities, like Defendant, from collecting, storing, using, or transferring a person's biometric identifiers and information without adhering to strict informed-consent procedures established by the Biometric Information Privacy Act. The complaint alleges that the Defendant collected, stored, used, and transferred the unique biometric fingerprint identifiers, or information derived from those identifiers, of Plaintiff and others similarly situated without following the detailed requirements of the Biometric Information Privacy Act, and compromised the privacy and security of the biometric identifiers and information of Plaintiff and other similarly-situated employees, says the complaint. Plaintiff was employed by Defendant as a cashier at its restaurant located at 200 N. LaSalle in Chicago, Illinois from approximately mid-2012 to August 2018. Defendant is a casual dining restaurant chain.[BN] The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. Zachary C. Flowerree, Esq. Sarah J. Arendt, Esq. Jacqueline H. Villanueva, Esq. Werman Salas P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Phone: (312) 419-1008 Email: dwerman@flsalaw.com msalas@flsalaw.com zflowerree @flsalaw.com sarendt@flsalaw.com CLEVELAND, OH: Appeals Court Affirms $4MM Final Judgment in Lycan ----------------------------------------------------------------- The Court of Appeals of Ohio, Eighth District, Cuyahoga County, issued an Opinion affirming the Trial Court's decision awarding Final Judgment to the Class in the case captioned JANINE LYCAN, ET AL., Plaintiffs-Appellees/Cross-Appellants, v. CITY OF CLEVELAND, ET AL., Defendants-Appellants/Cross-Appellees. In this consolidated appeal, both the plaintiffs-appellees/cross-appellants, Janine Lycan, et al. and defendant-appellant/cross-appellee, the city of Cleveland, appeal the trial court's decision awarding final judgment to the class in the amount of $4,121,185.89. Cleveland Codified Ordinances (CCO) 413.031 imposes liability on the owner of a vehicle committing a red-light or speeding offense. The ordinance formerly defined vehicle owner as the person or entity identified by the Ohio Bureau of Motor Vehicles, or registered with any other State vehicle registration office, as the registered owner of a vehicle. In their complaint, plaintiffs contended that Cleveland had no authority under the former version of CCO 413.031 to collect fines from plaintiffs as vehicle lessees. As relief, plaintiffs sought the following: (1) disgorgement, under an unjust-enrichment theory, of fines paid to the city (2) an injunction preventing Cleveland from enforcing the ordinance against vehicle lessees and (3) declaratory relief. The Plaintiffs also filed a motion for class certification. In Dickson & Campbell, L.L.C. v. Cleveland, 181 Ohio App.3d 238, 2009-Ohio-738, 908 N.E.2d 964, this court concluded, based on the plain meaning of vehicle owner, that former CCO 413.031 did not impose liability on vehicle lessees. In light of Dickson & Campbell, the City subsequently amended CCO 413.031, effective March 11, 2009. The ordinance now states that a vehicle owner includes the lessee of a leased or rented vehicle. The trial court granted Cleveland's motion for judgment on the pleadings, finding that plaintiffs had waived the right to pursue judicial remedies by paying their fines and failing to appeal their citations as permitted by CCO 413.0319(k). In the same order, the trial court denied plaintiffs' class-certification motion. Plaintiffs' appeal to the Eighth District (Lycan I) Plaintiffs appealed to the Eighth District Court of Appeals. The appeals court affirmed the trial court's judgment dismissing plaintiffs' claim for injunctive relief, finding that an injunction would serve no purpose because the offending ordinance has since been repealed. But the appeals court reversed the trial court's dismissal of plaintiffs' claims for restitution and declaratory relief. The court found that plaintiffs' failure to challenge the fines before payment did not necessarily foreclose plaintiffs from proving a set of facts under which it would be unjust for Cleveland to retain the paid fines. The appeals court also reversed the denial of plaintiffs' class-certification motion and remanded for further proceedings on that question. On remand, and after completion of discovery, the trial court addressed the parties' competing motions for summary judgment on plaintiffs' unjust-enrichment claim. In support of its motion, Cleveland argued that the administrative process provided an adequate remedy to those receiving civil notices of liability and that the doctrine of res judicata therefore precluded review of the class's unjust-enrichment claim. The trial court granted partial summary judgment for plaintiffs. The court's entry consisted of two lines. The first line stated that plaintiffs' motion for partial summary judgment is granted. The second line of the order set a hearing date on plaintiffs' motion for class certification and appointment of class counsel. Cleveland's appeal to the Eighth District (Lycan II) Cleveland's first assignment of error addressed the February 26, 2013 class-certification order and raised two arguments: that plaintiffs failed to meet the requirements of Civ.R. 23 and that res judicata precluded class relief. Cleveland's second assignment of error alluded to the February 8, 2013 partial-summary-judgment order. However, Cleveland did not address the summary-judgment order in its brief. The court found that plaintiffs' failure to challenge the fines before payment did not necessarily foreclose plaintiffs from proving a set of facts under which it would be unjust for Cleveland to retain the paid fines. The appeals court also reversed the denial of plaintiffs' class-certification motion and remanded for further proceedings on that question. The court concluded that plaintiffs' failure to pursue administrative relief did not bar plaintiffs' class action because there was never an actual judgment' rendered by a court, or administrative tribunal, of competent jurisdiction. The court concluded that fairness and justice would not support the application of res judicata in this case. The court then proceeded to address Cleveland's challenge to class certification. The court concluded that the class met all requirements under Civ.R. 23 and affirmed the trial court's class-certification order. The City appealed from Lycan II to the Ohio Supreme Court in Lycan III. The Ohio Supreme Court accepted review on the following proposition of law: Cleveland Codified Ordinance 413.031 provides an adequate remedy in the ordinary course of law to those receiving civil notices of liability by way of the administrative proceedings set forth in the ordinance. Individuals who receive a civil citation issued pursuant to a local ordinance and who knowingly decline to take advantage of an available adequate remedy at law are precluded by res judicata from subsequently acting as class representatives and presenting equitable claims predicated in unjust enrichment. In reaching its conclusion, the Lycan III court acknowledged that: the parties do not dispute that the order that Cleveland appeals here, the trial court's February 26, 2013 class-certification order is a final, appealable order. Nor does the trial court's February 8, 2013 entry granting partial summary judgment provide a basis for reviewing the res judicata question. The Court therefore declines to address the partial-summary-judgment order in this appeal. The matter was then remanded to the trial court for further proceedings. The class filed a motion for implementation order requiring the City to bear the administrative expenses in concluding the class action proceeding. Kahn appeared at the final hearing in August 2018. The parties entered certain stipulations and presented evidence on contested issues. The City did not dispute the class's satisfaction of the class administration orders or the methodologies for calculating the restitution award. The class asked the court for an additional $1,841,563.51 to the disgorgement order, as an estimate of the time-value of the funds that were wrongfully withheld. In its judgment entry, the court resolved all remaining issues and ordered the City to pay $4,121,185.89 as restitution for the civil fines and penalties that were wrongfully collected and withheld by the City. The court further found that interest based upon the reasonably anticipated gains from these misappropriated funds is not recoverable in this action. It is from this order that the City appeals and the class cross-appeals, raising the following assignments of error for review: ASSIGNMENT OF ERROR ONE The trial court erred in granting summary judgment to the class and issuing a final judgment and award in favor of the class as the members of the class did not participate in the administrative hearing process established by CCO 413.031 and therefore failed to exhaust the administrative process available to them. Members of the class have no right to the judicial remedy afforded to them by the trial court as a result of their failure. ASSIGNMENT OF ERROR TWO The trial court erred in granting summary judgment to the class and issuing a final judgment and award in favor of the class as the members of the class lacked standing to seek judicial remedy. ASSIGNMENT OF ERROR THREE The trial court erred in granting summary judgment to the class and issuing a final judgment and award in favor of the class as the members of the class are barred from proceeding by principles of res judicata and collateral estoppel. ASSIGNMENT OF ERROR FOUR The trial court erred in granting summary judgment to the class and issuing a final judgment and award in favor of the class given the established unclean hands of each of the members of the class. The judgment and award of the trial court violated applicable principles of equity. ASSIGNMENT OF ERROR FIVE The trial court erred in granting summary judgment to the class and issuing a final judgment and award in favor of the class of non-owners where the payments by the class, were mistakes of law and their voluntary payments were not subject to recoupment. ASSIGNMENT OF ERROR SIX The trial court erred in ordering [the City] to pay the fees and expenses incurred by BrownGreer as the appointed claims administrator in this matter. CROSS-ASSIGNMENT OF ERROR The trial court erred as a matter of law, and otherwise committed an abuse of discretion, in determining that an award of the time-value of the wrongfully collected funds is not recoverable in an action for equitable relief. In the first assignment of error, the City argues the class failed to exhaust administrative remedies prior to filing its class action. The City, relying on Walker,raised this argument in its motion for reconsideration, which was denied by the trial court. The Court agrees with the trial court's decision. In San Allen, Inc. v. Buehrer, 8th Dist. Cuyahoga No. 99786, 2014-Ohio-2071, the Court acknowledged that a party must generally `exhaust any administrative remedy that could provide him with the relief he seeks' before seeking judicial intervention. But, we also found that where an administrative agency has no power to afford the relief sought or an administrative appeal would otherwise be futile, exhaustion of administrative remedies is not prerequisite to seeking judicial relief. In the instant case, the class includes all persons who were not a vehicle owner under CCO 413.031, but were issued notice of citation and/or assessed fine under that ordinance, prior to March 11, 2009, by the City. The deposition testimony of Administrator Vargas, the City's then-Administrator of the Parking Violations Bureau and Photo Safety Division, revealed that any administrative remedy the class would have availed themselves to would have been futile. In light of the foregoing, it appears that the class was not afforded an adequate forum to dispute any citation issued under CCO 413.031. Therefore, any participation in the City's administrative hearing process would have been futile. As a result, the class was not required to exhaust administrative remedies prior to pursuing the current judicial remedy. The first assignment of error is overruled. In the second assignment of error, the City argues the class lacks standing. In Lycan II, the Court specifically addressed the City's standing argument and found: The second requirement for class certification is that the class representative must have proper standing, which requires that the plaintiff must possess the same interest and suffer the same injury shared by all members of the class that he or she seeks to represent. The Ohio Supreme Court affirmed this finding in Lycan III when our decision to certify the class was upheld. In fact, the City specifically did not challenge this court's conclusion in Lycan II regarding class action certification. The Lycan III court noted that the City does not challenge the Eighth District's conclusions regarding whether the proposed class met the requirements of Civ.R. 23. Under the law of the case doctrine, the decision of a reviewing court in a case remains the law of that case on legal questions involved for all subsequent proceedings in the case at both trial and reviewing levels. This rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution. Therefore, the Court is bound by the law of the case in Lycan II and the Ohio Supreme Court's decision in Lycan III and cannot address the City's standing argument. The second assignment of error is overruled. In the third assignment of error, the City argues the class is barred by res judicata or collateral estoppel. The Court notes that in Lycan II the City appealed the trial court's decision granting the class certification. The City then made the deliberate decision to submit a single proposition of law to the Ohio Supreme Court in Lycan III that focused only upon res judicata. The Lycan III court affirmed the Court’s decision with regard to the class certification and vacated our decision in Lycan II with respect to res judicata. The court found that the Court improperly ruled on the question of res judicata, because the trial court did not decide that question in a final, appealable order. As a result, the matter was remanded to the trial court for further proceedings. Indeed, such arguments are barred by the doctrine of waiver for failure to raise these arguments before the trial court. Therefore, based on the foregoing, the City waived its res judicata argument and cannot now argue, for the first time on appeal, that the class is barred by res judicata. The third assignment of error is overruled. In the fourth assignment of error, the City argues the class has unclean hands because the class members violated the City's traffic laws. With an unclean hands argument, the City must demonstrate that the class engaged in reprehensible conduct with respect to the subject matter of the action. In Dickson & Campbell, the Court concluded that lessee of the vehicle cannot be held liable under CCO 413.031 as the vehicle owner. Because the class did not violate CCO 413.031, the class could not have engaged in reprehensible conduct. As a result, it cannot have unclean hands. The fourth assignment of error is overruled. In the fifth assignment of error, the City argues that no recovery is available for the class members because they voluntarily paid their civil penalties. Here, Administrator Vargas's deposition testimony revealed that if a citation was not paid within 27 days, a delinquency notice was issued automatically that imposed an additional $20 penalty. Three weeks after that, another notice followed and an additional $40 was assessed. Administrator Vargas further testified that when the recipients refused to pay, collection agencies were used to place phone calls and send collection letters. The debts were referred to credit reporting offices. In extreme cases, vehicles would even be impounded. Since the administrative hearing process could not be completed before the additional penalties were imposed as required by CCO 413.031, the nonvehicle owners had to either pay the ticket or incur the penalties. At the time, there was no provision in the ordinance placing a hold on the penalties if administrative review was sought. In Cleveland, the City successfully argued that the voluntary payment doctrine applies when the plaintiff made the payments at issue with full knowledge of the relevant facts. In the instant case, there is no evidence establishing that any of the class members who paid their tickets understood that the citations to nonvehicle owners were not subject to CCO 413.031. Therefore, the fifth assignment of error is overruled. In the sixth assignment of error, the City challenges the trial court's decision ordering that the City pay the fees and costs of the appointed class administrator, BrownGreer. The City argues that the basis of equity does not favor the City bear the significant administrative costs associated with notification to the members of the certified class. In Rimmer v. CitiFinancial, Inc., 2013-Ohio-5732, 6 N.E.3d 621, (8th Dist.), this court recognized that a trial court has discretion to order the defendant (mortgage holder to bear the cost of notice to the class members. The City argues that Rimmer is distinguishable because it was not predicated in equity. We find Rimmer persuasive. In Rimmer, summary judgment was entered in favor of a class of mortgagors against the mortgage holder that had violated the law by failing to enter timely satisfactions of mortgages with the county recorder. On appeal, the mortgage holder argued that the trial court erred by requiring it to pay for the class notice. After reviewing several authorities, including United States Supreme Court cases, we recognized that the class typically bears the costs, but the costs can be shifted to the defendant after liability has been determined. The Court found that no abuse of discretion had been committed given that the mortgage holder possessed the records needed for identifying the class members. In the instant case, it was within the trial court's discretion to order the City to bear the costs incurred by BrownGreer. The trial court was presented with Administrator Vargas's deposition testimony, which revealed that the City knowingly exceeded the authority granted under CCO 413.031 to issue the traffic camera citations. Therefore, the sixth assignment of error is overruled. Judgment is affirmed. The full-text copy of the Appeals Court's August 29, 2019 Opinion is available at https://tinyurl.com/y5887sfu from Leagle.com. Bashein & Bashein Co., L.P.A., W. Craig Bashein, and John P. Hurst, 50 Public Square Terminal Tower, 35th Floor, Cleveland, OH 44113; Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube, Terminal Tower, Suite 1910, 50 Public Square, Cleveland, OH 44113; The Dickson Firm, L.L.C., Blake A. Dickson, 3401 Enterprise Parkway, Suite 420, Beachwood, OH, 44122 for plaintiffs-appellees/cross-appellants, Janine Lycan, et al. Barbara A. Langhenry, Cleveland Director of Law, and Gary S. Singletary and Craig J. Morice, Assistant Directors of Law, for defendant-appellant/cross-appellee, City of Cleveland. CLIME CAPITAL: Settles Class Action for $8.3MM ---------------------------------------------- Karren Vergara, writing for Financial Standard, reports that Clime Capital has settled a Federal Court class action in principle for an agreed sum of $8.3 million. Backed by IMF Bentham, Clime told shareholders it was pleased the in-principle settlement has been reached with UGL, a firm that provides engineering, construction, maintenance and asset management services to the rail, resources and infrastructure sectors. Clime alleged between 16 April 2014 and 5 November 2014, UGL breached its continuous disclosure obligations by not being transparent about the delays and rising project costs related to its Ichthys power project. Further, it claimed UGL engaged in misleading and/or deceptive conduct, and breached its obligations of the Corporations Act 2001 and the ASX Listing Rules. Consequently, investors that purchased UGL shares within the claim period have suffered compensable loss, Clime and IMF said. IMF said settling is conditional on the parties reaching an agreement on the deed of settlement, as well as gaining approval from the Federal Court. If the settlement becomes unconditional, IMF expects to gain about $8.3 million, which includes the reimbursement of project costs. Clime recently made an off-market takeover bid for listed investment company CBG Capital (CBC). The merger is anticipated to create a $137.2 million Australian equities LIC. [GN] COLLECTO INC: Kim Files FDCPA Suit in E.D. New York --------------------------------------------------- A class action lawsuit has been filed against Collecto, Inc. The case is styled as Heesoo Kim individually and on behalf of all others similarly situated, Plaintiff v. Collecto, Inc., Defendant, Case No. 1:19-cv-05089 (E.D. N.Y., Sept. 6, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Collecto, Inc., doing business as EOS/CCA, Inc., operates as a debt management and recovery resource company.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: dbarshay@barshaysanders.com csanders@barshaysanders.com COMMUNITY HEALTH: Court Certifies Class in Norfolk Securities Suit ------------------------------------------------------------------ In the case, NORFOLK COUNTY RETIREMENT SYSTEM, individually and on behalf of others similarly situated, Plaintiff, v. COMMUNITY HEALTH SYSTEMS, INC., WAYNE T. SMITH, and LARRY CASH, Defendants, Case No. 3:11-cv-00433 (M.D. Tenn.), Judge Eli Richardson of the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted Lead Plaintiff NYC Funds' Motion for Class Certification. The case is a securities class action brought on behalf of all persons or entities who purchased and/or sold the publicly traded securities of CHS from July 27, 2006 through Oct. 26, 2011 against CHS and its senior officers, namely CEO and Chairman of the Board Wayne T. Smith and CFO and Director W. Larry Cash, for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Lead Plaintiff seeks recovery of monetary damages exceeding $891 million plus prejudgment interest accruing from the filing of the initial class action on May 9, 2011. In May and June 2011, three different shareholders initially filed putative securities fraud class actions against CHS and certain of its officers and directors. On Jan. 3, 2012, Judge John T. Nixon granted the Lead Plaintiff's motion to consolidate cases, for appointment as the Lead Plaintiff, and for approval of selection of the lead counsel, thereby appointing the Lead Plaintiff as the Lead Plaintiff and the Lead Plaintiff's counsel as the lead counsel. On July 13, 2012, the Lead Plaintiff filed an Amended Complaint. On Sept. 11, 2012, the Defendants filed a motion to dismiss the Amended Complaint, which the parties briefed through the end of January 2013 and again from December 2013 through June 2014. On Aug. 20, 2015, Magistrate Judge Joe Brown granted the Lead Plaintiff's oral motion to file an amended complaint to take account of developments in the law, thereby mooting the pending motion to dismiss. The Lead Plaintiff, in turn, filed its First Amended and Consolidated Class Action Complaint, i.e., the FAC. The Defendants filed a motion to dismiss that complaint. Judge Kevin Sharp granted the Defendants' motion and dismissed the case with prejudice on June 16, 2016. The Order was appealed, and the Sixth Circuit reversed and remanded. The Defendants filed a petition for an en banc review, which was denied, as was the Defendants' subsequent petition to the Supreme Court for a writ of certiorari. Separately, on Feb. 9, 2018, the Defendants filed a renewed partial motion to dismiss. Chief Judge Waverly Crenshaw denied the partial motion to dismiss on Sept. 24, 2018. On May 7, 2018, the Lead Plaintiff filed a Motion to Certify Class. The case was transferred to the undersigned District Judge on Oct. 19, 2018. The Lead Plaintiff now seeks certification of a class consisting of all persons and entities who purchased or otherwise acquired the publicly traded common stock of CHS from July 27, 2006 through Oct. 26, 2011, inclusive, and who were damaged thereby. The Lead Plaintiff also seeks an order appointing the Lead Plaintiff as the Class Representative and Lowey Dannenberg, P.C. as the Class Counsel. Although the Lead Plaintiff retains the initial burden of demonstrating compliance with the provisions of Rule 23(a) and Rule 23(b)(3), the Defendants challenge compliance with these rules only in two respects: whether the Lead Plaintiff has typical claims, and whether the Lead Plaintiff is an adequate class representative. Accordingly, the Court will first consider Defendants' two objections and then, if necessary, consider whether Lead Plaintiff has carried its burden in all other respects. Judge Richardson finds that the Defendants have failed to show any degree of likelihood that the defense will play a significant role at trial. Accordingly, the Lead Plaintiff's motion for class certification will not be denied based on the Defendants' unique-defense argument. The Lead Plaintiff otherwise meets the typicality and adequacy requirements. he Lead Plaintiff satisfies the typicality requirement because all members of the class were victims of an alleged fraud on the market throughout the Proposed Class Period and sustained damages as a result. The Lead Plaintiff also establishes the adequacy requirement. The Lead Plaintiff's interests are neither antagonistic to nor in conflict with the interests of other members of the proposed class. The Lead Plaintiff also has a significant financial stake in the litigation and undisputedly has retained qualified attorneys with considerable experience in securities class actions and complex litigation. The Lead Plaintiff also satisfies the numerosity requirement. Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. The Lead Plaintiff states that while the exact number of persons who acquired CHS stock during the Proposed Class Period is not known, at least 834 major institutional investors owned CHS common stock during the Proposed Class Period. Finally, the Lead Plaintiff satisfies the commonality requirement. It is clear that the Lead Plaintiff's claims depend upon a common contention of such a nature that is capable of class-wide resolution, i.e., a determination on the previously discussed allegations will resolve in one stroke issues that are central to the validity of each claim. Accordingly, the Judge finds that the Lead Plaintiff has satisfied the four factors under Rule 23(a) for class certification. In addition to meeting Rule 23(a)'s requirements, the Judge finds that the Lead Plaintiff also satisfies Rule 23(b)(3)'s predominance and superiority requirements. Common questions of law and fact predominate because the putative class is entitled to a presumption of reliance under Basic's fraud-on-the-market theory and Affiliated Ute's omission doctrine. Because the Judge finds that all requirements for class certification are satisfied, he will grant the Lead Plaintiff's motion. The question remains as to whether the class should be certified precisely as the Lead Plaintiff would have it, or whether instead whether the class definition should be modified. The Judge believes that the Lead Plaintiff likely would not be an adequate representative of the additional class members, asthe Lead Plaintiff well may focus heavily on the fact of, and resulting harm from, the prior withholding of information that was revealed on April 11, 2011; any such focus would likely be to the detriment of the proposed additional class members. Accordingly, in his discretion, the JUdge will carve out those who first purchased CHS stock after April 8, 2011. Thus, investors who purchased CHS stock on or before April 8, 2011 may bring claims based on events that transpired through Oct. 26, 2011 (to the extent they held their stock until October). But investors who did not purchase on or before April 8, 2011 will be excluded from the class based on Rule 23 consideration. Finally, the Judge has no reason to believe that Lowey Dannenberg will be unable to commit the resources necessary to represent the class. Therefore, because he finds Lowey Dannenberg clearly satisfies the requirements of Rule 23(g), he will appoint Lowey Dannenberg as the Class Counsel. Judge Richardson granted the Lead Plaintiff's motion for class certification. He certified the Class of all persons and entities who purchased the publicly traded common stock of CHS from July 27, 2006 through April 8, 2011, inclusive, and who were damaged thereby. Excluded from the Class are Defendants, the officers and directors of the company, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entities in which Defendants have or had a controlling interest. The Judge appointed NYC Funds as the Class Representative, and Lowey Dannenberg as the Class Counsel. A full-text copy of the Court's July 26, 2019 Memorandum Opinion is available at https://is.gd/LDXCmp from Leagle.com. Norfolk County Retirement System, Individually and on Behalf of all Others Similarly Situated, Plaintiff, represented by Christopher J. Keller -- ckeller@labaton.com -- Labaton Sucharow LLP, James Gerard Stranch, IV -- gstranch@branstetterlaw.com -- Branstetter, Stranch & Jennings, PLLC, Rachel A. Avan -- ravan@labaton.com -- Labaton Sucharow LLP & William Michael Hamilton -- mhamilton@provostumphrey.com -- Provost, Umphrey Law Firm, LLP. General Retirement System of the City of Detroit, Plaintiff, represented by David S. Hagy -- dhagy@hagylaw.com -- David S. Hagy, Attorney at Law. NYC Funds, Plaintiff, represented by Barbara J. Hart -- bhart@lowey.com -- Lowey Dannenberg, PC, David Harrison -- dharrision@lowey.com -- Lowey Dannenberg, PC, Scott Vincent Papp -- spapp@lowey.com -- Lowey Dannenberg, PC, Thomas Skelton, Lowey Dannenberg, PC & William Michael Hamilton, Provost, Umphrey Law Firm, LLP. Alberta Investment Management Corp & State-Boston Retirement System, Plaintiffs, represented by James Gerard Stranch, IV, Branstetter, Stranch & Jennings, PLLC. New York City Employees' Retirement System, New York City Teachers' Retirement System Variable Annuity Program, New York City Teachers' Retirement System, New York City Fire Department Pension Fund & New York City Police Pension Fund, Plaintiffs, represented by Barbara J. Hart, Lowey Dannenberg, PC & Scott Vincent Papp, Lowey Dannenberg, PC. AIMCo/Boston, Consol Plaintiff, represented by James Gerard Stranch, III, Branstetter, Stranch & Jennings, PLLC & James Gerard Stranch, IV, Branstetter, Stranch & Jennings, PLLC. Minneapolis Firefighters' Relief Association, Consol Plaintiff, represented by Frederic S. Fox -- ffox@kaplanfox.com -- Kaplan Kilsheimer & Fox, LLP, Joel B. Strauss -- strauss@kaplanfox.com -- Kaplan Fox Kilsheimer LLP, Karen Hanson Riebel -- khriebel@locklaw.com -- Lockridge Grindal Nauen PLLP, Michael K. Radford, Flynn & Radford, Pamela A. Mayer -- pmayer@kaplanfox.com -- Kaplan Fox Kilsheimer LLP & Richard A. Lockridge -- lockrra@locklaw.com -- Lockridge Grindal Nauen PLLP. De Zheng, Individually and on Behalf of All Others Similarly Situated, Consol Plaintiff, represented by James Gerard Stranch, III , Branstetter, Stranch & Jennings, PLLC, Jeffrey A. Berens, Dyer & Berens LLP & Robert J. Robbins, Robbins Geller Rudman & Dowd LLP. Community Health Systems, Inc., Defendant, represented by Alison C. Barnes -- abarnes@robbinsrussell.com -- Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Elizabeth O. Gonser -- egonser@rwjplc.com -- Riley, Warnock & Jacobson, Gary A. Orseck -- gorseck@robbinsrussell.com -- Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, John R. Jacobson -- jjacobson@rwjplc.com -- Riley, Warnock & Jacobson, Matthew Madden -- mmadden@robbinsrussell.com -- Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Michael L. Waldman -- mwaldman@robbinsrussell.com -- Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Peter Duffy Doyle , Proskauer Rose, LLP, Seth D. Fier -- sfier@proskauer.com -- Proskauer Rose, LLP & Steven Allen Riley -- sriley@rwjplc.com -- Riley, Warnock & Jacobson. Wayne T. Smith & W. Larry Cash, Defendants, represented by Alison C. Barnes , Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Elizabeth O. Gonser , Riley, Warnock & Jacobson, Gary A. Orseck , Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, John R. Jacobson , Riley, Warnock & Jacobson, Michael L. Waldman , Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Peter Duffy Doyle , Proskauer Rose, LLP, Seth D. Fier , Proskauer Rose, LLP & Steven Allen Riley , Riley, Warnock & Jacobson. Thomas Mark Buford, Consol Defendant, represented by James N. Bowen, Riley, Warnock & Jacobson, John R. Jacobson, Riley, Warnock & Jacobson, Milton S. McGee, III, Riley, Warnock & Jacobson & Peter Duffy Doyle , Proskauer Rose, LLP. Gary D. Newsome, Deponent, represented by Abid R. Qureshi, Latham & Watkins LLP, Clarence J. Gideon, Jr., Gideon, Cooper & Essary PLC & Justin B. Carter, Gideon, Cooper & Essary PLC. Carolyn Lipp, Deponent, represented by Donald W. Davis, Brennan, Manna & Diamond, LLC & Samuel P. Funk, Sims Funk, PLC. Edward M. Yarbrough, Non-Party Edward M. Yarbrough, Objector, pro se. CONOCOPHILLIPS COMPANY: Duffy Seeks Unpaid Overtime Under FLSA -------------------------------------------------------------- JOHN DUFFY, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CONOCOPHILLIPS COMPANY, Defendant, Case No. 1:19-cv-00184-CRH (D. N.D., Sept. 3, 2019) is a lawsuit brought to recover unpaid overtime wages and other damages from ConocoPhillips Company under the Fair Labor Standards Act. Duffy and the other workers like him regularly worked for ConocoPhillips in excess of 40 hours each week. But these workers never received overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA, ConocoPhillips improperly classified Duffy and similarly situated workers as independent contractors and paid them a daily rate with no overtime compensation. This collective action seeks to recover the unpaid overtime wages and other damages owed to these workers, says the complaint. Plaintiff Duffy worked for ConocoPhillips as a company man from approximately 2013 until 2018. ConocoPhillips is an oil and natural gas exploration and production company operating worldwide and throughout the United States.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew Dunlap, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Phone: 713-352-1100 Facsimile: 713-352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: (713) 877-8788 Facsimile: (713) 877-8065 Email: rburch@brucknerburch.com CORECIVIC TENNESSEE: Court Acknowledges Settlement Bid Joinder -------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order acknowledging Plaintiff Richards' Joinder in the Unopposed Motion for Preliminary Approval of Class Action Settlement in the case captioned JOSE GONZALEZ, et al., Plaintiffs, v. CORECIVIC OF TENNESSEE, et al., Defendants. Lead Case No. 1:16-cv-01891-DAD-JLT, Member Case No. 1:17-cv-01094-DAD-JLT. (E.D. Cal.). Having consolidated and reassigned cases Gonzalez v. CoreCivic of Tennessee, LLC, et al., No. 1:16-cv-01891-DAD-JLT and Richards v. CoreCivic of Tennessee, LLC, No. 1:17-cv-01094-LJO-JLT, and good cause appearing, this order gives effect to the parties' stipulation that the plaintiff in Richards joins in the unopposed Motion for Preliminary Approval of Class Action Settlement filed in Gonzalez. In addition, pursuant to the parties' stipulation, plaintiff Thomas Richards' sixth cause of action for violation of the Private Attorney General Act (PAGA) brought in his first amended complaint is hereby dismissed without prejudice. The full-text copy of the District Court's August 29, 2019 Order is available at https://tinyurl.com/y32rgutq from Leagle.com. Jose Gonzalez, Plaintiff, represented by Peter R. Dion-Kindem -- peter@dion-kindemlaw.com -- Peter R. Dion-Kindem, P.C., Adrian R. Bacon -- abacon@attorneysforconsumers.com -- Law Offices of Todd M. Friedman, P.C., Jeff Holmes -- LaborLawCA@gmail.com -- Jeff Holmes, Esq., Lonnie C. Blanchard, III -- lonnieblanchard@gmail.com -- The Blanchard Law Group, APC & Todd M. Friedman- tfriedman@toddflaw.com -- Law Offices of Todd M. Friedman, P.C. Thomas Richards, Plaintiff, represented by Adrian R. Bacon, Law Offices of Todd M. Friedman, P.C., Thomas Edward Wheeler -- twheeler@toddflaw.com -- Law Offices of Todd M. Friedman & Todd M. Friedman, Law Offices of Todd M. Friedman, P.C. CoreCivic of Tennessee, LLC & CoreCivic, Inc., Defendants, represented by Paul M. Gleason -- pgleason@gleasonfavarote.com -- Gleason and Favarote LLP. COVELLI ENTERPRISES: Settlement in FLSA Suit Gets Prelim Approval ----------------------------------------------------------------- Judge James S. Gwin of the U.S. District Court for the Northern District of Ohio approved the collective action settlement in the case, ERIN KIS, on behalf of herself and all others similarly situated, et al., Plaintiffs, v. COVELLI ENTERPRISES, INC., Defendant, Case No. 4:18-cv-54, No. 4:18-cv-434 (N.D. Ohio). In the Fair Labor Standards Act ("FLSA") collective action, nearly 500 current and former Panera Bread assistant managers seek unpaid overtime wages from Covelli. The parties now propose a settlement. Under the proposed settlement, Defendant Covelli will pay up to $3,725,000 to settle the collective action's claims. The parties also ask the Court to conditionally certify a related Ohio wage law class action for settlement purposes. Covelli will pay up to $900,000 to settle the class action's claims. The Plaintiffs ask the Court to: (i) approve the collective action settlement, (ii) conditionally certify the class for settlement, (iii) preliminarily approve the class settlement, (iv) appoint the Plaintiffs' counsel as the class counsel, and (v) issue the proposed class and collective action notices. The Plaintiffs ask the Court to conditionally certify a class for settlement composed of all Assistant Managers who work or have worked for the Defendant at any time from Jan. 9, 2016 until the date of final judgment in the action, who the Defendant classified as exempt from overtime. Judge Gwin finds that (i) the Plaintiffs would likely succeed on the merits; (ii) the parties here conducted extensive discovery; (iii) there is little risk that fraud or collusion produced the settlement; (iv) the public interest favors settling large complex actions to preserve judicial resources; (v) because the Plaintiffs seek certification only for settlement purposes, there will be no difficulty in managing the class; and (vi) the Plaintiffs' attorneys as the class counsel will bring sufficient resources to the representation. For the foregoing reasons, Judge Gwin granted the Plaintiffs' motion, approved the FLSA collective action settlement, and conditionally certified the class as described. He further preliminarily approved the class action settlement, appointed the Plaintiffs' counsel as the class counsel, and ordered the Plaintiffs to issue attached notices in the manner described in their motion. A full-text copy of the Court's July 26, 2019 Opinion and Order is available at https://is.gd/LCWETW from Leagle.com. Erin E Kis, on behalf of herself and all others similarly situated, Plaintiff, represented by Beau D. Hollowell -- bhollowell@karonllc.com -- Law Office of Daniel R. Karon, Correy A. Kamin -- kamin@whafh.com -- Wolf, Haldenstein, Adler, Freeman & Herz, Darnley D. Stewart, Outten & Golden, Deirdre A. Aaron, Outten & Golden, Drew T. Legando, Landskroner Grieco Merriman, Gregg I. Shavitz, Shavitz Law Group, Hannah Cole-Chu, Outten & Golden, Jack Landskroner, Landskroner Grieco Merriman, Justin M. Swartz, Outten & Golden, Logan A. Pardell, Shavitz Law Group, Lucy B. Bansal, Outten & Golden, Michael J. Palitz, Shavitz Law Group, Randall S. Newman -- newman@whafh.com -- Wolf, Haldenstein, Adler, Freeman & Herz, Robert Abrams -- abrams@whafh.com -- Wolf, Haldenstein, Adler, Freeman & Herz, Sally J. Abrahamson, Outten & Golden, pro hac vice & Daniel R. Karon -- dkaron@karonllc.com -- Law Office of Daniel R. Karon. Chelsea Romano, Individually and on behalf of all others similarly situated, Plaintiff, represented by Correy A. Kamin, Wolf, Haldenstein, Adler, Freeman & Herz, Darnley D. Stewart, Outten & Golden, Deirdre A. Aaron, Outten & Golden, Drew T. Legando, Landskroner Grieco Merriman, Gregg I. Shavitz, Shavitz Law Group, Hannah Cole-Chu, Outten & Golden, Jack Landskroner, Landskroner Grieco Merriman, Justin M. Swartz, Outten & Golden, Logan A. Pardell, Shavitz Law Group, Lucy B. Bansal, Outten & Golden, Michael J. Palitz, Shavitz Law Group, Randall S. Newman, Wolf, Haldenstein, Adler, Freeman & Herz & Sally J. Abrahamson, Outten & Golden, pro hac vice. Covelli Enterprises, Inc., Defendant, represented by Catherine L. Strauss -- catherine.strauss@icemiller.com -- Ice Miller, James E. Davidson -- james.davidson@icemiller.com -- Ice Miller & John P. Gilligan -- john.gilligan@icemiller.com -- Ice Miller. Panera, LLC, Interested Party, represented by Michael J. Kozimor -- Michael.Kozimor@jacksonlewis.com -- Jackson Lewis. CROSSROADS VILLAGE: Cal. App. Affirms Antonio Class Certification ----------------------------------------------------------------- In the case, AGUSTIN ANTONIO et al., Plaintiffs and Respondents, v. CROSSROADS VILLAGE, LLC, Defendant and Appellant, Case No. A153751 (Cal. App.), Judge Barbara J.R. Jones of the Court of Appeals of California for the First District, Division Five, (i) affirmed the trial court's class certification order, but (ii) vacated the trial court's determination that the Release Agreements were not enforceable. The case concerns a landlord's acknowledged failure to comply with the terms of a rent ordinance in the City of Fremont's municipal code.1 Section 9.60.040, subdivision (d) of the RRIDRO provided that a landlord's notice of rent increase must include specified language regarding a procedure for conciliation, mediation and fact-finding for disputes over rent increases. Section 9.60.030, subdivision (b) provided that "Any rent increase accomplished in violation of this chapter will be void and no landlord may take any action to enforce such an invalid rent increase." On Jan. 9, 2014, Antonio filed a putative class action alleging Crossroads Village, the owner of a residential apartment complex in Fremont, California, raised rents in a manner that violated Fremont's municipal code, and, therefore, that the rent increases were void. Antonio alleged rent increase notices violated the terms of the RRIDRO. He asserted causes of action for breach of contract; violation of chapter 9.60 of Fremont's municipal code; unfair business practices; conversion; and he sought punitive damages and the appointment of an independent trustee or receiver. On Feb. 24, 2015, Antonio filed a first amended complaint ("FAC") making similar allegations, but adding a cause of action for negligent hiring, supervising, or retaining of employees, and alleging that around March 2014, Crossroads Village approached all class members, including class representative and/or his former roommates, and attempted to and/or did enforce the illegal rent increases by offering to return portions of the illegally increased rents while retaining portions of the illegally increased rents. This new allegation was based on the fact that around March 2014, after the lawsuit was initiated, Crossroads Village obtained release agreements from 186 out of 231 households that rented apartments from Crossroads Village. Antonio, who resided in the apartment complex from approximately March 2009 to August 2012, did not execute a Release Agreement. In March 2016, Antonio moved for class certification. Crossroads Village opposed the motion arguing, among other things, that Antonio lacked standing to serve as the class representative because he did not execute a Release Agreement. In June 2016, the court granted the motion. The court defined the class as all tenants who lived at the apartment complex in Fremont, California and, at any time from Jan. 9, 2010 through the date of the Order, received at least one notice of change of terms of tenancy which notice did not contain language required by the RRIDRO. After certifying the class, the court held a bench trial on Antonio's claims based on stipulated facts and joint exhibits. The court found Crossroads Village's rent increase notices dated "Feb. 22, 2011, May 22, 2012, and June 24, 2013" were not in compliance with the RRIDRO and were therefore void. It also found the Release Agreements did not result in a waiver or compromise of the rent increases resulting from the noncompliant notices. The court found the total amount of damages to be awarded to the class for rent increase amounts from February 2010 through October 2015 does not exceed $723,344. On Jan. 4, 2018, the court entered judgment in favor of Antonio and the class. Crossroads Village appeals. Crossroads Village contends the court abused its discretion in certifying any issues relative to the enforceability of the Release Agreements. It also argues the court erred in determining the Release Agreements were ineffective, and in its award of damages. On appeal, Crossroads Village argues Antonio did not have standing to challenge the enforceability of the Release Agreements because he did not sign one. In addition, Crossroads Village contends Antonio failed to satisfy the "community of interest" requirement. Judge Jones finds that Antonio's proposed class consisted of tenants who both signed and did not sign the Release Agreements because he argued the Release Agreements themselves constituted illegal rent increases. Therefore, Antonio was a member of the proposed class. Also, the mere fact that a defendant could raise a defense against certain class members that would not apply to Antonio does not defeat his standing. Antonio alleged and argued he was subjected to the same alleged wrong, by the same Defendant, as the other members of the putative class. Crossroads Village fails to establish Antonio's interests were antagonistic to or in conflict with the objectives of those he purports to represent. Next, Crossroads Village argues the court erred "in concluding that common, as opposed to individual questions, predominated regarding the Release Agreements. The Judge disagrees. Individual issues do not render class certification inappropriate so long as such issues may effectively be managed. Nor is it a bar to certification that individual class members may ultimately need to itemize their damages. She finds that Crossroads Village fails to explain why the court should have viewed those differing circumstances or amounts as a bar to class certification. Importantly, the trial court found the notices of rent increase were the same in all material respects for every member of the putative class. Crossroads Village argues Antonio's claims were not typical because, unlike most of the proposed class members, he did not execute a Release Agreement and had no real interest in proving they were invalid. The Judge discerns no abuse of discretion in the court's determination that Antonio's claims were typical even though he did not sign a Release Agreement. At the class certification stage, the court properly focused on the nature of the evidence that would be used to establish or attack the enforceability of the Release Agreements, and whether this evidence could be addressed on a class-wide basis. The trial court acted well within its discretion in certifying the class. The Judge is not persuaded that, by signing the agreements, putative class members did not release or waive their claims arising from defective rent increase notices. Each agreement provides the text of the code section in block capitals. At the end of the document, immediately above the signature lines, each agreement also provides in bold and block capitals that the agreement includes a general release of all known and unknown claims. Also, there is no language in the Release Agreements that attempts to exempt Crossroads Village from the requirements of the RRIDRO, which pertained to language landlords were required to include in rent increase notices. The court erred in concluding the Release Agreements were inadequate to compromise the void amounts. Finally, the Judge finds that it is not clear if the tenants who signed the Release Agreements were aware of the putative class action at the time they did so. But they were aware of a procedural defect in certain Notices of Change of Terms, they acknowledged there is a risk that such damages as are presently known may become more serious than Tenant now expects or anticipates, and they expressly waived their rights under Civil Code section 1542. Antonio fails to establish the Release Agreements violate public policy. Judge Jones affirmed the class certification order but vacated the trial court's determination that the Release Agreements were not enforceable. She remanded for a recalculation of the damages to be awarded to the class, which now consists of all tenants who did not execute Release Agreements, who lived at the apartment complex in Fremont, California, and who, at any time from Jan. 9, 2010 through June 2016, received at least one notice of change of terms of tenancy which notice did not contain language required by the RRIDRO. She otherwise affirmed. The parties will bear their own costs on appeal. A full-text copy of the Court's July 26, 2019 Opinion is available at https://is.gd/69nr9H from Leagle.com. CRYSTAL FARMS: Reyes Suit Over "Made With Real Butter" Label Nixed ------------------------------------------------------------------ Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York granted the Defendant's motion to dismiss the case, MARILYN REYES, individually and on behalf of all others similarly situated, Plaintiff, v. CRYSTAL FARMS REFRIGERATED DISTRIBUTION COMPANY, Defendant, Case No. 18-CV-2250 (NGG) (RML) (E.D. N.Y.). Reyes brings the putative class action against Defendant Crystal Farms. She The Plaintiff filed the suit on April 4, 2018 and filed an amended complaint on Oct. 19, 2018, bringing five claims. First, the Plaintiff claims that the Defendant's representations were false, deceptive, and misleading, violating New York General Business Law ("NY GBL") Sections 349 and 350, because she believed, based on its representations, that the mashed potatoes did not contain margarine and were fresh. Second, she brings a claim for negligent misrepresentation, alleging that the Defendant misrepresented the composition of its mashed potatoes by (1) highlighting that they contain butter, giving consumers the impression that the product did not contain margarine, and (2) implying the mashed potatoes were fresh. According to the Plaintiff, the Defendant had a duty to not deceptively describe the mashed potatoes, based in part on its position as a trusted brand. Further, it allegedly knew (or should have known) that its advertising was false or misleading. The Plaintiff claims that these alleged misrepresentations induced it to purchase the mashed potatoes, and that her reliance on the misrepresentations was reasonable and justifiable. Third, the Plaintiff claims that the Defendant breached an express warranty and an implied warranty of merchantability. In her view, the Defendant warranted to the Plaintiff that the mashed potatoes did not contain margarine and were fresh. Per the Plaintiff, since it is not conceivable to have mashed potatoes with butter and margarine, no reasonable consumer would expect the mashed potatoes to contain margarine. She Plaintiff avers that she relied on the Defendant's claims in paying more for the mashed potatoes than she would have otherwise. Fourth, the Plaintiff brings a fraud claim, alleging that the Defendant's intent in advertising that its mashed potatoes were made with real butter and fresh whole potatoes was to prey on consumers' expectations. The Defendant was allegedly motivated by a desire to increase its market share in the mashed potatoes industry. Finally, the Plaintiff contends that the Defendant was unjustly enriched by its actions, to the detriment of her and the putative class members. She seeks restitution and disgorgement of the Defendant's inequitably obtained profits. The Defendant now moves to dismiss the amended complaint in its entirety. It maintains that: (1) the Plaintiff has failed to state a claim; (2) even if she had, her claims (all of which are rooted in state law) are expressly preempted by the Food, Drug, and Cosmetic Act ("FDCA"); and (3) in any event, her purported nationwide class allegations should be dismissed because her false advertising claims under New York state law cannot apply to transactions occurring outside of New York. Judge Garaufis finds that the Plaintiff has failed to state a claim with respect to any of her five causes of action. First, the Defendant's representation that its mashed potatoes were "made with real butter" is truthful, and other labels on its packaging dispelled any confusion about whether the mashed potatoes contained margarine. Next,the Judge finds that the Defendant's representation that its mashed potatoes are "made with fresh whole potatoes" does not violate NY GBL §§ 349 and 350 either, for two reasons. First, the Plaintiff does not allege that this statement is untruthful -- i.e, that Defendant does not incorporate raw, unfrozen potatoes into its product. Second, the Plaintiff's allegation is implausible. Contrary to the Plaintiff's suggestion, the Judge does not believe a reasonable consumer would be misled into believing that Defendant's mashed potatoes lacked artificial preservatives. He therefore dismisses the Plaintiff's NY GBL Sections 349 and 350 claims. To state a claim for fraud under New York law, a plaintiff must allege (1) a material misrepresentation or omission of fact; (2) which the defendant knew to be false. Similarly, to allege a negligent misrepresentation claim, a complaint must establish that (1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect. The Judge finds that the Plaintiff has not alleged that either of the representations at issue were false. Thus, he dismisses her fraud and negligent-misrepresentation claims. The Judge also finds that the Plaintiff has not plausibly alleged that either of the representations at issue were false or misleading. The Defendant warranted that its mashed potatoes were "made with real butter" and "made with fresh whole potatoes" -- not that the mashed potatoes lacked margarine or were themselves "fresh." Thus, he dismisses the Plaintiff's claim for breach of express warranty. The Plaintiff's injuries are financial. The required privity does not exist here because the Plaintiff has not alleged that she purchased the product directly from Defendant. Accordingly, the Plaintiff's claim for breach of the implied warranty of merchantability cannot proceed. Finally, the Judge finds that laintiff has not properly alleged any equitable obligation. The Plaintiff brings an unjust enrichment claim on the basis that the Defendant obtained benefits and monies because the mashed potatoes were not as represented, to the detriment and impoverishment of the Plaintiff and the class members. The claim cannot succeed ecause it merely duplicates the Plaintiff's other claims based on the same alleged misrepresentations. For the foregoing reasons, Judge Garaufis granted in full the Defendant's (Dkt. 14) motion to dismiss the Plaintiff's amended complaint. A full-text copy of the Court's July 26, 2019 Memorandum and Order is available at https://is.gd/JrbTRY from Leagle.com. Marilyn Reyes, individually and on behalf of all others similarly situated, Plaintiff, represented by Spencer I. Sheehan -- spencer@spencersheehan.com -- Sheehan & Associates, P.C. & Joshua Levin-Epstein, Levin-Epstein & Associates, P.C. Crystal Farms Refrigerated Distribution Company, Defendant, represented by August Theodore Horvath -- ahorvath@foleyhoag.com -- Foley Hoag LLP. CYS GROUP: Made Illegal Unsolicited Calls, Itayim Suit Asserts --------------------------------------------------------------- MARIELA ITAYIM, individually and on behalf of all others similarly situated, Plaintiff, v. CYS GROUP, INC., a Washington company, Defendant, Case No. 2:19-cv-06716 (C.D. Cal., Sept. 3, 2019) is a class action under the Telephone Consumer Protection Act against Defendant to stop its practice of making unauthorized pre-recorded voice calls promoting its photography products and services, and to obtain redress for all persons similarly injured by its conduct. This case challenges Defendant's practice of making unauthorized pre-recorded voice calls to consumers promoting its photography products and services. The Defendant's unsolicited pre-recorded voice calls violated the TCPA, and caused Plaintiff and putative members of the Class to suffer actual harm, including the aggravation, nuisance, loss of time, and invasions of privacy that result from the receipt of such calls, lost value of cellular services paid for, and a loss of the use and enjoyment of their phones, including wear and tear to their phones' data, memory, software, hardware, and battery components, among other harms. Plaintiff seeks an injunction requiring Defendant to cease making unsolicited pre-recorded voice calls to consumers, as well as an award of actual and/or statutory damages and costs, says the complaint. Plaintiff Itayim is a Broward County, Florida resident. Defendant is a company that provides photography products and services.[BN] The Plaintiff is represented by: Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Phone: (305) 469-5881 Email: kaufman@kaufmanpa.com DELEON LATIN: Does not Pay Minimum, Overtime Wages, Perez Says -------------------------------------------------------------- HECTOR ANTONIO CACERES PEREZ, individually and on behalf of all others similarly situated, Plaintiff, v. DELEON LATIN CUISINE, CORP. d/b/a MI CASA RESTAURANT & LOUNGE and RICARDO MENDEZ and JOHANNA MELENDEZ, as individuals, Defendants, Case No. CV19-5007 (E.D. N.Y., Sept. 3, 2019) is an action against Defendants to recover damages for violations of state and federal wage and hour laws arising out of Plaintiff's employment under the Fair Labor Standards Act and the New York Labor Law. The complaint alleges that Defendants failed to pay Plaintiff the legally prescribed minimum wage for her hours worked from January 2019 until July 2019, a blatant violation of the minimum wage provisions contained in the FLSA and NYLL. Plaintiff worked approximately 51 or more hours per week during his employment by Defendants, yet Defendants did not pay Plaintiff time and a half for hours worked over 40. The Defendants also willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment and failed to keep accurate payroll records, says the complaint. Plaintiff HECTOR ANTONIO CACERES PEREZ was employed by Defendants from January 2019 until July 2019. DELEON LATIN CUISINE, CORP. d/b/a MI CASA RESTAURANT & LOUNG, is a corporation organized under the laws of New York with a principal executive office at 116-20 Jamaica Ave., Richmond Hill, NY 11418.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. Helen f. Dalton & Associated, P.C. 80—02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Phone: 718-263-9591 Fax: 718-263-9598 DENSO CORP: Windshield Wiper Class Action Settlement Okayed ----------------------------------------------------------- Freed Kanner London & Millen LLC; Kohn, Swift & Graf, P.C.; Preti, Flaherty, Beliveau & Pachios LLP and Spector Roseman & Kodroff, P.C. ("Settlement Class Counsel") on Aug. 12 disclosed that the United States District Court for the Eastern District of Michigan Southern Division ("Court") has approved the following announcement of proposed class action settlements with the MITSUBA Defendants and DENSO Defendants. The lawsuit claims that Defendants conspired to raise, fix, maintain, and stabilize prices, rig bids, and allocate the supply of windshield wiper systems sold in the United States, in violation of federal antitrust laws. The settlements affect those who purchased windshield wiper systems in the United States between January 1, 2000 and August 14, 2018 directly from any of the following entities (or depending on the specific settlement agreement, their parents, subsidiaries, affiliates and joint ventures): ASMO Co. Ltd.; DENSO Corporation; DENSO International America, Inc.; American Mitsuba Corp.; MITSUBA Corp.; Robert Bosch GmbH; Bosch Electrical Drives Co., Ltd. f/k/a Korea Automotive Corporation (KAMCO); and Valeo S.A. A hearing will be held on November 5, 2019, at 2:00 p.m., before the Honorable Marianne O. Battani, United States District Judge, at the Theodore Levin United States Courthouse, 231 West Lafayette Boulevard, Detroit, MI 48226, Courtroom 250, for the purpose of determining: (1) whether the proposed settlements with the MITSUBA and DENSO Defendants totaling $6,216,176 should be approved by the Court as fair, reasonable and adequate; (2) whether the Court should approve the proposed plan of distribution of MITSUBA and DENSO settlement proceeds to members of the settlement classes; and (3) whether the Court should approve Settlement Class Counsel's request for an award of attorneys' fees, reimbursement of litigation costs and expenses, and an incentive payment to the Class Representative. A Notice of Proposed Settlements and Claim Form (the "Notice") was mailed to potential Settlement Class members on or about August 8, 2019. The Notice describes the litigation and options available to Settlement Class members with respect to the MITSUBA and DENSO settlements in more detail. The Notice also explains what steps a Class Member must take to (1) remain in the settlement classes and file a Claim Form to share in the settlement proceeds, (2) object to the settlements, or (3) request exclusion from the settlement classes. The Notice and other important documents related to the settlements can be accessed at www.AutoPartsAntitrustLitigation.com/WindshieldWiperSystems, or by calling 1-877-670-0952 or writing to Windshield Wiper Systems Direct Purchaser Antitrust Litigation, P.O. Box 2838, Portland, OR 97208-2838. Those who believe they may be a member of either of the MITSUBA or DENSO settlement classes, are urged to obtain a copy of the Notice. [GN] DIRECT ENERGY: 7th Cir. Affirms Dismissal of Sevugan Suit --------------------------------------------------------- Judge Michael B. Brennan of the U.S. Court of Appeals for the Seventh Circuit affirmed the district court's dismissal of the case, CHETTY SEVUGAN, individually and on behalf of others similarly situated, Plaintiff-Appellant, v. DIRECT ENERGY SERVICES, LLC, a Delaware Corporation, Defendant-Appellee, Case No. 18-3082 (7th Cir.). Unhappy with his utility bill, Sevugan filed the putative class action challenging the electricity prices of Direct Energy, an alternative retail energy supplier in the Chicago market. Sevugan, hoping to save money on his monthly electric bills, contracted with Direct Energy in 2011. Sevugan's allegations center on two clauses in his contract with Direct Energy. The first is the "Terms Clause." The contract required Direct Energy to supply electricity at a fixed price per kilowatt hour (kWh) for the first 12 months. At the end of that initial term, Sevugan renewed for an additional twelve months at a lower fixed rate. In 2013, though, Sevugan neither re-enrolled nor cancelled service, which triggered what the "Renewal Clause." Per the Renewal Clause, Sevugan's contract automatically renewed on a month-to-month basis, with his price set at a variable rate. After several years as a customer, Sevugan became unhappy with his electricity costs, believing them to be above market rates and more expensive than if he had remained with ComEd. He cancelled service with Direct Energy and sued in September 2017, alleging Direct Energy deceived him (and others like him) in t he parties' four-page form contract. Sevugan made a variety of claims in his lawsuit, asserting that after his fixed-rate term expired, the variable charges should have been based on market-related factors. He claimed the rates he paid did not reflect changes in wholesale-market prices and failed to correspond to rates offered by ComEd. Direct Energy moved to dismiss, arguing that Sevugan did not plausibly allege that the parties' contract made those promises. In a thorough opinion, the district court dismissed Sevugan's breach of contract claim without prejudice under FED. R. CIV. P. 9(b) and 12(b)(6), concluding that Sevugan failed to allege enough facts to show that Direct Energy plausibly breached a contractual duty. As the dismissal was without prejudice, Sevugan filed a second amended complaint, which asserted only that Direct Energy breached paragraphs 3 and 5 of the parties' contract by: "(a) failing to base its prices upon generally prevailing market prices for electricity in the PJM market at the Electric Utility load zone for the applicable period, (b) failing to provide a competitive rate, (c) increasing its adder to an unreasonable level, or (d) all of the above." Direct Energy again moved to dismiss, contending Sevugan's breach of contract claim was too speculative and lacked sufficient factual allegations. In a second detailed opinion, the district court again dismissed Sevugan's case, this time with prejudice. The court concluded Sevugan did not allege facts showing Direct Energy's rates were not "based on generally prevailing market prices," as the complaint pleaded only the prices of ComEd and the PJM market. The complaint was silent on rates charged by other Illinois alternative retail energy suppliers, which the district court considered Direct Energy's competition. The court further ruled that the contract did not promise to charge rates lower than ComEd, so a breach of contract had not been alleged. The district court also held that Sevugan failed to include facts showing the "adder" Direct Energy charged was "unreasonable." Sevugan failed to allege the amount of the adder, what percentage of the variable rates the adder constituted, or the adders charged by other suppliers. Without any such facts, the district court concluded Sevugan's pleaded claim was deficient. Likewise, the district court rejected Sevugan's argument that Direct Energy breached by not setting its variable rates "competitively." Sevugan failed to allege the prices of any other alternative retail energy suppliers, making it impossible to know whether Direct Energy's pricing of its variable rates were competitive in the variable market. The district court explained that factual allegations regarding ComEd's prices were insufficient, as they are set by regulators, not the market. Sevugan timely appealed from the second dismissal. Sevugan first contests how Direct Energy exercised its discretion in setting electricity rates. Judge Brennan holds that Sevugan's claim that Direct Energy did not charge rates commensurate with ComEd, or with the wholesale price of PJM, fails to allege a breach. The parties' contract does not require Direct Energy to charge such rates. Without any information about valid market comparators, such as other alternative retail energy suppliers, Sevugan's breach of contract claim is speculative and implausible. Sevugan next claims Direct Energy breached the contract by using an unreasonable adder. The Judge finds that Sevugan has offered no new arguments for how the adder in the price is unreasonable. He admits he does not know how the adder charge is established, or how Direct Energy formulated its prices. Nor does Sevugan allege Direct Energy's adder was greater than that charged by other market participants. Sevugan has not plausibly alleged Direct Energy charged him unreasonably for this component of the price. Finally, Sevugan disputes the electricity prices Direct Energy set by invoking a different portion of the contract, the Terms Clause, paragraph 3. The Judge finds that even if the Terms Clause did control pricing, Sevugan again has failed to plausibly allege Direct Energy improperly set its variable rate for electricity. As described, the complaint contains no references to proper comparators, including alternative retail energy suppliers. Sevugan's contention that the variable rates he paid were not competitive because they were higher than ComEd's rates does not speak to Direct Energy's competitiveness in the broader market. Judge Brennan concludes that Sevugan's complaints failed to contain allegations from which it can be reasonably inferred Direct Energy breached the parties' contract. Because his claim is not facially plausible, the Judge affirmed the district court's dismissal of the case. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/80MYHs from Leagle.com. Richard J. Burke -- richard@Qulegal.com -- for Plaintiff-Appellant. Grant Y. Lee, for Plaintiff-Appellant. Zachary Allen Jacobs, for Plaintiff-Appellant. Michael D. Matthews, Jr. -- matt.matthews@mhllp.com -- for Defendant-Appellee. Diane S. Wizig -- diane.wizig@mhllp.com -- for Defendant-Appellee. Jonathan Shub -- jshub@kohnswift.com -- for Plaintiff-Appellant. Kevin Laukaitis -- klaukaitis@kohnswift.com -- for Plaintiff-Appellant. Joshua M. Feagans -- jfeagans@gwllplaw.com -- for Defendant-Appellee. DYNAMIC RECOVERY: Kim Files FDCPA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Dynamic Recovery Solutions, LLC. The case is styled as Suk Young Kim individually and on behalf of all others similarly situated, Plaintiff v. Dynamic Recovery Solutions, LLC, and CACH, LLC, Defendants, Case No. 1:19-cv-05093 (E.D. N.Y., Sept. 6, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Dynamic Recovery Solutions, LLC is a full-service collection agency based in South Carolina.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: dbarshay@barshaysanders.com csanders@barshaysanders.com EPIC GAMES: Faces Class Action Over Hacked Fortnite Accounts ------------------------------------------------------------ Daniel Cleary, writing for Dexerto, reports that Fortnite Battle Royale developers, Epic Games are facing a class-action lawsuit after player's accounts were hacked in January. On January 26, Epic Games revealed that a bug in Fortnite may have exposed players' personal information due to an issue with the game's log-in system. Months after the company received massive backlash for their error in security, they have now been hit with a class-action lawsuit involving the players who were affected by the gap in Epic Games' security measures, according to Polygon. With Epic Games' sizable portion of young players who regularly play Fortnite, many were concerned over the failure to prevent the data breaches and to detail users on what had occurred. The hacker's successful attempts to access the Epic Games accounts led to a security breach, which may have possibly exposed the data of millions of users' accounts and personal information. The class-action lawsuit was filed by Franklin D. Azar & Associates in U.S. District Court in North Carolina, and they claim that Epic's "failure to maintain adequate security measures and notify users of the security breach in a timely manner" was cause for the suit. The lawsuit also states that Epic Games failed to directly notify those who could have been affected by the breach, claiming, "Epic Games has not yet directly informed or notified individual Fortnite users that their personally identifiable information may be compromised as a result of the breach." Despite the fact that Epic Games quickly acknowledged and fixed the security issue, the lawsuit states that there are "more than 100 class members" who have decided to take action against the popular battle royale game's developers. The plaintiff, as well as other class members who are involved in the lawsuit, have expressed that they "have an ongoing interest in ensuring that their personally identifiable information is protected from past and future cyber security threats." [GN] EXPERIAN MARKETING: Bowes Seeks More Time to File Writ in Melito ---------------------------------------------------------------- Plaintiff Kara Bowes asks the Honorable Ruth Bader Ginsburg for an extension of time from September 3, 2019, to and including October 16, 2019, to file a petition for a writ of certiorari in the matter entitled Kara Bowes v. Christina Melito, et al., Case No. 19A214, in the Supreme Court of United States. Ms. Bowes seeks a review of the decision of the United States Court of Appeals for the Second Circuit in Christina Melito, individually and on behalf of all others similarly situated, Ryan Metzger, Alison Pierce, Gene Ellis, Walter Wood, Christopher Legg, on behalf of himself and all others similarly situated, Plaintiffs-Appellees; American Eagle Outfitters, Inc., a Delaware Corporation, AEO Management Co, a Delaware Corporation, Defendants-Third-Party-Plaintiffs-Appellees v. Experian Marketing Solutions, Inc., Consolidated Defendant-Third-Party-Defendant-Appellant; Kara Bowes, Objector-Appellant, eBay Enterprise, Inc., FKA eBay Enterprise Marketing Solutions, Inc., Defendant, Case Nos. 17-3277-cv (L), 17-3279 (Con) (2d Cir. April 30, 2019). The case is a consumer class action seeking statutory damages under the Telephone Consumer Protection Act (TCPA) that was settled in the District Court, which approved the payment of special "service awards" or "incentive awards" to the class representatives. Ms. Bowes is a class member bound by the settlement of the matter, who appeared through counsel as an objector challenging the class-action settlement's fairness and the payment of service awards before the Southern District of New York, and who then timely appealed to the United States Court of Appeals for the Second Circuit. The Second Circuit entered its decision in this matter on April 30, 2019, affirming the District Court's approval of the class-action settlement and payment of service awards to the lead plaintiffs. As previously reported in the Class Action Reporter, Judge Peter W. Hall of the Second Circuit affirmed the judgment of the District Court approving the settlement and certifying the settlement class. On May 14, 2019, Ms. Bowes filed a timely petition for rehearing, which the Second Circuit denied on June 3, 2019. She contends that her application should be granted because her counsel is a solo practitioner and his responsibilities for several other pending matters have made it impossible for him to complete a petition for a writ of certiorari to be filed in this matter by September 3, 2019.[BN] Petitioner Kara Bowes is represented by: Eric Alan Isaacson, Esq. LAW OFFICE OF ERIC ALAN ISAACSON 6580 Avenida Mirola La Jolla, CA 92037-6231 Telephone: (858) 263-9581 E-mail: ericalanisaacson@icloud.com FACEBOOK INC: Must Face Biometric Data Privacy Class Action ----------------------------------------------------------- Jonathan Stempel, writing for Insurance Journal, reports that a federal appeals court on Aug. 8 rejected Facebook Inc.'s effort to undo a class action lawsuit claiming that it illegally collected and stored biometric data for millions of users without their consent. The 3-0 decision from the 9th U.S. Circuit Court of Appeals in San Francisco over Facebook's facial recognition technology exposes the company to billions of dollars in potential damages to the Illinois users who brought the case. It came as the social media company faces broad criticism from lawmakers and regulators over its privacy practices. In July, Facebook agreed to pay a record $5 billion fine to settle a Federal Trade Commission data privacy probe. "This biometric data is so sensitive that if it is compromised, there is simply no recourse," Shawn Williams, a lawyer for plaintiffs in the class action, said in an interview. "It's not like a Social Security card or credit card number where you can change the number. You can't change your face." Facebook said it plans to appeal. "We have always disclosed our use of face recognition technology and that people can turn it on or off at any time," a spokesman said in an email. Google, a unit of Alphabet Inc., won the dismissal of a similar lawsuit in Chicago last December. The lawsuit began in 2015, when Illinois users accused Facebook of violating that state's Biometric Information Privacy Act in collecting biometric data. Facebook allegedly accomplished this through its "Tag Suggestions" feature, which allowed users to recognize their Facebook friends from previously uploaded photos. Writing for the appeals court, Circuit Judge Sandra Ikuta said the Illinois users could sue as a group, rejecting Facebook's argument that their claims were unique and required individual lawsuits. She also said the 2008 Illinois law was intended to protect individuals' "concrete interests in privacy," and Facebook's alleged unauthorized use of a face template "invades an individual's private affairs and concrete interests." The court returned the case to U.S. District Judge James Donato in San Francisco, who had certified a class action in April 2018, for a possible trial. Illinois' biometric privacy law provides for damages of $1,000 for each negligent violation and $5,000 for each intentional or reckless violation. Williams, a partner at Robbins Geller Rudman & Dowd, said the class could include 7 million Facebook users. The FTC probe arose from the discovery that Facebook had let British consulting firm Cambridge Analytica harvest users' personal information. Facebook's $5 billion payout still requires U.S. Department of Justice approval. The case is Patel et al v Facebook Inc, 9th U.S. Circuit Court of Appeals, No. 18-15982. [GN] FAIRWAY INDEPENDENT: Valdez Labor Suit Remanded to State Court -------------------------------------------------------------- Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California granted the Plaintiff's motion to remand the case, SUSANA VALDEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. FAIRWAY INDEPENDENT MORTGAGE CORPORATION, Defendant, Case No. 18-cv-2748-CAB-KSC (S.D. Cal.), to San Diego County Superior Court. Valdez is a former employee of Defendant Fairway Independent Mortgage. On Oct. 23, 2018, the Plaintiff filed a complaint in San Diego County Superior Court asserting claims on behalf of herself and putative classes of all non-exempt current and former employees of the Defendant. The complaint asserts six claims under California's labor and unfair competition laws and is silent as to the amount of damages. On Dec. 6, 2018, the Defendant removed the case to the Court. In the notice of removal, it asserts that all of the requirements for subject matter jurisdiction under the Class Action Fairness Act ("CAFA") are met insofar as minimum diversity exists and the amount in controversy exceeds $5 million. The notice includes calculations for the amount in controversy for each of the Plaintiff's claims and the underlying assumptions for those calculations. The notice of removal alleged the amount in controversy is $5,873,923.71. On June 14, 2019, the Plaintiff moved to remand the case to state court. She primarily avers that the Defendant inflated the underlying numbers, used numbers without evidentiary support, assumed improper violation rates, and allocated fees to claims for which fees are not recoverable. The Defendant filed its opposition, and the Plaintiff filed a reply. As Plaintiff notes, also assuming arbitrarily, even a 50% violation rate with the Defendant's calculations would result in $125,882.71 in controversy for the overtime claim. The allegation that the Plaintiff and the putative class were not paid for "all" overtime is not the same as an allegation that she and the putative class were not paid for "any" overtime, which is what the Defendant assumes in its calculation instead of using its records to determine when overtime compensation was paid and adjusting accordingly. The Defendant thereby used its calculations as if there was a 100% violation rate. The Plaintiff's allegations support the inference that she and members of the putative class received some, but not all, of overtime owed. As such, application of a 100% violation rate is unwarranted and speculative. Accordingly, Judge Bencivengo finds that the Defendant has not satisfied its burden to demonstrate, by a preponderance of the evidence, that the amount in controversy for the overtime claim is $251,765.42. The Judge agrees with the Plaintiff's assertion that "regular rate of compensation" is not equivalent to "regular rate of pay" and likewise finds the legislature's distinction of the two terms significant. Moreover, similar to the analysis for the overtime claim, the Defendant again arbitrarily assumed a violation rate of one missed meal break and one missed rest break per week, effectively a 20% violation rate, that is not grounded in any real evidence. Accordingly, the Judge finds that the Defendant has not satisfied its burden to demonstrate, by a preponderance of the evidence, that the amount in controversy for the meal period and rest break violation claims is $2,291,787.44. Finally, as the Plaintiff notes, the Defendant attempts to multiply its calculations for all of the Plaintiff's claims by 25% to determine attorney's fees while courts have held that fees are not recoverable for claims of meal period, rest break, and waiting time violations. The Judge need not reach this issue because even if she applied the Defendant's use of the 25% benchmark to all of the Plaintiff's claims the Defendant has failed to satisfy its burden to prove by a preponderance of evidence that the amount placed in controversy on the complaint excluding attorney's fees is $4 million. For the foregoing reasons, Judge Bencivengo granted the Plaintiff's motion to remand, and denied as moot the Plaintiff's evidentiary objections. She remanded case to the Superior Court of the State of California for the County of San Diego. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/ddlF0G from Leagle.com. Susana Valdez, individually and on behalf of all others similarly situated, Plaintiff, represented by Ali Sarah Carlsen -- acarlsen@aegislawfirm.com -- Aegis Law Firm, PC, Jessica Lynn Campbell, Aegis Law Firm, Kashif Haque, Aegis Law Firm & Suren Naradha Weerasuriya, Kushner Carlson, PC. Fairway Independent Mortgage Corporation, a Texas corporation, Defendant, represented by Christopher W. Decker -- christopher.decker@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart PC & Mazen Khatib -- mazen.khatib@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, P.C.. FIRST NATIONAL: Rios Files FDCPA Suit in C.D. California -------------------------------------------------------- A class action lawsuit has been filed against First National Collection Bureau, Inc. The case is styled as Christopher Rios, individually and on behalf of all others similarly situated, Plaintiff v. First National Collection Bureau, Inc., Cach, LLC, Defendants, Case No. 2:19-cv-07751 (C.D. Cal., Sept. 6, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. First National Collection Bureau, Inc. is an agency that collects debt on behalf of a variety of creditor clients.[BN] The Plaintiff is represented by: Jonathan Aaron Stieglitz, Esq. Jonathan Stieglitz Law Offices 11845 West Olympic Boulevard, Suite 800 Los Angeles, CA 90064 Phone: (323) 979-2063 Fax: (323) 488-6748 Email: jonathan.a.stieglitz@gmail.com FORD MOTOR: 3d Cir. Affirms Summary Judgment in Coba Class Suit --------------------------------------------------------------- In the case, GALO COBA; COBA LANDSCAPING AND CONSTRUCTION, INC., individually, and on behalf of other members of the general public similarly situated, Appellants, v. FORD MOTOR COMPANY, Case No. 17-2933 (3d Cir.), Judge Cheryl Ann Krause of the U.S. Court of Appeals for the Third Circuit affirmed the District Court's entry of summary judgment in favor of Ford on all of Coba's claims. Beginning in 2001 and continuing over the decade that followed, Ford received waves of complaints from customers who purchased certain F-Series and E-Series vehicles reporting similar types of malfunction related to their vehicles' fuel tanks. In 2001, when Ford first received reports that some of its vehicles were exhibiting fuel-tank delamination problems, the complaints came exclusively from customers in Brazil. Over the next few years, cases of delamination cropped up in the United States, though they were largely clustered in certain regions. Although Ford could not confirm that biodiesel was the culprit -- and Ford's engineers sometimes questioned the biodiesel hypothesis in light of inconclusive testing -- Ford's leads were compelling enough that it started working with Magni in 2005 to develop a more biodiesel-resistant coating. And by February 2007, Ford released an improved coating, called "A35," to replace the prior "A36" coating in F-Series Super Duty trucks. Around the same time, Ford sent a message to dealers notifying them about the release of the new tank coating and explaining that fuel tanks in certain Ford trucks had delaminated, which Ford attributed to "the use of fuels containing concentrations of bio-diesel greater than recommended by Ford (5%)." Ford's warranty claims did drop after the release of the A35 coating, but some reports of delamination persisted. Having not fully solved the problem, Ford continued its investigation. And by 2010, Ford's Materials Engineering department came to believe that biodiesel was not the root cause after all; instead, acetic and formic acids were more likely the cause all along. Coba, the Plaintiff in the case, is one of the Ford-vehicle customers whose fuel tanks delaminated. He purchased two Ford 2006 F-350 Super Duty 6.0L diesel dump trucks for his landscaping business, Coba Landscaping and Construction, Inc. He bought the first in October of 2006 and the second in March of 2007. By March of 2009, both trucks began exhibiting signs of tank delamination. According to Coba, the engines would misfire, the trucks lacked power when driven up hills, the fuel filters were contaminated with fuel-tank debris, and the fuel systems rusted. He brought the trucks into a Ford dealership, which replaced the fuel tanks and fuel filters in both trucks at no cost to Coba. Despite the repairs, Coba had the same problems over and over again, needing additional replacements each time. Altogether, Coba replaced the fuel tank twice in his older truck and three times in his newer truck. Because several of the replacements occurred after the trucks' warranties had expired, Coba spent several thousand dollars on the fixes. Coba filed the class-action lawsuit against Ford Motor Co. in March of 2012. As amended, the operative complaint asserts claims for breach of express warranty, violation of the New Jersey Consumer Fraud Act ("NJCFA"), and breach of the duty of good faith and fair dealing. Although Ford had replaced several of Coba's fuel tanks under warranty, Coba alleges that Ford breached its written warranty -- the New Vehicle Limited Warranty ("NVLW") -- by failing to adequately repair and replace his tanks, as the replacements turned out to have the same defects as his original tanks. The thrust of the implied-covenant-of-good-faith-and-fair-dealing claim is that when Ford repaired Coba's vehicles, it knew that the repairs would not solve Coba's delamination problems. Finally, Coba's NJCFA claim rests on allegations that Ford purposefully failed to disclose to Coba and other customers the defect in its fuel tanks. The District Court entered summary judgment in Ford's favor on all of Coba's claims. The appeal followed. On appeal, Coba challenges the District Court's grant of summary judgment on his claims for breach of express warranty, breach of the implied covenant of good faith and fair dealing, and violation of the NJCFA. Judge Krause concludes that, under New Jersey law, a warranty that limits its coverage to defects in "materials" and "workmanship" does not, without more, apply to defects in "design." While parties are free to redefine words in their contracts in ways that deviate from plain and ordinary meaning, they did not do so in the case. "Materials" and "workmanship" in the NVLW carry their plain meaning, and the warranty therefore does not extend to design defects. Having concluded that the NVLW does not cover design defects, the Judge must determine whether the fuel-tank-delamination problem, as alleged, reflected a defect in design. She agrees with the District Court that it does, so the court properly entered summary judgment on Coba's breach-of-warranty claim. Because Coba did not have any right to repair or replacement of his fuel tanks under the NVLW, he also could not prevail on his claim for breach of the implied covenant of good faith and fair dealing. New Jersey recognizes an implied covenant of good faith and fair dealing in every contract, but to state a claim that it was breached, a plaintiff must have the right to receive the fruits of the contract and must show that the Defendant had "improper motive" when interfering with that right. Coba alleges that Ford breached the covenant of good faith and fair dealing implied in the NVLW by repairing and replacing his tanks, while knowing that those repairs and replacements would not fix or remedy the fuel tank defect. But even assuming Ford possessed an improper motive -- a questionable notion given the evolving nature of Ford's knowledge of a design defect -- the NVLW did not cover design defects, so tank repair and replacement were not "fruits of the NVLW" that Coba had a right to receive. Because there is no genuine dispute of material fact as to Ford's knowledge of a design defect, its failure to disclose that alleged defect does not give rise to liability under the NJCFA. Viewing the evidence in the light most favorable to Coba, it shows that some Ford engineers had doubts whether biodiesel was the problem and they were continuing to investigate. It does not support the inference, as Coba contends, that Ford knew the problem was a design defect and that biodiesel was a "pretext." Nor is that inference supported either by the correspondence to which Coba points concerning the mere prevalence of the delamination problem or by other correspondence that post-dates his truck purchases and thus has no bearing on Ford's earlier knowledge. Finally, Coba's second NJCFA theory, predicated on non-disclosure of the risk of delamination, also does not survive summary judgment. In any event, the relevant question is not the actual rate of delamination viewed in hindsight, but what Ford knew and therefore could have disclosed to customers about that rate. And the warranty data -- reflecting delamination-based replacements at a rate of even less than 1% -- was the information Ford had at the time. As to that small percentage, based on the undisputed evidence that Ford then believed biodiesel to be the culprit and the recommendation in its owner's manual against using those fuels, Ford had every reason to believe that risk was mitigated—as would any reasonable customer in possession of that same information. The Judge therefore agrees with the District Court that no reasonable factfinder could conclude that this information would be material to a reasonable consumer prospectively deciding, in March 2007, whether to purchase a Ford 6.0L diesel truck. Accordingly, Coba's second NJCFA theory, predicated on non-disclosure of the risk of delamination, also does not survive summary judgment. For the foregoing reasons, Judge Krause affirmed the judgment of the District Court. A full-text copy of the Court's July 26, 2019 Opinion is available at https://is.gd/A7XEzy from Leagle.com. John E. Stobart -- john.stobart@capstonelawyers.com -- Ryan Wu, I -- Ryan.Wu@CapstoneLawyers.com -- Capstone Law, 1875 Century Park East, Suite 1000, Los Angeles, CA 90067, Counsel for Appellant. Robert M. Palumbos -- RMPalumbos@duanemorris.com -- Andrew R. Sperl -- ARSperl@duanemorris.com -- Duane Morris, 30 South 17th Street, United Plaza, Philadelphia, PA 19103, John M. Thomas, Dykema, 2723 South State Street, Suite 400, Ann Arbor, MI 48104, Karol C. Walker , LeClairRyan, 1037 Raymond Boulevard, One Riverfront Plaza, 16th Floor, Newark, NJ 07102, Counsel for Appellee. FULTONDALE ON TAP: Hasty Seeks Proper Wages Under FLSA ------------------------------------------------------ DAISY HASTY, individually and on behalf of all others similarly situated Plaintiffs, v. FULTONDALE ON TAP, INC.; ON TAP SUMMIT, LLC; ELAINE BEEGLE; AND TODD BEEGLE, Defendant, Case No. 2:19-cv-01456-SGC (N.D. Ala., Sept. 3, 2019) asserts claims for unpaid overtime and minimum wages pursuant to the collective action provisions of the Fair Labor Standards Act against Defendants. Plaintiff asserts these claims due to Defendants' actions of: (1) taking a "tip credit" and paying them less than $7.25 per hour, but splitting a portion of their tips with Defendants' management staff, and (2) failing to pay hourly employees at a rate of pay equal to at least one-half times their regular rate of pay for all hours they worked in excess for 40 per week. In so doing, Defendants acted in a coordinated and calculated scheme and, with a common practice and purpose, deliberately and willfully violated Plaintiff's and the putative FLSA Collective Classes' rights under the FLSA, says the complaint. Plaintiff further asserts an individual claim for unpaid overtime due to Defendants' willful and intentional failure to issue her any pay at all during all or some of the period from February 2019 to June 2019. Plaintiff was a resident of the State of Alabama and worked for Defendants as a bartender and waitress from February 2017 to July 2019. Fultondale On Tap, Inc., an Alabama corporation, operates a restaurant and pub.[BN] The Plaintiff is represented by: Jody Forester Jackson, Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Phone: (504) 599-5953 Fax: (888) 988-6499 Email: jjackson@jackson-law.net GOLDSMITH & HULL: Tavares Suit Asserts FDCPA Breach --------------------------------------------------- Justine Tavares, on behalf of herself and similarly situated class members, Plaintiff, v. Goldsmith & Hull A.P.C.; Central Veterinary Associates, P.C., Defendants, Case No. 3:19-cv-01630-MMA-LL (S.D. Cal., Aug. 29, 2019) is an action seeking to challenge the actions of Defendants with regard to attempts by Defendants to unlawfully and abusively collect a debt allegedly owed by Plaintiff in violation of the Fair Debt Collection Practices Act. Sometime around 2016, Plaintiff is alleged to have incurred certain financial obligations to Central Vet. Sometime thereafter, Plaintiff fell behind in the payments owed on the alleged debt. Subsequently, the alleged debt was assigned, placed, or otherwise transferred to G&H for collection. On December 7, 2018, G&H mailed a letter to Plaintiff demanding payment of the alleged debt. In this December 7, 2018 letter, which was the initial communication to Plaintiff, Defendants failed to provide notice of the debt. The Defendants are required to provide Plaintiff with proper notice of the alleged debt by which she can respond to either confirming or disputing the alleged debt within the time provided, notes the complaint. In this December 7, 2018 letter G&H demanded payment for certain amounts. On February 20, 2019, G&H sent another letter to Plaintiff demanding payment of certain amounts. The demands are expressly enumerated by the United States Congress and the California state legislature as being material violations of the FDCPA and California Rosenthal Act, respectively, as they are the use of a false, deceptive, or misleading representations or means in connection with the collection of any debt because they are the false representation of the character, amount, or legal status of a debt in violation of the FDCPA and in violation of California Rosenthal Act, says the complaint. Plaintiff is a natural person who resides in the City of San Diego, State of California. Defendant G&H is a California corporation.[BN] The Plaintiff is represented by: Yana A. Hart, Esq. KAZEROUNI LAW GROUP, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Phone: (619) 233-7770 Facsimile: (619) 297-1022 Email: yana@kazlg.com - and - Abbas Kazerounian, Esq. Jason A. Ibey, Esq. Nicholas R. Barthel, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Phone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ak@kazlg.com jason@kazlg.com nicholas@kazlg.com GREAT AMERICAN POWER: Lechuga Files Class Suit in N.D. Illinois --------------------------------------------------------------- A class action lawsuit has been filed against Great American Power, LLC. The case is styled as Michelle Lechuga individually, and on behalf of all others similarly situated, Plaintiff v. Great American Power, LLC, Defendant, Case No. 1:19-cv-05989 (N.D. Ill., Sept. 6, 2019). The nature of suit is stated as Consumer Credit. Great American Power is an energy supply company.[BN] The Plaintiff is represented by: Mohammed Omar Badwan, Esq. Joseph Scott Davidson, Esq. Sulaiman Law Group, Ltd. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Phone: (630) 575-8181 Email: mbadwan@sulaimanlaw.com jdavidson@sulaimanlaw.com GTT COMMUNICATIONS: Pomerantz LLP Investigates Securities Claims ---------------------------------------------------------------- Pomerantz LLP is investigating claims on behalf of investors of GTT Communications, Inc. ("GTT" or the "Company") (NYSE: GTT). Such investors are advised to contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529, ext. 9980. The investigation concerns whether GTT and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices. In February 2018, GTT announced that it was purchasing Interoute Communications Holdings S.A. ("Interoute") in a transformative acquisition for EUR1.9 billion ($2.3 billion) in cash. On May 8, 2019, GTT disclosed a larger-than-expected loss for the first quarter of 2019, including a sequential decline in revenues. GTT blamed its poor performance on a host of issues with the Interoute integration, including migrating legacy systems into GTT's management database, discrepancies with Interoute's billing systems, and a poor salesforce. In addition, GTT disclosed that shortly before the acquisition, Interoute had made a strategic shift to sell cloud services that deviated from GTT's strategy of focusing exclusively on cloud networking. On this news, GTT's stock price fell $7.04 per share, or 17.5%, to close at $33.25 per share on May 8, 2019. GTT's stock price continued to fall the following day, closing at $29.91 per share, for a two-day decline of over 25%. On May 30, 2019, GTT made a presentation at the Cowen TMT Conference 2019, in which the Company disclosed that the Interoute integration was "challenging … as we moved thousands of Interoute employees off of the Interoute systems and off of how they sold, installed, billed and moved everything into GTT systems there [were] some delays as we both went to render a new bill to the customers who are going to be getting a GTT bill instead of an Interoute bill." On this news, GTT's stock price fell $1.22 per share, or 4.9%, to close at $23.78 per share on May 31, 2019. On June 24, 2019, analysts at Craig-Hallum reduced their price target on GTT because "the company is in the midst of altering its DNA, which had been largely built of growth via acquisitions, a process that has been challenged by debt levels and recent integration issues." Craig-Hallum noted that instead of continuing its roll-up strategy, GTT is now trying to "rebuild its organic growth platform" by hiring a new salesforce. On this news, GTT's stock price fell $2.87 per share, or 12.6%, to close at $19.97 per share on June 24, 2019. Finally, on July 2, 2019, KeyBanc downgraded GTT and highlighted how internal data on GTT suggested hiring activity remained slow, indicating the increase in employee representatives necessary to achieve revenue targets might be lower than expected. KeyBanc also reported on recent leadership changes in the Americas division, noting that they were "an indication that organizational health is not great." On this news, GTT's stock price fell $0.50 per share, or 2.7%, to close at $18.30 per share on July 2, 2019. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] GUTTERBRUSH LLC: Nathen Day Asserts Breach of TCPA -------------------------------------------------- NATHEN DAY, individually and on behalf of all others similarly situated Plaintiff, v. GUTTERBRUSH LLC, a Rhode Island limited liability company, Defendant, Case No. 8:19-cv-00385 (D. Neb. Sept. 3, 2019) seeks to stop Defendant's illegal practice of making, and permitting to be made on their behalf, unauthorized telephone calls using an automatic dialing system to the cellular telephones of consumers nationwide, and to obtain redress for all persons injured by their conduct. In the course of selling its product, Gutterbrush placed thousands of calls using an artificial or prerecorded voice. The Defendant did not obtain consent prior to placing these calls and, therefore, is in violation of the Telephone Consumer Protection Act, notes the complaint. By placing the calls at issue, Defendant has violated the privacy and statutory rights of Plaintiff and the Class. Plaintiff, therefore, seeks an injunction requiring Defendant to stop its unconsented calling, as well as an award of actual and statutory fines to the Class members, together with costs and reasonable attorneys' fees. Plaintiff NATHAN DAY is a natural person and is a citizen of the District of Nebraska. Gutterbrush LLC sells a product called "Gutter Brush" that cleans household gutter systems.[BN] The Plaintiff is represented by: Mark L. Javitch, Esq. Javitch Law Office 480 S. Ellsworth Ave San Mateo, CA 94401 Phone: 650-781-8000 Facsimile: 650-648-0705 Email: mark@javitchlawoffice.com HEARTLAND PAYMENT: Court Dismisses Count II in Soranno Suit ----------------------------------------------------------- In the case, JOSEPH SORANNO, individually and on behalf of all others similarly situated Plaintiffs, v. HEARTLAND PAYMENT SYSTEMS, LLC, successor in interest to HEARTLAND PAYMENT SYSTEMS, INC., Defendant, Civil Action No. 3:18-cv-16218-FLW-LHG (D. N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey granted Heartland's motion to dismiss Count Two (breach of the implied covenant of good faith and fair dealing). Heartland is in the business of providing processing services to merchants for payment card transactions. It hired Soranno in January 2007 as a Relationship Manager, a commission-only sales position. Soranno sold Heartland's processing services for American Express ("Amex") card payment transactions to merchants, and for doing so, earned recurring monthly commissions. All commission-based positions at Heartland are eligible to attain "Vested" status, which permits employees to continue earning commissions even after their employment with Heartland ends. In February or March of 2008, Soranno allegedly achieved Vested status, and he executed Heartland's Vested Relationship Manager Agreement. According to Soranno, in April 2008, he took a new position as a Territory Manager, which required him to execute Heartland's Territory Manager Agreement. Both executed agreements ("VA") are interchangeable. Soranno alleges that the VA entitled him to receive commissions for his merchants' transactions processed through Heartland after his employment at Heartland ended. However, the VA also provided that Sorannos's commissions would be paid consistent with Heartland's Sales Policy Manual and that the manual could be amended periodically. Soranno voluntarily resigned from his position with Heartland in December 2012, and he continued to receive his commissions under the VA in accordance with the Sales Policy Manual. In 2014, Soranno avers that Amex changed its pricing for card transactions and Heartland converted merchants to the new pricing. In 2015, Heartland allegedly revised its Sale Policy Manual to reflect a new commission structure for Amex processing services under the new pricing. As a result, Soranno acknowledges that he experienced an increase in the value of his commissions for December 2014 and January 2015, which Soranno maintained was an indication that Heartland was receiving more revenue from merchants under the new pricing. During the price conversion, Soranno was subject to a restrictive covenant in the VA prohibiting Soranno from soliciting any of Heartland's merchants. Then, in February 2015, Soranno alleges that Heartland ceased commission payments to him and class members, without warning, notice, or explanation, in violation of the VA. However, Soranno alleges that Heartland continued to pay commissions to its then-active sales employees who were subject to the same sales policies. Soranno asserts that, in bad faith and with improper motive, Heartland failed to give warning or notice to Soranno that Heartland would discontinue commissions. Heartland, according to the Complaint, did not communicate the Amex price change and amendments made to the sales policies, and concealed the reasons for terminating the commissions. Moreover, Soranno claims that Heartland demonstrated improper motive through its disparate treatment of former and active employees because it continued to pay commissions on identically price-converted merchant accounts to its active sales employees, who were governed by the same Sales Policy Manual. Soranno also alleges that Heartland stopped paying the commissions because it was facing competition from other payment processing companies, and that Heartland's founder and former CEO, Robert O. Carr, labeled the new pricing program as a new product altogether in order to render subsequent transactions ineligible for commission payments post-employment. In addition, he claims that Heartland's executive managers, who were also shareholders, were attempting to sell or merge Heartland, and therefore, had a financial incentive to reduce commissions to make Heartland a better candidate for a merger or acquisition. On Oct. 15, 2018, Soranno brought the putative class action against Heartland for breach of contract (Count One), breach of the implied covenant of good faith and fair dealing (Count Two), and unjust enrichment (Count Three). Heartland moves to dismiss Count Two under Rule 12(b)(6). The Complaint alleges that Heartland strategically and purposefully ceased paying commissions in order to become more financially attractive as a potential subject of a merger or acquisition, and that in doing so, Heartland concealed its reasons, thereby improperly depriving Soranno the benefits of the VA. Heartland requests dismissal of Soranno's claim on the basis that it is premised on the same conduct underlying Soranno's breach of contract claim. Heartland also argues that Soranno fails to specifically allege the improper motive on the part of Heartland, other than the fact that the alleged breach benefited Heartland. Because Soranno does not sufficiently allege that Heartland breached the VA with ill-motive to injure Soranno, Soranno has failed to state a claim for a breach of the implied covenant of good faith and fair dealing. Judge Wolfson finds that Soranno only alleges that Heartland failed to perform its duties under the contract and his factual allegations, even if true, present only economic motive on the part of Heartland. Soranno alleges that Heartland impaired Soranno's contractual right to commissions because Heartland and its executive managers -- who were also shareholders -- sought to position Heartland as a more attractive target for a potential merger or acquisition. Soranno alleges that Heartland stopped paying commissions without notice after Amex's pricing structure changed. His allegations in this regard are insufficient, however, because they merely show that Heartland made financially-motived decisions, which benefited Heartland but to Soranno's detriment. Furthermore, Soranno additionally alleges that Heartland continued to pay the same commissions to active employees and that Heartland's former CEO purposefully labeled Vested former employee merchant accounts as new accounts after the price change, rendering the accounts ineligible for commissions. These allegations, however, only show that Heartland breached the VA, and deprived Soranno the anticipated benefit of the VA, which is also insufficient to establish a breach the covenant of good faith and fair dealing. That is, Soranno does not allege that Heartland harbored ill-motive toward Soranno in terminating his commissions, separate from Heartland's alleged financial incentives to breach the VA. Moreover, the Judge holds that Soranno's allegation that Heartland concealed its reasons for ending commissions similarly amounts only to a breach of contract; Soranno does not allege that Heartland aimed to harm Soranno beyond the fruits of the contract. Therefore, Heartland may have allegedly deprived Soranno of his commissions, but there are no allegations that it took any actions, or had any intentions, to harm Soranno beyond his contractual right to commissions. Thus, Soranno's allegations have failed to establish bad faith, a requirement to properly plead a breach of the implied covenant of good faith and fair dealing. For the foregoing reasons, Judge Wolfson granted Heartland's motion to dismiss, and dismissed the Plaintiff's Count II for breach of the implied covenant of good faith and fair dealing. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/tBhorD from Leagle.com. JOSEPH SORANNO, individually and on behalf of all others similarly situated, Plaintiff, represented by PAUL A. DIGIORGIO -- pdigiorgio@keefe-lawfirm.com -- KEEFE LAW FIRM. HEARTLAND PAYMENT SYSTEMS, LLC, successor in interest to HEARTLAND PAYMENT SYSTEMS, INC., Defendant, represented by RICHARD J. WILLIAMS, JR. -- rwilliams@mdmc-law.com -- MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP & MICHAEL DAVID CELENTANO -- MCELENTANO@MDMC-LAW.COM -- MCELROY DEUTSCH MULVANEY & CARPENTER LLP. HOME DEPOT: Camp Suit Remanded to Santa Clara County Superior Court ------------------------------------------------------------------- In the case, DELMER CAMP, et al., Plaintiffs, v. HOME DEPOT U.S.A. INC., Defendant, Case No. 19-cv-02240-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California (i) granted the Plaintiffs' motion to remand to the Superior Court of California, Santa Clara, and (ii) denied their request for an award of attorneys' fees. Plaintiffs Camp and Adriana Correa filed the putative class action in the Superior Court of California, Santa Clara. The operative complaint asserts state law claims against Home Depot. Home Depot removed the action to the Northern District of California pursuant to the Class Action Fairness Act ("CAFA"), contending that the amount in controversy can be reasonably estimated to exceed the $5 million threshold for jurisdiction under CAFA. The parties' sole dispute is whether CAFA's $5 million amount in controversy requirement is met. In its Notice of Removal, Home Depot contended the amount in controversy is over $8.5 million. In its Opposition, the company increased the estimated amount in controversy to $10.2 million. This estimate is based on the fact that 122,070 employees had one or more pay periods where the total recorded clock hours for that pay period was greater than total rounded hours. The Plaintiffs, for their part, argue the amount in controversy is below $5 million and accuse Home Depot of improperly redefining the scope of the proposed class in order to satisfy the amount in controversy requirement. The Complaint defines the class as all persons current or formerly employed by Defendant HOME DEPOT U.S.A., Inc., in hourly-paid positions within the State of California at any time on or after the date four years prior to the filing of the initial Complaint in this matter and whose aggregate work time for purposes of calculating payroll was lower after application of time rounding by Defendant HOME DEPOT U.S.A., Inc.'s timekeeping systems than the aggregate work time captured by the timekeeping system before applying rounding to daily total time worked. The Plaintiffs estimate this class amounts to over 60,000 Associates employed by Home Depot who have been paid for less time than was captured by the timekeeping system. Judge Seeborg finds that Home Depot cites no authority for the proposition that a defendant may redefine a plaintiff's class based on its impressions of the merits of the class claims. Home Depot's estimates of the amount in controversy were not based on the correct class and therefore cannot satisfy the amount in controversy requirement. Accordingly, the motion to remand is granted. The Plaintiffs seek an award of attorneys' fees incurred as a result of removal. Attorneys' fees are available under 28 U.S.C. Section 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Home Depot had an objectively reasonable basis for seeking removal. Accordingly, the Judge denied the Plaintiffs' motion for attorneys' fees. For the reasons set forth , Judge Seeborg remanded the action to the Superior Court of California, Santa Clara. Attorneys' fees will not be awarded. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/hY9IGr from Leagle.com. Delmer Camp & Adriana Correa, Plaintiffs, represented by Allen Victor Feghali -- allen.feghali@moonyanglaw.com -- Moon and Yang, APC, Howard Scott Leviant -- scott.leviant@moonyanglaw.com -- Moon & Yang, APC, Kane Moon -- kane.moon@moonyanglaw.com -- Moon and Yang, APC & Lilit Ter-Astvatsatryan, Moon & Yang, APC. Home Depot U.S.A. Inc., a Delaware corporation, Defendant, represented by Liz Kathryn Bertko -- lbertko@akingump.com -- Akin Gump Strauss Hauer and Feld LLP, Dorothy Frances Kaslow, Akin Gump Strauss Hauer & Feld LLP & Donna Marie Mezias -- dmezias@akingump.com -- Akin Gump Strauss Hauer & Feld LLP. HYUNDAI MOTOR: Hauser Sues over Defective Airbag Control Unit ------------------------------------------------------------- A class action lawsuit has been filed against nine automotive manufacturers and a tier-one parts supplier alleging that they concealed a deadly airbag defect in 12.3 million U.S. cars. On the heels of the Takata recall, and the $1.5 billion in class action settlements that accompanied it, the manufacturers -- Acura, Honda, Toyota, FCA, Mitsubishi, Kia and Hyundai -- have known of this new airbag defect for years, and have yet refused to issue a recall to fix it. At issue is the vehicles' airbag control unit ("ACU") manufactured by supplier ZF-TRW that becomes over-stressed by excess electrical energy generated during a crash. The "electrical over-stress" forces the ACU to seize-up at the moment of impact, causing the airbags to not deploy and the seatbelt locks to fail. After numerous reports of deaths and serious injuries, in 2018 the National Highway Safety Traffic Administration ("NHTSA") launched an investigation into the matter, only to find out that ZF-TRW had been having in-depth discussions with manufacturers about the defective ACU since at least 2011. Under the Federal Motor Vehicle Safety Standards, manufacturers are required to issue a full vehicle recall within five days of learning of a defect. In April 2019, NHTSA elevated the investigation to an Engineering Analysis and expanded the scope of the investigation to include other manufacturers who had installed the ZF-TRW made ACU in their production vehicles. At its early investigation stages, NHTSA has confirmed that the defective ACU has been linked to at least four deaths; however, NHTSA complaint logs confirm that many more fatalities have been reported to NHTSA that are still under investigation. The complaint brings claims against each of the seven automotive manufacturers and the tier-one parts supplier for violations of the Magnuson Moss Act, violations of California consumer protection statutes and violations of common law claims of fraud and unjust enrichment, the lawsuit says. The case is captioned as William Hauser, individually and on behalf of those similarly situated, the Plaintiff, vs. ZF FRIEDRICHSHAFEN AG, ZF-TRW AUTOMOTIVE HOLDINGS CORP., TRW AUTOMOTIVE INC., TRW AUTOMOTIVE U.S. LLC, TRW VEHICLE SAFETY SYSTEMS INC., HYUNDAI MOTOR GROUP, HYUNDAI MOTOR CO., HYUNDAI MOBIS CO. LTD., HYUNDAI MOTOR AMERICA, INC., the Defendants, Case No. 2:19-cv-07292-JAK-FFM (N.D. Ala., July 26, 2019). The Defendants are manufacturer and distributor of motor vehicles.[BN] Attorneys for the Plaintiffs are: F. Jerome Tapley, Esq. Douglas A. Delaccio, Esq. Hirlye R. "Ryan" Lutz, III, Esq. Adam W. Pittman, Esq. Lauren S. Miller, Esq. CORY WATSON P.C. 2131 Magnolia Ave. S. Birmingham, AL 35205 Telephone: (205) 328-2200 Facsimile: (205) 324-7896 E-Mail: jtapley@corywatson.com ddellacio@corywatson.com rlutz@corywatson.com apittman@corywatson.com lmiller@corywatson.com - and - Chris T. Hellums, Esq Jonathan S. Mann, Esq PITTMAN, DUTTON & HELLUMS, P.C. 2001 Park Place North, Suite 1100 Birmingham, AL 35203 Telephone: (205) 322-8880 Facsimile: (205) 328-2711 E-Mail: chrish@pittmandutton.com jonm@pittmandutton.com INTEPLAST GROUP: Robinson Seeks Unpaid Overtime Wages, Damages -------------------------------------------------------------- JOSEPHINE ROBINSON, Individually, and on behalf of herself and others similarly situated, Plaintiff, v. INTEPLAST GROUP CORPORATION, a Texas Corporation, MEDIRA INC., a Delaware Corporation, and MEDEGEN MEDICAL PRODUCTS, LLC a Delaware Limited Liability Company, Defendants, Case No. 2:19-cv-02588-SHL-TLP (W.D. Tenn., Sept. 3, 2019) is a lawsuit brought against Defendants as a collective action under the Fair Labor Standards Act to recover unpaid overtime compensation and other damages owed to Plaintiff and other current and former employees of Defendants who are members of a class. According to the complaint, the Defendants failed to include shift differential payments in the regular rate of pay for Plaintiff and those similarly situated, resulting in underpayment of overtime on Plaintiff's base hourly rate rather than the regular rate as defined in Department of Labor regulation 29 CFR 778.207(b), which requires the inclusion of shift differentials in the regular rate when calculating overtime. Defendants willfully failed to pay Plaintiff and other similarly situated employees the correct overtime premium pay for overtime work in order to save payroll costs, says the complaint. As a consequence, Defendants have violated the FLSA and has thereby enjoyed ill-gained profits at the expense of Plaintiffs and others similarly situated. Plaintiff, therefore, seeks to recover back pay, liquidated damages, attorneys' fees, interest, and other cost, fees and expenses from Defendants for all such unpaid overtime, which is available under the FLSA. Plaintiff Josephine Robinson was employed by Defendants as an hourly-paid employee who received shift differentials. Inteplast is a company that manufactures a variety of polymer-based products, and sells and distributes them across the United States and Canada.[BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner IV, Esq. Nathaniel A. Bishop, Esq. Robert E. Morelli, III, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Phone: (901) 754-8001 Fax: (901) 759-1745 Email: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com nbishop@jsyc.com rmorelli@jsyc.com JACK MADDEN: Turner Seeks Overtime Pay for Salespersons ------------------------------------------------------- LARRY TURNER, on behalf of himself and all others similarly situated, the Plaintiff, vs. JACK MADDEN FORD SALES, INC.; JOHN P. MADDEN JR., and DEBORAH REILLY, the Defendants, Case No. 19-1083 (Mass. Super., Aug. 22, 2019), seeks damages based on the Defendants' failure to pay wages under the Massachusetts Wage Law. The Defendants operate a car dealership located in Norwood, Massachusetts. The Plaintiff worked as a salesperson for Defendants from approximately June 2010 through September 2017. The Plaintiff, as well as other members of the Class defined below, was compensated through a commission program. Defendants' company-wide compensation structure for salespeople was based on a 100% commission/draw model. Employees' pay each week was based on percentage of each sale made by the employee. To the extent an employee's pay for any given week fell below a certain threshold. Defendants would advance the employee a "draw" on future commissions. Pursuant to this pay policy, draws and commissions were ostensibly applied to hours worked over 40 hours per week, and to hours worked on Sundays and holidays. The Defendants did not pay any additional compensation for such work beyond the draws and commissions. The Plaintiff worked more than 40 hours in at least one week during the class, the lawsuit says. Attorneys for the Plaintiff are: Josh Gardner, Esq. Nicholas J. Rosenberg, Esq. GARDNER & ROSENBERG P.C.. One State Street, Fourth Floor Boston, MA 02109 Telephone: 617 390-7570 E-mail: josh@gardnerrosenberg.com JETS STADIUM: 3rd Cir. Affirms Gengo NJCFA Suit Dismissal --------------------------------------------------------- The United States Court of Appeals, Third Circuit, issued an Opinion affirming the District Court's Order granting Defendants' Motion to Dismiss in the case captioned JAMES T. GENGO, Individually and on behalf of all others similarly situated, Appellant, v. JETS STADIUM DEVELOPMENT LLC; NEW YORK JETS LLC. No. 18-3103. (3rd Cir.). At issue in this case is a personal seat license (PSL) agreement between Gengo and defendants. The agreement both allows and obligates Gengo to buy season tickets to football games played by the New York Jets in MetLife Stadium. Gengo paid a fee for the agreement because, at the time, it was the only way to purchase season tickets in Section 245a of the Stadium. Defendants now sell season tickets in the Section to purchasers who have not entered into a seat licensing agreement. Gengo argues this decision by defendants has rendered his agreement valueless, and constitutes a breach of the covenant of good faith and fair dealing implied in the agreement and is a violation of the New Jersey Consumer Fraud Act. The district court found that the complaint filed by Gengo did not state a plausible ground for relief under either theory and dismissed the action. This court reviews de novo a district court's grant of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Gengo's claim under the implied covenant of good faith and fair dealing fails because he has received the fruits of his contract. By signing the agreement, Gengo represented that he acquired this PSL solely for the right to purchase tickets to Jets Home Games played in the Stadium. The agreement related to certain seats in the Stadium and gave Gengo the right and the obligation to purchase admission tickets for the Seats. Nothing in the complaint suggests that Gengo has lost the exclusive right to purchase season tickets for these seats, much less that it was defendants' actions that denied him that right. That defendants might now sell adjacent seats to members of the general public does not implicate Gengo's rights and certainly does not strip him of the benefit for which he bargained. Gengo's claim under the New Jersey Consumer Fraud Act fails for similar reasons. He needed to plead an unlawful practice and, regardless of the type of unlawful practice alleged, capacity to mislead is the prime ingredient. Gengo specifically disclaims that a misrepresentation or omission regarding exclusivity or ticket policies forms the basis of his NJFCA claim. But simply changing the terms on which defendants sell other seats in the stadium is not misleading: the plain language of the agreement stated that Gengo entered it solely for the right to purchase season tickets for his selected seats and that the agreement was limited to this purpose. The agreement, therefore, belies that a licensee could have been misled into thinking it dictated how defendants could sell all other seats in his section. The full-text copy of the Third Circuit's August 29, 2019 Opinion is available at https://tinyurl.com/y3dzs59p from Leagle.com. JS SULLIVAN: Cooks Seek Overtime Wages for Construction Laborers ---------------------------------------------------------------- REGGIE COOKS, on behalf of himself and all current and former aggrieved employees, the Plaintiff, vs. JS SULLIVAN DEVELOPMENT, LLC, a California limited liability company; CREATIVE CONCEPT, LLC, a Delaware limited liability company; SEAN SULLIVAN aka HYUN SEAN SULLIVAN,PARK aka HYUN SULLIVAN, individual, and DOES 1-50, Inclusive, the Defendants, CGC-19-578599 (Cal. Super., Aug. 22, 2019), seeks to recover minimum and overtime wages under the California Labor Code. The Plaintiff and all others similarly situated worked for Defendants performing construction labor duties in California at any time within the four years prior to the filing of the initial complaint. JS Sullivan Development is a privately operated, entrepreneurial and real estate development and construction company.[BN] Attorneys for Reggie Cooks, on behalf of himself and all others similarly situated, are: Michael R. Crosner, Esq. Zachary M. Crosner, Esq. David Watson, Esq. CROSNER LEGAL, PC 433 N. Camden Dr., Ste. 400 Beverly Hills, CA 90210 Telephone: (310) 496-5818 Facsimile: (310) 510-6429 E-mail: mike@crosnerlegal.com zach@crosnerlegal.com david@crosnerlegal.com L BRANDS: Schall Law Files Securities Class Action Lawsuit ---------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against L Brands, Inc. (NYSE:LB) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. We also encourage you to contact Brian Schall of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. L Brands' Victoria's Secret and PINK stores experiencing worsening performance due in part to competing lingerie brands. The Company worked to drive sales through heavy promotional efforts such as offering customers discounts and free items. Although these tactics helped L Brands fight declines in sales, they impacted profit margins and cash flow negatively, also hurting the Company's liquidity. When asked by market analysts about the sustainability of the Company's dividend, executives replied that the Company "in its history, ha[d] never reduced the dividend." Just weeks later, L Brands announced it was cutting its dividend in half to pay down debts. On this news, shares of L brands dropped by 18% on November 20, 2018. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about L Brands, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. Contact: Brian Schall, Esq. The Schall Law Firm Office: 310-301-3335 Cell: 424-303-1964 Website: www.schallfirm.com Email: info@schallfirm.com brian@schallfirm.com [GN] LOBLAW: Rana Plaza Factory Collapse Victims' Appeal Denied ---------------------------------------------------------- Allan C. Hutchinson, writing for The Globe And Mail, reports that the Supreme Court of Canada's recent decision to deny an appeal in a lawsuit brought by victims of a Bangladeshi tragedy might seem like a small and obscure footnote to class-action jurisprudence. But it is not. Its ramifications are highly significant for serious and wide-ranging matters on corporate responsibility and global trade. Some will remember the Rana Plaza factory collapse in Bangladesh a few years ago, when 1,130 garment workers died and at least 2,520 others sustained serious injuries. Canadians were appropriately shocked and saddened by this incident, one of an increasing number of similar accidents with catastrophic results. However, sympathy is not enough. Canadians must begin to take responsibility and action on this horrendous trend, especially when it involves Canadian companies. As the beneficiaries of the cheap products made and exported to us, we are implicated in the conditions that give rise to these deaths and injuries. Bangladesh and surrounding countries have a history of factory deaths. In the past few years, many thousands of workers have been killed and many more injured or maimed. Building codes are weak, regularly flouted and rarely enforced. In short, any building site or completed factory is a disaster waiting to happen. These countries are the source of some of the cheapest labour for manufacturing goods and clothing. Along with their U.S. counterparts, Canadian companies outsource much of their manufacturing to these countries. Paying wages as low as $3 or $4 a day, they obtain merchandise at rock-bottom prices, ship the goods here, sell them at rock-bottom prices and still reap enormous profits. One egregious example of these practices is the collapse of the Rana Plaza in Savar, Bangladesh. Joe Fresh, now owned by Loblaw, imported massive amounts of garments each year from more than 70 factories in Bangladesh. One of its main suppliers was New Wave, which worked out of the Rana Plaza. The conditions were typical -- long hours, low pay and unrelenting pressure to get the job done. On the morning of April 24, 2013, the Rana Plaza collapsed. Other companies in the building had closed because of reports of its perilous condition. New Wave did not heed such warnings; it had orders to fill and deadlines to meet. Later that day, 1,130 garment workers died and at least 2,520 others sustained serious injuries. Actions were brought by the workers in Bangladesh. But, like the buildings, the legal process is in ramshackle state. The government is heavily dependent on and involved in the rag trade. The prospects for any reasonable or sufficient redress are extremely low. It is a case of business as usual. Workers are a cheap and expendable resource. In such circumstances, it is the main and highly profitable beneficiaries of cheap Bangladeshi goods that should be held accountable -- Loblaw, in this case. It had a longstanding and close relationship with New Wave, and it would be well aware of the dangerous state of buildings, the poor working conditions, the history of fatal accidents and the need for robust monitoring of the situation. A group of injured Bangladeshi workers filed suit in Canada, but courts here decided there was an insufficient link between what happened and Loblaw. However, this defies serious analysis. Loblaw kept the pressure on New Wave to live up to its contractual obligations, delivery dates and product standards. As such, Loblaw should step forward and assume a fair share of the responsibility. It must be prepared to use its ample profits to help victims and prevent future disasters. Unless Loblaw and others are brought before Canadian courts and the grounds of liability extended to encompass it, it will continue to exploit cheap foreign labour for its own financial gain. In contrast, Loblaw and other Canadian corporations must know that they are not beyond the law or redress in such matters. Gestures of relatively small contributions (of a few million dollars) to local relief funds do not cut it. Loblaw reaps enormous profits from its dealings in Bangladesh. If it can so easily absolve itself from direct legal and substantial liability, little will change. It is simply not acceptable that large corporations should be able to enjoy the good times and then walk away when tragedy strikes. If Loblaw persists in taking the profits, then it must also accept the blame and its costs. Global capitalism may be a modern phenomenon, but it need not be carried out in such a Victorian and oppressive manner. With profits, come responsibility; it is that simple. Canadian courts must open themselves up to the families of victims and hit Loblaw, a leading Canadian corporation, where it hurts. Arguments that it should pay at Bangladeshi rates add insult to injury. The profits are measured in Canadian terms, so must the liability imposed and damages awarded. [GN] LTD FINANCIAL: Court Dismisses Ladevaio FDCPA Suit -------------------------------------------------- The United States District Court for the Eastern District of New York issued an Memorandum and Order granting Defendant's Motion for Summary Judgment in the case captioned GENINE IADEVAIO, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. LTD FINANCIAL SERVICES, L.P., Defendant. No. 17-CV-4112 (JFB)(SIL). (E.D.N.Y.). Plaintiff Genine Iadevaio brings this putative class action against LTD Financial Services, L.P., for alleged violations of the Fair Debt Collection Practices Act (FDCPA). Defendant sent the Collection Letter to collect the past due debt. The Collection Letter is the initial communication from defendant to plaintiff mandated by 15 U.S.C. Section 1692g(a). The Plaintiff contends that defendant violated Sections 1692g(a)(2), 1692e, 1692e(2)(A), and 1692e(10) of the FDPCA. Specifically, plaintiff argues that the Collection Letter failed to identify the actual entity to which plaintiff owed the Balance, as the initial communication set forth the name of the Creditor as Show Master Card. The defendant's motion for summary judgment on the Fourth Cause of Action is granted, and plaintiffs cross-motion is denied. Specifically, the Court concludes that the uncontroverted facts demonstrate the use of Show Master Card as the creditor in the Collection Letter did not violate the FDCPA. Fair Debt Collection Practices Act The FDCPA was created to respond to the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Finding that abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy, the Act aims to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. Here, plaintiff alleges claims under FDCPA Sections 1692e and 1692g, and specific subsections thereunder, which the Court will briefly address in turn. Section 1692e Section 1692e establishes a general prohibition against a debt collector's use of any false, deceptive, or misleading representation or means in connection with the collection of any debt. The section then includes a non-exhaustive list of prohibited conduct, including (1) the false representation of the character, amount, or legal status of any debt and (2) the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. Section 1692g(a) Section 1692g(a) sets forth required disclosures for a debt collector's initial communication to a consumer. As relevant here, this section requires that the initial communication include the name of the creditor to whom the debt is owed. The parties do not dispute that plaintiff is a consumer and defendant is a debt collector, as those terms are defined by the FDCPA, and that the instant dispute is therefore covered by the statute. Moreover, it is uncontested that Exhibit A to plaintiff's complaint is the initial communication from defendant to plaintiff mandated by 15 U.S.C. Section 1692g(a). Finally, defendant concedes that Bryant State Bank is the actual entity to which plaintiff owed the Balance set forth in [the Collection Letter. Therefore, the question is whether defendant violated the above-described FDCPA provisions by identifying Show Master Card, rather than Bryant State Bank, as plaintiffs creditor. For the reasons that follow, the Court concludes that the Collection Letter does not. The Court will first address defendant's contention that plaintiff's claim is time-barred before turning to the merits of plaintiffs claims. Timeliness 15 U.S.C. Section 1692k(d) Defendant argues that plaintiffs cause of action is time-barred under FDCPA Section 1692k(d). As set forth below, the Court denies defendant's motion for summary judgment on this ground. On February 21, 2016, plaintiff received the Collection Letter, which allegedly violates the FDCPA. Plaintiff then filed a summons and notice in Nassau County Supreme Court on February 17, 2017—within the prescribed one-year window. Defendant argues that the absence of a complaint until November 2, 2017 renders the action untimely. The Court disagrees. Here, New York State procedure does not require the filing of a complaint in order to properly institute an action and comply with applicable statute of limitation provisions. Thus, at the time of removal to this Court on July 11, 2017, plaintiff had satisfied the applicable statute of limitations under New York State procedure. The removal of the case to the federal court does not vitiate that compliance. Once a case is removed, there is no requisite time frame by which a complaint must be filed, although the Court can certainly order the filing of such a pleading under Rule 81 of the Federal Rules of Civil Procedure. No such order was issued in this case. Thus, the filing of the complaint on November 2, 2017 did not violate the Federal Rules of Civil Procedure, nor does the absence of such a complaint impact a case that was timely filed for statute of limitations purposes under New York State procedural rules prior to removal. Accordingly, this action was timely brought under 15 U.S.C. Section 1692k(d), and the Court denies defendant's motion on the grounds of timeliness. The Merits Plaintiff argues that the Collection Letter fails to adequately identify Bryant State Bank as her creditor in violation of Section 1692g(a)(2)'s requirement that a debt collection letter include the name of the creditor to whom the debt is owed. Plaintiff also alleges that this same failure renders the Collection Letter misleading and deceptive under Sections 1692e, 1692e(2)(A) and 1692e(10). As explained supra,defendant does not dispute that Bryant State Bank is the actual entity to which plaintiff owed the balance. However, defendant argues that naming Show Master Card as the creditor was sufficient as this name is commonly associated with the account. As set forth below, the Court agrees with the defendant and holds that, under the least sophisticated consumer standard, the use of Show Master Card as the name of the creditor in the Collection Letter does not violate the FDCPA. Under the FDCPA a creditor is defined as: "any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another." Plaintiff makes two principal legal arguments in response to this case authority. First, plaintiff suggests that the name of the creditor used by the debt collector must be similar to the corporate name. The Court disagrees with plaintiff's assertions. Although companies often use a variation of their corporate name or an acronym in identifying themselves to the public, that is not the relevant inquiry for purposes of the FDCPA. Instead, the question is whether the least sophisticated consumer would recognize the name in the Collection Letter and understand, from that name, with whom the debt originated. As the Second Circuit and other courts have emphasized, that recognition of the creditor by the debtor may come from not just an acronym, but from the name under which it usually transacts business and/or any name that it has used from the inception of the credit relation. Having reviewed the record in this case, it is clear from the uncontroverted facts that the least sophisticated consumer would understand the identity of the creditor from the use of the trade name Show Master Card in the Collection Letter. The card that plaintiff was using was called the Show Master Card and that trade name was used from the beginning of the credit relationship. Moreover, the least sophisticated consumer would undoubtedly understand from the monthly statements for their credit card that Show Master Card is the trade name used by Bryant State Bank. In fact, the payment slip in the monthly statement combines the names and states at the top. In short, the uncontroverted evidence clearly demonstrates that Show Master Card is the name under which Bryant State Bank transacts business in connection with the credit card at issue, and that it did so since the beginning of the credit relationship with plaintiff, and that the identity of the creditor would be understood by the least sophisticated consumer under these circumstances. In sum, the uncontroverted facts demonstrate that the least sophisticated consumer would be able to properly identify the creditor through the use of the brand/trade name in the Collection Letter. Accordingly, the Collection Letter does not violate 15 U.S.C. Section 1692g(a)(2). For the same reasons, the Collection Letter does not violate 15 U.S.C. Section 1692e. In particular, the least sophisticated consumer would not find the language of the letter, as it relates to the identity of the creditor, to be confusing or misleading under Section 1692e. The Court grants defendant's motion for summary judgment on the Fourth Cause of Action and denies plaintiffs cross-motion for summary judgment. The full-text copy of the District Court's August 29, 2019, Memorandum and Order is available at https://tinyurl.com/yxf9qol6 from Leagle.com. Genine Iadevaio, on behalf of herself and all others similiarly situated, Plaintiff, represented by Mitchell L. Pashkin, 775 Park Ave Ste 255, Huntington, NY 11743-7538 LTD Financial Services, LP, Defendant, represented by Mitchell Lee Williamson -- mwilliamson@bn-lawyers.com -- Barron & Newburger, PC & Arthur Sanders -- asanders@bn-lawyers.com -- Barron & Newburger, P.C. MARCEL AT GRAMERCY: Faces Duncan Suit in New York Southern ---------------------------------------------------------- A class action lawsuit has been filed against Marcel At Gramercy LLC. The case is captioned as Eugene Duncan, and on behalf of all other persons similarly situated, the Plaintiff, vs. Marcel At Gramercy LLC, the Defendant, Case No. 1:19-cv-07925-DAB (S.D.N.Y., Aug 23, 2019). The suit alleges violation of the Americans with Disabilities Act. The case is assigned to the Hon. Judge Deborah A. Batts. Marcel At Gramercy LLC is engaged in hotel and accomodation business. Attorneys for the Plaintiff are: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com MASSACHUSETTS: Briggs Suit Settlement Has Prelim Approval --------------------------------------------------------- In the case, LEONARD BRIGGS, GEORGE SKINDER, LOUIS MARKHAM, FRANCIS MCGOWAN, ERIC ROLDAN, ROLANDO S. JIMENEZ, and JENNIFER WARD, on behalf of themselves and all others similarly situated, Plaintiffs, v. MASSACHUSETTS DEPARTMENT OF CORRECTION; CAROL A. MICI, COMMISSIONER OF THE MASSACHUSETTS DEPARTMENT OF CORRECTION; JENNIFER A. GAFFNEY,* DEPUTY COMMISSIONER OF CLASSIFICATION, PROGRAMS, AND REENTRY DIVISION; COLETTE M. GOGUEN,* SUPERINTENDENT OF MCI-SHIRLEY; STEVEN SILVA,* SUPERINTENDENT OF MCI-NORFOLK; LISA MITCHELL,* SUPERINTENDENT OF THE MASSACHUSETTS TREATMENT CENTER; ALLISON HALLET,* SUPERINTENDENT OF MCI-FRAMINGHAM; and MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE, Defendants, Civil Action No. 15-40162-GAO (D. Mass.), Judge George A. O'Toole, Jr. of the U.S. District Court for the District of Massachusetts granted the parties' joint motion, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an order preliminarily approving their settlement agreement. The parties' settlement agreement resolves all claims in the action except for the Plaintiffs' claims defined as "Reserved Claims" in the settlement agreement. Judge O'Toole has read and considered the motion and attached exhibits, the settlement agreement, and the arguments made by the parties. For settlement purposes, he preliminarily certified a Plaintiff class consisting of all individuals who are currently in Massachusetts Department of Correction ("DOC") custody or in the future are placed in DOC custody, and who are currently or in the future become deaf or hard of hearing. Under the settlement agreement, the parties will consult and timely agree upon a third party to serve as the settlement monitor to assess DOC's compliance with the terms of the settlement agreement. The settlement monitor will prepare bi-annual reports regarding DOC's implementation of and compliance with the terms of the settlement agreement and will share those reports with DOC and the Plaintiffs' counsel. The settlement agreement calls for the Plaintiffs to dismiss DOC from the action, with the exception of the Plaintiffs' claims defined as "Reserved Claims" in the settlement agreement, if and when the Court issues final approval of the settlement agreement. The Court will retain jurisdiction over this action during the settlement term (3 years) and will be the sole forum for enforcement of the settlement's terms, as described in the settlement agreement. THe Judge approved the proposed notice attached as Exhibit 3 to the motion as appropriate in the case and reasonably calculated to reach absent class members. Upon entry of the Preliminary Approval Order, the written notice will be issued to the class members by Prisoners' Legal Services sending the notice through first-class mail to currently identified class members in DOC custody and by DOC posting the notice in a common area in each DOC facility. The class members will file any written objection to the proposed settlement no later than Sept. 6, 2019. A final fairness hearing will take place on Sept. 25, 2019 at 2:00 p.m. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/O6boPq from Leagle.com. Leonard Briggs, George Skinder, Louis Markham, Francis McGowan, Eric Roldan, Rolando Jimenez & Jennifer Ward, Plaintiffs, represented by Deborah Golden, Washington Lawyers' Committee for Civil Rights & Urban, pro hac vice, Katherine V. Mackey -- KATHERINE.MACKEY@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP, Lisa J. Pirozzolo -- LISA.PIROZZOLO@WILMERHALE.COM -- Wilmer Hale LLP, Alexandra B. Lavin -- ALEXANDRA.LAVIN@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP, Elizabeth D. Matos, Prisoners' Legal Services, James R. Pingeon, Prisoners Legal Services Inc., Jessica L. Lewis -- JESSICA.LEWIS@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP, Jocelyn M. Keider -- JOCELYN.KEIDER@WILMERHALE.COM -- Wilmer Hale LLP, Lindsay Kosan -- LINDSAY.KOSAN@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP & Tatum A. Pritchard, Prisoners' Legal Services. Massachusetts Department of Correction, Commissioner Carol Higgins O'Brien, Deputy Commissioner Katherine A. Chmiel, Superintendent Kelly Ryan, Acting Super. Paul Henderson, Superintendent Steven O'Brien & Superintendent Sean Medeiros, Defendants, represented by Timothy M. Pomarole, Massachusetts Department of Correction Legal Division & Anna Rachel Dray-Siegel, Office of the Attorney General Administrative Law Division. MDL 2795: Court Grants Minnesota's Bid for Continuance ------------------------------------------------------ The United States District Court for the District of Minnesota issued a Memorandum granting the State of Minnessota's Motion for a Continuance in the case captioned IN RE CENTURYLINK SALES PRACTICES AND SECURITIES LITIGATION. This Document Relates to Civil File Nos. 17-2832, 17-4613, 17-4614, 17-4615, 17-4616, 17-4617, 17-4618, 17-4619, 17-4622, 17-4943, 17-4944, 17-4945, 17-4947, 17-5046, 18-1562, 18-1565, 18-1572, 18-1573. MDL No. 17-2795 (MJD/KMM). The Court issued an Order granting the State of Minnesota's Motion for Continuance and Extension of Time to Respond to Defendant and Intervenors' Motion for Temporary Injunction. The Minnesota Attorney General began an investigation into the billing practices of Defendant CenturyLink, Inc. The State of Minnesota filed an action against CenturyLink in Minnesota state court to enforce Minnesota's consumer protection laws and its parens patriae authority to vindicate the State's sovereign and quasi-sovereign interest to protect the economic welfare of Minnesota's citizens. The State filed the current Motion for Continuance. The State requests that the Court 1) continue the hearing on Defendant's motion until after Defendant files for preliminary approval of the putative class action settlement and 2) alter the briefing schedule on the motion so that the State is provided at least 30 days after such filing to submit its response in opposition to the motion. A party who seeks a continuance must show good cause. When a party moves for an extension before the original time expires, motions to extend are to be liberally permitted. Because the issue of good cause is case-by-case and subject to the discretion of the district courts, it has no concrete definition but is analyzed by a number of factors, including (1) the possibility of prejudice to the defendant (2) the length of the delay and the potential impact on judicial proceedings (3) the reason for the delay, including whether the delay was within the party's reasonable control and (4) whether the party acted in good faith. The State has established good cause for a continuance. At this time, CenturyLink's motion is premature. Both the State and the Court need to be able to review the specific terms of the proposed settlement agreement in order to cogently argue and decide CenturyLink's motion for a temporary injunction. Knowing the terms of the proposed settlement will assist the Court in determining whether there is nothing preventing the two sets of claims and interests [i.e., private class and government enforcement] from existing in parallel, for example, in a private settlement that resolves only the individuals' right to pursue damages and doesn't interfere with the government's ability to seek restitution and other remedies. Within CenturyLink's argument that the state court action endangers the potential federal settlement to the extent that an injunction is necessary, CenturyLink makes certain representations about the terms of the tentative settlement, such as whether television consumer claims are included in the settlement and how the settlement treats restitution recovered in state attorney general proceedings. These arguments belie CenturyLink's claim that the State and the Court need not review the preliminary settlement before being able to cogently analyze whether a temporary injunction should issue. As demonstrated by the cases relied upon by Defendant itself, courts properly consider motions for temporary stays of parallel state proceedings, particularly those prosecuted by states on their own behalf, when or after they consider motions for preliminary approval of the class-wide settlements. The few cases in which an injunction issued before the settlement was submitted for preliminary approval involve unique procedural postures not at issue here, such as when multiple defendants have already settled with plaintiffs. There is no authority cited in which a federal court has enjoined a state from litigating in a parallel action before the federal settlement agreement has even been submitted for preliminary approval or at least some of the federal defendants have already settled the case. The Court finds that the State is making the request for a continuance in good faith to enable it to meaningfully respond to the motion for an injunction and to protect its sovereign and quasi-sovereign authority to pursue the procedurally advanced state action and vindicate the interests of the citizens of the State of Minnesota. Additionally, CenturyLink will not be prejudiced by the continuance. There is no authority for the proposition that a putative class's undisclosed, potential settlement justifies interfering with an ongoing, procedurally advanced government enforcement action. CenturyLink claims that the motion for preliminary approval will be filed shortly. Thus, the motion for a preliminary injunction can be briefed and heard shortly. The Court issued the August 20, 2019 Order granting the State's motion for a continuance. The full-text copy of the District Court's August 29, 2019, Memorandum is available at https://tinyurl.com/y3axql72 from Leagle.com. Plaintiffs' Interim Co-Lead Counsel, Plaintiff, represented by Benjamin Jared Meiselas -- ben@geragos.com -- GERAGOS & GERAGOS, pro hac vice, Brian C. Gudmundson -- brian.gudmundson@zimmreed.com -- Zimmerman Reed, PLLP, Carolyn G. Anderson -- carolyn.anderson@zimmreed.com -- Zimmerman Reed, PLLP, Charles J. Hodge -- chodge@hodgelawfirm.com -- Daniel C. Hedlund : dhedlund@gustafsongluek.com -- Gustafson Gluek PLLC, Francois Michel Blaudeau -- francois@sml-legal.i-mlaw.com -- Southern Institute for Medical &Legal Affairs LLC, Hart L. Robinovitch -- hart.robinovitch@zimmreed.com -- Zimmerman Reed, PLLP, James F. McDonough, III, Heninger Garrison Davis, LLC, 3621 Vinings Slope, Suite 4320, Atlanta, GA 30339, Lori G. Feldman, Geragos & Geragos, 7 W 24th St Ste 2, New York, NY 10010-3212, pro hac vice Defendant's Primary Outside Counsel, Defendant, represented by David M. Aafedt -- daafedt@winthrop.com -- Winthrop & Weinstine, PA, David A. Vogel -- dvogel@cooley.com -- Cooley LLP, pro hac vice, Douglas P. Lobel -- dlobel@cooley.com -- Cooley LLP, pro hac vice, Jeffrey M. Gutkin -- mhodes@cooley.com -- Cooley LLP, Joseph M. Windler -- jwindler@winthrop.com -- Winthrop & Weinstine, PA & William A. McNab- jwindler@winthrop.com -- Winthrop & Weinstine, PA. MINNESOTA: Court Denies Bid to Decertify Class in Murphy Suit ------------------------------------------------------------- In the case, Tenner Murphy, by his guardians Kay and Richard Murphy; Marrie Bottelson; Dionne Swanson; and on behalf of others similarly situated, Plaintiffs, v. Pam Wheelock in her capacity as Commissioner of The Minnesota Department of Human Services, Defendant, Civil No. 16-2623 (DWF/BRT) (D. Minn.), Judge Donovan W. Frank of the U.S. District Court for the District of Minnesota denied the Defendant's Motion to Decertify the Class. The Plaintiffs are individuals with disabilities and Medicaid recipients who receive Home and Community Based Disability Waivers from the State of Minnesota under the direction of Defendant Pam Wheelock, Acting Commissioner of the Minnesota Department of Human Services ("DHS"). The Plaintiffs reside in Community Residential Setting ("CRS") facilities -- otherwise known as corporate adult foster care -- and wish to access various individualized housing services available under the Disability Waivers to pursue more integrated housing options. The Plaintiffs assert that their current living situations isolate and segregate them from their communities in violation of federal law. To access the services they seek in a timely manner and with proper due process, the Plaintiffs seek declaratory and injunctive relief to reform the Defendant's administration of the Disability Waiver programs. On Sept. 29, 2017, the Court granted the Plaintiffs' Motion for Class Certification, certifying the class of all individuals age 18 and older who are eligible for and have received a Disability Waiver, live in a licensed Community Residential Setting, and have not been given the choice and opportunity to reside in the most integrated residential setting appropriate to their needs. The Defendant now argues that the Class should be decertified because discovery has shown that: (1) the Named Plaintiffs are not adequate class representatives; (2) the Plaintiffs lack sufficient evidence to meet the numerosity requirement; (3) the Named Plaintiffs' claims are neither common nor typical of the class; and (4) the Plaintiffs' claims cannot be remedied by a single injunction. The Defendant also challenges the Class member standing. The Plaintiffs oppose decertification. The Defendant first argues that the Named Plaintiffs are no longer adequate Class representatives because two have moved into individualized and integrated homes, and a third has interests that differ from other Class members. Judge Frank holds that the record reflects that the two Named Plaintiffs who moved did not move until after the Class was certified, and that until they moved, their claims for systemic relief were common to and typical of the members of the Class. The Defendant has not cited changes in her management of the Waiver programs such that the Court's analysis when it certified the Class no longer apples; therefore, the claims as they pertain to the Class continue. The Judge also finds that the two Named Plaintiffs who moved have continued to adequately protect the interests of the class, and that their interests do not conflict with those they seek to advance; therefore, they remain adequate representatives of the Class as a whole. With respect to the third Named Plaintiff, the Judge finds that the Defendant has failed to make a proper showing that she no longer shares the interests or has suffered the same injuries as the Class. Therefore, she too remains an adequate class representative. Only one adequate class representative is needed to satisfy the requirements of Rule 23(a)(4). Accordingly, the Judge finds that the Class continues to have adequate representation and declines to decertify it on this basis. The Defendant next argues that the Court should decertify the Class because it no longer satisfies the numerosity requirement pursuant to Rule 23(a)(1) and that discovery has made clear that determining whether a person is a member of the Class is a highly individualized process that cannot be based on objective criteria. The Judge finds that a decision to decertify a class should arise based on changed circumstances that were not present when the class was certified. The Defendant has failed to present changed circumstances such that the Court's analysis that the numerosity requirement is satisfied no longer applies. Accordingly, he declines to decertify the Class on this basis. The Defendant also argues that the Court should decertify the Class because the Plaintiffs cannot show that their claims are common to the Class. The Judge holds that the Plaintiffs need only show that the Defendant's actions are "a substantial factor in bringing about the harm." As a public entity, the Defendant must "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. Whether the Defendant's administration of its Waiver system is a substantial factor contributing to segregation is a question of fact common to the class that is capable of classwide resolution. At this stage, the Plaintiffs need not answer this question; it is sufficient that resolution of the Plaintiffs' claims turn on common questions with common proof that will lead to common answers if the Plaintiffs are successful. The Defendant next argues that the Class should be decertified because the Named Plaintiffs' claims are not typical of the Class members' claims. The Judge has reviewed the alleged notices and finds that the general information provided in them is not a proxy for proper notice of a specific proposed adverse action and that they fail to comply with the Due Process Clause or Medicaid regulations. He finds that the Plaintiff Class continues to satisfy the typicality requirement and declines to decertify the Class on this basis. The Defendant next argues that the Court should decertify the Class because the Court cannot provide the requested relief with a single injunction. The Judge finds that the Plaintiffs claim that their ability to live in the most integrated settings appropriate to their needs is legally mandated. Because the proposed injunction would provide, at least in part, each member of the class an increased opportunity to achieve that outcome, the Judge finds that Rule 23(b)(2) remains satisfied on the record before the Court. Finally, the Defendant argues that the Court should decertify the Class because the Plaintiffs cannot show that every Class member has standing to sue on his or her own behalf. The Judge holds that the Defendant is a public entity that must administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The Defendant's administration of the Waiver system potentially affects the choice and opportunity of each Class Member to reside in the most integrated residential setting appropriate to their needs. Because the proposed injunction would provide, at least in part, each member of the class an increased opportunity to achieve increased choice and opportunity to live in the most integrated setting appropriate to their needs, all participants in the Waiver system will be affected by the proposed remedy. Accordingly, the JUdge finds that the Class is defined in such a way that anyone within it has standing. For the reasons set forth, Judge Frank concludes that the Defendant has failed to demonstrate changed circumstance warranting decertification of the Class. Accordingly, he denied the Defendant's Motion to Decertify the Class. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/wr2yYC from Leagle.com. Tenner Murphy, by his guardians Kay and Richard Murphy and on behalf of others similarly situated, Marrie Bottelson, and on behalf of others similarly situated & Dionne Swanson, and on behalf of others similarly situated, Plaintiffs, represented by Eren Ernest Sutherland, Mid-Minnesota Legal Aid Minnesota Disability Law Center, Joseph W. Anthony -- janthony@anthonyostlund.com -- Anthony Ostlund Baer & Louwagie PA, Justin M. Page, Mid-Minnesota Legal Aid/Disability Law Center, Justin H. Perl -- jperl@mylegalaid.org --, Mid-Minnesota Legal Aid, Peter McElligott -- pmcelligott@anthonyostland.com -- Anthony Ostlund Baer & Louwagie PA, Steven M. Pincus -- spincus@anthonyostlund.com -- Anthony Ostlund Baer & Louwagie PA, Steven C. Schmidt, Mid-Minnesota Legal Aid Minnesota Disability Law Center & Steven Andrew Smith, Nichols Kaster, PLLP. Emily Johnson Piper, in her Capacity as Commissioner of the The Minnesota Department of Human Services, Defendant, represented by Aaron Winter -- aaron.winter@ag.state.mn.us -- Minnesota Attorney General's Office, Brandon L. Boese, Office of the Minnesota Attorney General, Janine Wetzel Kimble -- janine.kimble@ag.state.mn.us -- Minnesota Office of Attorney General & Scott H. Ikeda -- scott.ikeda@ag.state.mn.us -- Minnesota Attorney General's Office. ARRM, Amicus, represented by Pari McGarraugh -- pmcgarraugh@fredlaw.com -- Fredrikson & Byron & Samuel D. Orbovich -- sorbovich@fredlaw.com -- Fredrikson & Byron, PA. MITSUBA: Power Window Motors Price Fixing Settlement Approved ------------------------------------------------------------- Freed Kanner London & Millen LLC; Kohn, Swift & Graf, P.C.; Preti, Flaherty, Beliveau & Pachios LLP and Spector Roseman & Kodroff, P.C. ("Settlement Class Counsel") on Aug. 12 disclosed that the United States District Court for the Eastern District of Michigan Southern Division ("Court") has approved the following announcement of proposed class action settlements with the MITSUBA Defendants and DENSO Defendants. The lawsuit claimed that Defendants conspired to raise, fix, maintain, and stabilize prices, rig bids, and allocate the supply of Power Window Motors sold in the United States, in violation of federal antitrust laws. The settlements affect those who purchased Power Window Motors in the United States between January 1, 2000 and July 19, 2018 directly from any of the following entities (or depending on the specific settlement agreements, their parents, subsidiaries, affiliates and joint ventures): DENSO Corporation; DENSO International America, Inc.; DENSO Korea Corporation (f/k/a separately as DENSO International Korea Corporation and DENSO Korea Automotive Corporation); ASMO North America, LLC; ASMO North Carolina, Inc.; MITSUBA Corporation; American Mitsuba Corporation; Robert Bosch GmbH; Bosch Electrical Drives Co., Ltd.; Robert Bosch LLC; Matsushita Electric Industrial Co., Ltd; Mabuchi Motor Co., Ltd.; Valeo S.A.; and Jidosha Denki Kogyo Co., Ltd. A hearing will be held on November 5, 2019, at 2:00 p.m., before the Honorable Marianne O. Battani, United States District Judge, at the Theodore Levin United States Courthouse, 231 West Lafayette Boulevard, Detroit, MI 48226, Courtroom 250, for the purpose of determining: (1) whether the proposed settlements with the MITSUBA Defendants and DENSO Defendants totaling $3,160,761 should be approved by the Court as fair, reasonable and adequate; (2) whether the Court should approve the proposed plan of distribution of MITSUBA and DENSO settlement proceeds to members of the settlement classes; and (3) whether the Court should approve Settlement Class Counsel's request for an award of attorneys' fees, reimbursement of litigation costs and expenses, and an incentive payment to the Class Representative. A Notice of Proposed Settlements and Claim Form (the "Notice") was mailed to potential Settlement Class members on or about August 8, 2019. The Notice describes the litigation and options available to Settlement Class members with respect to the MITSUBA and DENSO settlements in more detail. The Notice also explains what steps a Class Member must take to (1) remain in the settlement classes and file a Claim Form to share in the settlement proceeds, (2) object to the settlements, or (3) request exclusion from the settlement classes. The Notice and other important documents related to the settlements can be accessed at www.AutoPartsAntitrustLitigation.com/PowerWindowMotors, or by calling 1-877-440-0634, or writing to Power Window Motors Direct Purchaser Antitrust Litigation, P.O. Box 6389, Portland, OR 97228-6389. Those who believe they may be a member of either of the MITSUBA or DENSO settlement classes, are urged to obtain a copy of the Notice. [GN] MT. GOX: Pa. Court Denied Bid to Dismiss Pearce ----------------------------------------------- In the case, GREGORY PEARCE, individually and on behalf of all others similarly situated, Plaintiff, V. MARK KARPELES, an individual, Defendant, Civil Action No. 18-306 (E.D. Pa.), Judge Robert F. Kelly, Sr. of the U.S. District Court for the Eastern District of Pennsylvania denied Karpeles' Motion to Dismiss for Lack of Jurisdiction pursuant to Federal Rule of Civil Procedure Section 12(b)(2). The case arises out of the collapse of Mt. Gox, one of the world's most prominent bitcoin exchanges. Bitcoin is a digital currency that is used like money. Bitcoins can be exchanged for other digital currencies or can be exchanged for traditional currencies such as the U.S dollar. Each bitcoin is stored in an individual's digital wallet. Mt. Gox touted that it would keep its users' bitcoins safe and that users would be able to retrieve any bitcoins or cash that they had stored on the site. Mt. Gox, at one point, claimed to be the "world's most established Bitcoin exchange." However, as the sole controlling force behind Mt. Gox and the designer of its software, Karpeles was aware that there were security "bugs" in the system, but did not make these defects known to the public. Karpeles is a French citizen who owned and operated the Mt. Gox Bitcoin Exchange. He was the CEO of Mt. Gox and providef overall direction, responsible for supervising main operations and steering the company according to his vision. As President and CEO, Karpeles was involved in nearly every detail of the Exchange, from the technical to the operational. Additionally, Karpeles directed the drafting and dissemination of Mt. Gox's public statements and representations, as well as statements made through Mt. Gox's customer service department, and handled all aspects of Mt. Gox's accounting. In order to use Mt. Gox's services, users had to create an account through its website and agree to the Terms of Service, which expressly warranted that Mt. Gox would hold all monetary sums and all Bitcoins deposited by each Member in its Account, in that Member's name as registered in their Account details, and on such Member's behalf. Users would have to verify their accounts by providing Mt. Gox with detailed information such as their full name, date of birth, country of birth, physical address, as well as proof of identity. Users could then transfer their previous bitcoins directly to their Mt. Gox account or deposit cash into their account by wiring money to Mt. Gox's Japanese banking partners. Afterwards, users could begin to make purchases and trades on the Exchange. In mid-2013, Mizuho Bank, LTD. was the exclusive processor of all bank deposits and withdrawals made by Mt. Gox users located in the United States. In that capacity, Mizuho facilitated international cash wire transfers from Mt. Gox users into the Exchange and processed user requests to withdraw fiat currency from the Exchange to their outside bank accounts. To facilitate a user's money into the Exchange, Mizuho accepted payments that had been wired by users through their outside banks. The wire transfers designated Mt. Gox as the beneficiary of the wire and Mizuho as the beneficiary's bank, but also included the Mt. Gox user's account number to which the funds were to be directed. Moreover, to withdraw cash from the Exchange, Mt. Gox users submitted requests online through their Mt. Gox account. Mt. Gox would compile these requests -- which included a user's bank account information as well as the amount to be transferred -- and provide the requests to Mizuho for processing. Around this time, Mizuho became concerned about Mt. Gox's growing transaction volumes amid reports that U.S. authorities were investigating Mt. Gox for business dealings related to money laundering. Accordingly, Mizuho decided to distance itself from Karpeles and Mt. Gox. In order to allegedly force an end to their relationship, Mizuho implemented a series of new policies, and ultimately, in June 2013, stopped processing international wire withdrawals for Mt. Gox altogether. In June 2013, Mt. Gox users began to report substantial difficulties in withdrawing cash from their Mt. Gox accounts. Despite growing problems with the Exchange's reliability and security, Karpeles repeatedly assured users and the public that delays in processing transactions were due to a temporary backlog and that users' assets were safe. These public claims were false. On Feb. 7, 2014, Mt. Gox halted all user withdrawal requests of bitcoin, leaving many users unable to withdraw bitcoins or fiat currency from their accounts. Karpeles claimed that he had detected "unusual activity" with repsect to the Mt. Gox Bitcoin wallets, but Karpeles concealed the fact that he had been aware of the supposed security "bug" since 2011. Moreover, in February 2014, Karpeles made numerous representations to the public and to Mt. Gox users that the withdrawal issues were only temporary and that user assets were safe. On Feb. 24, 2014, the Mt. Gox website went dark. Users were no longer able to access or view their accounts and a message on the webpage notified visitors that a "decision was taken to close all transactions for the time being." Then, a few days later, on Feb. 28, 2014, Mt. Gox filed for bankruptcy protection in Japan. During a press conference, Karpeles revealed that Mt. Gox had lost over $450 million worth of bitcoins through a security breach. Pearce initiated the class action suit against Karpeles and Mizuho on Jan. 24, 2018. On Aug. 27, 2018, the Court found it did not have personal jurisdiction over Mizuho and dismissed it. In his Class Action Complaint, Pearce claims one count of negligence and one count of fraud against Karpeles. Pearce brings these claims on behalf of himself and the "Mt. Gox Class." Presently before the Court is Karpeles' Motion to Dismiss, Plaintiff Pearce's Response in Opposition to the Motion to Dismiss, and Karpeles' Reply to Pearce's Response in Opposition to the Motion to Dismiss. Judge Kelly finds that the Court has specific jurisdiction over Karpeles because he availed himself of the privilege of conducting business in Pennsylvania through soliciting business from Pearce and thousands of other Pennsylvania residents through the Mt. Gox website. Since Mt. Gox actively transacted business over the internet by providing an interactive website that engaged in business with thousands of Pennsylvania residents, the Court's exercise of personal jurisdiction is proper. Additionally, Karpeles "purposefully availed" himself of the privilege of engaging in activity in Pennsylvania through continually providing services to thousands of Pennsylvania citizens, communicating with Pennsylvania citizens through e-mail and the Mt. Gox support desk, and shipping products to Pennsylvania residents. Moreover, Pearce and other Pennsylvania citizens' contacts with the Exchange were not random, isolated, or fortuitous. Furthermore, the Court's exercise of personal jurisdiction is supported by our sister case in the United States District Court for the Northern District of Illinois, where the Northern District of Illinois found that it had personal jurisdiction over Karpeles as an individual. Karpeles argues that the contacts created by the Mt. Gox website do not relate back to him as an individual. Under the Corporate Shield Doctrine, individuals performing acts in a state in their corporate capacity are not subject to personal jurisdiction of the courts of that state for those acts. However, a corporate agent may be held personally liable for torts committed in their corporate capacity. The Judge finds that Karpeles was a "key player" in Mt. Gox's corporate structure. He was the CEO, majority owner, and president, who controlled all aspects of Mt. Gox's business from the ground up and was involved in nearly every detail of the Exchange. This included producing and designing the software used to run Mt. Gox. Additionally, Karpeles directed the drafting and dissemination of Mt. Gox's public statements and representations, and served in a position of trust that gave rise to ongoing obligations toward, and interactions with, Mt. Gox users and their property. Based on this analysis, Karpeles is subject to the Court's personal jurisdiction in his individual capacity. Having determined that minimum contacts exist, the Judge next considers whether the exercise of jurisdiction would otherwise comport with "traditional notions of fair play and substantial justice." The Judge holds that the exercise of personal jurisdiction over Karpeles comports with "traditional notions of fair play and substantial justice." Karpeles has failed to make a "compelling case" that forcing him to litigate in Pennsylvania would be unreasonable. Karpeles cites no authority for the proposition that confinement in a foreign country for the alleged conduct underlying a civil suit makes litigating that suit in the forum State unconstitutionally unfair, thereby forfeiting the point. It would not be constitutionally unreasonable for Karpeles to defend the suit in Pennsylvania. Based on the foregoing reasons, Judge Kelly concludes that personal jurisdiction over Karpeles is proper. Therefore, he denied Karpeles' Motion to Dismiss for Lack of Jurisdiction. An appropriate Order follows. A full-text copy of the Court's July 26, 2019 Memorandum is available at https://is.gd/fmb6FD from Leagle.com. GREGORY PEARCE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by DAVID S. SENOFF -- dsenoff@anapolweiss.com -- First Law Strategy Group, LLC & RAFEY S. BALABANIAN -- rbalabanian@edelson.com -- EDELSON PC. MARK KARPELES, AN INDIVIDUAL, Defendant, represented by ALBERT ANTHONY CIARDI, III -- aciardi@ciardilaw.com -- CIARDI & CIARDI PC. NATIONAL AUSTRALIA: British Class Action Set to Go to Trial ----------------------------------------------------------- Hans van Leeuwen, writing for Australian Financial Review, reports that National Australia Bank and its former British subsidiary Clydesdale & Yorkshire Banking Group have broken cover to emphatically reject the claims made in a British class action suit, setting the stage for a potential courtroom stoush later this year. In an end-July court filing that marks NAB's first formal response to the potentially multimillion-dollar class action, the bank described several of the litigants' claims as "without foundation" and "embarrassing". And a CYBG representative told The Australian Financial Review that there was "no merit" and "no substance" to the allegations, so the British bank planned to "defend its position robustly" as the litigation unfolded. But RGL Management, the company overseeing the class action for the former CYBG customers, immediately hit back. "There is nothing in the lengthy, expensive and obfuscatory defences that we didn't expect. The bottom line is they have failed to answer the allegations in our particulars of claim," James Hayward, the Australian CEO of London-based RGL, said in a statement on Aug. 9. "Our claim book is continuing to grow and we have great confidence that we will secure significant compensation for the thousands of businesses damaged by the banks' actions." With neither side seemingly in the mood to settle out of court, the case now looks primed to go to trial. RGL filed its suit on behalf of three claimants in May, who serve as exemplars of the larger case it wants to make against the two banks. It has also filed a claim on behalf of a further 146 former CYBG clients, but has not yet served that second claim on the banks. The company is now assessing the merits of another 2000 or so other possible claimants who could potentially join the action as it goes along. The action centres on a fixed-rate "tailored business loan" (TBL) product that CYBG offered to some of its SME clients between 2001 and 2012. It included an interest-rate hedge and was supported by technical expertise from Clydesdale's then parent NAB. More than 8000 of these TBLs were issued. Problems emerged when some clients tried to vary the terms of the loan to take advantage of lower prevailing market rates than their original fixed rate. They would then find themselves exposed to very high break fees, creating heavy losses and disrupting their businesses. RGL alleges that CYBG's levying of these break fees was illegitimate and not part of the loan arrangement or contract, amounting to deceit or "negligent misstatement". RGL also alleges there was systematic overpricing of the interest rates on the loans, while telling the clients that these higher rates reflected the prevailing market rate. NAB is alleged to have actively colluded in these efforts. The banks' filings in response deny the allegations, or criticise them for a lack of specificity. The next step is thus a case management conference, in which the judge works with all parties' lawyers to try and narrow down the issues that the trial will actually grapple with. NAB owned CYBG, which is in the process of renaming itself Virgin Money after a merger last year, until 2016. The two banks' decoupling took place late that year, leaving CYBG listed on the ASX as well as the London Stock Exchange. [GN] NATIONAL BEVERAGE: Wins Dismissal of Securities Class Suit ---------------------------------------------------------- The United States District Court for the Southern District of Florida issued an Order granting Defendants' Motion to Dismiss in the case captioned THOMAS W. LUCZAK, Plaintiff, v. NATIONAL BEVERAGE CORPORATION, NICK A. CAPORELLA, and GEORGE R. BRACKEN, Defendants, Case No. 18-cv-61631-KMM (S.D. Fla.). The Plaintiff, individually and on behalf of all others similarly situated, brings the instant securities class action against Defendants pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Plaintiff alleges that during the designated, he acquired National Beverage stock at artificially inflated prices due to repeated material misrepresentations and omissions in National Beverage's publicly issued statements, and that these misrepresentations and omissions caused the Plaintiff and other class members significant losses and damages. The Plaintiff identifies the following four categories of statements or omissions that eventually led to a precipitous decline in the value of National Beverage's securities. The Defendants move to dismiss the Amended Complaint pursuant to Fed. Rs. Civ. P. 12(b)(6) and 9(b), arguing that the Plaintiff fails to establish standing and adequately allege falsity, scienter, and loss causation for each of the above-mentioned statements. Standing The Defendants argue that the Plaintiff has insufficiently alleged injury in fact and thus a lack of standing to proceed in federal court because the Plaintiff apparently sold all of the shares he purchased during the Class Period before any supposed fraud was revealed. In response, the Plaintiff argues that he has standing because he traded National Beverage stock within a reasonable time after Defendants issued allegedly false statements. A class action plaintiff must show that he or she has (1) suffered an injury in fact, that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical (2) the injury is fairly traceable to the challenged action of the defendant and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Here, the Plaintiff has sufficiently alleged an injury in fact. The Plaintiff alleges a decrease in the value of his National Beverage shares caused by the Defendants' misleading statements in June and December of 2017 related to National Beverage's sales growth, corporate governance, and transparency, and that his loss can be redressed by a favorable ruling in his favor. Moreover, the Plaintiff plausibly alleges that he bought and sold shares of the stock in question within a reasonable period of time after the allegedly fraudulent conduct occurred. This suffices to establish standing. Violations of Section 10(b) and Rule 10b-5 Defendants next argue that Plaintiff fails to sufficiently allege a material misrepresentation or omissions, scienter, and loss causation for each of the statements above. The Court will address each statement in turn. The All Natural Claim Defendants claim that the all natural ingredient claim fails to adequately allege falsity because it is entirely based on allegations made in the Illinois state court action. Defendants further argue that any decline in share price following the reporting of the Illinois state action in no way suggests the falsity of the claim. In response, Plaintiff argues that after the filing of the Illinois action, Defendants were obligated to issue corrective disclosures regarding its all natural claims by explaining that that it relied on its suppliers to certify the accuracy of its claims. A statement is misleading 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. Thus, the appropriate primary inquiry is into the meaning of the statement to the reasonable investor and its relationship to truth. Here, Plaintiff fails to sufficiently allege that the all natural representation is materially false. First, Plaintiff cannot merely crib allegations from a complaint in another jurisdiction as the sole source of support for his claims here. Second, National Beverage's alleged reliance on its suppliers' certifications that LaCroix's ingredients are all natural does not necessarily render National Beverage's all natural claim false. Here, National Beverage's reliance on its suppliers' certifications in no way neutralizes its previous contentions that LaCroix is all natural. Moreover, Plaintiff fails to present any evidence beyond unproven allegations within a separate lawsuit that LaCroix is not, in fact, all natural. The Court finds this statement nonactionable. Defendants' Motion to Dismiss the Amended Complaint as to Plaintiff's all natural statement is therefore granted. Revenue Concentration Defendants next argue that the market was already aware of LaCroix's dominance within National Beverage's portfolio, so any omission of the exact amount or percentage of LaCroix sales relative to other National Beverage products did not make National Beverage's financial statements materially false. Defendants further argue that Plaintiff fails to establish scienter and loss causation for the revenue concentration omission. In response, Plaintiff argues that GAAP required National Beverage to disclose any risk relating to revenue concentration when such concentration could have caused a near-term severe impact on the company. To establish scienter, a plaintiff must show a defendant's (1) intent to deceive, manipulate, or defraud or (2) severe recklessness. Here, National Beverage repeatedly disclosed to the SEC that LaCroix was its strategically largest, significant, and dominant" brand. Plaintiff provides no evidence to suggest that there was ever any market confusion about whether LaCroix constituted a disproportionate share of National Beverage's revenues. In fact, Plaintiff alleges that analysts had already estimated that throughout the class period, LaCroix accounted anywhere from one half to two-thirds of National Beverage's entire portfolio, a huge concentration. Plaintiff thus fails to present any evidencebeyond a potential GAAP violation-that Defendants acted with severe recklessness in failing to disclose the precise concentration of LaCroix revenues within National Beverage's product portfolio. Moreover, Plaintiff entirely fails to detail Caporella or Bracken's roles in omitting to specify LaCroix's exact revenue concentration and whether either Defendant benefitted from these omissions. To the extent Plaintiff argues that Caporella or Bracken must have known of any concentration-related issue because of their senior executive status within the company, this Court has repeatedly held that merely holding a position of power does not lead to an inference of scienter without specific allegations of the individual defendants' role in the fraud. Plaintiff fails to allege sufficient facts that, taken collectively, give rise to a strong inference of scienter" regarding the revenue concentration omission. Thus, Defendants' Motion to Dismiss the Amended Complaint as to Plaintiff's revenue concentration claim is granted. VPO/VPC Defendants next argue that Plaintiff fails to sufficiently allege that the VPO/VPC statements were materially misleading and made with scienter. Defendants further argue that Plaintiff fails to plausibly allege loss causation because Defendants' responses to the SEC do not constitute corrective disclosures that reveal new facts or otherwise reveal any actual wrongdoing. In response, Plaintiff argues that Caporella falsely claimed that VPO and VPC were proprietary to National Beverage, and misled investors by suggesting that VPO and VPC were important metrics to create growth in the company. Plaintiff further argues that Caporella and National Beverage acted with scienter, and that statements at issue caused a drop in the value of National Beverage shares. To show loss causation in a Section 10(b) claim, a plaintiff must offer proof of a causal connection between the misrepresentation and the investment's subsequent decline in value. Plaintiff argues that two public disclosures regarding VPO and VPC constitute corrective disclosures demonstrating loss causation: (1) the SEC's March 23 Letter to National Beverage, requesting that the company explain the discrepancy between National Beverage's public statements stressing VPO and VPC's importance and National Beverage's representation to the SEC that these metrics are not key performance indicators and (2) the WSJ's June 26 Article, summarizing National Beverage's correspondence with the SEC, which, according to Plaintiff, provided the market with a full realization that Defendants' claims about the VPO and VPC metrics were false and misleading. Plaintiff alleges that one business day after the SEC issued the March 23 Letter, National Beverage suffered a statistically significant" drop in share price. The Court agrees with Defendant that neither the March 23 Letter nor the June 26 Article are corrective disclosures that revealed to the market the pertinent truth that was previously concealed or obscured by the company's fraud. First, the March 23 Letter-noting a discrepancy between National Beverage's various statements to the public and the SEC and then requesting further information to address the discrepancy does not reveal any previously concealed truth. Although the letter certainly suggests skepticism with National Beverage's prior response to the SEC, it does not constitute either proof of fraud or proof of liability, and otherwise merely confirms the SEC's already established doubt of the veracity of the relevant VPC/VPO statements. Second, the June 26 Article is not a corrective disclosure because the mere repackaging of already-public information is simply insufficient to constitute a corrective disclosure. The June 26 Article does not add any commentary, analysis, or information beyond a summary of the already existing correspondence between National Beverage and the SEC. Plaintiff fails to allege any new information within that article that revealed a previously concealed truth. Because Plaintiff fails to sufficiently allege that the March 23 Letter and June 26 Article constitute corrective disclosures that establish a causal link to Plaintiff's stock-value loss, Plaintiff fails to plausibly allege loss causation. Defendants' Motion to Dismiss the Amended Complaint as to the VPO/VPC statements is GRANTED. Sexual Harassment Defendants finally argue that the allegations of sexual harassment against Caporella: (1) did not render National Beverage's anti-harassment policy within its code of ethics materially misleading (2) are insufficient to establish scienter and (3) did not contribute to a loss in stock price following the WSJ's July 3 Article describing the allegations. In response, Plaintiff argues that the allegations rendered the code of ethics materially misleading, that Defendants acted with scienter by recklessly or intentionally omitting information of alleged harassment and that the July 3 Article is a corrective disclosure for loss causation purposes. The Court need not decide whether Plaintiff sufficiently alleged any material misstatement or scienter because Plaintiff again fails to plausibly allege loss causation. The mere repackaging of already-public information is simply insufficient to constitute a corrective disclosure. As alleged, the July 3 Article presents no facts to the market that are publicly revealed for the first time. Plaintiff fails to sufficiently allege that the July 3 Article constitutes a corrective disclosure that establishes a causal link to Plaintiff's stock-value loss. Thus, Defendants' Motion to Dismiss the Amended Complaint as to the sexual harassment allegations is GRANTED. Because Plaintiff fails to sufficiently plead that any material statement or omission by Defendants violated Section 10(b), Defendants' Motion to Dismiss Count I of the Amended Complaint is GRANTED. Violations of Section 20(a) (Count Two) Because Plaintiff fails to state a predicate claim for primary liability under Section 10(b), Plaintiff's claim under Section 20(a) also fails. Accordingly, Defendants' Motion to Dismiss Count II of the Amended Complaint is granted. The full-text copy of the District Court's August 29, 2019 Order is available at https://tinyurl.com/y3tpumk4 from Leagle.com. THOMAS W. LUCZAK, Lead Plaintiff, Plaintiff, represented by Frank S. Hedin -- fhedin@hedinhall.com -- Hedin Hall LLP, Leigh Handelman Smollar -- lsmollar@pomlaw.com -- Pomerantz, LLP, pro hac vice, Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz, LLP, pro hac vice & Corey D. Holzer -- cholzer@holzerlaw.com -- Holzer & Holzer LLC, pro hac vice. NATIONAL BEVERAGE CORP., GEORGE R. BRACKEN & NICK A. CAPORELLA, Defendants, represented by Jeffrey T. Kucera -- jeffrey.kucera@klgates.com -- K&L Gates LLP, Amy J. Eldridge -- amy.eldridge@klgates.com -- K&L Gates, LLP, pro hac vice, Daniel Arthur Case -- dan.casey@klgates.com -- K&L Gates LLP, Lacey A. Gehm -- Lacey.Gehm@klgates.com -- K&L Gates, LLP, pro hac vice & Nicholas G. Terris -- nicholas.hanna@klgates.com -- K&L Gates, LLP, pro hac vice. NAVISTAR INT'L: Case Management Conference Sought in "Brown" ------------------------------------------------------------ Navistar International Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 4, 2019, for the quarterly period ended July 31, 2019, that the plaintiff in a Manitoba putative class action lawsuit captioned Vern Brown v. Navistar International Corporation and Navistar Canada, Inc. served an expert report and wrote to the court seeking a case management conference. On June 24, 2014, N&C Transportation Ltd. ("N&C") filed a putative class action lawsuit against Navistar International Corporation (NIC), Navistar, Inc. (NI), Navistar Canada Inc., and Harbour International Trucks in Canada in the Supreme Court of British Columbia (the "N&C Action"). Subsequently, seven additional, similar putative class action lawsuits have been filed in Canada (together with the N&C Action, the "Canadian Actions"). From June 13-17, 2016, the court conducted a certification hearing in the N&C Action. On November 16, 2016, the court certified a Canada-wide class comprised of persons who purchased heavy-duty trucks equipped with Advanced EGR MaxxForce 11, MaxxForce 13, and MaxxForce 15 engines designed to meet 2010 Environmental Protection Energy (EPA) regulations. The court in the N&C Action denied certification to persons who operated but did not buy the trucks in question. On November 2, 2017, NIC, NI, Navistar Canada Inc. and Harbour International Trucks filed a notice of appeal. On December 8, 2017, the plaintiff filed a notice of cross-appeal. Both the appeal and cross-appeal were heard by the British Columbia Court of Appeal on February 9, 2018. On August 1, 2018, the appellate court denied the company's appeal and granted, in part, N&C's cross-appeal and as such certified three narrow issues on whether misrepresentations were made in Navistar's advertising materials. On September 28, 2018, Navistar sought leave to appeal the certification decision to the Supreme Court of Canada, but leave was denied on March 28, 2019. The next step will be an attendance before the case management judge regarding the details of the notice of certification to be given to the class. No date for this attendance has been set. On June 5, 2017, a hearing was held in the Quebec putative class action lawsuit captioned 4037308 Canada Inc. v. Navistar Canada Inc., NI, and NIC. At that hearing, the court ruled on certain motions regarding evidence related to certification but deferred a ruling on plaintiff's proposed amendment to narrow the proposed class to Quebec-only purchasers and lessees of model year 2010-13 vehicles containing MaxxForce 11, 13, and 15 liter engines. On November 23, 2017, the company filed a motion to stay the Quebec case until the British Columbia Court of Appeal rules on the certification order in the N&C Action. The stay motion was granted on December 7, 2017. The decision of the British Columbia Court of Appeal was provided to the Quebec court. On September 6, 2018, the stay was extended until the Supreme Court of Canada decides the application for leave to appeal in the N&C Action. The stay has since been removed, but no hearing date or certification schedule has been set. In the Manitoba putative class action lawsuit captioned Vern Brown v. Navistar International Corporation and Navistar Canada, Inc., the court held a case management conference on June 29, 2018, after the plaintiff failed to file a complete certification record by the previously court-ordered due date. The plaintiff advised that it expected to file its remaining certification affidavits by August 31, 2018, and the court suspended certification scheduling in the interim. The plaintiff filed an additional affidavit on July 5, 2018. On September 5, 2018, the court adjourned the certification application indefinitely to allow the plaintiff to obtain an expert report. On July 30, 2019, the plaintiff served an expert report and wrote to the court seeking a case management conference. There are no certification or other hearings scheduled in any of the other Canadian Actions at this time. Navistar International Corporation, through its subsidiaries, manufactures and sells commercial and military trucks, diesel engines, school and commercial buses, and service parts for trucks and diesel engines worldwide. Navistar International Corporation was founded in 1902 and is headquartered in Lisle, Illinois. NAVISTAR INT'L: Court Sets Nov. 13 Settlement Fairness Hearing -------------------------------------------------------------- Navistar International Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 4, 2019, for the quarterly period ended July 31, 2019, that a hearing to consider the fairness of the settlement in the U.S. EGR Warranty-related lawsuits is set for November 13, 2019. On July 7, 2014, Par 4 Transport, LLC filed a putative class action lawsuit against NI in the United States District Court for the Northern District of Illinois (the "Par 4 Action"). Subsequently, seventeen additional putative class action lawsuits were filed in various United States district courts, including the Northern District of Illinois, the Eastern District of Wisconsin, the Southern District of Florida, the Middle District of Pennsylvania, the Southern District of Texas, the Western District of Kentucky, the District of Minnesota, the Northern District of Alabama, and the District of New Jersey (together with the Par 4 Action, the "U.S. Actions"). Some of the U.S. Actions name both Navistar International Corporation (NIC) and Navistar, Inc. (NI), and allege matters substantially similar to the Canadian Actions. More specifically, one or more of the Canadian Actions and the U.S. Actions (collectively, the "EGR Class Actions") seek to certify a class of persons or entities in Canada or the United States who purchased and/or leased a ProStar or other Navistar vehicle equipped with a model year 2008-2013 MaxxForce Advanced EGR engine. In substance, the EGR Class Actions allege that the MaxxForce Advanced EGR engines are defective and that the Company and NI failed to disclose and correct the alleged defect. The EGR Class Actions assert claims based on theories of contract, breach of warranty, consumer fraud, unfair competition, misrepresentation and negligence. The EGR Class Actions seek relief in the form of monetary damages, punitive damages, declaratory relief, interest, fees, and costs. On October 3, 2014, NIC and NI filed a motion before the United States Judicial Panel on Multidistrict Litigation (the "MDL Panel") seeking to transfer and consolidate before Judge Joan B. Gottschall of the United States District Court for the Northern District of Illinois all of the then-pending U.S. Actions, as well as certain non-class action MaxxForce Advanced EGR engine lawsuits pending in various federal district courts. On December 17, 2014, Navistar's motion to consolidate the U.S. Actions and certain other non-class action lawsuits was granted. The MDL Panel issued an order consolidating all of the U.S. Actions that were pending on the date of Navistar’s motion before Judge Gottschall in the United States District Court for the Northern District of Illinois (the "MDL Action"). The MDL Panel also consolidated into the MDL Action certain non-class action MaxxForce Advanced EGR engine lawsuits pending in the various federal district courts. Non-class federal lawsuits presenting pre-trial issues similar to the MDL Action continue to be transferred to the MDL Action. Approximately 28 such actions are currently pending. On March 5, 2015, Judge Gottschall entered an order in the MDL Action appointing interim lead counsel and interim liaison counsel for the plaintiffs. On May 11, 2015, lead counsel for the plaintiffs filed a First Master Consolidated Class Action Complaint. The parties to the MDL Action exchanged initial disclosures on May 29, 2015. The Company answered the Consolidated Complaint on July 13, 2015. On September 22, 2016, lead counsel for the plaintiffs filed a First Amended Consolidated Class Action Complaint. The Amended Consolidated Complaint added 25 additional named plaintiffs. NI and NIC answered the Amended Consolidated Complaint on October 20, 2016. On October 13, 2017, lead counsel for the plaintiffs filed a Motion for Leave to File a Second Amended Consolidated Class Action Complaint, as well as a Motion for Voluntary Dismissal of Claims without Prejudice relating to 15 previously named plaintiffs. On January 4, 2018, Judge Gottschall granted both motions. On January 9, 2018, the plaintiffs filed a Second Amended Consolidated Class Action Complaint. The Second Amended Consolidated Class Action Complaint removed 15 named plaintiffs and substituted in 8 new named plaintiffs. Three class action cases were dismissed without prejudice because there were no longer any remaining plaintiffs in those cases. On May 30, 2019, the court granted plaintiffs leave to file a Third Amended Consolidated Class Action Complaint. The Third Amended Consolidated Class Action Complaint removed 2 named plaintiffs. NI and NIC answered the Third Amended Consolidated Class Action Complaint on June 16, 2019. On August 16, 2018, Judge Gottschall entered a minute order setting a status hearing for September 26, 2018 in light of the ongoing settlement efforts of the parties. During the September 26, 2018 status hearing, the parties advised the court that additional settlement discussions were scheduled. Accordingly, on September 27, 2018 Judge Gottschall entered a minute order extending class plaintiffs' deadline to file a motion for class certification and supporting expert reports until November 16, 2018. Since September 2018, Judge Gottschall has extended the deadlines for class certification briefing several times to allow for settlement discussions. On May 28, 2019, NIC and NI entered into a Stipulation and Agreement of Settlement (the "Settlement Agreement") with certain named plaintiffs to settle the class actions consolidated in the U.S. Actions. On May 28, 2019, plaintiffs submitted the Settlement Agreement to the court for preliminary approval. The Settlement Agreement class consists of entities and natural persons who owned or leased a 2011-2014 model year vehicle equipped with a MaxxForce 11 or 13 liter engine certified to meet EPA 2010 emissions standards without selective catalytic reduction technology, provided that vehicle was purchased or leased in the U.S. Pursuant to the Settlement Agreement, among other things, (1) the parties will establish a non-reversionary common fund consisting of cash (the "Cash Fund") and rebates (the "Rebate Fund") with a total value of $135 million (the “Settlement Fund”); (2) NIC and NI will contribute $85 million to the Cash Fund, which will be used to pay all settlement fees and expenses, service awards, attorneys' fees and costs, and cash payments to members of the settlement class; (3) NI will commit to make available rebates with a face value in the aggregate of $50 million to the Rebate Fund; and (4) the settlement class will release NIC and NI and their affiliates from all claims and potential claims arising from or related to the allegations in the U. S. Actions, except for claims for personal injury or damage to third-party property. The Settlement Agreement further provides that dollars or value remaining in either the Cash Fund or the Rebate Fund after claims are processed will be used to pay approved claims from the other fund if the other fund is oversubscribed (the "Waterfall"). Any Waterfall from the Rebate Fund to the Cash Fund is capped at $35 million. Finally, the Settlement Agreement states that NIC and NI deny all claims in the U.S. Actions, deny wrongdoing, liability or damage of any kind, and deny that NIC and NI acted improperly or wrongfully in any way. The Settlement Agreement is subject to final approval by the court, including possible appeals. On June 12, 2019, the court preliminarily approved the settlement. Members of the class have been provided notice of the Settlement Agreement and an opportunity to object or opt out. Any members of the class who opt out will not receive any benefit from the Settlement Agreement or be bound by it. The court scheduled a fairness hearing for November 13, 2019 at which the court will determine whether the Settlement Agreement should be finally approved and whether the proposed Final Order and Judgment should be entered. Depending on opt out numbers and certain oversubscription numbers, NIC and NI or lead counsel for the class may have the option to withdraw from the Settlement Agreement. Navistar International Corporation, through its subsidiaries, manufactures and sells commercial and military trucks, diesel engines, school and commercial buses, and service parts for trucks and diesel engines worldwide. Navistar International Corporation was founded in 1902 and is headquartered in Lisle, Illinois. NEKTAR THERAPEUTICS: Kessler Topaz Files Securities Class Suit -------------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP announces that a securities fraud class action lawsuit has been filed in the United States District Court for the Northern District of California against Nektar Therapeutics (NASDAQ: NKTR) on behalf of those who purchased or otherwise acquired Nektar securities between February 15, 2019 and August 8, 2019 , inclusive (the 'Class Period'). Important Deadline: Investors who purchased Nektar securities during the Class Period may, no later than October 18, 2019, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this litigation please visitwww.ktmc.com/nektar-therapeutics-nktr-securities-class-action According to the complaint, Nektar is a biopharmaceutical company that develops medicines in areas of high unmet medical need, including therapies for cancer, autoimmune disease, and chronic pain. Nektar's lead immuno-oncology candidate is NKTR-214, also known as bempegaldesleukin or bempeg; it is a biologic substance developed to stimulate proliferation and growth of tumor-killing immune cells in the tumor-micro-environment. In the PIVOT-02 clinical study, Nektar evaluates the benefit, safety, and tolerability of combining NKTR-214 with Opdivo, an antibody, in collaboration with Bristol-Meyers Squibb Company. The Class Period commences on February 15, 2019. On that day, Nektar presented clinical data from the PIVOT-02 Study at the 2019 ASCO Genitourinary Cancers Symposium. According to the complaint, on August 8, 2019, after the market closed, Nektar revealed that a manufacturing issue caused two batches of bempegaldesleukin to differ from the other 20 batches that were produced. Moreover, these batches resulted in variable clinical benefit than other batches used in Nektar's PIVOT-02 clinical trial. Following this news, Nektar's share price fell $8.65, or nearly 30%, to close at $20.92 per share on August 9, 2019. The complaint alleges that, throughout the Class Period, the defendants failed to disclose to investors that: (1) Nektar did not comply with current good manufacturing practices; (2) as a result, batches of NKTR-214 were not produced consistently and differed meaningfully; (3) clinical results from PIVOT-02 differed based on the batch of NKTR-214 used in the study; (4) as a result, the PIVOT-02 study did not produce statistically significant results to support a finding of clinical benefit; and (6) as a result of the foregoing, the defendants' positive statements about Nektar's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you wish to discuss this securities fraud class action lawsuit or have any questions concerning this notice or your rights or interests with respect to this litigation, please contact Kessler Topaz Meltzer & Check (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (844) 887-9500 (toll free) or (610) 667–7706, or via e-mail Nektar investors may, no later than October 18, 2019 , seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. For more information about Kessler Topaz Meltzer & Check, please visitwww.ktmc.com . Contact: James Maro, Jr., Esq. Adrienne Bell, Esq. Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Tel: (844) 887-9500 (toll free), (610) 667-7706 E-mail: jmaro@ktmc.com abell@ktmc.com [GN] NEW YORK: Settlement Reached in Marijuana Crimes Class Suit ----------------------------------------------------------- Ben Chapman, writing for The Wall Street Journal, reports that roughly 350 people convicted of misdemeanor marijuana crimes in Manhattan will have their offenses hidden from public criminal records under a new class-action settlement, Manhattan officials said. Manhattan District Attorney Cyrus Vance Jr. and attorneys from nonprofit and pro-bono legal-services groups, including the Legal Aid Society, collaborated for nearly a year on the petition to seal the criminal records of some marijuana offenses, such as smoking in public or possessing less than 25 grams of the drug. [GN] NISSAN NORTH: 9th Cir. Flips Denial of Nguyen Class Certification ----------------------------------------------------------------- In the case, HUU NGUYEN, individually, and on behalf of a class of similarly situated individuals, Plaintiff-Appellant, v. NISSAN NORTH AMERICA, INC., a California Corporation, Defendant-Appellee, Case No. 18-16344 (9th Cir.), Judge Milan D. Smith, Jr. of the U.S. Court of Appeals for the Ninth Circuit reversed the district court's denial of the Plaintiff's motion for class certification. When Plaintiff Nguyen purchased a new 2012 Nissan 370Z as a college graduation present for his son, he was unaware of what he alleges was a potentially catastrophic design defect hidden in the vehicle's hydraulic clutch system. After the clutch purportedly malfunctioned -- and the Plaintiff spent more than $700 replacing it -- he filed a putative class action against Defendant Nissan, asserting causes of action under state and federal warranty laws. The Plaintiff's first amended complaint alleged five causes of action against Nissan: (1) violations of California's Consumers Legal Remedies Act ("CLRA"); (2) violations of California's Unfair Competition Law ("UCL"); (3) breach of implied warranty pursuant to the Song-Beverly Consumer Warranty Act; (4) breach of implied warranty pursuant to the Magnuson-Moss Warranty Act; and (5) unjust enrichment. The district court granted in part Nissan's motion to dismiss, removing the Plaintiff's UCL and unjust enrichment claims, and his request for injunctive relief under the CLRA. The Plaintiff moved for class certification pursuant to Federal Rule of Civil Procedure 23(b)(3) (or, in the alternative, under Rule 23(c)(4) for liability only), seeking to certify (1) a class of all individuals in California who purchased or leased, from an authorized Nissan dealer, a new Nissan vehicle equipped with a FS6R31A manual transmission; and (2) a CLRA subclass of all members of the Class who are 'consumers' within the meaning of California Civil Code Section 1761(d). Although Nissan opposed class certification for various reasons -- including that the Plaintiff was not an adequate class representative, that individual issues predominated due to the varying types of automobiles included in the Class Vehicles, and that Nissan's purported knowledge of the defect changed over the course of the class period -- major point of dispute, and the issue on which the district court's eventual order hinged, concerned the Plaintiff's damages model. According to the Plaintiff, his "damages model is based on the economic principle of benefit-of-the-bargain and is consistent with [his] theory of liability." Assuming that the class members would have either paid less than sticker price or not purchased a defective vehicle at all had the nature of the clutch system been divulged by Nissan, the Plaintiff seeks "to recover the difference in value between the non-defective vehicles Nissan promised and the defective vehicles that were delivered based on the cost to replace the composite CSC with one that is solid cast-aluminum." Nissan challenges this proposed damages model, citing the report of an expert who, in its words, rejected the notion that average-cost-of-repair represented the amount that informed consumers would discount the price of the Class Vehicles. The district court agreed with Nissan and denied the Plaintiff's motion for class certification. It concluded that the Plaintiff failed to satisfy the predominance requirement of Rule 23(b)(3), based on what the court viewed as a "problematic" damages model. The court reasoned that, under the Plaintiff's proposed model, if a class member "derived value from the defective CSC -- be it by selling it, repurposing it, or simply driving a ways before replacing it—the class member will have received the full benefit of the bargain and the monetary value of the defective part. That is not an appropriate measure of damages." Because the record contained no evidence that the defective clutch was valueless—but did contain evidence to the contrary, since the Plaintiff's vehicle was driven for approximately 26,629 miles before the original CSC malfunctioned -- the court rejected the Plaintiff's damages model as being an improper measure of the benefit of the bargain. Therefore, the district court concluded that the Plaintiff could not satisfy the predominance requirement of Rule 23(b)(3). The Court subsequently granted the Plaintiff's timely petition for permission to appeal the denial of class certification pursuant to Rule 23(f). The central issue before the Court is whether the Plaintiff's proposed damages model -- specifically, a benefit-of-the-bargain model as measured by the average cost of replacing the allegedly defective clutch system -- satisfies Rule 23(b)(3)'s predominance requirement. Judge Smith is satisfied that the Plaintiff's proposed benefit-of-the-bargain measure of damages is both cognizable under the CLRA and a reasonable basis of computation. Nissan has cited no authority, and the Court is not aware of any, precluding the Plaintiff's theory of recovery under the CLRA. Also, the Plaintiff's damages model is similarly cognizable under the Song-Beverly Act, which provides that the measure of the buyer's damages in an action will include the rights of replacement or reimbursement. Under the California law the remedies for breach of the implied warranty include 'benefit of the bargain' damages. Having determined that recovery based on the benefit of the bargain is cognizable under the Plaintiff's causes of action, the Judge must now determine whether this damages model flows from his theory of liability. The Judge finds the Plaintiff does not seek damages for the faulty performance of the clutch system; such a theory of liability would, pursuant to Cardinal Health, Hicks, and the district court's analysis, require individualized analysis that might defeat predominance. Instead, the Plaintiff's theory is that the allegedly defective clutch is itself the injury, regardless of whether the faulty clutch caused performance issues. Accordingly, Nissan's argument is unavailing. Judge Smith concludes that the Plaintiff's theory of liability -- that Nissan's manufacture and concealment of a defective clutch system injured the class members at the time of sale -- is consistent with his proposed recovery based on the benefit of the bargain. He concludes that the district court abused its discretion when it denied class certification based on a misconception of the Plaintiff's legal theory. He therefore reversed the district court's denial of class certification, and remanded for further proceedings. A full-text copy of the Court's July 26, 2019 Opinion is available at https://is.gd/pEHhYc from Leagle.com. Ryan Wu -- Ryan.Wu@CapstoneLawyers.com -- (argued) and John E. Stobart -- john.stobart@capstonelawyers.com -- Capstone Law APC, Los Angeles, California, for Plaintiff-Appellant. Alan J. Lazarus -- alan.lazarus@dbr.com -- (argued) and Matthew J. Adler -- matthew.adler@dbr.com -- Drinker Biddle & Reath LLP, San Francisco, California; Zoë K. Wilhelm and Adam J. Thurston, Drinker Biddle & Reath LLP, Los Angeles, California; Sherman Vance Wittie -- vance.wittie@dbr.com -- and E. Paul Cauley Jr., Drinker Biddle & Reath LLP, Dallas, Texas; for Defendant-Appellee. Kathy A. Wisniewski -- kwisniewski@thompsoncoburn.com -- and Stephen A. D'Aunoy, Thompson Coburn LLP, St. Louis, Missouri, for Amicus Curiae FCA US LLC. Philip S. Goldberg -- pgoldberg@shb.com -- Shook Hardy & Bacon LLP, Washington, D.C.; Andrew J. Trask, Shook Hardy & Bacon LLP, San Francisco, California; for Amici Curiae Alliance of Automobile Manufacturers and Association of Global Automakers. Ashley C. Parrish, Jesse Snyder, and Jacqueline Glassman, King & Spalding LLP, Washington, D.C.; Jonathan D. Urick and Steven P. Lehotsky, U.S. Chamber of Litigation Center, Washington, D.C.; Leland P. Frost and Peter C. Tolsdorf, Manufacturers' Center for Legal Action, Washington, D.C.; for Amici Curiae Chamber of Commerce of the United States and National Association of Manufacturers. NORTH CAROLINA MUTUAL: Court Narrows Claims in McClendon Suit ------------------------------------------------------------- In the case, MARIETTA McCLENDON, on behalf of herself and all others similarly situated, Plaintiff, v. NORTH CAROLINA MUTUAL LIFE INSURANCE COMPANY, Defendant, Case No. 3:17-cv-00404 (M.D. Tenn.), Judge William L. Campbell, Jr. of the U.S. District Court for the Middle District of Tennessee, Nashville Division, (i) granted in part and denied in part the Defendant's motions for summary judgment; (ii) granted the Defendant's motion to dismiss the Alabama Deceptive Trade Practices Act ("ADTPA") and the North Carolina Unfair and Deceptive Trade Practices Act ("NCUDTPA") claims; and (iii) granted in part and denied in part the Plaintiff's Motion for Partial Summary Judgment. In 1984, the Plaintiff's mother purchased a $10,000 whole life insurance policy from Protective Industrial Insurance Co. of Alabama to insure the life of her brother. The monthly premium for the policy was $17.06, which consisted of $15.46 for the preferred whole life premium that was to be paid for the duration of the policy, $0.50 per month for a waiver of premium rider benefit, and $1.10 per month for an accidental death benefit rider. The policy riders had 27-year terms. In 1995, the Plaintiff's mother took out a loan against the policy in the amount of $1,533.90 at an interest rate of 5%. The parties dispute the amount and frequency of payments made toward the loan. The Defendant claims only two payments were made -- $160 in 2004 and $400 in 2006. The Plaintiff claims additional payments were made and that the policy loan was entirely paid off. In 2009, the Defendant acquired the Policy following the insolvency of the issuing company. It continued to charge premiums for the policy riders after the rider term expired in 2011. From June 2011 to March 2016, the Defendant charged an additional $1.60 per month for policy riders covering Waiver of Premium and Accidental Death. The payments related to the policy riders during that period totaled $92.80. On March 16, 2016, the Plaintiff's brother passed away. At the time of his death, the Plaintiff was the sole beneficiary on the life insurance policy. Following the death of her brother, the Plaintiff assigned the proceeds of the Policy to Roberts Funeral Services. The document included a power of attorney appointing Roberts Funeral Services attorney in fact to endorse her name on the check representing the assigned proceeds. The Defendant calculated that the benefit due on the policy was $4,896.46, representing the value of the Policy, minus the principal and 6% interest, and sent that amount to the funeral home on May 4, 2016. The Defendant corrected the interest calculation when it received loan documents specifying the correct interest amount was 5% and issued a check to the Plaintiff in the amount of $299.36, representing the 1% difference in interest. The Plaintiff was not satisfied with the explanation of the calculation and did not cash the check. Alleging that similar problems affected thousands of policy holders, the Plaintiff filed a class action complaint against the Defendant on behalf of herself and all others similarly situated. The Plaintiff's Second Amended Complaint alleges breach of contract, unjust enrichment, violation of the ADTPA, and violation of the NCUDTPA. Pending before the Court are three motions by the Defendant seeking dismissal of the claims in the Plaintiff's Second Amended Complaint and the Plaintiff's Motion for Partial Summary Judgment. Prior to the Plaintiff filing the Second Amended Complaint, the Defendant moved for summary judgment on the Plaintiff's claims of breach of contract, violation of the NCUDTPA, and unjust enrichment. The Plaintiff's Second Amended Complaint added a claim for violation of the ADTPA. The Defendant moved to dismiss the new ADPTA claim and the NCUDTPA claim. It then filed a Supplemental Motion for Summary Judgment. The Plaintiff filed her own Motion for Partial Summary Judgment seeking summary judgment on her claims for breach of contract and violations of the ADTPA. Tennessee has adopted the "most significant relationship" test of the Restatement (Second) Conflict of Laws to choice-of-law questions for tort claims. The most significant relationship is determined by examining: (1) the place of the alleged injury; (2) the place where the injurious conduct occurred; (3) the domicile and/or place of business of the parties involved; and (4) the place where the relationship of the parties is centered Judge Campbell gives significant weight to the fourth factor and notes that the parties' relationship is centered in Alabama. The circumstances of the case indicate that Alabama bears the most significant relationship to the parties and events that brought about the unfair trade practices claim in this action. Therefore, the Judge will apply the Alabama unfair trade practices law. Having determined that Alabama law governs the deceptive trade practices claim, the Judge turns to the Plaintiff's claims under the ADTPA. The Defendant argues that the Plaintiff's ADTPA claim fails to state a claim and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiff argues that not only should the claim survive, but the Court should grant partial summary judgment on the ADTPA claim because the facts establishing an ADTPA violation are undisputed. The Judge holds that whether or not the provision of life insurance loans constitutes the "business of insurance," the Alabama Insurance Code contains specific regulations related to life insurance loans, such as the one at issue in the case. Life insurance loans are, therefore, an activity which is subject to the provisions of the Alabama Insurance Code exempt from the ADTPA. There is no ambiguity in the statute requiring the Court to consider whether the provision of loans constitutes the "business of insurance." Moreover, even absent the exclusion for activities regulated by the Insurance Code, loans are not goods or services under the ADTPA. Having determined the Plaintiff's claim under the ADTPA act is foreclosed by the exception for persons and activities subject to the provisions of the Alabama Insurance Code, the Judge does not consider the Defendant's additional arguments related to the Plaintiff's ADTPA claim. The Defendant argues the existence of a valid contract forecloses the Plaintiff's claim for unjust enrichment. The Plaintiff responds that she can plead unjust enrichment in the alternative and that her claim for unjust enrichment should only be dismissed if she prevails on the claim for breach of contract. The Judge holds that the Plaintiff has brought a claim for breach of contract and neither party contests the existence or validity of the insurance policy or loan agreement. Accordingly, the Plaintiff cannot also bring a claim for unjust enrichment. Her dispute sounds in contract. Finally, as for breach of contract, the Judge finds that (i) nothing in the assignment purports to assign the Policy itself or all rights under the Policy; (ii) under Alabama law, life insurance policies are incontestable after a maximum of two years, even if the application contains material misstatements; (iii) the Plaintiff's claim that payments made on the loan were not applied to the loan balance survives the six-year statute of limitations only to the extent the payments were made after March 2011; (iv) summary judgment on the part of the breach of contract claim will be granted in the Plaintiff's favor with regard to interest calculations made within the six-year statute of limitations; (v) on the issue of payments related to the policy riders, the Plaintiff is not entitled to summary judgment; and (vi) the Plaintiff has failed to establish that there is no dispute of material fact as to the application of loan payments. For the reasons stated, Judge Campbel dismissed the Plaintiff's claim under the NCUDTPA, under the ADTPA, and the claim for unjust enrichment. The Judge granted the Plaintiff's motion for summary judgment as to the breach of contract with regard to the calculation of interest within the period of the statute of limitations. He denied with regard to the policy riders and with regard to the application of loan payments. A full-text copy of the Court's July 26, 2019 Memorandum is available at https://is.gd/w3rdEL from Leagle.com. Marietta McClendon, Plaintiff, represented by Annika K. Martin -- akmartin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP, Avery S. Halfon, Lieff, Cabraser, Heimann & Bernstein, LLP, J. Bradley Ponder -- brad@montgomeryponder.com -- Montgomery Ponder, LLC, Luke Montgomery -- luke@montgomeryponder.com -- Montgomery Ponder, LLC & Mark P. Chalos -- mchalos@lchb.com -- Lieff, Cabraser, Heimann & Bernstein, LLP. North Carolina Mutual Life Insurance Company, Defendant, represented by Maria Q. Campbell -- mcampbell@bonelaw.com -- Bone, McAllester & Norton, PLLC, Raquel L. Bellamy -- rbellamy@bonelaw.com -- Bone, McAllester & Norton, PLLC, Sean C. Kirk -- skirk@bonelaw.com -- Bone, McAllester & Norton, PLLC, Shea T. Hasenauer -- shasenauer@bonelaw.com -- Bone, McAllester & Norton, PLLC & Stephen J. Zralek -- szralek@bonelaw.com -- Bone, McAllester & Norton, PLLC. NTW LLC: Wall Sues Over Unpaid Overtime Wages --------------------------------------------- JEREMY WALL, individually and on behalf of all others similarly situated, Plaintiff, v. NTW, LLC, d/b/a NTB - NATIONAL TIRE & BATTERY, TBC - TIRE & BATTERY CORPORATION, d/b/a TBC CORPORATION, and TBC RETAIL GROUP, INC. Defendants, Case No. 1:19-cv-05826 (N.D. Ill., Aug. 29, 2019) is a class and collective action brought on behalf of current and former employees who were not paid all wages owed to them due to Defendants' failure to pay them one and one-half times their regular rate of pay for hours worked in excess of 40 per week. The Defendants failed to properly calculate the overtime rate at which they compensated Plaintiff and other putative FLSA collection action members and IMWL class action members for their hours worked in excess of 40 in individual workweeks, says the complaint. The resulting underpayments constitute violations of the Illinois Minimum Wage Law and the Fair Labor Standards Act. Plaintiff has been employed as a Sales Associate/Tire Professional for Defendants from March 2012 through the present. NTW is a Delaware corporation authorized to do business in Illinois. It operates various retail automotive maintenance centers including under the name NTB Tire and Service Centers, nationwide including but not limited to in Cook County, Illinois.[BN] The Plaintiffs are represented by: Alejandro Caffarelli, Esq. Lorrie T. Peeters, Esq. Madeline K. Engel, Esq. Caffarelli & Associates Ltd. 224 S. Michigan Ave., Ste. 300 Chicago, IL 60604 Phone: (312) 763-6880 OASMIA PHARMACEUTICAL: Pawar Law Files Class Action Lawsuit ----------------------------------------------------------- Pawar Law Group announces that a class action lawsuit has been filed on behalf of shareholders who purchased shares of Oasmia Pharmaceutical AB (NASDAQ: OASM) from October 23, 2015 through July 9, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Oasmia investors under the federal securities laws. To join the class action, go to http://pawarlawgroup.com/cases/oasmia-pharmaceutical-ab/or call Vik Pawar, Esq. toll-free at 888-589-9804 or email info@pawarlawgroup.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Oasmia engaged in improper related-party transactions with Alceco International S.A. and Ardenia Investment LTD, which were controlled by Defendant Aleksov and his former father-in-law; (2) due to those transactions, millions of Swedish kronor were not accounted for in Oasmia's books; (3) transactions concerning Oasmia's patents were also "carried out in a doubtful way;" and (4) as a result of the aforementioned misconduct, defendants' statements about Oasmia's business, operations, and prospects were materially false and/or misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than September 27, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. No class has been certified. Until a class is certified, you are not represented by counsel unless you hire one. You may hire counsel of your choice. You may also do nothing at this time and be an absent member of the class. Your ability to share in any future recovery is not dependent upon being a lead plaintiff. Pawar Law Group represents investors from around the world. Contact: Vik Pawar, Esq. Pawar Law Group 20 Vesey Street, Suite 1210 New York, NY 10007 Tel: (917) 261-2277 Fax: (212) 571-0938 Email: info@pawarlawgroup.com vik@pawarlawgroup.com [GN] ON DECK CAPITAL: Court Denies Dismissal on TCPA Suit ---------------------------------------------------- The United States District Court for the Western District of Virginia, Charlottesville Division, denied Defendant On Deck Capital, Inc.'s motion for summary judgment pursuant to Fed. R. Civ. P. 56(a) in the case captioned CHRISTOPHER MORGAN, Plaintiff, v. ON DECK CAPITAL, INC., Defendants. Case No. 3:17-CV-00045. (W.D. Va.). Plaintiff Christopher Morgan brought this putative class action under the TCPA, alleging that On Deck placed an unsolicited call to him via an automatic telephone dialing system (ATDS), a practice prohibited by the TCPA. The sole issue raised by On Deck's motion for summary judgment is whether Plaintiff has raised sufficient evidence to show a genuine dispute that On Deck called Plaintiff using an automatic telephone dialing system (ATDS), defined under the TCPA as equipment with the capacity to: (A) store or produce telephone numbers to be called, using a random or sequential number generator and (B) dial such numbers. There is no dispute that the specific call in question was placed on a telephone in Manual Touch Mode. In this mode, Salesforce On Deck's account record database that stores telephone numbers automatically populates an agent's next phone number, the agent must manually key in the populated number, and the call will not be initiated unless the phone number is correctly input by the agent and the agent clicks Dial. There is no dispute that the call to Plaintiff came from On Deck's Sales Department, and that the Sales Department has access to a domain that includes only the Manual Touch Mode and the Preview Mode, which operates similarly to Manual Touch Mode by presenting an agent with a prospective customer's file, populating the number once the agent clicks Call Customer, and then only making the call once the agent manually keys in the number or clicks each digit using a mouse. There is also no dispute that two of On Deck's other departments collections and customer service use the Five9 Virtual Contact Center (VCC) domain, which includes dialing modes such as the Power Mode, Progressive Mode and Predictive Mode that do have the capacity to store and produce numbers using a random or sequential number generator and then automatically dial such numbers (i.e., almost certainly would qualify as ATDSs). In essence, then, the parties do not dispute that the call made to Plaintiff was made in a dialing mode that, in and of itself, would not qualify as an ATDS, since agents using Manual Touch Mode are required to input the number and click Dial. On Deck presents evidence that the VCC and Manual Touch Mode telephones use separate hardware, separate software, a separate server, separate settings, and are administered separately, and therefore constitute separate systems. On Deck also presents evidence that at the time of the June 2017 call to Plaintiff, members of the Sales Department in the New York office from which the call was placed sat in their own separate workspace and were not able to log into domains other than the Manual Touch Mode domain. Plaintiff in turn offers several pieces of evidence to present its characterization of Manual Touch Mode as part of an overall system that includes the capacity for automatic dialing. First, Plaintiff points to Snyder's proposed expert testimony that Manual Touch Mode is "simply a software function within the overall dialing system equipment used by On Deck, and that this overall system includes other modal software functions such as the Power and Progressive modes that do have the capacity for automatic dialing. Second, Plaintiff points to deposition testimony providing that regardless of department, each OnDeck agent is equipped with nearly identical hardware, a laptop, two monitors, mouse, keyboard, and headset and that each laptop is loaded with the Five9 dialer software, a program called Salesforce and a program called the `Five9 Plus Adapter for Salesforce. Finally, Plaintiff points to deposition testimony that a select few On Deck employees with logins to multiple modules can quickly and easily switch between domains (for instance, from Manual Touch Mode into another mode that allows automatic dialing). Again, Plaintiff does not contend that this was how he was called, nor does Plaintiff need to contend as much. But Plaintiff's evidence does establish the following: 1) an On Deck agent called Plaintiff from a workstation equipped with Salesforce, the Five9 Plus Adapter for Salesforce, and Five9's Manuel Touch Mode 2) an On Deck employee with the correct login could access other modules in the Five9 ecosystem from that workstation 3) among these are modules with the capacity to store and produce numbers using a random or sequential number generator and then automatically dial such numbers; and that these various modules together constitute a single system. Thus, because a genuine dispute of fact remains in this litigation, Defendant is not entitled to summary judgment. The Court denies On Deck's motion for summary judgment. The full-text copy of the District Court's August 29, 2019 Memorandum Opinion is available at https://tinyurl.com/y6t7vcrl from Leagle.com. Christopher Morgan, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff, represented by Michael Brian Hissam -- mhissam@hfdrlaw.com -- Hissam Forman Donovan Ritchie PLLC & Ryan McCune Donovan, Hissam Forman Donovan Ritchie PLLC, Po Box 3983, Charleston, WV, 25339-3983, pro hac vice. On Deck Capital, Inc., Defendant, represented by John Curtis Lynch -- john.lynch@troutman.com -- TROUTMAN SANDERS LLP & David Michael Gettings -- dave.gettings@troutman.com -- Troutman Sanders LLP. OREGON: Seeks Dismissal of Foster Care Class Action --------------------------------------------------- Andy Thompson, writing for The Corvallis Advocate, reports that in April, advocacy groups A Better Childhood and Disability Rights Oregon filed suit against the Oregon Department of Human Services (DHS). The advocacy groups allege the Department re-victimizes children in its care, and has failed to address documented problems for over a decade. The state has now filed a motion seeking dismissal, asserting the state is already fixing its child welfare system, and that there is no need for a federal judge to oversee the state's decisions concerning foster care. An attempt to settle the matter stalled earlier this summer. In turn, a response was filed on Aug. 8, maintaining that the state has still "demonstrated that it is a constitutionally inadequate parent to the most vulnerable children in its care." The advocacy groups filing the class action suit seek to have the state's foster care system restructured, and believe a judge needs to provide oversight, citing the state's track record. According to OPB, Marcia Lowry, the executive director of A Better Childhood said, "At this point, given the history of what's happened to foster kids in Oregon, it's way too late for the state to say, 'Trust us.'" This is not the first time DHS has been the subject of a class-action lawsuit. In 2016, the department was sued in an effort to have them end the practice of placing foster kids in hotel rooms and state offices, which DHS finally agreed to phase out by 2020. The current suit was filed on behalf of 10 plaintiffs, all current Oregon foster children at the time, ranging from age 1 to 17. The suit is titled Wyatt B. v. Brown, and includes all Oregon foster children in the custody of DHS. Oregon Governor Kate Brown, then Oregon Department of Human Services Director Fariborz Pakseresht, Child Welfare Director Marilyn Jones, and DHS are all named as defendants. What happened to Corvallis 16-year-old, Naomi? When the suit was originally filed, we reported on the case of Naomi B. from Corvallis, then age 16. She spent five months shuffling between homeless shelters and institutions. Some of these institutions were actually jail facilities being repurposed for foster care placements. The suit alleges that Naomi entered foster care in November 2018 after twice ending up at Good Samaritan Hospital's emergency room threatening suicide. DHS concluded Naomi could not safely stay with her father, but they could not find her placement. So, with the consent of Naomi's father, she was placed in Jackson Street Youth Shelter for the first of what would be seven times. Then, in December, Naomi was sent to Creekside, a former police department headquarters that has been modified to care for foster children. On her first day, Naomi was attacked by another resident. The suit also alleges Naomi would then witness her roommate being placed in a locked cell, where she would then slit her wrists. After placement at another juvenile detention center and a failed placement at the home of a family friend, Naomi ended up going back to the Jackson Street homeless shelter. The suit alleges that up to this point, Naomi had still not received adequate counseling or therapy. Notably, the complaint asserts Naomi has no history of substance abuse. But, at the end of January Naomi was placed at the Youth Inspiration Program (YIP) in Klamath Falls. Dubbed an addiction treatment center, the locked facility is a repurposed juvenile detention facility with concrete floors and walls. According to the complaint, Naomi was not allowed outside the facility. Instead, she was escorted to a 30-by-30 foot concrete outdoor exercise yard, which was enclosed by a 20-foot-tall fence topped by barbed wire. The suit also alleges Naomi was only permitted one book in her rooms at a time, and all clothes and other personal items were secured in a separate locker room. The suit maintains Naomi's education suffered. She was only allowed one-and-a-half to two-and-a half hours of online education daily, exhausting the facility's educational offerings over the course of two months. She was given just one hour of therapy a week. Conversely, Naomi was required to attend mandatory daily group substance abuse and sex abuse therapy sessions, despite no problem with substance use, or history of sex abuse. OREGON'S OWN AUDIT ADMITS A MESS A report from the state this year revealed the number of available foster homes continues to decline and caseworker turnover remains high, says the filing. "These systemic problems are compounded by the fact that the State's Director of Child Welfare Programs resigned in June of this year and a permanent replacement has not been made," the filing reads. "The ship is sailing in the wrong direction and without a captain." STILL, OREGON'S OWN REPORTS CAN'T BE TRUSTED The advocacy groups also assert the state "continues to demonstrate that it cannot be trusted to assess its own performance." For instance, Oregon's Child Welfare issued a report stating children were excelling academically at a facility in Utah where most of Oregon's out-of-state foster youth were sent. However, Utah's own Department of Human Services sounded an alarm bell, and the facility is being closed amid reports of abuse and child neglect. The advocacy groups most recent filing expresses their belief that Oregon's foster care system cannot be trusted to evaluate itself, let alone fix its deficiencies without oversight. [GN] PERDUE FARMS: Workers File Anti-Trust Action Over Depressed Wages ----------------------------------------------------------------- Judy Jien, Kieo Jibidi and Elaisa Clement, on behalf of themselves and all others similarly situated, Plaintiffs, v. PERDUE FARMS, INC., PERDUE FOODS LLC, TYSON FOODS, INC., TYSON PREPARED FOODS, INC., THE HILLSHIRE BRANDS COMPANY, TYSON FRESH MEATS, INC., TYSON PROCESSING SERVICES, INC., TYSON REFRIGERATED MEATS, INC., KEYSTONE FOODS, LLC, EQUITY GROUP EUFAULA DIVISION, LLC, EQUITY GROUP - GEORGIA DIVISION, LLC, EQUITY GROUP KENTUCKY DIVISION, LLC, PILGRIM'S PRIDE CORPORATION, PILGRIM'S PRIDE CORPORATION OF WEST VIRGINIA, INC., SANDERSON FARMS, INC., SANDERSON FARMS, INC., SANDERSON FARMS, INC. (FOODS DIVISION), KOCH FOODS, INC., JCG FOODS OF ALABAMA, LLC, JCG FOODS OF GEORGIA, LLC, JCG INDUSTRIES, INC., KOCH FOODS LLC, KOCH FOODS OF ALABAMA, LLC, KOCH FOODS OF ASHLAND, LLC, KOCH FOODS OF GADSDEN, LLC, KOCH FOODS OF CUMMING, LLC, KOCH FOODS OF GAINESVILLE, LLC, KOCH FOODS OF MISSISSIPPI, LLC, WAYNE FARMS, LLC, WFSP FOODS, LLC, MOUNTAIRE FARMS, INC., MOUNTAIRE FARMS OF DELAWARE, INC., PECO FOODS, INC., SIMMONS FOODS, INC., SIMMONS PREPARED FOODS, INC., FIELDALE FARMS CORPORATION, GEORGE'S, INC., OZARK MOUNTAIN POULTRY, INC., GEORGE'S CHICKEN, LLC, GEORGE'S FOODS, LLC, GEORGE'S PROCESSING, INC., HOUSE OF RAEFORD FARMS, INC., HOUSE OF RAEFORD FARMS OF LOUISIANA, LLC, O.K. FOODS, INC., HARRISON POULTRY, INC., MAR-JAC POULTRY, INC., MAR-JAC POULTRY MS, LLC, MAR-JAC POULTRY AL, LLC, MAR-JAC POULTRY, LLC, MAR-JAC HOLDINGS, INC., AMICK FARMS, LLC, CASE FOODS, INC., CASE FARMS PROCESSING, INC., ALLEN HARIM FOODS, LLC, AGRI STATS, INC., and WEBBER, MENG, SAHL AND COMPANY, INC. d/b/a WMS & COMPANY, INC., Defendants, Case No. 1:19-cv-02521-ELH (D. Md., Aug. 30, 2019) is an antitrust action brought to enjoin Defendants from continuing their unlawful agreements and to recover actual, compensatory and treble damages, as well as costs, attorneys' fees and interest. For more than a decade, Defendants have conspired and combined to fix and depress the compensation paid to non-supervisory production and maintenance employees at chicken processing plants in violation of Section 1 of the Sherman Act, asserts the complaint. The Defendants consist of 18 chicken processors and many of their subsidiaries and affiliates ("Defendant Processors"), which process and produce more than 90 percent of the chicken sold in the United States, and two consulting companies that facilitate the exchange of competitively sensitive compensation data, Agri Stats, Inc. and Webber, Meng, Sahl and Company, Inc. d/b/a WMS and Company, Inc. Since January 1, 2009, Defendants have conspired to fix and depress the hourly wages and benefits paid to Class Members. Defendants have engaged in this unlawful conspiracy to maximize their profits by reducing labor costs, which have comprised a substantial share of each Defendant Processor's total operating costs, the complaint says. According to the complaint, numerous characteristics of the chicken processing industry have facilitated the formation and implementation of the conspiracy, including but not limited to, the following: (a) vertical integration; (b) high barriers to entry; (c) industry concentration; (d) fungibility of chicken processing plant workers; (e) inelastic labor supply; (f) numerous opportunities to collude; (g) personal relationships between executives at competing chicken processors; and (h) a history of government investigations into collusive actions. The intended and actual effect of Defendants' conspiracy to fix compensation has been to reduce and suppress the wages and benefits paid to Class Members since January 2009 to levels materially lower than they would have been in a competitive market. During the Class Period, even while worker productivity and processing line speeds increased significantly, wage increases provided to Class Members were highly restrained and limited. Economic analysis conducted by expert economists retained by Plaintiffs shows that the wages of plant workers employed by non-poultry food manufacturers were higher, and increased at a materially more rapid rate, than those paid by Defendant Processors to Class Members during the Class Period. The agreements entered by Defendants to fix and depress wages and benefits have unreasonably restrained trade in violation of the Sherman Act, says the complaint. Plaintiffs were employed as a deboner at a chicken processing plant operated by Defendants. Perdue Farms, Inc. is a privately held Maryland corporation headquartered in Salisbury, Maryland.[BN] The Plaintiff is represented by: Matthew K Handley, Esq. HANDLEY FARAH ANDERSON 777 6th Street, NW Eleventh Floor Washington, DC 20001 Email: mhandey@hfajustice.com - and - George Farah, Esq. HANDLEY FARAH ANDERSON 81 Prospect Street Brooklyn, NY 11201 Phone: (212) 477-8090 Email: gfarah@hfajustice.com - and - William H. Anderson, Esq. HANDLEY FARAH & ANDERSON PLLC 4730 Table Mesa Drive, Suite G-200 Boulder, CO 80305 Phone: (303) 800-9109 Email: wanderson@hfajustice.com - and - Daniel A. Small, Esq. Benjamin D. Brown, Esq. Brent W. Johnson, Esq. Alison S. Deich, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. 5th Floor Washington, DC 20005 Phone: (202) 408-4600 Fax: (202) 408-4699 Email: dsmall@cohenmilstein.com bbrown@cohenmilstein.com bjohnson@cohenmilstein.com adeich@cohenmilstein.com - and - Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Phone: (206) 623-7292 Facsimile: (206) 623-0594 Email: steve@hbsslaw.com - and - Shana E. Scarlett, Esq. Rio S. Pierce, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue . Suite 202 Berkeley, CA 94710 Phone: (510) 725-3000 Email: shanas@hbsslaw.com riop@hbsslaw.com PREMIERE CREDIT: Echols Files FDCPA Suit in E.D. Pennsylvania ------------------------------------------------------------- A class action lawsuit has been filed against PREMIERE CREDIT OF NORTH AMERICA, LLC. The case is styled as CHAMPAINE ECHOLS INDIVIDUALLY, AND OR BEHALF OF ALL OTHER SIMILARLY SITUATED CONSUMERS, Plaintiff v. PREMIERE CREDIT OF NORTH AMERICA, LLC, Defendant, Case No. 2:19-cv-04125-GAM (E.D. Pa., Sept. 9, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Premiere Credit of North America, LLC offers financial services. The Company provides accounts receivable management services.[BN] The Plaintiff is represented by: NICHOLAS J. LINKER, ESQ. ZEMEL LAW LLC 1373 Broad St., SUITE 203-C Clifton, NJ 07013 Phone: (862) 227-3106 Email: nl@zemellawllc.com PROGRESSIVE WASTE: Loses Bid to Dismiss Landfill Nuisance Suit -------------------------------------------------------------- The United States District Court for the Eastern District of Louisiana issued an Opinion and Order denying Defendants' Motion to Dismiss in the case captioned ELIAS JORGE "GEORGE" ICTECH-BENDECK, Plaintiff, v. PROGRESSIVE WASTE SOLUTIONS OF LA, INC., ET AL., Defendants. Applies to: All Cases. Civil Action No. 18-7889, C/W No. 18-8071, No. 18-8218., 18-9312 (E.D. La.). This case concerns the operation of the Jefferson Parish Landfill in Waggaman, Louisiana. According to the Plaintiffs, the Landfill began emitting noxious odors, which the Plaintiffs allege consist primarily of methane and hydrogen sulfide gases, into surrounding neighborhoods. The Plaintiffs allege odors from the Landfill have unreasonably interfered with their use and enjoyment of immovable property in violation of Louisiana law. The Defendants argue the Court should dismiss Plaintiffs' case because Plaintiffs fail to state claims for nuisance, negligence and premises liability and fail to sufficiently plead class allegations. In the alternative, Defendants argue the Court should stay Plaintiffs' action under the doctrine of primary jurisdiction pending the resolution of certain administrative enforcement proceedings. Although Plaintiffs' complaint mentions causes of action for negligence, gross negligence, and potential premises liability, at oral argument, Plaintiffs' counsel clarified the only cause of action brought by Plaintiffs, individually and on behalf of a class, is Plaintiffs' nuisance claim under articles 667-669. Plaintiffs' complaint sets forth factual allegations strong enough to raise a right to relief above the speculative level with respect to their nuisance claim. Accordingly, Plaintiffs' nuisance claim survives this motion to dismiss. Plaintiffs' Complaint States a Claim for Nuisance Louisiana Civil Code article 667 defines nuisance: "Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care." Excluding certain ultrahazardous activities (which are not alleged in this case), to bring a successful nuisance claim under this provision, a plaintiff must prove a defendant is: (1) a proprietor who (2) negligently (3) conducts work on his property (4) that causes damage to his neighbor. In this case, Plaintiffs allege Defendants violate article 667 by creating a nuisance through the emission of noxious odors into the air in and around the JP Landfill, which unreasonably interferes with Plaintiffs' use and enjoyment of their property. All parties agree Plaintiffs have alleged Defendants are proprietors who conduct work on their property, the Landfill. Defendants argue Plaintiffs fail to plead this element, and as a result fail state a claim for nuisance under article 667, because Plaintiffs (1) do not allege an interest in real property that neighbors the Landfill (2) do not claim the odors from the Landfill are unreasonable or excessive and (3) do not assert the odors from the Landfill caused their harm. The Court rules that the Defendants arguments fail. Plaintiffs' complaint sufficiently alleges they have an interest in property neighboring the Landfill and suffer unreasonable interference with the use of that property because of the noxious odors emitted from the Landfill. Plaintiffs' complaint alleges an interest in immovable property neighboring the Landfill. Liability under article 667 arises hen activity by one party holding a right to immovable property has caused damages to a party holding a right to neighboring property. Plaintiffs pleaded a sufficient property interest Under article 667, a plaintiff's interest in neighboring property can be an ownership interest, leasehold interest, third-party interest, or more generally the interest of a person whose right derives from the owner. In this case, Plaintiffs allege they, along with prospective class members, are residents of and domiciled in Jefferson Parish. Moreover, the Complaint states Defendants created a nuisance which unreasonably interferes with Plaintiffs' use and enjoyment of their property. Taken together, these statements are sufficient factual content to allow the court to draw the reasonable inference that Plaintiffs have some interest in an immovable. Plaintiffs allege their property neighbors Defendants' property In its ordinary meaning, neighbor' is a person who lives near another. Louisiana law defines neighbor on a case-by-case basis. According to the Fifth Circuit, there must be some propinquity between the properties of the neighbor and the proprietor. A mere causal nexus between the use of a property and harm to another is insufficient to make those properties neighbors. What qualifies as some propinquity, however, is fact specific and may change based on the harm alleged,for example, the radius of neighbors surrounding a loud manufacturing plant may be much smaller than the radius of neighbors surrounding a nuclear waste facility. In this case, Plaintiffs allege they, and any prospective class members, have a property interest within Jefferson Parish, specifically including, but not limited to, the neighborhoods of Waggaman, River Ridge, and Harahan. Plaintiffs allege they are harmed by the noxious odors emanating from the Landfill. Whether article 667 requires some propinquity between the neighbor and proprietor or merely a causal connection between the acts of a defendant property owner and the damages suffered by a plaintiff, Plaintiffs have sufficiently alleged they have an interest in property that neighbors the Landfill as their property is both in the same parish as the Landfill and is adversely affected by the odors the Landfill emits. Plaintiffs have alleged they are the Landfill's neighbors under Louisiana Civil Code article 667. Plaintiffs' complaint alleges the Landfill's odors are excessive and unreasonable To be liable under article 667, a proprietor's use of land must deprive his neighbor of enjoyment or cause damage to him. Article 668 limits this recovery by providing a proprietor may permissibly cause some inconvenience to a neighbor and article 669 requires tolerance of lesser inconveniences. In this case, Plaintiffs allege the Landfill gives off a noxious odor that interferes with the enjoyment of their property. Noxious is a powerful term that means harmful to health or injurious. This is a sufficient factual allegation to create a reasonable inference that the odor produced by the Landfill is excessive and unreasonable. Plaintiffs allege the Landfill's noxious odors caused them harm Under article 667, the defendant-proprietor's use of land must cause damage to his neighbor's land. For causation to be found, the defendant's actions need not be the sole cause, but it must be a cause in fact, and to be a cause in fact in legal contemplation, it must have a proximate relation to the harm which occurs. In this case, Plaintiffs allege the Landfill emits noxious odors onto neighboring properties. This is a plain, clear statement that Defendants are causing the foul odors to be present on and to cause damage to Plaintiffs' neighboring property. Defendants present possible alternative sources of the odors, but that is a merits argument and is inappropriate in a motion to dismiss when the allegations in the complaint must be taken as true and when defendant's actions need not be the sole cause of the harm. Plaintiffs Sufficiently Plead Class Allegations Federal Rule of Civil Procedure 23(a) sets forth the following four prerequisites to certifying any class: (1) the class must be so numerous that joinder of all parties is impracticable (2) there must be questions of law or fact common to the class (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class and (4) the representative parties must fairly and adequately protect the interests of the class. If those prerequisites are satisfied, a court may permit the action to be maintained as a class so long as the action falls within any one or more of the three categories established by Rule 23(b). In the mass tort context, class actions often are not permissible because of the likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways. Although the requirements to obtain class certification in a mass tort case are demanding, motions to dismiss for failure to plead some ascertainable class should not be routinely granted. If the viability of a class depends on factual matters that must be developed through discovery, the motion to dismiss should be denied pending the full-blown certification process. Plaintiffs are not required in pleadings to prove a class is currently and readily ascertainable based on objective criteria, but need only demonstrate at some stage of the proceeding that the class is adequately defined and clearly ascertainable. Further, courts are encouraged to allow discovery on class certification matters. At this early stage in this case, Plaintiffs sufficiently allege the potential for an adequately ascertainable class. Determining class membership will not necessarily require finding individual liability. Once discovery is underway, it is entirely possible, based on the current allegations, that objective, non-individualized criteria (such as distance from the Landfill or results of air quality testing) will define the class. Accordingly, as encouraged by the Fifth Circuit, the Court will permit discovery on Plaintiffs' class allegations. It is premature to dismiss the class allegations at this early stage in the proceedings based on a substantive argument that the class cannot be objectively defined. Plaintiffs have alleged all prerequisites for establishing a class and have proposed a class that is potentially ascertainable by purely objective standards. Accordingly, Defendants' Motion to Dismiss Plaintiffs' claim for nuisance under Louisiana code of civil procedure articles 667-669 is denied. The full-text copy of the District Court's August 29, 2019 Order and Reasons is available at https://tinyurl.com/y4y45ajq from Leagle.com. Elias Jorge Ictech-Bendeck, also known as George Ictech-Bendeck, Plaintiff, represented by Val Patrick Exnicios, Liska, Exnicios & Nungesser, 1515 Poydras Street 14th Floor, Ste. 1400 New Orleans, LA 70112, Angela Cecelia Imbornone, Favret, Demarest, Russo & Lutkewitte, Anthony J. Russo, Favret, Demarest, Russo & Lutkewitte, Dean Joseph Favret, Favret, Demarest, Russo & Lutkewitte, 1515 Poydras St Ste 1400, New Orleans, LA, 70112-4500, Douglas S. Hammel, Hammel Law Firm, LLC, 3129 Bore St., Metairie, LA, 70001-5333, Frances Lacy Radcliff, Liska, Exnicios & Nungesser, 1515 Poydras Street 14th Floor, Ste. 1400 New Orleans, LA. 70112, Jason Zachary Landry, Martzell & Bickford, 338 Lafayette St., New Orleans, LA, 70130-3244, Lauren A. Favret, Favret, Demarest, Russo & Lutkewitte, 1515 Poydras St Ste 1400, New Orleans, LA, 70112-4500, Lawrence J. Centola, III, Martzell & Bickford, 338 Lafayette St., New Orleans, LA, 70130-3244 Waste Connections US, Inc, Waste Connections Bayou, Inc., formerly known as Progressive Waste Solutions of LA, Inc. & Louisiana Regional Landfill Company, Incorrectly named as Louisiana Regional Landfill Company, Inc., Defendants, represented by David R. Taggart -- dtaggart@bradleyfirm.com -- Bradley, Murchison, Kelly & Shea, LLC, James B. Slaughter -- jslaughter@bdlaw.com -- Beveridge & Diamond, PC, pro hac vice, John H. Paul -jpaul@bdlaw.com -- Beveridge & Diamond, pro hac vice, John B. Stanton, Bradley, Murchison, Kelly & Shea, LLC, 1100 Poydras St., Ste 2700, New Orleans, LA 70163 Megan R. Brillault -- mbrillault@bdlaw.com -- Beveridge & Diamond, pro hac vice, Michael C. Mims, Bradley Murchison Kelly & Shea, LLC, 1100 Poydras St., Ste 2700, New Orleans, LA 70163 & Michael G. Murphy -- mmurphy@bdlaw.com -- Beveridge & Diamond, pro hac vice. R&C CLEANING: Godoy Seeks to Recover Damages for FLSA, NYLL Breach ------------------------------------------------------------------ CARMEN GODOY, individually and on behalf of all others similarly situated, Plaintiff, v. R&C CLEANING SOLUTIONS INC. and RICHARD MENESES, as an individual, Defendants, Case No. 1:19-cv-05005-CBA-PK (E.D. N.Y., Sept. 3, 2019) is an action against Defendants to recover damages for violations of state and federal wage and hour laws arising out of Plaintiff's employment under the Fair Labor Standards Act and the New York Labor Law. The complaint alleges that Defendants failed to pay Plaintiff the legally prescribed minimum wage for her hours worked from July 2017 until March 2019; did not pay Plaintiff time and a half for hours worked over 40; failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment; and failed to keep accurate payroll records as required by both NYLL and the FLSA, says the complaint. Plaintiff CARMEN GODOY was employed by Defendants at R & C CLEANING SOLUTIONS INC. from July 2017 until March 2019. R & C CLEANING SOLUTIONS INC., is a corporation organized under the laws of New York.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. Helen f. Dalton & Associated, P.C. 80—02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Phone: 718-263-9591 Fax: 718-263-9598 RESURGENT CAPITAL: Fowler Files FDCPA Suit in S.D. Florida ---------------------------------------------------------- A class action lawsuit has been filed against Resurgent Capital Services, LP. The case is styled as Kaliah Fowler individually and on behalf of all others similarly situated, Plaintiff v. Resurgent Capital Services, LP, John Does 1-25, Defendants, Case No. 1:19-cv-23739-KMM (S.D. Fla., Sept. 9, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Resurgent Capital Services is a manager and servicer of domestic and international consumer debt portfolios for credit grantors and debt buyers.[BN] The Plaintiff is represented by: Justin Zeig, Esq. Zeig Law Firm, LLC 3595 Sheridan Street, Suite 103 Hollywood, FL 33021 Phone: (754) 217-3084 Email: justin@zeiglawfirm.com REV GROUP: Continues to Defend Consolidated Suit over 2017 IPO -------------------------------------------------------------- REV Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 4, 2019, for the quarterly period ended July 31, 2019, that the company continues to defend a consolidated class action related to the company's January 2017 initial public offering (IPO). A consolidated federal putative securities class action and a consolidated state putative securities class action are pending against the Company and certain of its officers and directors, each on behalf of a putative class of purchasers of the Company's common stock in or traceable to its January 2017 initial public offering (IPO) and of purchasers in its secondary offering of common stock in October 2017, as well as, for the federal action, purchasers from October 10, 2017 through June 7, 2018. The actions also name certain of the underwriters for the Company's IPO or secondary offering as defendants. The federal and state courts each consolidated multiple separate actions pending before them, the first of which was filed on June 8, 2018. The actions allege certain violations of the Securities Act of 1933 and, for the federal action, the Securities Exchange Act of 1934. Collectively, the actions seek certification of the putative classes asserted and compensatory damages and attorneys' fees and costs. The underwriter defendants have notified the Company of their intent to seek indemnification from the Company pursuant to the IPO underwriting agreement regarding the claims asserted with respect to the IPO, and the Company expects the underwriters to do the same in regard to the claims asserted with respect to the October 2017 offering. Two purported derivative actions, which have since been consolidated, were also filed in federal court in Delaware in 2019 against the Company's directors (with the Company as a nominal defendant), premised on allegations similar to those asserted in the consolidated federal securities litigation. The Company and the other defendants intend to defend these lawsuits vigorously. Additional lawsuits may be filed and, at this time, the Company is unable to predict the outcome of the lawsuits, the possible loss or range of loss, if any, associated with the resolution of the lawsuits, or any potential effect that it may have on the Company or its operations. No further updates were provided in the Company's SEC report. REV Group, Inc. designs, manufactures, and distributes specialty vehicles in the United States, Canada, Europe, Africa, the Middle East, Latin America, the Caribbean, and internationally. It operates through three segments: Fire & Emergency, Commercial, and Recreation. REV Group, Inc. was formerly known as Allied Specialty Vehicles, Inc. and changed its name to REV Group, Inc. in November 2015. The company is headquartered in Milwaukee, Wisconsin. RIAL DE MINAS II: Court Dismisses Martinez Action With Prejudice ---------------------------------------------------------------- The United States District Court for the District of Colorado issued an Order dismissing the complaint with prejudice in the case captioned IDALY MARTINEZ on her own behalf and on behalf of all others similarly situated, Plaintiff, v. RIAL DE MINAS II, INC., RIAL DE MINAS III, INC., RIAL DE MINAS IV, INC., JUAN LUEVANOS, MARIA LUEVANOS, and, MELISSA LUEVANOS, Defendants. Civil Action No. 16-cv-01947-RM-KLM. (D. Colo.). This is a certified class and collective action in which the Court has approved the parties' settlement. And, under Rule 23(e) the claims, issues, or defenses of a certified class or a class proposed to be certified for purposes of settlement may be settled, voluntarily dismissed, or compromised only with the court's approval. Accordingly, the Court construes the parties' Stipulation as a motion requesting (a) final judgment, Order approving the Joint Motion for Final Approval of Class and Collective Action Settlement, which Order is incorporated herein by reference and (b) an order of dismissal. The full-text copy of the District Court's August 29, 2019 Order is available at https://tinyurl.com/y3ne4xpw from Leagle.com. Idaly Martinez, on her own behalf and on behalf of all others similarly situated, Plaintiff, represented by Brandt Powers Milstein, Milstein Law Office, 1123 Spruce St., Boulder, CO, 80302-4001 Rial de Minas, Inc., Rial de Minas III, Inc., Rial de Minas IV, Inc., Juan Luevanos, Maria Luevanos, Melissa Luevanos & Rial de Minas II, Inc., Defendants, represented by Frank William Suyat -- fsuyat@dillanddill.com -- Dill Dill Carr Stonbraker & Hutchings, P.C. RO GALLERY: Court Dismisses GBL Claim in Rosenzweig Suit -------------------------------------------------------- In the case, MONTE ROSENZWEIG AND GOLD STANDARD AGENCY, INC., on behalf of plaintiffs and the class members described below, Plaintiffs, v. RO GALLERY IMAGE MAKERS, INC., doing business as ROGALLERY.COM and JOHN DOES 1-10, Defendants, Case No. 18-cv-2736 (ADS)(SIL)(E.D. N.Y.), Judge Arthur D. Spatt of the U.S. District Court for the Eastern District of New York denied in part Ro Gallery's Motion to Dismiss pursuant to Rule 12(b)(6) as to the Telephone Consumer Protection Act ("TCPA") claim, and granted in part, as to the New York General Business Law ("GBL") claim. On May 8, 2018, Plaintiffs Rosenzweig and Gold Standard Agency -- of which Rosenzweig is the principal owner and officer -- brought the putative class action against Ro Gallery and 10 unknown individuals. The Plaintiffs alleged that Ro Galley sent an unsolicited advertisement to a telephone facsimile ("fax") machine, in violation of the TCPA and Section 396-aa of the GBL. The Plaintiffs brought the TCPA and GBL action, alleging they received an unsolicited fax advertisement. The fax rovided Ro Gallery's phone number, street address, and email address. The fax also: (a) advertised Ro Gallery's products and services (artwork sales); (b) contained a website registered to and used by Ro Gallery; (c) benefitted Ro Gallery economically; and (d) lacked an opt-out notice pursuant to Section 227. Ro Gallery sent the fax as part of a "mass broadcasting" of faxes. It had sent similar unsolicited fax advertisements to at least 40 other New York residents, and discovery could reveal the transmission of additional faxes. As to the John Doe Defendants, the Plaintiffs alleged that they were natural or artificial persons that were involved in the sending of the [fax] advertisements. They did not further identify the John Doe Defendants, and no Defendant other than Ro Gallery appears in the action. In addition, the Plaintiffs did not describe the nature of Gold Standard Agency's business, specifically, the relevance of an art dealership to the business. The Plaintiffs brought claims under Section 227(b)(1)(C) of the TCPA, and Section 396-aa of the GBL. They made no separate allegations as to the GBL Section 396-aa claim, and they only argued that Ro Galley violated the statute by sending unsolicited fax advertising to the Plaintiffs and others. Ro Gallery now moves to dismiss the Complaint under Rules 12(b)(1) and (b)(6). It alleges in the motion and in an attached affidavit that it did not send the fax. The Plaintiffs oppose the motion to dismiss, and argue that the Court should not consider the factual allegations about not sending the fax. Ro Gallery replied. Judge Spatt holds that the Complaint, along with the attached fax, adequately pleads that the Plaintiffs received an unsolicited fax advertisement because it claims that the Plaintiffs received a fax promoting Ro Gallery's goods and services. The fax itself promotes Ro Gallery's products. It invites buyers to purchase individual pieces of artwork. It provides the company's contact information. Ro Gallery does not dispute that the fax promotes its product or provides such information. Further, of importance, the Complaint alleges that Ro Gallery sent the fax, despite Ro Gallery's arguments that the Plaintiffs failed to make such an allegation. As to Ro Gallery's argument concerning agency, the Judge holds that it correctly notes that the Plaintiffs did not allege that an agent sent the fax on Ro Gallery's behalf. While a party may demonstrate vicarious liability under the TCPA, the Plaintiffs have sufficiently stated a claim for Ro Gallery's direct liability under the TCPA. Thus, the Rule 12(b)(6) motion is denied as to the TCPA claim. Further, because the Plaintiffs sufficiently state a claim under the TCPA, the Jude also denies the request to dismiss the action under Rule 12(b)(1). For the foregoing reasons, Ro Gallery's Motion to Dismiss pursuant to Rule 12(b)(6) is denied in part, as to the TCPA claim, and granted in part, as to the GBL claim. Because the Plaintiffs state a claim under the TCPA, the motion is also denied in part as to the request to dismiss the action under Rule 12(b)(1). A full-text copy of the Court's July 26, 2019 Memorandum of Decision and Order is available at https://is.gd/k9MhA6 from Leagle.com. Monte Rosenzweig & Gold Standard Agency, Inc, on behalf of plaintiffs and the class members described below, Plaintiffs, represented by Adam Jon Fishbein, Adam J. Fishbein, P.C. & Tiffany N. Hardy, Edelman Combs Latturner & Goodwin LLC. Ro Gallery Image Makers, Inc., doing business as Rogallery.com, Defendant, represented by Steven Altman -- steven@altmanllp.com -- Altman & Company P.C.. SAEXPLORATION HOLDINGS: Zhang Investor Files Securities Fraud Suit ------------------------------------------------------------------ Zhang Investor Law announces the filing of a class action lawsuit on behalf of shareholders who bought shares of SAExploration Holdings Inc. (SAEX) between March 15, 2016 and August 15, 2019, inclusive (the "Class Period"). If you wish to serve as lead plaintiff, you must move the Court no later than October 17, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to obtain a recovery is not dependent upon being a lead plaintiff. If you wish to join the http://zhanginvestorlaw.com/join-action-form/?slug=saexploration-holdings-inc&id=1988 or to discuss your rights or interests regarding this class action, please contact Sophie Zhang, Esq. or Spencer Lee toll-free at 800-991-3756 or email info@zhanginvestorlaw.com, slee@zhanginvestorlaw.com for information on the class action. According to the lawsuit, throughout the Class Period, SAEX and its senior executives presented false and misleading financial statements by failing to consolidate the results of Alaska Seismic Ventures, LLC ("ASV"), an entity in which the Company had a controlling financial interest, in its financial statements. These accounting abuses led to the Company disclosing: (i) the existence of SEC and internal investigations into the Company's financial reporting; (ii) the need for SAEX to restate all of its financial statements covering 2015 through 2018; (iii) CEO Jeffrey Hastings had been placed on administrative leave; and (iv) CFO and General Counsel Brent Whitely had been fired. When this news entered the market, the lawsuit alleges that investors suffered damages. A class has not been certified. You may retain counsel of your choice. You may take no action at this time and be an absent class member. Your ability to obtain a recovery is not dependent upon being a lead plaintiff. Zhang Investor Law represents investors worldwide. Zhang Investor Law P.C. 99 Wall Street, Suite 232 New York, New York 10005 tel: (800) 991-3756 Email: info@zhanginvestorlaw.com [GN] SANDERSON FARMS: Faces Wage & Benefits Class Suit in Maryland ------------------------------------------------------------- Sanderson Farms, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on September 4, 2019, that the company is defending against a wage and benefits class action suit in Maryland. Sanderson Farms, Inc. (the "Registrant") and its subsidiaries Sanderson Farms, Inc. (Foods Division) and Sanderson Farms, Inc. (Processing Division) were named as defendants, along with 17 other poultry producers and certain of their affiliated companies; Agri Stats, Inc.; and Webber, Meng, Sahl and Company, Inc. in a putative class action lawsuit filed on August 30, 2019 in the United States District Court for the District of Maryland. The complaint alleges that the defendants conspired to fix, depress, maintain and stabilize the wages and benefits paid to certain employees at chicken processing plants in the United States in violation of federal antitrust law. The complaint seeks treble damages, injunctive relief, costs, and attorneys' fees. The lawsuit is in its earliest stage and the Registrant intends to defend it vigorously. Sanderson Farms, Inc., an integrated poultry processing company, produces, processes, markets, and distributes fresh, frozen, and prepared chicken products in the United States. Sanderson Farms, Inc. was founded in 1947 and is headquartered in Laurel, Mississippi. SANTANDER BANK: Court Dismisses Aversano TILA Suit -------------------------------------------------- In the case, PAUL AVERSANO, on behalf of himself and all others similarly situated, Plaintiff, v. SANTANDER BANK, N.A., Defendant, Civil Action No. 17-12694 (MAS) (TJB) (D. N.J.), Judge Michael A. Shipp of the U.S. District Court for the District of New Jersey granted the Defendant's Second Motion to Dismiss. On June 26, 2007, the Plaintiff obtained a second mortgage on his property from the Defendant with a 7.24% interest rate. A Truth-in-Lending-Act ("TILA") disclosure appeared on the first page of the mortgage form, showing an "interest rate of 7.24%, total cost of credit ($363,348.40), the amount of credit provided ($250,000) and the amount the Plaintiff will have paid after making all scheduled payments ($613,348.40). The Plaintiff was required to make 360 payments of $1,703.74, due on the 30th day of each month, beginning on July 30, 2007. The Disclosure indicated that when the letter "e" was appended to a number, the figure was an estimate. The Disclosure provided the Plaintiff would be charged a late fee for payments more than 15 days late, which he alleges was a grace period that is included in most conventional mortgages. He checked the payment calculations against an online calculator to confirm they were correct for a conventional mortgage. The Plaintiff made regular payments to the Defendant from 2007 to 2017. He reviewed his Equifax credit monitoring account during this period and noted the Defendant reported the loan as a "Conventional RE [Real Estate] Mortgage". The Plaintiff skipped four payments -- February 2009, February 2010, February 2011, and February 2012 -- extending the mortgage's duration by four months. Each time, the Defendant advised the Plaintiff that "interest will continue to accrue on the entire outstanding balance, including the month the Plaintiff skips his payment. The Plaintiff contemplated refinancing the loan and contacted the Defendant in July 2017 to ask for the loan payoff amount. The Defendant advised him the loan payoff was about $11,000 higher than he calculated. The Defendant reported the discrepancy was due to interest being compounded daily, as a simple interest loan ("SIM"). The Plaintiff believes the Defendant took the position that the mortgage was a SIM based on paragraph 4 on page 4 of the note, which states "interest is imposed each day at the daily equivalent of the annual rate. The Plaintiff contends the Defendant violated a number of TILA provisions. He argues the Defendant misrepresented the nature of the loan because (1) the Disclosure on the front of the loan packet "showed interest compounding monthly", (2) the Disclosure did not state that any figures were the result of estimate, (3) the Defendant "had represented to the Plaintiff, repeatedly, that interest accrued monthly", and (4) the Defendant reported the mortgage as a "Conventional [Real Estate] Mortgage" to credit reporting agencies. The Plaintiff filed a putative class action Complaint on Dec. 6, 2017. He filed an Amended Complaint on Feb. 26, 2018, which the Defendant moved to dismiss. The Court found the allegations in the Amended Complaint did not support equitable tolling and, therefore, dismissed the TILA claims for untimeliness. It, however, permitted the Plaintiff to file a Second Amended Complaint, which he submitted on Nov. 11, 2018. The Defendant's instant Motion to Dismiss pertains to the Plaintiff's Second Amended Complaint, which asserts: (1) a violation of TILA; (2) breach of contract; (3) common law fraud; (4) fraudulent inducement; (5) violations of the New Jersey Consumer Fraud Act; and (6) unjust enrichment. Judge Shipp finds Plaintiff fails to plead sufficient facts that would allow the Court to apply equitable tolling. Although the Plaintiff disputes the accuracy of the Disclosure, he does not aver the figures Defendant provided him were inaccurate for a SIM. The Plaintiff cannot also argue equitable tolling should apply as a result of his own failure to read the loan packet. As for the state law claims, the Plaintiff pled state law claims in addition to his TILA claim. His only asserted basis for jurisdiction is 28 U.S.C. Sectin 1331, and the Plaintiff has failed to demonstrate the Court should equitably toll his only federal claim. The Judge, therefore, declines to exercise jurisdiction over the Plaintiff's state law claims until such time he establishes the matter may proceed under federal question jurisdiction. For the reasons set forth, Judge Shipp granted the Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. He also granted the Plaintiff one final opportunity to allege sufficient facts to support equitable tolling. An order consistent with his Opinion will be entered. A full-text copy of the Court's July 26, 2019 Memorandum Opinion is available at https://is.gd/x96qo2 from Leagle.com. PAUL AVERSANO, on behalf of himself and all others similarly situated, Plaintiff, represented by SOFIA BALILE, LEMBERG LAW, LLC. SANTANDER BANK, N. A., Defendant, represented by DIANE A. BETTINO -- dbettino@reedsmith.com -- REED SMITH, LLP, HENRY F. REICHNER -- hreichner@reedsmith.com -- REED SMITH, LLP & SIOBHAN ANNE NOLAN -- snolan@reedsmith.com -- REED SMITH LLP. SEAWORLD PARKS: Faces Mahoney Suit in E.D. Pennsylvania ------------------------------------------------------- A class action lawsuit has been filed against SEAWORLD PARKS & ENTERTAINMENT, INC. The case is captioned as JOHN MAHONEY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiff, vs. SEAWORLD PARKS & ENTERTAINMENT, INC., the Defendant, Case No. 2:19-cv-03834-JD (E.D. Pa., Aug. 23, 2019). The suit alleges violation of the Americans with Disabilities Act of 1990. The case is assigned to Hon. Judge Jan E. Dubois. SeaWorld Entertainment Inc., formerly Busch Entertainment Corporation and SeaWorld Parks and Entertainment, LLC, is a family-friendly entertainment, amusement park, and attraction company headquartered in Orlando, Florida. It operates 12 theme parks including five water parks in the United States.[BN] Attorneys for the Plaintiff are: David S. Glanzberg, Esq. GLANZBERG TOBIA & ASSOCIATES PC 123 S. Broad Street Suite 1640 Philadelphia, PA 19109 Telephone: (215) 981-5400 E-mail: dglanzberg@aol.com SEIU PENNSYLVANIA: Court Dismisses Union Dues Suit -------------------------------------------------- The United States District Court for the Middle District of Pennsylvania issued a Memorandum granting Defendants' Motion to Dismiss the Second Amended Complaint in the case captioned BETHANY LASPINA, on behalf of herself and others similarly situated, Plaintiffs, v. SEIU PENNSYLVANIA STATE COUNCIL, et al., Defendants No. 3:18-2018. (M.D. Pa.). In this purported class action lawsuit filed pursuant to 42 U.S.C. Section1983, the plaintiff claims that she was unconstitutionally required to pay union dues. Plaintiff alleges that she is employed by the Lackawanna County Library System and that she works at the Scranton Public Library. Plaintiff alleges that she was forced to join defendant union SEIU Local 668 (Local 668) and to pay dues to this union as a condition of her employment. In Counts 1, 2 and 3 of her SAC, plaintiff raises constitutional claims against defendants under 42 U.S.C. Section 1983. The Defendants claim Plaintiff fails to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6) since she was not a member of these unions and, fails to have Article III standing to pursue class action claims on behalf of members and former members of these unions pursuant to 12(b)(1). The Defendant unions also point out that all of the plaintiff's stated allegations regarding her constitutional claims concern Local 668 and do not pertain to them. Defendant unions further state that plaintiff fails to allege that they took any dues/fees from her or caused her any harm. Thus, defendant unions state that since plaintiff fails to allege any facts showing that she was injured or caused any harm by them, she lacks standing to sue them under Article III and she fails to state a cognizable claim against them. No doubt that plaintiff has failed to allege that defendant unions were personally involved in the violation of her constitutional rights. Nor can plaintiff attempt to hold defendant unions vicariously liable for the alleged unconstitutional conduct of Local 668. Plaintiff's SAC contains no facts to support a claim against defendant unions and it does not allege that they were personally involved in the violation of her constitutional rights. Rather, plaintiff's allegations relate to her employer and the union to which she belonged, Local 668, not defendant unions. As stated, plaintiff alleges that the actions of Local 668 violated her rights since it improperly took dues from her and failed to obtain her consent to take dues out of her pay. Thus, plaintiff's allegations fail to show that defendant unions committed any unlawful actions against her and that these unions caused her any injury. Plaintiff concedes that if she was only suing defendant unions as an individual she would not have standing to sue Healthcare PA, Local 32BJ, or the JBWU since she never belonged to or paid fees to these unions. However, plaintiff states that she can sue the stated unions since she is suing as a class representative and she seeks to represent all public employees who were compelled to subsidize the affiliates of the SEIU Pennsylvania State Council. In her pleading, she has alleged that the State Council coordinates and unifies the collective political, administrative, and communication structures of all SEIU locals and that the local unions are affiliated with the State Council. The SAC also alleges that Healthcare PA, Local 32BJ, and the JBWU enforced unconstitutional agency shops before the Supreme Court's ruling in Janus and violated the constitutional rights of the plaintiff class members by tapping their paychecks against their will. Rule 12(b)(1) governs a motion to dismiss for lack of standing, since standing is a jurisdictional matter. Standing is a threshold jurisdictional requirement, derived from the case or controversy language of Article III of the Constitution. A plaintiff must establish his or her standing to bring a case in order for the court to possess jurisdiction over his or her claim. No doubt that plaintiff herself, the only named plaintiff and class representative, was not injured by defendant unions and she does not have standing on her own to bring individual claims against them. Thus, she has no case or controversy with defendant unions. Nonetheless, plaintiff contends that at this stage of the case she only has to propose a class that includes public employees who were allegedly injured by each of the three defendant unions. She states that until the Rule 23 class certification is decided by the court she can still represent the class members who were members of these unions, who were allegedly injured by these unions, and who have claims against these unions. Therefore, plaintiff argues that it is premature to dismiss the defendant unions prior to the court deciding at class certification whether she can represent the class members who do have claims against these unions. Here, plaintiff is attempting to put the Rule 23 class certification issue before the Article III standing issue. The court finds that Article III requires that the issue of whether plaintiff has standing to assert claims on behalf of purported class members against defendant unions must be decided before the court decides the issue of class certification under Rule 23. The named plaintiff must first demonstrate she is properly before the court, i.e., has Article III standing, and then the issue to be decided is whether she complies with the provisions of Rule 23 with respect to the purported class members. Additionally, the court finds no merit to plaintiff's contention that the Rule 23 class certification issue must be decided before the standing issue raised in defendant unions' Rule 12(b) motions to dismiss. In this case, there is no dispute that plaintiff herself has not been injured by defendant unions. These defendant unions are separate and distinct from Local 668, the union to which plaintiff belonged and allegedly caused her injury. Standing cannot be predicated on an injury which the plaintiff has not suffered, nor can it be acquired through the back door of a class action. As such, the motions to dismiss of union defendants will be granted. Plaintiff's claims against these three defendants will be dismissed with prejudice since plaintiff has already amended her complaint and, it would be futile and unduly prejudicial to defendants to allow her to amend her pleading another time as against them since she lacks standing under Article III. Finally, considering judicial economy, convenience and fairness to the litigants, the district court in its discretion is permitted to decline the exercise of supplemental jurisdiction over state law claims if the court has dismissed all of the claims over which it had original jurisdiction. The court has made the appropriate considerations and finds no extraordinary circumstances exist in this case to exercise supplemental jurisdiction over plaintiff's remaining Pennsylvania state law claims against union defendants. Since plaintiff's federal claims over which this court had original jurisdiction shall not be permitted to proceed to trial against union defendants, the court, in its discretion, declines to exercise supplemental jurisdiction over plaintiff's state law claims against union defendants. As such, plaintiff's state law claims against union defendants shall be dismissed without prejudice. The full-text copy of the District Court's August 29, 2019 Memorandum is available at https://tinyurl.com/y5aue56v from Leagle.com. Bethany LaSpina, on behalf of herself and all othr similarly siutated, Plaintiff, represented by Edmond R. Shinn -- eshinn@erslawfirm.com -- Law Offices of Edmond R. Shinn, Esq., Ltd., Jonathan F. Mitchell -- stephen@mitchellatlaw.com -- Mitchell Law PLLC, Shannon W. Conway -- sconway@talcottfranklin.com -- Talcott Franklin P.C., Talcott J. Franklin -- tal@talcottfranklin.com -- Talcott Franklin P.C. & Walter S. Zimolong, Zimolong LLC. Suite 1360,1515 Market Street, Philadelphia, PA, 19102 SEIU Pennsylvania State Council, Defendant, represented by Martin W. Milz -- mmilz@spearwilderman.com -- SPEAR WILDERMAN, P.C. & Samuel L. Spear, Spear, Wilderman, Borish, Endy, Spear & Runckel, 230 South Broad Street, Suite 1400, Philadelphia, PA 19102 SEIU Local 668, Defendant, represented by Lauren M. Hoye -- lhoye@wwdlaw.com -- Willig, Williams & Davidson, P. Casey Pitts -- cpitts@altshulerberzon.com -- Altshuler Berzon LLP & Scott A. Kronland -- skronland@altshulerberzon.com -- Altshuler Berzon LLP. Lackawanna County Public Library System, Defendant, pro se. Scranton Public Library, Defendant, represented by J. Timothy Hinton , Haggerty Hiinton & Cosgrove LLP, 203 Franklin Avenue, Scranton, PA 18503 SERVICELINK FIELD: Bid to Certify Class in Britton Suit Denied -------------------------------------------------------------- In the case, GINA L. BRITTON, a single woman, and JEREMY N. LARSON, a single man, and on behalf of others similarly situated, Plaintiffs, v. SERVICELINK FIELD SERVICES, LLC, formerly known as LPS FIELD SERVICES, INC., Defendant, Case No. 2:18-CV-0041-TOR (E.D. Wash.), Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington (i) denied the Plaintiffs' Motion to Certify, (ii) granted the Defendant's Motion to Exclude, and (iii) denied as moot the Defendant's Motion for Evidentiary Hearing. The instant suit involves a claim by PlaintiffsBritton and Larson, personally and on behalf of others similarly situated, against Defendant ServiceLink for its part in securing properties subject to foreclosure. ServiceLink provides asset preservation services to lenders by contracting with vendors, who provide the actual services. Specifically at issue, ServiceLink would drill out and replace the locks on homes -- barring access through that entry -- and leave a sticker on the home informing the owner of how they can get a key. In all, ServiceLink worked with 28 lenders and 27 unrelated vendors during the proposed class period. Notably, the Lenders represent their authority to order the services to ServiceLink and warrant compliance with all laws. In 2016, the Supreme Court of Washington held that contract provisions found in deeds of trust which purport to allow lenders to take possession of homes after default, but before foreclosure, were invalid. As a result, all entries and actions on the property -- specifically, drilling out and replacing the locks -- based solely on this pre-default consent were deemed to be a trespass that effectively interfered with the owner's property rights. The Plaintiffs are seeking to hold Defendant liable for working as the middleman between the lenders and the vendors. Based on its role in facilitating the asset preservation services, the Plaintiffs assert that ServiceLink is liable for (1) Common Law Trespass; (2) Intentional Trespass in violation of RCW 4.24.630; (3) Negligent Trespass; (4) violation of the Washington Consumer Protection Act, RCW 19.86; and (5) Negligent Supervision. They seek damages, attorneys' fees, costs, and injunctive relief. The Plaintiffs now move the Court to certify their proposed class. The Defendant opposes the motion and requests the Court to exclude the Plaintiff's expert opinion. The Plaintiffs proffer the opinion of Dr. Kilpatrick for the position that the damages can be calculated on a class-wide methodology. The Defendant argues the opinion is inadequate because the damage calculations are not reliable or relevant. Judge Rice finds that the Plaintiffs have failed to demonstrate that a class action should be certified. Bbecause Britton and Larson were never locked out of their homes -- by far the gravamen of the proposed class damages -- their claims are not typical of the proposed class and they are not adequate representatives. Further, the Plaintiffs have failed to demonstrate that common questions predominate because (1) absent a viable methodology, the issue of damages will predominate over the common questions, and (2) the Plaintiffs have not provided a viable class-wide methodology for determining loss of use damages. As such, the Plaintiffs have not met their burden in demonstrating class certification is proper and their Motion is denied. Given the opinion of Dr. Kilpatrick is not relevant or reliable, the Motion to Exclude is granted. The Motion for Evidentiary Hearing is denied as moot. The District Court Executive is directed to enter this Order and provide copies to the counsel. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/lnAzr9 from Leagle.com. Gina L Britton, a single woman, and on behalf of others similarly situated & Jeremy N Larson, a single man, Plaintiffs, represented by Clay M. Gatens -- clayg@jdsalaw.com -- Jeffers Danielson Sonn & Aylward PS, Devon A. Gray, Jeffers Danielson Sonn & Aylward PS, Beth E. Terrell -- bterrell@terrellmarshall.com -- Terrell Marshall Law Group PLLC, Blythe H. Chandler, Terrell Marshall Law Group PLLC, Brittany J. Glass, Terrell Marshall Law Group PLLC & Michael D. Daudt, Daudt Law PLLC. ServiceLink Field Services LLC, formerly known as LPS Field Services Inc., Defendant, represented by Theron A. Buck , Frey Buck PS, Erica L. Calderas -- elcalderas@hahnlaw.com -- Hahn Loeser & Parks LLP, pro hac vice, Kelly A. Kosek, Hahn Loeser & Parks LLP, pro hac vice & Steven Avery Goldfarb -- sagoldfarb@hahnlaw.com -- Hahn Loeser & Parks LLP, pro hac vice. SHASTA BEVERAGES: Garcia Suit Removed to C.D. California -------------------------------------------------------- The case captioned AMBER GARCIA, VERONICA CERDA, on behalf of themselves and other similarly situated non-exempt former and current employees, Plaintiffs, v. SHASTA BEVERAGES, INC., NATIONAL BEVPAK, NATIONAL BEVERAGE CORP. and DOES 1 through 50, inclusive, Defendants, Case No. 19STCV26045 was removed from the Superior Court of the State of California, County of Los Angeles to the United States District Court for the Central District of California on Sept. 9, 2019, and assigned Case No. 2:19-cv-07798. Plaintiffs allege six causes of action: (1) Unpaid Accrued Vacation Time (2) Unpaid Overtime (3) Unpaid Rest Period Premiums (4) Non-Compliant Wage Statements (5) Waiting Time Penalties (6) Violation of California Business & Professions Code.[BN] The Defendants are represented by: Christopher J. Kondon, Esq. Saman M. Rejali, Esq. Jonathan D. Kintzele, Esq. K&L GATES LLP 10100 Santa Monica Boulevard Eighth Floor Los Angeles, CA 90067 Phone: 310.552.5000 Facsimile: 310.552.5001 Email: christopher.kondon@klgates.com saman.rejali@klgates.com jonathan.kintzele@klgates.com SOC LLC: Nevada Court Decertifies Class in Risinger Suit -------------------------------------------------------- In the case, KARL E. RISINGER, Plaintiff, v. SOC LLC, et al., Defendants, Case No. 2:12-cv-00063-MMD-PAL (D. Nev.), Judge Miranda M. Du of the U.S. District Court for the District of Nevada (a) granted the Defendants' Decertification Motion; and (b) denied as moot (i) the Defendants' second motion for summary judgment, and (ii) Plaintiff Risinger's emergency motion to strike the Defendants' second motion for summary judgment. The case is a class action involving a dispute over the terms of employment for armed guards hired to work in Iraq. The Court certified a class in the case consisting of armed guards who worked for SOC in Iraq between 2006 and 2012. The Court later clarified that Reclassified Guards -- individuals who held job titles other than "Guard" during their employment with the Defendants because the Defendants changed their job title and/or salaries upon, or shortly after, their arrival in Iraq -- were members of the class because they were, in effect, armed guards who worked for SOC in Iraq between 2006 and 2012. The Defendants now move to decertify the class because additional discovery purportedly has revealed that questions common to the class members no longer predominate over questions affecting only individual members. They also filed their second motion for summary judgment. Plaintiff Risinger filed his emergency motion to strike the Defendants' second motion for summary judgment. The Defendants argue that the class should be decertified because individual issues predominate over questions common to the class and because the class is unmanageable given that the Plaintiff has failed to offer a classwide method for determining liability or calculating damages. Judge Du agrees with the Defendants and will decertify the class. She inds that the newly presented evidence persuasively demonstrates that individualized issues of liability predominate over the common questions identified at the outset of the litigation. Significantly, the evidence shows that some class members never worked more than 72 hours. The evidence also shows that the Plaintiff's common proof of overwork -- the Defendants' practice of understaffing -- is fatally flawed: the effects of any uniform understaffing practice varied widely depending on the class members' locations, vehicle conditions, weather conditions, and personal work preferences. The Defendants argue that the Plaintiff cannot meet the manageability requirement of Rule 23(b)(3)(D) because the Plaintiff has offered no classwide method for calculating damages. The Plaintiff argues that questions of individualized damages cannot be used to overcome class certification. The Judge agrees with the Defendants that the case has become unmanageable. The Plaintiff has offered no methodology for calculating damages on a classwide basis. Instead, the Plaintiff suggests that a special master conduct over 1,000 individualized inquiries. This proposal further compels a finding of lack of manageability. Judge Du concludes that common questions do not predominate in the action and that the class would be unmanageable even if they did. She notes that the parties made several arguments and cited to several cases not discussed above. She has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the motions before the Court. The Judge granted the Defendants' motion to decertify class. She denied as moot the following motions: the Defendants' second motion for summary judgment, and the Plaintiff's emergency motion to strike the Defendants' second motion for summary judgment. The parties are instructed to file a joint status report within seven days to advise the Court whether the case should be referred to the magistrate judge for settlement before the Court sets the deadline for filing the proposed joint pretrial order. A full-text copy of the Court's July 26, 2019 Order is available at https://is.gd/F33lEo from Leagle.com. Karl E. Risinger, Plaintiff, represented by Christopher I. Ritter -- critter@earlysullivan.com -- Early Sullivan Wright Gizer & McRae -- dmcrae@earlysullivan.com -- LLP, Devin A. McRae, Early Sullivan Wright Gizer & McRae LLP, Erik C. Alberts -- erik.alberts@ea-lawfirm.com -- Law Offices of Erik C. Alberts & Scott E. Gizer -- sgizer@earlysullivan.com -- Early Sullivan Wright Gizer & McRae LLP. SOC LLC, doing business as SOC Nevada LLC, SOC-SMG, Inc. & Day & Zimmerman, Inc., Defendants, represented by Daniel P. Mach -- danielmach@quinnemanuel.com -- Quinn Emanuel, Keith H. Forst -- keithforst@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice, Kristen L. Martini -- kmartini@lrrc.com -- Lewis Roca Rothgerber Christie LLP, Tara Melissa Lee -- taralee@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice & E. Leif Reid -- lreid@lrrc.com -- Lewis Roca Rothgerber LLP. Day & Zimmerman, Inc., Defendant, represented by Daniel P. Mach, Quinn Emanuel, Derick Koo Sohn, Jr., Quinn Emanuel Urquhart & Sullivan, LLP, Keith H. Forst, Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice, Kristen L. Martini, Lewis Roca Rothgerber Christie LLP, Tara Melissa Lee, Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice & E. Leif Reid, Lewis Roca Rothgerber LLP. TEXTRON INC: Schall Law Files Class Action Lawsuit -------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against Textron Inc. (NYSE:TXT) for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's shares between January 31, 2018 and October 17, 2018, inclusive (the "Class Period"), are encouraged to contact the firm before October 21, 2019. We also encourage you to contact Brian Schall of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Textron suffered from slowing end-market sales of Arctic Cat products, leaving the sales channel filled with excess inventory. The Company provided significant discounts in an effort to clear the aging inventory, which impacted its earnings. Based on these facts, the Company's public statements were false and materially misleading. When the market learned the truth about Textron, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. Contact: Brian Schall, Esq., The Schall Law Firm Office: 310-301-3335 Cell: 424-303-1964 Website: www.schallfirm.com Email: info@schallfirm.com brian@schallfirm.com [GN] TRAVELERS COMMERCIAL: Callaghan Suit Moved to M.D. Florida ---------------------------------------------------------- The case captioned as Susan Callaghan, individually and on behalf of all others similarly situated, the Plaintiff, vs. Travelers Commercial Insurance Company, the Defendant, Case No. 2019-CA-008927-O, was removed from the Circuit Court of the Ninth Judicial Circuit, to the U.S. District Court for the Middle District of Florida (Orlando) on Aug. 22, 2019. The Middle District of Florida Court Clerk assigned Case No. 6:19-cv-01633-WWB-LRH to the proceeding. The case is assigned to the Hon. Judge Wendy W. Berger. The suit alleges Insurance Contract related violation. Travelers Commercial Insurance Company operates as an insurance firm. The Company underwrites fire, marine, flood, auto, boat and yacht, and casualty insurance products and solutions. Travelers Commercial Insurance Company serves customers in the United States.[BN] Attorneys for the Plaintiff are: Alec H. Schultz, Esq. LEON COSGROVE, LLC 255 Alhambra Cir Ste 800 Coral Gables, FL 33134-7412 Telephone: (305) 740-1986 Facsimile: (305) 437-8158 E-mail: aschultz@leoncosgrove.com - and - Casim Adam Neff, Esq. NEFF INSURANCE LAW, PLLC PO Box 15063 St. Petersburg, FL 33733-5063 Telephone: (727) 342-0617 E-mail: cneff@neffinsurancelaw.com - and - Craig E. Rothburd, Esq. CRAIG E. ROTHBURD, PA 320 W Kennedy Blvd Ste 700 Tampa, FL 33606-1459 Telephone: (813) 251-8800 Facsimile: (813) 251-5042 E-mail: craig@rothburdpa.com - and - Edward H. Zebersky, Esq. Mark S. Fistos, Esq. ZEBERSKY & PAYNE, LLP 110 SE 6th St., Suite 2150 Ft Lauderdale, FL 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 E-mail: ezebersky@zpllp.com mfistos@zpllp.com - and - Scott R. Jeeves, Esq. JEEVES LAW GROUP, PA 954 First Ave N St Petersburg, FL 33705 Telephone: (727) 894-2929 Facsimile: (727) 822-1499 E-mail: sjeeves@jeeveslawgroup.com Attorneys for Travelers Commercial Insurance Company are: Kyle A. Diamantas, Esq. Hal Kemp Litchford, Esq. BAKER, DONELSON, BEARMAN CALDWELL & BERKOWITZ, PC 200 S Orange Ave., Ste 2900 Orlando, FL 32801 Telephone: (407) 422-6600 Facsimile: (407) 841-0325 E-mail: kdiamantas@bakerdonelson.com hlitchford@bakerdonelson.com TRIPPE MANUFACTURING: Mims Suit Asserts BIPA Violation ------------------------------------------------------ JOSHUA EDEN MIMS individually and on behalf of all others similarly situated, Plaintiff v. TRIPPE MANUFACTURING COMPANY d/b/a Tripp Lite Defendant, Case No. 2019CH10189 (Circuit Ct., Cook Cty., Ill., Sept. 3, 2019) is a Class Action Complaint and Demand for Jury Trial against Defendant to put a stop to its unlawful collection, use, and storage of Plaintiffs and the putative Class members' sensitive biometric data. According to the complaint, when employees first begin their jobs at Trippe, they are required to scan their hand print in its biometric time tracking system as a means of authentication, instead of using only key fobs or other identification cards. While there are tremendous benefits to using biometric time clocks in the workplace, there are also serious risks. Recognizing the need to protect its citizens from situations like these, Illinois enacted the Biometric Information Privacy Act ("BIPA") specifically to regulate companies that collect and store Illinois citizens' biometrics, such as handprints. Despite this law, Trippe disregarded its employees' statutorily protected privacy rights and unlawfully collects, stores, and uses their biometric data in violation of the BIPA, asserts the complaint. Plaintiff is a natural person and citizen of the State of Illinois. Trippe is a manufacturing company located in Chicago, Illinois.[BN] The Plaintiff is represented by: David Fish, Esq. John Kunze, Esq. THE FISH LAW FIRM, P.C. 200 East Fifth Avenue, Suite 123 Naperville, IL 60563 Phone: 630.355.7590 Fax: 630.778.0400 Email: admin@fishlawfirm.com dfish@fishlawfirm.com jkunze@fishlawfirm.com UNITED STATES: Medicare Patients Sue Over Nursing Home Coverage --------------------------------------------------------------- Susan Jaffe, writing for Kaiser Health News, reports that Medicare paid for Betty Gordon's knee replacement surgery in March, but the 72-year-old former high school teacher needed a nursing home stay and care at home to recover. Yet Medicare wouldn't pay for that. So Gordon is stuck with a $7,000 bill she can't afford -- and, as if that were not bad enough, she can't appeal. The reasons Medicare won't pay have frustrated the Rhode Island woman and many others trapped in the maze of regulations surrounding something called "observation care." Patients, like Gordon, receive observation care in the hospital when their doctors think they are too sick to go home but not sick enough to be admitted. They stay overnight or longer, usually in regular hospital rooms, getting some of the same services and treatment (often for the same problems) as an admitted patient -- intravenous fluids, medications and other treatment, diagnostic tests and round-the-clock care they can get only in a hospital. But observation care is considered an outpatient service under Medicare rules, like a doctor's appointment or a lab test. Observation patients may have to pay a larger share of the hospital bill than if they were officially admitted to the hospital. Plus, they have to pick up the tab for any nursing home care. Medicare's nursing home benefit is available only to those admitted to the hospital for three consecutive days. Gordon spent three days in the hospital after her surgery, but because she was getting observation care, that time didn't count. There's another twist: Patients might want to file an appeal, as they can with many other Medicare decisions. But that is not allowed if the dispute involves observation care. On Aug. 12, a trial was set to begin in federal court in Hartford, Conn., where patients who were denied Medicare's nursing home benefit are hoping to force the government to eliminate that exception. A victory would clear the way for appeals from hundreds of thousands of people. The class-action lawsuit was filed in 2011 by seven Medicare observation patients and their families against the Department of Health and Human Services. Seven more plaintiffs later joined the case. "This is about whether the government can take away health care coverage you may be entitled to and leave you no opportunity to fight for it," said Alice Bers, litigation director at the Center for Medicare Advocacy, one of the groups representing the plaintiffs. If they win, people with traditional Medicare who received observation care services for three days or longer since Jan. 1, 2009, could file appeals seeking reimbursement for bills Medicare would have paid had they been admitted to the hospital. More than 1.3 million observation claims meet these criteria for the 10-year period through 2017, according to the most recently available government data. Gordon is not a plaintiff in the case, but she said the rules forced her to borrow money to pay for the care. "It doesn't seem fair that after paying for Medicare all these years, you're told you're not going to be covered now for nursing home care," Gordon said. No one has explained to Gordon, who has hypoglycemia and an immune disease, why she wasn't admitted. The federal notice hospitals are required to give Medicare observation patients didn't provide answers. Even Seema Verma, the head of the Centers for Medicare & Medicaid Services, is puzzled by the policy. "Better be admitted for at least 3 days in the hospital first if you want the nursing home paid for," she said in a tweet Aug. 4. "Govt doesn't always make sense. We're listening to feedback." Her office declined to provide further explanation. Patients and their families can try to persuade the physician or hospital administrators to change their status, and sometimes that strategy works. If not, they can leave the hospital to avoid the extra expenses, even if doing so is against medical advice. The requirement of three consecutive days as a hospital inpatient to qualify for nursing home coverage is written into the Medicare law. But there are exemptions. Medicare officials don't apply it to beneficiaries in some pilot programs and allow private Medicare Advantage insurers to waive it for their patients. Concerned about the growing number of people affected by observation care, Medicare officials created a "two-midnight" rule in 2013. If a doctor expects a patient will be sick enough to stay in the hospital through two midnights, then it says the patient should generally be admitted as an inpatient. Yet observation claims have increased by about 70% since 2008, to more than 2 million in 2017. Claims for observation care patients who stay in the hospital for longer than 48 hours — who likely would qualify for nursing home coverage had they been admitted —rose by nearly 159%, according to data Kaiser Health News obtained from CMS. Yet the overall growth in traditional Medicare enrollment was just under 9%. Justice Department lawyers handling the case declined to be interviewed, but in court filings they argue that the lawsuit accuses the wrong culprit. The government can't be blamed, the lawyers said, because the "two-midnight" rule gives hospitals and doctors — not the government — the final word on whether a patient should be admitted. The government's lawyers argue that since Medicare "has not established any fixed or objective criteria for inpatient admission," any decision to admit a patient is not "fairly traceable" to the government. Like Gordon, some doctors also complain about observation care rules. An American Medical Association spokesman, who spoke on condition of not being named, said the "two-midnight" policy "is challenging and illogical" and should be rescinded. "CMS should instead rely on physicians' clinical judgment to determine a patient's inpatient or outpatient status," he added. HHS' Office of Inspector General urged CMS to count observation care days toward the three-day minimum needed for nursing home coverage. It's No. 1 on a list issued in July of the 25 most important inspector general's recommendations the agency has failed to implement. The Medicare Payment Advisory Commission, which counsels Congress, has made a similar suggestion. However, Colin Milligan, a spokesman for the American Hospital Association, is more positive about the "two-midnight" rule. It "recognizes the important role of physician judgment," he said. Medicare isn't dictating what physicians must do, said a physician who has researched the effects of observation care. "It's a benchmark upon which to base your decisions, not a standard or a mandate," said Dr. Michael Ross, a professor of emergency medicine at Emory University School of Medicine in Atlanta. He supervises observation care units at Emory's five hospitals and was chairman of a CMS advisory subcommittee on observation care. Other physicians claim that since HHS pays hospitals and doctors to treat Medicare patients, the agency's policies weigh on their decisions. "One of the hardest things to do is to get physicians to predict what will happen with patients -- we like to hedge our bets and account for all possibilities," said Dr. Tipu Puri, a physician adviser and medical director at the University of Chicago's medical center. "But we're being forced to interpret the rules and read between the lines." In the meantime, observation care patients who get follow-up care at a nursing home may soon receive a puzzling notice. A Medicare fact sheet issued in July "strongly encourages" nursing home operators to give an "advance beneficiary notice of non-coverage" to patients who arrive without the required prior three-day hospital admission. But that notice says they can choose to seek reimbursement by submitting an appeal to Medicare -- an option government lawyers will argue in court is impossible. [GN] UPS SUPPLY: Jones et al Seek Overtime Pay for California Drivers ---------------------------------------------------------------- SUE JONES and ROBERT ALLEN JONES, individually, and on behalf of all others similarly situated, the Plaintiffs, vs. UPS SUPPLY CHAIN SOLUTIONS, INC., a Delaware Corporation; UNITED PARCEL SERVICE, INC., an Ohio Corporation; and DOES 1 through 100, inclusive, the Defendants, Case No. CGC-19-578596 (Cal. Super. Ct., Aug. 22, 2019), alleges that Defendants failed to provide required meal periods, failed to provide required rest periods, failed to pay overtime wages, failed to pay minimum wage, failed to pay all wages due to discharged or quitting employees, failed to maintain required records, and failed to provide accurate itemized statements under the California Labor Code. The Plaintiffs are former drivers who worked separately and as a team for Defendants in the State of California. As a direct and proximate result of the unlawful actions of Defendants suffered, and continue to suffer, from loss of earnings in amounts as yet unascertained, but subject to proof at trial. UPS Supply provides supply chain services. The Company offers transportation, freight, logistics, distribution, consulting, and customs brokerage services. UPS Supply Chain Solutions also offers consulting services for the automotive, industrial manufacturing, and healthcare industries worldwide.[BN] Attorneys for the Sue Jones and Robert Allen Jones, individually, and on behalf of all others similarly situated, are: Taras Kick, Esq. Daniel J. Bass, Esq. THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Telephone: (31 0) 395-2988 Facsimile: (31 0) 395-2088 E-mail: Taras@kicklawfrrm.com Daniel@kicklawfrrm.com US BANCORP: Leeson Appeals Bankr. Ct. Ruling to W.V. Dist. Ct. -------------------------------------------------------------- Plaintiffs Jacob Crum and George Leeson filed an appeal from a judgment/order issued in the bankruptcy case titled Leeson, et al. v. U.S. Bancorp Government Leasing and Finance, Inc., et al., Case No. 1:17-bk-00057, in the U.S. Bankruptcy Court for the Northern District of West Virginia. As previously reported in the Class Action Reporter, Defendants U.S. Bancorp Government Leasing and Finance, Inc., and Wells Fargo Commercial Mortgage Servicing removed on April 9, 2018, the class action lawsuit from the Circuit Court of Kanawha County, West Virginia, to the U.S. Bankruptcy Court for the Northern District of West Virginia (Clarksburg). The nature of suit is stated as recovery of money/property. The appellate case is captioned as Leeson, et al. v. U.S. Bancorp Government Leasing and Finance, Inc., et al., Case No. 1:19-cv-00169-TSK, in the U.S. District Court for the Northern District of West Virginia (Clarksburg).[BN] Plaintiffs-Appellants George Leeson and Jacob Crum, on behalf of themselves and all others similarly situated, are represented by: Alex D. McLaughlin, Esq. John H. Skaggs, Esq. W. Stuart Calwell, Jr., Esq. THE CALWELL PRACTICE, LC Law and Arts Center West 500 Randolph St. Charleston, WV 25302 Telephone: (304) 343-4323 Facsimile: (304) 344-3684 E-mail: amclaughlin@calwelllaw.com jskaggs@calwelllaw.com scalwell@calwelllaw.com Appellees U.S. Bancorp Government Leasing and Finance, Inc. as Trustee for the benefit of COMM 2013-CCRE12 Mortgage Trust Commercial Mortgage Pass-through Certificates and Wells Fargo Commercial Mortgage Servicing are represented by: Christopher P. Schueller, Esq. BUCHANAN INGERSOLL & ROONEY, LLP One Oxford Centre 301 Grant St., 20th Floor Pittsburgh, PA 15219 Telephone: (412) 562-8800 Facsimile: (412) 562-1041 E-mail: christopher.schueller@bipc.com - and - Elinor H. Murarova, Esq. Paul Chronis, Esq. DUANE MORRIS LLP 190 South LaSalle Street, Suite 3700 Chicago, IL 60603 Telephone: (312) 499-6765 E-mail: ehart@duanemorris.com pechronis@duanemorris.com - and - Gerard M. Stowers, Esq. J. Mark Adkins, Esq. BOWLES, RICE, MCDAVID, GRAFF & LOVE LLP PO Box 1386 600 Quarrier St. Charleston, WV 25325-1386 Telephone: (304) 347-1112 Facsimile: (304) 347-1756 E-mail: gstowers@bowlesrice.com madkins@bowlesrice.com USAA SAVINGS: Faces Tarter Suit in District of Massachusetts ------------------------------------------------------------ A class action lawsuit has been filed against USAA Savings Bank. The case is captioned as Helen Tarter, on behalf of herself and all others similarly situated, the Plaintiff, vs. USAA Savings Bank, the Defendant, Case No. 1:19-cv-11821-IT (D. Mass., Aug. 23, 2019). The suit demands $750,000 worth of damages. The case is assigned to the Hon. Judge Indira Talwani. USAA Federal Savings Bank operates as a full service bank. The Bank accepts deposits, makes loans and provides other services for the public.[BN] Attorneys for the Plaintiff are: Sergei Lemberg, Esq. LEMBERG LAW, L.L.C. 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 x5500 Facsimile: (203) 653-3424 E-mail: slemberg@lemberglaw.com Attorneys for the USAA Savings Bank: Christine Kingston, Esq. Kevin P. Polansky, Esq. NELSON MULLINS RILEY & SCARBOROUGH LLP One Post Office Square, 30th Floor Boston, MA 02109 Telephone: (617) 217-4700 Facsimile: (617) 217-4710 E-mail: christine.kingston@nelsonmullins.com kevin.polansky@nelsonmullins.com VERB TECHNOLOGY: Kirby McInerney Files Class Action Lawsuit ----------------------------------------------------------- The law firm of Kirby McInerney LLP announces that a class action lawsuit has been filed in the U.S. District Court for the Central District of California on behalf of those who acquired Verb Technology Company, Inc. (Verb or the Company) (NASDAQ: VERB) securities during the period from January 3, 2018 to May 2, 2018 (the Class Period). Investors have until September 9, 2019 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On January 3, 2018, Verb announced a purported agreement with Oracle America, Inc. (Oracle). The lawsuit alleges that Verb made false and/or misleading statements as to the scope of its agreement with Oracle. On April 23, 2018, Verb revealed the actual terms of its agreement with Oracle. Contrary to prior representations, the Company did not have a contract with Oracle to jointly develop and market the Companys product. As the market digested the true nature of the Oracle agreement, the stock began a precipitous decline, closing on April 30, 2018 at $1.54 per share, a decrease of 43% from the high a week prior. The market continued to digest this information and by the market close on May 2, 2018, the Companys stock was trading at $1.08 per share, a decrease of 64% from the high price of $3.04 per share on April 20, 2018. Verb was formerly known as Nfusz Inc. If you acquired Verb securities during the Class Period, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney at 212-371-6600, by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney is a New York-based plaintiffs law firm concentrating in securities, antitrust, and whistleblower litigation. The firms efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerneys website: www.kmllp.com. Contact: Thomas W. Elrod, Esq. Kirby McInerney LLP Tel.: (212) 371-6600 Email: investigations@kmllp.com telrod@kmllp.com Website: www.kmllp.com [GN] WAWA INC: Settles Class Action Over Unpaid OT Wages for $1.4MM -------------------------------------------------------------- According to South Jersey Times Editorial Board, a well-known, iconic brand name showed up the other day in the list of employers who are accused of shortchanging their workers. Wawa Inc., is generally considered a decent company to work for, but there it was: news of a $1.4 million settlement that will bring back pay to employees who were classified as ineligible for overtime. Wawa denies any wrongdoing, but it appears that the "Shorties" assembled behind the hoagie counter were not the only ones the convenience store chain was handing out. This announced settlement of a class-action lawsuit involved more than 300 "assistant general managers" who worked more than 40 hours a week, but were classified as salaried, and thus considered as not entitled to any additional compensation. Filed in U.S. District Court in Trenton, the lawsuit covered several states. The 333 represented employees will receive an average of $86.74 for each week in which alleged wage violations occurred. Not to pick on Wawa, but it's hoped that the case will bring some notoriety to this insidious form of wage theft that, like the workers' hours, is underreported. If a beloved, image-conscious firm like Wawa is mixed up in this, there are likely to be others that are not as well regarded. The case should serve as a stark reminder that wage theft -- which is so often connected to minimum-wage jobs, undocumented immigrants and other vulnerable populations -- happens to better-paid, presumably middle-class folks as well. The food-service and retail industries are notorious for fictional job descriptions that hide the true nature of the work. If you have to clean out the fryer, or fill in for counter help that doesn't show up, you are not doing the work of a "manager." In newsrooms, especially non-union ones, this kind of thing was referred to years ago as "being paid in titles." Congratulations! You've been promoted! You're no longer a reporter. You're an "editor," or at TV workplaces, an "executive producer." What it meant is that, for an insignificant or non-existent salary boost, your employer got to work you for 60 or 70 hours a week without paying you anything extra. Your vacation? Don't think about taking all of it, since the bosses never hire anyone to fill in for you. Other industries, white-collar and blue-collar alike, have institutionalized similar misclassifications. With the growth of the "gig," or freelance economy, this sort of thing is finally getting some attention. The issue involves, among others, Lyft and Uber drivers, and whether or not they are truly independent contractors. Expect more skirmishes going forward. In July, Gov. Phil Murphy promised that the state Department of Labor will crack down on misclassifications, after noting, correctly, that the federal government appears to be disinclined to do so. A task force has issued good some recommendations, including more publicity, education for employers, and a hotline for employees to report abuses. Lt. Gov. Shiela Oliver signed new penalties against employers that refuse to pay overtime, or deny promised benefits and even hold back base wages. As usual, the focus was on low-wage workers who are the most likely to be exploited. As the Wawa case shows, wage theft is not confined to those who pump gas, wash cars or toil invisibly in the back restaurants. Blue-chip companies and their trade groups will always claim that violations are unintentional, citing "mistakes" or "clerical errors." In too many cases, though, this is baked into the employer's business plan, and it needs to be stopped. [GN] WINGED FOOT: Court Denies Bid to Certify Class in Clune Suit ------------------------------------------------------------ In the case, KEVIN P. CLUNE, as Executor of the Estate of Barbara B. Clune, individually and on behalf of all others similarly situated, and JAMES E. FISHER, individually and on behalf of all others similarly situated, Plaintiffs, v. DESMOND T. BARRY, JR., WINGED FOOT GOLF CLUB, INC., JOHN DOES NOS. 1-10, DANIEL L. MOSLEY, GAIL G. GARCIA, JOHN D. GILLESPIE, Defendants, No. 16-CV-4441 (NSR) (S.D. N.Y.), Judge Nelson S. Roman of the U.S. District Court for the Southern District of New York denied the Plaintiffs' motion for class certification. Clune, as Executor of the Estate of Barbara B. Clune, and Fisher, bring the putative class action against the Defendants. They seek a judgment designating the Plaintiffs as the class representatives and certifying the class action. In addition, they request that the Court finds that the Defendants are liable for violations of the Securities and Exchange Act Section 10(b), commission of common law fraud, and breach of their fiduciary duties to Plaintiffs and the class. The Plaintiffs also seek rescission of allegedly fraudulently induced sales of Winged Foot Holding Corp. ("WFHC") shares and dissolution of WFHC. In 1921, WFHC was formed and authorized to issue 600 shares, to be sold to the members of the Winged Foot Golf Club. Initially, all WFHC shareholders were also members of the Club. In the 1930s, the Club began admitting yearly, and eventually regular, members who were not required to own shares in WFHC. The Club also began to purchase WFHC shares. Shortly after its formation, WFHC purchased land which it leased to the Club for an initial term of twenty-one years. In exchange, the Club, in addition to paying all taxes, insurance costs, and property maintenance fees, placed all of its dues and gross receipts into a general fund to be used for specified expenses and as rent paid to WFHC. The lease was renewed in 1945 and was amended two years later to require $30,000 in annual rent payments, replacing the previous arrangement. This version of the lease has been renewed on multiple occasions. On Sept. 15, 1961, in anticipation of a lease renewal, the Club obtained a legal memorandum from a law firm about the treatment of WFHC and the status of the lease. The Plaintiffs claim that since receiving that memorandum, the Defendants have provided false and misleading statements relating to the value of WFHC shares to WFHC shareholders. Some of these shareholders, allegedly, sold their shares in reliance on this information, and the Plaintiffs bring the action on behalf of all such individuals. Currently before the Court is the Plaintiffs' motion for class certification. Judge Roman denied the Plaintiffs' motion for certification for two reasons. First, the proposed Class would be unmanageable. Identifying Class members will likely involve examining estate documents for former shareholders, determining the sufficiency of transmission of shares to heirs, and potentially resolving disputes between potential heirs to shares in multiple states. The Plaintiffs estimate that the Class will include approximately 170 members. Such an undertaking for over one hundred individuals and discrete transactions, sprawled over many decades and most likely across state lines, presents substantial manageability concerns. Second, and more importantly, the Plaintiffs fail to meet Rule 23's numerosity requirement. While courts presume numerosity for classes larger than 40, a proposed class of three individuals falls far short of the presumption threshold. Joinder of three individuals into one suit is not impracticable. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 99. A full-text copy of the Court's July 26, 2019 Opinion and Order is available at https://is.gd/MLNWgw from Leagle.com. Kevin P. Clune, As Executor of the Estate of Barbara B. Clune, Individually and on behalf of all others similarly situated, Plaintiff, represented by Adam C. Mayes -- AMayes@lshllp.com -- Lovell Stewart Halebian LLP & John Halebian -- JHalebian@lshllp.com -- Lovell Stewart Halebian Jacobson LLP. James E. Fisher, Individually and on behalf of all others similarly situated, Plaintiff, represented by John Halebian, Lovell Stewart Halebian Jacobson LLP. Desmond T. Barry, Jr., Winged Foot Golf Club, Inc. & John Does, Defendants, represented by Maeve L. O'Connor -- mloconnor@debevoise.com -- Debevoise & Plimpton, LLP, Susan Reagan Gittes -- srgittes@debevoise.com -- Debevoise & Plimpton LLP & William David Sarratt -- dsarratt@debevoise.com -- Debevoise & Plimpton, LLP. YU BROTHERS INC: Mena Seeks Pay of All Overtime Hours Worked ------------------------------------------------------------ Omar Mena, and others similarly-situated, Plaintiff, v. YU BROTHERS INC., d/b/a Southeastern Food Supplies, a Florida Corporation, Defendant, Case No. 1:19-cv-23629-KMW (11th Circuit Ct., Miami-Dade Cty., Fla., Aug. 29, 2019) seeks to recover money damages for unpaid overtime wages under the laws of the United states pursuant to the Fair Labor Standards Act. Plaintiff regularly worked in excess of 40 hours per week, but was not compensated at the rate of time-and-half his regular rate for all hours worked in excess of 40 per week, says the complaint. Although Defendant paid Plaintiff for some of his overtime hours, it intentionally or with reckless disregard failed to Plaintiff for all of his overtime hours. Payment for some but not all the overtime hours worked was designed to feign compliance with the FLSA, the complaint notes. Plaintiff was employed as a delivery driver by Defendant from approximately January 2018 through February 2019. Defendant is in the business of selling food and other materials to Chinese restaurants.[BN] The Plaintiff is represented by: Eddy O. Marban, Esq. THE LAW OFFICES OF EDDY O. MARBAN 2655 S. LeJeune Road, Suite 804 Coral Gables, FL 33134 Phone: (305) 448-9292 Facsimile: (786) 209-9978 Email: em@eddymarbanlaw.com ZB NA: Court Allows Leave to File FAC in Evans ---------------------------------------------- The United States District Court for the Eastern District of California, Sacramento Division, issued an Order granting Leave to File First Amended Complaint in the case captioned RONALD C. EVANS, an individual; JOAN M. EVANS, an individual; DENNIS TREADAWAY, an individual; and all others similarly situated, Plaintiffs, v. ZB, N.A., a national banking association, dba California Bank & Trust, Defendant. Case No. 2:17-cv-01123-WBS-DB. (E.D. Cal.). The Putative Class Action Representatives filed a Class Action Complaint against CB&T. This Court issued a Memorandum and Order Re: Motion to Dismiss, dismissing the Complaint. The Putative Class Action Representatives subsequently appealed this Court's dismissal. The U.S. Court of Appeals for the Ninth Circuit reversing, vacating, and remanding this Court's decision dismissing the Complaint. The Ninth Circuit denied CB&T's Petition for Panel Rehearing and for Rehearing En Banc. Counsel for the Parties met and conferred via telephone on August 21, 2019. Pursuant to this telephone conversation, the Parties agreed to the following schedule, subject to this Court's approval: The Putative Class Action Representatives shall file and serve a First Amended Complaint (FAC) on or before October 14, 2019; andb. CB&T shall file and serve an answer or other responsive pleading, which may include a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure, on or before November 15, 2019. Based upon the Parties' Stipulation, and good cause appearing, the Court ordered: 1. the Putative Class Action Representatives shall file and serve a First Amended Complaint, consistent with the Ninth Circuit's Memorandum, on or before October 14, 2019 and 2. CB&T shall file and serve an answer or other responsive pleading, which includes the filing and service of a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure, on or before November 15, 2019.3. The Status Conference scheduled for September 16, 2019 at 1:30 p.m. is hereby continued to January 21, 2020 at 1:30 p.m. A joint status report shall be filed no later than January 7, 2020. The full-text copy of the District Court's August 29, 2019 Order is available at https://tinyurl.com/y4putd3t from Leagle.com. Ronald C. Evans, Joan M. Evans & Dennis Treadaway, Plaintiffs, represented by Michael Patrick Denver -- mpdenver@hbsb.com -- Hollister & Brace & Robert Louis Brace -- rlbrace@rusty.lawyer ZB, N.A., Doing business as, Defendant, represented by Robert Scott McWhorter -- rmcwhorter@buchalter.com -- Buchalter, A Professional Corporation & Jarrett S. Osborne-Revis -- josbornerevis@buchalter.com -- Buchalter, A Professional Corporation. ZIMMER BIOMET: Man Launches Class-Action Lawsuit Over Hip Implants ------------------------------------------------------------------ Graham Slaughter, writing for CTV News, reports that a proposed class-action lawsuit has been launched on behalf of Canadian patients with a particular type of metal-based hip implant that the lead plaintiff says led to high levels of toxic compounds in his body and triggered a litany of debilitating symptoms. David Goldsmith from Radium Hot Springs, B.C. received a hip implant in 2009 in hopes of improving his quality of life. The metal-on-polyethylene hip replacement is widely used in Canada and is approved by Health Canada. But over the next 10 years, he says his implant dislocated several times, caused him pain and left him with a number of unusual symptoms. "I was experiencing vertigo, I was experiencing balance issues, I was experiencing skin infections that I wouldn't normally experience," Goldsmith told CTV News. Goldsmith visited his doctor, who had a theory. He suspected Goldsmith's implant was breaking down inside his body and shedding metal debris into the tissue around his hip and his bloodstream. The process is known as metallosis, and it has been recorded before in patients with metal-on-metal prostheses. Blood tests confirmed the doctor's suspicions. Chromium levels in Goldsmith's system were eight times higher than normal. His cobalt levels were ten times higher than average. Last December, Goldsmith underwent surgery to have the device replaced. Now, he's launching a proposed class-action suit against the device's American manufacturer, Zimmer Biomet. "I think the company should be punished for having brought these things to the market," he said. The proposed class action, which has not yet been approved, covers anyone in Canada with a metal-on-polyethylene hip implant system "consisting of Zimmer M/L Taper Hip Prosthesis, and Zimmer Versys Hip System or any of the components referenced herein which are manufactured by the Defendants," according to the claim. In a statement to CTV News, the company refused to comment. "We do not comment on litigation," the company said. But complications linked to metal-on-polyethylene implants aren't common in Canada, according to Dr. Bas Masri, the head of orthopaedics at the University of British Columbia. "Even though it's rare, we don't really understand very well as to who is at risk," he said. Masri said stories like Goldsmith's are rare and that Canadians with similar implants shouldn't react in fear. "My biggest concern is that people will start to be worried and concerned that their hips are failing -- their hips are not failing. If they are doing well, they are going to continue to do well and they don't need to worry about it," he said. It's not the first time the company's hip implants have been accused of problems. In 2017, a judge in New Mexico awarded a man with a Zimmer hip implant $2 million after he suffered similar injuries linked to metallosis. [GN] Asbestos Litigation ASBESTOS UPDATE: Aerojet Rocketdyne Faces 61 Cases at June 30 ------------------------------------------------------------- Aerojet Rocketdyne Holdings, Inc. continues to defend itself against 61 asbestos cases pending as of June 30, 2019, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019. Aerojet Rocketdyne states, "The Company has been, and continues to be, named as a defendant in lawsuits alleging personal injury or death and seeking various monetary damages due to exposure to asbestos in building materials, products, or in manufacturing operations. The majority of cases are pending in Illinois state courts. There were 61 asbestos cases pending as of June 30, 2019. "Given the lack of any significant consistency to claims (i.e., as to product, operational site, or other relevant assertions) filed against the Company, the Company is generally unable to make a reasonable estimate of the future costs of pending claims or unasserted claims. As of June 30, 2019, the Company has accrued an immaterial amount related to pending claims." A full-text copy of the Form 10-Q is available at https://is.gd/rWS8ni ASBESTOS UPDATE: American Biltrite Withdraws Appeal in Monaco Case ------------------------------------------------------------------ The First Department of the Appellate Division of the Supreme Court of New York has ordered withdrawn the appeal in the case styled In Re: New York City Asbestos Litigation. Janet Monaco, as Executrix for the Estate of Anthony Monaco, and Janet Monaco, Individually, Plaintiff-Respondent, v. American Biltrite Inc., Defendant-Appellant, A.O. Smith Water Products Co., et al., Defendants. Index No. 190074/16, (N.Y. App. Div. 1d.). The Court in received a notice from counsel for defendant-appellant specifying its withdrawal of the appeal taken from the Sept. 7, 2018 Order of the New York County Supreme Court. A copy of the Order dated Aug. 20, 2019, is available at https://tinyurl.com/yyrn22fv from Leagle.com. ASBESTOS UPDATE: ArvinMeritor Had US$100MM Reserves at June 30 -------------------------------------------------------------- Meritor, Inc.'s subsidiary, ArvinMeritor, Inc., had reserves of US$100 million for asbestos-related liabilities as of June 30, 2019, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019. The Company states, "ArvinMeritor, Inc. ("AM"), a predecessor of Meritor, along with many other companies, has also been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos used in certain components of Rockwell products many years ago. Liability for these claims was transferred at the time of the spin-off of the automotive business from Rockwell in 1997. There were approximately 1,400 pending active asbestos claims in lawsuits that name AM, together with many other companies, as defendants at June 30, 2019 and September 30, 2018. "The company engaged a third-party advisor with extensive experience in assessing asbestos-related liabilities to conduct a study to estimate its potential undiscounted liability for pending and future asbestos-related claims as of September 30, 2018. Management continuously monitors the underlying claims data and experience for the purpose of assessing the appropriateness of the assumptions used to estimate the liability. "As of September 30, 2018, the estimated probable range of equally likely possibilities of the company's obligation for asbestos-related claims over the next 41 years is US$103 million to US$186 million. Based on the information contained in the actuarial study, and all other available information considered, management concluded that no amount within the range of potential liability was more likely than any other and, therefore, recorded a liability at the low end of the range. The company recognized a liability for pending and future claims over the next 41 years of US$100 million as of June 30, 2019 and US$103 million as of September 30, 2018. "AM has insurance coverage that management believes covers indemnity and defense costs, over and above self-insurance retentions, for a significant portion of these claims. The insurance receivables for Rockwell asbestos-related liabilities totaled US$65 million and US$68 million as of June 30, 2019 and September 30, 2018, respectively. "The amounts recorded for the asbestos-related reserves and recoveries from insurance companies are based upon assumptions and estimates derived from currently known facts. All such estimates of liabilities and recoveries for asbestos-related claims are subject to considerable uncertainty because such liabilities and recoveries are influenced by variables that are difficult to predict. The future litigation environment for Rockwell could change significantly from its past experience, due, for example, to changes in the mix of claims filed against Rockwell in terms of plaintiffs' law firm, jurisdiction and disease; legislative or regulatory developments; the company's approach to defending claims; or payments to plaintiffs from other defendants. Estimated recoveries are influenced by coverage issues among insurers and the continuing solvency of various insurance companies. If the assumptions with respect to the estimation period, the nature of pending claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Rockwell asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations." A full-text copy of the Form 10-Q is available at https://is.gd/XLjJcI ASBESTOS UPDATE: Corning Had $145MM Non-PCC Reserves at June 30 --------------------------------------------------------------- Corning Incorporated's reserve for asbestos claims that are unrelated to Pittsburgh Corning Corporation ("PCC") was US$145 million at June 30, 2019, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019. The Company states, "Corning is a defendant in certain cases alleging injuries from asbestos unrelated to PCC (the "non-PCC asbestos claims") which had been stayed pending the confirmation of the Plan. The stay was lifted on August 25, 2016. "At June 30, 2019 and December 31, 2018, the amount of the reserve for these non-PCC asbestos claims was estimated to be US$145 million and US$146 million, respectively. The reserve balance as of June 30, 2019 represents the undiscounted projection of claims and related legal fees for the estimated life of the litigation." A full-text copy of the Form 10-Q is available at https://is.gd/gKM8FC ASBESTOS UPDATE: Corning Inc. Has $135MM PCC Liability at June 30 ----------------------------------------------------------------- Corning Incorporated disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019, that the total amount of remaining payments due in years 2020 through 2023 for asbestos claims under the reorganization plan of Pittsburgh Corning Corporation (PCC) is US$135 million, of which US$35 million will be paid in the second quarter of 2020. The Company states, "Corning and PPG Industries, Inc. each owned 50% of the capital stock of Pittsburgh Corning Corporation ("PCC"). PCC filed for Chapter 11 reorganization in 2000, and the Modified Third Amended Plan of Reorganization for PCC (the "Plan") became effective in April 2016. "At December 31, 2016, the Company's liability under the Plan was US$290 million, which is required to be paid through a series of fixed payments that began in the second quarter of 2017. Payments of US$50 million and US$35 million were made in June 2019 and June 2018, respectively. The total amount of remaining payments due in years 2020 through 2023 is US$135 million, of which US$35 million will be paid in the second quarter of 2020 and is classified as a current liability. The remaining US$100 million is classified as a non-current liability." A full-text copy of the Form 10-Q is available at https://is.gd/gKM8FC ASBESTOS UPDATE: Court to Set New Trial Date in Clayton's Case -------------------------------------------------------------- Judge James L. Robart of the U.S. District Court for the Western District of Washington directed the Clerk to set a new trial date at the end of the court's trial calendar and a corresponding pretrial schedule in the case styled the William R. Clayton, et al., Plaintiff, v. Air & Liquid Systems Corporation, et al., Defendants, Case No. C18-0748JLR, (W.D. Wash.). Defendant Syd Carpenter Marine Contractor, Inc. filed a motion to continue the trial date on the ground that "the nature of the damages and claims have changed in light of Mr. Clayton's passing." Several days after discovery closed in this case, Plaintiffs William R. Clayton and Jill D. Clayton filed a motion to amend their complaint to re-plead the case as a wrongful death and survivorship action. The court granted Plaintiffs' motion and Plaintiffs filed their first amended complaint for wrongful death and survivorship, and subsequently filed a corrected first amended complaint on Aug. 15. The corrected amended complaint alleges that "William Clayton's other statutory beneficiaries have sustained loss of personal consortium in an amount to be proven at trial." The Court also allowed Syd Carpenter Marine Contractor, Inc. to conduct limited discovery on Mrs. Clayton and the two Clayton heirs on the issue of damages, which must be completed by Nov. 18, 2019. A copy of the Order dated Aug. 19, 2019, is available at https://tinyurl.com/yyqjb8t7 from Leagle.com. Jill D. Clayton, as Executor of the William Richard Clayton, Plaintiff, represented by Glenn S. Draper -- glenn@bergmanlegal.com -- BERGMAN DRAPER OSLUND, Matthew Phineas Bergman -- matt@bergmanlegal.com -- BERGMAN DRAPER OSLUND, Ruby K. Aliment , BERGMAN DRAPER OSLUND & Vanessa Firnhaber Oslund -- vanessa@bergmanlegal.com -- BERGMAN DRAPER OSLUND. Syd Carpenter Marine Contractor Inc, Defendant, represented by J. Scott Wood -- swood@foleymansfield.com -- FOLEY & MANSFIELD & R. Dirk Bernhardt , FOLEY & MANSFIELD. Vigor Shipyards Inc, a subsidiary of Vigor Shipyards Inc. Todd Shipyards, Defendant, represented by D. David Steele , YARON & ASSOCIATES, pro hac vice, George D. Yaron , YARON & ASSOCIATES, pro hac vice & Walter Eugene Barton -- gbarton@karrtuttle.com -- KARR TUTTLE CAMPBELL. Syd Carpenter Marine Contractor Inc, Consol Defendant, represented by Diane Catherine Babbitt -- dbabbitt@foleymansfield.com -- FOLEY & MANSFIELD, J. Scott Wood -- swood@foleymansfield.com -- FOLEY & MANSFIELD, R. Dirk Bernhardt , FOLEY & MANSFIELD, Zackary A. Paal -- zpaal@foleymansfield.com -- FOLEY & MANSFIELD & Brian Bernard Smith -- bsmith@foleymansfield.com -- FOLEY & MANSFIELD. ASBESTOS UPDATE: Enstar Group Had $249.1MM Liability at June 30 --------------------------------------------------------------- Enstar Group Limited recorded Direct Asbestos Liabilities of US$249,120,000 as of June 30, 2019, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019. The Company states, "We acquired DCo LLC ("DCo") on December 30, 2016. DCo continues to process asbestos personal injury claims in the normal course of business and is separately managed. "Other liabilities on our consolidated balance sheets include amounts for indemnity and defense costs for pending and future claims, determined using standard actuarial techniques for asbestos-related exposures. Other liabilities also include amounts for environmental liabilities associated with DCo's properties. "Other assets on our consolidated balance sheets include estimated insurance recoveries relating to these liabilities. The recorded asset represents our assessment of the capacity of the insurance agreements to provide for the payment of anticipated defense and indemnity costs for pending claims and projected future demands. The recognition of these recoveries is based on an assessment of the right to recover under the respective contracts and on the financial strength of the insurers. The recorded asset does not represent the limits of our insurance coverage, but rather the amount we would expect to recover if the accrued indemnity and defense costs were paid in full." A full-text copy of the Form 10-Q is available at https://is.gd/k12ixj ASBESTOS UPDATE: Expert's Opinion Excluded From Jackson Case ------------------------------------------------------------ Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia has excluded the product contamination opinion of expert witness, Dr. Ronald Gordon, from the case styled Brian Jackson, Individually, and as Personal Representative of the Estate of Doris Jackson, Deceased, Plaintiff, v. Colgate-Palmolive Company, Defendant, Civil Action No. 15-01066 (TFH), (D.D.C.). Plaintiff alleges that his mother developed mesothelioma due to asbestos exposure from her decades-long use of Cashmere Bouquet talcum powder, which was manufactured, marketed, and/or sold by Defendant Colgate-Palmolive Company from 1871 through 1995. Plaintiff has proffered Dr. Ronald Gordon -- a pathologist and microscopist with a Ph.D. in biology and experimental pathology -- as an expert to testify regarding his testing and analysis of various samples of Cashmere Bouquet-labeled talcum powder, as well as his analysis and opinions concerning Ms. Jackson's lung and lymph node tissue. Colgate seeks to exclude Dr. Gordon's opinions that (1) he detected asbestos in every Cashmere Bouquet-labeled talc sample he tested, and (2) Ms. Jackson's lymph node tissue contained the same type of asbestos he found in the talc and that the asbestos in the talc therefore caused Ms. Jackson's mesothelioma. Colgate argues that Dr. Gordon's opinions are unreliable and should be excluded pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). As summarized in his 2014 article titled Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women, Dr. Gordon tested over 50 containers of Cashmere Bouquet-labeled talc and "found asbestos fibers in all those containers," specifically anthophyllite, tremolite, and chrysotile. Dr. Gordon also reviewed all of the grid openings on every grid of talc he tested, but he did not record the location of the grid openings containing the fibers he determined to be asbestos. Dr. Gordon extrapolates these findings to conclude that "every container of Cashmere Bouquet contained some amount of asbestos." Dr. Gordon also opines that Ms. Jackson was exposed to tremolite asbestos above background levels, that Ms. Jackson had mesothelioma caused by asbestos, and that his findings of asbestos in the vintage talc samples are consistent with his findings of asbestos in Ms. Jackson's lymph node tissue. Dr. Gordon detected one fiber of tremolite asbestos in Ms. Jackson's lymph node tissue, and he then extrapolated that finding to conclude that "electron microscopic analysis of the lymph node tissue revealed amphibole type asbestos fibers in a calculated concentration of 9409 fibers per gram wet weight with a limit of detection of 9409 fibers per gram wet weight." The Court finds that Dr. Gordon's product contamination opinion is unreliable and should therefore be excluded under Daubert for two independent reasons: (1) his testing method failed to reliably distinguish talc from asbestos; and (2) his testing results are not verifiable because he failed to record the location of the grid openings containing the fibers he determined to be asbestos. Also, the Court finds Dr. Gordon's specific causation opinion is based on the single tremolite asbestos fiber he detected in Ms. Jackson's lymph node tissue, which he contends establishes that "Ms. Jackson had an above background exposure to asbestos." There is no evidence that Ms. Jackson had asbestos fibers in her lungs, asbestosis or pleural plaques, or asbestos bodies in her lungs. Although Plaintiff contends that "it is entirely possible" that Dr. Gordon would have found asbestos fibers in Ms. Jackson's lung tissue if he had received a larger volume of tissue to examine, the Court cannot accept such speculation to serve as the basis for his causation opinion. BRIAN D. JACKSON, Individually and as Personal Representative of the Estate of Doris Jackson, Plaintiff, represented by Kevin W. Paul , SIMON GREENSTONE PANATIER BARTLETT, PC, Leah C. Kagan -- lkagan@sgptrial.com -- SIMON GREENSTONE PANATIER BARTLETT, PC, pro hac vice, Christopher Panatier -- cpanatier@sgptrial.com -- SIMON GREENSTONE PANATIER BARTLETT, PC, pro hac vice, Eileen Marie O'Brien -- eobrien@brownkielylaw.com -- BROWN GOULD KIELY, LLP, Jay E. Stuemke -- jstuemke@sgptrial.com -- SIMON GREENSTONE PANATIER BARTLETT, PC, pro hac vice, John M. Caron , WORTHINGTON & CARON, P.C., pro hac vice, Samuel Iola , SIMON GREENSTONE PANATIER BARTLETT, PC, pro hac vice & Daniel A. Brown -- dbrown@brownkielylaw.com -- BROWN & GOULD, LLP. COLGATE-PALMOLIVE COMPANY, Defendant, represented by Alicia N. Ritchie -- aritchie@milesstockbridge.com - MILES & STOCKBRIDGE P.C., pro hac vice, Jonathan James Huber -- jhuber@milesstockbridge.com -- MILES & STOCKBRIDGE, P.C., Matthew R. Schroll -- matt.schroll@nelsonmullins.com -- NELSON MULLINS RILEY & SCARBOROUGH LLP, pro hac vice, Matthew T. Wagman -- mwagman@milesstockbridge.com -- MILES & STOCKBRIDGE P. C., Michael A. Brown -- mike.brown@nelsonmullins.com -- NELSON MULLINS RILEY & SCARBOROUGH LLP, Christine H. Chung , QUINN EMANUEL URQUHART & SULLIVAN, LLP, pro hac vice, Joey D. Horton -- jdhorton@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN LLP, pro hac vice, Meredith M. Shaw -- meredithshaw@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN LLP, pro hac vice & Morgan W. Tovey -- morgantovey@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN LLP, pro hac vice. ASBESTOS UPDATE: Flowserve Still Defends PL Lawsuits at June 30 --------------------------------------------------------------- Flowserve Corporation said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019, that it is still defending itself against "a substantial number of lawsuits" that seek to recover damages for personal injury allegedly caused by exposure to asbestos-containing products manufactured and/or distributed by its heritage companies in the past. The Company states, "While the overall number of asbestos-related claims has generally declined in recent years, there can be no assurance that this trend will continue, or that the average cost per claim will not further increase. Asbestos-containing materials incorporated into any such products were encapsulated and used as internal components of process equipment, and we do not believe that any significant emission of asbestos fibers occurred during the use of this equipment. "Our practice is to vigorously contest and resolve these claims, and we have been successful in resolving a majority of claims with little or no payment. Historically, a high percentage of resolved claims have been covered by applicable insurance or indemnities from other companies, and we believe that a substantial majority of existing claims should continue to be covered by insurance or indemnities, in whole or in part. Accordingly, we have recorded a liability for our estimate of the most likely settlement of asserted claims and a related receivable from insurers or other companies for our estimated recovery, to the extent we believe that the amounts of recovery are probable. While unfavorable rulings, judgments or settlement terms regarding these claims could have a material adverse impact on our business, financial condition, results of operations and cash flows, we currently believe the likelihood is remote. "Additionally, we have claims pending against certain insurers that, if resolved more favorably than reflected in the recorded receivables, would result in discrete gains in the applicable quarter. We are currently unable to estimate the impact, if any, of unasserted asbestos-related claims, although we expect that future claims would also be subject to then-existing indemnities and insurance coverage." A full-text copy of the Form 10-Q is available at https://is.gd/mI1s3V ASBESTOS UPDATE: P.I. Claims vs. Arcata Auto Dismissed in Kuntz --------------------------------------------------------------- Judge John Mendez of the U.S. District Court for the Eastern District of California dismissed without prejudice all claims against Defendant Arcata Auto Supply in the case entitled William Kuntz and Mary Lois Kuntz, Plaintiffs, v. John Crane, Inc., et al., Defendants, pursuant to the Parties' Stipulation. William Kuntz & Mary Kuntz, Plaintiffs, represented by Kimberly Chu , Brayton Purcell & David Robert Donadio , Brayton & Purcell, LLP. Honeywell International, Inc., Defendant, represented by Alice Truong Wong -- alwong@mwe.com -- McDermott Will & Emery & Jonathan Yang -- joyang@mwe.com -- McDermott Will & Emery. Parker-Hannifin Corporation, Defendant, represented by Joseph Adams -- jadams@behblaw.com -- Bassi Edlin Huie & Blum LLP. CBS Corporation, formerly known as Westinghouse Electric Corporation & General Electric Company, Defendants, represented by Derek Spencer Johnson -- djohnson@wfbm.com -- Walsworth Franklin Bevins & McCall, LLP, Charles Todd Sheldon , Walsworth Franklin Bevins & McCall, LLP, Emily Elizabeth Anselmo -- eanselmo@wfbm.com -- Walsworth Franklin Bevins & McCall, LLP & Katherine P. Gardiner -- kgardiner@wfbm.com -- Walsworth Franklin Bevins & McCall, LLP. Foster Wheeler LLC, formerly known as Foster Wheeler Corporation, Defendant, represented by Charles S. Park -- cpark@hugoparker.com -- Hugo Parker, LLP. Crane Co., Defendant, represented by Geoffrey Marc Davis -- Geoffrey.Davis@klgates.com -- K & L Gates LLP & Peter Edward Soskin -- peter.soskin@klgates.com -- K & L Gates, LLP. IMO Industries, Inc., Defendant, represented by Bobbie R. Bailey -- bbailey@leaderberkon.com -- Leader & Berkon LLP & Olga Guadalupe Pena -- opena@leaderberkon.com -- Leader and Berkon LLP. Ingersoll-Rand Company, Defendant, represented by Arpi Galfayan -- agalfayan@prindlelaw.com -- Prindle, Goetz, Barnes, et al & Carla Lynn Crochet -- ccrochet@prindlelaw.com -- Prindle, Goetz, Barnes & Reinholtz LLP. Viking Pump, Inc., Defendant, represented by Peter Keith Renstrom , Jackson Jenkins Renstrom LLP & Todd M. Thacker, Jackson Jenkins Renstrom LLP. Metropolitan Life Insurance Company, Defendant, represented by Erika Rose Aspericueta , Steptoe and Johnson LLP. ABB Inc., Defendant, represented by Nicolas P. Martin -- nick.martin@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. Velan Valve Corp., Defendant, represented by Arlene C. Barton -- arlene.barton@dentons.com -- Dentons US LLP. ASBESTOS UPDATE: Stay Motion in Peterson Case Withdrawn ------------------------------------------------------- The First Department of the Appellate Division of the Supreme Court of New York has ordered withdrawn the Stay Motion of non-party Minerals Technologies, Inc. filed in the case styled In Re: New York City Asbestos Litigation. Stanley Peterson and Debby Peterson, Plaintiffs-Respondents, v. Occidental Chemical Corporation, Individually and as Successor to Diamond Shamrock and Rubber Corp. of America, et al., Defendants-Respondents, Minerals Technologies, Inc., Non-Party Appellant. Index No. 190169/18, (N.Y. App. Div. 1d.). Non-Party Appellant had taken appeals from two orders of the New York County Supreme Court. It also moved for a stay of enforcement of these orders pending hearing and determination of the appeals taken therefrom, and for an interim stay of the appeals pending the determination of the stay motion. The Court received a correspondence, from counsel for non-party appellant, indicating withdrawal of its Motion for Stay of Enforcement of the appealed Oct. 16, 2018 Orders. A copy of the Order dated Aug. 20, 2019, is available at https://tinyurl.com/y5ku7hh5 from Leagle.com. ASBESTOS UPDATE: Tenneco Has At Most 500 Cases in US, 50 in Europe ------------------------------------------------------------------ Tenneco Inc. has less than 500 cases in the United States and less than 50 in Europe in its current docket of active and inactive asbestos-related cases, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2019, for the quarterly period ended June 30, 2019. Tenneco states, "For many years the Company has been and continues to be subject to lawsuits initiated by claimants alleging health problems as a result of exposure to asbestos. The Company's current docket of active and inactive cases is less than 500 cases in the United States and less than 50 in Europe. "With respect to the claims filed in the United States, the substantial majority of the claims are related to alleged exposure to asbestos in the Company's line of Walker(R) exhaust automotive products although a significant number of those claims appear also to involve occupational exposures sustained in industries other than automotive. A small number of claims have been asserted against one of the Company's subsidiaries by railroad workers alleging exposure to asbestos products in railroad cars. The Company believes, based on scientific and other evidence, it is unlikely that U.S. claimants were exposed to asbestos by the Company's former products and that, in any event, they would not be at increased risk of asbestos-related disease based on their work with these products. Further, many of these cases involve numerous defendants, with the number in some cases exceeding 100 defendants from a variety of industries. Additionally, in many cases the plaintiffs either do not specify any, or specify the jurisdictional minimum, dollar amount for damages. "With respect to the claims filed in Europe, the substantial majority relate to occupational exposure claims brought by current and former employees of Federal-Mogul facilities in France and amounts paid out were not material. A small number of occupational exposure claims have also been asserted against Federal-Mogul entities in Italy and Spain. "As major asbestos manufacturers and/or users continue to go out of business or file for bankruptcy, the Company may experience an increased number of these claims. The Company vigorously defends itself against these claims as part of its ordinary course of business. In future periods, the Company could be subject to cash costs or charges to earnings if any of these matters are resolved unfavorably to the Company. To date, with respect to claims that have proceeded sufficiently through the judicial process, the Company has regularly achieved favorable resolutions. Accordingly, the Company presently believes that these asbestos-related claims will not have a material adverse effect on the Company's annual consolidated financial position, results of operations or liquidity." A full-text copy of the Form 10-Q is available at https://is.gd/bUhc9n ********* 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. 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