CAR_Public/190925.mbx               C L A S S   A C T I O N   R E P O R T E R

              Wednesday, September 25, 2019, Vol. 21, No. 192

                            Headlines

44TH ENTERPRISES: Court Denies Prelim Injunction Bid in Dennis Suit
ABBVIE INC: Niaspan "Pay-for Delay" Class Action Certified
ACETO CORP: Judge Dismisses Securities Class Action
ADAMS AND ASSOCIATES: Court OKs Class Certification in Foster
ADDUS HEALTHCARE: Remand of Moore to Alameda Superior Court Denied

ADVANCARE HEALTHCARE: Has Made Unsolicited Calls, Avantara Says
AFNI INCORPORATED: Cosio Files Consumer Credit Suit in Ariz.
AIR SEA LAND SHIPPING: Lara Seeks Unpaid Overtime Wages
APPLE INC: Belanger Sues over FaceTime Video App Malfunction
ARCHIPEL CAPITAL: Court Denies Certification Bid in Amerio

ARMADA WASTE: Underpays Customer Service Agents, Delisio Claims
BANK OF AMERICA: Colliton Sues over Improper Interest on Loans
BANK OF AMERICA: Court Narrows Claims in GSE Bonds Antitrust Suit
BANK OF AMERICA: Judge Nixes Class Action Over Stop-Payment Fees
BERRY'S RELIABLE: Underpays Caregivers, Badon Suit Alleges

BIMBO BAKERIES: BIPA Class Action Sent Back to Cook County Court
BLACKROCK INSTITUTIONAL: Court Narrows Claims in ERISA Suit
CALIFORNIA PUBLIC: Urged to Settle LTC Insurance Class Action
CAPITOL ONE: Faces $600MM Data Breach Class Action
CDK GLOBAL: Court Narrows Counterclaims in Antitrust Suit

CITY NATIONAL: Noe Files Class Suit v. Bank
CLIENT SERVICES: Kenyon Files FDCPA Suit in E.D. California
COCA-COLA: Henderson Sues Over Milk Products' Deceptive Labels
CREDIT PROTECTION: Allen Sues over Debt Collection Practices
CREDIT SUISSE: Court OKs Class Certification in FX Rates Suit

CYNOSURE INC: Summary Judgment Bid in SculpSure Users' Suit Granted
DATEREYBRU COMPANY: Lozano Seeks Unpaid Minimum & Overtime Wages
DEL FRISCO'S: Jones Files ADA Suit in S.D. New York
DIRECT FLOW: Court OKs $911K Class Settlement in Reynolds
DRINK RECESS: Bunting Files ADA Suit in E.D. New York

DRIVELINE RETAIL: Court Denies Bid for Class Certification as Moot
DYNAMIC RECOVERY: Settlement Wins Initial Approval
ENT AND ALLERGY: Jones Files ADA Suit in E.D. New York
EVOLENT HEALTH: Oct. 7 Lead Plaintiff Bid Deadline
FINE HOME: Court Granted Conditional Class Certification Agreement

FIRST CLASS INTERIORS: Court Certifies 2 Classes in Martinez Suit
FIRST STUDENT: Court OKs $435K Class Settlement in Vikram
FLORIDA COMMUNITY: Court Grants Conditional Class Certification
FRANKLIN COUNTY, OH: Smith-Journigan Seeks to Certify Class
GENESEE & WYOMING: Thompson Says Merger Docs Misleading

GREEN ISLE FOODS: Hernandez Files Wage and Hour Suit
HEALTH INSURANCE: Court Certifies 2 Subclasses in Moser TCPA Suit
HYUNDAI MOTOR: Settlement in Riaubia Suit Has Prelim Approval
IC SYSTEM INC: Taylor Files FDCPA Suit in E.D. New York
JEFFERSON PARISH, LA: Sherriff's Summ. Judgment Bid Partly Granted

JUST ENERGY: Obtains Favorable Ruling in FLSA Class Action
JUUL LABS: Faces Deceptive Marketing Class Action in West Virginia
KEYPOINT GOVERNMENT: Arbitration Bids in Brayman Denied as Moot
KIWI-TEK LLC: Catoe Suit Moved to Southern District of Indiana
KOOS MANUFACTURING: Torres Sues Over Illegal Time-Shaving Practices

KROGER CO: Averts TCPA Class Action in California
LCS COMMUNITY: Ambrose Sues over Biometric Data Collection
LGRC CORP: Mendoza Seeks Unpaid Minimum and Overtime Wages
LIGHTHOUSE GUILD: Underpays Human Resource Staff, Barker Says
MAC PROPERTY: Thompson Sues over Collection of Biometric Data

MEDICI LIVING: Fischler Files ADA Suit in S.D. New York
MIDLAND CREDIT: Atkins Sues over Debt Collection Practices
MNM EIGHT MILE: Moore Seeks Unpaid Minimum, Overtime Wages
MRS. GOOCH'S: Faces Class Action Over Meal, Rest Breaks
MY PILLOW: Judge Tosses Privacy Class Action by Repeat Plaintiff

NAT'L ASSOCIATION: Seeks Dismissal of Antitrust Class Action
NAT'L FOOTBALL: 9th Cir. Reverses DirecTV Class Action Dismissal
NELNET DIVERSIFIED: Court OKs Peterson FLSA Suit Dismissal
NEW JERSEY: Court Narrows Claims in Alien Detention Suit
NEW YORK: $5.6MM Job Discrimination Suit Deal Has Final Approval

NEW YORK: BOD Files 2 Appeals in Gulino Suit to 2nd Circuit
OCCIDENTAL CHEM: Chavez Stayed Pending Certification of Questions
OHIO STATE: 10th Cir. Dismisses Oakley Appeal
OHIO: Martin Files Prisoner Civil Rights Suit
PALMS HOTEL: Fischler Files ADA Suit in E.D. New York

PLATINUM RESTAURANTS: Court OKs Class Certification in Green
QUICK WEIGHT LOSS: Wriley Files Fraud Class Suit in S.D. Florida
RAINWATER LLC: Underpays Yoga Instructors, Arrington Alleges
RAYTHEON COMPANY: Faruqi & Faruqi Files Securities Class Action
RESIDENCE INN: 9th Cir. Vacates Sua Sponte Remand

SASKATCHEWAN: Muskoday First Nation Woman Files Class Action
SCOTT YANCEY: Martinez Suit Asserts TCPA Violation
SECURITY CREDIT: Batista Files FDCPA Suit in E.D. New York
SENIOR LIFESTYLE: Does not Pay Proper Wages, Hamilton Suit Asserts
SHAWMUT WOODWORKING: Underpays Project Manager, Bonett Says

SIEMENS ELECTRICAL: Deal w/ City Found Fair, Adequate & Reasonable
SIRIUSXM: Settles TCPA Class Action for $25MM
SOUTHERN TOOL: Underpays Oil Field Inspectors, Cole Alleges
STARBUCKS CORPORATION: Court Narrows Claims in Sour Gummies Suit
STYLEBUY INC: Kiler Files ADA Suit in E.D. New York

SUNDERMAN POOLS: Marrero Sues Over Failure to Pay Overtime Wages
THOMSON REUTERS: Mich. App. Affirms SSNPA Suit Dismissal
TOLEDO CLINIC: Faces Class Action Over Botox Over-Biling
UBER TECHNOLOGIES: Judge OKs $32.5MM Safe Rides Settlement
UNITED HEALTHCARE: Must Face Mental Health Coverage Class Action

UNITED STATES: Johnson Files Suit v. SSA in Kentucky
USAA CASUALTY: Court OKs Certification in Byorth
VIVA WIRELESS: Jones Sues Over Unpaid Overtime Wages
WESTERN EXPRESS: Removes Benavides Suit to C.D. California
YOUTUBE: LGBTQ Creators File Discrimination Class Action

[*] HB 5001 Could Have Thrown Out Servers' Wage Class Actions

                            *********

44TH ENTERPRISES: Court Denies Prelim Injunction Bid in Dennis Suit
-------------------------------------------------------------------
In the case, LOUISA DENNIS, individually and on behalf of others
similarly situated, Plaintiffs-Claimants, v. 44TH ENTERPRISES
CORP., d/b/a LACE II GENTLEMEN'S CLUB; ANTHONY CAPECI, and any
other related entities, Defendants-Stakeholders, -and- NEW YORK
STATE DEPARTMENT OF TAXATION AND FINANCE and the COMMISSIONER of
the New York State Department of Taxation and Finance,
Cross-Defendants-Claimants, -and- METRO ENTERPRISES CORP.,
Cross-Defendant-Claimant, Docket No. 153420/2016, Motion Seq. Nos.
002, 003 (N.Y. Sup.), Judge Kathryn E. Freed of the New York County
Supreme Court (i) denied Defendants-Stakeholders 44th Enterprises
and Capeci's motion for a preliminary injunction pursuant to CPLR
6311; (ii) denied Defendant-Claimant Metro's cross motion for a
preliminary injunction pursuant to CPLR 6311; (iii) granted
Cross-Defendants-Slaimants New York State Department of Taxation
and Finance and the Commissioner of the New York State Department
of Taxation and Finance ("DTF")'s cross motion to dismiss the
interpleader complaint filed by the Defendants-Stakeholders; and
(iv) denied as moot the Defendant-claiman's motion for a temporary
restraining order.

In the class action commenced in April 2016 pursuant to Labor Law
Sections 190 et seq., 652 and 663, Plaintiff Dennis and other
similarly situated individuals who are, or were, employees of the
Defendants-Stakeholders, seek to collect unpaid minimum wages,
illegally retained tips, and improperly held wages.  In the
complaint, the Plaintiffs alleged, inter alia, that they were
employed as exotic dancers by 44th Enterprises, which operated as
Lace II, an adult entertainment establishment in Manhattan run by
its principal, Capeci.  

They claimed that the Defendants improperly deducted as "fines" and
"fees" monies which should have gone to them as tips.  They further
alleged that defendants disregarded state law by failing to keep
timesheets and payroll records.  As a first cause of action, the
Plaintiffs claimed that the Defendants failed to pay them minimum
wage.  As a second cause of action, the Plaintiffs alleged that the
Defendants willfully and unlawfully withheld portions of their
tips.  As a third cause of action, the Plaintiffs alleged that the
Defendants made unlawful deductions from their wages for items such
as "house fees."  As a fourth cause of action, the Plaintiffs
alleged that the Defendants failed to provide them with yearly wage
notices or required weekly wage statements.

The Defendants joined issue by their answer filed June 26, 2017.

On April 5, 2018, the Defendants-Stakeholders commenced an
interpleader action against the Plaintiffs-Claimants and Metro and
sought a declaratory judgment against the DTF.  In the interpleader
complaint, the Defendants-Stakeholders alleged, inter alia, that
the DTF levied over $11 million in tax assessments against them for
failing to withhold and pay sales tax, in part, on the exact same
tip monies the Plaintiffs-Claimants seek to recover.  They further
alleged that, while it was in business, Lace II, which closed in
2017, offered live exotic dance performances on an open stage in
the club, as well as in private party rooms available for rent.

The Defendants-Stakeholders further demanded, inter alia, that the
Court authorizes a party to receive the subject funds pending the
determination of the litigation and that, upon the delivery of the
property to such person, that they be discharged of liability to
all claimants.

On April 10, 2018, the Defendants-Stakeholders move for a
preliminary injunction seeking to enjoin the parties to the action
from pursuing any administrative tax procedures or other litigation
in which the rights and responsibilities of the parties to pay
gratuities to entertainers in their nightclubs by way of alternate
currency, also known as "scrip", may be determined, and tolling the
time periods in which the Defendants-Stakeholders must pursue
administrative appeals of tax assessments levied by the DTF.
Defendant-Claimant Metro cross-moves for the same relief requested
by the Defendants-Stakeholders.

The DTF opposes the motions by the Defendants-Stakeholders and
Metro and cross-moves to dismiss an interpleader complaint filed by
the Defendants-Stakeholders.  Additionally, Metro moves, by order
to show cause ("OSC"), for a temporary restraining order preventing
the DTF from conducting any proceedings in connection with Metro's
tax appeals, including staying a hearing scheduled for July 15,
2019 pending the determination of the OSC as well as the
determination of Metro's cross motion for a preliminary
injunction.

Judge Freed holds that, as the DTF argues, the
Defendants-Stakeholders have not demonstrated, or even alleged,
that it intentionally or deliberately misused any tax provision.
Nor have they established a likelihood of success on the merits or
irreparable injury, and they have not addressed the balancing of
the equities.   In asserting that a preliminary injunction must be
granted, the Defendants-Stakeholders rely on Bank of America, N.A.
v Morgan Stanley Co. Inc., in which the court issued a preliminary
injunction where a stakeholder was faced with multiple claims
directed against a single fund.  However, that case is
distinguishable, since the relief in that matter was based, in
principal part, on the fact that the stakeholder made a
jurisdictional showing entitling it to such relief pursuant to 28
USC 1335(a).  Additionally, unlike in the instant case, the
stakeholder deposited the disputed money into court.  Moreover, the
motion in that case was unopposed.

The Judge also holds that the DTF correctly asserts that Metro has
also failed to establish the criteria necessary for the issuance of
a preliminary injunction.  Additionally, since the Appellate
Division, Third Department held that Metro may be deemed a
recipient of amusement charges' required to collect sales tax and
that myriad questions of fact exist regarding the relationship
between the Plaintffs, the dancers and Lace II, Metro clearly has
not established a likelihood of success on the merits.

The DTF's cross motion to dismiss the interpleader complaint is
granted.  As the DTF asserts, the Judge holds that the Court lacks
jurisdiction over the claims set forth in that complaint because
the Defendants-Stakeholders failed to exhaust their administrative
remedies as required by Tax Law Section 1140.  In any event, the
DTF is not, as the Defendants-Stakeholders assert, violating the
constitutional rights of the Defendants-Stakeholders by requiring
them to violate the New York Labor Law in order to comply with the
Tax Law.  As the DTF asserts, to the extent that
Defendants-Stakeholders may provide documentation to the DTF that
specific scrip transactions constituted gratuities to their
dancers, those transactions would not be subject to sales tax
payable by the Defendants-Stakeholders.

Finally, the Judge denied Metro's motion for a TRO preventing the
DTF from conducting any proceedings in connection with its tax
appeals, including staying a hearing scheduled for July 15, 2019
pending the determination of the OSC as well as the determination
of Metro's cross motion for a preliminary injunction.  The motion
is denied as moot insofar as Metro concedes that the hearing was
conducted on July 15, 2019 and since Metro's cross motion for a
preliminary injunction is denied for the reasons discussed.

Therefore, in light of the foregoing, Judge Freed (i) denied the
Defendants-Stakeholders' motion for a preliminary injunction; (ii)
denied Metro's motion for a preliminary injunction; (iii) granted
DTF's cross motion to dismiss the interpleader complaint filed by
the Defendants-Stakeholders, and directed the Clerk to enter
judgment accordingly; and (iv) denied as moot the Metro's motion
for a TRO.  The parties are to appear for a preliminary conference
in the matter on Oct. 29, 2019.  The Order constitutes the decision
and order of the Court.

A full-text copy of the Court's Aug. 7, 2019 Decision and Order is
available at https://is.gd/OQULsg from Leagle.com.


ABBVIE INC: Niaspan "Pay-for Delay" Class Action Certified
----------------------------------------------------------
Nate Raymond, writing for Reuters, reports that a federal judge on
Aug. 14 certified a class of drug purchasers suing AbbVie Inc and
Teva Pharmaceutical Industries Ltd over an alleged anticompetitive
agreement that delayed the release of a generic version of the
cholesterol drug Niaspan.

U.S. District Judge Jan DuBois in Philadelphia rejected arguments
by AbbVie and Teva that the direct purchasers -- primarily drug
wholesale distributors -- should be required to litigate their
cases on an individual basis. [GN]


ACETO CORP: Judge Dismisses Securities Class Action
---------------------------------------------------
Shearman & Sterling LLP, in an article for JDSupra, reports that on
August 6, 2019, Judge Edward R. Korman of the United States
District Court for the Eastern District of New York dismissed a
putative securities class action asserting claims against a
pharmaceutical company and certain of its officers under Section
10(b) of the Securities Exchange Act of 1934.  In re Aceto Corp.
Sec. Litig., No. 18-CV-2425 (ERK-AYS) (E.D.N.Y. Aug. 6, 2019).
Plaintiff alleged that defendants made misrepresentations in
connection with disclosures concerning the company's compliance
with internal controls, earnings forecasts, and regarding the
valuation of goodwill and intangible assets.  The Court held that
the complaint failed to plead an actionable misstatement or
scienter, but granted leave to replead.

Plaintiff's claims relating to internal controls stemmed from the
company's November 2017 disclosure that it had misapplied cash in
2015 due to "a material weakness in the design and effectiveness of
[the company's] internal control over financial reporting."  Slip
op. at 2.  Based on this disclosure, plaintiff argued that the
company's August 2017 SOX certification was necessarily false.  The
Court disagreed, however, because the complaint contained no
non-conclusory allegations that the August 2017 statements were
false when made.  Id. at 7.  The Court noted that plaintiff's
complaint assumed that because a problem was disclosed in November
2017, defendants must have known of the problem sooner; but this
was impermissible "fraud by hindsight."  Id.

Next, plaintiff alleged that the company's February 1, 2018
earnings guidance was false, based on the company's April 18, 2018
press release cautioning that the February 1 guidance should no
longer be relied upon.  The Court determined that the February 1
projections were non-actionable under the PSLRA's "safe harbor"
provision, as they were forward-looking statements accompanied by
meaningful cautionary language that went beyond "mere boilerplate."
Id. at 8-10.  Specifically, the Court noted that the challenged
press release incorporated by reference meaningful cautionary
language pertaining to specific risks identified in the company's
SEC filings.  Id. at 9-10.  The Court rejected plaintiff's attempt
to avoid the PSLRA safe harbor by characterizing the financial
projections as mixed statements also containing present and
historical fact.  The Court emphasized that plaintiff failed to
identify what present fact was false, and was thus essentially
arguing that the projections were false because the forecast did
not materialize, which was once again impermissible
"fraud-by-hindsight."  Id. at 11-12.  And the Court also rejected
plaintiff's argument that, standing alone, the "temporal proximity"
between the February 1 forecast and the April 18 press release
suggested that the earlier statement was false when made.  Id. at
12.

Plaintiff further alleged that the company's impairment of its
goodwill and intangible assets in the third quarter of 2018 due to
the loss of government contracts should have been assessed by the
time of its February 1, 2018 press release, rendering that press
release false and misleading.  The Court held that plaintiff failed
to allege any facts to suggest that information was omitted or that
defendants had a duty to disclose information sooner than they did.
The Court emphasized that the calculation of goodwill is a
statement of opinion, not fact, and to be liable for making a false
statement of opinion, the plaintiff must show the speaker did not
hold the belief she professed or that the supporting fact she
supplied was untrue.  Id. at 13.  The Court also noted that, while
an opinion may also be actionable if the speaker omits material
information, here the company did disclose that it risked losing
government contracts, but it was not required to "assume the worst"
and take impairments sooner.  Id. at 13-14.

The Court held that plaintiff also failed to adequately allege
scienter.  The Court rejected plaintiff's argument that scienter
could be inferred by individual defendants' signing certain
filings, as there were no "factual allegations to show they were
aware of or reckless to any alleged misstatements."  Id. at 16.
The Court also rejected plaintiff's attempts to establish scienter
based on "circumstantial evidence of recklessness," noting that
this requires "highly unreasonable" conduct and a danger that was
either known to the defendant or "so obvious that the defendant
must have been aware of it."  Id. at 17.  Plaintiff pointed to the
"temporal proximity" of the alleged misrepresentation to the
disclosure of its falsity and to the size of the impairment, but
the Court determined that, without more, such allegations could not
support an inference of recklessness.  Id. at 17-19.  While
plaintiff argued that the resignation of the company's CFO
supported an inference of scienter for executives that remained,
the Court noted that there may be any number of reasons that an
executive might resign which are not related to fraud.  Id. at 18.
Finally, the Court rejected plaintiff's argument based on a "core
operations" theory, which allows courts to draw an inference of
scienter where the alleged misrepresentation was of critical
importance to the company such that high-level officers or
directors should have had knowledge by virtue of their positions.
Id. at 19.  The Court noted that it was not clear within the Second
Circuit whether this theory was permissible to establish scienter,
but in any event, plaintiff failed to identify specific facts of
"critical importance" that the individual defendants should have
known.  Id. at 19-20.  Thus, taken collectively, plaintiff's
allegations did not give rise to a strong inference of scienter.
[GN]


ADAMS AND ASSOCIATES: Court OKs Class Certification in Foster
-------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiffs' Motion for Class
Certification in the case captioned CAROL FOSTER, et al.,
Plaintiffs, v. ADAMS AND ASSOCIATES, INC., et al., Defendants. Case
No. 18-cv-02723-JSC. (N.D. Cal.).

Plaintiffs bring a class action suit under the Employee Retirement
Income Security Act of 1974 (ERISA),, on behalf of participants and
beneficiaries of the Adams and Associates Employee Stock Ownership
Plan (ESOP). Plaintiffs allege that Adams and Associates, Inc., Roy
A. Adams, Leslie G. Adams, Daniel B. Norem, Joy Curry Norem, and
The Daniel Norem Revocable Trust, breached their fiduciary duty to
the Plaintiffs, participated in prohibited transactions, and failed
to make required disclosures.

Plaintiffs seek certification of a class of all participants in the
Adams and Associates ESOP from October 25, 2012 or any time
thereafter, who vested under the terms of the ESOP, along with the
participants' beneficiaries.

Rule 23(a) provides that a case is appropriate for certification as
a class action if: (1) the class is so numerous that joinder of all
members is impracticable (2) there are questions of law or fact
common to the class (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class and(4) the representative parties will fairly and adequately
protect the interests of the class.

Certification under Rule 23(b)(3) requires: (i) that the questions
of law or fact common to class members predominate over any
questions affecting only individual members and (ii) that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.  

Defendants do not dispute that the numerosity, commonality, and
typicality requirements are satisfied.

Numerosity

A putative class satisfies the numerosity requirement if the class
is so numerous that joinder of all members is impracticable.
Impracticability is not impossibility, and instead refers only to
the difficulty or inconvenience of joining all members of the
class. Defendants' responses to Plaintiffs' interrogatories
identified 2,766 vested plan participants. The numerosity
requirement is thus easily satisfied.

Commonality

Commonality requires that the class members' claims depend on a
common contention such that determination of its truth or falsity
will resolve an issue that is central to the validity of each claim
in one stroke. The plaintiff must demonstrate the capacity of
classwide proceedings to generate common answers to common
questions of law or fact that are apt to drive the resolution of
the litigation.

Plaintiffs satisfy the commonality requirement because they share
common legal questions: (1) for purposes of the first and second
claims for relief: whether the Selling Shareholder Defendants
engaged in prohibited transactions under ERISA Sections
406(a)(1)(A), (b), and (d) or Section 406(b) (2) for purposes of
the third claim for relief: whether the Director Defendants
breached their fiduciary duties under ERISA Section 404(a) (3) for
purposes of the fourth and fifth claims for relief, whether the
Director Defendants breached their fiduciary duties under Section
404(a) and Sections 102 and 104(b) by failing to notify the ESOP
participants regarding Weissman's removal as Trustee and failing to
update the Summary Plan Description; and (4) for purposes of the
sixth claim for relief, whether the indemnification provisions in
Alan Weissman's engagement agreement violates Section 410.

The Court finds the commonality requirement satisfied.

Typicality

Rule 23(a)(3) also requires that the legal claims or defenses of
the representative parties be typical of the claims or defenses of
the class. Typicality refers to the nature of the claim or defense
of the class representative and not on facts surrounding the claim
or defense.

Plaintiffs' claims here are typical and there are no unique
defenses which would preclude certification. Plaintiffs allege that
Defendants breached their duties as to every ESOP Plan participant
and that they have all been injured in the same way. If Plaintiffs'
claim is successful, all class members suffered the same injury
through the same course of conduct. None of the facts or legal
claims are unique to the named Plaintiffs. The complaint is based
on allegations and recovery that address the Plan as a whole, not
individual claimants. If recovery is received and paid to the Plan,
it is the responsibility of the Plan fiduciaries to determine the
manner in which such recovery will be applied.

The typicality requirement is therefore satisfied.

Adequacy of Representation

Rule 23(a)(4) imposes a requirement related to typicality: that the
class representative will fairly and adequately protect the
interests of the class. The Court must ask: (1) do the named
plaintiffs and their counsel have any conflicts of interest with
other class members and (2) will the named plaintiffs and their
counsel prosecute the actions vigorously on behalf of the class?

Defendants only challenge to Plaintiffs' class certification motion
is a challenge to the adequacy of Carol Foster as a class
representative. Defendants insist that Ms. Foster is inadequate
because of her animus toward Adams & Associates and the likelihood
that she will refuse to sign a suitable settlement offer.
Defendants emphasize that Ms. Foster submitted written
responses/objections to her 2015 and 2016 performance evaluations
challenging statements in the evaluations and that she declined to
sign her 2016 evaluation. Defendants also cite to Ms. Foster's
refusal to sign an ergonomic evaluation form and that she referred
to exercising her First and Second Amendment rights in her
termination letter wherein she stated her intent to report a
supervisor to various federal agencies and the media.

A plaintiff may be inadequate to serve as a class representative
when there is evidence of vindictiveness to such an extent that she
cannot adequately represent the class.

The issues Ms. Foster had as an employee her dispute regarding her
performance evaluations and her allegations of discrimination and
retaliation are unrelated to the issues in this ERISA action
regarding Defendants' alleged breach of fiduciary duty, prohibited
transactions, and failure to make required disclosures  That Ms.
Foster disputed portions of her 2015 and 2016 performance
evaluations is not evidence that she would reject a reasonable
settlement offer. Her objections to the evaluations have nothing to
do with the claims in this action and the defendants named here
were not her supervisors indeed she attests that she has never met
the individual defendants.  

No such evidence of animosity toward the named Defendants in this
action has been presented here.

Defendants have not identified any statements Ms. Foster made about
Defendants as opposed to her supervisors who are not parties here
and Ms. Foster attests that she understands that her obligation as
a class representative is to represent all the class members and
that she will accept any resolution of the lawsuit [that is]
determined to be in the best interests of the class a whole. While
Defendants insist that comments during Ms. Foster's deposition
suggest that she is still upset about what happened during her
tenure at Adams and Associates, Ms. Foster has notably not filed a
lawsuit regarding her allegations of discrimination.  

Thus, to the extent that she does harbor a vendetta against Adams
and Associates, Adams and Associates has nevertheless offered no
evidence to suggest that this vendetta would hinder her ability to
fairly and adequately represent the class against Adams and
Associates. Indeed, it more likely would drive Ms. Foster to
diligently pursue this litigation, thereby serving the class
member's interests. And Ms. Foster's active participation in the
litigation thus far reviewing and responding to interrogatories,
providing documents, sitting for a deposition, and attending the
class certification hearing suggests just that; she will diligently
pursue this ligation on behalf of the class.

Ms. Foster has demonstrated that she is an adequate class
representative under Rule 23(a)(4).

Plaintiffs have Satisfied Rule 23(b)

Plaintiffs contend that certification is proper under any of the
three prongs of Rule 23(b), but only seek certification under
23(b)(3) should the Court conclude that certification not proper
under 23(b)(1) or 23(b)(2). Defendants do not oppose certification
under any prong of Rule 23(b).

Certification Under Rule 23(b)(1)

Rule 23(b)(1)(A) comes into play when a party is obligated by law
to treat the members of a class in a like manner.

Here, Plaintiffs allege that Defendants breached their fiduciary
duties and engaged in prohibited transactions and failed to make
disclosures under ERISA. Defendants' liability or lack thereof is
likely dependent on judicial interpretation of the parties' rights,
powers, and obligations pursuant to the ESOP. Conflicting
interpretations by separate tribunals could result in
countervailing directives to the ESOP fiduciaries.

Certification under Rule 23(b)(1)(B) is likewise appropriate. Rule
23(b)(1)(B) applies to cases in which judgment in an individual
action inescapably will alter the substance of the rights of others
having similar claims.

The allegations here concern a single ESOP transaction and
Defendants' actions.
Determination regarding the legality of that transaction and
Defendants' actions will affect the rights of all the other ESOP
participants. Thus, certification under 23(b)(1)(B) is also
appropriate.

Certification Under Rule 23(b)(2)

Rule 23(b)(2) requires that the party opposing the class has acted
or refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole. Rule 23(b)(2) applies
only when a single injunction or declaratory judgment would provide
relief to each member of the class. It does not authorize class
certification when each individual class member would be entitled
to a different injunction or declaratory judgment against the
defendant.

Here, Plaintiffs seek the same relief for all members of the class
based on Defendants' actions and inactions towards the class as a
whole such that certification under Rule 23(b)(2) is also proper.


Given the Court's conclusion that certification is proper under
Rule 23(b)(1) and 23(b)(2), the Court need not consider Plaintiffs'
alternative theory that certification is proper under Rule
23(b)(3).

Accordingly, the Plaintiffs' motion for class certification is
granted.

A full-text copy of the District Court's September 3, 2019 Order is
available at https://tinyurl.com/yxsoqyvn from Leagle.com.

Carol Foster, individually, and on behalf of all others similarly
situated & Theo Foreman, individually, and on behalf of all others
similarly situated, Plaintiffs, represented by Daniel Mark Feinberg
- dan@feinbergjackson.com - Feinberg, Jackson, Worthman & Wasow
LLP, R. Joseph Barton- joe@blockesq.com - Block & Leviton LLP &
Vincent Cheng - vincent@blockesq.com - Block & Leviton LLP.

Adams and Associates, Inc., Roy A. Adams, Leslie G. Adams, Daniel
B. Norem, Joy Curry Norem & The Daniel Norem Revocable Trust Dated
January 9, 2002, Defendants, represented by Dominique N. Thomas ,
Benjamin Law Group, PC, 1290 B St Ste 314, Hayward, CA
94541,Kartikey Anil Pradhan - kpradhan@kdvlaw.com - Kaufman
Dolovich Volukh, Kate Elizabeth Collins , Kaufman Dolowich Voluck &
Tad A. Devlin , Kaufman Dolowich & Voluck, 600 Massie Rd, 209
Jaobc, Charlottesvle, VA 22903-1750


ADDUS HEALTHCARE: Remand of Moore to Alameda Superior Court Denied
------------------------------------------------------------------
In the case, MARY MOORE, et al., Plaintiffs, v. ADDUS HEALTHCARE,
INC., et al., Defendants, Case No. 19-cv-01519-HSG (N.D. Cal.),
Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the
Northern District of California denied the Plaintiffs' motion to
remand to Alameda Superior Court.

On July 11, 2017, Plaintiff Moore filed the putative class action
in Alameda Superior Court.  On March 21, 2019, an amended complaint
was filed, which added Alexandria Encinias as a Plaintiff and Addus
HomeCare, Inc. as a Defendant.  The operative complaint alleges
that Moore and Encinias worked for the Defendants in California
from approximately July 2011 to May 2014 and approximately July
2016 to September 2017, respectively, as hourly-paid, non-exempt
employees.  

The Plaintiffs seek to represent a class of all current and former
hourly-paid or non-exempt individuals employed by any of the
Defendants within the State of California at any time during the
period from July 11, 2013 to final judgment.

The Plaintiffs further seek to represent a subclass of all current
and former hourly-paid or non-exempt employees who worked for any
of the Defendants within the State of California at any time during
the period from July 11, 2013 to final judgment who earned
commissions/non-discretionary bonuses/non-discretionary performance
pay which was not used to calculate the regular rate of pay used to
calculate the overtime rate for the payment of overtime wages.


All told, the Plaintiffs bring 10 causes of action on behalf of
themselves and the putative class for the Defendants' alleged
failures to (1) pay overtime, (2) provide meal periods, (3) provide
rest periods, (4) pay minimum wages, (5) pay timely wages upon
termination, (6) pay timely wages during employment, (7) provide
compliant wage statements, (8) keep complete or accurate payroll
records, (9) reimburse necessary business expenses, and (10)
generally conduct lawful business practices.

On March 22, 2019, the Defendants removed the action to federal
court under the Class Action Fairness Act ("CAFA").  They explain
that the removal was only warranted once (1) Plaintiff Moore's Feb.
20, 2019 interrogatory responses provided specific information on
the frequency of the Defendants' alleged wage-and-hour violations,
and (2) the Plaintiffs filed an amended complaint that included
causes of action from which the Defendants could ascertain the
amount in controversy.

Pending before the Court is the Plaintiffs' motion to remand,
briefing for which is complete.  The Plaintiffs' only objection to
removal jurisdiction concerns whether the Defendants have
established that CAFA's amount-in-controversy requirement is met.
The Defendants support their estimate of the amount in controversy
with (1) two declarations from Gary McLaughlin, attorney for the
Defendants; (2) Plaintiff Moore's responses to the Defendants'
special interrogatories; and (3) two declarations from Nicole Zdeb,
the human resources vice president for Addus.  The Plaintiffs
declined to submit any evidence in response, even after the Court
provided them an additional opportunity to do so.

Judge Gilliam turns first to the Plaintiffs' overarching challenges
to the competency of the Defendants' evidence in support of CAFA
jurisdiction before turning to the Defendants'
amount-in-controversy calculations.  The Plaintiffs present two
general challenges to the competency of the Defendants' evidence,
neither of which the Judge finds persuasive.  

First, the Plaintiffs contend that Defendants' declarations filed
in support of removal are not competent evidence.  Courts routinely
consider such declarations summarizing business records relevant to
the putative class members when assessing whether the
amount-in-controversy requirement is met for purposes of CAFA
jurisdiction.  The Plaintiffs' second threshold dispute concerns
the Defendants' purported failure to explain how they calculated an
average hourly rate for the putative class members of at least
$10.50.  But the Plaintiffs' only authority to reject the use of
average hourly rates appears to be an outlier.  The Judge agrees
with the overwhelming majority of cases and finds that that in the
context of calculating the amount in controversy for wage-and-hour
labor violations, the Defendants may rely on their
sufficiently-supported average hourly rates.

Because the Judge finds there is no per-se bar to using maximum
penalties to calculate the amount in controversy for purposes of
CAFA jurisdiction, the question is whether reasonable assumptions
drawn from allegations in the operative complaint warrant such
calculations.  And the Defendants have proved as much.  He finds
that the Defendants note that the Plaintiffs allege that the
putative class members who are former employees are owed penalties
because the Defendants have never paid the amounts due as a result
of the underlying wage and hour violations -- not that the
Defendants merely paid these amounts later than required.  And tje
Plaintiffs allege a "uniform policy and systematic scheme" of
unremedied wage-and-hour violations.  

Accepting these allegations as true, a reasonable inference drawn
from the operative complaint is that the Defendants systematically
underpaid all employees and never paid departing employees what
they were owed.  If that is true, former employees might be
entitled to maximum statutory penalties.  Thus, the Judge holds
that the Defendants' use of maximum penalties to calculate the
amount in controversy in this circumstance is reasonable.

The Plaintiffs' only objection to the Defendants' present
calculation concerns the use of a 100% violation rate.  They
contend that nowhere in the FAC do they allege that all wage
statements were inaccurate, and that the Defendants do not produce
any evidence suggesting that every single wage statement for every
class member failed to state the accurate number of hours worked.
But it is reasonable to infer that the Plaintiffs have called into
question the accuracy of every wage statement given that they
allege a "uniform" and "systemic" pattern of various wage-and-hour
violations.  And as the Defendants highlight, Plaintiff Moore
alleges that she experienced relevant wage-and-hour violations
every day she worked.  If true, and if Plaintiff Moore is typical
of the putative class members, it is reasonable to assume that each
wage statement is sufficiently "in dispute" to merit inclusion in
the amount-in-controversy calculation.

The Judge also finds reasonable at this stage a violation rate for
the putative class that is extrapolated from violation rates of a
purportedly typical plaintiff.  The Plaintiffs' only substantive
response to Defendants' meal and rest break premium calculations is
that theDefendants provide no reasonable basis for assuming that
the putative class members experienced violations at the proffered
rates.  But every case on which they rely involved defendants that
put forward no evidence whatsoever to support violation rates.  On
the other hand, the Defendants rely on Plaintiff Moore's own
purported violation rate, which the Defendants fairly extrapolated
to the putative class members given that Moore purports to bring
claims typical of the class.

For the foregoing reasons, Judge Gilliam finds that the Plaintiffs'
final pay, wage statement, meal period, and rest break claims place
more than $5 million in controversy -- $1,701,000 + $586,500 +
$3,219,000 = $5,506,500.  He thus need not consider whether
potential attorneys' fees are sufficiently in dispute for purposes
of the amount-in-controversy requirement.  Accordingly, he denied
the Plaintiffs' motion to remand.

A full-text copy of the Court's Aug. 7, 2019 Order is available at
https://is.gd/pS3jwS from Leagle.com.

Mary Moore, individually and on behalf of other members of the
general public similarly situated & Alexandria Encinias,
individually and on behalf of other members of the general public
similarly situated, Plaintiffs, represented by Edwin Aiwazian --
edwin@lfjpc.com -- Lawyers for Justice, PC, Stanley Donald
Saltzman
-ssaltzman@marlinsaltzman.com -- Marlin & Saltzman, Tara Zabehi --
tara@lfjpc.com -- Lawyers for Justice, PC & Tatiana G. Avakian --
tavakian@marlinsaltzman.com -- Marlin Saltzman, LLP.

Addus Healthcare, Inc., an unknown business entity & Addus
HomeCare
Corporation, an unknown business entity, Defendants, represented
by
Gary Matthew McLaughlin -- gmclaughlin@akingump.com -- Akin Gump
Strauss Hauer & Feld, LLP, Gregory William Knopp --
gknopp@akingump.com -- Akin Gump Strauss Hauer & Feld LLP & Victor
A. Salcedo -- vsalcedo@akingump.com -- Akin Gump Strauss Hauer
Feld
LLP.


ADVANCARE HEALTHCARE: Has Made Unsolicited Calls, Avantara Says
---------------------------------------------------------------
AVANTARA PARK RIDGE, LLC, individually and on behalf of all others
similarly situated, Plaintiff v. ADVANCARE HEALTHCARE SERVICES,
LLC, Defendant, Case No. 2019CH09955 (Ill. Cir., Cook Cty., Aug.
28, 2019) seeks to stop the Defendants' practice of making
unsolicited calls.

Advancare Healthcare Services, LLC is a home health agency in Oak
Brook, Illinois. [BN]

The Plaintiff is represented by:

          Brian J. Wanca, Esq.
          ANDERSON WANCA
          3701 Algonquin Road, Suite 500
          Rolling Meadows, IL 60008
          Telephone: (847) 368-1500
          Facsimile: (847) 368-1501
          E-mail: bwanca@andersonwanca.com


AFNI INCORPORATED: Cosio Files Consumer Credit Suit in Ariz.
------------------------------------------------------------
A class action lawsuit has been filed against AFNI Incorporated.
The case is styled as Roderik Cosio individually and on behalf of
all others similarly situated, Plaintiff v. AFNI Incorporated,
Unknown Parties named as John Does 1-25, Defendants, Case No.
2:19-cv-05230-DMF (D. Ariz., Sept. 20, 2019).

The nature of suit is stated as Other Statutes: Consumer Credit.

AFNI is a customer lifecycle solutions company. They specialize in
customer growth, consumer collections, and insurance
subrogation.[BN]

The Plaintiff is represented by:

     Raphael Deutsch, Esq.
     Stein Saks PLLC
     285 Passaic st
     Hackensack, NJ 07601
     Phone: (347) 668-9326
     Email: rdeutsch@steinsakslegal.com


AIR SEA LAND SHIPPING: Lara Seeks Unpaid Overtime Wages
-------------------------------------------------------
Hildelberto Lara, individually and on behalf all other employees
similarly situated, Plaintiff, v. Air Sea Land Shipping & Moving
Inc. d/b/a Air Sea Land Group of Companies, Vajira Mendis, and
Rienzie Fernando, Defendants, Case No. 1:19-cv-08486 (S.D. N.Y.,
Sept. 12, 2019) is an action brought by Plaintiff on his own behalf
and on behalf of similarly situated employees, alleging violations
of the Fair Labor Standards Act and the New York Labor Law, arising
from Defendants' various willful and unlawful employment policies,
patterns and/or practices.

The complaint alleges that Defendants have willfully and
intentionally committed widespread violations of the FLSA and NYLL
by engaging in a pattern and practice of failing to pay their
employees, including Plaintiff, overtime compensation for all hours
worked over 40 each workweek. The Defendants knew that the
nonpayment of overtime pay and failure to provide the required wage
notice at the time of hiring would financially injure Plaintiff and
similarly situated employees and violate state and federal laws,
says the complaint.

Plaintiff Hildelberto Lara is a resident of Queens, NY and was
employed as a mover by Defendants.

Air Sea Land Shipping & Moving Inc. d/b/a Air Sea Land Group of
Companies, Vajira Mendis, and Rienzie Fernando, is a domestic
business corporation organization and existing under the laws of
the State of New York and is in the shipping and moving
business.[BN]

The Plaintiff is represented by:

     Jiajing Fan, Esq.
     HANG & ASSOCIATES, PLLC.
     136-20 38th Ave., Suite 10G
     Flushing, NY 11354
     Phone: 718.353.8588
     Fax: 718.353.6288
     Email: jfan@hanglaw.com


APPLE INC: Belanger Sues over FaceTime Video App Malfunction
------------------------------------------------------------
AUSTIN BELANGER, individually and on behalf of all others similarly
situated, Plaintiff v. APPLE, INC., Defendant, Case No.
1:19-cv-23623-XXXX (S.D. Fla., Aug. 28, 2019) is a consumer class
action brought by the Plaintiff on behalf of himself and all others
similarly situated Florida residents who owned an Apple iPhone 4 or
iPhone 4S that was operating on iOS 6 or an earlier operating
system, and therefore lost the ability to use Apple's "FaceTime"
video conferencing feature when Apple intentionally broke FaceTime
for iOS 6 and earlier operating systems on April 16, 2014.

The Plaintiff alleges in the complaint that to reduce Apple's relay
usage costs, it devised a scheme to force millions of its users --
i.e., users running iOS version 6 and earlier -- to stop using
FaceTime on their devices. As Apple's internal emails and sworn
testimony at the VirnetX trial revealed, Apple formulated a plan by
which its engineers caused a digital certificate necessary to the
operation of FaceTime on iOS 6 or an earlier operating system to
prematurely expire. Upon the expiration of that certificate, and as
a direct result of Apple's actions, the valuable FaceTime feature
immediately and abruptly stopped working for millions of users
running iOS 6 or an earlier operating system. To regain FaceTime
capability, those users had to either transition to iOS 7, or buy
an entirely new Apple device with iOS 7 preinstalled.

Apple did this knowing that for millions of users, moving to iOS 7
was highly problematic because it was essentially incompatible with
certain Apple devices. For iPhone 4 and iPhone 4S users, for
example, the coerced move to iOS 7 subjected their devices to
slowness, system crashes, erratic behavior and the elimination of
their ability to use critical functions on their phone. As
succinctly stated in one of the media reports that discussed these
widespread functionality problems, "[t]he older handsets buckle
under the weight of the new software." Thus, for millions of
Apple's customers, a move to iOS 7 would significantly harm the
functionality of their device.

Apple Inc. designs, manufactures, and markets personal computers
and related personal computing and mobile communication devices
along with a variety of related software, services, peripherals,
and networking solutions. Apple sells its products worldwide
through its online stores, its retail stores, its direct sales
force, third-party wholesalers, and resellers. [BN]

The Plaintiff is represented by:

          Adam M. Moskowitz, Esq.
          Howard Bushman, Esq.
          Adam A. Schwartzbaum, Esq.
          THE MOSKOWITZ LAW FIRM
          2 Alhambra Plaza, Suite 601
          Coral Gables, FL 33134
          Telephone: (305) 740-1423
          Facsimile: (786) 298-5737
          E-mail: adam@moskowitz-law.com
                  howard@moskowitz-law.com
                  adams@moskowitz-law.com


ARCHIPEL CAPITAL: Court Denies Certification Bid in Amerio
----------------------------------------------------------
The United States District Court for the Northern District of New
York issued a Memorandum Decision and Order denying Plaintiffs'
Motion for Class Certification in the case captioned STEVEN AMERIO
and ANDREW GOLDBERG, Individually and as Co-Lead Plaintiffs on
behalf of all others similarly situated, Plaintiffs v. GREGORY W.
GRAY, JR.; GREGORY P. EDWARDS; ARCHIPEL CAPITAL LLC; BIM MANAGEMENT
LP; and BENNINGTON INVESTMENT MANAGEMENT, INC. Defendants. No.
5:15-CV-538. (N.D.N.Y.).

Plaintiff Andrew Goldberg brought this suit alleging an ongoing
pattern of securities fraud among other claims against defendants.
In substance, Goldberg and Amerio allege that defendant Gregory W.
Gray, as the managing partner of defendant Archipel Capital, LLC
and a general partner of defendant BIM Management LP, duped clients
into investing in a company whose prospects Gray overstated at
every opportunity.

Rule 23(b)(3)'s predominance requirement

Goldberg and Amerio rely exclusively on Rule 23(b)(3) as the
appropriate form for their proposed class. Similarly, defendants
invest a vast majority of their opposition disputing that
plaintiffs' claim meets the criteria of Rule 23(b)(3).

Rule 23(b)(3) allows for class certification so long as the
questions of law or fact common to class members predominate over
any questions affecting only individual members. Courts have
separated this into two distinct elements of predominance and
superiority. Plaintiffs have satisfactorily proven predominance if:
(1) resolution of any material legal or factual questions can be
achieved through generalized proof, and (2) these common issues are
more substantial than the issues subject only to individualized
proof.

Plaintiffs' securities fraud claims

The elements of a private securities fraud claim under  Section
10(b) are: (1) a material misrepresentation or omission by the
defendant (2) scienter (3) a connection between the
misrepresentation or omission and the purchase or sale of a
security (4) reliance upon the misrepresentation or omission (5)
economic loss and (6) loss causation.  

Whether common questions of law or fact predominate in a securities
fraud action often turns on the element of reliance.

As a result, a plaintiff seeking class certification under Rule
23(b)(3) must demonstrate a method of proving reliance that is
common among the class. The Supreme Court has therefore
established, however, that securities fraud plaintiffs can in
certain circumstances satisfy the reliance element of a Rule 10b-5
action by invoking a rebuttable presumption of reliance, rather
than proving direct reliance on a misrepresentation.

Among all of Goldberg and Amerio's claims of defendants'
deceptions, the only claim that seems to present an omission is the
failure among all defendants to inform plaintiffs that Gray had
lost his license due to disciplinary issues. By contrast,
plaintiffs present several alleged active misrepresentations,
including Gray's varied allegations as to Everloop's backers,
grants, and general financial condition, across several in-person
meetings. The complaint speaks for itself on that score.  

Plaintiffs are wrong. Gray, Edwards, and the Archipel entities
provided their desired investors with biographies and fact sheets
which included the affirmative, false statement that Gray's
licenses were in good standing. Defendants' presentation of Gray's
credentials by extension constituted misleading statements that
were not corrected, not a pure omission of a material fact.  

Of course defendants, in claiming that Gray's credentials were
still in good standing, failed to inform their potential investors
that they were not. But that is true of any falsehood, a liar
always omits the truth that he is lying.  

Goldberg and Amerio have thus failed to establish that the
presumption applies in this case. Neither have plaintiffs suggested
any alternative means of generalized proof. Generalized proof would
be difficult in any case given the varied forms that the
misrepresentations took through personal meetings between the
purported class and Gray. Accordingly, plaintiffs cannot employ a
classwide presumption of reliance  nor, therefore, can plintiffs
satisfy the predominance requirement of Rule 23(b)(3) regarding
either of their securities fraud claims.  

Moreover, because plaintiffs must prove the Section 10(b) violation
to establish their Section 20(a) claim, the same individual issue
of reliance will also predominate over their Section 20(a) claim.


Plaintiffs' RICO claims

Goldberg and Amerio rely on 18 U.S.C. Section 1962(a) to support
their civil suit under 18 U.S.C. Section 1964. The elements of a
civil RICO claim are: (1) that the defendant (2) through the
commission of two or more acts (3) constituting a pattern (4) of
racketeering activity (5) directly or indirectly invests in, or
maintains an interest in, or participates in (6) an enterprise (7)
the activities of which affect interstate or foreign commerce.

The essential elements of mail and wire fraud] are (1) a scheme to
defraud (2) money or property as the object of the schem and (3)
use of the mails or wires to further the scheme. A scheme to
defraud requires that the defendant have made material
misrepresentations with fraudulent intent. Critically, the Supreme
Court has ruled that reliance is not an element of RICO mail and
wire fraud.  

Goldberg and Amerio allege that the principal act of mail and wire
fraud that constituted Gray's alleged pattern of racketeering
activity is the release that he required the BELP partners to sign
to receive the payout from the Everloop settlement.
  
In this context, it is possible that Goldberg and Amerio can prove
that Gray committed mail and wire fraud, and did so in a related
and continuous pattern through the operation of an enterprise that
affects interstate commerce. Plaintiffs need not expressly prove
reliance in the mail fraud context.  

In this case especially, because plaintiffs were not defrauded out
of money in their actual possession, but instead deceived out of
knowing that they were entitled to more money than they realized,
it is unnecessary for plaintiffs to prove causation through
reliance, at least from the facts now established. Accordingly, for
plaintiffs' RICO claims, individual issues do not predominate, and
plaintiffs could prove liability through classwide evidence.

Plaintiffs' fraud claims.

Under New York Law, the plaintiff must prove five elements by clear
and convincing evidence: (1) a material misrepresentation or
omission of fact (2) made by defendant with knowledge of its
falsity (3) an intent to defraud (4) reasonable reliance on the
part of the plaintiff and (5) resulting damage to the plaintiff.

Since Goldberg and Amerio will have to prove reliance to prove
fraud, for the reasons discussed above it would be impracticable to
manage that highly individualized proof in the class setting.
Accordingly, for the same reasons, individual issues would
predominate over common ones for plaintiffs' New York fraud claims.


Plaintiffs' negligent misrepresentation claims

To state a claim for negligent misrepresentation under New York
law, the plaintiff must prove: (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 (3) the information supplied in the
representation was known by the defendant to be desired by the
plaintiff for a serious purpose (4) the plaintiff intended to rely
and act upon it and (5) the plaintiff reasonably relied on it to
his or her detriment.

Similarly, without a presumption of reliance in favor of the entire
proposed class, the individual issues of reliance would predominate
over the common issues involved in defendants' alleged
misrepresentations. Accordingly, for negligent misrepresentation
plaintiffs could not establish that common issues predominate, and
class certification would also be inappropriate for this claim.  

Plaintiffs' claims for breach of fiduciary duty.

To state a claim for breach of fiduciary duties under New York law,
a plaintiff must establish: (1) the existence of a fiduciary
relationship (2) misconduct by the defendant and (3) damages
directly caused by the defendant's misconduct.

Goldberg and Amerio are capable of proving all elements through
generalized proof. Each member of the purported class has the same
relationship to Gray, Edwards, and the Archipel entities, that of a
client to defendants' investment companies, so whether defendants
owed a duty to plaintiffs is subject to generalized proof. The
remaining elements of misconduct and causation hinge entirely on
defendants' conduct, which plaintiffs could prove in a class
setting. Although the Court notes that several of the alleged
breaches that plaintiffs identify sound in fraud and
misrepresentation, plaintiffs need not prove reliance for this
claim.

Though individual issues of reliance may prove relevant, the common
issues of duty and breach predominate in plaintiffs' claims for
breach of fiduciary duty.  

Plaintiffs' claims for conversion

Plaintiffs prove conversion by establishing four elements: (1) the
party charged has acted without authorization and (2) exercised
dominion or a right of ownership over property belonging to another
(3) the rightful owner makes a demand for the property and (4) the
demand for return is refused.

Goldberg and Amerio have alleged that the investors as a whole have
made a demand for the return of the money allegedly owed from the
settlement, allowing for class proof of this element.

Whether Gray acted without plaintiffs' authorization, and whether
the purported class members have all made a demand for the return
of the other funds provided to Everloop will require individualized
proof, but the predominant issue in this claim is whether Gray
exercised dominion or a right of ownership over plaintiffs'
property through his various alleged machinations and
misappropriations.  

Accordingly, common issues, rather than individual ones,
predominate regarding plaintiffs' conversion claim.  

Plaintiffs' claims for unjust enrichment

Cases dealing with unjust enrichment in New York are uniform in
their recognition of three elements of the claim (1) that the
defendant benefitted (2) at the plaintiff's expense and (3) that
equity and good conscience require restitution.

Regarding Goldberg and Amerio's unjust enrichment claims against
Gray, the question of predominance is a close one, and turns on the
third element of equity and good conscience requiring restitution.
Indeed, the Second Amended Complaint itself only serves to further
complicate the issue. To prove this element, plaintiffs rely on the
relationship between the purported class and Gray sounding in
fiduciary duty and therefore subject to generalized proof on the
one hand, but on reliance and inducement which as discussed above
is a highly individualized question on the other.  

In total, Goldberg and Amerio's unjust enrichment claims function
as an extension, or even a duplication, of their claims generally.
As such, for purposes of determining the predominance of common or
individual issues as a whole, plaintiffs' unjust enrichment claims
do not materially alter the analysis in either direction, because
they simply restate the other causes of action.

Plaintiffs' New York debtor and creditor law claims

Section 273 of the New York Debtor and Creditor Law provides that
every conveyance made and every obligation incurred by a person who
is or will be thereby rendered insolvent is fraudulent as to
creditors if the conveyance is made or the obligation is incurred
without a fair consideration.

Similarly, under Section 274, plaintiffs must prove both a lack of
fair consideration and that the transferor is engaged in or is
about to engage in a business transaction for which its remaining
property constitutes unreasonably small capital. Section 275
requires proof of a lack of fair consideration and that the
transferor believes that it will incur debt beyond its ability to
pay.

Goldberg and Amerio have also met their burden of proving that
common issues predominate in their claims under New York Debtor and
Creditor Law. Each statute relied on above is subject to proof
entirely based on defendants' conduct, with no need for
individualized proof based on plaintiffs' conduct or reaction to
that conduct.  

Accordingly, common issues predominate for these claims.

Whether plaintiffs' remaining claims and issues predominate over
the reliance issue

The critical question facing the Court is whether Goldberg and
Amerio have sufficiently made their case for class certification
despite the looming, highly individualized issue of proving
reliance. In the end, they have not. Individual, rather than
common, issues predominate.

The absolute core of Goldberg and Amerio's complaint is fraud.
Without the Section 10(b) fraud, Gray controlled no violations to
sustain his alleged Section 20(a) fraud. The same statements that
plaintiffs claim to have relied on which constitute defendants'
frauds also support plaintiffs' allegations of negligent
misrepresentation. The same is true of plaintiffs' claim for breach
of fiduciary duty, which, with the exception of an included
allegation of a breach through conflicts of interest, sounds in
much the same language of fraud and misrepresentation.  

As a result, there is no claim against all defendants which is not
inextricably tied to the fraud claim. Granted, plaintiffs' claims
against Gray under Section 1964 and for common law conversion are
somewhat more remote, tied as they are to Gray's specific alleged
misappropriation of funds.

However, none of these issues predominate nearly so much as do the
fraud claims, and by extension reliance. It would achieve no
economy of time, effort or expense to proceed with a litany of
lesser issues in a class setting, ignoring the reliance issue as it
broods overhead. This is especially true since Gray alone is a
party to Goldberg and Amerio's ancillary claims, but Edwards, BIM
and Archipel would join to contest the individual issue of reliance
and the alleged breach of fiduciary duty. It is all too easy to
imagine the class splintering into plaintiff-by-plaintiff proof of
reliance only to become mired in that single issue.

In summary, Amerio and Goldberg's claims are predominantly fraud
claims, and therefore individual issues of reliance predominate.
Plaintiffs have therefore failed to meet their burden under Rule
23(b)(3), and class certification is inappropriate.  

Plaintiffs Goldberg and Amerio have failed to meet their burden of
proving that their causes of action could be properly brought as a
class action. The primary concern in determining whether to grant a
class action certification is whether the class action mechanism is
a fair and efficient mechanism of resolving the claims. In this
case, it is neither. Accordingly, plaintiffs' motion for class
certification must be denied.

Therefore, it is ordered that plaintiffs' motion for class
certification is denied.

A full-text copy of the District Court's September 3, 2019
Memorandum Decision Order is available at
https://tinyurl.com/yy6jpzt3 from Leagle.com.

Andrew Goldberg, Individually and on behalf all others similarly
situated, as a class, Plaintiff, represented by John C. Cherundolo
, Cherundolo Law Firm, PLLC, 100 Madison Street #1701, Syracuse, NY
13202 Kevin P. Roddy - kroddy@wilentz.com - Wilentz Goldman &
Spitzer PA, J. Patrick Lannon, Cherundolo Law Firm, PLLC 100
Madison Street #1701, Syracuse, NY 13202 & James E. Tonrey, Jr. -
jtonrey@wilentz.com - Wilentz Goldman & Spitzer PA.

Steven Amerio, Plaintiff, represented by James E. Tonrey, Jr. ,
Wilentz Goldman & Spitzer PA & Kevin P. Roddy , Wilentz Goldman &
Spitzer PA.

Bernard J. Malone, Mediator (Mandatory Program), pro se.

Gregory W. Gray, Jr., Defendant, pro se.

Gregory P. Edwards & Bennington Investment Management, Inc.,
Defendants, represented by Michael J. Grudberg  -
mgrudberg@tarterkrinsky.com - Tarter Krinsky & Drogin LLP.
Lucien A Morin, II, Intervenor Defendant, represented by William E.
Brueckner, III  - wbrueckner@mccmlaw.com - McConville, Considine
Law Firm.


ARMADA WASTE: Underpays Customer Service Agents, Delisio Claims
---------------------------------------------------------------
GUY DELISIO, individually and on behalf of all others similarly
situated, Plaintiff v. ARMADA WASTE NY, LLC; FIVE STAR CARTING
INC.; GPB CAPITAL HOLDINGS, LLC; GPB WASTE NY, LLC; ANTHONY
TRISTANI; and NINO TRISTANI, Defendants, Case No. 1:19-cv-04926
(E.D.N.Y., Aug. 28, 2019) seeks to recover from the Defendants
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs under the Fair Labor Standards
Act.

The Plaintiff Delisio was employed by the Defendants as customer
service agent.

Armada Waste NY, LLC is a Delaware Limited Liability company owning
and operating a private trash hauling service business in the city
of New York. [BN]

The Plaintiff is represented by:

          David Harrison, Esq.
          HARRISON HARRISON & ASSOCIATES, LTD.
          110 State Highway 35, 2nd Floor
          Red Bank, NJ 07701
          Tel: (718) 799-9111
          Fax: (718) 791-9171
          E-mail: dharrison@nynjemploymentlaw.com


BANK OF AMERICA: Colliton Sues over Improper Interest on Loans
--------------------------------------------------------------
MARY KAY COLLITON, individually and on behalf of all others
similarly situated, Plaintiff v. BANK OF AMERICA, N.A., Defendant,
Case No.2:19-cv-2440-RMG (D.S.C., Aug.28, 2019) is a class action
against the Defendant for breach of contract and unjust
enrichment.

The Plaintiff alleges in the complaint that the Defendant has a
systemic practice of collecting post-payment interest on loans
insured by the Federal Housing Administration ("FHA") without first
complying with the uniform provisions of the promissory notes and
the FHA regulations governing these loans. As a result, the
Defendant has unfairly collected and unjustly retained potentially
millions of dollars in post-payment interest in an unlawful manner.
The Defendant breached its contract with the Plaintiff and other
class members and was unjustly enriched through its unlawful
practice.

Bank of America, National Association operates as a bank. The Bank
offers saving and current account, investment and financial
services, online banking, and mortgage and non-mortgage loan
facilities, as well as issues credit card and business loans. Bank
of America serves clients worldwide. [BN]

The Plaintiff is represented by:

          John G. Felder, Jr., Esq.
          McGOWAN, HOOD & FELDER, LLC
          1517 Hampton Street
          Columbia, SC 29201
          Telephone: (803) 779-0100
          E-mail: jfelder@mcgowanhood.com


BANK OF AMERICA: Court Narrows Claims in GSE Bonds Antitrust Suit
-----------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting in part and denying in
part Defendants' Motion to Dismiss in the case captioned IN RE GSE
BONDS ANTITRUST LITIGATION. No. 19-cv-1704 (JSR). (S.D.N.Y.).

This putative class action alleges a conspiracy among several large
banks to fix the secondary market prices of bonds issued by
government-sponsored entities (GSEs). Defendants are approved bond
dealers. They collectively traded 77.16% of all GSE bonds issued
during the proposed class period. Plaintiffs are investment and
retirement funds that transacted with defendants during the class
period. They bring this suit on behalf of a putative class of all
persons and entities that transacted in unsecured GSE Bonds with
defendants during the class period.

Proof of Conspiracy

Direct Evidence

The thrust of plaintiffs' theory is that defendants agreed to keep
prices high for newly issued bonds when they were released to the
secondary market. Plaintiffs claim to have received information
from a cooperating co-conspirator, who implicated the defendants in
this scheme. IAs direct evidence of the conspiracy, plaintiffs
offer what are alleged to be transcripts of chatroom conversations
between dealers acting on behalf of several defendants.  

Indirect and Statistical Evidence

In addition to this direct evidence, plaintiffs allege that the
nature of the GSE bonds market facilitated unlawful coordination.
Specifically, because the same traders are involved in all phases
of acquiring and selling GSE bonds, the same people will at one
point be working together (to bid on bonds and then to place them
with bulk buyers) and then working as competitors to sell the bonds
on the secondary market. Moreover, the opaque nature of the market
from the investors' point of view hides the heightened pricing from
buyers.  

Plaintiffs also offer economic analysis that they contend
corroborates the claim of conspiracy. For example, from March 1,
2010 through December 31, 2015, during the class period, approved
GSE bond dealers sold newly issued Benchmark and Reference Notes (a
particularly common type of GSE bond) for, on average, 10.6 basis
points more than the dealers had paid. In other words, dealers sold
these Notes for an `average of 0.106% more than they paid during
this time. From January 1, 2016 through December 31, 2017, after
the class period ended, dealers sold for only an average of 1.2
basis points more than they paid. Thus, the buy-sell differential
was nearly nine times higher, on average, during the class period
than after. When the analysis is expanded to all GSE bonds traded
during this time instead of just Notes, the result is similar,
although less extreme. Defendants charged an average premium of
2.58 basis points to investors during the class period, but an
average of only 1.15 basis points afterwards.  

Injury and Claim for Relief

Each of the named plaintiffs claims to have been overcharged in
their transactions with various defendants. They seek damages under
the Sherman Act. They also seek certification of a class of all
persons who traded in GSE bonds with the defendants during the
class period.  

Plaintiffs claim the statute of limitations was tolled because the
defendants fraudulently concealed their price-fixing until, at the
earliest, June 2018, when it was publicly reported that the
Department of Justice was investigating price-fixing in the GSE
bonds market.  

Defendants jointly moved to dismiss the consolidated complaint.
They argue that (1) the chat logs are not direct evidence of a
conspiracy (2) plaintiffs have not pleaded parallel conduct or plus
factors sufficient to sustain the complaint without direct evidence
(3) the complaint fails to make specific allegations against
certain defendants (4) the statistical analysis is flawed and
unreliable (5) the conduct alleged is not per se unlawful (6)
plaintiffs failed to plead antitrust injury and (7) most of the
claims are time-barred.

The Chatroom Defendants

Here, the Court have the rare smoking gun, at least as to the
Chatroom Defendants. The chats unmistakably show traders, acting on
behalf of those defendants, agreeing to fix prices at a specific
level before bringing the bonds to the secondary market.  

Defendants offer a slew of arguments against relying on the chat
logs, but none of them is persuasive.

First, defendants emphasize that there are only four chats,
representing conversations about four bonds during a period when
tens of thousands were traded. But plaintiffs are not expected to
marshal evidence (especially at this early stage) of every single
time defendants unlawfully conspired. Moreover, the tone of the
conversations suggests that these were not isolated instances. At
no point do any of the involved traders say, for example, that they
should not be fixing prices. The only time anyone voices concern is
the Goldman Sachs trader during the July 17, 2012 chat, but that
objection is solely about the timing of the conversation, not about
its happening at all.

Contrary to defendants' argument, there is no rule that isolated
occurrences of conspiratorial conduct do not qualify as direct
evidence. Direct evidence can even be a recorded phone call in
which two competitors agreed to fix prices at a certain level.

Here, plaintiffs have produced, not one chat log, but four. That is
more than adequate to allege the existence of a conspiracy, at
least against those defendants implicated by the chats. Such
communications have repeatedly been held sufficient for pleading
purposes.

Second, defendants argue that these communications were lawful for
co-underwriters acting in a syndicate. Plaintiffs appear to agree
that traders are permitted to communicate during the syndication
phase for certain purposes. But, plaintiffs argue, while defendants
are allowed to communicate about primary market sales during this
time sales that the defendants make jointly they are not permitted
to communicate during this period or otherwise about secondary
market sales when they are competitors.

The Court agrees.

Specifically, the Second Circuit has held that the corruption of a
cooperative endeavor can be actionable under the antitrust laws. In
Gelboim, the district court dismissed a complaint alleging a
LIBOR-setting conspiracy, in part because it found that the
defendants were engaged in a cooperative endeavor. The Second
Circuit reversed, because the Banks circumvented the LIBOR-setting
rules, and that joint process thus turned into collusion.

This case is closely analogous.

Defendants have no serious answer for this objection. They simply
insist that any kind of communication during syndication is
permitted, as though that excuses any conversations about
price-fixing at any stage. The Court cannot agree. If it is illegal
to fix the secondary prices for bonds once they are on the market
and defendants do not dispute that it would be  it cannot be legal
to fix such prices through conversations that occur right before
the bonds go on the market.

Moreover, at least one of the conversations happened during the FTT
phase. And while defendants are eager to emphasize that the Goldman
trader shut down that conversation, it went on for some time, with
active participation by representatives of defendants Deutsche
Bank, Merrill Lynch, and BNP. That suggests that defendants were
willing to talk prices, even during the FTT phase. Defendants also
argue that the dealers did not agree on a price.

But this is wrong both as to the facts and as to the law. Legally,
an attempt to conspire, while not itself independently actionable,
still supports the allegation of a broader conspiracy on other
occasions. And factually, defendants mischaracterize the
conversation; in actuality, one defendant, BNP, immediately agrees
to the price suggested by the Deutsche Bank trader, while Merrill
Lynch says its prices might go higher but that it would not
undercut the others by going lower. This, on its face, is blatant
price-fixing.

Next, defendants argue that the bonds discussed in many of the
cited chats actually regularly sold for less than the agreed-upon
price. Although the Court may take judicial notice of the TRACE
data on this motion to dismiss, the pricing trends and their
relation to the dates of these chats is a factual question
ill-suited for resolution at this early stage. Moreover, even
assuming defendants are correct, an antitrust claim may proceed
based on the influence that a conspiracy exerts on the starting
point for prices.

Defendants then contend that a broad, market-wide conspiracy is
implausible because there are some 65 authorized bond dealers. But
defendants concede they collectively traded some 77% of the market.
That they were a numerical minority of dealers  a fact they hammer
repeatedly in their papers is totally irrelevant; they had control
over most of the market. Nor is the nature of the conspiracy
implausible,contrary to defendants' claims, this particular
conspiracy does not seem to have required much coordination. All
that was necessary was for traders to use already-established
channels of communication to discuss prices before selling. While
defendants question why investors would not simply trade with other
dealers offering lower prices,  that is plausibly explained by the
relatively opaque nature of the market. And, as plaintiffs point
out, these are all factual objections that are not really proper at
this stage.

Mere skepticism of a conspiracy's existence is insufficient to
warrant dismissal.

The Remaining Defendants

The Court reaches a different result, however, as to the remaining
defendants. The chatroom transcripts do not so much as mention any
of those defendants.And while the Court finds it entirely plausible
that the conspiracy evidenced by the chatroom logs may have
extended beyond the specific defendants participating in those
conversations, plaintiffs must still adduce some reason to believe
that the particular defendants named in this suit were involved.
Each defendant is entitled to know how he is alleged to have
conspired, with whom and for what purpose.

In the absence of direct evidence against the remaining defendants,
plaintiffs must present circumstantial facts supporting the
inference that a conspiracy existed.

To do so, the plaintiff must allege (1) parallel conduct and (2)
plus factors. But defendants correctly point out that plaintiffs
have failed to plead either parallel conduct or plus factors. The
complaint does not, for example, include any evidence that
defendants all priced their bonds similarly.

The Second Amended Complaint alleges that a cooperating
co-conspirator has provided examples of price-fixing conversations,
and that all of the various defendants were directly implicated in
conspiratorial multi-bank chats. But this unadorned allegation,
without any specifics, cannot salvage the pleading against these
defendants. To be clear, the Court does not hold that, to state a
claim for relief, a plaintiff must adduce direct evidence such as a
chatroom transcript for each and every defendant named. There are
other ways to plausibly allege participation in a conspiracy. But
there must be something in the complaint that ties each defendant
to the conspiracy.

Without any allegations relating to specific actions taken by the
remaining defendants, plaintiffs are left to rely on their
statistical allegations.

Defendants contend that plaintiffs' statistics are flawed and
unreliable.  

The Court disagrees; although there are some problems with the
statistics, they generally support the allegation of a price-fixing
conspiracy. At this stage, a statistical analysis, like any other
allegation, need only be plausible. Merely pointing out that there
are problems with the analysis, or that a better method is
available, will not suffice.  

First, defendants complain that plaintiffs' statistical analysis in
the predecessor complaints differed, allegedly based on the same
data. Inconsistency, however, is not a reason to discount the
current statistics, which are the only ones that matter at this
stage. That is especially true when, as here, there is a reasonable
explanation for a change in the complaint to wit, that the cases
were consolidated, and a cooperating co-conspirator allegedly
helped plaintiffs to refine their case. In any event, because the
statistics need only be plausible, different interpretations are
not necessarily fatal at this stage.

There may be more than one plausible interpretation of a single set
of data.  

Next, defendants complain that plaintiffs use averages for
multi-year periods. The Court agrees that this is an issue. An
average can flatten or hide trends that might tell a different
story, and one can manipulate an average by picking the cutoff
point between two periods. However, averages still have some value
as a measure of analysis. The price differences shown in the
complaint appear to be relatively large; thus, it is plausible
that, even if a more granular method were used, there would still
be measurable differences.

Defendants also argue that the Court should not credit statistical
analysis based on undisclosed data. The Court is aware of no law
requiring plaintiffs to produce the data underlying their
statistical analysis at the time they file a complaint. Moreover,
much of the data is publicly available.

Next, defendants argue that plaintiffs' before-and-after price
comparison is flawed because it does not account for underwriter
fees. But, as plaintiffs point out, underwriter fee are charged in
the transactions both before and after the class period, so that
fee cannot possibly account for the difference observed between the
two periods.  

Finally, defendants argue that plaintiffs failed to control for
other factors, such as macroeconomic conditions.  But this type of
fact-bound argument, which necessarily relies on complicated
decisions regarding statistical modeling and analysis, is
ill-suited for resolution on the pleadings.  

The Court therefore concludes that, while defendants' objections to
the reliability of plaintiffs' statistics have some weight, the
statistics are not so unreliable as to be useless at this very
early stage of the litigation in supporting the allegation of a
price-fixing conspiracy.

The deeper problem is that the statistics, do not plausibly suggest
that the particular defendants named in this suit were part of that
conspiracy. Even assuming that the price-fixing conspiracy extended
beyond the banks appearing in the chatroom logs, there is no
particular reason to believe that the other defendants named in
this suit were involved apart from plaintiffs' say-so. The
conspiracy could well have involved some of them, or none of them,
or a mix of the named defendants and other GSE bond dealers. The
Court has no meaningful way of distinguishing, and plaintiffs'
statistics do not help.

Accordingly, the Court finds, based on the direct evidence of
price-fixing activity, as supplemented by the statistical evidence,
that plaintiffs have adequately pleaded an antitrust conspiracy
against Deutsche Bank Securities Inc., BNP Paribas Securities
Corp., Morgan Stanley & Co., Goldman Sachs & Co., and Merrill
Lynch, Pierce, Fenner & Smith Inc. Plaintiffs have not pleaded a
claim upon which relief can be granted against the remaining
defendants.

Defendants' Remaining Arguments

Defendants raise several additional arguments. The Court finds none
of them persuasive.

Failure to Plead a Rule-of-Reason Claim

First, defendants argue that price-fixing in this context is not
per se unlawful and that plaintiffs have not pleaded a rule of
reason claim. Defendants argue that the rule of reason applies to
alleged agreements among co-underwriters working together in a
syndicate about the price of the bonds they underwrote. But that
only applies to the pricing while the dealers are working as a
syndicate in this case, while selling in the primary market.  

Similarly, defendants claim that plaintiffs challenge syndicate
activity aimed at bringing a new product a GSE bond to the market.
Not so. Plaintiffs do not challenge the syndicate activity; they
challenge the exploitation of the existence of the syndicate to
permit anti-competitive non-syndicate activity, i.e. the individual
sales of bonds at a coordinated price. In any event, the product is
not new by the time it is sold on the secondary market.

Defendants argue that, because they were free to sell the bonds at
par (i.e. for their face value), it could not be illegal to agree
to sell the bonds at a discount to par. The Court is skeptical that
it would, in fact, be legal for the defendants to agree to sell the
bonds at par. Mutually agreeing to keep the price of the bonds as
high as possible sounds like a classic case of price-fixing. But
even assuming, arguendo, that it would be legal for defendants to
mutually agree to sell bonds at an unattractively-high price, it
does not necessarily follow that it is also legal for them to set a
more attractive but still higher than competitive price.

Plaintiffs have adequately alleged, for pleading purposes, that
defendants conspired to fix prices in a marketplace in which they
were competitors. Horizontal price-fixing conspiracies among
competitors are unlawful per se, that is, without further inquiry.

Plaintiffs' failure to plead a rule-of-reason claim is irrelevant.

Anti-Trust Standing

Defendants next claim that plaintiffs have failed to plead
injury-in-fact because they failed to establish that any of the
transactions they entered into were affected by the alleged
conspiracy. But this argument depends almost entirely on the
preceding argument that plaintiffs failed to adequately plead a
conspiracy at all. Since that argument is meritless, this one is
too. There is no dispute that the complaint alleges that plaintiffs
participated in GSE bond transactions during the class period with
at least several of the defendants, including all of the Chatroom
Defendants.  

Statute of Limitations

Finally, defendants argue that the majority of the class period is
time-barred and that equitable tolling does not apply. The statute
of limitations is four years.  An antitrust action accrues and the
statute of limitations begins to run when the defendant commits an
act that injures the plaintiff. In an alleged price-fixing
conspiracy, each overt act that is part of the violation and that
injures the plaintiff starts the statutory period running again,
regardless of the plaintiff's knowledge of the alleged illegality
at much earlier times.

Here, the class period runs from January 1, 2009 through January 1,
2016. Plaintiffs allege that the conspiracy continued through that
period. The first individual complaint in this case was filed on
February 22, 2019, and the First Amended Complaint was filed on May
23, 2019. Thus, if even a single overt act in furtherance of the
conspiracy injured the plaintiffs in the second half of 2015, this
action is timely.

Given the nature of the alleged conspiracy, the Court finds this
entirely plausible.

Even if the limitations period were not revived by continuing
violations, it would be extended by the doctrine of fraudulent
concealment.  An antitrust plaintiff may prove fraudulent
concealment sufficient to toll the running of the statute of
limitations if he establishes (1) that the defendant concealed from
him the existence of his cause of action (2) that he remained in
ignorance of that cause of action until some point within four
years of the commencement of his action and (3) that his continuing
ignorance was not attributable to lack of diligence on his part.

Here, the wrong itself was self-concealing. Defendants are accused
of using private chat rooms to coordinate pricing. Allegations of
price-fixing conspiracies in violation of antitrust law constitute
the type of unlawful activity that is inherently self-concealing.
Defendants' only counterargument is that plaintiffs themselves rely
on public data for their statistical analysis. But requiring
potential plaintiffs to conduct exhaustive statistical analysis of
millions of transactions, just on the off chance that it would
reveal some suspicious behavior, would be absurd.

Plaintiffs allege that they became aware of the potential
conspiracy in June 2018, when it was first reported that DOJ was
investigating possible price-fixing in the bonds industry. That is
well within the four-year statute of limitations. At a minimum,
defendants' arguments do not conclusively establish that the
statute of limitations applies, and so dismissal on that ground
would be premature.

The Court finds, based on the direct evidence of price-fixing
activity, as supplemented by the statistical evidence, that
plaintiffs have adequately pleaded an antitrust conspiracy against
Deutsche Bank Securities Inc., BNP Paribas Securities Corp., Morgan
Stanley & Co., Goldman Sachs & Co., and Merrill Lynch, Pierce,
Fenner & Smith Inc. The motion to dismiss is therefore denied as to
those defendants.

The Court further finds that plaintiffs have not adequately pleaded
a claim against the remaining defendants, i.e. Barclays Capital
Inc., Citigroup Global Markets Inc.; Credit Suisse Securities (USA)
LL; First Tennessee Bank, N.A. and FTN Financial Securities Corp.;
UBS Securities LLC; J.P. Morgan Securities LLC; HSBC Securities
(USA) Inc., Nomura Securities International, Inc., TD Securities
(USA) LLC; Cantor Fitzgerald & Co. and SG Americas Securities, LLC.
The motion to dismiss is therefore granted as to those defendants.


However, because the Court does not find that amendment would be
futile, leave to amend is granted as to the dismissed defendants.
Any such amended complaint must be filed by September 10, 2019. Any
non-Chatroom Defendant named in the amended complaint may then
renew its motion to dismiss in a single joint filing by all
defendants concerned, not to exceed 25 pages, by September 17.

Plaintiffs may respond by September 23. No reply papers will be
permitted, but the Court will hear oral argument on September 27 at
2:00pm. The Court will consider all arguments previously raised to
be incorporated by reference in the new motions; the renewed
motions should focus exclusively on the new allegations.

A full-text copy of the District Court's September 3, 2019 Opinion
and Order is available at  https://tinyurl.com/y2ldkuql from
Leagle.com.

City of Birmingham Retirement and Relief System, Plaintiff,
represented by Vincent Briganti, Lowey Dannenberg P.C., Amanda F.
Lawrence - ALAWRENCE@SCOTT-SCOTT.COM - Scott&Scott, Attorneys at
Law, LLP, Christian Levis - clevis@lowey.com - Lowey Dannenberg
P.C., George A. Zelcs - gzelcs@koreintillery.com - Korein Tillery,
LLC, Joseph Peter Guglielmo - JGUGLIELMO@SCOTT- SCOTT.COM - Scott +
Scott, L.L.P., Justin W. Batten - JBATTEN@SCOTT-SCOTT.COM - Scott
and Scott Attorneys at Law LLP, Kristen M. Anderson -
KANDERSON@SCOTT-SCOTT.COM - Scott+Scott, Attorneys At Law, LLP,
Margaret Ciavarella MacLean - mmaclean@lowey.com - Lowey Dannenberg
P.C., Randall P. Ewing, Jr. - rewing@koreintillery.com -  Korein
Tillery, LLC, Roland Raymond St. -rstlouis@lowey.com - Louis, III ,
Lowey Dannenberg P.C.

Bank of America, N.A. & Merrill Lynch, Pierce, Fenner & Smith Inc.,
Defendants, represented by John E. Schmidtlein -
jschmidtlein@wc.com - Williams & Connelly L.L.P., pro hac vice,
Beth A. Stewart - bstewart@wc.com - Beth Stewart Esq, Jesse T.
Smallwood - jsmallwood@wc.com - Williams & Connolly LLP, Jonathan
Bradley Pitt - jpitt@wc.com - Williams & Connolly LLP, Lauren Anna
Howard  - lhoward@wc.com  - Williams & Connolly LLP & William
Jefferson Vigen - wvigen@wc.com - Williams & Connolly LLP.

Barclays Bank PLC & Barclays Capital Inc., Defendants, represented
by Lawrence Edward Buterman - lawrence.buterman@lw.com - Latham &
Watkins, LLP, Lilia Borislavova Vazova - lilia.vazova@lw.com -
Latham & Watkins, LLP, Richard David Owens - richard.owens@lw.com -
Latham & Watkins, LLP, Adam Brian Shamah - adam.shamah@lw.com -
Latham & Watkins, LLP, Eric Lewis Taffet , Latham & Watkins, LLP,
885 3rd Ave New York, NY, 10022-4834 & Gregory Stephen Mortenson -
gregory.mortenson@lw.com - Latham & Watkins, LLP.


BANK OF AMERICA: Judge Nixes Class Action Over Stop-Payment Fees
----------------------------------------------------------------
Dena Aubin, writing for Reuters, reports that a federal judge in
San Jose has dismissed most of a proposed nationwide class action
accusing Bank of America of wrongly charging fees to stop
electronic payments, ruling that federal law does not restrict the
stop-payment fees banks can charge.

In a decision on Aug. 13, U.S. District Judge Beth Labson Freeman
dismissed all class allegations against the bank while allowing one
named plaintiff, Alvin Moody of Georgia, to pursue an individual
claim that the bank failed to stop a payment even after he paid the
fee. [GN]


BERRY'S RELIABLE: Underpays Caregivers, Badon Suit Alleges
----------------------------------------------------------
STACEY BADON, individually and on behalf of all others similarly
situated, Plaintiff v. BERRY'S RELIABLE RESOURCES, LLC; and RHONDA
WILLIAMS, Defendants, Case No. 2:19-cv-12317 (E.D. La., Aug. 23,
2019) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.

The Plaintiff Badon was employed by the Defendants as caregiver.

Berry's Reliable Resources, LLC is a Louisiana company offering
home health care services. [BN]

The Plaintiff is represented by:

          Jody Forester Jackson, Esq.
          Mary Bubbett Jackson, Esq.
          JACKSON+JACKSON
          201 St. Charles Avenue, Suite 2500
          New Orleans, LA 70170
          Telephone: (504) 599-5953
          Facsimile: (888) 988-6499
          E-mail: jjackson@jackson-law.net
                  mjackson@jackson-law.net


BIMBO BAKERIES: BIPA Class Action Sent Back to Cook County Court
----------------------------------------------------------------
Dan Churney, writing for Cook County Record, reports that a Chicago
federal judge has ruled a putative class action suit by a former
worker at a Cicero bakery, who alleged her employer breached
biometric privacy law, should stay in federal court, as the judge
took a dim view of an attempt by the plaintiffs to downplay their
own potential damages demands in a bid to get the case kicked back
to a Cook County courtroom.

Judge Sarah Ellis issued the order Aug. 7 in U.S. District Court
for the Northern District of Illinois. Her ruling blocked a move by
Lisa Peatry in her putative class action against Bimbo Bakeries.

Bimbo, which is based in Horsham, Penn., runs bakery companies
across the country, making products under the brand names Sara Lee,
Entenmann's and Thomas, among others. Peatry said she was a machine
operator at a Bimbo facility in Cicero from 2016 to 2019.

Peatry alleged Bimbo violated the Illinois Biometric Information
Privacy Act. The company tracked employee hours through a
fingerprint scanning biometric device. According to Peatry, Bimbo
allegedly failed to follow the law and tell employees in writing
the purpose and length of time that prints would be stored.
Further, Bimbo did not obtain permission from employees to collect
and disseminate their prints, nor did Bimbo furnish a retention
schedule and guidelines for destroying prints.

The suit was filed March 26 in Cook County Circuit Court. However,
Bimbo had it moved to federal jurisdiction on the basis of the
Class Action Fairness Act, which allows for federal jurisdiction
when a plaintiff has potential damages of at least $75,000 and
potential class members have damages totaling at least $5 million.

Each violation of the biometric law calls for as much as a $5,000
fine. Bimbo maintained each time Peatry scanned her prints, while
clocking in and out of work during a two-and-a-half year period,
would add up to more than enough alleged violations to carry her
potential damages over the $75,000 mark; with at least 300 class
members, damages for the class would be well over $5 million.

Peatry, however, argued the case should go back to circuit court,
because she was only alleging three violations, for each of three
sections of the biometric law, totaling no more than $15,000 in
damages for herself and under $5 million for the potential class.

Judge Ellis noted the irony of the situation and sided with Bimbo.

"The parties' positions are reversed, with Peatry seeking to limit
the potential damages and Bimbo arguing that the complaint provides
the possibility of almost unlimited damages against it. Although
Peatry tries to now limit the amount of damages she seeks on her
own behalf and the class, her complaint does not include any such
limitation and instead suggests the frequent and repeated
occurrence of BIPA violations," Ellis concluded.

Ellis elaborated it's plausible to presume a violation of at least
some of the biometric law provisions allegedly occurred every time
Peatry and other workers clocked in and out.

"Peatry has not shown that it is legally impossible for her to
recover $5,000 per fingerprint scan,"  but, the judge said, "...at
this stage, such recovery, although uncertain, remains plausible
based on Peatry's allegations and an expansive reading of BIPA's
damages provision," Ellis said.

Peatry is represented by attorney Ryan T. Stephan and others from
the Stephan Zouras firm, of Chicago.

Bimbo is defended by the Chicago firm of Morgan, Lewis & Bockius.
[GN]


BLACKROCK INSTITUTIONAL: Court Narrows Claims in ERISA Suit
-----------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting in part and denying in part
BlackRock Defendants' Motion to Dismiss in the case captioned
CHARLES BAIRD, et al., Plaintiffs, v. BLACKROCK INSTITUTIONAL TRUST
COMPANY, N.A., et al., Defendants. Case No. 17-cv-01892-HSG. (N.D.
Cal.).

This ERISA action arises from a complicated set of facts concerning
the offering of certain investment options available in the
BlackRock Retirement Savings Plan, a 401(k) plan offered by
BlackRock, Inc.   to its employees. Plaintiffs Charles Baird and
Laura Slayton are both participants in the BlackRock Plan. The core
of Plaintiffs' voluminous complaint is the contention that the
BlackRock Defendants improperly favored their own proprietary
funds, including the BTC-sponsored CTIs, which led to unfavorable
returns for the participants. Plaintiffs also allege that the
BlackRock Defendants failed to disclose fees associated with the
CTIs, as is required by the Investment Company Act and its
regulations.

Plaintiffs allege the following seven causes of action on behalf of
the BlackRock Plan Class:

(1) breach of fiduciary duties for failing to prudently monitor,
select, and diversify investments, in violation of ERISA Section
404, 29 U.S.C. Section 1104, against the Retirement and Investment
Committee Defendants.

(2) engaging in party-in-interest transactions, in violation of
ERISA Section 406(a), 29 U.S.C. Section 1106(a), against BlackRock,
BTC, the Retirement Committee, and the Investment Committee
Defendants.

(3) engaging in prohibited transactions, in violation of ERISA
Section 406(b), 29 U.S.C. Section 1106(b), against BTC, the
Retirement Committee, and Investment Committee Defendants.

(4) breach of fiduciary duties for failing to prudently provide
investment advice and engaging in party-in-interest transactions,
in violation of ERISA Section 404 and 406, 29 U.S.C. Sections 1104
and 1106, against Mercer.

(5) breach of fiduciary duties for failing to prudently disclose
fees, in violation of ERISA Section 404, 29 U.S.C. Section 1104,
against the Administrative Committee Defendants.

(6) failure to monitor other fiduciaries, in violation of ERISA
Section 404, 29 U.S.C. Section 1104, against BlackRock, the MDCC,
the Retirement Committee, and Investment Committee Defendants.
  
(7) co-fiduciary liability under ERISA Section 405, 29 U.S.C.
Section 1105, against all Defendants.  

(8) violation of ERISA Section 404, 29 U.S.C. Section 1104.

(9) violation of ERISA Section 406, 29 U.S.C. Section 1106.

(10) co-fiduciary liability under ERISA Section 405, 29 U.S.C.
Section 1105.

BlackRock Plan Claims Against the BlackRock Defendants

Breach of Fiduciary Duties (Count I, V)

Under ERISA Section 404(a), fiduciaries have the following duties:
the duty of loyalty, the duty of prudence, the duty to diversify
investments, and the duty to act in accordance with the governing
plan documents and instruments. Plaintiffs allege that Defendants
violated the first three duties of loyalty, prudence, and
diversification.

The duty of loyalty requires fiduciaries to discharge their duties
solely in the interest of the participants and beneficiaries, for
the exclusive purpose of providing benefits to the participants and
defraying reasonable expenses of administering the plan. The duty
of loyalty prohibits a trustee from engaging in transactions that
involve self-dealing or that otherwise involve or create a conflict
between the trustee's fiduciary duties and personal interests.

With respect to the duty of prudence, a fiduciary must act with the
type of care, skill, prudence, and diligence under the
circumstances' not of a lay person, but of one experienced and
knowledgeable with these matters.

A plan fiduciary also has the duty to diversify investments so as
to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so.

Plaintiffs allege that the BlackRock Defendants breached the first
three duties by improperly favoring proprietary funds and charging
and hiding excessive fees. The Court analyzes whether those
allegations are sufficient to sustain claims for breach of
fiduciary duties.

Improperly Favoring BlackRock Proprietary Funds (Count I)

According to Plaintiffs, the Retirement and Investment Committee
Defendants breached their fiduciary duties by improperly favoring
BlackRock subsidiary funds, to the detriment of Plaintiffs but to
the exclusive benefit of the BlackRock Defendants. The BlackRock
Defendants argue that the existence of allegedly better
alternatives does not say anything about whether the Plan's
fiduciary process was prudent, and claim that Mercer's engagement
is also evidence of a thorough investigation.   

Plaintiffs must, the BlackRock Defendants contend, allege more than
the mere fact of affiliation to support an inference of fiduciary
breach.

The Court agrees that simply claiming that the Retirement and
Investment Committee Defendants chose a disproportionate number of
certain investments is not sufficient to plead a breach of
fiduciary duties.  However, the Court finds that Plaintiffs allege
more than just the selection of a disproportionate number of
BlackRock proprietary options. As alleged, the Investment
Committee's Investment Policy Statement (IPS), which sets forth
factors that the committee should consider when selecting and
monitoring investments, states that the Retirement Committee may
make a decision to retain or replace a fund that is on watch within
four quarters of the fund being placed on the watch list. However,
Plaintiffs claim that BlackRock applied different standards to
proprietary and non-proprietary funds. The Investment Committee
Defendants allegedly retained certain BlackRock funds on the watch
list for approximately ten quarters, even though the funds had
performance issues and other investors were withdrawing their money
from the funds.

In contrast, for a non-proprietary BlackRock Fund, the Investment
Committee Defendants allegedly began searching for its replacement
even before it was formally put on watch and within six months
replaced it with a BlackRock proprietary fund that purportedly had
a lower rating.
  
The Court finds that Plaintiffs allege more than just
underperformance and a fee differential. The SAC alleges that the
Plan's default funds, the LifePath funds, underperformed after
taking into account the compounding of returns realized every year
by almost 20% when compared to the Dow Jones Target Date benchmark
indices.  

Considering all of the factual allegations in the light most
favorable to Plaintiffs, Plaintiffs sufficiently plead that the
BlackRock Defendants breached their fiduciary duties by improperly
favoring BlackRock proprietary funds. While the BlackRock
Defendants very well may have had legitimate reasons to select the
challenged funds, that is not a determination the Court may make as
a matter of contested fact at this juncture.

Undisclosed Fees (Count V)

The SAC also includes allegations that the Administrative Committee
Defendants breached their fiduciary duties by failing to disclose
the securities lending fees as part of the expense ratio. According
to Plaintiffs, the Administrative Committee Defendants were
required to disclose these fees under the DOL's disclosure
regulations, codified at 29 C.F.R. Section 2550.404a-5.
  
Pursuant to the duty of loyalty, a plan fiduciary must communicate
to the beneficiary all material facts the trustee knows or should
know in connection with the transaction. Under 29 C.F.R. Section
2550.404a-5, the plan administrator must comply with the disclosure
requirements set forth in the regulation, and the disclosures must
be complete and accurate.

The BlackRock Defendants do not dispute that they did not disclose
the securities lending fees as part of the expense ratio, but argue
that they were not required to do so because those fees are taken
from any additive income, and therefore do not reduce the reduce
the rate of return.  

The Court cannot say at this stage that this claim must be
dismissed as a matter of law. The Court acknowledges the
superficial appeal of the BlackRock Defendants' argument: if they
are only required to include fees that would exist assuming no
returns in the expense ratio, then because securities lending fees
are only deducted if income is generated, it follows that they do
not have to disclose those fees. But the problem with this argument
is that the BlackRock Defendants import this qualifier from one
section of 29 C.F.R. Section 2550.404a-5, specifically
(d)(1)(iv)(A)(3), to a separate section without providing any basis
or authority for doing so.  

The SAC alleges that the securities lending fees fit the definition
in section (h)(5). Plaintiffs allege that the securities lending
fees and expenses reduce net investment income, as the higher the
securities lending fees and other expenses charged  the lower the
rate of return earned by participants.At this stage, and construing
the pleadings in the light most favorable to the non-moving party,
Plaintiffs thus have plausibly pled that the securities lending
fees diminish participants' returns, such that the Administrative
Committee Defendants were required to disclose this material
information as part of the expense ratio.

The Court accordingly DENIES the BlackRock Defendants' motion to
dismiss the breach of fiduciary duty claims.

Prohibited Transactions (Counts II, III)

Plaintiffs' second and third claims allege that BlackRock, BTC, the
Retirement Committee, and the Investment Committee Defendants
violated ERISA Sections 406(a) and (b), which prohibit
party-in-interest and self-dealing transactions.  

Allegedly, these statutes prohibited the BlackRock Plan's repeated
purchase of interests in proprietary funds and payment of
securities lending fees from any income.  

The BlackRock Defendants posit that Plaintiffs' claims must be
dismissed because the transactions fall under the exemptions in
ERISA Section 408(b)(8), 29 U.S.C. Section 1108(b)(8), and Class
Exemption 77-3 promulgated by the DOL. The BlackRock Defendants
concede that their Class Exemption 77-3 argument necessarily
depends on extrinsic materials, so it is properly addressed at the
summary judgment stage.  

According to Defendants, Plaintiffs cannot plausibly question
whether the securities lending fees were more than reasonable
compensation because innumerable other 401(k) plans invest in CTIs
with higher fees. But the burden is not on Plaintiffs to prove at
this stage that the fees were unreasonable, and that ends the
inquiry on a motion to dismiss.  

Defendants do not point to any concession in the SAC that other
401(k) plans have higher fees. To the contrary, the SAC alleges the
exact opposite: that there are lending fees as low as 5% in the
market and that many sponsors pay less than 50% in securities
lending fees. Because the BlackRock Defendants have not shown that
any of these exemptions apply as a matter of law so as to require
dismissal, the Court DENIES the BlackRock Defendants' motion to
dismiss the prohibited transactions claims.

Derivative Claims (Counts VI, VII)

In Counts VI and VII, Plaintiffs allege that all the BlackRock
Defendants failed to monitor the other fiduciaries andwere knowing
participants in the alleged misconduct, making them liable as
co-fiduciaries. Defendants argue that these claims must be
dismissed because they derive entirely from the underlying breaches
alleged by Plaintiffs, and must be dismissed with those claims.

Because the Court finds that Plaintiffs have adequately alleged the
underlying breaches, the Court DENIES the BlackRock Defendants'
motion to dismiss the monitoring and co-fiduciary derivative
claims.

CTI Class Claims Against BlackRock and BTC (Counts VIII, IX, X)

For the CTI Class claims, Plaintiffs allege that BTC breached its
duties by allegedly appointing itself as the lending agent for the
CTIs. Plaintiffs also allege that both BTC and BlackRock breached
their duties and engaged in prohibited transactions when BlackRock
and BTC used Plan assets to pay BTC excessively high compensation.
And BlackRock and BTC allegedly used CTI cash collateral to invest
in overly risky STIFs, another breach of their fiduciary duties.  

Breach of Fiduciary Duties (Count VIII)

Plaintiffs allege that BTC is a fiduciary under 29 U.S.C. Section
1002(21)(A)(i) to participants and beneficiaries of all employee
benefit plans that indirectly or directly invest in the
BTC-sponsored CTIs. Under Section 1002(21)(A)(i), a party that is
not a named fiduciary in the plan becomes a functional fiduciary if
the party exercises any discretionary authority or discretionary
control respecting management of such plan or exercises any
authority or control respecting management or disposition of its
assets.

The Supreme Court has stressed that the central inquiry is whether
the party was acting as an ERISA fiduciary `when taking the action
subject to complaint. This requires the Court to assess whether BTC
was a fiduciary with respect to each specific action alleged in the
SAC. The BlackRock Defendants argue that BTC was not a fiduciary
when it negotiated its agreed-upon securities lending fees, thereby
foreclosing Plaintiffs' claim that BTC breached its duties when
receiving that compensation.The BlackRock Defendants do not,
however, dispute that BTC was a functional fiduciary when it made
investment decisions with the Plan's assets.   

Instead, the BlackRock Defendants argue that Plaintiffs are
time-barred from bringing those investment-related claims.

Negotiation of Fees and Appointment of BTC as Lending Agent

BTC argues that under the Ninth Circuit's decision in Santomenno,
it cannot be a fiduciary when negotiating its appointment and
compensation as the securities lending agent.  Santomenno, 883 F.3d
at 838). In Santomenno, the Ninth Circuit held that a service
provider owes no fiduciary duty with respect to the negotiation of
its fee compensation. Because the determination of fees happened
before the actual administration of the Plan, the Ninth Circuit
held that the service provider, at the time of negotiation, plainly
did not exercise discretionary control over the plan, possess
authority over its assets, render investment advice, nor have any
discretionary authority in the administration of the plan.

But whether BTC was a fiduciary and breached its duties when it
collected its compensation, alleged to have been 50% of all
securities lending income generated from the BlackRock CTIs'
assets, is a distinct inquiry. The Ninth Circuit has held there is
no breach when a service provider collects fees paid out of plan
funds in accordance with definitively calculable and
nondiscretionary compensation  clearly set forth in a contract.

To dispute this factual allegation, the BlackRock Defendants ask
the Court to look to the 16 Things document to find that the
contract documents make clear that BTC would have been in breach
had it ceded management of cash collateral to a third-party, and
that the fees are calculated according to a definite,
non-discretionary formula. But at the motion to dismiss stage, the
Court does not consider extrinsic evidence to dispute the
allegations in the SAC. It is not clear from the few documents the
Court has found properly incorporated by reference whether BTC's
compensation terms were calculated pursuant to a non-discretionary
formula as the BlackRock Defendants allege.  

Because Plaintiffs sufficiently allege that BTC had control and
discretion in setting its compensation, and that such compensation
came out of the Plan's funds, the Court DENIES the BlackRock
Defendants' motion to dismiss with respect to this claim.

Mismanagement of STIFs

Plaintiffs allege that BTC directed cash collateral from the CTIs
into BTC's most expensive and high risk Synthetic STIFs,
purportedly exposing investors to more risk than was prudent and
permitted by the CTI Plan and STIF Guidelines. The two allegedly
high risk STIFs were the Cash Equivalent Fund II (CEF II) and Cash
Equivalent Fund B (CEF B), which BTC sponsors, manages, and serves
as trustee for.

The BlackRock Defendants argue that claims based on BTC's
investment decisions for the STIFs are time-barred by 29 U.S.C.
Section 1113, as those decisions occurred more than six years prior
to the filing of the original Complaint. Alternatively, the
BlackRock Defendants argue that Plaintiffs fail to state a claim
upon which relief can be granted.
  
Time Bar

Under Section 1113, a plaintiff may not bring suit more than three
years after the date on which she acquires actual knowledge of the
alleged breach, or more than six years after the date of the breach
or violation, whichever is earlier.

Plaintiffs do not dispute that BTC's decisions to invest the STIFs
in allegedly risky securities occurred more than six years before
the suit was filed, but argue that because BTC had the STIFs hold
those securities until 2012, the six-year limitation period did not
start to run until then.  
The Court agrees that the claims are not time-barred under Section
1113(1). As discussed earlier, the Supreme Court has held that
there is a continuing duty to systematically consider all the
investments of the trust at regular intervals' to ensure they are
appropriate. So long as the alleged breach of the continuing duty
to monitor investments and remove imprudent ones] occurred within
six years of suit, the claim is timely. Because the alleged
wrongful conduct here was a breach of BTC's duty to continuously
monitor these STIFs, the date of the violation is not the date when
BTC invested the STIFs in the securities, but rather the date when
BTC sold those securities in 2012, since the failure to remove
these securities continued until then.   

The claims therefore are not time-barred under Section 1113(1).

Failure to State a Claim

The Court next considers whether Plaintiffs have sufficiently pled
that BTC and BlackRock violated their fiduciary duties by (1)
failing to monitor the investments BTC made for the two STIFs (CEF
II and CEF B); and (2) improperly concealing losses in the STIFs.

The SAC sufficiently pleads that the continuing investments BTC
caused the STIFs to make were imprudent and contrary to STIF
Guidelines. According to the SAC, in 2011 and 2012 the CTI Plan
(Ex. I) and the STIF Guidelines governed BTC-managed STIFs,
including CEF II and CEF B.

Section 2.1 of the CTI Plan permits BTC to consider the terms set
forth in the STIF Guidelines so long as they are not inconsistent
with the CTI Plan. The security instruments BTC invested the STIFs
in allegedly did not comply with the STIF Guidelines because they
were long-term debt obligations as opposed to short-term debt
obligations.

The BlackRock Defendants argue that Plaintiffs' average weighted
maturity values alleged in the SAC are based on actual maturity
dates, when the correct basis is the next interest reset date. But
the Court does not find that reading mandated by the face of the
SAC or the STIF Guidelines. Accordingly, because the SAC alleges
that BTC made investment decisions for the two STIFs in a manner
contrary to the STIF Guidelines, Plaintiffs sufficiently allege
that BTC breached its fiduciary duty by failing to monitor.  

With respect to the fraudulent concealment claim, the Court finds
that Plaintiffs have not sufficiently alleged that BTC fraudulently
concealed the losses. Plaintiffs' own allegations establish that
the audited financial statements for the two funds disclosed that
BTC withheld investment income to offset the STIF losses.
Plaintiffs cannot then allege that Defendants concealed this
methodology, as the SAC acknowledges that it was disclosed. See id.
Further, there are no allegations that Defendants misrepresented
the significance of offsetting the losses against withheld income.

The Court thus GRANTS the BlackRock Defendants' motion to dismiss
the breach of fiduciary duty claim premised on fraudulent
concealment of the losses in CEF II and CEF B, but DENIES the
motion to dismiss with respect to the failure to monitor the
STIFs.

Prohibited Transactions (Count IX)

Similar to the allegations discussed earlier, the SAC alleges that
BTC engaged in prohibited transactions under ERISA Section
406(b)(1) when it awarded itself excessive compensation fees.
Because the BlackRock Defendants' Class Exemption 2006-16 argument,
depends on extrinsic evidence to conclude that the securities
lending compensation was reasonable, the Court DENIES the BlackRock
Defendants' motion to dismiss for similar reasons as discussed in
Section III(B)(ii), supra.

Co-Fiduciary Liability (Count X)

The BlackRock Defendants argue that because BTC is not a fiduciary
when negotiating client agreements, it cannot be a co-fiduciary.
The Court finds that Plaintiffs have pled that BTC is a fiduciary
when collecting its fees, which are allegedly discretionary and
come from the Plan's assets, see Section III(C)(i)(1), supra, and
thus DENIES the motion to dismiss the derivative co-fiduciary
claim.

The Court GRANTS IN PART AND DENIES IN PART the BlackRock
Defendants' motion to dismiss and dismisses without leave to amend
Plaintiffs' Claim VIII to the extent that it is premised on alleged
fraudulent concealment of STIFs' losses.

A full-text copy of the District Court's September 3, 2019 Order is
available at https://tinyurl.com/yxv57hmj from Leagle.com.

Charles Baird, individually, and on behalf of all others similarly
situated, and on behalf of the BlackRock Retirement Savings Plan,
Plaintiff, represented by Nina Rachel Wasow
-nina@feinbergjackson.com - Feinberg, Jackson, Worthman & Wasow
LLP, Daniel Ryan Sutter - dsutter@cohenmilstein.com - Cohen
Milstein Sellers and Toll, PLLC, pro hac vice, Julia Horwitz -
jhorwitz@cohenmilstein.com - Cohen Milstein Sellers Toll, Julie S.
Selesnick - jselesnick@cohenmilstein.com - Cohen Milstein Sellers &
Toll, PLLC, Karen L. Handorf - khandorf@cohenmilstein.com - Cohen
Milstein Sellers and Toll PLLC, pro hac vice, Mary Joanne
Bortscheller - mbortscheller@cohenmilstein.com - Cohen Milstein
Sellers Toll PLLC, Michelle C. Yau - myau@cohenmilstein.com - Cohen
Milstein Sellers & Toll PLLC, pro hac vice, Scott M. Lempert -
slempert@cohenmilstein.com - Cohen Milstein Sellers Toll, pro hac
vice & Todd F. Jackson - todd@feinbergjackson.com -, Feinberg,
Jackson, Worthman and Wasow LLP.

Lauren Slayton, Plaintiff, represented by Michelle C. Yau , Cohen
Milstein Sellers & Toll PLLC, Nina Rachel Wasow , Feinberg,
Jackson, Worthman & Wasow LLP, Daniel Ryan Sutter , Cohen Milstein
Sellers and Toll, PLLC, pro hac vice, Julia Horwitz , Cohen
Milstein Sellers Toll & Mary Joanne Bortscheller , Cohen Milstein
Sellers Toll PLLC.

BlackRock Institutional Trust Company, N.A., Blackrock, Inc., The
BlackRock, Inc. Retirement Committee & The Investment Committee of
the Retirement Committee, Defendants, represented by Brian David
Boyle - bboyle@omm.com - O'Melveny Myers LLP, Adam Manes Kaplan -
akaplan@omm.com - O'Melveny & Myers LLP, Meaghan McLaine VerGow -
mvergow@omm.com - OMelveny and Myers LLP &  -, O'Melveny & Myers
LLP.

Catherine Bolz, Chip Castille, Paige Dickow, Daniel A. Dunay,
Jeffrey A. Smith, Anne Ackerley, Nancy Everett, Joseph Feliciani,
Jr., Ann Marie Petach, Michael Fredericks, Corin Frost, Daniel
Gamba, Kevin Holt, Chris Jones, Philippe Matsumoto, John Perlowski,
Andy Phillips, Kurt Schansinger, Tom Skrobe, Amy Engel, Management
Development & Compensation Committee of the BlackRock, Inc. Board
of Directors, Kathleen Nedl, Marc Comerchero, Joel Davies, John
Davis, Milan Lint & Laraine McKinnon, Defendants, represented by
Brian David Boyle , O'Melveny Myers LLP, Randall W. Edwards ,
O'Melveny & Myers LLP & Meaghan McLaine VerGow , OMelveny and Myers
LLP.


CALIFORNIA PUBLIC: Urged to Settle LTC Insurance Class Action
-------------------------------------------------------------
Danielle Brown, writing for McKnights, reports that the California
Public Employees' Retirement System is being urged to settle a $1.2
billion class-action lawsuit over premium increases for its
long-term care insurance policies.

Superior Court Judge William Highberger has tentatively ruled he's
inclined to decide CalPERS wrongly raised its rates for about
85,000 class members who purchased its inflation protection benefit
plans, the Sacramento Bee reported.

The plan featured steady increases to benefits covering rising
long-term care costs but promised to keep premiums the same.
CalPERS' marketing materials for the plan also featured a graph
with a flat-line projection for future premiums. The judge agreed
that the language of the marketing materials suggested premiums
would not increase.

The lawsuit was first filed against CalPERS in 2013 by California
citizens who purchased their LTC policy between 1995 and 2004. The
class includes about 100,000 policyholders who allege the
retirement system violated contracts when it raised premiums by 85%
after promising to keep prices stable.

The plaintiffs allege the premium hikes cost policyholders about
$1.2 billion in damages. CalPERS has previously said the system's
contract allowed it to raise rates.

"While we respectfully disagree with Judge Highberger's tentative
ruling that the insurance policies limited CalPERS' ability to
increase premiums, he did opine that increases are permitted in
certain situations," CalPERS spokesman Joe DeAnda said in the
report.

The judge did not address the approximate 18,000 policyholders who
didn't purchase the extra benefit and are part of the suit's
class.

If not settled, the lawsuit is scheduled to go to trial in October.
[GN]


CAPITOL ONE: Faces $600MM Data Breach Class Action
--------------------------------------------------
Shruti Shekar, writing for MobileSyrup, reports that lawyers have
filed a statement of claim to certify a $600 million CAD
class-action lawsuit against Capital One following the financial
institution suffering a data breach in July, according to court
documents obtained by MobileSyrup.

Toronto-based law firm Landy Marr Kats filed the statement of claim
to the Ontario Superior Court of Justice on August 9th.

The law firm representing its clients is asking for $600 million
for "damages for breach of contract, breach of warranty, breach of
confidence, breach of fiduciary duty, breach of the duty of good
faith contractual performance, negligence and intrusion upon
seclusion." The law firm is also asking for $20 million in punitive
or aggravated damages, the document noted.

In July, U.S. financial services firm Capital One announced it
experienced a data breach that affected about 100 million U.S.
residents and six million Canadians. The company said the social
security numbers of 140,000 U.S. credit card customers and 80,000
linked bank accounts were compromised in the breach.

Regarding Canadian credit card customers, the company said that
about one million social insurance numbers were compromised. The
hacker was also able to obtain information such as customer status
data, credit scores, credit limits and balances. Further, names,
addresses, zip/postal codes, phone numbers, email addresses, dates
of birth and self-reported income leaked.

Canada's Privacy Commissioner has opened an investigation into the
breach.

Law firm believes odds of case turning into a class-action lawsuit
is possible Lawyer Vadim Kats said in an interview with MobileSyrup
that the statement of claim was presented to Capital One in Canada
as well as the judge presiding over the case.

Kats said the case is currently considered a potential class action
as it has to be certified by the judge first before going forward.


"You have to meet a certain legal test for a case to be a class
action," said Kats. "The judge takes into account whether all the
people that have been affected have a commonality . . . If there
are too many differences about what would happen then the judge
won't certify the case as a class action."

Kats said he believes that the chances of the judge ruling the case
against Capital One as a class action lawsuit are positive. He
noted that the timeline for the case to be certified could be
between eight months and a year. "I think the chances are very
good, but you don't know exactly how it's going to go until you
actually sit down and go through all the documents that Capital One
will be producing," he said.

It is important to add that in this particular case, the lead
plaintiff, David Mark Slapinski, has been a Capital One Gold
Mastercard client since 2015. Slapinski was assured at the time
that personal information provided "was protected" both by the
Personal Information and Electronic Documents Act and Capital One's
Privacy Policy, the document indicated.

However, the client's information was part of the data breach, and
the document noted that Capital One kept the information of a
breach from its clients "while they developed plans to minimize
damage to their own corporate reputations."

"In so doing, [Capital One] preferred their own interests to those
of the plaintiff and class members and deliberately increased the
plaintiff and class members exposure to harm in order to reduce
their own exposure," the document said.

Anyone eligible could be a part of the potential class-action
lawsuit

Kats said the claim is currently through the one lead plaintiff but
that there are dozens more affected by the breach that have signed
up to be a part of the potential class action.

"We do not have to include others," he said. "When you start the
class action, everyone is automatically within the class action
unless people opt-out and so far no one has opted out. People are
slowly joining our class action list."

Kats indicated that the information of those joining the class
action will be kept and used to demonstrate to the judge what the
individuals have suffered as a result of the Capital One breach.

It's worth noting, though, that only those who suffered a breach
and have been notified are eligible to join the class action, Kats
said. He added that anyone can join the list on the firm's webpage.


Kats explained that there is a chance that Capital One might settle
this claim before it becomes certified. A similar situation
occurred with a case against Home Depot where the retailer settled
before the case become a class-action lawsuit.

Kats also added that London, Ontario-based law firm McKenzie Lake
Lawyers is collaborating with this potential class-action lawsuit.
[GN]


CDK GLOBAL: Court Narrows Counterclaims in Antitrust Suit
---------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued an Memorandum Opinion and Order
granting in part and denying part Plaintiff/Counter-Defendants’
Motion to Dismiss Counterclaims in the case captioned  IN RE DEALER
MANAGEMENT SYSTEMS ANTITRUST LITIGATION, MDL 2817. This document
relates to: THE DEALERSHIP CLASS ACTION. Case No. 18-cv-864. (N.D.
Ill.).

CDK brings counterclaims against the Counter-Defendants under the
Computer Fraud and Abuse Act, the Digital Millennium Copyright Act,
and for breach of contract. The counterclaims focus on
Counter-Defendants' purported unauthorized access along with data
integrator Authenticom, Inc. of CDK's enterprise software and
computing platform for automotive dealerships and dealership groups
known as its Dealer Management System or, more commonly, its DMS.

CDK brings counterclaims against Counter-Defendants based on this
alleged unauthorized access. Before the Court is
Counter-Defendants' motion to dismiss the breach of contract,
Computer Fraud and Abase Act, and Digital Millennium Copyright Act
counterclaims brought against them.

Breach of Contract (First Counterclaim)

CDK's first cause of action alleges that the Counter-Defendants
violated the terms of their respective MSAs by sharing login
credentials with Authenticom and other third parties. CDK further
contends that Counter-Defendants have repeatedly violated the
express contractual prohibitions in their respective MSAs by
actively facilitating hostile, unauthorized access to CDK's DMS.

The MSAs expressly prohibit the Counter-Defendants from allowing
third-parties to access CDK's DMS. There is a limited exception to
this prohibition in some MSAs that allows access by employees and
agents of the dealer with a need-to-know.

Counter-Defendants argue that CDK's breach of contract counterclaim
fails because Counter-Defendants authorized data extractors to
extract data from the DMS, which according to Counter-Defendants is
all that is necessary under the MSAs.   

According to Counter-Defendants, this allegation establishes that
Authenticom and other third-party integrators were authorized to
access CDK's data and therefore were acting as the agents of
Counter-Defendants. CDK responds that the word authorizing is in
quotation marks because CDK is alleging that third-party access to
its data was not authorized.  

The Court agrees that the use of the term authorizing in scare
quotes does not amount to a concession that Counter-Defendants'
access to CDK's data was authorized.

That leaves the question of whether Authenticom and other
third-party data integrators were the employees and/or agents of
Counter-Defendants such that they were authorized to access CDK's
DMSs under the terms of the relevant MSAs.

Because Counter-Defendants do not contend that Authenticom and
other third-party data integrators were their employees, the Court
need only consider whether the third-party data integrators were
the agents of Counter-Defendants. To the extent that
Counter-Defendants contend that all that is needed to circumvent
the MSAs' prohibition on allowing parties to access CDK's DMS was
Counter-Defendants' authorization, the prohibition on third-party
access would be pointless, as Counter-Defendants simply could
authorize any third-party to access CDK's DMS. Thus, something more
than authorization by Counter-Defendants' must be necessary to
establish agency under the MSAs.  

Counter-Defendants argue that to the extent that the term agents is
ambiguous the term should be construed against CDK, as the drafter
of the MSAs.  

Moreover, agency is an issue of fact generally not susceptible to
resolution at the motion to dismiss stage. Other factors that bear
on the question of whether one is properly considered an agent or
an independent contractor include (1) the question of hiring; (2)
the right to discharge (3) the manner of direction of the servant
(4) the right to terminate the relationship and (5) the character
of the supervision of the work done. Counter-Defendants fail to
explain how this analysis can be resolved as a matter of law based
on the allegations in the breach of contract counterclaim.

In fact, CDK identifies allegations suggesting that there is no
such agency relationship. CDK alleges that Authenticom's own
contract with dealers makes clear that Authenticom is not the
dealer's agent and in fact refers to agents of the dealer
repeatedly as third parties to the agreement.  

Counter-Defendants counter that the contracts do not undermine
their contention that data integrators are their agents.
Specifically, Counter-Defendants note that an agent may be both an
independent contractor in one relationship and an agent in another.
Although Counter-Defendants do not identify what law applies to
this analysis in their opening brief, Counter-Defendants assert in
their reply brief that Illinois law applies to the issue of whether
data extractors were agents of Counter-Defendants.

Illinois courts have indicated that an independent contractor may
be considered an agent for certain purposes when they have "the
authority both to control the details of the work and also the
power to act for and to bind the principal in business negotiations
within the scope of [the] agency. Counter-Defendants do not contend
that such circumstances are present here.

Lastly, Counter-Defendants argue that the merger clause in the MSAs
precludes interpreting the MSAs in light of Counter-Defendants'
contracts with other entities.   

However, the merger clause addresses agreements between the parties
to the contract, not agreements with third parties. Furthermore, it
cannot be the case that Counter-Defendants' contracts with data
integrators are irrelevant to determining whether the data
integrators can be characterized as agents of Counter-Defendants.
While Counter-Defendants' own characterization of their
relationships with data integrators is not dispositive of the issue
of agency, it certainly is relevant.   Indeed, even if the
contracts between Counter-Defendants and data integrators did not
characterize their relationship, looking at the terms of the
contract likely would be relevant to engaging in the fact intensive
agency analysis discussed above.

The Court denies Counter-Defendants' motion to dismiss CDK's breach
of contract counterclaim.

Computer Fraud and Abuse Act (Second Counterclaim)

Counter-Defendants move for dismissal of CDK's counterclaim under
the Computer Fraud and Abuse Act (CFAA) because the counterclaim
(1) is untimely (2) fails to allege accessor liability against
Counter-Defendants and (3) CDK has not alleged the requisite loss
or damage.  

Time-Barred

Counter-Defendants move for dismissal of CDK's CFAA counterclaim as
time-barred. Dismissal based on a statute of limitations is an
affirmative defense. Nevertheless, dismissal is appropriate when
the plaintiff pleads herself out of court by alleging facts
sufficient to establish the complaint's tardiness. The CFAA has a
two-year statute of limitations.  

CDK filed its counterclaims on February 22, 2019. CDK alleges facts
establishing that it became aware of Counter-Defendants' alleged
unauthorized access of CDK's DMS no later than June 2015.
Counter-Defendants identify additional allegations indicating that
CDK learned of the alleged misconduct more than two years before it
filed its counterclaims.

CDK argues that its CFAA counterclaim is not time-barred because it
is a compulsory counterclaim. While the Seventh Circuit has held
that a counterclaim for affirmative relief may not be asserted if
barred by the statute of limitations, the Seventh Circuit also has
recognized in dicta that there is authority that the filing of a
claim tolls the statute of limitations on any compulsory
counterclaim, by analogy to the relation back language of Rule 15.

Although the Seventh Circuit has not conclusively addressed that
issue, courts in this District have held that the filing of a claim
tolls the statute of limitations on any compulsory counterclaim.  

CDK argues that its CFAA counterclaim is compulsory because it
overlaps with several of CDK's affirmative defenses. Specifically,
one of CDK's defenses to the Counter-Defendants' antitrust claims
is that CDK legally is entitled to control access to its DMS.  

In support of its argument that its CFAA counterclaim is
compulsory, CDK cites Moore v. New York Cotton Exchange, 270 U.S.
593, 602 (1926). In that case, the plaintiff sued the New York
Cotton Exchange under the antitrust laws, alleging that the
Exchange had a monopoly on price quotations for cotton futures and
was illegally precluding the plaintiff from accessing the
quotations via telegraphic ticker service. The Exchange
counterclaimed, asserting that the plaintiff, though it had been
refused permission to use the quotations of the New York exchange,
was purloining them, or receiving them from some person who was
purloining them, and giving them out to its members.

After the antirust claim was dismissed, the Supreme Court concluded
that it had jurisdiction over the counterclaim because it arose out
of the same transaction as the plaintiff's antitrust claim.  

The continuing violation' exception to federal statutes of
limitations only allows suit to be delayed in cases where the first
instance of misconduct may be insufficient and indeed the
`cumulative effect' of a series of acts is necessary to make out an
actionable claim. Here, CDK does not identify any facts indicating
that its CFAA counterclaim is based on the cumulative effect of a
series of acts. Plaintiff therefore has not alleged facts
sufficient to invoke the continuing violation exception. Still, to
the extent that CDK seeks to bring a CFAA counterclaim based on
recent instances of unauthorized access, the continuing violation
doctrine is not necessary to save CDK's CFAA counterclaim.

In sum, to the extent that CDK's CFAA counterclaim is based on
misconduct occurring more than two years before CDK filed its
counterclaims, the counterclaim is time-barred and is dismissed.
However, to the extent that CDK's CFAA counterclaim is based on
more recent conduct (since February 22, 2017), the claim is
timely.

Accessor Liability

Counter-Defendants also move for dismissal of CDK's CFAA
counterclaim on the ground that CDK fails sufficiently to allege
accessor liability on the part of Counter-Defendants. The CFAA
provides criminal and civil penalties for anyone who "intentionally
accesses a computer without authorization or exceeds authorized
access, and thereby obtains information from any protected
computer.

Counter-Defendants seek dismissal of the CFAA counterclaim because
the complained-of computer access was conducted by persons other
than the dealerships namely, Authenticom and other third parties.

In other words, Counter-Defendants contend that CDK's CFAA
counterclaim fails because CDK does not allege that
Counter-Defendants personally accessed CDK's DMS.

Counter-Defendants begin by arguing that Court should not impose
liability for inducing misconduct unless the statute expressly
establishes inducer liability, which the CFAA does not. As noted by
Counter-Defendants, Congress has imposed inducer liability in other
statutes. The statute at issue here the CFAA prohibits
intentionally accessing a computer without authorization or in
excess of authorized access. The question before the Court
therefore is what it means to intentionally access a computer.

In Synthes, Inc. v. Emerge Med., Inc., the court noted that the the
plain language of the statute requires only access no modifying
term suggesting the need for personal access is included. 2012 WL
4205476, at *17. Because the term access generally means gaining
admission to, many courts addressing the issue have concluded that
direct personal access is not required. Thus, as long as CDK
alleged sufficient facts to bring a conspiracy counterclaim under
the CFAA, it may proceed under that theory. Because
Counter-Defendants do not address whether CDK alleged sufficient
facts to bring a conspiracy claim under the CFAA, the Court denies
their motion to dismiss the CFAA counterclaim for failure to allege
wrongful conduct by Counter-Defendants.

Counter-Defendants further argue that even if allegations of
personal access are not necessary to state a claim under the CFAA,
CDK's CFAA counterclaim still should be dismissed because CDK
alleges that Counter-Defendants authorized Authenticom and other
data integrators to access the DMS. Specifically,
Counter-Defendants argue that the authorization required under the
CFAA is that of the computer system's user, not the owner. However,
Counter-Defendants do not cite any authority in support of that
interpretation.

Under the CFAA, the phrase exceeds authorized access means to
access a computer with authorization and to use such access to
obtain or alter information in the computer that the accessor is
not entitled to obtain or alter.

In such cases, the employee would be the user. It would be
illogical to say that the employee needed authorization from
herself. Because the CFAA contemplates that users may exceed
authorized access, it cannot be the case that the authorization
required by the CFAA is that of the user. This Court previously
concluded the authorization required by the CFAA is that of the
owner of the computer system, not from anyone who happens to use
the system.  And Counter-Defendant's have not presented persuasive
grounds for reconsidering that conclusion.

Accordingly, the Court denies Counter-Defendants' motion to dismiss
for failure to allege accessor liability.

Requisite Losses

Counter-Defendants also argue that CDK fails to allege loss to 1 or
more persons during any 1-year period aggregating at least $5,000
in value, as required by 18 U.S.C. Section 1030(c)(4)(A)(i)(I).
CDK alleges that:

The Dealership Counter-Defendants' violations of the CFAA have
caused CDK to suffer damages and losses. These damages and losses
include the costs of investigating and responding to the Dealership
Counter-Defendants' unlawful actions; the costs of restoring the
DMS and the data it contains to their condition prior to the
Dealership Counter-Defendants' unlawful actions; and all revenue
lost, costs incurred, and other consequential damages incurred
because of disruption of service caused by the unlawful actions of
the Dealership Counter-Defendants and the third parties acting in
concert with the Dealership Counter-Defendants. On information and
belief, these losses have exceeded $5,000 within a twelve-month
period.

Counter-Defendants argue that this allegation is insufficient to
establish the requisite amount of losses because CDK cannot
aggregate the losses allegedly caused by all Counter-Defendants.
Counter-Defendants further note that based on this allegation each
of the dealerships could have caused as little as $294.12 in
alleged losses.

CDK argues that, even assuming that a plaintiff must identify
$5,000 in loss or damage attributable to each defendant, the
defendants' contention that this standard has not been met was
simply one inference of many that may be drawn from Plaintiff's
complaint.

In other words, CDK believes that the Court should not infer that
each Defendant caused as little as $294.12 in losses because that
is just one possible inference and the Court must draw all
reasonable inferences in Counter-Plaintiff's favor at the motion to
dismiss stage. That argument misses the mark. Although the Court
must draw all reasonable inferences in CDK's favor, that does not
relieve CDK of its obligation to allege sufficient facts to
establish the elements of its counterclaims, including that it
satisfied the CFAA losses threshold.

In Wolf, the court concluded that the plaintiff alleged losses
sufficient to satisfy the CFAA losses threshold even though it did
not identify what specific loss was caused by each defendant. 2016
WL 1117364, at *4.  In reaching that conclusion, however, the court
noted that plaintiff's allegations permitted an inference that both
defendants were working together to access plaintiffs' data,
particularly given that defendants were working for the same rival
company and undoubtedly were familiar with each other by virtue of
their past employment with plaintiff.

Here, on the other hand, CDK does not identify any facts indicating
that Counter-Defendants were acting together.

CDK further argues that allocation questions are at best fact
issues that cannot be resolved on a motion to dismiss. Even if that
is the case, however, CDK fails directly to address the threshold
issue of whether losses caused by each Defendant can be aggregated
under the CFAA in the first place8 The Seventh Circuit has not yet
addressed whether losses allegedly caused by multiple defendants
can be aggregated for the purposes of satisfying the CFAA's loss
threshold, and there is little case law on the issue.

In the context of determining whether losses incurred by multiple
victims can be aggregated, however, courts have reached different
conclusions. In In re DoubleClick Inc. Privacy Litigation, the
court held that damages and losses under § 1030(e)(8)(A) may only
be aggregated across victims and over time for a single act. 154
F.Supp.2d 497, 523 (S.D.N.Y. 2001). In reaching that conclusion,
the court noted that the CFAA provides that the term damage means
any impairment to the integrity or availability of data, a program,
a system, or information that causes loss aggregating at least
$5,000 in value during any 1-year period to one or more
individuals.

Here, the Court need not resolve whether aggregation only is
appropriate when losses stem from a single act (i.e., the
DoubleClick approach), or, alternatively, from multiple acts that
accurately can be characterized as an impairment (i.e., the
Creative Computing approach), as CDK fails to allege facts
indicating that Counter-Defendants were acting together and that
their alleged wrongs can therefore be treated as an impairment.
Nothing in either DoubleClick or Creative Computing indicates that
losses caused independent actions of unrelated parties can be
aggregated for the purposes of satisfying the CFAA's loss
threshold. Such an interpretation of the CFAA would be inconsistent
with the text of the statute.

The Court sees no reason to interpret the singular term impairment
to encompass multiple unrelated wrongs. And nothing in the language
indicates that a single victim can aggregate losses caused by
multiple acts of multiple defendants.9 CDK fails sufficiently to
explain why the losses resulting from the alleged misconduct of
separate defendants should be considered an impairment under the
CFAA.

Accordingly, the Court grants Counter-Defendants' motion to dismiss
CDK's CFAA counterclaim for failure to allege sufficient losses.
This dismissal is without prejudice to the filing of amended
counterclaims by the date set forth above.

Digital Millennium Copyright Act (Third Counterclaim)

CDK brings a counterclaim against Counter-Defendants Continental
and Warrensburg, alleging that they violated Section 1201(a)(1)(A)
of the Digital Millennium Copyright Act (DMCA).

The DMCA provides, in relevant part, that no person shall
circumvent a technological measure that effectively controls access
to a work protected under this title. The DMCA defines circumvent a
technological measure to mean descramble a scrambled work, to
decrypt an encrypted work, or otherwise to avoid, bypass, remove,
deactivate, or impair a technological measure, without the
authority of the copyright owner.

CDK alleges that Counter-Defendants Continental and Warrensburg
circumvented a technological measure that controls access to CDK's
DMS by providing dealer login credentials to Authenticom and other
third parties in violation of contractual requirements that such
credentials be given to and used only by authorized dealer
employees.

Counter-Defendants Continental and Warrensburg argue that they
cannot be held secondarily liable under Section 1201(a)(1)(A) of
the DMCA. In support of that argument, Counter-Defendants cite
cases holding that there is no secondary liability under various
other statutes in the absence of the words aid or abet in the
statute indicates a congressional intent to not provide for aiding
and abetting liability.

However, the absence of such language does not establish that
imposing any kind of secondary liability under the DMCA is
improper, especially in light of the relationship between the DMCA
and the Copyright Act, which does impose such liability. Congress
enacted the DMCA in 1998 to comply with international copyright
treaties and to update domestic copyright law for the online world.


Despite the fact that the copyright statute does not include
language expressly addressing secondary liability, vicarious
liability is imposed in virtually all areas of the law, and the
concept of contributory infringement is merely a species of the
broader problem of identifying the circumstances in which it is
just to hold one individual accountable for the actions of
another.

Courts therefore have applied secondary liability principles drawn
from copyright law to claims brought under the DMCA.

Counter-Defendants do not argue that these cases incorrectly were
decided. Rather, Counter-Defendants argue that these cases are
distinguishable because they relate to different provisions of the
DMCA.

Although these cases do relate to different provisions of the DMCA,
the Court sees no reason that common law vicarious liability
principles would apply to these provisions but not Section
1205(a)(1). Counter-Defendants argue that the Court should not
extend secondary liability principals to Section 1201(a) because
that provision created a distinct anti-circumvention right under
Section 1210(a) without any infringement nexus requirement.

Thus, according to Counter-Defendants, attaching a copyright
context to this provision of the statute would be improper. The
Court disagrees. As noted by the Supreme Court in Sony, the
secondary liability principles applied in copyright law stemmed
from more generally applicable common law principles.
Counter-Defendants have not identified any basis for concluding
that such principles do not also apply to Section 1201(a).

Accordingly, the Court denies Counter-Defendants Continental and
Warrensburg motion to dismiss CDK's DMCA claims.

The motion to dismiss the counterclaims of
Defendant/Counter-Plaintiff CDK Global, LLC is granted in part and
denied in part.  

A full-text copy of the District Court's September 3, 2019
Memorandum Opinion and Order is available at
https://tinyurl.com/y3xlk5h3 from Leagle.com.

Authenticom, Inc., Plaintiff, represented by Collin R. White --
cwhite@kellogghansen.com -- Kellogg, Hansen, Todd, Figel &
Frederick, P.L.L.C., pro hac vice, Derek Tam Ho --
dho@kellogghansen.com -- Kellogg, Hansen, Todd, Figel & Frederick,
P.L.L.C., pro hac vice, Aaron Martin Panner --
apanner@kellogghansen.com -- Kellogg, Hansen, Todd, Figel &
Frederick, P.L.L.C., pro hac vice, Allison W. Reimann --
areimann@gklaw.com -- Godfrey & Kahn, Christine Ann Bonomo --
cbonomo@kellogghansen.com -- Kellogg, Hansen, Todd, Figel &
Frederick, P.L.L.C, pro hac vice, Daniel V. Dorris --
ddorris@kellogghansen.com -- Kellogg, Hansen, Todd, Figel &
Frederick, P.L.L.C., David L. Schwarz --
dschwartz@kellogghansen.com -- Kellogg, Hansen, Todd, Figel &
Frederick, P.L.L.C., Jeffery G. Long  -- jglong@kellogghansen.com
-- Kellogg Hansen Todd Figel & Frederick P.L.L.C., pro hac vice,
Jennifer L. Gregor -- jgregor@gklaw.com -- Godfrey & Kahn SC,
Joanna Tianyang Zhang, Kellogg, Hansen, Todd, Figel & Frederick,
P.L.L.C. Sumner Square Suite 400 1615 M Street, N.W. Washington,
D.C. 20036

CDK Global, LLC, Defendant, represented by Andrew Stanley Marovitz
-- amarovitz@mayerbrown.com -- Mayer Brown LLP, Britt Marie Miller
-- bmiller@mayerbrown.com -- Mayer Brown LLP, Christopher William
Kammerer , Kammerer Mariani PLLC, 1601 Forum Place Suite 500, West
Palm Beach, FL 33401, Daniel Thomas Fenske --
dfenske@mayerbrown.com -- Mayer Brown LLP, Jed Wolf Glickstein --
jglickstein@mayerbrown.com -- Mayer Brown, Llp, Jeffrey Allan
Simmons -- jsimmons@foley.com -- Foley & Lardner LLP, John F.
Mariani , Levy, Kneen, Mariana, Curtin, Wiener Kornfeld & Del
Russo, PA, 1400 Centrepark Boulevard, Suite 1000 West Palm Beach,
Florida 33401, John Nadolenco -- jnadolenco@mayerbrown.com -- Mayer
Brown LLP, Joseph S. Harper -- jharper@foley.com -- Foley &
Lardner


CITY NATIONAL: Noe Files Class Suit v. Bank
-------------------------------------------
A class action lawsuit has been filed against City National Bank of
West Virginia. The case is styled as Brenda C. Noe on behalf of
herself and all others similarly situated, Plaintiff v. City
National Bank of West Virginia, Defendant, Case No. 3:19-cv-00690
(S.D. W.Va., Sept. 20, 2019).

The nature of suit is stated as Other Contract.

City National Bank of West Virginia is a Charleston, WV-based,
FDIC-insured bank founded in 1957.[BN]

The Plaintiff is represented by:

     James G. Bordas, III, Esq.
     Jason E. Causey, Esq.
     BORDAS & BORDAS
     1358 National Road
     Wheeling, WV 26003
     Phone: (304) 242-8410
     Fax: (304) 242-3936
     Email: jbordasiii@bordaslaw.com
            jcausey@bordaslaw.com

CLIENT SERVICES: Kenyon Files FDCPA Suit in E.D. California
-----------------------------------------------------------
A class action lawsuit has been filed against Client Services, Inc.
The case is styled as Diane K. Kenyon, Nicholas Michal Wajda,
individually and on behalf of all others similarly situated,
Plaintiff v. Client Services, Inc., Defendant, Case No.
2:19-cv-01912-KJM-DMC (E.D. Cal., Sept. 20, 2019).

The Plaintiff filed the case under the Fair Debt Collection
Practices Act.

Client Services, Inc. offers collection services. The Company
provides accounts receivable management, debt collection services,
and customer care solutions.[BN]

The Plaintiffs are represented by:

     Nicholas Michal Wajda, Esq.
     Wajda Law Group APC
     6167 Bristol Parkway, Suite 200
     Culver City, CA 90230
     Phone: (310) 997-0471
     Fax: (866) 286-8433
     Email: nick@wajdalawgroup.com


COCA-COLA: Henderson Sues Over Milk Products' Deceptive Labels
--------------------------------------------------------------
HENRY HENDERSON, individually and on behalf of all others similarly
situated, Plaintiff, v. THE COCA-COLA COMPANY, and FAIRLIFE, LLC,
Defendants, Case No. 1:19-cv-11953 (D. Mass., Sept. 13, 2019) is a
class action seeking to put a stop to Defendants' deceptive and
unlawful practices and to recover financial compensation for
injuries sustained by Plaintiff.

Defendants produce, market, and sell a brand of milk products
marketed as premium products under the "Fairlife" label. Plaintiff
purchased Defendants' Products from several retail stores in the
Newton, Massachusetts area.

Crucial to Defendants' marketing of their products is the
representation that the cows that are part of producing the
products are treated humanely. Throughout the labeling and
marketing of Defendants' Products and culminating with the
egregious name of Defendants' Products, "Fairlife," the pervasive
marketing scheme promises to reasonable consumers that the animals
involved in producing the Products are treated humanely.

However, the Defendants' marketing representations are false, notes
the complaint. The Products are not sourced from cows that are
treated "fairly" or with "extraordinary care and comfort"; to the
contrary, Defendants' dairy cows are not treated "fairly" at all.
The cruelty and suffering inflicted on the cows and calves at Fair
Oaks Farms--the flagship farm for the Fairlife Products--was so
significant that it has led to criminal charges being brought
against three individuals and Fairlife's discontinuing the sourcing
of milk products from Fair Oak Farms.

The Defendants' deceptive claims regarding the humane treatment of
animals at Fairlife farms were produced on the Product's labels and
published on the Defendants' websites. The material
misrepresentations caused the Plaintiff and the many other
consumers he seeks to represent to purchase the Products that were
sold not as advertised. Plaintiff and the Class members suffered
financial injury because they bought Products they otherwise would
not have bought, or for which they would have paid less. But beyond
that, they were forced, through Defendants' deception, to
unknowingly contribute to and participate in the infliction of
cruelty on the Fairlife cows through their purchases of the
Products, says the complaint.[BN]

The Plaintiff is represented by:

     Katherine Aizpuru, Esq.
     Hassan A. Zavareei, Esq.
     TYCKO & ZAVAREEI LLP
     1828 L Street, NW, Suite 1000
     Washington, DC 20036
     Phone: (202) 973-0900
     Facsimile: (202) 973-0950
     Email: hzavareei@tzlegal.com
            kaizpuru@tzlegal.com


CREDIT PROTECTION: Allen Sues over Debt Collection Practices
------------------------------------------------------------
DANNY ALLEN, individually and on behalf of all others similarly
situated, Plaintiff v. CREDIT PROTECTION ASSOCIATION, L.P.,
Defendant, Case No. 3:19-cv-01606-H-LL (S.D. Cal., Aug. 27, 2019)
seeks to stop the Defendant's unfair and unconscionable means to
collect a debt.

Credit Protection Association, L.P. provides outsourced solutions
in cable, fitness, telecom, tolling and utilities industries. [BN]

The Plaintiff is represented by:

          Abbas Kazerounian, Esq.
          Mona Amini, Esq.
          KAZEROUNI LAW GROUP, APC
          245 Fischer Avenue, Unit D1
          Costa Mesa, CA 92626
          Telephone: (800) 400-6808
          Facsimile: (800) 520-5523
          E-mail: ak@kazlg.com
                  mona@kazlg.com

               - and -

           Robert L. Hyde, Esq.
           HYDE & SWIGART, APC
           2221 Camino Del Rio South, Suite 101
           San Diego, CA 92108
           Telephone: (619) 233-7770
           Facsimile: (619) 297-1022
           E-mail: bob@westcoastlitigation.com


CREDIT SUISSE: Court OKs Class Certification in FX Rates Suit
-------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting in part and denying in
part Plaintiffs' Motion for Class Certification in the case
captioned IN RE FOREIGN EXCHANGE BENCHMARK RATES ANTITRUST
LITIGATION No. 13 Civ. 7789 (LGS). (S.D.N.Y.).

This case concerns an alleged conspiracy among banks to fix prices
in the foreign exchange (FX) market. The Complaint alleges that
Defendants conspired to widen spreads in the spot market. The
alleged conspiracy involved the use of Bloomberg or Reuters-based
chat rooms, which allowed FX traders from different banks to
communicate with each other in real time. Plaintiffs contend that
Defendants used the chat rooms to fix spreads for individual
currency pairs and spread grids pricing matrices that list spreads
for groups of currency pairs.

Plaintiffs seek to certify two classes: the OTC Class and the
Exchange Class. The OTC Class is defined as:

     All persons who, between December 1, 2007 and December 31,
2013 (inclusive) entered into a total of 10 or more FX spot,
forward, and/or swap trades directly with one or more Defendants in
the 52 Affected Currency Pairs via voice or on a single-bank
platform, where Defendants provided liquidity and such persons were
either domiciled in the United States or its territories or, if
domiciled outside the United States or its territories, traded in
the United States or its territories.

The Exchange Class is defined as:

     All persons who, between December 1, 2007 and December 31,
2013 (inclusive) entered into a total of 10 or more trades of FX
futures contracts on a U.S. exchange.

OTC Class

Certification of the OTC Class is denied under Rule 23(b)(3)
because Plaintiffs have failed to establish the predominance of
common issues over issues affecting only individual OTC Class
Members.  

The predominance requirement is satisfied where resolution of some
of the legal or factual questions that qualify each class member's
case as a genuine controversy can be achieved through generalized
proof, and if these particular issues are more substantial than the
issues subject only to individualized proof.

Two predicate questions must be addressed in the predominance
analysis: (1) whether a given issue is material to Plaintiffs'
class claims and (2) whether determination of that issue is
susceptible to generalized class-wide proof.

Plaintiffs contend that common evidence will prove the existence of
Defendants' conspiracy and its class-wide effects, and that common
formulae can be employed to calculate damages. But individualized
inquiries would be required to determine, for each trade: (1) the
location of the class member's trading activity (2) the type of
trade and (3) whether the class member or the Defendant provided
liquidity. As discussed below, each of these facts is material to
Plaintiffs' class claims and is not susceptible to generalized
class-wide proof. These fact-intensive inquiries would far outweigh
any economies achieved through certification of the OTC Class under
Rule 23(b)(3).  

Accordingly, certification of a Rule 23(b)(3) class is denied.

Location of Trading Activity

First, an individualized inquiry would be required to determine the
location of certain class members' trading activities.  

Simply put, the FTAIA bars Sherman Act claims arising from conduct
involving foreign commerce, except (1) where such conduct involves
import commerce (Import Commerce Exception) or (2) where the claim
arises from the conduct's direct, substantial, and reasonably
foreseeable effect on American domestic, import, or certain export
commerce (Domestic Effects Exception).  

The location of Plaintiffs' trading activities is highly material
to Plaintiffs' class claims. Such transactions would not fall
within the Import Commerce Exception because they were wholly
foreign and did not involve the importation of any interest into
the United States. Nor would such transactions be covered by the
Domestic Effects Exception, since the domestic effects of the
transactions were not the proximate cause of Plaintiffs' foreign
injuries. Thus, for each trade between a class member and a
Defendant's foreign desk, the location of the class member at the
time of the trade would have to be determined.

The question of class members' trading locations is not susceptible
to generalized proof. Plaintiffs assert that if the Database
indicates that a class member was domiciled in the United States,
that class member's trading was not conducted by a related entity
operating abroad. But U.S.-domiciled corporations and partnerships
can transact in foreign countries without forming related
entities.11 The fact that a class member's transaction was not
conducted through a related entity does not indicate whether the
class member itself was operating abroad at the time of the
transaction.

Type of Trade

Second, individualized inquiries would be required to identify and
exclude certain types of trades. Benchmark trades are trades that
were entered into at a benchmark price. Such trades are expressly
excluded from both the OTC Class and Exchange Class.

Identifying and excluding benchmark trades and resting orders
cannot be accomplished through generalized proof. Rather, a
fact-intensive individualized inquiry would be required  for
example, a review of the relevant communications between class
members and Defendants. This would be an enormous undertaking,
Plaintiffs have identified tens of thousands of OTC class members,
and each class member, under the OTC Class definition, entered into
at least ten FX transactions.
Plaintiffs argue that unidentified benchmark trades and resting
orders constitute only a de minimis number of trades in the
database and therefore do not raise the specter of manually
reviewing millions of trades.

But this is not a case in which a very small absolute number of
class members might be picked off in a manageable, individualized
process at or before trial. Rather, the fact-finder would need to
establish that each and every trade upon which liability is
premised is not a benchmark trade or resting order.  

Plaintiffs contend that courts have recognized the unfairness of
penalizing a plaintiff upon a defendant's insistence that its own
data are unreliable. This argument is unavailing. The case cited by
Plaintiffs concerned a defendant that sought to exclude an expert
opinion relying on the defendant's own inaccurate or
unrepresentative data.  

Here, Plaintiffs do not assert that Defendants' data is inaccurate
or unrepresentative  only that Defendants failed to maintain
records regarding certain trade characteristics that would be
helpful to Plaintiffs in prosecuting their case. This does not
render Defendants' data unreliable and does not justify foregoing
an individualized inquiry to exclude trades that were unaffected by
the alleged conspiracy.

Liquidity-Providing Party

Third, an individualized inquiry would be required to determine,
for each trade, which party acted as the liquidity provider. This
issue is highly material Plaintiffs' revised OTC Class definition
excludes all trades where class members acted as liquidity
providers.  

Bjønnes and Ljungqvist contend that liquidity providing trades can
be excluded on a class-wide basis by identifying single- or
multi-bank-platform trades executed at a negative half-spread in
the Database. As Defendants did not maintain data regarding the
spreads that customers were quoted, Bjønnes and Ljungqvist
estimate the half-spread as the difference between a reference
price and the actual execution price. Thus, if a class member's
trade is executed at a negative half-spread from the Defendants'
perspective, that class member has bought lower or sold higher than
the reference price. According to Bjønnes and Ljungqvist, this
indicates that a class member acted as a liquidity provider.

Generalized proof cannot resolve the question of which party acted
as a liquidity provider in each trade. Bjønnes and Ljungqvist's
proposed method of identifying liquidity providers is rejected as
unreliable due to the technique's known or potential rate of error.
The transaction data produced by Barclays is unique in that it
indicates whether Barclays' counterparties acted as liquidity
providers. In other words, Bjønnes and Ljungqvist's proposed
method would fail to remove 72.4 percent of trades where a class
member acted as a liquidity provider. This error rate is too great
to accept the method as reliable under Daubert. Absent a reliable
method to exclude liquidity providing trades on a class-wide basis,
the Court would need to individually determine whether class
members acted as liquidity providers in their trading with
Defendants.

Weighing Analysis

Plaintiffs contend that common evidence will prove the existence of
an antitrust conspiracy, the CS Defendants' participation in the
conspiracy, the class-wide injurious effects of the conspiracy and
that common formulae can be employed to calculate damages. Each of
these issues is highly material to Plaintiffs' class claims, and in
fact track the elements of an antitrust claim.  

Even assuming, arguendo, that all of these issues could be resolved
through the generalized proof proposed by Plaintiffs , a conclusion
that the CS Defendants vigorously dispute  class certification
under Rule 23(b)(3) is not warranted given the necessity of
individualized inquiries to determine, for each trade: (1) the
location of the class members' trading activity (2) the type of
trade and (3) whether the class member or the Defendant provided
liquidity. As discussed above, these three issues are highly
material and cannot be resolved through generalized proof. The
fact-intensive inquiries necessary to resolve these issues would
far outweigh any economies achieved through class certification.  

As discussed, a determination would need to be made for each trade
or each class member — an enormous undertaking, given the tens of
thousands of class members identified, each of whom engaged in at
least ten FX transactions. Class treatment under Rule 23(b)(3) is
not warranted under these circumstances.  

The superiority requirement of Rule 23(b)(3) is also not met.
Resolving the individualized inquiries described above would make
this action unmanageable. Accordingly, certification of the OTC
Class is denied under Rule 23(b)(3).

Rule 23(c)(4) Certification

Although class certification of the entire action under Rule
23(b)(3) is not warranted, class certification of the OTC Class
pursuant to Rule 23(c)(4)(A) is granted with respect to two issues:
(1) the existence of a conspiracy to widen spreads in the spot
market and (2) the CS Defendants' participation in the conspiracy.
The context of the dispute between Plaintiffs and the CS Defendants
is an important consideration.

In this action, fifteen of sixteen of the defendant banks have
settled with Plaintiffs, paying over $2.31 billion. Many of the
legal and factual issues for each defendant are similar. It
therefore makes sense to address first whether the CS Defendants
were a part of the alleged conspiracy, as well as whether a single
conspiracy even existed, which the CS Defendants dispute.

These are threshold issues capable of resolving or significantly
narrowing the case against the CS Defendants. If the CS Defendants
are found not to have joined any conspiracy, then all of the claims
against it are resolved. If the CS Defendants are found to have
been a co-conspirator, then that common issue will have been
resolved in an efficient way, paving the way for individual
lawsuits. And both issues are conveniently susceptible to class
treatment.

Rule 23(c)(4) provides that when appropriate, an action may be
brought or maintained as a class action with respect to particular
issues. This rule may be employed to certify a class on a
particular issue even if the action as a whole does not satisfy
Rule 23(b)(3)'s predominance requirement.

A Rule 23(c)(4) class would satisfy all the Rule 23(a)
requirements. Given that there are thousands of potential class
members, the numerosity requirement is satisfied. The commonality
requirement is also met; as discussed, whether a conspiracy existed
and whether the CS Defendants were a part of it raise common
questions with common answers. Typicality is satisfied for purposes
of the two certified issues because each class member's claim
arises from the same course of events, the alleged conspiracy to
widen spreads, and each class member makes similar legal arguments
to prove the existence of the conspiracy and the CS Defendants'
participation. The adequacy requirement is satisfied (1) because of
the class members' common interest in proving the existence of a
conspiracy, the Named Plaintiffs' interests are not antagonistic to
the interest of other members of the class as to the two certified
issues and (2) the Court finds that Class Counsel, both of whom
have extensive experience litigating complex class actions, are
qualified, experienced and able to conduct the litigation.

The Rule 23(b)(3) requirements of predominance and superiority do
not apply because a Rule 23(b)(3) class is not being certified.
Even if they did apply, they are satisfied because the
certification of only two common issues necessarily means that
common issues predominate. Class treatment is also superior to the
alternatives, class treatment is superior to multiple
adjudications, which would be costly and inefficient. Class
treatment is also superior to future Plaintiffs attempting to rely
on the doctrine of offensive collateral estoppel because of the
proof requirements and possible uncertainty of the outcome.
  
Plaintiffs' motion for certification of a Rule 23(b)(3) class is
DENIED, but certification of a Rule 23(c)(4) OTC Class is GRANTED
for adjudication of two issues: (1) the existence of a conspiracy
to widen spreads in the spot market and (2) the CS Defendants'
participation in the conspiracy. For this purpose, the OTC Class is
defined as:

All persons who, between December 1, 2007 and December 31, 2013
(inclusive) entered into a total of 10 or more FX spot, forward,
and/or swap trades directly with one or more Defendants in the 52
Affected Currency Pairs via voice or on a single-bank platform,
where Defendants provided liquidity and such persons were either
domiciled in the United States or its territories or, if domiciled
outside the United States or its territories, traded in the United
States or its territories.

Plaintiffs' motion for appointment of Class Counsel is GRANTED.
Christopher M. Burke, of Scott + Scott, Attorneys at Law, LLP, and
Michael D. Hausfeld, of Hausfeld, LLP, are hereby appointed as
Class Counsel. The CS Defendants' Daubert motions are GRANTED in
part, as set forth above, and are otherwise DENIED as moot.

A full-text copy of the District Court's September 3, 2019 Opinion
and Order is available at https://tinyurl.com/yyx5ajv3 from
Leagle.com.

Haverhill Retirement System, on behalf of itself and all others
similarly situated, Plaintiff, represented by Christopher M. Burke
- cburke@scott-scott.com - Scott+Scott Attorneys at Law LLP, Donald
A. Broggi  - DBROGGI@SCOTT-SCOTT.COM - Scott Scott, L.L.P., Joseph
Peter Guglielmo - JGUGLIELMO@SCOTT-SCOTT.COM - Scott + Scott,
L.L.P., Kristen M. Anderson  - KANDERSON@SCOTT-SCOTT.COM -
Scott+Scott, Attorneys At Law, LLP, Michael E. Klenov -
mklenov@koreintillery.com -  Korein Tillery, LLC, Robert E. Litan -
rlitan@koreintillery.com - Korein Tillery LLC, Walter W. Noss -
WNOSS@SCOTT-SCOTT.COM - Scott+ Scott Attorneys at Law LLP, pro hac
vice, William P. Butterfield , Hausfeld LLP, 1700 K Street NW Suite
650 Washington, DC 20006, Aaron M. Zigler  --
azigler@koreintillery.com - Korein Tillery, Alexander Dewitt Singh
Kullar , Steyer Lowenthal Boodrookas Alvarez & Smith LLP, One
California Street, Suite 300 San Francisco, CA 94111
Citigroup, N.A., Defendant, represented by Alan M. Wiseman -
awiseman@cov.com - Covington & Burling, LLP, pro hac vice, Andrew
D. Lazerow - alazerow@cov.com - Covington & Burling, LLP, pro hac
vice & Andrew Arthur Ruffino - aruffino@cov.com - Covington &
Burling LLP.

Credit Suisse Group AG, Credit Suisse Securities (USA) LLC & Credit
Suisse AG, Defendants, represented by Charles Matthew Miller -
memiller@kasowitz.com - Kasowitz Benson Torres LLP, David George
Januszewski - djanuszewski@cahill.com - Cahill Gordon & Reindel
LLP, Elai E. Katz - ekatz@cahill.com - Cahill Gordon & Reindel LLP,
Herbert Scott Washer -
hwasher@cahill.com - Cahill Gordon & Reindel LLP, Jason Michael
Hall -
jhall@cahill.com - Cahill Gordon & Reindel LLP, Richard Carl
Schoenstein  - rschoenstein@tarterkrinsky.com - Tarter Krinsky &
Drogin LLP & Sheila Chithran Ramesh -
rschoenstein@tarterkrinsky.com - Cahill Gordon & Reindel LLP.


CYNOSURE INC: Summary Judgment Bid in SculpSure Users' Suit Granted
-------------------------------------------------------------------
In the case, PLASTIC SURGERY ASSOCIATES, S.C., GREEN CHRYSALIS
ENTERPRISE, LLC, RENEW SKIN & LASER CENTERS, LLC, ARIZONA ADVANCE
AESTHETICS, PLLC and ADVANCED HEALTH WEIGHT LOSS, on behalf of
themselves and others similarly situated, Plaintiffs, v. CYNOSURE,
INC., Defendant. VITA 4 LIFE, INC., Plaintiffs, v. CYNOSURE, INC.,
Defendant, Civil Action Nos. 17-11850-DJC, 17-cv-11435-DJC (D.
Mass.), Judge Denise J. Casper of the U.S. District Court for the
District of Massachusetts (i) denied the Plaintiffs' motion for
class certification pursuant to Federal Rule of Civil Procedure
23(c)(4), and (ii) granted Cynosure's motion for summary judgment
on all claims.

The Plaintiffs have filed the putative class action lawsuit against
Defendant Cynosure alleging violations of Mass. Gen. L. c. 93A
(Count I), breach of the implied warranty of merchantability (Count
II) and unjust enrichment (Count III) in connection with the sale
of Cynosure's SculpSure Noninvasive Body Contouring System.  

Cynosure is a medical device company located in Westford,
Massachusetts that markets and distributes SculpSure.  SculpSure is
a non-invasive (non-surgical) body contouring device intended to
reduce fat in specific areas of the body.  The device works by
delivering laser energy to a patient's subcutaneous fat tissue,
which raises the temperature of the patient's fat cells and causes
those cells to inflame and die.  The treatment time for patients is
25 minutes.  Since 2015, Cynosure has sold SculpSure devices to
over 1,400 customers.  The customers are mostly plastics surgeons
and medical spas.  One SculpSure device costs approximately
$165,000.

Each Plaintiff purchased a SculpSure device from Cynosure by
signing a purchase agreement from Cynosure.  The Plaintiffs
instituted the first of two consolidated cases in Suffolk Superior
Court on June 16, 2017 and Cynosure removed the case to the Court.
They instituted the instant action on Sept. 27, 2017.  Two related
cases -- Ederra Plastic Surgery, P.C. v. Cynosure, Inc., No.
19-cv-10164-DJC (D. Mass. 2019); WBM Med. Assocs., LLC v. Cynosure,
Inc., No. 18-cv-11269-DJC (D. Mass. 2018) -- that are not putative
class actions have also been filed against Cynosure.  

Cynosure now has moved for summary judgment on all claims, and the
Plaintiffs have moved for class certification and appointment of
the class counsel.  The Plaintiffs have proposed to certify a
partial class under Fed. R. Civ. P. 23(c)(4) for alleged violations
of Mass. Gen. L. c. 93A ("Chapter 93A").  They have proposed the
following class definition for certification as to their claims for
violations of Chapter 93A: All individuals and entities in the
United States who purchased or leased a SculpSure Non-Invasive Body
Contouring Platform.

The Court heard the parties on the pending motions on June 20, 2019
and took these matters under advisement.

Judge Casper finds that Plaintiffs have failed to demonstrate
adequacy, commonality and typicality requirements of Rule 23(a).
Even assuming that common questions need only predominate as to the
specific issues being certified, she concludes that the Plaintiffs
have failed to demonstrate predominance as to these issues.  As to
each of the Plaintiffs' proposed issues for certification (other
than the first question as to whether Cynosure was engaged in
"trade or business" when it sold SculpSure) lies the threshold
question of whether Cynosure ever made such a representation to the
putative class member.  As to second prong of Rule 23(b)(3), the
Judge concludes that the Plaintiffs have failed to demonstrate the
superiority of a class action lawsuit as a method of resolving this
dispute.

Turning to Cynosure's motion for summary judgment on all of the
Plaintiffs' claims, the Judge concludes that Cynosure's alleged
misconduct did not occur "primarily and substantially" with
Massachusetts and grants summary judgment to Cynosure on the
Plaintiff's Chapter 93A claim (Count I).  The allegedly deceptive
statements upon which the Plaintiffs attest they relied occurred
outside Massachusetts.  Not even a "small portion" of the
Plaintiffs are located in Massachusetts.

She also concludes that the contracts -- including the second page
-- are valid and that Cynosure successfully disclaimed the implied
warranty of merchantability.  Dermacare and The Face Place may well
have received both pages of the contract, given their admission
about the second page and their reliance upon the choice of law
language that appears on the second page.  Nevertheless, even if
they did not receive the second page, the Judge concludes that,
consistent with Onebeacon and Sarnafil, Dermacare and The Face
Place are sophisticated business entities that received and signed
at least the first page of a contract expressly incorporating the
terms of the second page and who, even if they were not given the
second page, should reasonably have been expected to ask to see the
second page before binding themselves to its terms for a purchase
that exceeded $150,000.

Finally, the Judge will grant summary judgment to Cynosure on the
Plaintiffs' claim for unjust enrichment.  She finds that the
Plaintiffs' reliance upon Lass v. Bank of Am. is unavailing because
that case addressed the possibility for plaintiffs to maintain
alternative theories of entitlement to legal and equitable remedies
at the pleading stage and explicitly stated that the district court
would be in a better position once the record was more developed to
determine whether the unjust enrichment claim should survive.
Their reliance upon Devona v. Zeitels is similarly unavailing
because, unlike in Devona, where there was a genuine dispute of
material fact as to the validity of the contract governing the
parties' relationship, and here where, as a matter of law, the
contracts between the parties were valid.

For the foregoing reasons, Jude Casper denied the Plaintiffs'
motion for class certification, and allowed Cynosure's motion for
summary judgment.

A full-text copy of the Court's Aug. 7, 2019 Memorandum and Order
is available at https://is.gd/bBsO0V from Leagle.com.

Plastic Surgery Associates, S.C., Plaintiff, represented by Daniel
J. Kurowski, Hagens Berman Sobol Shapiro LLP, pro hac vice, Lauren
G. Barnes -- lauren@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP,
Anthea Grivas, Hagens Berman Sobol Shapiro LLP, pro hac vice, Jason
A. Zweig, Hagens Berman Sobol Shapiro LLP, pro hac vice, Shelby
Smith, Hagens Berman Sobol Shapiro LLP, pro hac vice & Whitney K.
Siehl, Hagens Berman Sobol Shapiro LLP, pro hac vice.

Green Chrysalis Enterprise, LLC, Renew Skin & Laser Centers, LLC,
Arizona Advance Aesthetics, PLLC & Advanced Health Weight Loss,
Plaintiffs, represented by Daniel J. Kurowski, Hagens Berman Sobol
Shapiro LLP, pro hac vice, Lauren G. Barnes, Hagens Berman Sobol
Shapiro LLP, Jason A. Zweig, Hagens Berman Sobol Shapiro LLP, pro
hac vice & Whitney K. Siehl, Hagens Berman Sobol Shapiro LLP, pro
hac vice.

Cynosure, Inc., Defendant, represented by Anand Agneshwar --
anand.agneshwar@arnoldporter.com -- Arnold & Porter Kaye Scholer
LLP, pro hac vice, Daniel Pariser --
daniel.pariser@arnoldporter.com -- Arnold & Porter Kaye Scholer
LLP, pro hac vice, Eric Samore -- esamore@salawus.com -- Smith
Amundsen LLC, pro hac vice, Jocelyn Wiesner, Arnold & Porter Kaye
Scholer LLP, pro hac vice, Kathryn Long, SmithAmundsen LLC, pro hac
vice, Lori B. Leskin, Arnold & Porter Kaye Scholer LLP, pro hac
vice, Ronald Balfour, SmithAmundsen LLC, pro hac vice, Ben T.
Clements, Clements & Pineault, LLP & Michael J. Pineault --
mpineault@clementspineault.com -- Clements & Pineault, LLP.


DATEREYBRU COMPANY: Lozano Seeks Unpaid Minimum & Overtime Wages
----------------------------------------------------------------
DOMINGO LOZANO and other similarly-situated individuals, Plaintiff,
v. DATEREYBRU COMPANY, LLC d/b/a ATA TRANSPORTATIONS, and LAERCIO
L. DE OLIVEIRA, individually Defendants, Case No.
6:19-cv-01783-CEM-LRH (M.D. Fla., Sept. 12, 2019) is an action
seeking to recover money damages for retaliation, unpaid regular
and overtime wages, under the laws of the United States.

Plaintiff alleges that he worked more than 40 hours every week and
he reasonably expected to be paid for all his working hours. After
2 weeks without payment, Plaintiff complained and requested to the
owner of the business, LAERCIO L. DE OLIVEIRA, to be paid for his
regular and overtime hours. Mr. OLIVEIRA promised that he would be
paid soon. Plaintiff continued working and on August 2, 2019,
Plaintiff was expecting his payment. However, he found out that
there was not any payment check for him. Plaintiff one more time
requested to Mr. OLIVEIRA his payment check covering 3 weeks of
regular wages plus overtime hours.

After this last complaint, Defendants fired Plaintiff using a
pretextual reason. Nevertheless, at the time of his termination,
Defendants did not pay Plaintiff his overdue wages. Therefore,
Defendants willfully failed to pay Plaintiff regular wages at least
at the minimum wage rate, and overtime hours at the rate of time
and one half his regular rate for every hour that he worked in
excess of 40, in violation of Section 7 (a) of the Fair Labor
Standards Act of 1938, says the complaint.

Plaintiff DOMINGO LOZANO was employed by Defendants as a
non-exempted, full-time, hourly local driver, from Friday July 12,
2019, to August 2, 2019, or 3 weeks plus 2 days.

ATA TRANSPORTATIONS is a transportation company dedicated to the
local transportation of passengers between Red Coach bus stations
and different hotels in the Orlando area.[BN]

The Plaintiff is represented by:

     Zandro E. Palma, Esq.
     ZANDRO E. PALMA, P.A.
     9100 S. Dadeland Blvd., Suite 1500
     Miami, FL 33156
     Phone: (305) 446-1500
     Facsimile: (305) 446-1502
     Email: zep@thepalmalawgroup.com


DEL FRISCO'S: Jones Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Del Frisco's
Restaurant Group, Inc. The case is styled as Kahlimah Jones,
Individually and as the representative of a class of similarly
situated persons, Plaintiff v. Del Frisco's Restaurant Group, Inc.
doing business as: bartaco.com, Defendants, Case No. 7:19-cv-08732
(S.D. N.Y., Sept. 20, 2019).

The Plaintiff filed the case under the Americans with Disabilities
Act.

Del Frisco's Restaurant Group is an American steakhouse restaurant
chain company which focuses on steaks.[BN]

The Plaintiff is represented by:

     Dan Shaked, Esq.
     Shaked Law Group, P.C.
     14 Harwood Court, Suite 415
     Scarsdale, NY 10583
     Phone: (917) 373-9128
     Email: shakedlawgroup@gmail.com


DIRECT FLOW: Court OKs $911K Class Settlement in Reynolds
---------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiff's Motion for Final
Approval of the Settlement in the case captioned J. JASON REYNOLDS,
Plaintiff, v. DIRECT FLOW MEDICAL, INC., et al., Defendants. Case
No. 17-cv-00204-KAW. (N.D. Cal.).

The Defendants terminated almost their entire workforce by e-mail.
At the time of termination, terminated employees were still owed:
(1) unpaid wages, including personal time off (PTO)  (2)
reimbursement for necessary business expenditures they had incurred
and (3) salary increases that had begun accruing but had been
deferred.

Settlement Agreement

Under the terms of the settlement agreement (Settlement),
Defendants agree to pay a Gross Settlement Amount of $911,500.

In deciding whether a settlement agreement is fair, adequate, and
reasonable to all concerned, the Court considers the following
factors: (1) the strength of the plaintiffs' case (2) the risk,
expense, complexity, and likely duration of further litigation (3)
the risk of maintaining class action status throughout the trial
(4) the amount offered in settlement (5) the extent of discovery
completed and the stage of the proceedings (6) the experience and
views of counsel (7) the presence of a governmental participant;
and (8) the reaction of the class members to the proposed
settlement. Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575
(9th Cir. 2004).

The Court finds that the Churchill factors support final approval
of the Settlement.

First, as noted in the Court's preliminary approval order,
Plaintiff's case presented significant risks. While the Settlement
Agreement results in an 87% discount of Plaintiff's estimated
full-verdict value, this deep discount was an acknowledgment of the
serious risks that Plaintiff faced both in establishing liability
and obtaining recovery. For example, the federal WARN Act includes
an unforeseen business circumstances exception that could preclude
liability if the Court was to find that the breakdown of the
financing agreement was unforeseeable and the cause of the
shutdown.   

In light of these substantial risks facing Plaintiff, the Court
finds that the first Churchill factor favors final approval.

Second, in the absence of settlement, this case would likely be
subject to significant further litigation. Plaintiff would still
have to seek class certification, and disputes exist as to the
merits of the case. Further, even if Plaintiff was to prove
liability as to Defendant DFM, Defendant DFM is financially
insolvent and may be unable to pay any judgment.

The Court concludes that the second Churchill factor favors final
approval.

Third, it is not clear Plaintiffs faced any risks as to class
certification, and Plaintiff does not appear to identify any such
risks. This factor disfavors final approval.

Fourth, the amount offered by the Settlement, while a deep discount
from the estimated full-verdict value, takes into account the
significant risks discussed above and in the preliminary approval
order.

The Court finds that this factor favors final approval.

Fifth, it appears that Plaintiff has engaged in substantial
investigation and discovery, including extensive written discovery
and four depositions, in reaching the Settlement. Defendant also
provided Plaintiff information on Defendants' liability prior to
the March 2018 mediation.

Additionally, Plaintiff interviewed class members, obtaining two
dozen declarations in support of the motion for class
certification. The Court concludes that the discovery conducted was
adequate to allow the parties to make a fully informed decision on
settlement.

Thus, this factor favors final approval.

Sixth, Class Counsel supports the Settlement as fair.  Further,
Class Counsel is experienced in this area; the primary attorneys in
this case have significant experience in employment class actions.
Class Counsel's experience and support for the Settlement favors
final approval.

Seventh, notice of the settlement was provided to the LWDA, as well
as the Class Action Fairness Act (CAFA) notice to all applicable
state officials. No government entity has lodged an objection to
the settlement. The Court finds that this Churchill factor favors
final approval.

Finally, the reaction of the class members to the proposed
settlement has been positive. Per the settlement administrator, the
class list included 202 class members. The settlement administrator
reports no undeliverable notice packets, as the administrator was
able to locate a mailing address for each class member.  

As no class members have opted out and no individuals have objected
to the Settlement terms, this last Churchill factor favors final
approval.

The Court finds that the Settlement is fair, adequate, and
reasonable. Accordingly, the Court grants Plaintiff's motion for
final approval.

A full-text copy of the District Court's September 3, 2019 Order
is available at https://tinyurl.com/y4sevhw7 from Leagle.com.

J. Jason Reynolds, on behalf of himself and all others similarly
situated, Plaintiff, represented by - smt@classlawgroup.com -
Gibbs Law Group LLP, Caroline Camille Corbitt
-ccc@classlawgroup.com - GIBBS LAW GROUP LLP & John H. Douglas -
jdouglas@douglaslegal.com - Douglas Law Offices.

Direct Flow Medical, Inc., Dan Lemaitre, John David Boyle, Gordon
Bishop, Paul LaViolette & Yuval Binur, Defendants, represented by
Allan J. Gomes , Anderies & Gomes LLP. 601 Montgomery Street, Suite
888, San Francisco, CA 94111


DRINK RECESS: Bunting Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Drink Recess, Inc.
The case is styled as Rasheta Bunting individually and as the
representative of a class of similarly situated persons, Plaintiff
v. Drink Recess, Inc., Defendant, Case No. 1:19-cv-05365 (E.D.
N.Y., Sept. 20, 2019).

The Plaintiff filed the case under the Americans with Disabilities
Act.

Recess is a consumer wellness brand creating products and
experiences designed to help people feel balanced, centered, and
inspired so they can be their most productive and creative
selves.[BN]

The Plaintiff is represented by:

     Dan Shaked, Esq.
     Shaked Law Group, P.C.
     14 Harwood Court, Suite 415
     Scarsdale, NY 10583
     Phone: (917) 373-9128
     Email: shakedlawgroup@gmail.com


DRIVELINE RETAIL: Court Denies Bid for Class Certification as Moot
------------------------------------------------------------------
In the class action lawsuit styled as SHIRLEY LAVENDER, on behalf
of herself and all others similarly situated, the Plaintiff, vs.
DRIVELINE RETAIL MERCHANDISING, INC., the Defendant, Case No.
2:18-cv-02097-SEM-TSH (C.D. Ill.), the Court entered an order:

   1. granting plaintiff's motion for leave to substitute class
      representative and for leave to file an amended class action

      complaint in accordance with the substitution;

   2. directing Plaintiff to file amended class action complaint
      on or before September 11, 2019.

   3. denying pending motion for class certification as moot with
      leave to refile; and

   4. referring matter to Magistrate Judge Tom Schanzle-Haskins
      for the entry of a new scheduling order and to address the
      issues Defendant raised about expert reports and additional
      interrogatories.

The Court finds Defendant would not be unduly prejudiced by the
amendment. The only changes to the complaint are the substitution
of a new plaintiff and information pertaining specifically to that
plaintiff. All other allegations remain the same.

The Plaintiff is not adding any new claims. Therefore, the majority
of the discovery that has occurred to date will still be relevant
to the amended complaint.

Additional discovery is necessary regarding the new plaintiff.  The
Court will allow Defendant time to conduct that discovery, which
will alleviate some of the prejudice. The Court refers this matter
to the Magistrate Judge to enter a new scheduling order and address
the issues Defendant raised about expert reports and additional
interrogatories.[CC]

DYNAMIC RECOVERY: Settlement Wins Initial Approval
--------------------------------------------------
In the class action lawsuit styled as Margaret Hussein, the
Plaintiff, v. Dynamic Recovery Solutions, LLC, et al., the
Defendant, Case No.: 1:18−cv−04400 (N.D. Ill.), the Hon. Judge
Sara L. Ellis entered an order granting a joint motion for
conditional certification and preliminary approval of settlement.

According to the docket entry made by the Clerk on September 4,
2019, joint motion for conditional certification and preliminary
approval is granted as stated on the record. Margaret Hussein to
receive class representative award. Class counsel to file fee
petition by Oct. 4, 2019. Defendant to provide to class
administrator the list of class members by Sept. 11, 2019. Cavalry
SPV I, LLC is dismissed without prejudice pursuant to stipulation
to dismiss. Class notice to be mailed by Oct. 4, 2019. Opt out
deadline and objections is set for Dec. 3, 2019. Final Approval
Hearing is set for Jan. 8, 2020.[CC]

ENT AND ALLERGY: Jones Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against ENT and Allergy
Associates, LLP. The case is styled as Kahlimah Jones, Individually
and as the representative of a class of similarly situated persons,
Plaintiff v. ENT and Allergy Associates, LLP, Defendants, Case No.
1:19-cv-05374 (E.D. N.Y., Sept. 20, 2019).

The Plaintiff filed the case under the Americans with Disabilities
Act.

ENT & Allergy Associates, LLP provides healthcare services. The
Company offers audiology, asthma and immunology, hearing aids,
clinical research, sleep disorder treatment, diagnostic testing,
and facial plastic surgery services.[BN]

The Plaintiff is represented by:

     Dan Shaked, Esq.
     Shaked Law Group, P.C.
     14 Harwood Court, Suite 415
     Scarsdale, NY 10583
     Phone: (917) 373-9128
     Email: shakedlawgroup@gmail.com


EVOLENT HEALTH: Oct. 7 Lead Plaintiff Bid Deadline
--------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm,
reminds investors in Evolent Health, Inc. (EVH) of the October 7,
2019 deadline to seek the role of lead plaintiff in a federal
securities class action that has been filed against the Company.

If you invested in Evolent stock or options between March 3, 2017
and May 28, 2019 and would like to discuss your legal rights, click
www.faruqilaw.com/EVH There is no cost or obligation to you.

You can also contact us by calling Richard Gonnello toll free at
877-247-4292 or at 212-983-9330 or by sending an e-mail to
rgonnello@faruqilaw.com.

Contact:

         Attn: Richard Gonnello, Esq.
         FARUQI & FARUQI, LLP
         685 Third Avenue, 26th Floor
         New York, NY 10017
         Telephone: (877) 247-4292 or (212) 983-9330
         E-mail: rgonnello@faruqilaw.com

The lawsuit has been filed in the U.S. District Court for the
Eastern District of Virginia on behalf of all those who purchased
Evolent securities between March 3, 2017 and May 28, 2019 (the
"Class Period"). The case, Plymouth County Retirement System v.
Evolent Health, Inc. et al., Docket No. 1:19-cv-01031 was filed on
August 8, 2019 and has been assigned to Judge Rossie D. Alston,
Jr.

The lawsuit focuses on whether the Company and its executives
violated federal securities laws by making false and/or misleading
statements and/or failing to disclose that: (1) Evolent's
partnership model did not align the Company's interests with those
of its partners, as the model was designed to inflate the Company's
revenue by extracting enormous administrative and management fees
at the expense of its operating partners such as Passport; (2)
Passport was struggling financially, particularly after Kentucky
cut its reimbursement rates, and the partnership between Evolent
and Passport was becoming increasingly unsustainable; (3) Evolent
was draining Passport of functions, employees and money, to such an
extent that Passport was left on the verge of insolvency; and (4)
Passport was conducting a bidding process for several months to
sell itself to prevent liquidation.

On this news, Evolents's stock fell from $14.15 on May 28, 2019 to
$10.01 on May 29, 2019-a $4.14 or a 29.26% drop.

The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.

Faruqi & Faruqi, LLP also encourages anyone with information
regarding Evolent's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]


FINE HOME: Court Granted Conditional Class Certification Agreement
------------------------------------------------------------------
In the class action lawsuit styled as RICK WALLACE, on behalf of
himself and others similarly situated, the Plaintiff, vs. FINE HOME
FURNISHING LLC, et al, Case No. 2:19-cv-02973-EAS-EPD (S.D. Ohio),
the Hon. Judge Edmund A Sargus entered an order:

   1. granting the Parties' joint stipulation to pre-discovery
      conditional class certification and court-supervised notice
      to potential opt-in Plaintiffs; and

   2. approving the notice of unpaid overtime wages lawsuit and
      consent to join.[CC]

FIRST CLASS INTERIORS: Court Certifies 2 Classes in Martinez Suit
-----------------------------------------------------------------
In the class action lawsuit styled as DANIEL ALVARADO MARTINEZ;
ALEXANDRO PEREZ; NELSON EGUIZABAL BRITO; CARLOS CASTRO; and ALEXIS
MARQUEZ, the Plaintiffs, v. FIRST CLASS INTERIORS OF NAPLES, LLC;
JOSE ROBERTO REYES Individually and d/b/a FIRST CLASS INTERIORS OF
NAPLES, LLC; and MR. DRYWALL SERVICES, LLC, the Defendants, Case
No. 3:18-cv-00583 (M.D. Tenn.), the Hon. Judge Eli Richardson
entered an order:

   1. conditionally certifying two classes:

      Overtime Class

      "all workers who were employed by Defendants performing
      drywall installation, framing, and/or finishing work on the
      Marriott Project at any time between July 2017 and May
      2018"; and

      Last Paycheck Class

      "all workers who were employed by Defendants performing
      drywall installation, framing, and/or finishing work on the
      Marriott Project whose employment was terminated at any time

      between May 21 and May 29, 2018"; and

   2. approving Plaintiffs' request for a brief opt-in period
      of two weeks.[CC]

FIRST STUDENT: Court OKs $435K Class Settlement in Vikram
---------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiffs' Motion for Final
Approval of the Settlement in the case captioned BHANU VIKRAM,
Plaintiff, v. FIRST STUDENT MANAGEMENT, LLC, Defendant. Case No.
17-cv-04656-KAW (N.D. Cal.).

Defendant is a school bus operator that provides student
transportation services for schools and districts. Plaintiff
alleges that Defendant failed to accurately calculate and pay wages
in two ways. First, Plaintiff alleges that employees were required
to appear at the bus yard at a pre-designated time and stand in
line to receive route assignments and keys. Second, Plaintiff
alleges that Defendant had a non-discretionary program that paid
incentive wages based on employees meeting various performance
goals.

Settlement Agreement

Under the terms of the settlement agreement (Settlement),
Defendants agree to pay a Gross Settlement Amount of $435,000.

The Court finds that the Churchill factors support final approval
of the Settlement.

First, as noted in the Court's preliminary approval order,
Plaintiff's case presented several risks. For example, with respect
to the overtime claim, there were risks that Section 510's
definition of overtime did not apply where workers were covered by
a qualifying collective bargaining agreement, and that California
Wage Order 9 did not apply to employees driving school buses and
school pupil activity buses.   As to the waiting time and wage
statement penalties, there was a risk of no recovery if Defendant's
conduct was not found to be willful.

Second, in the absence of settlement, this case would likely be
subject to significant further litigation. Plaintiff would still
have to seek class certification, and disputes exist as to the
merits of the case. The Court concludes that the second Churchill
factor favors final approval.

Third, Plaintiff faced a risk that they would not be able to obtain
and maintain class certification. Plaintiff states that Defendant
forcefully opposed class certification at the time of the
mediation, arguing that individual issues precluded class
certification. Defendant further argued that injury and good faith
were case by case determinations that precluded class
certification. Plaintiff also points to cases that denied
certification of similar claims.   

This factor favors final approval.

Fourth, the amount offered by the Settlement is relatively high, as
the Gross Settlement Amount represents 78% of the value of the
non-PAGA claims, as well as 30.6% of the California labor law
violations and PAGA penalties. As discussed above, the discount is
justified by the risks faced by Plaintiff in prevailing on the
merits on behalf of the class.

The Court finds that this factor favors final approval.

Fifth, it appears Plaintiff has engaged in sufficient investigation
in this case. Class Counsel has interviewed Plaintiff, reviewed
documents provided by Plaintiff and Defendant, analyzed the legal
positions taken by Defendant, exchanged information through
informal discovery, and retained an expert to calculate damages.
Prior to the mediation, Defendant provided employment and payroll
information, allowing Plaintiff to calculate the value of the case.
This allowed Class Counsel to evaluate the claims on a class-wide
basis.

The Court concludes that the discovery conducted was adequate to
allow the parties to make a fully informed decision on settlement.


Thus, this factor favors final approval.

Sixth, Class Counsel supports the Settlement as fair. Further,
Class Counsel is experienced in this area; the primary attorneys in
this case have significant experience in employment matters.

Class Counsel's experience and support for the Settlement favors
final approval.

Seventh, notice of the settlement was provided to the LWDA, as well
as the Class Action Fairness Act (CAFA) notice to all applicable
state officials. No government entity has lodged an objection to
the settlement. The Court finds that this Churchill factor favors
final approval.

Finally, the reaction of the class members to the proposed
settlement has been positive. Per the settlement administrator, the
class list included 335 individuals. Only one notice was deemed
undeliverable, as no current address was found even after a skip
trace was performed. While three objections were filed with the
Court, the three objections were all disputes regarding the number
of workweeks calculated, rather than objections to the settlement
itself. Those disputes have been resolved, and the necessary
adjustments made. No other objections were made, and no opt-outs
were received. As no class members have opted out and no
individuals have objected to the Settlement terms, this last
Churchill factor favors final approval.

The Court finds that the Settlement is fair, adequate, and
reasonable. Accordingly, the Court grants Plaintiff's motion for
final approval.

A full-text copy of the District Court's September 3, 2019 Order
is available at https://tinyurl.com/y2bzwwgm from Leagle.com.

Bhanu Vikram, an individual, on behalf of himself, and on behalf of
all persons similarly situated, Plaintiff, represented by Aparajit
Bhowmik  - aj@bamlawlj.com - Blumenthal, Nordrehaug & Bhowmik, Kyle
Roald Nordrehaug - kyle@bamlawca.com - Blumenthal Nordrehaug and
Bhowmik, Molly Ann DeSario - Molly.DeSario@capstonelawyers.com -
Capstone Law APC, Norman B. Blumenthal - norm@bamlawca.com -
Blumentha, Nordrehaug & Bhowmik, Ruchira Piya Mukherjee  -
piya@bamlawlj.com - Blumenthal Nordrehaug & Bhowmik, Victoria Bree
Rivapalacio - victoria@bamlawca.com - Blumenthal, Nordrehaug and
Bhowmik & Ricardo Ramon Ehmann - rico@bamlawca.com - Blumenthal
Nordrehaug Bhowmik De Blouw LLP.

First Student Management, LLC, a Limited Liability Company,
Defendant, represented by David J. Dow  - ddow@littler.com -
Littler Mendelson, P.C., Jeffrey J. Mann - jmann@littler.com -
Littler Mendelson, P.C. & Alexis Anne Sohrakoff -
aknapp@littler.com - Littler Mendelson, P.C..


FLORIDA COMMUNITY: Court Grants Conditional Class Certification
---------------------------------------------------------------
In the class action lawsuit styled as CLARK STEWART, the Plaintiff,
v. FLORIDA COMMUNITY LAW GROUP, P.L., the Defendant, Case No.
6:18-cv-02111-CEM-DCI (M.D. Fla.), the Hon. Judge Carlos E. Mendoza
entered an order:

   1. adopting and confirming Magistrate Judge Daniel C. Irick
      Report and Recommendation;

   2. granting a joint motion for conditional class
      certification and preliminary approval of class
      settlement agreement;

   3. approving a Proposed Preliminary Order as modified in the
      Report and Recommendation; and

   4. scheduling case for a fairness hearing on January 2, 2020,
      at 10:00 a.m. in Courtroom 5B. George C. Young United States

      Courthouse Annex, 401 W. Central Boulevard, Orlando,
      Florida.[CC]

FRANKLIN COUNTY, OH: Smith-Journigan Seeks to Certify Class
-----------------------------------------------------------
In the class action lawsuit styled as Trey Smith-Journigan and Paul
E. Williams, both individually and on behalf of a class of others
similarly situated, the Plaintiffs, vs. Franklin County, Ohio, the
Defendant, Case No. 2:18-cv-00328-MHW-CMV (S.D. Ohio), the
Plaintiff asks the Court to certify a class of:

   "all detainees who, at the time of final judgment, have been
   placed into the custody of the Franklin County Correctional
   Center and/or Franklin County Workhouse, after being charged
   with misdemeanors, summary violations, traffic infractions,
   civil commitments or other minor crimes, including failure to
   pay fines, who were immediately eligible for bail under Ohio
   law and the bail schedule and regulations mandated by the
   Franklin County Municipal Court, and who did not indicate, on
   the County's bail sheets, that they were unable to post bail.
   The class period commences on April 11, 2016 and extends to the

   date on which Franklin County is enjoined from, or otherwise  
   ceases, enforcing its policy, practice, and custom of refusing

   to allow detainees to post bail upon their arrest, and
   requiring those same detainees to be strip searched.
   Specifically excluded from the Class are Defendant and any and

   all of its respective affiliates, legal representatives, heirs,

   successors, employees, or assignees."[CC]

Attorneys for the Plaintiff and the proposed class are:

          Elmer Robert Keach, III, Esq.
          LAW OFFICES OF ELMER ROBERT KEACH, III, PC
          One Pine West Plaza, Suite 109
          Albany, NY 12205
          Telephone: 518 434 1718
          E-mail: bobkeach@keachlawfirm.com

               - and -

          Nicholas Migliaccio, Esq.
          MIGLIACCIO & RATHOD, LLP
          412 H Street, NE, Suite 302
          Washington, DC 20002
          Telephone: 202 470 3520
          E-mail: nmigliaccio@classlawdc.com

               - and -

          D. Aaron Rihn, Esq.
          ROBERT PEIRCE & ASSOCIATES, PC
          707 Grant Street, Suite 2500
          Pittsburgh, PA 15219
          Telephone: 412 281 7229
          E-mail: arihn@peircelaw.com

               - and -

          Andrew Baker, Esq.
          THE BAKER LAW GROUP
          107 South High Street, Suite 400
          Columbus, OH 43215
          Telephone: 614 228 1882
          E-mail: andrew.baker@bakerlawgroup.net

GENESEE & WYOMING: Thompson Says Merger Docs Misleading
-------------------------------------------------------
The case, JOHN THOMPSON, Individually and On Behalf of All Others
Similarly Situated, the Plaintiff, v. GENESEE & WYOMING INC., JOHN
C. HELLMANN, RICHARD H. BOTT, BRUCE J. CARTER, CYNTHIA L.
HOSTETLER, OIVIND LORENTZEN III, ALBERT J. NEUPAVER, JOSEPH H.
PYNE, ANN N. REESE, MARK A. SCUDDER, and HUNTER C. SMITH, the
Defendants, Case No. 1:19-cv-01650-UNA (D. Del., Sept. 4, 2019),
stems from a proposed transaction announced on July 1, 2019,
pursuant to which Genesee & Wyoming Inc. will be acquired by
affiliates of Brookfield Infrastructure and Singaporean sovereign
wealth fund GIC.

On July 1, 2019, G&W's Board of Directors caused the Company to
enter into an agreement and plan of merger. Pursuant to the terms
of the Merger Agreement, G&W's stockholders will receive $112.00 in
cash for each share of G&W common stock they own.

On August 20, 2019, the Defendants filed a proxy statement with the
United States Securities and Exchange Commission in connection with
the Proposed Transaction, which scheduled a stockholder vote on the
Proposed Transaction for October 3, 2019.

The Proxy Statement omits material information with respect to the
Proposed Transaction, which renders the Proxy Statement false and
misleading, the lawsuit says:

-- the Proxy Statement omits material information regarding the
Company's financial projections.

-- the Proxy Statement omits material information regarding the
analyses performed by the Company's financial advisors in
connection with the Proposed Transaction, BofA Merrill Lynch and
Morgan Stanley & Co LLC.

-- the Proxy Statement omits material information regarding
potential conflicts of interest of BofA and Morgan Stanley.

The Proxy Statement fails to disclose the timing and nature of the
past services BofA provided to the buyers and their affiliates. The
Proxy Statement also fails to disclose the timing and nature of the
past services Morgan Stanley provided to the parties to the Merger
Agreement and their affiliates.

G&W owns or leases 120 freight railroads organized in eight locally
managed operating regions with approximately 8,000 employees
serving 3,000 customers.[BN]

Attorneys for the Plaintiff are:

          Gina M. Serra, Esq.
          Brian D. Long, Esq.
          RIGRODSKY & LONG, P.A.
          300 Delaware Avenue, Suite 1220
          Wilmington, DE 19801
          Telephone: (302) 295-5310
          Facsimile: (302) 654-7530
          E-mail: bdl@rl-legal.com
                  gms@rl-legal.com

               - and -

          Richard A. Maniskas, Esq.
          RM LAW, P.C.
          1055 Westlakes Drive, Suite 300
          Berwyn, PA 19312
          Telephone: (484) 324-6800
          Facsimile: (484) 631-1305
          E-mail: rm@maniskas.com

GREEN ISLE FOODS: Hernandez Files Wage and Hour Suit
----------------------------------------------------
Santiago Hernandez, individually and on behalf of all others
similarly situated, Plaintiff, v. GREEN ISLE FOODS INC. D/B/A IRISH
COFFEE SHOP, and JOHN BURKE, as an individual, Defendants, Case No.
1:19-cv-08553 (S.D. N.Y., Sept. 13, 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.

Although Plaintiff worked approximately 72 or more hours per week
during his employment by Defendants, Defendants did not pay
Plaintiff time and a half for hours worked over 40, a blatant
violation of the overtime provisions contained in the FLSA and
NYLL, asserts the complaint. 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, adds the complaint.

Plaintiff Santiago Hernandez was employed by Defendants at GREEN
ISLE FOODS INC. D/B/A IRISH COFFEE SHOP from  April 2006 until
October 2018.

GREEN ISLE FOODS INC. D/B/A IRISH COFFEE SHOP 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


HEALTH INSURANCE: Court Certifies 2 Subclasses in Moser TCPA Suit
-----------------------------------------------------------------
In the case captioned KENNETH J. MOSER, individually and on behalf
of all others similarly situated, Plaintiff, v. HEALTH INSURANCE
INNOVATIONS, INC., a Delaware corporation; NATIONAL CONGRESS OF
EMPLOYERS, INC., a Delaware corporation; COMPANION LIFE INSURANCE
COMPANY, a South Carolina corporation; DONISI JAX, INC., a Florida
corporation; HELPING HAND HEALTH GROUP, INC., a Florida
corporation; ANTHONY MARESCA, an individual; and MATTHEW HERMAN, an
individual, Defendants, Case No. 17cv1127-WQH-KSC (S.D. Cal.),
Judge William Q. Hayes of the U.S. District Court for the Southern
District of California (i) granted the Plaintiff's Motion for Class
Certification; (ii) denied Defendant Health Insurance Innovations
("HII")'s Motion to Deny Class Certification; (ii) denied without
prejudice Defendant Companion Life's Motion for Summary Judgment;
(iv) denied the first Motion to File Documents Under Seal; and (v)
granted the second Motion to File Documents Under Seal.

On June 5, 2017, Moser filed a complaint.  On June 7, 2017, the
Plaintiff filed the First Amended Class Action Complaint ("FAC"),
the operative complaint in the matter.  The FAC alleges HII is the
principle actor in a scheme to sell medical insurance plans and
other insurance-related services by making illegal telemarketing
calls prohibited by the TCPA.  HII contracts with multiple insurers
to market and administer insurance products.  It bundles those
"insurance products" and hires "boiler rooms like Helping Hand and
Donisi Jax" to 'cold call' unsuspecting consumer[s] using either
pre-recorded messages or auto-dialers in order to sell the
insurance products.  

HII has bundled together.  It knows their sub-agents are making
such TCPA-violative calls, and have known since at least June 27,
2014.  If a consumer purchases a plan during one of these phone
calls, the consumer receives emails and coverage documents from HII
welcoming them to the insurance plan.  HII takes all payments for
plans sold during these phone calls and distributes them to their
downstream boiler room agents and the companies whose products make
up the bundle.  From April 6, 2017 to May 10, 2017, the Plaintiff
received 82 calls from Helping Hand and Donisi Jax trying to sell
HII's bundle of insurance-related services in violation of the
TCPA.  
With respect to Donisi Jax, specifically from April 6, 2017 to May
10, 2017, it transmitted 32 autodialed and prerecorded calls to Mr.
Moser's cellular phones (858-[xxx-xxxx] and 858-[xxx-xxxx]) and
residential telephone line (858-[xxx-xxxx]).  These calls all used
the exact same prerecorded message and CID 310-[xxx-xxxx] to try to
sell HII's bundle of insurance related services.  All of these
Donisi Jax calls were prerecorded and autodialed.  During at least
one of the calls from Donisi Jax, Mr. Moser feigned interest to
determine the true identity of the caller and relationship of the
Defendants.

Helping Hand and Donisi Jax are explicitly hired by HII, Defendant
National Congress of Employers, Inc. ("NCE"), and Companion to make
the illegal pre-recorded auto-dialed calls to the benefit of HII,
NCE, and Companion.  The illegal calls used to sell the bundles are
made by boiler rooms like Helping Hand and Donisi Jax] with the
full knowledge and assistance of HII and its major insurance
partners.  HII, NCE, and Companion explicitly condone the actions
of Helping Hand and Donisi Jax in making the illegal pre-recorded
auto-dialed calls to the benefit of them by condoning their actions
afterwards.

On Dec. 3, 2018, the Plaintiff filed a Motion for Class
Certification.  The two subclasses he seeks to certify are:

     a. Subclass One: All persons and entities located within the
United States of America who claim to be able to provide a phone
bill or statement showing they had had a phone number subscribed to
a cellular or wireless tariff and who claim Donisi Jax or Helping
Hand Health Group and/or their agents transmitted a call to sell
short term non-ACA-compliant medical insurance plans managed by HII
using an automatic telephone dialing system or prerecorded voice to
said number without prior express written consent from the called
party at any time from Jan. 28, 2015 to the present, including up
to and through trial; and,

     b. Subclass Two: All persons and entities located within the
United States of America who claim to be able to provide a phone
bill or statement showing they had had a phone number subscribed to
a residential tariff and who claim Donisi Jax or Helping Hand
Health Group and/or their agents transmitted a call to sell short
term non-ACA-compliant medical insurance plans managed by HII using
a prerecorded voice to said number without prior express written
consent from the called party at any time from Jan. 28, 2015 to the
present, including up to and through trial.

On Dec. 3, 2018, HII filed a Motion to Deny Class Certification,
which Defendants Donisi Jax, Inc., also known as Nationwide Health
Advisors, NCE and Companion joined.

On Dec. 21, 2018, HII filed an Opposition to the Motion for Class
Certification, which NCE, Donisi Jax and Companion joined.  On Dec.
24, 2018, the Plaintiff filed an Opposition to HII's Motion to Deny
Class Certification.  On Dec. 24, 2018, Donisi Jax filed an
Opposition to the Motion for Class Certification.

On Dec. 31, 2018, HII filed a Reply to the Motion to Deny Class
Certification.  On Dec. 31, 2018, the Plaintiff filed a Reply to
HII's Opposition to the Motion for Class Certification.  On Dec.
31, 2018, he filed a Reply to Donisi Jax's Opposition to the Motion
for Class Certification.  On April 25, 2019, the Court heard oral
argument on the Motion.

Judge Hayes finds that the Plaintiff has met the requirements of
Rule 23(a) and Rule 23(b)(3).  Ge grnated the Plaintiff's Motion
for Class Certification, and denied the Defendants' Motion to Deny
Class Certification.

The following Rule 23(b)(3) classes are certified:

     a. Subclass One: All persons and entities located within the
United States of America who claim to be able to provide a phone
bill or statement showing they had had a phone number subscribed to
a cellular or wireless tariff and who claim Donisi Jax or Helping
Hand Health Group and/or their agents transmitted a call to sell
short term non-ACA-compliant medical insurance plans managed by HII
using an automatic telephone dialing system or prerecorded voice to
said number without prior express written consent from the called
party at any time from Jan. 28, 2015 to the present, including up
to and through trial; and,

     b. Subclass Two: All persons and entities located within the
United States of America who claim to be able to provide a phone
bill or statement showing they had had a phone number subscribed to
a residential tariff and who claim Donisi Jax or Helping Hand
Health Group and/or their agents transmitted a call to sell short
term non-ACA-compliant medical insurance plans managed by HII using
a prerecorded voice to said number without prior express written
consent from the called party at any time from Jan. 28, 2015 to the
present, including up to and through trial.

Plaintiff Kenneth J. Moser is appointed the class representative
for both subclasses.

Pursuant to Federal Rule of Civil Procedure 23(g), the firms Prato
& Reichman, APC and Rock Law LLP are appointed the class counsel.

Pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), the
parties will meet and confer, and submit to the Court an
agreed-upon form of class notice that will advise individual
members of, among other things, the nature of the action, the
relief sought, the right of class members to intervene or opt out,
and the binding effect of a class judgment on members under Rule
23(c)(3).  The parties will also jointly submit a plan for
dissemination of the proposed notice.  The proposed notice and plan
of dissemination will be filed with the Court within 60 days from
the entry of the Order.

On Dec. 10, 2018, Companion filed a Motion for Summary Judgment.
On Dec. 31, 2018, the Plaintiff filed an Opposition.  On Jan. 7,
2019, Companion filed a Reply.  Companion contends that Companion
did not call the Plaintiff directly and has not presented any
evidence that Companion is vicariously liable for the calls
allegedly made to the Plaintiff by other parties.  The Plaintiff
contends that Companion's Motion for Summary Judgment is premature
because the case has not even entered the merits discovery phase,
and as such, the Plaintif has not had the opportunity to conduct
any detailed discovery into the agency relationship between
Companion and its sales agents.

Pursuant to Federal Rule of Civil Procedure 56(d)(1), the Judge
denied without prejudice Companion's Motion for Summary Judgment.
The Plaintiff has provided the affidavit of Justin Prato, which
describes his intention to depose J. Philip Gradham of Companion
regarding Companion's relationship with HII and his plans to
request any formal or informal complaints of TCPA violations which
were provided to Companion.  The Judge finds that these materials
may contain information relevant to the Plaintiff's allegation that
Companion is liable under a common law agency theory for any TCPA
violations committed by the other Defendants in the case.
Accordingly, these materials are relevant to the Plaintiff's
opposition to Companion's Motion for Summary Judgment and it does
not appear that further discovery would be futile.

On Dec. 18, 2018 the Parties filed two joint motions to file
documents under seal.  In connection with the Motion for Class
Certification, the parties request to file three exhibits under
seal.  The first Motion seeks to file Exhibit 13 under seal, which
the parties state is a contract between NCE and another party
relating to the contracting parties' business relationships,
specifics of products and services to be offered, the service areas
covered by the products, marketing information, and financial
information.  The parties did not provide the Court with an
unredacted copy of Exhibit 13.

The second Motion requests to file Exhibits 14 and 18 under seal.
Exhibits 14 and 18 contain Donisi Jax's internal "do-not-call list"
and a list of its live transfers from lead generators.  The parties
contend that the list contains confidential commercial information,
since it would reveal information about Donisi Jax's relationship
with various lead generators, as well as identifying information
for thousands of private individuals.

In the case, the exhibits at issue were attached to a motion for
class certification, which is non-dispositive in the matter.  With
respect to Exhibit 13, the Judge holds that the parties did not
lodge an unredacted copy of Exhibit 13.  He cannot assess its
contents.  The first Joint Motion to File Documents Under Seal is
denied.  Exhibits 14 and 18 contain thousands of telephone numbers
of private individuals who may not be parties to the action.  Good
cause exists in this instance to protect the privacy of the
individuals whose phone numbers appear in Exhibits 14 and 18.  The
second Motion to File Documents Under Seal is granted.

A full-text copy of the Court's Aug. 7, 2019 Order is available at
https://is.gd/z1v8vI from Leagle.com.

Kenneth J. Moser, individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Christopher Reichman
-- chrisr@prato-reichman.com -- Prato & Reichman, APC, Jeffrey
Braillard Cereghino  -- jbc@rocklawcal.com -- Cereghino Law Group,
Justin M. Prato  -- jmprato@gmail.com -- Prato & Reichman, APC &
Matt J. Malone , Rock Law LLP.

Health Insurance Innovations, Inc., a Delaware Corporation,
Defendant, represented by Anton N. Handal -- tony.handal@gmlaw.com
-- Greenspoon Marder LLP, Dariel Jonathan Abrahamy --
dariel.abrahamy@gmlaw.com -- Greenspoon Marder LLP, pro hac vice &
Garry W. O'Donnell -- -- garry.odonnell@gmlaw.com -- Greenspoon
Marder, P.A., pro hac vice.

National Congress of Employers, Inc., a Delaware Corporation,
Defendant, represented by Barton H. Hegeler --
mail@hegeler-anderson.com -- Hegler & Anderson, Ethan T. Litney,
Hegeler & Anderson, A.P.C. & Sarah M. Reddiconto, Hegeler &
Anderson, A.P.C.

Companion Life Insurance Company, a South Carolina Corporation,
Defendant, represented by Chad R. Fuller --
chad.fuller@troutman.com  -- Troutman Sanders LLP & Virginia B.
Flynn -- virginia.flynn@troutman.com -- Troutman Sanders LLP, pro
hac vice.

Donisi Jax, Inc., a Florida Corporation, Defendant, represented by
Jennifer L. Meeker -- jmeeker@nossaman.com -- Nossaman LLP, Maya
Hamouie -- mhamouie@nossaman.com -- Nossaman LLP & Stephen P.
Wiman
-- swiman@nossaman.com -- Nossaman, LLP.


HYUNDAI MOTOR: Settlement in Riaubia Suit Has Prelim Approval
-------------------------------------------------------------
In the case, JOSHUA RIAUBIA, individually and on behalf of all
others similarly situated, Plaintiff, v. HYUNDAI MOTOR AMERICA,
Defendant, Civil Action No. 16-5150 (E.D. Pa.), Magistrate Judge
Lynne A. Sitarski of the U.S. District Court for the Eastern
District of Pennsylvania granted the Plaintiff's Unopposed Motion
for Certification of Settlement Class, Preliminary Approval of
Settlement, Appointment of Class Counsel, and Approval of Class
Notice.

In August of 2014, the Plaintiff purchased a 2015 Hyundai Sonata
Limited equipped with the Smart Trunk Feature.  The Smart Trunk
allowed consumers to open their vehicles' trunks "hands-free" by
standing directly behind the vehicle while holding a key fob.  The
Plaintiff's Smart Trunk opened only a few inches.  He consulted
with the counsel, who discovered dozens of similar complaints from
owners of Hyundai Sonatas.  

Thus, on Sept. 28, 2016, the Plaintiff filed the instant class
action on behalf of himself and others similarly situated.  In
response, on Dec. 23, 2016, the Defendant filed a Motion to
Dismiss, which Judge Jones denied in full on Aug. 22, 2017.
Thereafter, on Oct. 6, 2017, the Defendant filed its Answer.

The parties then began discussing the possibility of mediation, and
filed a joint stipulation requesting to stay the litigation
proceedings pending mediation. (Stipulation, ECF No. 31). During
their initial mediation session before David Geronemus of JAMS,
held in New York City on January 9, 2018, the parties made some
progress towards reaching a resolution.  On May 15, 2018, a second
mediation session was held, and the parties executed a term sheet
wherein they set forth the majority of terms that would be agreed
to in the eventual settlement.  On Feb. 15, 2019, the Plaintiff
filed the instant unopposed Motion.  By Order dated July 3, 2019,
Judge Jones referred the Motion to Magistrate Judge Siatrski for
disposition.

The terms of the proposed class action settlement are set forth in
the Settlement Agreement.  The Settlement Agreement provides for a
Settlement Class defined as all persons or entities in the 50
United States and the District of Columbia who currently own or
lease, or previously owned or leased, a model year 2015 to 2017
U.S. specification Hyundai Sonata vehicle equipped with the Smart
Trunk feature purchased in the fifty United States and the District
of Columbia.

In exchange for a release of the Settlement Class members' claims
against the Defendant, the Settlement Agreement states that the
Defendant will provide Settlement Class members with: (1) a cash
payment in the form of a $50 debit card or $100 dealer credit; (2)
replacement of the defective parts of Class vehicle trunks,
followed by a second replacement if necessary; (3) a warranty
extension; and (4) reimbursement of any previous repair costs they
incurred in their efforts to fix the Smart Trunk feature of the
Class vehicle.

The Defendant will be responsible for bearing the cost of providing
Class members with notice of the Settlement Agreement.  The
Defendant's Consumer Affairs Division, serving as the Settlement
Administrator, will be responsible for providing the Class members
with notice, as well as appropriate state and federal officials, in
accordance with the Class Action Fairness Act.  The Administrator
will send the Class members notice via first class mail, and will
resend any returned notices that contain an address correction or
forwarding address.  The Administrator will also maintain a website
where the Class members can get more information about the
Settlement Agreement, and where they can submit claims either
online or via email.

Magistrate Judge Sitarski finds that the requirements of Rules
23(a) and (b)(3) have been met.  She also finds that the
ascertainability requirement is met, and that preliminary
certification of the Settlement Class appears proper.  Moreover,
the terms in the Settlement Agreement, as well as the forms of
notice, appear fair, reasonable and adequate.  As a result, she
will grant the Plaintiff's Motion for preliminary approval of the
Settlement Agreement, and appoint the Class counsel.  An
appropriate order follows.

A full-text copy of the Court's Aug. 7, 2019 Memorandum is
available at https://is.gd/9dW7zY from Leagle.com.

JOSHUA RIAUBIA, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY NOAH I. AXLER, AXLER GOLDICH LLC, JAMES C. SHAH,
SHEPHERD FINKELMAN MILLER & SHAH LLC, MARC A. GOLDICH, AXLER
GOLDICH, LLC & NATALIE FINKELMAN BENNETT, SHEPHERD FINKELMAN
MILLER & SHAH LLC.

HYUNDAI MOTOR AMERICA, Defendant, represented by CHRISTOPHER J.
DALTON -- christopher.dalton@bipc.com -- BUCHANAN INGERSOLL &
ROONEY, JACQUELINE M. WEYAND -- jacqueline.weyand@bipc.com --
BUCHANAN INGERSOLL & ROONEY, PC & KENNETH L. RACOWSKI --
kenneth.racowski@bipc.com -- BUCHANAN INGERSOLL & ROONEY.


IC SYSTEM INC: Taylor Files FDCPA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against IC System, Inc. The
case is styled as Rozell Taylor individually and on behalf of all
others similarly situated, Plaintiff v. IC System, Inc., Defendant,
Case No. 1:19-cv-05366 (E.D. N.Y., Sept. 20, 2019).

The Plaintiff filed the case under the Fair Debt Collection
Practices Act.

I. C. System, Inc. was founded in 1941. The company's line of
business includes collection and adjustment services on claims and
other insurance related issues.[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


JEFFERSON PARISH, LA: Sherriff's Summ. Judgment Bid Partly Granted
------------------------------------------------------------------
In the case, TAYLOR CARLISLE, ET AL. v. NEWELL NORMAND, ET AL.,
SECTION: "H"(1), Civil Action No. 16-3767 (E.D. La.), Judge Jane
Triche Milazzo of the U.S. District Court for the Eastern District
of Louisiana (a) granted in part former Jefferson Parish Sheriff
Normand's Motion for Summary Judgment, and (b) denied (i) the
Plaintiffs' Appeal from the Magistrate Judge's March 20, 2019 Order
and Reasons denying the Plaintiff's Motion for Leave to file a
Fourth Amended and Supplementing Complaint; (ii) the Plaintiffs'
Motion to Strike exhibits attached to Sheriff Normand's
supplemental memorandum in support of his Motion for Summary
Judgment; and (iii) the Plaintiffs' Motion for Reconsideration of
the Court's May 7, 2019 Order and Reasons denying the Plaintiff's
Appeal from the Magistrate Judge's Feb. 4, 2019 Order and Reasons.

The lawsuit arises out of the participation by Plaintiffs Carlisle
and Emile Heron in Jefferson Parish's Drug Court.  The case has
been pending for more than three years, and no trial date has been
set.  Since its inception, the Plaintiffs have alleged a number of
federal and state claims against a number of Defendants.  Many of
those claims have since been dismissed.  As summarized by the
Magistrate Judge in her March 20, 2019 Order and Reasons, the
following claims remain:

     1. The Plaintiffs' putative class action claims against the
Sheriff for declaratory and injunctive relief and damages under
Section 1983, challenging the imposition of jail time for alleged
probation violations by Drug Court Program participants to the
extent that imprisonment or refusal to consider good time by the
Sheriff was not pursuant to an order from the Drug Court;

     2. The Plaintiffs' state law claims for legal malpractice
pending against Joseph Marino; and

     3. Plaintiff Carlisle's state law negligence claims against
Joe McNair and McNair's business, for actions taken after April 27,
2015.

On Dec. 12, 2018, the Sheriff moved for summary judgment on the
claims remaining against him.  The submission date on this Motion
was continued several times, but the Motion eventually came under
submission on April 10, 2019.  On the same day the Plaintiffs filed
a lengthy opposition to the Motion, the Sheriff supplemented his
Motion with a significant number of records.  The did not seek
leave to respond to the supplemental memorandum but instead filed a
Motion to Strike many of the records.  The Sheriff opposes the
Motion to Strike.

Two months after the Sheriff filed his Motion for Summary Judgment,
the Plaintiffs filed a Motion for Leave to File a Fourth Amended
and Supplementing Complaint.  They sought to amend their claims
against the Sheriff.  This Motion was referred to the Magistrate
Judge.  On March 20, 2019, the Magistrate Judge denied the Motion.
The Plaintiffs now appeal the Magistrate Judge's decision denying
leave to amend their claims against the Sheriff.  The Sheriff
opposes the Motion.

The Plaintiffs also seek reconsideration of a May 7, 2019 order by
the Court affirming the Magistrate Judge's Feb. 4, 2019 Order and
Reasons that granted the Defendants' Motion to Compel certain
documents and ordered the Plaintiffs to pay $500 in opposing the
counsel's expenses and fees.  The Defendants oppose this Motion.

Judge Milazzo will first address the Plaintiffs' Motion to Strike
records that the Sheriff relies on to support his Motion for
Summary Judgment.  Next, she will address the Sheriff's Motion for
Summary Judgment.  After that, she will address the Plaintiffs'
pending appeal of the Magistrate Judge's March 20, 2019 Order and
Reasons.  Finally, the Judge will turn to the Plaintiffs' Motion
for Reconsideration.

As for the Motion to Strike, the Plaintiffs ask the Court to strike
from the record two sets of minute entries that the Sheriff
produced in support of his Motion for Summary Judgment.  The first
is a set of minute entries reflecting Drug Court appearances for
Plaintiff Carlisle, and the second is a similar set of minute
entries regarding court appearances by Plaintiff Heron.  The
Plaintiffs ask to strike these from the record on the ground that
they are inaccurate.

The Judge finds that the Plaintiffs have failed to show that these
minute entries are not capable of being presented in a form that
would be admissible in evidence.  More importantly, they have
failed to show that the Sheriff is not entitled to reasonably rely
on such minute entries when determining who to incarcerate and for
how long.  Even if the minute entries contain inaccuracies, the
Sheriff was entitled to rely on them when determining how long to
incarcerate Plaintiffs Carlisle and Heron.  Accordingly, the Motion
is denied, and the Judge will consider the minute entries in ruling
on the Sheriff's Motion for Summary Judgment.

Turning to the Motion for Summary Judgment, the Judge granted in
part the Sheriff's Motion.  She finds that a genuine dispute of
material fact exists as to whether the Sheriff held Carlisle
without the authority to do so from Aug. 25, 2015 to Sept. 1, 2015.
Nevertheless, the record is clear that the Sheriff had authority
from Drug Court judges to incarcerate the Plaintiff for all the
other periods of time for which he says the Sheriff held him
unlawfully.  The only remaining claim Plaintiff Carlisle has
against the Sheriff is one for wrongful imprisonment from Aug. 25,
2015 to Sept. 1, 2015.  The Sheriff is entitled to summary judgment
on all other claims by Plaintiff Carlisle.

As with Plaintiff Carlisle, there is only one instance in the
record where Plaintiff Heron says he was jailed for which the
Sheriff has not shown that he had the authority to jail him.  That
time was between mid-to-late June 2016 and July 20, 2016.  The
Judge granted in part the Sheriff's Motion for Summary Judgment on
this claim.  A genuine dispute of material fact exists as to
whether the Sheriff unlawfully held the Plaintiff for an
unspecified time period beginning in late June 2016 and ending July
20, 2016.  Thus, Plaintiff Heron's claim against the Sheriff
remains for that time period only.  The record is clear that the
Sheriff jailed Plaintiff Heron at all other times pursuant to
orders from Drug Court judges.  The Sheriff is thus entitled to
summary judgment against Plaintiff Heron's claims except as
outlined.

The Judge also finds that there is no genuine dispute of material
fact about whether the Sheriff failed to properly credit the
Plaintiffs with good time for their flat time Drug Court sanctions.
Accordingly, he is entitled to summary judgment on these claims.
The only claims that remain against him are for wrongful
imprisonment based on allegedly incarcerating each Plaintiff for
the specific time periods outlined above without the authority to
do so.

As for the Plaintiffs' appeal from the Magistrate Judge's denial of
leave to amend, the Judge finds that the Plaintiffs have failed to
show that the Magistrate Judge's ruling was clearly erroneous or
contrary to law.  She agrees with the Magistrate Judge that the
Plaintiffs are simply shifting their claims in response to the
Court's rulings, and that the Sheriff would be unduly prejudiced at
this stage of litigation if the Plaintiffs were allowed to
significantly amend the claims against him, particularly given the
status of his pending Motion for Summary Judgment.  Accordingly,
the Plaintiffs' Motion is denied.

Finally, the Judge denied the Plaintiffs' Motion for
Reconsideration.  She finds that the Plaintiffs in the Motion
continue to re-hash the same arguments they have now presented
before both the Magistrate Judge and the Court regarding the
imposition of a $500 award of attorneys' fees related to their
failure to produce certain discovery.  The Plaintiffs now seek a
"stay" of this award, even though they offer no reason to explain
why they failed to ask for such relief sooner.  Their refusal to
fully comply with the Magistrate Judge's fair sanction underscores
the need for the sanction.  Accordingly, the Judge sees no need to
disturb its previous decision affirming the Magistrate's award of
the discovery sanction.

For the foregoing reasons, Judge Milazzo granted in part the
Sheriff's Motion for Summary Judgment.  Plaintiff Carlisle's claim
that the Sheriff held him in jail without the authority to do so
from Aug. 25, 2015 to Sept. 1, 2015 remains.  Plaintiff Heron's
claim that the Sheriff held him in jail from an unspecified day in
June 2016 until July 20, 2016 without the authority to do so also
remains.  The Sheriff is entitled to summary judgment on the
remainder of the Plaintiffs' claims against him.  The Judge denied
the Plaintiffs' Motions.

A full-text copy of the Court's Aug. 7, 2019 Order and Reasons is
available at https://is.gd/3fHKLP from Leagle.com.

Taylor Carlisle, individually and as Representative Member of a
Class & Emile Heron, individually and as Representative Member of
a
Class, Plaintiffs, represented by Marie Riccio Wisner, Law Offices
of Marie Riccio Wisner.

Joe McNair, Director of Counseling of the 24th JDC Drug Court
Intensive Probration Program & McNair & McNair, L.L.C.,
Defendants,
represented by Francis Horatio Brown, III  --
fbrown@mcglinchey.com
-- McGlinchey Stafford, PLLC & Marshall Thomas Cox --
mcox@mcglinchey.com -- McGlinchey Stafford, PLLC.

Newell Normand, Sheriff and Administrator of the Jefferson Parish
Correctional Center, Defendant, represented by Daniel Rault
Martiny, Martiny & Associates & Jeffrey David Martiny, Martiny &
Associates.

Joseph A Marino, Jr, Staff Counsel of Louisiana Public Defender
Board; originally sued in Complaint and Amended Complaint as Joe
Marino, Defendant, represented by Ralph R. Alexis, III --
ralexis@phjlaw.com -- Porteous, Hainkel & Johnson, Corey D. Moll
--
cmoll@phjlaw.com -- Porteous, Hainkel & Johnson & Glenn B. Adams
--
gadams@phjlaw.com -- Porteous, Hainkel & Johnson.


JUST ENERGY: Obtains Favorable Ruling in FLSA Class Action
----------------------------------------------------------
Law360 reports that an Illinois federal jury found that
door-to-door salespeople working on commission for Just Energy
Illinois are not entitled to minimum wage and overtime pay because
they are exempt outside salespersons.

The verdict, reached on Aug. 12, follows more than five years of
litigation and a four-day trial over whether the Canadian energy
company broke Illinois' wage and hour laws and improperly
classified more than 5,000 salespeople doing promotional work on
its behalf as independent contractors.

Bradley Sherman of Sherman Boseman Legal Group LLC, counsel for
Just Energy, told Law360 on Aug. 14 that the jury's finding was an
important victory for the company.


JUUL LABS: Faces Deceptive Marketing Class Action in West Virginia
------------------------------------------------------------------
WOWK reports that a class-action lawsuit has been filed against
JUUL Labs, Inc., Altria Group, Inc. and Philip Morris USA, Inc. for
targeting teenagers and pre-teens with nicotine-containing
products.

The lawsuit was filed on Aug. 13 in the United States District
Court for the Southern District of West Virginia. It says it seeks
to hold the defendants accountable for designing and marketing JUUL
nicotine-containing products to children.

"Like cigarette manufacturers, JUUL deceptively marketed its
products to teenagers and pre-teens," said Brett Preston, one of
the attorneys who filed the case on behalf of the plaintiffs.

Scott Segal, co-counsel for plaintiffs who also represented the
State of West Virginia against big tobacco, said: "‘Juuling' by
children is a health epidemic that must be stopped. JUUL cannot be
permitted to do to our children what big tobacco did to us, our
parents and our grandparents."

"Parents all over West Virginia are finding small
nicotine-containing JUUL pods in their children's backpacks and
bedrooms that are meant to resemble USB drives," Preston said.
[GN]


KEYPOINT GOVERNMENT: Arbitration Bids in Brayman Denied as Moot
---------------------------------------------------------------
In the case, RACHEL BRAYMAN, on behalf of herself and all similarly
situated persons, Plaintiff, v. KEYPOINT GOVERNMENT SOLUTIONS,
INC., a Delaware corporation, Defendant, Civil Action No.
18-cv-0550-WJM-NRN (D. Colo.), Judge William J. Martinez of the
U.S. District Court for the District of Colorado (i) granted in
part KeyPoint's Motion for Reconsideration, or in the Alternative,
Certification of an Interlocutory Appeal; (ii) granted Brayman's
Motion for Equitable Tolling; and (iii) KeyPoint's eight motions to
compel arbitration against the 27 opt-in Plaintiffs who are subject
to arbitration agreements.

Brayman brings the action against Defendant KeyPoint for alleged
violations of the Fair Labor Standards Act ("FLSA").  Brayman's
FLSA claim concerns KeyPoint's alleged failure to properly
compensate a certain class of employees known as "Investigators"
for overtime hours worked, and an alleged policy of unlawfully
prohibiting overtime in certain circumstances.  Although the Court
has yet to authorize notice to KeyPoint employees who might join
Brayman in a collective action, roughly 50 of them have opted in to
the lawsuit through notices of consent to join filed by Brayman's
counsel.

Brayman filed the lawsuit on March 8, 2018.  On March 16, 2018,
KeyPoint's counsel e-mailed a letter to Brayman's counsel
announcing that one of the opt-in Plaintiffs (Tschiffely) had
signed an arbitration agreement.  KeyPoint's counsel asked
Brayman's counsel to let them know if Mr. Tschiffely will
voluntarily withdraw his consent to join.  KeyPoint's counsel
advised that if they will not agree to do so, KeyPoint's counsel
will proceed with a motion to compel arbitration and will seek
their fees in doing so.

On March 22 and 23, 2018, KeyPoint's counsel followed up in the
same e-mail thread in which she had sent the March 16 letter
regarding Tschiffely's arbitration agreement.  KeyPoint's counsel
attached materially identical arbitration agreements for opt-in
Plaintiffs Betton, George, Jones-Rose, and Perry.

On April 2, 2018, KeyPoint's counsel -- having apparently heard
nothing from Brayman's counsel -- continued the e-mail thread that
the counsel would appreciate receiving an update on the issue
regarding the opt-ins who are subject to the dispute resolution
agreement. Please advise.  The following day, Brayman's counsel
replied that there's no need to file a motion to compel arbitration
as they'll pursue the claims in arbitration.

Brayman moved for conditional certification on April 6, 2018.  On
April 12, 2018 -- after the filing of the Certification Motion but
before KeyPoint's deadline to respond -- KeyPoint's counsel
submitted a draft stipulation regarding arbitration to Brayman's
counsel.  The parties' negotiations on that stipulation ultimately
broke down after multiple rounds of red-lined edits because the
parties could not agree on the terms of the stipulation.  The
parties' major disagreements centered around Brayman's proposal
that KeyPoint stipulate to pay for the arbitrator's fees and costs
and Brayman's proposal that the action be stayed, rather than
dismissed, as to the opt-in Plaintiffs subject to an arbitration
agreement.

By order dated Nov. 1, 2018, the Court granted the Certification
Motion to the extent that the Court defined and conditionally
certified a collective action.  Specifically, it conditionally
certified the collective action of all persons who worked as Field
Investigators, Background Investigators, or in other positions with
similar job duties, for Defendant KeyPoint Government Solutions
Inc. at any time from March 8, 2015 to present.

The Court, however, found that Brayman's proposed notice to the
potential opt-in Plaintiffs was deficient.  It therefore ordered
the parties to attempt to stipulate to a notice and file a joint
motion to approve a notice and consent to join form no later than
Nov. 16, 2018.  If the parties are unable to agree, they may file
separate motions by that same date.

Neither party filed a motion on Nov. 16, 2018.  Rather, KeyPoint
filed its Motion to Reconsider on November 14, along with a Motion
to Stay.  The Court granted a stay pending resolution of the
Defendant's Motion to Reconsider.  Presumably, then, no notice has
ever been sent to the collective.

Currently before the Court is KeyPoint's Motion to Reconsider.
KeyPoint asks the Court to reconsider certain portions of its prior
order granting conditional certification of this lawsuit as a
collective action.   Also before the Court is Brayman's Motion for
Equitable Tolling.  Brayman requests that the Court toll the FLSA
statute of limitations from the time she moved for conditional
certification.  Finally, before the Court are eight motions to
compel arbitration filed by KeyPoint against the 27 opt-in
Plaintiffs who are subject to arbitration agreements.

The basic question posed by the Motion to Reconsider is whether the
Court should permit Brayman to send notice of the conditional
certification of the collective action to employees or former
employees subject to an arbitration agreement.  As it turns out,
however, the question is not truly independent from questions
raised by other pending motions.

Judge Martinez exercises the Court's discretion to reconsider the
Certification Order.  He further finds that the scope of
reconsideration must be informed by the arbitrability question
raised directly through KeyPoint's eight motions to compel
arbitration.  He therefore turns to those motions.

He finds that the appropriate remedy is to strike the relevant
notices of consent to join the lawsuit, and, in turn, the Court
will deny Keypoint's eight Motions to Compel Arbitration as moot.
The parties' dispute over whether the action should be stayed or
dismissed as to these opt-in Plaintiffs is likewise moot in light
of this disposition.  To be clear, the Judge does not agree with
KeyPoint's argument that all disputes about the arbitration
agreement's cost-shifting provision must be decided by an
arbitrator.  He only holds that when persons subject to an
arbitration agreement have already conceded that they have validly
disavowed the collective action procedure, it is inappropriate to
nonetheless opt in so that all decisions regarding effective
vindication will be addressed through a single judge, as if in a
collective action.

Next, the Judge finds that the Court does not have a sufficient
basis to find conduct worthy of Section 1927 sanctions.  It is in
no way condones Brayman's counsel's approach to the arbitrability
issue.  However, the Judge finds that Section 1927 sanctions are
not warranted on the record.  He therefore denies KeyPoint's
request for relief in this regard.

KeyPoint's Motion to Reconsider raises another issue, separate from
arbitration-related matters, namely, whether notice should be sent
through a third-party administrator.  The matter was raised in
KeyPoint's response to the Certification Motion through a single
sentence followed by a single citation to an unpublished opinion.
The Court's Certification Order said nothing about it explicitly,
but implicitly rejected it when ordering KeyPoint to provide
Brayman's counsel with a list of all potential collective action
members.

The Judge finds that it is inappropriate for KeyPoint now to
assert, by way of reconsideration, a more elaborate version of an
argument the Court already rejected.  Accordingly, he denies this
portion of the Motion to Reconsider.  Moreover, the Judge has
looked dimly on letters sent to potential collective action members
for the ostensible purpose of seeking information when it was plain
that the Plaintiff's attorney was really seeking additional
opt-ins.  Brayman's counsel is thus warned.

Finally, the Judge turns to Brayman's Motion for Equitable Tolling.
He has found that equitable tolling in circumstances such as these
is appropriate given that the information needed for the named
Plaintiff to inform other employees of their opportunity to opt in
is largely in the Defendant's hands.  Moreover, aware of the FLSA's
statute of limitations, Brayman moved quickly for conditional
certification -- about a month after filing the lawsuit.  Also, the
time during which the Certification Motion was pending, together
with the time the Motion to Reconsider has been pending, has
created delay that should not, in the interest of justice, count
against the potential members of the collective action.  For these
reasons, the Judge will grant the Motion for Equitable Tolling from
the date of the Certification Motion (April 6, 2018) through the
end of the opt-in period.

For the reasons set forth, Judge Martinez (i) granted KeyPoint's
Motion for Reconsideration to the extent that the Court reverses
its prior ruling that collective action notice will be sent to
potential collective action members who are subject to an
arbitration agreement, but is otherwise denied.  The parties will
attempt to stipulate to a notice and consent-to-join form and file
a joint motion to approve those documents no later than Aug. 23,
2019.  If the parties are unable to agree, they may file separate
motions by that same date.

The Court will establish a date for KeyPoint to turn over
information to Brayman regarding potential collective action
members by separate order when the Court approves the notice and
consent-to-join forms.

The Judge Struck the notices of consent to join as to opt-in
Plaintiffs An, Baker, Betton, Biggers, Bobinger, Ana Cruz, Arnaldo
Cruz, DeMarco, Dyson, Gaudet, George, Greenstein, Hall, Harper,
Islas, Jones-Rose, Linen, Magee, Mosley, Perry, Terry, Tschiffley,
Tyner, Ward, Wheeler, Whitener, and Wood.

The Judge denied as moot each of these motions:

     a. Keypoint's Motion to Compel Arbitration of Claims by
Opt-ins Paul Tschiffley, DeAijha Perry, Shawn Betton, Alicia Jones
Rose, and Tasha George, or in the Alternative, to Dismiss;

     b. Keypoint's Motion to Compel Arbitration of Claims by
Opt-ins Ahmiyah Mosley, Albert Islas, Ana Cruz, Desiree Gaudet,
Dorothy Terry, Edward Demarco, Endy Sevilla, Harold Baker, Johnny
An, Kathleen Magee, Kevin Tyner, Laurie Hall, Moses Linen, Sean
Whitener, Sibyl Biggers, William Wheeler and Arnaldo Cruz, or in
the Alternative to Dismiss;

     c. Keypoint's Motion to Compel Arbitration of Claims by Opt-in
Mathew Harper, or in the Alternative to Dismiss;

     d. Keypoint's Motion to Compel Arbitration of Claims by Opt-in
Barbara Greenstein, or in the Alternative to Dismiss;

     e. Keypoint's Motion to Compel Arbitration of Claims by Opt-in
Lindsey Bobinger, or in the Alternative to Dismiss;

     f. Keypoint's Motion to Compel Arbitration of Claims by Opt-in
Alia Ward, or in the Alternative, to Dismiss;

     g. Keypoint's Motion to Compel Arbitration of Claims by Opt-in
Lekeisha Dyson or, in the Alternative, to Dismiss; and

     h. Keypoint's Motion to Compel Arbitration of Claims by Opt-in
Sydney Wood or, in the Alternative, to Dismiss.

He granted Brayman's Motion for Equitable Tolling.  The FLSA
statute of limitations will be told from April 6, 2018, through the
end of the opt-in period (to be established when the Court approves
the notice procedures).

A full-text copy of the Court's Aug. 7, 2019 Order is available at
https://is.gd/UiA3DK from Leagle.com.

Rachel Brayman, individually and on behalf of all other similarly
situated individuals, Plaintiff, represented by Benjamin L. Davis,
III, The Law Offices of, Peter T. Nicholl, George Edward Swegman,
The Law Offices of, Peter T. Nicholl, & Rachhana T. Srey --
srey@nka.com -- Nichols Kaster, PLLP.

Keypoint Government Solutions, Inc., a Delaware Corporation,
Defendant, represented by Jacqueline Elise Kalk --
jkalk@littler.com -- Littler Mendelson, PC, Karin M. Cogbill --
kcogbill@littler.com -- Littler Mendelson, PC, Margaret Parnell
Hogan -- mphogan@littler.com -- Littler Mendelson, PC & Mary
Kathryne Bosbyshell -- kbosbyshell@littler.com -- Littler
Mendelson, PC.


KIWI-TEK LLC: Catoe Suit Moved to Southern District of Indiana
--------------------------------------------------------------
The class action lawsuit titled DARLENE CATOE, individually and on
behalf of all others similarly situated, Plaintiff v. KIWI-TEK,
LLC, Defendant, Case No. 4:19-cv-00485, was removed from the U.S.
District Court for the Eastern District of Arkansas, to the U.S.
District Court for the Southern District of Indiana, on August 26,
2019. The District Court Clerk assigned Case No.
1:19-cv-03627-RLY-MJD to the proceeding.

Kiwi-Tek, LLC provides medical coding services to build customized
partnership coding solutions. [BN]

The Plaintiff is represented by:

          Chris W. Burks, Esq.
          Brandon M. Haubert, Esq.
          WH LAW, PLLC
          1 Riverfront Pl., Suite 745
          North Little Rock, AR 72114
          Tel: (501) 891-6000
          E-mail: chris@whlawoffices.com
                  Brandon@whlawoffices.com


KOOS MANUFACTURING: Torres Sues Over Illegal Time-Shaving Practices
-------------------------------------------------------------------
MARTHA ENEDINA TORRES and TELESFORO RAMOS ROBLES, as individuals,
and on behalf of all others similarly situated, Plaintiffs, v. KOOS
MANUFACTURING, INC., a California Corporation; and DOES 1 through
100, inclusive, Defendants, Case No. 19STCV32430 (Cal. Super. Ct.,
Los Angeles Cty., Sept. 12, 2019) is a Complaint brought for
recovery of unpaid wages and penalties under California Business &
Professions Code and Industrial Welfare Commission Wage Order 1, in
addition to seeking declaratory relief and restitution.

During their employment with Defendants, Plaintiffs recorded her
hours worked by using an electronic timekeeping system that
recorded the time Plaintiffs clocked in and out to the minute, by
using an electronic hand scanner so that it is unique to each
employee. Although Defendants recorded non-exempt employees' time
worked to the minute, Defendants utilized a timekeeping system
which resulted in Plaintiffs not being compensated for all hours
actually worked, by time-shaving or rounding, such that Plaintiffs
were only paid in quarter of an hour increments. Defendants
regularly, systematically, and impermissibly rounded the time
worked by Plaintiffs and other non-exempt employees in Defendants'
favor, says the complaint.

Plaintiffs have worked for Defendants during the four years
preceding the filing of the complaint.

Defendants were (and are) doing business in Los Angeles County and
the State of California for the manufacturing industry.[BN]

The Plaintiff is represented by:

     Paul K. Haines, Esq.
     Tuvia Korobkin, Esq.
     Stacey M. Shim, Esq.
     Daniel Marin-Finn, Esq.
     HAINES LAW GROUP, APC
     222 N. Sepulveda Blvd., Suite 1550
     El Segundo, CA 90245
     Phone: (424) 292-2350
     Fax: (424) 292-2355
     Email: phaines@haineslawgroup.com
            tkorobkin@haineslawgroup.com
            sshim@haineslawgroup.com
            dmarin-finn@haineslawgroup.com


KROGER CO: Averts TCPA Class Action in California
-------------------------------------------------
David Krueger, Esq. -- dkrueger@beneschlaw.com -- of Benesch, in an
article for JDSupra, reports that the potential payday of a TCPA
class action is huge. Sometimes, it makes otherwise good attorneys
convince themselves of really bad ideas when chasing those dollar
signs. Derrick v. Kroger Co., No. 3:19-cv-00106, 2019 U.S. Dist.
LEXIS 135803 (N.D. Cal. Aug. 12, 2019) is one of those cases.

Derrick Brooks filed a class action lawsuit against the grocery
store Kroger, alleging that Kroger made unauthorized telemarketing
calls to him using an automatic telephone dialing system, in
violation of the TCPA. His complaint was loaded with soundbites he
found online from other consumers about the calls, selectively
snippeting quotes that persons were receiving "Automated call from
Kroger" and "Call from Kroger stores."

The problem for Derrick was that the calls were not actually
telephone solicitations. Rather, Kroger was warning consumers about
potentially salmonella-tainted beef from its stores. Kroger moved
to dismiss the complaint on the grounds that the calls were exempt
under the "emergency purposes" exemption of the TCPA, which applies
whenever calls are in relation to a matter affecting "the health
and safety of consumers." Even more, Derrick's decision to include
supposed exemplar "complaints" in his Complaint -- a common
strategy employed by plaintiffs' attorneys -- hideously backfired,
because the full text of those "complaints" made it clear that the
calls were in fact in relation to Kroger's efforts to warn
consumers. The district court expressly noted that it was "troubled
by Plaintiff's misrepresentations in the complaint," and that
Derrick's attorneys "purposely omitted details from customer
complaint information it found online to make Kroger's calls seem
nefarious."

Derrick argued that the calls were not for an emergency purpose
because he was not in any "direct harm," again selectively citing
portions of other court and FCC decisions involving the emergency
purposes exception of the TCPA. In a straight-forward decision that
should require little explanation (except to TCPA-plaintiffs'
attorneys) the district court rejected this argument, concluding
that Kroger had "a bona fide emergency in its tainted and
potentially life-threatening beef," and was justified in making the
calls.

One might think that a company calling consumers about poisoned
beef is obviously an emergency purpose. Or even that a plaintiff's
TCPA-lawyer might sometimes see beyond the dollars signs, ponder
the policy implications, and think: "Is this really an argument I
want to make?" At the very least, common sense has prevailed in
this case . . . at least until the case gets to the Ninth Circuit.
[GN]


LCS COMMUNITY: Ambrose Sues over Biometric Data Collection
----------------------------------------------------------
KAMILYA AMBROSE, individually and on behalf of all others similarly
situated, Plaintiff v. LCS COMMUNITY EMPLOYMENT LLC; and CARRINTON
CARE LLC, Defendants, Case No. 2019CH09912 (Ill. Cir., Cook Cty.,
Aug. 27, 2019) seeks to stop the Defendants' unlawful collection,
use, and storage of the Plaintiff and class members' sensitive
biometric data.

The Plaintiff alleges in the complaint that the Defendants
disregarded their employees' statutorily protected privacy rights
and unlawfully collects, stores, and uses their biometric data in
violation of the Biometric Information Privacy Act. The Defendants
failed to provide the Plaintiffs and the class with a written,
publicly available policy identifying its retention schedule and
guidelines for permanently destroying employees' biometric data
when the initial purpose for collecting or obtaining their
biometrics is no longer relevant, as required by the Biometric
Information Privacy Act. An employee who leaves the Defendant does
so without any knowledge of when their biometric identifiers will
be removed from the Defendant's databases.

LCS Community Employment LLC is a limited liability company that
manages senior living communities throughout the U.S. [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
         Telephone: (630) 355-7590
         Facsimile: (630) 778-0400
         E-mail: dfish@fishlawfirm.com
                 jkunze@fishlawfirm.com


LGRC CORP: Mendoza Seeks Unpaid Minimum and Overtime Wages
----------------------------------------------------------
FERNANDO MENDOZA, individually and on behalf of others similarly
situated, Plaintiff, v. LGRC CORP. (D/B/A PLAZA DELI) and YOUNG
CHUL SONG, Defendants, Case No. 1:19-cv-08479 (S.D. N.Y., Sept. 12,
2019) seeks unpaid minimum and overtime wages pursuant to the Fair
Labor Standards Act of 1938, and for violations of the N.Y. Labor
Law, including applicable liquidated damages, interest, attorneys'
fees and costs.

Plaintiff worked for Defendants in excess of 40 hours per week,
without appropriate minimum wage and overtime compensation for the
hours that he worked, notes the complaint. Defendants failed to
maintain accurate recordkeeping of the hours worked and failed to
pay Plaintiff Mendoza appropriately for any hours worked, either at
the straight rate of pay or for any additional overtime premium,
says the complaint.

Plaintiff Mendoza was employed as a salad maker at the deli located
at 127 John St, New York, NY 10038.

Defendants own, operate, or control an American deli, located at
127 John St, New York, NY 10038 under the name "Plaza Deli".[BN]

The Plaintiff is represented by:

     Michael Faillace, Esq.
     MICHAEL FAILLACE & ASSOCIATES, P.C.
     60 East 42nd Street, Suite 4510
     New York, NY 10165
     Phone: (212) 317-1200
     Facsimile: (212) 317-1620


LIGHTHOUSE GUILD: Underpays Human Resource Staff, Barker Says
-------------------------------------------------------------
KIMBERLY BARKER, individually and on behalf of all others similarly
situated, Plaintiff v. LIGHTHOUSE GUILD INTERNATIONAL, INC.; and
GUILDNET, INC., Defendant, Case No. 1:19-cv-07916 (S.D.N.Y., Aug.
23, 2019) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.

The Plaintiff Barker was employed by the Defendants as human
resource staff.

Lighthouse Guild International, Inc. is a domestic not for profit
corporation for the benefit of visually impaired individuals
organized under the laws of the State of New York. [BN]

The Plaintiff is represented by:

          CK Lee, Esq.
          Taimur Alamgir, Esq.
          LEE LITIGATION GROUP, PLLC
          148 West 24th Street, Eight Floor
          New York, NY 10011
          Telephone: (212) 465-1124
          Facsimile: (212) 465-1181


MAC PROPERTY: Thompson Sues over Collection of Biometric Data
-------------------------------------------------------------
ABIGAIL THOMPSON, individually and on behalf of all others
similarly situated, the Plaintiff, vs. MAC PROPERTY MANAGEMENT,
LLC., an lllinois Limited Liability Company, the Defendant, Case
No. 2019CH10379 (Ill. Cir., Sept. 6, 2019), seeks to put a stop to
Defendant's unlawful collection, use, and storage of Plaintiffs and
the putative Class members' sensitive biometric data under the
Biometric Information Privacy Act.

MAC uses key inventory sold by KeyTrak. When a MAC employee wishes
to access an apartment key and conduct an apartment tour, for
example, they are required to scantheir fingerprint into the
KeyTrak biometric system. KeyTrak then grants an employee access to
a key and creates an audit trail identifying the employee who
checked out a key.

While there are tremendous benefits to using a biometric key
inventory system like KeyTrak, there are also serious risks. Unlike
key fobs or identification cards -- which can be changed or
replaced if stolen or compromised -- fingerprints are unique,
permanent biometric identifiers associated with the employee. This
exposes employees to serious and irreversible privacy risks. For
example, if a fingerprint database is hacked, breached, or
otherwise exposed, employees have no means by which to prevent
identity theft and unauthorized tracking, the lawsuit says.

MAC is a real estate management company. It staffs its own real
estate agents who give prospective tenants tours at their various
properties.[BN]

Attorneys for the Plaintiff are:

          Benjamin H. Richman, Esq.
          J. Eli Wade-Scott, Esq.
          EDELSON PC
          350 North LaSalle Street, 14th Floor
          Chicago, IL 60654
          Telephone: 312 589 6370
          Facsimile: 312 589 6378
          E-mail brichman@edelson.com
                  ewadescott@edelson.com

               - and -

          David Fish, Esq.
          John Kunze, Esq.
          THE FISH LAW FIRM, P.C.
          200 East Fifth Avenue, Suite 123
          Naperville, IL 60563
          E-mail: dfish@fishlawfirm.com
                  kunze@fishlawfirm.com

MEDICI LIVING: Fischler Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Medici Living, Inc.
The case is styled as Brian Fischler Individually and on behalf of
all other persons similarly situated, Plaintiff v. Medici Living,
Inc. doing business as: Go Quarters, Defendant, Case No.
1:19-cv-08744 (S.D. N.Y., Sept. 20, 2019).

The Plaintiff filed the case under the Americans with Disabilities
Act.

The Medici Living Group develops and operates innovative and
digitalized co-living concepts worldwide.[BN]

The Plaintiff is represented by:

     Christopher Howard Lowe, Esq.
     Lipsky Lowe LLP
     420 Lexington Avenue, Suite 1830
     New York, NY 10170
     Phone: (212) 764-7171
     Email: chris@lipskylowe.com



MIDLAND CREDIT: Atkins Sues over Debt Collection Practices
----------------------------------------------------------
KAYLA ATKINS, individually and on behalf of all others similarly
situated, Plaintiff v. MIDLAND CREDIT MANAGEMENT, INC., Defendant,
Case No. 1:19-cv-03581-JRS-TAB (S.D. Ind., Aug. 23, 2019) seeks to
stop the Defendant's unfair and unconscionable means to collect a
debt.

Midland Credit Management, Inc. was founded in 1953. The company's
line of business includes extending credit to business enterprises
for relatively short periods. [BN]

The Plaintiff is represented by:

          David J. Philipps, Esq.
          Mary E. Philipps, Esq.
          Angie K. Robertson, Esq.
          PHILIPPS & PHILIPPS, LTD.
          9760 S. Roberts Road, Suite One
          Palos Hills, IL 60465
          Telephone: (708) 974-2900
          Facsimile: (708) 974-2907
          E-mail: davephilipps@aol.com
                  mephilipps@aol.com
                  angie@philippslegal.com

               - and -

          John T. Steinkamp, Esq.
          JOHN STEINKAMP & ASSOCIATES
          5214 S. East Street, Suite D1
          Indianapolis, IN 46227
          Telephone: (317) 780-8300
          Facsimile: (317) 217-1320
          E-mail: john@johnsteinkampandassociates.com


MNM EIGHT MILE: Moore Seeks Unpaid Minimum, Overtime Wages
----------------------------------------------------------
DIMARIAN MOORE on Behalf of Herself and on Behalf of All Others
Similarly Situated, Plaintiff, v. MNM EIGHT MILE INC., MD
ENTERTAINMENT, LLC, MAJED DABISH, Defendants, Case No.
2:19-cv-12684-GAD-MJH (E.D. Mich., Sept. 12, 2019) is collective
action against Defendants under the Fair Labor Standards Act for
failure to pay minimum and overtime wages.

The complaint alleges that Defendants required and/or permitted
Plaintiff to work as exotic dancers at their adult entertainment
club but refused to compensate them at the applicable minimum wage.
In fact, Defendants refused to compensate them whatsoever for any
hours worked. The Defendants also violated the FLSA by failing to
pay time and a half to their employees when they worked more than
40 hours a week. The Defendants took money from Plaintiffs in the
form of "house fees" or "rent". Plaintiff was also required to
divide tips with Defendants' managers and employees who do not
customarily receive tips.

The complaint notes that Defendants misclassify dancers, including
Plaintiff, as independent contractors so that they do not have to
compensate them at the federally mandated minimum wage rate or the
overtime rate. The Defendants' practice of failing to pay employees
any wages violates the FLSA's minimum wage provision, overtime
provision, and Defendants' practice of charging house fees and
confiscating tips also violates the FLSA because for at least one
workweek in the relevant statutory period, caused Plaintiffs to be
paid below the minimum wage, asserts the complaint.

Plaintiff was previously employed as an exotic dancer at
Defendants' adult entertainment club.

Defendants own and operate an adult entertainment club in Michigan,
under the name of "Truth Detroit".[BN]

The Plaintiff is represented by:

     Gabriel A. Assaad, Esq.
     KENNEDY HODGES, L.L.P.
     4409 Montrose Blvd., Suite 200
     Houston, TX 77006
     Phone: (713) 523-0001
     Facsimile: (713) 523-1116
     Email: gassaad@kennedyhodges.com

          - and -

     Jennifer L. McManus, Esq.
     FAGAN MCMANUS, P.C.
     25892 Woodward Avenue
     Royal Oak, MI 48067-0910
     Phone: 248) 542-6300
     Email: jmcmanus@faganlawpc.com


MRS. GOOCH'S: Faces Class Action Over Meal, Rest Breaks
-------------------------------------------------------
WholeFoods Magazine reports that lawyers are filing a class action
complaint against Mrs. Gooch's Natural Food Markets, Inc., dba
Whole Foods Market, alleging that the company failed to provide
their employees with meal and rest breaks required by California
law.

The lawsuit, case number 19STCV26728, was filed by lawyers at
Blumenthal Nordrehaug Bhowmik De Blouw LLP; it is currently pending
in the Los Angeles County Superior Court for the State of
California.

When employees work more than five hours, California law requires
employers to provide employees with an uninterrupted 30 minute meal
break before the fifth hour. The lawsuit alleges that not only did
Mrs. Gooch's fail to provide their employees with these breaks,
they also failed to accurately calculate and record all missed meal
and rest periods, and thus failed to pay all required compensation.
[GN]


MY PILLOW: Judge Tosses Privacy Class Action by Repeat Plaintiff
----------------------------------------------------------------
Alison Frankel, writing for Reuters, reports that there's a decent
argument to be made that experienced class representatives will do
a better job than novices when it comes to protecting the interests
of all of the absent plaintiffs whose rights are at stake in the
case. Lead plaintiffs who have developed an understanding of the
law and can anticipate defense arguments can be a boon to the
class.

But not, according to U.S. District Judge William Alsup of San
Francisco, if those lead plaintiffs have a history of filing class
actions -- and then settling cases individually.

Judge Alsup denied a motion to certify a class alleging that the
pillow company My Pillow violated the California Invasion of
Privacy Act by failing to inform callers to its sales and customer
service numbers that their calls were being recorded. My Pillow did
not deny in its brief opposing class certification that during a
stretch of several weeks beginning in December 2017, callers were
not immediately informed that their phone conversations with
company reps were being recorded. But the company's newly-unsealed
brief argued that the would-be lead plaintiff, Richard Wuest, could
not represent the class.

Wuest, the brief disclosed, has filed 10 class actions alleging
violations of the California privacy law, eight of them within the
last two years. None of the cases have produced a classwide
settlement, not even for injunctive relief. Instead, My Pillow
said, Wuest's cases have almost all concluded with payments to him
and his counsel -- more than $80,000 to Wuest and more than
$420,000 to his lawyers at Keller Grover. According to My Pillow's
lawyers at Beshada Farnese, Wuest made more money as a CIPA
plaintiff than he did in his fulltime job in insurance claims.

Wuest and his lawyers said he never filed any of the CIPA class
actions with the intention of settling just individual claims. The
previous cases hit snags "for a variety of reasons outside the
control of (Wuest) and counsel," Keller Grover said in its class
certification motion. Some of the reasons, according to Wuest's
declaration: arbitration clauses barring classwide claims,
cash-strapped defendants that couldn't afford a class settlement
and CIPA violations too isolated to merit class treatment. "In all
of these cases," Wuest said, "my attorney explained why a class
case could not go forward before I agree to settle on an individual
basis."

Keller Grover name partner Eric Grover said in his declaration that
he has litigated and settled many other telephone privacy cases as
class actions, reaching settlements totaling "tens of millions of
dollars" on behalf of more than a million class members.
"Individual settlements are not preferred," he said in the
declaration. "They are the exception, not the rule."

In an email to me, Grover elaborated: "Anytime a case settles on
less than a class-wide basis it is a disappointment," the email
said. "We are not in the business of filing and settling cases on
an individual basis . . . . However, counsel has an obligation not
to pursue cases that are not suitable for class action status. Each
case needs to be looked at on its individual merits. In Mr. Wuest's
prior cases, when it became clear that a case was not going to work
as a class action, the parties reached a mutual acceptable
resolution."

Judge Alsup was not mollified by the explanations from Wuest and
Grover. Alsup, as you probably recall, is quite a stickler when it
comes to policing the interests of absent class members. His policy
of barring lead plaintiffs from entering settlement negotiations
with defendants before class certification is the subject of an
ongoing mandamus proceeding at the 9th U.S. Circuit Court of
Appeals, which is evaluating whether Judge Alsup's concern for
absent class members impinges on defendants' free speech rights.
And a few years ago, as My Pillow noted in its brief opposing class
certification, Judge Alsup refused in Backus v. Conagra Foods to
certify a false advertising class because the case would have been
bogged down in attacks on the credibility of the lead plaintiff,
who had previously filed several similar cases.

In the My Pillow case, Judge Alsup sensed an outright abuse of
class action leverage. "Wuest used the threat of a class action to
extract a premium deal far in excess of the value of his individual
case," the judge wrote. "The pattern is quite clear. The premium
was something rightfully due to the ‘class' but no absent
putative class member ever got anything. Wuest and his counsel got
it all."

The judge said that Wuest could not be entrusted to protect the
class because he was "liable to abuse the class action device
again."

Grover said in his email that he and Wuest were disappointed in
Judge Alsup's ruling. Their litigation of the My Pillow case
through class certification, he said, showed Wuest was acting in
the interests of the class.

If you pay attention to class actions, you know that frequent
filers -- often referred to derisively as professional plaintiffs
-- turn up in all sorts of cases. At one end of the spectrum are
big institutional investors in securities class actions. They're
supposed to be restricted by statute from serving as lead plaintiff
in more than a handful of cases at a time, but over the years, some
fund officials have run into accusations of filing lead plaintiff
motions to appease plaintiffs' lawyers who are campaign
contributors.

Repeat plaintiffs often appear in class actions alleging violations
of the Americans with Disabilities Act, portraying themselves as
civil rights "testers." The Telephone Consumer Protection Act
actually spawned a cottage industry of enterprising consumers who
amassed cellphones for the purpose of fielding robocalls and filing
TCPA cases. And, of course, you're probably familiar with the
phenomenon of small shareholders who routinely turn up as
plaintiffs in M&A class actions.

Judge Alsup seems to me to have highlighted the key question judges
should ask about repeat plaintiffs: Are they using class actions to
obtain benefits for everyone in the class, or just for themselves?
Plaintiffs who regularly file class actions and then drop the cases
when they or their lawyers receive an individual payment are
misusing the process -- and judges should call out such abuse when
they see it. [GN]


NAT'L ASSOCIATION: Seeks Dismissal of Antitrust Class Action
------------------------------------------------------------
Dan Churney, writing for Cook County Record, reports that the
Chicago-based National Association of Realtors is asking a federal
judge to toss a class action suit by a group of home sellers, which
alleges real estate agents across the country breached antitrust
law by scheming to lock in high commission rates, because brokers
are free to negotiate compensation.

The suit was lodged March 6 in U.S. District Court for the Northern
District of Illinois. Plaintiffs are property owners who sold their
real estate from Colorado, Texas, Minnesota, California, West
Virginia, Wisconsin and Maryland. Named plaintiffs include
Christopher Moehrl, Michael Cole, Steve Darnell, Valerie Nager,
Jack Ramey, Daniel Umpa, Jane Ruh and Sawbill Strategic Inc.

The National Association of Realtors (NAR) is a defendant. Also
named as defendants are what the suit says are the four top real
estate brokers in the nation: Realogy Holdings of Madison, N.J.;
HomeServices of America of Minneapolis; RE/MAX of Denver; and
Keller Williams Realty of Austin, Texas.

The action centers on the Multiple Listing Services (MLS), regional
databases of properties on the market through which most houses are
sold, according to the suit. The NAR controls a number of MLS and
requires brokers who belong to the NAR to list properties on an
MLS.

The NAR has set rules for use of an MLS that compel the seller's
broker to offer compensation to the buyer's broker, even though the
buyer's broker is working on behalf of the buyer, not the seller,
the lawsuit said. Further, compensation must be offered to every
buyer's broker, regardless of their experience, the services they
furnished and their arrangements with the buyer, the lawsuit said.

"Home sellers have been forced to pay commissions to buyer brokers
-- their adversaries in negotiations to sell their homes -- thereby
substantially inflating the cost of selling their homes," the
plaintiffs said in the lawsuit.

Competition among brokers and buyers has been "restrained," the
plaintiffs said, adding the system may cost consumers $30 billion
per year.

The plaintiffs want an injunction to bar the alleged Realtor
practice and damages to be determined at trial.

The NAR called the suit a "complete mischaracterization" of its
rules.

"They base their claim on the NAR requirement that a listing broker
must make an offer of cooperation and compensation to any buyer's
broker who produces a ready, willing, and able purchaser -- a basic
aspect of the MLS system that has existed for decades. This system,
and the rules upon which it has been based, have repeatedly been
upheld by the courts," the NAR said.

The U.S. Justice Department authorized, and a federal judge
approved, a consent decree for the NAR to restrict MLS membership
to brokers who offer cooperation and compensation to other MLS
members, the NAR said.

The NAR said its rules do not dictate commission amounts but rather
allow brokers to offer either a percentage of the sale price or a
specific dollar figure.

The NAR said sellers set commission amounts to encourage
buyer-broker cooperation, not to steer buyers to listings with
higher commissions . .

"This is simply a common-sense effort by sellers to attract buyers
for their homes. Far from being anticompetitive, it is the free
market at work," the NAR said.

The NAR claimed the plaintiffs failed to suggest how the rules
caused harm to them, such as showing how the rules allegedly
reduced their proceeds from their house sale.

U.S. District Judge Andrea Wood is presiding over the case.

Plaintiffs are represented by the following firms: Cohen, Milstein,
Sellers & Toll, of Chicago; Handley, Farah & Anderson, of
Washington, D.C.; Hagens Berman Sobol Shapiro, of Chicago; Teske,
Katz, Kitzer & Rochel, of Minneapolis; Susman Godfrey LLP, of
Houston; Wright, Marsh & Levy, of Las Vegas; Wexler Wallace LLP, of
Chicago; Gustafson Gluek PLLC, of Minneapolis; and Justice Catalyst
Law, of Brooklyn.

Defendants are represented by attorney Jack Bierig and others at
the firms of Schiff Hardin LLP, of Chicago; Morgan, Lewis &
Bockius, of Philadelphia;  Barnes & Thornburg, of Indianapolis;
Foley & Lardner, Milwaukee; Holland & Knight, of Tampa, Fla.; and
Jones Day, of Chicago. [GN]


NAT'L FOOTBALL: 9th Cir. Reverses DirecTV Class Action Dismissal
----------------------------------------------------------------
Ben Remaly, writing for Global Competition Review, reports that a
federal appellate court has reversed the dismissal of a class
action alleging the National Football League and DirecTV illegally
conspired to monopolise game broadcasts. [GN]


NELNET DIVERSIFIED: Court OKs Peterson FLSA Suit Dismissal
----------------------------------------------------------
The United States District Court for the District of Colorado
issued a Memorandum Opinion and Order granting Defendant's Motion
for Summary Judgment in the case captioned ANDREW PETERSON, on
behalf of himself and all similarly situated persons, Plaintiff, v.
NELNET DIVERSIFIED SOLUTIONS, LLC, Defendant. Civil Action No.
17-cv-01064-NYW. (D. Colo.).

Plaintiff Andrew Peterson, initiated this action by filing a
Complaint asserting a collective action under the Fair Labor
Standards Act (FLSA), for unpaid overtime wages on behalf of
himself and all current and former Account Managers and Call Center
Representatives. Mr. Peterson alleged that Nelnet violated the FLSA
by failing to pay him and other call center representatives premium
overtime compensation for hours worked in excess of forty hours in
a workweek.

In his original Complaint, Mr. Peterson asserted claims for: (1)
violation of the FLSA on behalf of himself and the collective (2)
violation of Colorado Minimum Wage Order on behalf of himself and a
Rule 23 class of individuals (Second Cause of Action) and (3)
violation of the Colorado Wage Act on behalf of himself and a Rule
23 class of individuals (Third Cause of Action).

Are the Pre-Shift Activities Covered by the FLSA

The Parties refer to the two categories of pre-shift time, the
Boot-Up Time (defined as the time between the employee's badge
swipe and the time stamp initiating the process of booting up each
Citrix sessions) and the Citrix-Active Time defined as the time
between completing the launch of the Citrix virtual desktop
application and completion of clocking in, as distinct. As
discussed more fully below, the court's analysis renders any
distinction between the two categories immaterial, and so the court
simply refers to these two categories as the pre-shift activities.

Legal Standard -- Compensable Time

The FLSA does not provide a definition of work, and United States
Supreme Court has long-described work or employment under the FLSA
as physical or mental exertion whether burdensome or not controlled
or required by the employer and pursued necessarily and primarily
for the benefit of the employer and his business. Under the
continuous-workday rule, all activity from the first principal
activity is ordinarily compensable until the last principal
activity.  

Relevant here, Section 254(a)(2) provides that no employer shall be
subject to any liability for activities which are preliminary to or
postliminary to said principal activity or activities which occur
before or subsequent to principal activities or activitie s in the
workday. This distinction is not always easily made. The Supreme
Court has recognized that some activities which are temporally
preliminary to the principal gainful activity the employee is
employed to perform are compensable as those same principal
activities when such preliminary activities are an integral and
indispensable part of the principal activities for which workmen
are employed.

Application

Nelnet argues that the pre-shift activities at issue are not
compensable because they are not principal activities but rather
preliminary activities which are neither integral or indispensable
to work. Nelnet also argues that the pre-shift activities cannot be
integral to Plaintiffs' principal activities, because the pre-shift
activities are not demanding and permit a CCR to engage in personal
discussions and diversions during the process. Nelnet also contends
that computers are not integral and indispensable but instead
merely enhance the performance capacity of the CCRs.  

Plaintiff argues that the pre-shift activity time is compensable
because the work performed during that time is the first principal
activity, relying on Department of Labor Fact Sheet #64. Plaintiff
further contends that even if the logging in process is not
considered a principal activity, it is still compensable because
the pre-shift activities are integral and indispensable, as a CCR
cannot use the Citrix system until it has been successfully
initiated, and the Citrix system is required by Nelnet in order for
the CCRs to make and receive calls for loan servicing.  

Are Pre-Shift Activities Principal Work or Preliminary Work?

Plaintiff contends that the Department of Labor's Wage and Hour
Division's Fact Sheet #64 (Fact Sheet), attached to Plaintiff's
Motion for Summary Judgment as Exhibit E, establishes that the
pre-shift activities are principal work, and is entitled to
significant deference under Skidmore v. Swift & Co., 323 U.S. 134
(1944).   

The Fact Sheet is specific to call center workers and states that
An example of the first principal activity of the day for
agents/specialists/representatives working in call centers includes
starting the computer to download work instructions, computer
applications, and work-related emails. Defendant counters that the
Fact Sheet merits no deference, much less Skidmore deference.  

Under Skidmore, the deference due to an administrative agency
interpretation of the law depends on the thoroughness evident in
its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control. Here, by
its own terms, the Fact Sheet #64 only provides general information
and is not to be considered in the same light as official
statements of position contained in the regulations.  

In addition, in concluding that starting the computer to download
work instructions, computer applications, and work-related emails,
the Department of Labor did not engage in substantive analysis nor
cite to statutory reference or case law interpretation. Plaintiff
cites no authority, and this court could not independently find
any, that accords Fact Sheet #64 any deference, and the court notes
that the Fact Sheet was last revised in July 2008, prior to further
refinement of the applicable law by the Supreme Court and Tenth
Circuit. Accordingly, this court affords limited deference to Fact
Sheet #64, and notes that it does not displace or supersede the
court's own interpretation and judgment with respect to whether
pre-shift activities here are principal work or otherwise
compensable.  

The Pre-Shift Activities are Not, by their Nature, Principal
Activities. There is no dispute that the principal activity of work
of the CCRs is the servicing of loans. The CCRs service student
loans and interact with debtors over the phone and through email.
And aside from the language from Fact Sheet #64 characterizing
starting the computer to download work instructions, computer
applications, and work-related emails, as principal work, there is
no real dispute that the CCRs are not hired to log into a computer
system. Therefore, this court concludes that the pre-shift
activities do not constitute the employees' principal work.

This conclusion, however, does not resolve whether the time
associated with the pre-shift activities are compensable. This
court finds that the appropriate approach is to consider, based on
the circumstances presented here, whether Plaintiffs' pre-shift
activities are compensable under Steiner. 350 U.S. at 256. Indeed,
to hold otherwise might suggest that login activities, regardless
of the principal work at issue, were categorically compensable or
noncompensable. The case law interpreting the FLSA does not suggest
to this court that painting with such a broad brush is
appropriate.

Accordingly, the court now turns to whether the pre-shift
activities are compensable as preliminary work that is integral and
indispensable to the principal activities of the employees under
the FLSA.

Are the Pre-Shift Activities Integral and Indispensable?

Time and complexity. First, this court finds that Nelnet's
arguments that the pre-shift activities are not compensable because
they take a short period of time to complete and that CCRs can
perform other tasks during the same time are more appropriately
considered within the inquiry of whether the de minimis exception
applies. The length of time and the complexity of the task alone
are not necessarily material to the analysis of such activities are
an intrinsic element of those activities and one with which the
employee cannot dispense if he is to perform his principal
activities.

Integral and Indispensable Preparatory Work. Court have long held
that pre-shift preparation of tools or equipment is considered
integral and indispensable to the principal activities when the use
of such tools in a readied or activated state is an integral part
of the performance of the employee's principal activities. Thus,
sharpening knives for work in a slaughterhouse qualifies because
the employees regularly use the knives in performing their duties.
And setting up and testing an MRI machine qualifies as well because
the machine must be in its ready-to-use state for patients coming
in at the start of the day.  

Here, the court finds that setting up the computer and loading the
relevant programs to become call-ready is an integral and
indispensable part of the principal activities for which workmen
are employed under Steiner v. Mitchell, 350 U.S. 247, 256 (1956),
and therefore does not fall within the Portal Act's exemption.  

Ingress Process. Nelnet argues that the pre-shift activities are
the equivalents of historically non-compensable ingress to the
workstation and waiting in line to clock in. The court respectfully
disagrees. Nelnet analogizes extensively to the ingress process
which is specifically classified as non-compensable preliminary
time under the Portal Act, 29 U.S.C.A. Section 254(a)(1).  

But this analogy fails because, specific statutory exemption for
travel time aside, the ingress process is not a part of the
performance of the day's labor, it is rather simply a necessary
precondition like the antecedent commute from the worker's home to
the place of employment. Here, the pre-shift activities are not
only necessary, but the CCR makes regular use of the prepared
electronic tools in performing their substantive tasks. Therefore,
the necessary preliminary work is intertwined with the substantive
performance of the principal tasks which renders such preliminary
work integral and indispensable. An employee is not employed to
arrive at the office or pass through a security checkpoint, but she
is employed to use certain tools in performance of her tasks, and
pre-shift preparation of those tools is integral and indispensable
to the performance of the principal labor for which the employee is
employed.

Wait Time. Nelnet's analogy to wait time is more compelling but
ultimately unpersuasive.
Generally, an employee waiting to begin a principal activity is
engaged in preliminary, non-compensable time. Here, the pre-shift
activities are only one step removed from the principal activity
and, again, necessarily intertwined with the performance of such
tasks. That the pre-shift activities involve periods of waiting
alternating with rote input no more precludes a finding of
indispensability than waiting at a stop light would in Crenshaw or
Mitchell. And the availability of personal entertainment during
this process no more precludes such finding than the Crenshaw or
Mitchell plaintiffs listening to the radio or talking with one
another would.

The computer use in this case is consistent and integral the
performance of the CCR's duties, not merely an unrelated
precondition such as receiving directions to the next job site.
Having found that the pre-shift activities are integral and
indispensable nature to the CCRs' principal tasks, this court now
turns to whether they are nevertheless noncompensable because they
are de minimis.

Are the Pre-Shift Activities Nevertheless Noncompensable as De
Minimis?

Nelnet argues that the pre-shift activity time in this case, which
in the usual course takes no more than two and a half minutes on
the high end, constitutes de minimis activity and is therefore not
compensable under Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 692 (1946). Plaintiff counters that this time occurred
reliably with every shift, and even if the amount is small, the
claim in the aggregate is not.  

The court finds this time is de minimis.

The Tenth Circuit, adopting the test applied in the Ninth Circuit
formulated in Lindow v. United States, 738 F.2d 1057 (9th Cir.
1984), applies a multi-factor balancing test to determine whether
the time at issue is insubstantial or insignificant and which
cannot as a practical administrative matter be precisely recorded
for payroll purposes.

First, the amount of time spent on a daily basis must be
sufficiently brief to qualify as de minimis courts usually permit a
period of up to ten minutes to qualify as de minimis, although the
application of the exception depends on satisfaction of the other
factors in the test. Second, the court considers the practical
administrative difficulty of recording the time.Third, the size of
the claim in the aggregate. Fourth and finally, whether the
claimants performed the work on a regular basis.No single factor is
determinative in this holistic analysis Because the time in this
case clearly falls well below the ten-minute threshold, the court
proceeds directly to the other factors.

Regularity and Ascertainability. The court finds that the time in
case regularly occurring, readily ascertainable, and therefore is
not uncertain and indefinite. The parties do not dispute that the
pre-shift activities occurred every time a CCR logged onto a system
before beginning work, nor do the parties dispute that the
pre-shift activities have a definite start with waking up the
computer and inserting the Imprivata badge.  

Administrative Burden. The operative question is whether the time
at issue in this case cannot as a practical administrative matter
be precisely recorded for payroll purposes.

In this case, Nelnet argues that it faces a similar burden and
states that it would be administratively infeasible for Nelnet to
incorporate the Timestamps for timekeeping and payroll purposes,
whether using the Timestamps alone or in conjunction with the
existing Timekeeping System and payroll system.

Indeed, to get the undisputed times at issue in this case, Nelnet's
expert had to do precisely the same laborious cross-checking task
the Ninth Circuit rejected in Corbin. The fundamental problem is
that the evidence before the court, even taken in the light most
favorable to Plaintiff, is insufficient to permit a factfinder to
conclude that the Imprivata badge swipe may be linked to the
timekeeping system and can, as a practical administrative matter,
be precisely recorded for payroll purposes without either procuring
a custom-ordered software to link the two or undergoing the
laborious cross-checking at issue in Corbin.

Plaintiff's argument that there are multiple methods Defendants
could have used to accurately record this data, including adding
timeclocks at the desks to replace the current system, designing
new software, or cross-referencing the data, is unsupported by
admissible evidence.  Plaintiff does not present any admissible
evidence that would permit a factfinder to concluded that these
alternatives are not burdensome, nor does Plaintiff rebut Nelnet's
proffered material facts with admissible evidence establishing the
implausibility of such alternatives.

Thus, the court finds this prong weighs heavily in favor of
Defendant. Defendant is not obliged to use any specific timekeeping
system, and Plaintiff fails to set forth admissible evidence that
his proposed solutions.  

The Aggregate Size of the Claim. Under the multi-factor test in
Reich, the court may look to either the total value of the claim,
the total number of workers, or the value of the claim per
individual worker.   

The court finds that under any measure this factor weighs in favor
of Nelnet.

The court begins by disregarding the non-joined putative members of
the collective. Plaintiff argues in part that the size of the claim
is large because there are approximately 3,150 additional employees
who did not join this collective. But the test refers to the size
of the claim and the work performed by the claimants.The court
therefore disregards non-joined members of the collective as
irrelevant to this issue. For those Plaintiffs currently joined in
this litigation, lost wages for both the Boot-Up and Citrix-Active
Time totals approximately $30,000.  

By contrast, other courts have emphasized the need to look at the
entire amount at issue in the litigation.  

After weighing the relevant factors, this court concludes that the
Boot-Up Time and the Citrix-Active Time, collectively pre-shift
activities, constitute de minimis time and are therefore not
compensable. The court reaches this conclusion, inter alia, due to
the unrebutted evidence that adjusting to account for this time
would require a substantively different timekeeping system,
representing a serious administrative burden on the Defendant.
Plaintiff has simply failed to adduce sufficient evidence to
persuade the court, or even create a genuine issue of material
fact, that Defendant was seriously and systematically
undercompensating its employees.

Even with hundreds of Opt-Ins, the amount allegedly underpaid over
the course of the collective action period is at best $30,000 and
likely less. Given the serious administrative burden and the few
seconds or minutes of work beyond the scheduled working hours at
issue, the court concludes that this time is de minimis.

Accordingly, summary judgment shall enter in favor of Defendant.
Plaintiff Andrew Peterson's Motion for Summary Judgment is DENIED.
Defendant Nelnet's Motion for Summary Judgment is GRANTED.
Defendant Nelnet's Decertification Motion is DENIED AS MOOT.  The
court DECLINES to exercise supplemental jurisdiction under Section
1367(c)(3) (5).
Plaintiff's state law claim is DISMISSED WITHOUT PREJUDICE.

A full-text copy of the District Court's September 3, 2019
Memorandum Opinion and Order is available at
https://tinyurl.com/yya447rg from Leagle.com.

Andrew Peterson, on behalf of himself and all similarly situated
persons, Plaintiff, represented by Alan L. Quiles  -
aquiles@shavitzlaw.com - Shavitz Law Group, P. A., Brody J.
Ockander , Rehm Bennett Moore Rehm & Ockander, P.C., 3701 Union
Drive, Suite 200, Lincoln, NE  68516, Dustin Thomas Lujan , Dustin
Thomas Lujan, Attorney at Law, 316 W 22nd St., Cheyenne, WY,
82001-3641, Gregg I. Shavitz  - gshavitz@shavitzlaw.com - Shavitz
Law Group PA, Jonathan V. Rehm , Rehm Bennett Moore Rehm &
Ockander, P.C., 3701 Union Drive, Suite 200, Lincoln, NE  68516,
Logan A. Pardell - lpardell@shavitzlaw.com - Shavitz Law Group, P.
A., Michael J. Palitz - mpalitz@shavitzlaw.com - Shavitz Law Group
PA & Brian David Gonzales , Brian D. Gonzales, PLLC, 2580 East
Harmony Road, Suite 201, Fort Collins, CO 80528

Nelnet Diversified Solutions, LLC, a Nebraska limited liability
company, Defendant, represented by Daniel F. Kaplan -
dkaplan@perrylawfirm.com - Perry Guthery Haase and Gessford, PC,
LLO, Martine Tariot Wells - mwells@bhfs.com - Brownstein Hyatt
Farber Schreck, LLP, Richard B. Benenson - rbenenson@bhfs.com -
Brownstein Hyatt Farber Schreck, LLP, Anna-Liisa Mullis -
amullis@bhfs.com - Brownstein Hyatt Farber Schreck, LLP, Charles F.
Kaplan - ckaplan@perrylawfirm.com - Perry Guthery Haase and
Gessford, PC, LLO & Nicholas Robert Santucci - nsantucci@bhfs.com -
Brownstein Hyatt Farber Schreck, LLP.


NEW JERSEY: Court Narrows Claims in Alien Detention Suit
--------------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting in part and denying in part Parties'
Cross-Motion for Summary Judgment in the case captioned GARFIELD O.
GAYLE, et al., Plaintiffs, v. WARDEN MONMOUTH COUNTY, CORRECTIONAL
INSTITUTION, et al., Defendants. Civil Action No. 12-2806
(FLW).D.N.J.).

This class action challenges the constitutionality of detention
procedures related to mandatory detention of aliens under 8 U.S.C.
Section 1226(c), codified in the Immigration and Naturalization Act
(INA).  Plaintiffs aver that they, and other similarly situated
individuals in New Jersey, have been subjected to unconstitutional
mandatory immigration detention under Section 1226(c) by the United
States Department of Homeland Security, Immigration and Customs
Enforcement (DHS/ICE).

In that connection, Plaintiffs' challenge is twofold: first, with
regard to the mandatory detention scheme of Section 1226(c), they
argue that it is unconstitutional under the Due Process Clause that
aliens, like themselves, with substantial challenges to
deportability be detained; and relatedly, such aliens, Plaintiffs
say, are not subject to mandatory detention in the first instance
because doing so would run afoul of the canon of constitutional
avoidance. Second, Plaintiffs mount a constitutional attack on the
standards determining whether an alien is properly designated as
subject to mandatory detention also known as Joseph hearing which
was first established in Matter of Joseph, 22 I. & N. Dec. 799 (BIA
1999)), and the lack of a contemporaneous verbatim record in those
Joseph hearings.

Plaintiffs seek declaratory and injunctive relief to enjoin the
Government from carrying out the current mandatory detention
procedures and to require the Government to implement
constitutionally adequate ones.

The Government contends that it already bears the initial burden at
custody redetermination hearings, and that the Constitution does
not require these hearings to resemble pre-merits mini-trials or
any contemporaneous recordings. The Government further contends
that under 8 U.S.C. Section 1252(f)(1), this Court is precluded
from granting the requested class injunctive relief.

On the other hand, Plaintiffs maintain that they, and the class,
must have the opportunity to receive a constitutionally adequate
hearing before an immigration judge such that a determination on
their mandatory detention can be made.

In that connection, Plaintiffs argue that this hearing must be one
that (1) does not violate due process and places the initial burden
of establishing that an alien falls within Section 1226(c) on the
Government and (2) requires a contemporaneous record of these
proceedings. Plaintiffs claim that 8 U.S.C. Section 1252(f)(1) does
not preclude requested class-wide injunctive relief.

Section 1226

Section 1226 in full reads:

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is to
be removed from the United States. Except as provided in subsection
(c) of this section and pending such decision, the Attorney
General

(1) may continue to detain the arrested alien; and(2) may release
the alien on
(A) bond of at least $1,500. or(B) conditional parole but(3) may
not provide the alien with work authorization  unless the alien is
lawfully admitted for permanent residence or otherwise would be
provided such authorization.

(b) Revocation of bond or parole

The Attorney General at any time may revoke a bond or parole
authorized under subsection (a) of this section, rearrest the alien
under the original warrant, and detain the alien.(c) Detention of
criminal aliens

(1) Custody

The Attorney General shall take into custody any alien who (A) is
inadmissible by reason of having committed any offense covered in
section 1182(a)(2) of this title,(B) is deportable by reason of
having committed any offense covered in section 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D) of this title,(C) is deportable under
section 1227(a)(2)(A)(i) of this title on the basis of an offense
for which the alien has been sentence[d] to a term of imprisonment
of at least 1 year, or(D) is inadmissible under section
1182(a)(3)(B) of this title or deportable under section
1227(a)(4)(B) of this title,when the alien is released, without
regard to whether the alien is released on parole, supervised
release, or probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense.

(2) Release

The Attorney General may release an alien described in paragraph
(1) only if the Attorney General decides pursuant to section 3521
of Title 18 that release of the alien from custody is necessary to
provide protection to a witness, a potential witness, a person
cooperating with an investigation into major criminal activity, or
an immediate family member or close associate of a witness,
potential witness, or person cooperating with such an
investigation, and the alien satisfies the Attorney General that
the alien will not pose a danger to the safety of other persons or
of property and is likely to appear for any scheduled proceeding. A
decision relating to such release shall take place in accordance
with a procedure that considers the severity of the offense
committed by the alien.

In re Matter of Joseph

The dispute in this case centers on the constitutionality of the
Joseph hearing, which is provided to a Section 1226(c) alien who
challenges his or her mandatory detention. According to the
Government, ICE makes the initial determination that an individual
is removable on the ground triggering mandatory detention under
Section 1226(c); that decision is made pursuant to a reason to
believe standard. Then, an alien could challenge that determination
pursuant to procedural safeguards announced in Matter of Joseph, 22
I. & N. Dec. 799 (BIA 1999). There, the BIA held that an alien whom
the INS determined was subject to mandatory detention could request
a hearing to prove that INS is substantially unlikely to establish
at the merits hearing, or on appeal, the charge or charges that
would otherwise subject the alien to mandatory detention.

Relevant Supreme Court Cases

To better address the parties' arguments on these motions, the
Court surveys the relevant Supreme Court cases, most of which are
relied upon by both parties.

Zadvydas v. Davis

This earlier Supreme Court case concerned 8 U.S.C. Section
1231(a)(6), which authorizes the detention of aliens who have
already been ordered removed from the country. Under this section,
when an alien is ordered removed, the Attorney General is directed
to complete removal within a period of 90 days, 8 U. S. C.
Section1231(a)(1)(A), and the alien must be detained during that
period. After the expiration of that proscribed time period,
Section 1231(a)(6) provides that certain aliens may be detained
while efforts to complete removal continue. The Supreme Court
interpreted this language to limit the government's detention of an
alien who has been ordered removed by imposing a six month
presumptively reasonable period. Zadvydas, 533 U.S. 678, 701
(2001).

The Court held that, under Section 1231(a)(6), aliens may not be
detained beyond a period reasonably necessary to secure removal. In
that regard, the Court concluded that if the alien provides good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future, the government must
either rebut that showing or release the alien.  

Demore v. Kim

In Demore, the Supreme Court held that Section 1226(c)'s mandatory
detention scheme is not facially unconstitutional. The alien in
Demore had been detained the day after his release from state
custody, and he argued that Section 1226(c) violates due process
because it allows the Attorney General to detain an alien
indefinitely without a finding that the alien is dangerous or a
flight risk. Demore, 538 U.S. at 514. The Supreme Court rejected
that argument, concluding that aliens falling under Section 1226(c)
may constitutionally be detained for the brief period necessary for
their removal proceedings.  

Jennings v. Rodriguez

More recently, in Jennings, the Court held, as a matter of
statutory construction that both Sections 1225(b) and 1226(c)
unambiguously call for the mandatory detention of aliens within
those provisions' purview throughout the pendency of the aliens'
removal proceedings, without any right to a bond hearing. Jennings,
138 S. Ct. at 842, 845-847. In so holding, the Court overruled the
Ninth Circuit, which had applied the doctrine of constitutional
avoidance to impose an implicit six-month limit on the period that
an alien could be detained under those statues without a bond
hearing.

The Supreme Court cautioned that the constitutional-avoidance canon
is an aid to the interpretation of a statute that could plausibly
be read either to offend or to comport with the Constitution, but
could not be used to graft a time limit onto an unambiguous statute
that could not reasonably be read to limit detention to six months.
Concluding from the language and structure of Section 1225(b) and
1226(c) that their meaning was clear, the Court declined to extend
the rule of Zadvydas to aliens detained under those provisions.  

Nielsen v. Preap

In the Supreme Court's latest decision, Nielsen v. Preap, 139 S.Ct.
954 (2019), the Court dealt with statutory construction of Section
1226(c) in the context of whether an alien is exempt from mandatory
detention when ICE fails to take him/her into immigration custody
immediately after release from custody. While this case did not
directly answer the questions at issue here, the Supreme Court
provided some guidance as to how to interpret Section 1226(c).

First, the Court began its opinion by acknowledging that aliens who
are arrested because they are believed to be deportable may
generally apply for release on bond or parole while question of
their removal is being decided . Congress has decided, however,
that this procedure is too risky for aliens who have committed
certain dangerous crimes and those who have connection to
terrorism.  

Next, the Supreme Court made clear that Section 1226(c) and Section
1226(a) are not separate sources of arrest, but rather, Subsection
(c) merely places a limit on the authority or discretion conferred
upon ICE by Subsection (a).  

Mandatory Detention

Plaintiffs advance the following arguments: (1) the Due Process
Clause of the Constitution prohibits the mandatory detention of
individuals with substantial challenges to removability (2) the
burden of proof imposed by the Joseph Hearing is unconstitutional
and (3) Section 1226(c) does not impose mandatory detention on
individuals with a substantial challenge to removability. Because
the first and third arguments are similar, the Court will address
them first.

Constitutionality

According to Plaintiffs, under the Due Process Clause, mandatory
detention, with no bond hearing, of individuals who raise
substantial arguments that they are not deportable is
unconstitutional.

This is so, Plaintiffs contend, because such aliens with
substantial arguments against deportability do not categorically
pose the heightened risk of flight or threat to public safety that
justifies such an extreme deprivation of liberty.  

In making their argument, Plaintiffs submit that the Supreme Court
in Demore recognized a narrow exception to the general rule that
due process requires procedures to ensure that detention serves its
purposes. In Demore, the Supreme Court held that the mandatory
detention of criminal aliens under Section 1226(c) does not deprive
those individuals of their due process rights.  

Plaintiffs, here, argue that the Supreme Court's holding in that
regard is only confined to aliens who are deportable, because the
petitioner in Demore conceded his deportability. Plaintiffs
maintain that, here, they stand on a different footing, since they
have a substantial challenge to deportability.

The Court disagrees.

First, the Court do not find that Demore's holding is only limited
to those aliens who have conceded deportability. Even the facts of
Demore belie Plaintiffs' position. While the Supreme Court noted
that the petitioner, there, conceded deportation for the purposes
of the habeas petition, he nevertheless had, at the time of the
decision, applied for withholding of removal by challenging his
deportability. But, even in light of that fact, the Supreme Court
explained that by conceding he is deportable and, hence, subject to
mandatory detention under Section 1226(c), respondent did not
concede that he will ultimately be deported.

Plaintiffs also argue that detaining aliens who have a substantial
challenge to deportability does not serve any legitimate
governmental interests. They explain that these aliens do not
categorically pose the heightened risk of flight or threat to
public safety that justifies detention, because by challenging
their deportability, they have strong incentives to appear at their
proceedings and litigate those defenses.

But, as Demore made clear, in enacting Section 1226(c), Congress
sought to impose mandatory detention on those criminal aliens who
ICE believes are deportable pending their removal proceedings.
Indeed, the Supreme Court recognized Congress's intent that
detention is necessary to prevent deportable criminal aliens from
fleeing prior to or during their removal proceedings, thus
increasing the chance that, if ordered removed, the aliens will be
successfully removed. This is so because Congress had before it
evidence suggesting that permitting discretionary release of aliens
pending their removal hearings would lead to large numbers of
deportable criminal aliens skipping their hearings and remaining at
large in the United States unlawfully.

The Court rejects Plaintiffs' due process arguments regarding
Section 1226(c) in this context.

Constitutional Avoidance

Next, as a corollary argument, Plaintiffs contend that under the
canon of constitutional avoidance, the Court should read Sectdion
1226(c) as requiring the mandatory detention only of those aliens
who do not have a substantial challenge to deportability.
Plaintiffs explain that such a construction is consistent with the
statutory language, because Section 1226(c) only imposes mandatory
detention if an alien is deportable by reason of having committed a
predicate criminal offense.  

The canon of constitutional avoidance is employed when a serious
doubt is raised about the constitutionality of an act of Congress,
which requires courts to first ascertain whether a construction of
the statute is fairly possible by which the question may be
avoided. However, the canon can only come into play when, after the
application of ordinary textual analysis, the statute is found to
be susceptible of more than one construction.  

Here, the canon of constitutional avoidance has no application,
since the word deportable is not susceptible to different
interpretations. While Plaintiffs argue that deportable should be
read to mean an alien who has conceded deportability, a plain
reading of Section 1226(c) does not support their strained
interpretation. Section 1226(a) grants the Attorney General the
authority to arrest and detain an alien pending a decision on
whether that alien is to be removed from the United States. A plain
reading of the statute compels only one interpretation; that is,
those aliens who are subject to deportation by virtue of committing
a certain enumerated offense must be mandatorily detained by the
Attorney General, without the possibility of release on bond. Such
an interpretation is consistent with the aim of the statute.

Having rejected Plaintiffs' statutory interpretation and due
process arguments, I turn to the question whether the burden placed
upon the detained-aliens in a Joseph hearing violates due process.

Constitutionality of the Joseph Hearing

Unlike their prior motion for summary judgment, Plaintiffs do not
devote a significant amount of their current motion to the
constitutionality of Joseph hearings. Nonetheless, Plaintiffs argue
that Joseph severely restricts the type of arguments detainees can
make, and that the hearing unconstitutionally places the burden on
the detainee to show that the Government is substantially unlikely
to establish that the alien committed a criminal offense properly
included within a category listed in Section 1226(c). Accordingly,
Plaintiffs argue that in a practical sense, the Joseph standard
makes it virtually impossible for aliens to contest their mandatory
detention.

Joseph Standard

The Government argues that while the Joseph standard which requires
an alien to show that ICE is substantially unlikely to prove the
charges through which mandatory detention is triggered is not
constitutionally impermissible because the standard satisfies the
Mathews test. Mathews, 424 U.S. at 333.

In assessing whether a particular administrative procedure comports
with due process, courts should look to see if the process at issue
fits with the notion that the fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in
a meaningful manner.

In Mathews, the Supreme Court held that the identification of the
specific dictates of due process generally requires consideration
of three distinct factors: First, the private interest that will be
affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.

The tension here is between Plaintiffs' liberty interests and the
Government's authority, granted by Congress, to mandatorily detain
deportable aliens who have committed certain crimes. The
Government's position places significant emphasis on the third
factor of the Mathews test, the Government's interests and
burdens.

On this factor, the Government identifies certain interests that it
argues weigh heavily in favor of maintaining the current Joseph
standard. First, the Government submits that the Joseph standard
protects the congressional aim of preventing deportable aliens from
fleeing the country before their removal proceedings. This
interest, indeed, coincides with Congress's stated intent in
enacting Section 1226(c). Section 1226(c) aims: (1) to protect the
public from potentially dangerous criminal aliens (2) to prevent
aliens from absconding during removal procedures (3) to correct
former bond procedures under which over twenty percent of criminal
aliens absconded before their deportation hearings and (4) to
restore public faith in the immigration system.

The Court turns to the second Mathews factor, the risk of an
erroneous deprivation and the probable value of additional
procedural safeguards. Plaintiffs contend that under Joseph, the
risk of erroneous deprivations of aliens' liberty interests is
impermissibly high. For example, Plaintiffs cite to cases that
found that aliens had failed to establish under Joseph that ICE was
substantially unlikely to prevail on its charges, because (1) the
alien cannot cite to precedent case law directly on point (2) the
alien failed to establish U.S. citizenship with conclusive evidence
or (3) a circuit split or even unpublished case law from within the
circuit casts doubt on the alien's removability.

Because Joseph essentially mandates detention unless ICE's charges
are frivolous, and requires that the BIA resolve any doubt arising
from incomplete evidence and unsettled law in favor of the
Government, Plaintiffs argue that the Joseph standard is virtually
impossible to satisfy.

The Government, on the other hand, argues that the preliminary
nature of the Joseph hearing does not create a constitutionally
impermissible risk of erroneous deprivation of an alien's liberty
interest, since aliens have another, more substantial bite at the
apple to prove they are not subject to Section 1226(c) in their
removal proceedings, at which point the burden of proof is on ICE,
not the alien. Therefore, requiring the alien to establish the
inapplicability of Section 1226(c) under the substantially unlikely
to prevail standard does not, according to the Government, raise
constitutional concerns.

To begin, the Government has, during this litigation, equated the
reason to believe standard to that of a probable cause inquiry.
That standard, however, has not been articulated or adopted by
immigration judges or even the Government itself. I find the
probable cause standard is sufficient to ameliorate any potential
wrongful deprivation of liberty an alien may suffer in light of his
or her substantially unlikely to prevail burden at Joseph hearings.
In fact, if ICE were to establish to the satisfaction of an IJ at
the Joseph hearing that there is probable cause to place an alien
in mandatory detention, prior to the alien presenting his or her
objections, the alien would be in a better position to meet the
substantially unlikely burden that the alien currently bears. This
conclusion has substantial support in the case law.

On one hand, probable cause, albeit in a criminal context, protects
an individual's liberty under the Constitution; such protection
cannot be compromised. Because mandatory detention in the
immigration context deprives aliens of their liberty interests, it
is prudent to impose the probable cause standard to protect those
interests. This makes practical sense, because the probable cause
inquiry has been the subject of numerous court decisions and the
parameters of this standard are well-known. In that regard,
immigration judges would have at their disposal an arsenal of
precedents to guide them in determining whether the Government has
met such a burden. On the other hand, heeding the Supreme Court's
admonition that the purposes of § 1226(c) mandatory detention are
compelling, as is the Government's interest in efficiently
administering justice, the Court finds that the probable cause
standard sufficiently takes into account those governmental
interests, while adequately balancing the liberty interests of
individuals.

The probable cause inquiry does not require a rigorous showing by
the Government, nor any burdensome or rigid analysis on the part of
an IJ. In fact, the probable cause standard would only place a
minimal additional burden on the Government. To illustrate, in the
Joseph context, under a probable cause analysis, an IJ would
examine whether the facts and circumstances, based upon reasonably
trustworthy information, are sufficient to warrant a prudent man to
believe that the alien is subject to mandatory detention under
Section 1226(c). Probable cause requires the kind of fair
probability on which reasonable and prudent people, not legal
technicians, act. While the test is fluid, importantly, and
contrary to the current reason to believe standard, it contains an
objective component the reasonably prudent man standard which can
adequately be reviewed by judges. By contrast, the reason to
believe standard, to the extent it exists as ICE's burden of proof
in a Joseph hearing, has no clear objective component.

Importantly, requiring ICE to satisfy the IJ that there is probable
cause for mandatory detention before the alien has to prove that
ICE is substantially unlikely to prevail at the merits hearing,
does not disturb congressional intent to prevent potentially
deportable aliens from committing more crimes or fleeing before
their removal proceedings; as always, an individual who has
succeeded in a Joseph hearing would then proceed to a bond hearing,
where he or she may still be subject to detention if an IJ
determines the alien is a flight risk or a danger to the
community.

Here, because Plaintiffs only challenge the standards applied at
the hearing, not at ICE's initial custody determination, the Court
make no findings about the constitutional adequacy of ICE's initial
determination in issuing an NTA. Rather, the probable cause inquiry
imposed by the Court here only concerns an IJ's initial
determination whether the Government's evidence supports a finding
that the alien is subject to Section 1226(c)'s mandatory detention.


Plaintiffs argue that the probable cause standard does not prevent
the mandatory detention of an immigrant who presents a strong legal
argument that his/her conviction does not render him/her
deportable. However, as the Court have found, the probable cause
standard only speaks to the Government's initial burden. Rather,
substantively, Plaintiffs' argument goes to the alleged
inadequacies of the Joseph hearing as a whole, which includes the
burden that the aliens have at the next stage of the hearing
whether the Government is substantially unlikely to prevail at the
merits hearing violates due process. I turn to that question next.

There is no dispute that the alien bears a high burden of proof at
a Joseph hearing. Plaintiffs argue that such a burden should not
survive constitutional scrutiny. However, in light of the
imposition of a probable cause inquiry as the Government's initial
burden at a Joseph hearing, the Court do not find that Plaintiffs'
subsequent burden at the Joseph hearing violates due process. On
this particular inquiry, the Court must balance the interest of the
Government against the liberty concerns of the alien. There is no
doubt that Congress has a compelling governmental interest in
regulating, and the authority to regulate, the conduct of aliens.


In sum, the Court grants in part Plaintiffs' summary judgment
motion by imposing a probable cause standard on the IJ's initial
determination of whether the Government has a sufficient basis to
detain individuals under Section 1226(c). At that juncture of the
proceedings when probable cause is obtained and when the alien has
the opportunity to object to the bases for his or her mandatory
detention, the alien will have received adequate due process under
the law. The Court grants in part the Government's motion in this
context and dismiss Plaintiffs' claim that the Joseph hearing, as a
whole, violates due process.

Injunctive Relief

The Government argues that under 8 U.S.C. Section 1252(f)(1), the
Court is barred from granting injunctive relief to the putative
class of plaintiffs even in the event that the Court finds they
have been harmed, because Section 1252(f)(1) bars courts other than
the Supreme Court from enjoining or restraining the operation of
Section 1226(c).  

Plaintiffs, however, argue that they do not seek to enjoin or
restrain the operation of Section 1226(c), but rather request that
the Government be enjoined from violating or misapplying the
statute. On this issue, the Court has already considered and
addressed the Government's position.

In the March 14th opinion, the Court stated, in focusing on the
nature of Plaintiffs' challenge which, again, is based on the claim
that the Government's current mandatory detention procedures
violate the INA it does not appear that Section 1252(f)(1)
precludes Plaintiffs from pursuing injunctive relief.  

Plaintiffs are not challenging mandatory detention per se,
acknowledging that such a challenge is not available in light of
the Demore decision. Instead, Plaintiffs question the
constitutional adequacy of the Joseph hearing and related
procedures meant to ensure that the Government mandatorily detains
only those aliens who should be detained under Section 1226(c). In
light of this, and given the Government's cursory treatment of this
issue and the lack of authority to support its position, the Court
declines to dismiss Plaintiffs' claims for injunctive relief at
this point. In any event, Plaintiffs clearly may seek class-wide
declaratory relief without running afoul of Section 1252(f).  

In asking the Court to rule otherwise, the Government has not
presented any bases to disturb my previous reasoning in this
context. Therefore, the Government's argument is rejected.
As a result of my findings herein, during a custody redetermination
hearing, i.e., Joseph hearing, the Government must initially
satisfy an immigration judge that there is probable cause to find
that that a detained alien falls within the mandatory detention
requirements under Section 1226(c).

On a final note, there is no doubt that the current immigration
climate has led some aliens, particularly those who are in the
United States legally and have been in this country for many years,
i.e., legal permanent residents as are the Named Plaintiffs here,
to be wary of their status. More and more immigrants have resorted
to challenging, in courts, certain policies and laws in order to
defend their asserted rights to remain in this country. Indeed, the
mandatory detention scheme under Section 1226(c) and the Supreme
Court decisions upholding various aspects of that statute have had
a deleterious effect on the aliens who are detained by ICE. The
Court is well aware of these potentially harsh consequences and
that there may be better options to treat these individuals;
nonetheless, having survived constitutional muster, the appropriate
forum to address Section 1226(c) is Congress.

The Court decides the parties' summary judgment motions as follows:
both parties' summary judgment motions are GRANTED in part and
DENIED in part as to Plaintiffs' claim related to the
constitutionality of the Joseph hearing; specifically, the Court
issues a class-wide injunction that directs the Government to
initially satisfy an immigration judge that there is probable cause
to find that a detained alien under Section 1226(c) falls under the
mandatory detention requirements under that statute. The
Government's motion is GRANTED as to all other claims, including
Plaintiffs' constitutional challenge to a lack of contemporaneous
verbatim records in Joseph hearings.

A full-text copy of the District Court's September 3, 2019 Opinion
is available at  https://tinyurl.com/y5gj7nvx from Leagle.com.

NEVILLE SUKHU, Petitioner, represented by LAWRENCE S. LUSTBERG --
llustberg@gibbonslaw.com -- GIBBONS, PC.

BRIAN ELWOOD, in his/her official capacity as Warden, MONMOUTH
COUNTY CORRECTIONAL FACILITY, SCOTT A. WEBER, in his official
capacity as Newark Field Office Director for Detention and Removal,
JOHN T. MORTON, in his official capacity as Acting Assistant
Secretary of U.S. Immigration and Customs Enforcement, JANET
NAPOLITANO, in her official capacity as the Secretary of the U.S.
Department of Homeland Security, ERIC HOLDER, in his official
capacity as Attorney General of the U.S. Department of Justice,
JOHN TSOUKARIS, in his official capacity as Field Office Director
for Enforcement and Removal Operations, Newark Field Office of U.S.
Immigration and Customs Enforcement, CHRISTOPHER SHANAHAN, in his
official capacity as Field Office Director for Enforcement and
Removal Operations, New York Field Office of U.S. Immigration and
Customs Enforcement, RAY SIMONSE, in his official capacity as
Acting Field Office Director for Enforcement and Removal
Operations, Newark Field Office of U.S. Immigration and Customs
Enforcement, ROBERT BIGGOTT, in his official capacity as Warden of
the Bergen County Jail, JOSEPH TRABUCCO, in his official capacity
as Director of the Delaney Hall Detention Facility, ORLANDO
RODRIGUEZ, in his official capacity as Warden of the Elizabeth
Contract Detention Facility, Warden ROY L. HENDRICKS, in his
official capacity as Warden of the Essex County Correctional
Facility & OSCAR AVILES, in his official capacity as Director of
the Hudson County Correctional Facility, Respondents, represented
by CRAIG WILLIAM KUHN, U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION,
DHRUMAN YOGESH SAMPAT, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION
OFFICE OF IMMIGRATION - DISTRICT COURT SECTION & STEFANIE NOTARINO
HENNES, U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION OFFICE OF
IMMIGRATION LITIGATION.

JUAN OSUNA, in his official capacity as Director of the Executive
Office of Immigration Review, Respondent, represented by CRAIG
WILLIAM KUHN, U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, DHRUMAN
YOGESH SAMPAT, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION OFFICE OF
IMMIGRATION - DISTRICT COURT SECTION & STEFANIE NOTARINO HENNES,
U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION OFFICE OF IMMIGRATION
LITIGATION.


NEW YORK: $5.6MM Job Discrimination Suit Deal Has Final Approval
----------------------------------------------------------------
In the case, Local 1180, Communications Workers Of America, AFL-CIO
et al., Plaintiffs, v. City Of New York et al., Defendants, Case
No. 1:17-cv-03048 (SDA) (S.D. N.Y.), Magistrate Judge Stewart D.
Aaron of the U.S. District Court for the Southern District of New
York granted the Plaintiffs' (i) motion for approval of a proposed
class settlement and (ii) motion for approval of service awards to
the named Plaintiffs, as well as the class counsel's attorneys'
fees.

On Dec. 14, 2016, Plaintiffs Local 1180, Communications Workers of
America AFL-CIO, Lourdes Acevedo, Nathia Beltran, Adrienne Reed, Jo
Ann Richards and Roseann Schembri, commenced an action in the
Supreme Court of the State of New York against the City of New York
and New York City Department of Citywide Administrative Services
("DCAS") by filing a Summons with Notice.  According to the Notice,
the claims asserted by the Plaintiffs were for intentional and
unintentional discrimination based on sex, gender and race, in
violation of various provisions of federal law, New York state law
and New York City law, including the federal Equal Pay Act and the
New York State Equal Pay Law.  On April 26, 2017, the Defendants
removed the action to the Court on the basis that it asserted
claims arising under federal law.

On May 11, 2017, a Complaint was filed in the action in the Court.
Certain of the Plaintiffs named in the Complaint were the same as
those named in the Summons with Notice.  The Complaint asserts
claims under the federal Equal Pay Act and the New York Equal Pay
Law.  The Complaint -- like the EEOC Charges -- alleges that the
City and DCAS engaged in discriminatory pay practices with respect
to the job title Administrative Manager NM.

On Aug. 21, 2017, a First Amended Complaint ("FAC") was filed on
behalf of the same Plaintiffs as named in the Complaint.  The FAC
adds a claim under Title VII.  On June 21, 2018, the Defendants
filed a motion for judgment on the pleadings, pursuant to Federal
Rules of Civil Procedure 12(c) and 12(h)(2)(B), for failure to join
an indispensable party, i.e., New York City Housing Authority
("NYCHA").

The Court denied the Defendants' motion for judgment on the
pleadings.  Over an extended period, both before and after the
filing and decision on the Defendants' Rule 12(c) motion, the
parties engaged in lengthy and difficult settlement negotiations.
At the conclusion of those negotiations, in February 2019, the
parties entered into a Stipulation of Class Action Settlement.

The Stipulation defines the Settlement Class as all people employed
by the City in the title of Administrative Manager, Non-Managerial
at any time during the period from Dec. 1, 2013 through April 30,
2017 in any agency, authority or other entity excluding only those
Administrative Managers who worked at New York Transit Authority.

Under the terms of the settlement, the City of New York agreed to
pay a total amount of $5,181,668.65, and NYCHA agreed to pay a
total amount of $454,015.35 ("Back Pay"), pursuant to the terms of
a side-NYCHA Memorandum of Agreement.  This Back Pay, totaling
$5,635,684.00, was to be used to pay legal fees and payment for
work done by the class members in the past.  The Defendants and
NYCHA also agreed to certain injunctive relief, including step
increases and changes in labor practices.

Pursuant to the settlement, all persons in the job title
Administrative Manager NM will receive a back pay award, as well as
a contribution to their annuity fund, based upon months of service
during the class period.  White females, nonwhite males and
nonwhite females in the job title will receive greater back pay
awards than white males based upon calculations performed by Thomas
Econometrics Inc. of the disparate pay received by these groups
during the class period.

With respect to attorneys' fees, the Stipulation provided that,
subject to Court approval, the Defendants will pay directly the sum
of $300,000 towards the Plaintiffs' legal fees and costs incurred
by Local 1180 in pursuit of the claims filed at the EEOC, based on
billing records submitted to the Court.  The Stipulation also
provided that, subject to Court approval, the Class Counsel will
file an application to recover legal fees and costs for work done
on behalf of the Settlement Class in the action of not more than
25% of the Back Pay award.

The Stipulation also calls for service award payments in the amount
of $1,000 to be made by the City to each of the named Plaintiffs,
i.e., Acevedo, Andrews, Beltran, Reed and Reeves.

Pursuant to the Stipulation, RG2 Claims Administration, LLC was to
be appointed as the Claims Administrator.  The Defendants agreed to
pay up to $20,000 for the retention of the Claims Administrator.

On April 12, 2019, the Court entered an Order which, among other
things, conditionally approved the terms of the parties'
Stipulation; conditionally certified the Settlement Class; approved
the form of notice and notice requirements to members of the
Settlement Class; and scheduled a hearing to consider the fairness,
the reasonableness and adequacy of the proposed settlement.

The Notices were sent on May 13, 2019 to the identified class
members.  A website providing information about the settlement was
made available to the public on May 3, 2019.

On June 28, 2019, the Plaintiffs filed a motion for attorneys'
fees, seeking payment of the attorneys' fees contemplated by the
Stipulation -- i.e., $300,000 from the Defendants related to the
EEOC claims and $1,408,921 (which represents 25% of the Back Pay)
from the Back Pay award.

The Fairness Hearing was held on Aug. 7, 2019.

Magistrate Judge Aaron granted final approval of the class
settlement.  He approved the Stipulation of Settlement and will
become effective the day after any and all appeals are finally
resolved in favor of final approval or, if there are no appeals,
upon expiration of the time to file a notice of appeal.

The Magistrate certified the Class and approved the Class
Settlement as fair, adequate and reasonable.

He approved the $1,000 service award payment to each of Acevedo,
Andrews, Beltran, Reed and Reeves, and these amounts will be paid
by the Claims Administrator upon the Effective Date.

The Judge awarded attorneys' fees in the total amount of $1.5
million, payable as follows: $300,000 will be paid directly by the
Defendants to The Kurland Group upon the Effective Date, and $1.2
million will be paid out of the Back Pay award by the Claims
Administrator to The Kurland Group upon the Effective Date.

The sum of $20,000 will be paid by the Defendants to the Claims
Administrator upon the Effective Date.

Upon the Effective Date, as set forth in the Stipulation of
Settlement, the Claims Administrator will effectuate distribution
of the settlement funds to the eligible Settlement Class Members in
accordance with the terms of the Stipulation of Settlement, and all
members of the Settlement Class will be bound by all the terms,
conditions and obligations of the Stipulation of Settlement.

The Judge dismissed the action with prejudice as to the Settlement
Class, but the Court will retain exclusive and continuing
jurisdiction to interpret and enforce the terms, conditions and
obligations of the Stipulation of Settlement.

A full-text copy of the Court's Aug. 7, 2019 Opinion, Order &
Judgment is available at https://is.gd/ojl8Xo from Leagle.com.

Local 1180, Communications Workers Of America, AFL-CIO,
individually on and on behalf of its members, Lourdes Acevedo, on
behalf of themselves and all other similarly-situated individuals,
Nathia Beltran, on behalf of themselves and all other
similarly-situated individuals, Adrienne Reed, on behalf of
themselves and all other similarly-situated individuals, Lynette
Andrews & Rose Reeves, Plaintiffs, represented by Yetta G. Kurland
-- info@kurlandgroup.com -- The Kurland Group & Erica Tracy Kagan,
The Kurland Group.

City Of New York & Department of Citywide Administrative Services,
Defendants, represented by Eric Jay Eichenholtz, NYC Law
Department, Office of the Corporation Counsel & Donna Anne Canfiel,
New York City Law Dept.

Deborah Bowman & Debra Poe, Intervenor Plaintiffs, represented by
Robert John Valli, Jr. -- rvalli@vkvlawyers.com -- Valli Kane &
Vagnini, LLP.


NEW YORK: BOD Files 2 Appeals in Gulino Suit to 2nd Circuit
-----------------------------------------------------------
Defendant Board of Education of the City School District of the
City of New York filed appeals from the District Court's judgment
entered on June 6, 2019, in the lawsuit styled Gulino, et al. v.
Board of Education, et al., Case No. 96-cv-8414, filed in the U.S.
District Court for the Southern District of New York (New York
City).

The Plaintiffs originally filed a class action complaint on
November 8, 1996, alleging that the LAST-1 exam violated Title VII.
The Plaintiffs, a group of African-American and Latino teachers in
the New York City public school system, alleged that the Defendant,
the Board of Education of the City School District of the City of
New York, violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. Section 2000e et seq., by requiring the Plaintiffs to pass
certain racially discriminatory standardized tests in order to
obtain a license to teach in New York City public schools.[BN]

The appellate cases brought before the United States Court of
Appeals for the Second Circuit are:

-- Gulino, et al. v. Board of Education, et al., Case No. 19-2707
-- Gulino, et al. v. Board of Education, et al., Case No. 19-2712

Plaintiff-Appellees Mary Strawter-Merritt and Luis Munoz are
represented by:

          Joshua S. Sohn, Esq.
          STROOCK & STROOCK & LAVAN LLP
          180 Maiden Lane
          New York, NY 10038
          Telephone: (212) 806-1245
          E-mail: jsohn@stroock.com

Defendant-Appellant Board of Education of the New York City School
District of the City of New York is represented by:

          Zachary W. Carter, Esq.
          NEW YORK CITY LAW DEPARTMENT
          100 Church Street
          New York, NY 10007
          Telephone: (212) 356-1000
          E-mail: zcarter@law.nyc.gov


OCCIDENTAL CHEM: Chavez Stayed Pending Certification of Questions
-----------------------------------------------------------------
In the case, TOBIAS BERMUDEZ CHAVEZ, GERARDO ANTONIO FONESCA
TORRES, FRANKLIN GUILLEN SALAZAR, GARCIA MONTES JOSE GABINO,
MARIANO DE LOS ANGELES PIZARRO, ANTONIO OSORNO OSORNO, EUSEBIO
PEREZ DINARTES, ANGEL NAPTALI AGILA SALINAS, JOSE VICENTE CAMPOS
DEL PESO, GABRIEL RODOLFO CAMPOVE ARCE, JOSE ANTONIO E. ESPINOZA,
MANUEL ISAIAS ESTRADA MOSQUERA, PEDRO RAMON GARCIA VILLON, MANUEL
JESUS INGA DOMINGUEZ, JOSE VIRGILIO LOPEZ CORREA, JUAN BAUTISTA
NORIEG MOREIRA, ANGEL RAFAEL ROMERO CASTRO, JULIAN GONZALO SUAREZ
DEL ROSARIO, SIXTO TORRES FARIAS, TEODORO FERNANDO UNAMUN CORONEL,
IDELFONSO ARAUZ ARAUZ, HECTOR ARCIA, SANTOS CAMARENA-CABALLERO,
FULVIO CESAR CHAVEZ SUIRA, JOSE ANTONIO GONZALE HERNANDEZ, VALENTIN
MONTERO MENDEZ, JUSTO GERMAN OPORTO VILCHEZ, JULIO SEVILLA FLORES,
FELIX VARGAS RODRIGUEZ, LEOCADIO ZURDO AMADOR, JULIO ABREGO ABREGO,
BERNARDO ABREGO JORIETO, SIMON ABREGO PINEDA, ONCHI ABREGO
QUINTERO, DILVIO ALVAREZ MORENO, JUAN CHOLY APARICIO, FRANCISCO DEL
SOCORRO BAT MORA, CELIO BONILLA VALDEZ, PEDRO BRICENO ESCALANTE,
SANTIAGO CASTILO CASTILLO, LIBERATO CASTILO CASTILLO, GERARDO
DELEON ZAPATA, ABNEGO GUILLERMO DUGEL WILLIAMS, FELICIMO DUGUEL
MICHI, MANUEL GONZALES SANCHEZ, ERNESTO GUADAMUZ, HILARIO JULIAN
MILTON, RICARDO ADOLFO MALDONAD SMITH, JOSE MIRANDA NICO, PANCHO
MOLINA ACUNA, RAMON ABREGO, LORENZO MORALES MORALES, JULIO MORENO
MONTEZUMA, MARIO MUNOZ SANTOS, ALEJANDRO PALACIO PINEDA, GENITO
QUINTERO GONZALEZ, GREGORIO ELLINGTON, DIONICIO SANTIAGO ABREGO,
SIMON SANTOS VILLAGRA, JULIO SANTOS SANTOS, NAPOLEON SERRANO NITI,
VICTORIANO SERRANO CHICO, SAMUEL SMITH SMITH, SAMUEL TAYLOR ERA,
DEMETRIO WILLIAMS JIMENEZ, SEBASTIAN WILLIAMS MIGAR, ALVARADO
ALFARFO MIGUEL FRANCISCO, EDGAR ARROYO GONZALEZ, MARCELO COREA
COREA, JOSE DAIZ BENAVIDEZ, GONZALEZ MARIN MARVIN, MIGUEL ANGEL
MORALES GUZMAN, RODRIGO QUIROS CHAVARRIA, GUILLER SANDRE REYES
MORA, VEGA UGALDE NORMAN, FLORENTINO GILBERTO ALCIBA MONTESARRATE,
TOMAS GILBERTO ASUNCI QUIMI, ODILO CASTRO LOPEZ, JOSE SANTIAGO LOJA
ALVARADO, RICARDO ALBERTO ORRALA RAMIREZ, JOSE NICANOR PACHECO
URGILES, LUIS ALFONSO PALADIN ILLESCAS, MANUEL JOSE PORRAS ALVAREZ,
JOSE LEONCIO PUCHA VILLAMAGUA, LEOPOLDO MAURICIO QUEZAD VITONERA,
GERMASN ELEUTERIO RAMIR OYOLA, EUGENIO DE JESUS VIVAR SANCHEZ,
ESTEBAN GARCIA ACOSTA, MARIANO GONZALEZ PITTI, HECTOR GUTIERREZ
VICTORIA, WILLFREDO MIRANDA PATINO, JUAN DEDIOS QUINTERO, MARIO
REYES SALDANA, DANIEL RODRIGUEZ MADRID, ARCENIO RODRIGUEZ GALLARDO,
FERMIN ROMERO DE LEON, JAVIER ENRIQUE RUBIO MORALES, MARGARITO
SALINAS MOJICA, BASILIO SALINAS MOJICA, LINO VILLARREAL CONCEPCION,
JORGE LUIS AGUILAR MORA, CARLOS AGUIRRE FLORES ALVAREZ, JUAN JOSE
ARGUELLO JIMENEZ, JOSE BUSTOS OSES, RAFAEL BUSTOS BUSTOS, GERMAN
FALLAS HERRERA, ELIZONDO GUARIN EDUARDO, FEDERICO CLEVER MONTERO
SALAS, JULIAN ALVAREZ JOVINO, NERTOR EVELINO CACAY CORDOVA, JOSE
DARIO CHICA ROMERO, MARIANO CRUZ JIMENEZ GUANOQUIZA, ALCIDES
HUMBERTO LUPU REYES, MANUEL BENIGNO ORTIS, MIGUEL ANGEL QUITO
AREVALO, GREGORIO JUAN TORRES TENESACA, FRANCISCO OSWALDO VILLACR
MENDOZA, EULOGIO APOLOGIO ZAMBRA OTERO, ALCIDES BAULES RODRIGUEZ,
LAUDINO CABALLERO RIOS, AGRIPINO CAMARENA CEDENO, DOMINGO CASTILLO
MORALES, DANIEL CENSION CAMANO, DANIEL ESPINOSA MITRE, OSCAR ALEXIS
GANTES ARAUZ, CESAR AUGUSTO GONZALE CABALLERO, EDUARDO GONZALEZ
CABALLERO, ENEDICTO JIMENEZ MIRANDA, RAFAEL MARTINEZ GONZALEZ,
AURELIO MIRANDA DIAZ, MARCOS MORALES GUTIERREZ, ABRAHAM MORENO
CONCEPCION, JUAN ADOLFO OLIVERO MAGUE, LEOPOLDO PENA SANJUR,
PAULINO PITTY SANCHEZ, LUIS ENRIQUE NAVARRO QUINTERO, CATALINO
ROSALES PINEDA, NICOLAS SANTOS MONTENEGRO, CATALINO SERRUD, SANTOS
TORRES PINZON, AQUILINO VIGIL SANCHEZ, EDWIN AGUERO JIMENEZ, JORGE
AGUERO RETANA, ALBERTO CONEJO CHACON, DIDIER CORDERO CISNEROS,
ESTANISLAO CRUZ CRUZ, MIGUEL ANTONIO DIAZ CORDERO, DOGABERTO
ESQUIVEL VALDELOMAR, JOSE GAMBOA CASTILLO, MARCOS GOLUBOAY MEJIAS,
ROGER ANTONIO LOPEZ ZAMORA, RUFINO MATARRITA MORENO, JOSE FABIO
NUNEZ CASTRO, CARLOS LUIS PEREIRA OROZCO, FRANCISCO PEREIRA
RAMIREZ, CARLOS MANUEL QUIROS ZUNIGA, WILLIAM FELICIANO RODRIGUEZ,
JOSE ANGEL ROJAS BARQUERO, HERNAN SOLANO CASTRO, RAFAEL SOLANO
SABORIO, MARIO TORRES MORA, RAFAEL VALDERRAMA GRANADOS, GREIVIN
VALENCIA LOPEZ, MELECIO VARELA SOTO, VICTOR VARGAS ARIAS, NIXON
MODESTO ALVARAD VASQUEZ, ROBERTO WILLIAM BARONA BENITES, LAURO
OLMEDO CHACON QUICHIMBO, FRANCISCO DOMINGO CONTRER ESPINOZA,
EPIFANIO ARCHIBALDO CORN LEON, MANUEL GUAICHA CARDENAS, JUAN DE
JESUS HUERTA MOSQUERA, MIGUEL ANGEL INIGUEZ OCHOA, HUGO EBERIO LEON
VELEZ, MILTON MEDARDO MAZA VIVANCO, ROSARIO AVELINO NICANOR
VIRGILIO, GALO MIGUEL ORBE VALENCIA, JOSE NICANOR PACHECO URGILES,
ERICK FRANKLIN PALOMI ROMERO, ANGEL RAFAEL ROMERO CASTRO, LUIS
VINICIO SALVATI VILLA, MIGUEL ANGEL SARAGURO, JOSE FERNANDO SARMIE
CABRERA, LUIS GILBERTO VASQUE LOPEZ, EUGENIO APOLINARIO VILL
PRIMITIVO, MAURO GREGORIO ZERDA GUERRA, BELISARIO ATENCIO MUNOZ,
LUIS ALBERTO BARRIA ARAUZ, BENEDICTO CORELLA VASQUEZ, HUMBERTO DEL
CID QUINTERO, ABEL GALLARDO CONCEPCION, ALCIBIADES GOMEZ QUIEL,
CIRO GUTIERREZ CORTEZ, SALVADOR MILLAN PENALBA, MANUEL MAYORGA
MOREDIBU, FELIX ANTONIO QUIROZ MORANTE, EMILIANO VEGA MORALES,
GONZALEZ ARAYA FRANKLIN, GERMAN EDUARDO BRAVO VALDERRAMOS, EDWIN
CERDAS MASIS, JORGE LUIS CORDERO BAQUERO, JOHNNY ESPINOZA GAMBOA,
ESNEY HERNANDEZ FAJARDO, JIMENEZ RAMIREZ GILBERTO, ALVARADO
RODRIGUEZ WILBERT, JOSE MANUEL SALAZAR BRENES, AUDIT VARGAS ROBLES,
ELVIN VARGAS BLANCO, ROLANDO VILLEGAS JIMENEZ, ELEVIO VINDAS
ZAMORA, DOUGLAS ROLANDO SANCHEZ, VICENTE BARRIA ARAUZ, GENARO
BONILLA QUINTERO, NOEL ENRIQUE VALDES RODRIGUEZ, MARIO ESTEBAN
CACERAS HERNANDEZ, TOMAS ALBERTO CEDENO RODRIGUEZ, WILFREDO GOMEZ
VARGAS, EVIDELIO GONZALEZ ACOSTA, EDWIN ENUVIN GUERRA GONZALEZ,
JUAN DEDIOS BAUTISTA SANCHEZ, RONALDO MORALES VARGAS, LIONEX
MORALES MONTENEGRO, ALBERTO PINEDA MARQUINEZ, RAFAEL PINEDA
MARQUINEZ, FELIX ANTONIO PINEDA ESPINOSA, ERICK ELIAS PINEDA
JURADO, PABLO RIVERA BUICOBO, ISRAEL SANCHEZ GONZALEZ, ADOLFO VEGA
GUERRA, Plaintiffs-Appellees, v. OCCIDENTAL CHEMICAL CORPORATION,
INDIVIDUALLY AND AS A SUCCESSOR TO OTHER OCCIDENTAL CHEMICAL
COMPANY OTHER OCCIDENTAL CHEMICAL AGRICULTURAL PRODUCTS INC. OTHER
HOOKER CHEMICAL AND PLASTICS OTHER OCCIDENTAL CHEMICAL COMPANY OF
TEXAS OTHER BEST FERTILIZER COMPANY, Defendant-Appellant, Docket
No. 18-1120-cv (2d Cir.), Judge Robert D. Sack of the U.S. Court of
Appeals for the Second Circuit.

The appeal presents two state-law questions that neither the Court
nor New York's courts have addressed: (1) whether New York law
recognizes "cross-jurisdictional class action tolling," i.e.,
tolling of a New York statute of limitations by the pendency of a
class action in another jurisdiction; and (2) whether a non-merits
dismissal of class certification can terminate class action
tolling, and if so, whether the Orders at issue, which include a
"return jurisdiction" clause, did so where the Plaintiffs filed a
motion to reinstate their claims within six months of the case's
dismissal.

The Plaintiffs are agricultural workers from Costa Rica, Ecuador,
and Panama, who allegedly suffered adverse health effects from
exposure to the pesticide dibromochloropropane ("DBCP") between the
1960s and the 1980s, while working on banana plantations in Central
and South America.  In 2012, the Plaintiffs filed a putative class
action in the U.S. District Court for the District of Delaware
against DBCP manufacturers and distributors, including Occidental,
as well as companies that owned or operated the farms where the
Plaintiffs worked.  Their claims against Occidental were
transferred by the Delaware district court to the Southern District
of New York in May 2017.

Occidental filed a motion for judgment on the pleadings, arguing,
inter alia, that the Plaintiffs' claims were time-barred under New
York's three-year statute of limitations for personal-injury suits.
The district court (Paul A. Engelmayer, Judge) denied Occidental's
motion, concluding that the Plaintiffs' claims were tolled between
1993 and 2010 because of the pendency of a putative class action
filed in Texas state court in 1993 ("Texas Action").  The district
court's decision was based on its view that the New York State
Court of Appeals would likely (1) permit "cross-jurisdictional
tolling," the tolling of claims in New York during the pendency of
a class action filed in another jurisdiction; and (2) decide that
the dismissal of the Texas Action on the basis of forum non
conveniens and the denial of class certification as moot did not
terminate class action tolling.

On appeal, Occidental challenges both conclusions.  It argues that
although New York courts have adopted the class action tolling
doctrine established under different circumstances in American Pipe
Construction Co. v. Utah, the New York Court of Appeals likely
would not apply that doctrine in the cross-jurisdictional context.
In the alternative, Occidental asserts that even if New York law
permits cross-jurisdictional class action tolling, the Plaintiffs'
claims would still be untimely because the 1995 dismissal of the
Texas Action on the grounds of forum non conveniens terminated any
such tolling.  The Plaintiffs, unsurprisingly, disagree.

In light of the dearth of precedential opinions, and the
potentially far-reaching consequences for New York courts of the
answer to these questions, Judge Sack elects not to attempt to
resolve them in the first instance, but instead to invite the Court
of Appeals to address them if it so wishes.  

He declines to determine, at least at this juncture, whether New
York law recognizes cross-jurisdictional tolling and, if so,
whether the 1995 Orders terminated tolling in the case.  He finds
that the district court lacked the authority to tender the issues
of New York law raised before it to the New York Court of Appeals;
the Appellate Court, though, has the ability to do so.  The
principal questions on appeal have important implications that have
yet to be addressed by New York's appellate courts.  

The Judge therefore certified the following two questions to the
Court of Appeals and stay resolution of the case in the interim:
(i) Does New York law recognize cross-jurisdictional class action
tolling, as described in the Opinion? and (ii) Can a non-merits
dismissal of class certification terminate class action tolling,
and if so, did the Orders at issue do so?

Should the New York Court of Appeals choose to grant certification
to either or both questions, then it is, of course, invited to
address any other issues it deems germane or to reframe the
question or questions as it deems appropriate.  Consistent with the
Court's prior practice, the Judge does not intend to limit the
scope of the Court of Appeals' analysis through the formulation of
our question[s], and invites the Court of Appeals to expand upon or
alter th[ese] question[s].

Pursuant to N.Y. Comp. Codes R. & Regs. tit. 22, Section 500.27,
and Second Circuit Rule 27.2, Judge Sack ordered that the Clerk of
the Court transmits to the Clerk of the New York Court of Appeals
his Opinion as the Court's certificate, together with a complete
set of the briefs, appendices, and record filed by the parties in
the Court.  He directed the parties to bear equally any fees and
costs that may be imposed by the New York Court of Appeals in
connection with the certification.  The panel will retain
jurisdiction of the appeal after disposition of the certification
by the New York Court of Appeals.

A full-text copy of the Second Circuit's Aug. 7, 2019 Opinion is
available at https://is.gd/MfI4Qg from Leagle.com.

CTS INC. OTHER HOOKER CHEMICAL AND PLASTICS OTHER OCCIDENTAL
CHEMICAL COMPANY OF TEXAS OTHER BEST FERTILIZER COMPANY,
Defendant-Appellant.

JOHN P. ELWOOD -- jelwood@velaw.com -- Vinson & Elkins LLP,
Washington, DC (D. Ferguson McNiel, III -- fmcniel@velaw.com --
Vinson & Elkins LLP, Houston, TX, Timothy Jay Houseal --
thouseal@ycst.com -- Young Conaway Stargatt & Taylor, LLP,
Wilmington, DE, on the brief), for Defendant-Appellant.

JONATHAN S. MASSEY -- jmassey@masseygail.com -- Massey & Gail LLP,
Washington, DC (Paul J. Berks -- pberks@masseygail.com -- Massey &
Gail LLP, Chicago, IL, Scott M. Hendler , Hendler Flores Law PLLC,
Austin TX, on the brief), for Plaintiffs-Appellees.


OHIO STATE: 10th Cir. Dismisses Oakley Appeal
----------------------------------------------
The Court of Appeals of Ohio, Tenth District, Franklin County,
issued a Decision dismissing the Appeal in the case captioned James
Oakley et al., Plaintiffs-Appellants, v. The Ohio State University
Wexner Medical Center, Defendant-Appellee. No. 18AP-843. (10th
Cir.).

Plaintiffs-appellants, a proposed class led by James Oakley and
Channing Capehart, appeal from a judgment entry of the Court of
Claims of Ohio denying their motion for conditional class
certification in their suit against defendant-appellee.

Appellants filed a collective action complaint in the trial court
on behalf of themselves and all other similarly situated hourly,
non-exempt employees of OSUWMC. The complaint alleged OSUWMC was in
violation of the Fair Labor Standards Act (FLSA) and owed
appellants unpaid wages stemming from its practice of rounding
clock-in and clock-out times. Additionally, appellants asserted a
Civ.R. 23 class action against OSUWMC due to the same rounding
practice, alleging a violation of the Ohio Minimum Fair Wage
Standards Act, codified at R.C. 4111.03.

Appellants filed, a motion for conditional class certification
requesting the trial court conditionally certify the class of all
current or former hourly, non-exempt employees of OSUWMC employed
between October 18, 2014 and the present, who are or were subject
to the Clock In and Clock Out Rounding Policy.

After the parties completed briefing on the issue of conditional
class certification but before the magistrate had issued a
recommendation on appellants' motion, appellants sought leave to
file a second notice of supplemental evidence for the magistrate to
consider in deciding whether to grant conditional class
certification. The proposed supplemental evidence consisted of a
sampling of time records and an analysis of 39 different hourly,
non-exempt employees. OSUWMC filed a substantive response in
opposition.

The magistrate recommended the trial court deny appellants' motion
for conditional class certification on the grounds that appellants
failed to present evidence that conduct in conformity with both the
rounding and the attendance policy proves a violation as to all the
plaintiffs.

Appellants timely appeal.  

Assignments of Error

Appellants assign the following errors for the Court's review:

   1. The trial court erred by failing to consider the additional
evidence in appellants' second notice of filing supplemental
evidence.

   2. The trial court erred by failing to consider the additional
evidence in appellants' objections to the magistrate's decision.

   3. The trial court erred by denying appellants' motion for
conditional certification.

In order to be included in a collective action under the FLSA,
putative class members must opt into the class. As a means of
determining whether a suit should properly continue as a collective
action under the FLSA, a court must determine whether prospective
opt-in plaintiffs are similarly situated for purposes of the FLSA
requirements.  

Generally, courts use a two-stage approach to make the similarly
situated determination. Under the first stage, which determines
whether conditional class certification is appropriate, courts
utilize a fairly lenient standard' requiring only a modest factual
showing that the plaintiffs' positions are similar to those of
other employees. This first stage, potentially resulting in
conditional class certification, is also known as the notice stage.


Under the second stage, a court engages in a thorough review of the
record after discovery is completed and makes a final determination
on whether potential opt-in class members are similarly situated
within the meaning of the FLSA. The second stage, resulting in the
ultimate determination of whether class certification is
appropriate, employs a stricter standard to determine whether the
opt-in plaintiffs are truly similarly situated.
  
Pursuant to R.C. 2505.02(B), an order is a final order that may be
reviewed on appeal when it is an order that determines that an
action may or may not be maintained as a class action.

Here, the trial court denied appellants' motion for conditional
class certification under the FLSA. Because of the two-stage
framework for collective action certification under the FLSA, the
trial court reached only the first stage of the inquiry and did not
make a final determination on whether the action may be maintained
as a class action.  

Under the terms of R.C. 2505.02(B)(5), only an order that
determines whether an action may or may not be maintained as a
class action is considered a final appealable order. The nature of
the two-stage framework means the trial court, during the first
phase, specifically reserves its ultimate determination on class
certification until the second stage.

Here, the trial court's decision did not determine whether the
action may or may not be maintained as a class action; instead, it
determined conditional class certification was not appropriate at
the time but specifically noted appellants could move again for
conditional certification, supporting its motion with additional
evidence. Thus, the Court concludes the trial court's decision
denying appellants' motion for conditional class certification does
not fall within the parameters of R.C. 2505.02(B)(5).  

R.C. 2505.02(A)(3) defines a provisional remedy as a proceeding
ancillary to an action, including, but not limited to, a proceeding
for a preliminary injunction, attachment, discovery of privileged
matter, suppression of evidence or prima facie showings with
respect to specified statutes. Assuming arguendo that an order
denying a motion to conditionally certify a collective action is a
provisional remedy within the meaning of the statute, the Court
concludes the trial court's decision here fails to satisfy the
first prong of R.C. 2505.02(B)(4) because it does not determine the
action with respect to the provisional remedy, nor does it prevent
a judgment in favor of the appealing party regarding the
provisional remedy.

As the Court noted above, the trial court specifically noted in its
decision denying conditional certification that appellants could
move for conditional certification again, supporting any future
motion with additional evidence. Thus, the trial court's September
26, 2018 decision is not a final appealable order within the
meaning of R.C. 2505.02(B)(4).

Thus, even though the trial court issued a nunc pro tunc entry to
include the Civ.R. 54(B) language in its September 26, 2018
decision, the order, for the reasons outlined above, is not a final
appealable order under R.C. 2505.02.  

The therefore lack jurisdiction to consider the appeal.

Based on the foregoing reasons, appellants do not appeal from a
final appealable order of the trial court, and this court lacks
jurisdiction to consider appellants' assignments of error.
Accordingly, the Court sua sponte dismiss appellants' appeal for
lack of jurisdiction. The Court similarly dismiss appellants' April
9, 2019 motion to supplement the record for lack of jurisdiction.

Appeal dismissed.

A full-text copy of the Tenth Circuit's September 3, 2019 Decision
is available at https://tinyurl.com/y3rse33n from Leagle.com.

On brief: Mansell Law, LLC, Gregory R. Mansell , and Carrie J.
Dyer,1457 S. High St
Columbus, OH, 43207 ; The Friedmann Firm LLC, Rachel A. Sabo , and
Peter G. Friedmann , 1457 South High Street, Columbus, OH 43207,
for appellants. Argued: Gregory R. Mansell.

On brief: Dave Yost , Attorney General, and Randall W. Knutti , for
appellee; Vorys, Sater, Seymour and Pease LLP, Robert N. Webner -
rnwebner@vorys.com - Mark A. Knueve - maknueve@vorys.com - Michael
J. Ball - mjball@vorys.com - and Natalia M. Cabrera -
nmcabrera@vorys.com - special counsel for appellee. Argued: Mark A.
Knueve.


OHIO: Martin Files Prisoner Civil Rights Suit
---------------------------------------------
A class action lawsuit has been filed against officers of the Ohio
Department of Rehabilitation and Correction. The case is styled as
Robert Martin, Similarly situated, Plaintiffs/Petitioners, v.
Warden Lyneal Wainwright, Jane Doe MCI Cashier, Kasey Plank MCI
Institutional Inspector, Kasey Plank MCI Institutional Inspector,
Jane Doe Secondary Inspectors, Kelly Riehle Assistant Chief
Inspector, N.P. Aduse Health Care Administrator, Reece Health Care
Administrator, John Doe Librarian, Defendants, Case No.
3:19-cv-02188-JGC (N.D. Ohio, Sept. 20, 2019).

The nature of suit is stated as Prisoner: Civil Rights.

Lyneal Wainwright is the Deputy Warden at Ohio Department of
Rehabilitation and Correction.[BN]

The Plaintiff appears pro se.

PALMS HOTEL: Fischler Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against The Palms Hotel, Inc.
The case is styled as Brian Fischler Individually and on behalf of
all other persons similarly situated, Plaintiff v. The Palms Hotel,
Inc., Defendant, Case No. 1:19-cv-05382 (E.D. N.Y., Sept. 20,
2019).

The Plaintiff filed the case under the Americans with Disabilities
Act.

The Palms is a boutique hotel in Ocean Beach on Fire Island which
offers luxurious accommodations in a relaxed and inviting
atmosphere.[BN]

The Plaintiff is represented by:

     Christopher Howard Lowe, Esq.
     Lipsky Lowe LLP
     420 Lexington Avenue, Suite 1830
     New York, NY 10170
     Phone: (212) 764-7171
     Email: chris@lipskylowe.com


PLATINUM RESTAURANTS: Court OKs Class Certification in Green
------------------------------------------------------------
The United States District Court for the Western District of
Kentucky, Louisville Division, issued a Memorandum Opinion and
Order granting Plaintiffs' Motion for Reconsideration in the case
captioned LAUREN GREEN, et. al., Plaintiff, v. PLATINUM RESTAURANTS
MID-AMERICA, LLC d/b/a EDDIE MERLOT'S PRIME AGED BEEF AND SEAFOOD.,
Defendant. Civil Action No. 3:14-CV-439-RGJ. (W.D. Ky.).

Plaintiffs brought this hybrid collective action and putative class
action against the Defendant, Platinum Restaurants Mid-America, LLC
(Platinum), for alleged violations of the Fair Labor Standards Act
(FLSA) and Kentucky wage and hour laws.  Among other alleged
Kentucky wage and hour law and FLSA violations, Plaintiffs claim
Platinum violated KRS 337.065 and KRS 337.385 by forcing Plaintiffs
to participate in a mandatory tip pool.

Based solely on the alleged illegal mandatory tip pool, Plaintiffs
seek class certification of All individuals who have been employed
by Defendant in its Louisville, Kentucky restaurant as servers,
cocktail servers, and/or bartenders, at any time since January 1,
2011.

Rule 23(a)

Numerosity

Rule 23(a)(1) requires that a class be so numerous that joinder of
all members is impracticable.  There is no strict numerical test
for determining impracticability of joinder.

Platinum does not contest numerosity as the proposed class includes
about 200 former and current Eddie Merlot's servers, cocktail
servers, and bartenders. The Court finds joinder of over 200
potential plaintiffs infeasible.

Thus, Plaintiffs meet Rule 23(a)(1)'s requirement.

Commonality

Rule 23(a)(2) requires that there are questions of law or fact
common to the class. Commonality requires the plaintiff to
demonstrate that the class members have suffered the same injury.

Relying on Whitlock v. FSL Mgmt., LLC, No. 3:10CV-00562-JHM, 2012
U.S. Dist. LEXIS 112859 (W.D. Ky. Aug. 10, 2012), Plaintiffs argue
that whether servers, cocktail servers, and bartenders needed to
participate in the tip pool is a common question of law or fact
with a common answer. Platinum argues that the evidence, including
the Plaintiffs' deposition testimony, shows that there is "no
common answer to the tip pool issue, and this case is
distinguishable from Whitlock."

There is a Common Answer to the Tip Pool Issue.

Platinum claims there is no common answer to whether participation
in the tip pool was a condition of employment because the
Plaintiffs admit to a wide variety of circumstances under which
they either retained their entire tip or shared it with other
members of the service team in percentages different from the tip
sharing arrangement offered by the restaurant. Platinum cites
Plaintiffs' depositions and tip pool spreadsheets that Platinum
management used at the end of each shift to calculate and record
the money contributed to the tip pool by each server, cocktail
server, and bartender.

Platinum argues Plaintiffs voluntarily decided how much to
contribute, if anything, to the tip pool, citing to tip adjustment
forms and the Plaintiffs' deposition testimony. Yet the record
suggests that Defendant only made those forms available after this
lawsuit was filed. Plaintiffs share the common contention that the
answer is yes and that they have all suffered the same resulting
damage. For that reason, the tip adjustment forms, and the
Plaintiffs' testimonies in which they admit to using them, do not
prevent commonality.

Second, Platinum argues that the Plaintiffs failed to provide a
common answer for why the tip pool spreadsheets reflected that they
shared their tips in varying percentages. According to Platinum,
without such a common answer the Plaintiffs' case is not capable of
classwide resolution. Even so, the Plaintiffs need no common answer
here.  .  

Whitlock is Persuasive

The Plaintiffs argue that this case is virtually identical to
Whitlock v. FSL Mgmt., LLC, No. 3:10CV-00562-JHM, 2012 U.S. Dist.
LEXIS 112859 (W.D. Ky. Aug. 10, 2012), in which certification was
granted by Judge McKinley. Defendant claims that this case is
Whitlock's opposite because plaintiffs there offered significantly
stronger evidence than Plaintiffs here, and Platinum's business
records of tip distribution combine with its written policy to
defeat commonality.

In Whitlock, employees of three Louisville nightclubs sued the
owners of those nightclubs, claiming that they were required to
work off-the-clock without pay, violating KRS Section 337.275. The
plaintiffs also claimed defendants forced them to participate in a
mandatory management-controlled tip pool, violating KRS Section
337.065. Plaintiffs sought class certification for all employees
who worked without pay. Plaintiffs also moved to certify a subclass
that included all employees required to participate in the tip
pool.

Both sides produced evidence. To support certifying the tip pool
subclass, plaintiffs produced ten employee affidavits, which stated
the respective employees had to participate in the tip pool.
Defendants maintained they never required plaintiffs to participate
in a tip pool and offered affidavits from current employees and
three former employees. The defendants also produced a written
company policy stating that participation in the tip pool was
voluntary.  

Platinum's argument that the Whitlock plaintiffs' evidence was
stronger because they supported their class claims with specific
evidence, like the minutes of the manager meetings is misguided.
The Whitlock plaintiffs did provide the court with minutes of
manager meetings. But those minutes only supported the plaintiffs'
claims that they were required to work off the clock, they had
nothing to do with the plaintiffs' tip pool subclass. The only
evidence mentioned by the Court about the tip pool subclass was the
ten employee affidavits. Thus, the Whitlock plaintiffs offered no
stronger evidence than the Plaintiffs offer here.

In fact, Plaintiffs here have offered even stronger evidence than
Whitlock. Along with the ten declarations mentioned above,
Plaintiffs also offer former manager Michael Manoocheri's
declaration, in which he states participation by servers, cocktail
servers, and bartenders in the tip pool was a condition of
employment at Eddie Merlot's.

Second, Platinum's tip spreadsheets do not combine with its written
policy to defeat commonality. Relying on California district court
opinions just like the Whitlock defendants Platinum argues that the
Plaintiffs limited anecdotal evidence about a de facto policy is
insufficient when compared to Platinum's written policy and tip
spreadsheets.  

To begin, California caselaw is not controlling, and this Court
finds it unpersuasive as the Whitlock court did. Furthermore, while
potentially relevant to the merits, some servers contributing
varying percentages of their tips to the tip pool has little to do
with commonality.

Ultimately, this case is analogous to Whitlock. More importantly,
whether Eddie Merlot's had an unofficial policy requiring its
servers, cocktail servers, and bartenders to participate in a tip
pool is a common question.

Thus, Rule 23(a)(2)'s commonality requirement met.

Typicality

Rule 23(a)(3) requires that the claims or defenses of the
representative parties are typical of the claims or defenses of the
class. Claims are typical when the class representative's claims
arise from the same events, practice, or conduct, and are based on
the same legal theory, as those of other class members.

Here, the Plaintiffs' claims are typical of the class because they
are based on the same legal theory Platinum violated KRS 337.065 by
requiring servers, cocktail servers, and bartenders to participate
in a tip pool. The Court has already addressed Platinum's argument
that Plaintiffs cannot establish a common policy in favor of their
Tip Pool Claim and found it lacking. If the fact finder determines
that Eddie Merlot enforced a mandatory tip pool, such a
determination would further the interest of each class member.

Thus, Rule 23(a)(3)'s typicality requirement is met.

Adequacy

Rule 23(a)(4) requires the representative parties will fairly and
adequately protect the interests of the class. Class
representatives must meet two criteria: (1) the representative must
have common interests with unnamed members of the class, and 2) it
must appear that the representatives will vigorously prosecute the
interests of the class through qualified counsel.

Comparing this case to Gillian v. Starjem Rest. Corp., 2011 U.S.
Dist. LEXIS 115833 (S.D.N.Y. Oct. 3, 2011), Platinum argues there
is a conflict between the servers and bartenders. In Gillian, two
restaurant servers sued their former employer, claiming that the
defendant violated New York labor law by requiring them to include
the restaurant's food expediter and kitchen stocker in an otherwise
valid tip pool.The plaintiffs moved to certify a class that
included busboys and food runners, even though the busboys and food
runners took turns working as the restaurant's food expeditor and
kitchen stocker. The Court denied the plaintiffs' motion for
certification because they sought relief that would adversely
affect some individuals they purported to represent. The Court
reasoned that since the stocker position is rotated among busboys
and since the expediter position is rotated among runners,
plaintiffs cannot fairly represent busboys and runners, because
busboys and runners also serve as stockers and expediters and thus
have an interest in their participation in the tip pool being
validated.

Comparing them to the Gillian busboys and food runners, Platinum
argues that the bartenders here have an interest in participating
in the tip pool and validating the tip pool.

The bartenders here are not like the busboys and food runners in
Gillian. Plaintiffs here are not seeking to exclude the bartenders
from an otherwise valid tip pool. Nor are Plaintiffs trying to
recover from the bartenders' tips paid to the bartenders from the
pool. Thus, Plaintiffs' claims, if successful, do not invalidate
the bartenders' past, present, or future participation in the tip
pool. Instead, if Plaintiffs prove the tip pool involuntary, the
bartenders, like the servers, receive back wages. As a result, the
bartenders', servers', and representative Plaintiffs' interests
align they wish the tip pool proven involuntary.

There is no conflict here.

Rule 23(a)(4)'s requirements are met.

Rule 23(b)

Rule 23(b) requires that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy.

As a result, to qualify for certification under Rule 23(b)(3), the
proposed class must satisfy a two-part test of commonality and
superiority and should only be certified if doing so would achieve
economies of time, effort, and expense.

Predominance

Subdivision (b)(3) of Rule 23 parallels subdivision (a)(2) of Rule
23 in that both require that common questions exist, but
subdivision (b)(3) contains a more stringent requirement that
common issues predominate over individual issues.  

To satisfy the predominance requirement in Rule 23(b)(3), a
plaintiff must establish that the issues in the class action that
are subject to generalized proof predominate over those issues that
are subject only to individualized proof.

Relying on England v. Advance Stores Co., 263 F.R.D. 423 (W.D. Ky.
2009), Platinum argues individual not common questions predominate
because Plaintiffs offer no evidence that the tip pool was
mandatory. In England, an auto-parts store employee brought class
claims against the store's parent company alleging an unofficial
policy required employees at various locations to work off the
clock and denied employees lunchbreaks.   

The purported class included employees from 86 stores with
different managers. As evidence, Plaintiff offered only his belief,
based on experience at a single store. The Court stated that
Plaintiff as a result will be forced to proceed store-by-store and
employee-by-employee to determine whether managers in the other 85
stores enforced the same unofficial policy. The court thus found
that individual issues would predominate and denied class
certification.

Here, instead of an ill-informed belief as in England, the
Plaintiffs have the testimony of at least 11 people, including a
former manager. Moreover, Plaintiffs claims implicate one store
with common management. Thus, unlike England, individual issues
need not predominate here.

Instead, a common question predominates here. Whether Eddie
Merlot's had a de facto policy requiring participation in the tip
pool is at the heart of this litigation. Some individual questions
will likely need to be answered as the litigation unfolds. But a
single common issue may be the overriding one in the litigation,
despite the fact that the suit also entails numerous remaining
individual questions.

In other words, individual questions do not preclude certification,
provided the common question predominates, like it does here.  

Therefore, Rule 23(b)(3)'s predominance requirement is met.

Superiority

The Court must consider the following factors to determine whether
a class action is the superior method for adjudicating the
controversy: (A) the interest of members of the class in
individually controlling the prosecution or defense of separate
actions (B) the extent and nature of any litigation concerning the
controversy already commenced by or against members of the class
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum and (D) the
difficulties likely to be encountered in the management of a class
action.

These factors support certification. First, the class members have
no interest in individually controlling the prosecution of their
claims. In fact, individual claims might be abandoned, given the
relatively meager individual damages at stake for some potential
class members. Second, while the Plaintiffs are involved in a FLSA
collective action concerning the same alleged conduct, this does
not prevent superiority.  Third, deciding whether there was an
unofficial policy requiring tipped employees to participate in a
tip pool would both reduce the range of issues and promote judicial
economy. Finally, although there are inherent difficulties in
managing a class action, those difficulties do not render class
action inappropriate.

Thus, Rule 23(b)'s superiority is met.

Plaintiffs motion for class certification is granted.  Plaintiffs'
counsel are appointed class counsel under Rule 23(g). The class is
defined as follows:

     All Servers, Cocktail Servers, and Bartenders employed by the
defendant in its Louisville restaurant since it opened on January
6, 2011.

A full-text copy of the District Court's September 3, 2019
Memorandum Opinion and Order is available at
https://tinyurl.com/y2deb79d from Leagle.com.

Lauren Green, Michael Parsley, Mary Ragsdale, Allen Gibson, Gary
Zeck, Ashley Kilkelly, Chris Stevenson, Chris Watson, Samantha
Williams, Dan Niemann, Sarah Height, Andrei Galvez, Michael David
Slattery, Billie Jo Simpson, Kyle M. Higgins, Jeremiah B. Magness,
Linette Harding, Lauren Grube, Heather Thomas, Leslie Russman,
Charlie Hart, Joseph Ellis Jackson, Jacob Englert, Darrin Szukis,
Mikel T. Williams, Shannon Loss, Dacia Sherrill, Martin Sivil,
Jessica Farrell Fryer, Sara M. Phillips, Daisy Baker, Tosha
Williams, also known as Tosha Etter, Melissa Hopf, Morgan S. Brush,
Todd Hawes & Steve Michalski, Plaintiffs, represented by Garry R.
Adams, Jr. , Adams Landenwich Walton PLLC 517 West Ormsby Avenue,
Louisville, KY 40203 & H. Wallace Blizzard, III -
wblizzard@wigginschilds.com - Wiggins Childs Pantazis Fisher &
Goldfarb, LLC.

Platinum Restaurants Mid-America, LLC, d/b/a Eddie Merlot's Prime
Aged Beef & Seafood, Defendant, represented by Jennifer L. Bame -
jbame@fbtlaw.com - Frost Brown Todd LLC, John T. Lovett -
jlovett@fbtlaw.com - Frost Brown Todd LLC, Kyle D. Johnson -
kjohnson@fbtlaw.com - Frost Brown Todd LLC & Tessa L. Castner -
tcastner@fbtlaw.com - Frost Brown Todd LLC.


QUICK WEIGHT LOSS: Wriley Files Fraud Class Suit in S.D. Florida
----------------------------------------------------------------
A class action lawsuit has been filed against Quick Weight Loss
Centers, LLC. The case is styled as Felicia Wriley individually and
on behalf of all others similarly situated, Plaintiff v. Quick
Weight Loss Centers, LLC, Defendant, Case No. 0:19-cv-62348-UU
(S.D. Fla., Sept. 20, 2019).

The nature of suit is stated as Other Fraud.

Quick Weight Loss Centers is a multi-state health and wellness
company that provides weight loss management services. The company
offers its program through both an in-center and digitally for
clients not located in geographies with center locations.[BN]

The Plaintiff is represented by:

     Andrew John Shamis, Esq.
     Shamis & Gentile, PA
     14 NE 1st Ave, Suite 1205
     Miami, FL 33132
     Phone: (305) 479-2299
     Fax: (786) 623-0915
     Email: ashamis@sflinjuryattorneys.com

          - and -

     Scott Adam Edelsberg, Esq.
     Edelsberg Law, PA
     1945 Biscayne Blvd. # 607
     Aventura, FL 33180
     Phone: (305) 975-3320
     Email: scott@edelsberglaw.com

          - and -

     Manuel Santiago Hiraldo, Esq.
     Hiraldo P.A.
     401 E. Las Olas Blvd. Ste 1400
     Fort Lauderdale, FL 33394
     Phone: (954) 400-4713
     Email: mhiraldo@hiraldolaw.com


RAINWATER LLC: Underpays Yoga Instructors, Arrington Alleges
------------------------------------------------------------
CHRISTINA ARRINGTON, individually and on behalf of all others
similarly situated, Plaintiff v. RAINWATER LLC, Defendant, Case No.
3:19-cv-08250-DMF (D. Ariz., Aug. 23, 2019) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.

The Plaintiff Arrington was employed by the Defendant as yoga
instructor.

Rainwater LLC offers fitness classes that practice various styles
and levels of yoga. [BN]

The Plaintiff is represented by:

          Bernard R. Mazaheri, Esq.
          MAZAHERI & MAZAHERI
          325 Shelby Street
          Frankfort, KY 40601
          Telephone: (602) 529-4935
          E-mail: bernie@thelaborfirm.com


RAYTHEON COMPANY: Faruqi & Faruqi Files Securities Class Action
---------------------------------------------------------------
Faruqi & Faruqi, LLP, on Aug. 14 disclosed that it has filed a
class action lawsuit in the United States District Court for the
District of Delaware, Case No. 1:19-cv-01423-RGA, on behalf of
shareholders of Raytheon Company ("Raytheon" or the "Company")
(RTN) who have been harmed by Raytheon's and its board of
directors' (the "Board") alleged violations of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
in connection with the proposed merger (the "Proposed Transaction")
of the Company with United Technologies Corporation ("UTC").

On June 9, 2019, the Board caused the Company to enter into an
agreement and plan of merger ("Merger Agreement") under which
Raytheon shareholders will have the right to receive 2.3348 shares
of UTC common stock for each share of Raytheon stock they own (the
"Merger Consideration").

The complaint alleges that the Proxy filed with the Securities and
Exchange Commission violates Sections 14(a) and 20(a) of the
Exchange Act because it provides materially incomplete and
misleading information about the Company and the Proposed
Transaction, including information concerning the Company's
financial projections and certain valuation analyses conducted by
the Company's financial advisors, on which the Board relied to
recommend the Proposed Merger as fair to Raytheon shareholders.

If you wish to obtain information concerning this action, you can
do so by clicking here: www.faruqilaw.com/RTN.  

Take Action

Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with
extensive experience in prosecuting class actions, and significant
expertise in actions involving corporate fraud.  Faruqi & Faruqi,
LLP, was founded in 1995 and the firm maintains its principal
office in New York City, with offices in Delaware, California,
Georgia, and Pennsylvania.

If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from August 14, 2019, the date of this notice.
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to do
nothing and remain an absent class member.  If you wish to discuss
this action, or have any questions concerning this notice or your
rights or interests, please contact:

         Nadeem Faruqi, Esq.
         James M. Wilson, Jr., Esq.
         FARUQI & FARUQI, LLP
         685 3rd Avenue, 26th Floor
         New York, NY 10017

         Telephone: (877) 247-4292
                    (212) 983-9330
         E-mail: nfaruqi@faruqilaw.com
                 jwilson@faruqilaw.com [GN]


RESIDENCE INN: 9th Cir. Vacates Sua Sponte Remand
-------------------------------------------------
The United States Court of Appeals, Ninth Circuit, issued an
Opinion vacating the District Court's Sua Sponte Remand of the
Action in the case captioned BLANCA ARGELIA ARIAS, individually and
on behalf of herself and others similarly situated,
Plaintiff-Appellee, v. RESIDENCE INN BY MARRIOTT, a Delaware
limited liability company; MARRIOTT INTERNATIONAL, INC., a Delaware
corporation, Defendants-Appellants. No. 19-55803. (9th Cir.).

Blanca Arias filed a putative class action against Residence Inn by
Marriott, LLC and Marriott International, Inc. (Marriott) in
California superior court, alleging that Marriott failed to
compensate its employees for wages and missed meal breaks and
failed to issue accurate itemized wage statements. Marriott removed
the action to federal court alleging diversity jurisdiction under
the Class Action Fairness Act (CAFA).

The district court sua sponte remanded the case back to state
court.

The Court reviews remand orders in CAFA cases de novo.

Congress designed the terms of CAFA specifically to permit a
defendant to remove certain class or mass actions into federal
court. Congress intended CAFA to be interpreted expansively.

Marriott raises several challenges to the district court's remand
order. First, Marriott argues the district court imposed an
erroneous burden of proof by sua sponte remanding the case to state
court without allowing Marriott an opportunity to support its
allegations with evidence.

Second, Marriott argues the district court erred in disallowing
Marriott's use of assumed violation rates in its estimate of the
amount in controversy.

Third, it argues the district court erred by refusing to consider
prospective attorneys' fees in the amount in controversy.

The Court agrees with Marriott that when a notice of removal
plausibly alleges a basis for federal court jurisdiction, a
district court may not remand the case back to state court without
first giving the defendant an opportunity to show by a
preponderance of the evidence that the jurisdictional requirements
are satisfied.

The district court did not conclude that Marriott's allegations
were implausible. Instead, the district court stated that Marriott
failed to meet its burden of proving the amount in controversy. In
rejecting Marriott's assumed violation rates, the district court
cited a lack of evidence supporting Marriott's assumptions. But a
notice of removal need not contain evidentiary submissions.

Instead, evidence showing the amount in controversy is required
only when the plaintiff contests, or the court questions, the
defendant's allegation. When a defendant's assertion of the amount
in controversy is challenged both sides submit proof and the court
decides, by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied. The district
court clearly questioned Marriott's allegation, but by remanding
the case to state court sua sponte, the district court deprived
Marriott of a fair opportunity to submit proof.

This error warrants vacatur of the remand order.

The Court also agrees with Marriott that in assessing the amount in
controversy, a removing defendant is permitted to rely on a chain
of reasoning that includes assumptions. Such assumptions cannot be
pulled from thin air but need some reasonable ground underlying
them. An assumption may be reasonable if it is founded on the
allegations of the complaint.

For example, in Ibarra, the Court noted that the complaint alleged
a pattern and practice of labor law violations but did not allege
that this pattern and practice is universally followed every time
the wage and hour violation could arise. Because a pattern and
practice of doing something does not necessarily mean always doing
something, the Court reasoned, the defendant's assumed violation
rate of 100% may or may not have been valid.

The Court thus vacated the district court's remand order and
remanded to allow both sides to submit evidence related to the
contested amount in controversy.

Marriott's assumptions are plausible and may prove to be reasonable
in light of the allegations in the complaint. The district court
rejected Marriott's assumptions because it was reasonably possible
that the damages at issue might be less than $5 million. This
reasoning recognized that Marriott, as the removing party, will
bear the burden of proof, but it also reflects a misapprehension of
the amount-in-controversy requirement.

The amount in controversy is simply an estimate of the total amount
in dispute, not a prospective assessment of defendant's liability.
An assertion that the amount in controversy exceeds the
jurisdictional threshold is not defeated merely because it is
equally possible that damages might be less than the requisite
amount, as the district court reasoned. Where a removing defendant
has shown potential recovery could exceed $5 million and the
plaintiff has neither acknowledged nor sought to establish that the
class recovery is potentially any less, the defendant has borne its
burden to show the amount in controversy exceeds $5 million.

The district court characterized Marriott's assumed violation rates
as being speculation and conjecture, apparently because Marriott
did not provide evidence proving the assumptions correct. The
district court seems to have imposed a requirement that Marriott
prove it actually violated the law at the assumed rate. But
assumptions made part of the defendant's chain of reasoning need
not be proven; they instead must only have some reasonable ground
underlying them.

On remand, Marriott will bear the burden to show that its estimated
amount in controversy relies on reasonable assumptions.

The district court suggested that courts within the circuit are
split on whether attorneys' fees should be considered in the amount
in controversy. The district court sided with other district courts
that have concluded prospective attorneys' fees are too speculative
for inclusion into amount in controversy.

Here, by her complaint, Arias seeks recovery of attorneys' fees,
and there is no dispute that at least some of the California wage
and hour laws that form the basis of the complaint entitle a
prevailing plaintiff to an award of attorneys' fees. The district
court thus erred in excluding prospective attorneys' fees from the
amount in controversy.

Marriott argues that attorneys' fees should be estimated at 25
percent of the potential damages. Although such an estimate might
be reasonable, the Court have declined to adopt a per se rule that
the amount of attorneys' fees in controversy in class actions is 25
percent of all other alleged recovery.

Arias argues that the position taken by Marriott in its summary
judgment motion in state court that Arias's claims are barred by a
release from a prior class action settlement defeats federal court
jurisdiction. Arias is wrong for two reasons.

First, it is well settled that post-filing developments do not
defeat jurisdiction if jurisdiction was properly invoked as of the
time of filing. Second, the strength of any defenses indicates the
likelihood of the plaintiff prevailing; it is irrelevant to
determining the amount that is at stake in the litigation. Arias's
argument conflates the amount in controversy with the amount of
damages ultimately recoverable.

Arias also suggests that jurisdiction is defeated because she has
stipulated that this action is not valued at $5,000,000 for CAFA
jurisdiction or otherwise. Even if this vague statement in Arias's
appellate brief were binding on her,  it would be irrelevant to the
CAFA analysis. The Supreme Court has held that when a class-action
plaintiff stipulates, prior to certification of the class, that he,
and the class he seeks to represent, will not seek damages that
exceed $5 million in total, the district court should ignore that
stipulation when assessing the amount in controversy. This is so
because although individual plaintiffs are the masters of their
complaints and may stipulate to amounts at issue that fall below
the federal jurisdictional requirement, the same is not true for a
putative class representative, who cannot yet bind the absent
class.  

The Court vacates the district court's judgment and remand on an
open record for further proceedings consistent with this opinion.
The district court may hold such further proceedings as it deems
appropriate to permit the parties to submit evidence and arguments
on the amount in controversy.  

A full-text copy of the Ninth Circuit's September 3, 2019 Opinion
is available at https://tinyurl.com/y64wedwx from Leagle.com.

Brian P. Long  - bplong@seyfarth.com -  (argued), Seyfarth Shaw
LLP, Los Angeles, California; William Dritsas -
wdritsas@seyfarth.com - Seyfarth Shaw LLP, San Francisco,
California; for Defendants-Appellants.

Samvel Gashgian  - sgeshgian@younessilaw.com -  (argued) and Ramin
R. Younessi  - ryounessi@younessilaw.com- Law Offices of Ramin R.
Younessi, Los Angeles, California, for Plaintiff-Appellee.


SASKATCHEWAN: Muskoday First Nation Woman Files Class Action
------------------------------------------------------------
Chelsea Laskowski, writing for CBC News, reports that a woman from
Muskoday First Nation says a class action lawsuit against the
province is the only avenue she has to seek acknowledgement that
the government and social services wronged her in the way they
handled abuses she suffered while in foster care.

Cori Pederson was sexually and physically abused as a child, as was
her sister. They were in the same foster home until it was shut
down.

Even though her former foster father was convicted, Pederson said
she still suffers from the effects of being placed in the abusive
home and of the abuses that carried on unchecked.

"My eye was blackened so bad that my eye was shut, and my eye was
cut. That was from being slapped and punched around. I was a child.
My sister was younger than me," Pederson said.

She is the lead plaintiff in a class action lawsuit, filed by
Merchant Law, alleging that the government of Saskatchewan had a
responsibility to consider seeking compensation for children who
were hurt due to wrongdoing or crime while they were in government
care.

The firm says it is specifically representing people who were in
the foster care system between 1959 and 2017.

The claim seeks to recover damages flowing from the province's
alleged failure to pursue compensation for these children under
certain "victims of crime" legislation or through a civil suit.

The court has not yet ruled on whether the suit has merit.

Pederson said it's not about money.

"I want to be heard. This is something that can't be just covered
up and left on the back burner. It's not gonna be swept under the
rug no longer," Pederson said.

She said she has tried to press further charges against her past
foster family but was told there was not enough evidence, and that
records from social services don't come close to capturing the
physical, sexual and emotional abuse she suffered.

"It's time for social services to step up and accept that they made
mistakes and they were wrong instead of denying everything,"
Pederson said.

Outlining the legal argument
Merchant Law will be tasked at trial with proving the province has
duties to protect the legal rights of children in care and to take
steps to obtain compensation on their behalf, and to define those
duties.

Lawyer Tony Merchant said the rationale for the class action is
that when social services takes a child in, the government takes
over the parenting role.

"Let's take the worst example, girls sexually abused. Any parent
would consider financial recovery and most parents would seek
financial recovery if it were available because that would be
helpful for the child," he said.

Merchant said not all parents would launch legal or civil action if
physical or sexual abuse happened to their own child, but they
would at least consider it.

"[The government] didn't even think about it. They didn't talk to
lawyers, they didn't consult with the real parents," he said.

Merchant is pursuing similar lawsuits in Manitoba and B.C., but so
far Saskatchewan is the only province where the case has been
confirmed as a class action.

Opt out
While the Court of Queen's Bench confirmed the class action suit in
January of 2018, it took until Aug. 14 for Merchant Law to issue a
court-approved news release that details who could potentially be
included in the class.

The firm has set up a special website to inform people that they
will be automatically included in the lawsuit if they fit into the
class of people described in the filing

It says a person could be affected if "you were placed in the
Saskatchewan foster care system and while in the system, you
suffered injury as a result of a crime or wrongdoing." People must
opt out not to be included and have until the end of October to do
so.

Merchant said he thinks thousands of people would be eligible since
the class action covers more than sixty years.

Merchant Law is known for its class action lawsuits, including
suits around the Sixties Scoop and Indian Residential Schools that
awarded millions to survivors across the country. Both cases have
been subject to criticism over the compensation Merchant Law
received in the matters.

"Money can't solve problems, and can't make up for wrongs but it's
the only thing we can do when they've been the subject of wrongs,"
Merchant said.

Pederson started the action in 2012 after years of struggling with
drugs and alcohol. She said she is now on the right track and
looking forward to the matter coming to an end.

She lives on her home reserve of Muskoday, which is near Prince
Albert about 150 kilometres northeast of Saskatoon.

She said she will continue working away as a justice co-ordinator,
being a positive support for many who have been through similar
experiences to her own. [GN]


SCOTT YANCEY: Martinez Suit Asserts TCPA Violation
--------------------------------------------------
Keith Martinez, individually and on behalf of all others similarly
situated, Plaintiff, v. Scott Yancey, Defendants, Case No.
3:19-cv-01757-BEN-JLB (S.D. Cal., Sept. 12, 2019) is a Class Action
Complaint for damages, injunctive relief, and any other available
legal or equitable remedies, resulting from the illegal actions of
Defendant, in negligently, knowingly, and/or willfully contacting
Plaintiff for marketing purposes on their cellular telephones, in
violation of the Telephone Consumer Protection Act thereby invading
Plaintiff's privacy.

Plaintiff has business dealings in the real estate world, but has
never conducted business with Yancey either directly or indirectly.
At no time did Plaintiff provide his current cellular telephone
number to Defendant through any medium. Plaintiff also never
provided Defendant prior written express consent to place telephone
calls to his cellular telephone, says the complaint.

Plaintiff is a citizen and resident of the State of California.

Yancey provides various real estate courses and products, along
with providing real estate seminars and advertises those products
thought the use of telephone calls.[BN]

The Plaintiff is represented by:

     Joshua B. Swigart, Esq.
     SWIGART LAW GROUP, APC
     2221 Camino Del Rio South, Suite 308
     San Diego, CA 92108
     Phone: (619) 233-7770
     Fax: (619) 297-1022
     Email: josh@swigartlawgroup.com


SECURITY CREDIT: Batista Files FDCPA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Security Credit
Systems, Inc. The case is styled as Jerson Batista individually and
on behalf of all others similarly situated, Plaintiff v. Security
Credit Systems, Inc., Defendant, Case No. 1:19-cv-05369 (E.D. N.Y.,
Sept. 20, 2019).

The Plaintiff filed the case under the Fair Debt Collection
Practices Act.

Security Credit Systems Inc was founded in 1983. The company's line
of business includes collection and adjustment services on claims
and other insurance related issues.[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


SENIOR LIFESTYLE: Does not Pay Proper Wages, Hamilton Suit Asserts
------------------------------------------------------------------
DEBORAH HAMILTON, Individually and on Behalf of Others Similarly
Situated, Plaintiff, v. SENIOR LIFESTYLE CORPORATION, d/b/a
GREATWOOD AT SUGAR LAND INDEPENDENT LIVING, Defendant, Case No.
4:19-cv-03481 (S.D. Tex., Sept. 13, 2019) is a collective action
complaint against Defendants to recover unpaid overtime wages owed
to SLC's sales staff pursuant to the Fair Labor Standards Act.

As a Director of Sales and Marketing, Mrs. Hamilton was required to
work after hours, some weekends, and be available to respond to
tenancy inquiries on her work phone at all times. Indeed, Mrs.
Hamilton regularly worked more than 40 hours a week, and was
required to be available by phone at all times during the workweek
and weekend. Mrs. Hamilton also was often required to work over her
lunch period to provide prospective tenants with tours or other
information about Greatwood. On average, Mrs. Hamilton worked 45 to
50 hours per work week between January 2019 and July 2019. However,
the Defendant did not pay Mrs. Hamilton, or any of the FLSA
Classes, the required overtime for hours worked in excess of 40
hours in a workweek. As a result of Defendant's policy, Mrs.
Hamilton, and the FLSA Classes, were denied the overtime pay
required by federal law, says the complaint.

Plaintiff Deborah Hamilton was the Director of Sales and Marketing
at Greatwood at Sugarland Independent Living from January 2019
until July 2019.

SLC manages and supports senior living communities nationwide,
including Greatwood at Sugar Land Independent Living, in Sugar
Land, Texas.[BN]

The Plaintiff is represented by:

     Nicholas R. Lawson, Esq.
     MCDOWELL HETHERINGTON LLP
     1001 Fannin Street, Suite 2700
     Houston, TX 77002
     Phone: (713) 337-5580
     Telecopy: (713) 337-8850
     Email: Nick.Lawson@mhllp.com


SHAWMUT WOODWORKING: Underpays Project Manager, Bonett Says
-----------------------------------------------------------
KEVIN BONETT, individually and on behalf of all others similarly
situated, Plaintiff v. SHAWMUT WOODWORKING & SUPPLY, INC.,
Defendant, Case No. 1:19-cv-01125 (W.D.N.Y., Aug. 23, 2019) seeks
to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.

The Plaintiff was employed by the Defendants as assistant project
manager.

Shawmut Woodworking & Supply, Inc. provides construction services.
The Company designs and develops hotels, apartments, hospitals,
game zones, industrial, and commercial buildings. Shawmut
Woodworking & Supply operates throughout the United States. [BN]

The Plaintiff is represented by:

          Benjamin L. Davis, III, Esq.
          THE LAW OFFICES OF PETER T. NICHOLL
          36 South Charles Street, Suite 1700
          Baltimore, MD 21201
          Telephone No: (410) 244-7005
          Facsimile No.: (410) 244-8454
          E-mail: bdavis@nicholllaw.com


SIEMENS ELECTRICAL: Deal w/ City Found Fair, Adequate & Reasonable
------------------------------------------------------------------
In the case, CITY OF NEW YORK, STATE OF NEW YORK, CITY OF NEW YORK
EX REL. CLIFFORD WEINER, Plaintiffs, v. SIEMENS ELECTRICAL, LLC.
F/K/A SCHELESINGER-SIEMENS ELECTRICAL, LLC, SIEMENS INDUSTRY, INC.
F/K/A SIEMENS ENERGY & AUTOMATION, INC., SCHLESINGER ELECTRICAL
CONTRACTORS, INC., Defendants, Case No. 104330/2012 (N.Y. Sup.),
Judge Margareta A. Chan of the New York County Supreme Court (i)
granted the City of New York's motion pursuant to State Finance Law
Section 190 (5)(b)(ii) for a determination that the proposed
settlement between the City and the Defendants is fair, adequate,
and reasonable; and (ii) denied Relator Clifford Weiner's requests,
made in his opposition papers, for an evidentiary hearing, to
supersede the City in the action, and for the Court to calculate
his qui tam award.

The action arises out of five contracts between the City of New
York Department of Environmental Protection ("DEP") and Siemens
Electrical in connection with the upgrade and construction of water
treatment facilities in Manhattan, the Bronx and Brooklyn.  Siemens
Electrical was formed on Aug.27, 2004, under the name
Schlesinger-Siemen, by Siemens Energy and Schlesinger Electrical,
pursuant to the Delaware Limited Liability Company Act, Delaware
Code Section 18-101, et seq.  Siemens Electrical was formed for the
purpose of bidding upon, negotiating, and performing electrical
projects for the DEP.

Between Aug. 31, 2005, and Jan. 19, 2007, Siemens Electrical won
bids for one contract for upgrades to the 26th Ward Wastewater
Treatment Plant in Canarsie, Brooklyn; two contracts for upgrades
of the Wards Island Wastewater Treatment Plant on Wards Island in
Manhattan; and two contracts for the construction of the new Croton
Water Filtration Plant in the Bronx.  The total value of the five
contracts was $234,415,844.

In 2012, the Relator, a former vice president of Schlesinger who
served on Siemens Electricals' board of managers in 2005, filed the
complaint under seal, alleging that between 2005 and 2012 Siemens
Electrical violated the New York False Claims Act ("NYFCA") by
misrepresenting its compliance with two distinct statutes that
Siemens Electrical was required to comply under each of the DEP
contracts.  First, Relator alleged that Siemens Electrical
submitted claims for payment overstating the work performed by
Minority Business Enterprises ("MBE").  The Relator alleged that
Siemens Electrical schemed to evade MBE subcontracting requirements
by fabricating a relationship with a contractor to fulfill the
requirement that certain contracts be given to MBEs for all five
contracts it had with the DEP, when in fact, the equipment was
installed by a non-MBE firm.

And second, the Relator alleged that Siemens Electrical
fraudulently represented itself as a business with a licensed
Master Electrician as an officer of the company, in violation of
New York City Administrative Code Section 27-3017(a)(1), in order
to win its bid on the five contracts with the DEP and in Siemens
Electrical's performance of the contracts.

At that time, the New York County District Attorney's Office
("DANY") was investigating Siemens Electrical for its
non-compliance with the MBE and Master Electrician requirements.
In January 2013, DANY and Siemens Electrical entered into a
Deferred Prosecution Agreement ("DPA"), wherein Siemens Electrical
admitted to defrauding the Department of Buildings ("DOB") and DEP
by falsely overstating the actual participation of MBEs and
knowingly violated the New York City Electrical Code as it relates
to electrical contractors and Master Electricians.  Siemens
Electrical agreed to forfeit $10 million and take remedial
measures, including the implementation of new policies and enhanced
internal control.  Siemens Electrical has satisfied the terms of
the DPA and the criminal action has been dismissed.

In 2015, the City and the Siemens Defendants engaged in settlement
discussions before a mediator.  No agreement was reached.  Soon
thereafter, the City, with authorization from the State pursuant to
State Finance Law Section 190(2)(c)(iii), filed its superseding
complaint substituting the original plaintiff in the action and
converting the qui tam civil action into a civil enforcement action
by the City.

The superseding complaint alleges claims under State Finance Law
Sections 189(1)(a), (b), and (c) and New York City's version of the
False Claims Act.  The City's superseding complaint differs from
the qui tam complaint, as relevant to the instant motion, to the
extent that it elaborates on the factual allegations of the Master
Electrician and MBE related claims against the Siemens Defendants.

Soon thereafter, the Siemens Defendants moved pursuant to CPLR 3212
for summary judgement on the basis of a recent decision of the
United States Supreme Court, Universal Health Servs., Inc. v United
States ex rel. Escobar, 136 S.Ct. 1989 [2016]) (Escobar).  Another
justice of the court, Hon. Joan A. Madden, denied the Siemens
Defendants' motion.  As to the City's NYFCA claims based on the
implied certification theory, the court held, first, that
additional discovery was required to determine the materiality of
the MBE claims, and second, that the documentary evidence relied
upon by the Siemens defendants failed to establish that the Siemens
Defendants' false statements were not material as to their
compliance with the master electrician requirements.

After resuming discovery, the parties again engaged in settlement
discussions.  This time, the City and the Siemens Defendants
reached an agreement and settled the claims for $1.5 million.  The
settlement of the City's claims was negotiated and executed
contemporaneously with the agreement to settle three separate
actions by the Siemens Defendants against the City ("commercial
settlement").  The City and the Siemens Defendants agreed that the
proposed settlement amount is to be paid by a setoff against the
commercial settlement amount.  The amount of the proposed
settlement was reviewed and authorized by the Office of the New
York City Comptroller.

Judge Chan section addresses four issues under the New York False
Claims Act: (1) Whether the proposed settlement should be approved;
(2) whether Relator is entitled to discovery and an evidentiary
hearing; (3) whether Relator may supersede the City in this action;
and (4) the proportion of the potential award to which the Relator
is entitled.

The City and the Siemens Defendants urge the Court to adopt the
deferential standard that the Ninth Circuit set forth in U.S. ex
rel., Sequoia Orange Co. v Baird-Neece Packing Corp.  The Relator,
on the other hand, contends that the Court should evaluate the
fairness of the settlement under the standard used by various
federal district courts to evaluate the fairness of the settlement
of a class-action lawsuit under the Federal Rules of Civil
Procedure Rule 23(e).

Judge Chan agrees with the standard articulated in United States v
Everglades Coll., Inc. as the appropriate standard for reviewing
the proposed settlement of a qui tam action under the NYFCA.  In
Everglades, the panel held that the Rule 23 standard is not the
proper framework for evaluating FCA settlements between the
government and defendant in a qui tam action.  Instead, the panel
in Everglades found that in the FCA context there must be
considerable deference to the settlement rationale offered by the
government because of the loose similarity between
government-obtained FCA settlements and decisions by the government
not to prosecute or enforce an administrative remedy, which are
presumptively unreviewable.  Further, section 190 of the NYFCA
demonstrates that the New York State Legislature intended for
courts to defer to the government's rationale in settling a qui tam
action converted to a civil enforcement action.

The Judge also finds that the City has demonstrated a reasonable
basis to determine that the proposed settlement is in the best
interest of the City and does not unfairly reduce the Relator's
potential qui tam recovery.  As noted in Everglades, the
government's decision to settle a qui tam action may be based on
several factors, and not solely on whether settlement is most
likely to maximize the monetary recovery.  The proposed settlement
imposes a civil penalty for each of the alleged regulatory
violations.  Further, the proposed settlement is based on the
City's desire to conserve limited resources, avoid the complexity,
expense, and duration of ongoing litigation, and in consideration
of the precedential impact of a potentially adverse decision.  The
City further demonstrates that the proposed settlement represents a
fair outcome considering the risk of litigation.

As the Relator has failed to come forward with a colorable and
non-speculative claim that the government's settlement rationale is
improper and that further disclosures are needed,  The Judge denied
his requests for an evidentiary hearing and discovery.  Initially,
she finds that Relator is not entitled to an evidentiary hearing as
of right.  Second, Relator fails to establish grounds for an
evidentiary hearing and additional discovery.  

The Judge also denied the Relator's request that he be permitted to
supersede the City in the action.  She finds that the Relator fails
to cite to any basis to support his request.  State Finance Law
Section 190(5)(a) states that the local government will have
primary responsibility for investigating and prosecuting the
action.

Finally, the Relator requests that the Court calculates his qui tam
award.  The Judge finds that Relator's request premature.  The
City's motion does not address the amount of the award to which the
Relator is entitled and Relator does not cross-move for the Court
to calculate his award.  The parties will appear for an in-court
conference to address the Relator's potential award.

Accordingly, based on the foregoing, Judge Chan granted the City's
motion pursuant to State Finance Law Section 190 (5)(b)(ii) for a
determination that the proposed settlement between the City and the
Defendants is fair, adequate, and reasonable is granted.  She
denied the Relator's requests made in his opposition papers are
denied.  The parties will appear for a status conference to address
the Relator's potential award on Sept. 4, 2019, at 10:00 a.m.  This
constitutes the Decision and Order of the Court.

A full-text copy of the Court's Aug. 7, 2019 Decision and Order is
available at https://is.gd/lu0ilC from Leagle.com.

Zachary Carter, Brian T. Horan, Corporation Counsel, City.

Michael Smikun, Callagy Law, P.C., Relator.

Wendy Schwartz -- nbinder@binderschwartz.com -- Binder & Schwartz
LLP, Siemens defendants.


SIRIUSXM: Settles TCPA Class Action for $25MM
---------------------------------------------
Chris Forrester, writing for Advanced Television, reports that
pay-radio operator SiriusXM was in trouble because of alleged
breaches of the US Federal ‘Telephone Consumer Protection Act'.
It meant potential breaches of Federal telemarketing rules and
where consumers had pre-registered for ‘Do Not Call'
notifications, either nationally or on the company's own lists.

SiriusXM, despite initially firmly denying any wrong-doing, has now
reached a settlement with agents for the claimants. Consumers who
received at least two telemarketing calls between October 16th 2013
and April 26th 2019 might qualify for a settlement from SiriusXM.

SiriusXM, to claimants who qualify, is offering a 3-month free
access to its top-tier service of 150+ channels. They have also set
aside $25 million which will be distributed to Class Action members
who provide valid claim forms and proof of the calls.

The settlement from SiriusXM was agreed after they stated that the
given settlement does not mean that violation of any law happened
or Sirius XM did anything wrong. [GN]


SOUTHERN TOOL: Underpays Oil Field Inspectors, Cole Alleges
-----------------------------------------------------------
SETH COLE, individually and on behalf of all others similarly
situated, Plaintiff v. SOUTHERN TOOL INSPECTION, LLC, Defendant,
Case No. 4:19-cv-3259 (S.D. Tex., Aug. 28, 2019) seeks to recover
from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.

The Plaintiff Cole was employed by the Defendants as oil field
inspector.

Southern Tool Inspection, LLC provides non-destructive testing and
inspection services for downhole tools in the oil and gas industry.
[BN]

The Plaintiff is represented by:

          Clayton D. Craighead, Esq.
          THE CRAIGHEAD LAW FIRM, PLLC
          440 Louisiana, Suite 900
          Houston, TX 77002
          Telephone: (832) 798-1184
          Facsimile: (832) 553-7261
          E-mail: clayton.craighead@thetxlawfirm.com


STARBUCKS CORPORATION: Court Narrows Claims in Sour Gummies Suit
----------------------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting in part and denying in part
Defendant's Motion to Dismiss in the case captioned SANDRA BROWN,
Plaintiff, v. STARBUCKS CORPORATION, Defendant. Case No. 18cv2286
JM (WVG). (S.D. Cal.).

Brown alleges the packaging of Starbucks' Sour Gummies product
falsely informs consumers that the candies only contain natural
ingredients because the front packaging does not disclose the
presence of artificial flavors.

Brown asserts eight claims on behalf of herself and putative class
members: (1) fraud by omission (2) negligent misrepresentation (3)
violation of the California Consumers Legal Remedies Act, (CLRA)
(4) violation of Section 17200 of the California Business &
Professions Code (UCL) for unlawful business practices (5)
violation of Section 17200 of the UCL for unfair business practices
(6) violation of California's False Advertising Law (FAL) (7)
breach of express warranties, and (8) breach of implied warranties.


Starbucks moves to dismiss Brown's complaint for failure to state a
claim and for lack of personal jurisdiction over Starbucks for
claims asserted by out-of-state class members. Starbucks also moves
to strike Brown's nationwide class allegations.  

CLRA, FAL, and UCL Claims

The CLRA, FAL, and UCL are California consumer protection statutes.
The UCL prohibits unfair competition, which is defined as any
unlawful, unfair or fraudulent business act or practice.  

Under the FAL, it is unlawful to make or disseminate any statement
concerning property or services that is untrue or misleading. The
CLRA prohibits unfair methods of competition and unfair or
deceptive acts or practices.

The UCL, FAL, and CLRA all prohibit not only advertising which is
false, but also advertising which although true, is either actually
misleading or which has a capacity, likelihood or tendency to
deceive or confuse the public.

The FAC's allegations relating to representations on the Gummies'
packaging thus remain insufficient to plausibly allege a reasonable
consumer would believe the Gummies contain only natural flavors.
However, Brown now alleges that consumers did not know the Product
contained artificial flavoring ingredients due to Defendant's
omission of the legally-required artificial flavoring disclosure.
The court accepts this allegation as true. At this stage, Starbucks
does not dispute it had a duty to disclose the presence of
artificial flavors on the Gummies' front packaging.  

Accordingly, unlike Brown's original complaint, the FAC goes beyond
assertion of a mere regulatory violation. Brown's claims narrowly
survive on her allegation, and the reasonable inferences drawn from
this allegation, that a reasonable consumer would expect a product
only contains natural flavors when the product's packaging does not
disclose the use of artificial flavors near the description of its
characterizing flavors. Whether Brown can prove this allegation is
a matter for summary judgment or trial.  

The FAC also satisfies the pleading requirements of Rule 9(b) as
Brown alleges that Starbucks (the who) intentionally failed to
disclose the presence of artificial flavors on the Gummies' front
packaging (the what) when Brown purchased the candies in December
2017 (the when) in Santee, California (the where), which misled
Brown to believe the Gummies contained only natural ingredients as
consumers in California expect products with artificial
characterizing flavors to prominently display that information on
the packaging.

Standing

Starbucks argues Brown lacks standing for her FAL, CLRA, and UCL
claims as she fails to allege that she reasonably relied on
Starbucks' misrepresentations or suffered any economic injury. To
establish standing to bring a claim under the FAL, CLRA, and UCL,
plaintiffs must meet an economic injury-in-fact requirement, which
demands no more than the corresponding requirement under Article
III of the U.S. Constitution. Plaintiffs must show that they have
suffered injury in fact and have lost money or property as a result
of the unfair competition.

Starbucks argues that Brown does not plausibly allege she relied on
the Gummies packaging as her alleged reliance is her own unique
interpretation about what the statements on the Gummies' packaging
allegedly meant to her.

The court finds that Brown adequately pleads reliance on Starbucks'
omission of an artificial flavor disclosure and resulting economic
injury. Brown alleges she was unaware the Gummies contained
artificial flavors when she purchased them because the front
packaging did not disclose the use of artificial flavors. Plaintiff
was seeking products that only used natural ingredients and would
not have purchased the Gummies if she knew they contained
artificial flavors. Plaintiff alleges the Gummies' packaging
deceived her into paying a price premium for a product she thought
contained only natural ingredients.  

Accordingly, Plaintiff alleges she lost money in the amount of the
price premium she paid for the Gummies. Plaintiff further alleges
she would not have purchased the Gummies in the absence of the
misleading packaging. As discussed above, the FAC plausibly alleges
a reasonable consumer would be misled by Starbucks' failure to
disclose on the front packaging that the Gummies contain artificial
flavors. Accordingly, the FAC sufficiently pleads reliance on the
Gummies' misleading packaging and resulting economic harm.

Express Warranty

California Commercial Code Section 2313 provides, in relevant part,
(a) Any affirmation of fact or promise made by the seller to the
buyer which relates to the goods and becomes part of the basis of
the bargain creates an express warranty that the goods shall
conform to the affirmation or promise and (b) Any description of
the goods which is made part of the basis of the bargain creates an
express warranty that the goods shall conform to the description.

To prevail on a breach of express warranty claim, a plaintiff must
prove that the seller (1) made an affirmation of fact or promise or
provided a description of its goods (2) the promise or description
formed part of the basis of the bargain (3) the express warranty
was breached and (4) the breach caused injury to the plaintiff.
Plaintiff must plead facts showing a specific and unequivocal
written statement' of warranty.

Plaintiff alleges three bases for her warranty claim: (1) the
failure to disclose the use of artificial flavoring on the
Product's front label, by operation of law, informs consumers that
the Product does not contain artificial flavors (2) Starbucks'
health and wellness campaign further reinforced reasonable
consumers' beliefs that the Product did not contain artificial
flavors and (3) the Product does not solely contain apple,
watermelon, tangerine, and lemon flavors as the label suggests it
contains artificial apple, watermelon, tangerine, and lemon
flavors.

First, the failure to disclose a fact is not a specific and
unequivocal written statement' of warranty.

Second, Plaintiff fails to identify any statements in Starbucks'
health and wellness campaign warranting its products do not contain
artificial flavors.  Plaintiff alleges Starbucks' health and
wellness campaign states that Starbucks listens to its customers
and continues to evolve its health and wellness options influenced
by customer feedback. Starbucks' Director of Retail Brand
Partnerships allegedly stated that Starbucks knows customers are
snacking on the go and looking for snacks that are healthier.
Plaintiff alleges Starbucks offers packaged snacks as a great
opportunity to expand its offerings to those with specific dietary
needs, like gluten-free and vegan.

None of these statements warrant, or even imply, that Starbucks
does not use artificial flavors. Plaintiff fails to connect the
fact that Starbucks may know its customers are looking for
healthier snacks to the use of artificial flavors in its products.
Lastly, the statement that the Gummies are apple, watermelon,
tangerine and lemon flavored candies accurately describes the
product; the Gummies contain these flavors. As the court previously
held, this statement does not plausibly suggest the Gummies contain
only natural ingredients.  

Accordingly, Brown's express warranty claim is dismissed with
prejudice.  

Implied Warranty

California Commercial Code Section 2314 provides that a warranty
that the goods shall be merchantable is implied in a contract for
their sale and enumerates six requirements of merchantable goods.
The FAC focuses on three of these requirements. Brown alleges the
Gummies (1) do not pass without objection in the trade under the
contract description (2) are not adequately contained, packaged,
and labeled as the agreement may require and (3) do not conform to
the promises or affirmations of fact made on the container or label
if any.

Starbucks argues that the FAC fails to cure any of the deficiencies
identified by the court in its prior order dismissing Plaintiff's
original complaint. But as discussed above, the FAC now plausibly
alleges a reasonable consumer may believe the Gummies did not
contain artificial flavors because the packaging failed to
prominently disclose their presence. At this stage, Starbucks does
not dispute it was required to prominently display an artificial
flavors disclosure on the Gummies and failed to do so.

As Starbucks fails to address Plaintiff's allegation that the
Gummies were not adequately labeled and packaged as Section
2314(2)(e) requires, the court denies Starbucks' motion to dismiss
Plaintiff's breach of the implied warranty claim.  

Fraudulent Omission

Plaintiff asserts a common law and statutory fraud by omission
claim. California Civil Code Section 1709 provides that one who
willfully deceives another with intent to induce him to alter his
position to his injury or risk, is liable for any damage which he
thereby suffers. Section 1710 defines deceit, in relevant part, as
the suppression of a fact, by one who is bound to disclose it, or
who gives information of other facts which are likely to mislead
for want of communication of that fact. The common law elements of
fraud in California are: (a) misrepresentation (false
representation, concealment, or nondisclosure) (b) knowledge of
falsity (scienter) (c) intent to defraud, i.e., to induce reliance
(d) justifiable reliance and (e) resulting damage.

Here, Brown alleges that Starbucks knows consumers prefer naturally
flavored products over those using artificial flavors and are
willing to pay a premium for these products. Brown alleges that
Starbucks knew the Gummies contained artificial flavors and knew it
was required to disclose this information on the front packaging.

At this stage of the proceedings, Starbucks does not dispute that
the Sherman Act and incorporated FDA regulations required it to
prominently display an artificial flavors disclosure on the
Gummies' front packaging. Plaintiff alleges that Starbucks
intentionally omitted this artificial flavor disclosure on the
Gummies' front packaging to give consumers the false impression
that the product only contained natural flavors. Plaintiff and
consumers relied on this omission and purchased the Gummies without
knowing they contained artificial flavors.

First, Starbucks argues it did not conceal the fact that the
Gummies contained artificial flavors as the ingredients list on the
back packaging disclosed all ingredients. As noted above, the
Sherman Act incorporates FDA food labeling regulations.  

Second, Starbucks argues that Brown fails to plausibly allege she
reasonably relied on Starbucks' omission of an artificial flavor
disclosure or suffered any damages. As discussed above, Brown
sufficiently alleges she relied on the misleading Gummies packaging
at the time of purchase, was unaware the Gummies contained
artificial flavors, and paid a price premium for a product she
thought was naturally flavored but actually contained artificial
flavors.

Accordingly, Starbucks' motion to dismiss Brown's fraud claim is
denied.

Negligent Misrepresentation

Under California law, a negligent misrepresentation claim requires
a positive assertion, not merely an omission.

Here, as discussed above and in the court's prior order, Brown
fails to plausibly allege a misrepresentation. Brown does not
challenge the veracity of the statement that the Gummies are apple,
watermelon, tangerine and lemon flavored candies, but instead
alleges that Starbucks' omission of an artificial flavor disclosure
on the Gummies' front packaging misled her to believe the Gummies
contained only natural ingredients.

Accordingly, Brown's negligent misrepresentation claim is dismissed
with prejudice.

Out-of-State Class Allegations

Brown asserts fraudulent omission and negligent misrepresentation
claims on behalf of a nationwide class. Her fraud claim is asserted
pursuant to California Civil Code Sections 1709-1710, et seq. and
the common law of all states. Brown's negligent misrepresentation
claim is premised on Starbucks' failure to disclose the artificial
flavoring pursuant to California and federal law and she asserts
this claim under California Civil Code Sections 1709-1710 and the
common law of all states. Brown asserts express and implied
warranty claims on behalf of a nationwide class of persons in all
states with substantially similar laws. These claims are premised
on alleged warranties created by operation of California law.

Starbucks moves to strike or dismiss Brown's allegations relating
to a nationwide class and a class of those in all states with
substantially similar laws, arguing that California law does not
apply to out-of-state putative class members' claims and, to the
extent Brown seeks to apply the law of fifty different states, this
would be wholly impractical.

Brown argues that these issues are better determined at class
certification; Starbucks has not identified a conflict between
California and the laws of other states; and a nationwide class is
manageable.

The FAC alleges claims on behalf of class members pursuant to the
common law of all states and on behalf of all states with
substantially similar laws. But in her opposition to Starbucks'
motion to dismiss, Brown argues California law applies to a
nationwide class.

Such vague and confusing class allegations are insufficient.
Especially here, where Brown's entire theory hinges on Starbucks'
violation of a California statute. To the extent Brown intended to
assert that California law applies to the claims of out-of-state
putative class members, she fails to allege that California has
significant contact or significant aggregation of contacts' to the
claims of each class member, such that application of California
law is constitutional.

Accordingly, the court grants Starbucks' motion to dismiss Brown's
allegations relating to a nationwide class and a class of persons
in all states with substantially similar laws, but grants Brown
leave to amend. For each claim asserted on behalf of out-of-state
putative class members, Brown is instructed to specifically
identify (1) which states' laws apply (2) which specific laws of
these states apply and (3) the class definition of persons in all
states with substantially similar laws, if she intends to assert
claims on behalf of this class. The court further cautions Brown,
in light of the multiple amendments allowed in this case, that
failure to adequately plead an out-of-state class may demonstrate
the deficiencies identified above cannot be cured by amendment.

Starbucks' motion to dismiss is granted in part and denied in part
as follows:

Starbucks' motion to dismiss Plaintiff's UCL, FAL, CLRA, fraudulent
omission, and breach of an implied warranty claims is denied.

Starbucks' motion to dismiss Plaintiff's breach of an express
warranty and negligent misrepresentation claims is granted.

A full-text copy of the District Court's September 3, 2019 Order
is available at  https://tinyurl.com/y3r9zz5l from Leagle.com.

Sandra Brown, on behalf of herself, all others similarly situated,
and the general public, Plaintiff, represented by Lilach Halperin -
lilach@consumersadvocates.com - Law Offices of Ronald A. Marron,
PLC, Michael Houchin - mike@consumersadvocates.com - Law Offices of
Ronald A. Marron & Ronald Marron - ron@consumersadvocates.com - Law
Office of Ronald Marron.

Starbucks Corporation, a Washington Corporation, Defendant,
represented by Kevin S. Asfour -kevin.asfour@klgates.com - K&L
Gates LLP, Paul W. Sweeney, Jr. - paul.sweeney@klgates.com - K&L
Gates LLP & Kate G. Hummel - kate.hummel@klgates.com -K&L Gates
LLP.


STYLEBUY INC: Kiler Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Stylebuy, Inc. The
case is styled as Marion Kiler Individually and as the
representative of a class of similarly situated persons, Plaintiff
v. Stylebuy, Inc., Gibsonlook LLC, Defendants, Case No.
1:19-cv-05373 (E.D. N.Y., Sept. 20, 2019).

The Plaintiff filed the case under the Americans with Disabilities
Act.

Stylebuy works as Creator, Connector and Manufacturer to help bring
new brands and product to market. It invests in and works closely
with the influencer. By providing design direction, production,
financial support and industry experience, it bridges the gap to
work within the structure of known retailers.[BN]

The Plaintiff is represented by:

     Dan Shaked, Esq.
     Shaked Law Group, P.C.
     14 Harwood Court, Suite 415
     Scarsdale, NY 10583
     Phone: (917) 373-9128
     Email: shakedlawgroup@gmail.com


SUNDERMAN POOLS: Marrero Sues Over Failure to Pay Overtime Wages
----------------------------------------------------------------
FELIPE MARRERO, and other similarly situated individuals,
Plaintiff, v. SUNDERMAN POOLS, INC. d/b/a SOUTH WIND POOLS and
ROBERT SUNDERMAN, individually, Defendants, Case No.
4:19-cv-10156-KMM (S.D. Fla., Sept. 12, 2019) is an action seeking
to recover money damages for unpaid wages, failure to pay half-time
overtime wages, and retaliation under the laws of the United
States.

Plaintiff worked more than 40 hours every week, and he was paid for
all his working hours, but at his regular rate. Plaintiff was not
paid for overtime hours, notes the complaint. Plaintiff did not
clock-in and out, but the owner of the business, ROBERT SUNDERMAN,
was able to keep track of the hours worked by Plaintiff and other
similarly situated individuals. Therefore, Defendant willfully
failed to pay Plaintiff overtime hours at the rate of time and
one-half his regular rate for every hour that he worked in excess
of 40, in violation of Section 7 (a) of the Fair Labor Standards
Act, the complaint asserts.

Plaintiff FELIPE MARRERO was employed by Defendants as a
construction employee, from approximately April 2000, through
November 01, 2018.

SOUTH WIND POOLS is a construction company specializing in
commercial and residential pool and spa construction, remodeling,
maintenance and related services.[BN]

The Plaintiff is represented by:

     Zandro E. Palma, Esq.
     ZANDRO E. PALMA, P.A.
     9100 S. Dadeland Blvd., Suite 1500
     Miami, FL 33156
     Phone: (305) 446-1500
     Facsimile: (305) 446-1502
     Email: zep@thepalmalawgroup.com


THOMSON REUTERS: Mich. App. Affirms SSNPA Suit Dismissal
--------------------------------------------------------
The Court of Appeals of Michigan issued an Opinion affirming the
District Court's judgment granting Defendant's Motion to Dismiss in
the case captioned ADAM NYMAN and SARA NYMAN,
Plaintiffs-Appellants, v. THOMSON REUTERS HOLDINGS, INC., doing
business as WESTLAW, Defendant-Appellee. No. 344213. (Mich. App.).

Plaintiffs allege in their complaint they discovered defendant
listed the first five digits of their social security numbers on
the public records portal of a webpage owned by defendant available
only to subscribers. Plaintiffs, believing such actions by
defendant violated the In this putative class action primarily
alleging violations of the Social Security Number Privacy Act
(SSNPA), submitted a written demand letter to defendant, requesting
removal of the information and payment of $5,000. Plaintiffs did
not allege any actual damages or harm in the letter but requested
$5,000 under MCL 445.86(2) because it permitted collection of
$1,000 per plaintiff in statutory damages and reasonable attorney
fees, which plaintiffs calculated at $3,000.  

In lieu of answering the complaint, defendant moved for summary
disposition under MCR 2.116(C)(8). Defendant argued that plaintiffs
failed to plead actual damages and failed to comport with the
presuit written demand procedure under MCL 445.86(2), which
required a description and proof of the actual damages suffered.
Defendant argued further that plaintiffs could not establish that
defendant publicly displayed five digits of their social security
numbers as defined under MCL 445.82(d).

Defendant also made other arguments not relevant in this appeal
regarding plaintiffs' alleged failures to plead a claim under the
SSNPA. Respecting plaintiffs' alleged torts, defendant argued that
those claims required plaintiffs to have pleaded some actual
present injury to survive summary disposition, which plaintiffs did
not do. Defendant also raised an array of other arguments regarding
plaintiffs' tort claims that are not relevant to this appeal.

Plaintiffs countered that the SSNPA allowed them to elect statutory
damages of $1,000 as an alternative to pleading and proving actual
damages. Plaintiffs also asserted that they generally plead
injuries related to their tort claims sufficient to survive summary
disposition under the MCR 2.116(C)(8) standard. The trial court
agreed with defendant that plaintiffs failed to properly plead as
required by the SSNPA and opined that defendant had not publicly
displayed the first five digits of their social security numbers.

The trial court granted defendant's motion for summary disposition
and dismissed plaintiffs' complaint without prejudice. This appeal
followed.

SSNPA CLAIM

Plaintiffs first argue that the trial court erroneously interpreted
the SSNPA to require proof of actual damages.

The Court disagrees.

The SSNPA, in pertinent part, provides that a person shall not
intentionally publicly display all or more than 4 sequential digits
of the social security number of a person. MCL 445.83(1)(a). MCL
445.82(d) defines publicly display as to exhibit, hold up, post, or
make visible or set out for open view, including, but not limited
to, open view on a computer device, computer network, website, or
other electronic medium or device, to members of the public or in a
public manner.

Plaintiffs claim that the trial court erred by reading the SSNPA to
require pleading of actual damages by civil litigants to state a
viable claim. Plaintiffs argue that MCL 445.86(2) permits them to
elect recovery of statutory damages, and if they did so, they had
no obligation to plead or prove actual damages.

Defendant argues MCL 445.86(2) must be read in its entirety, and if
properly interpreted, the statute requires a plaintiff to plead and
prove actual damages. Defendant contends that the allowance of the
recovery of statutory damages does not relieve plaintiffs from the
requirement to plead and prove that they suffered actual damages.

Defendant is correct.

The Court finds nothing ambiguous in the language of the SSNPA. The
plain language of MCL 445.86(2) specifies the requirements for
bringing a civil action and what damages may be recovered for a
knowing violation of MCL 445.83. The first sentence of MCL
445.86(2) allows an individual to bring a civil suit against
another person for recovery of actual damages when a defendant has
intentionally violated MCL 445.83. The second sentence of MCL
445.86(2) provides recovery of the actual damages suffered by the
plaintiff or statutory damages of $1000 if that statutory amount is
greater than the plaintiff's actual damages when a defendant has
knowingly and intentionally violated MCL 445.83. The third sentence
also permits the recovery of reasonable attorney fees when a
defendant has knowingly and intentionally violated MCL 445.83.

If the Legislature intended that a plaintiff could plead and prove
a per se violation of MCL 445.83 and collect $1,000 in statutory
damages, the Court believes that the Legislature would have so
stated. It did not do so. The Court concludes the plain language of
the statute at bar requires pleading and proof of actual damages.

Plaintiffs make two additional arguments as attempts to escape the
statutory actual damages requirement. First, plaintiffs argue that
they pleaded actual damages in their complaint.
The Court disagrees. The primary function of a pleading in Michigan
is to give notice of the nature of the claim or defense sufficient
to permit the opposite party to take a responsive position. Under
MCR 2.111(B)(1), A complaint must contain a statement of the facts,
without repetition, on which the pleader relies in stating the
cause of action, with the specific allegations necessary reasonably
to inform the adverse party of the nature of the claims the adverse
party is called on to defend.

In this case, plaintiffs' demand letter said nothing about actual
damages. Their complaint alleged violations of the SSNPA, alleged
that they were entitled to statutory damages, but no allegations
stated that either plaintiff suffered any actual damages from the
alleged violations of the Act.

After defendant moved for summary disposition, plaintiffs argued
that they suffered actual damages because a court could infer from
their complaint that they would suffer apprehension of identity
theft or some other form of mental anguish constituting injury from
which damages might flow including the cost of freezing their
credit. Their complaint, however, contains no such allegations or
any allegations of specific facts from which defendant could
ascertain any actual damages. Although under subrule (C)(8) we must
accept well-pleaded factual allegations as true and construe them
in a light most favorable to the nonmoving party, we are not
permitted to graft onto a pleading allegations a party has not
made. Plaintiffs were required to plead actual damages but they
failed to do so.

The trial court, therefore, did not err by granting defendant
summary disposition under MCR 2.116(C)(8).

PLAINTIFFS' TORT CLAIMS

Plaintiffs also argue that the trial court improperly dismissed
their claims of invasion of privacy and ordinary negligence.

The Court disagrees.

There are four different types of invasion of privacy (1) intrusion
upon the plaintiff's seclusion or solitude or into his private
affairs (2) public disclosure of embarrassing private facts about
the plaintiff (3) publicity that places the plaintiff in a false
light in the public eye; and (4) appropriation, for the defendant's
advantage, of the plaintiff's name or likeness.

A defendant does not invade a plaintiff's right of privacy by
communicating a fact concerning the plaintiff's private life to a
single person or even to a small group of persons.

In this case, plaintiffs did not allege that defendant actually
disclosed their private information to persons that made it
substantially certain that their social security numbers would
become public knowledge. Rather, they alleged that subscribers
might be capable of accessing, duplicating, and disseminating that
information. Plaintiffs also did not allege that their private
information constituted information highly offensive to a
reasonable person. Instead, plaintiffs alleged that reasonable
persons might find social security number disclosure offensive. As
such, plaintiffs failed to allege a claim of invasion of privacy by
the public disclosure of embarrassing private facts.

Accordingly, the trial court did not err by dismissing this claim
without prejudice..

Affirmed.

A full-text copy of the Mich. App.'s September 3, 2019 Opinion is
available at  https://tinyurl.com/y6gv5lj3 from Leagle.com.

MICHAEL J. PATWELL - mpattwell@clarkhill.com - IAN S. BOLTON ,
Third Floor Essex Centre 28400 Northwestern Highway P.O. Box 215,
Southfield, MI 48034, for ADAM NYMAN, Plaintiff-Appellant.

JOANNE GEHA SWANSON – jswanson@kerr-russell.com - for THOMSON
REUTERS HOLDINGS, INC., Defendant-Appellee.


TOLEDO CLINIC: Faces Class Action Over Botox Over-Biling
--------------------------------------------------------
Tyler Paley, writing for WTOL, reports that a class-action lawsuit
in the Lucas County Court of Common Pleas alleges a pattern of
over-billing by the Toledo Clinic.

The claim, which was reviewed by WTOL, said the clinic billed
patients for full doses of Botox, while they actually received far
less.

The 20-page filing said two doctors, who treated patients with
Botox for migraines, didn't use the recommended amount and then
charged for more than that amount.

"The patients, including Ms. Schramm, were billed for the full
amount of a vial of Botox, but they didn't actually receive the
full amount they were billed for," said Carasusana Wall, a partner
at Zoll & Kranz, the law firm that filed the suit. "In fact, they
didn't receive the amount that was recommended for the treatment of
their migraines."

The FDA recommends 155 units of Botox per migraine treatment. 200
units come in one vial.

"Our investigation reveals that they were receiving less than the
155 units, even," Wall said.

The suit also claimed the remaining Botox in each used vial was
occasionally reused on someone else.

The Toledo Clinic declined WTOL's request for an on-camera
interview, but released the following statement:

"A class action lawsuit has been filed against the Toledo Clinic
regarding the administration of Botox by two neurologists no longer
associated with the Toledo Clinic.

"Toledo Clinic compliance officers directed an audit of the Botox
administered by all Toledo Clinic-employed providers. In that
audit, the Toledo Clinic discovered irregularities with the Botox
billing practices of Dr. Mamon Maiteh and Dr. James Auberle and
determined that it was possible that some number of their patients
had received less than the manufacturer recommended dosage of that
medication.

"As a result of its investigation and audit, the Toledo Clinic
terminated the employment of Dr. Maiteh and Dr. Auberle, made a
full disclosure to the federal government, and began the process of
returning the applicable payments to third-party payors and
patients. The Toledo Clinic also sent a letter advising patients of
the potential dosage issue, apologizing for the need to raise the
concern with them, and offering a free evaluation of their clinical
status relating to the Botox in an effort to coordinate their
on-going care. All of these independent actions were taken by the
Toledo Clinic because it was the right thing to do and without any
prior knowledge of the now pending lawsuit. The Toledo Clinic did
not knowingly participate in any wrongful conduct by Dr. Maiteh or
Dr. Auberle.

"As a result of the filing of the lawsuit, the Toledo Clinic will
not be in the position to comment further on these important
matters."

But Wall said it goes much deeper than reimbursements.

"There's honesty that's required and you can't tell someone that
you are using or charging them for something, and then actually
doing something else with it," she said.

The class-action lawsuit could take quite some time to wind its way
through the courts. It will take at least several months but quite
possibly several years. [GN]


UBER TECHNOLOGIES: Judge OKs $32.5MM Safe Rides Settlement
----------------------------------------------------------
Ross Todd, writing for Law.com, reports that a federal judge in San
Francisco has given final sign-off to a $32.5 million deal Uber
Technologies reached with a class of passengers to settle claims
related to its "safe rides" fees.

U.S. District Judge Jon Tigar of the Northern District of
California gave preliminary approval to the settlement more than
two years ago, but pumped the brakes on the deal last year while
the U.S. Court of Appeals for the Ninth Circuit considered In re
Hyundai and Kia Fuel Economy Litigation—a case concerning the
viability of multistate class action settlements—en banc.

On Aug. 13, with Hyundai resolved in a way that's friendly to class
action settlements, Tigar gave final approval to the Uber deal,
which provides class members with $0.25 for the first safe rides
fee they were charged and $0.05 for each subsequent charge -- an
average of about $1.07 per class member. As part of the deal, Uber
has agreed to cease charging "Safe Rides Fees" and to refrain from
using statements like "safest ride on the road" and
"industry-leading" when describing company safety measures in
advertising. Under the terms approved by Tigar, all unclaimed funds
will go to the National Consumer Law Center.

In the Aug. 13 order, however, Tigar declined to approved
plaintiffs attorneys' request for 25% of the settlement amount, or
$8.125 million, finding that the settlement should be treated as a
coupon settlement under the Class Action Fairness Act. Tigar wrote
that Ninth Circuit law holds that attorney fees in such cases must
be based on redemption rates for coupon portions of the settlement
and based on the attorneys' lodestar time for any non-coupon
portion.

"Having concluded that this settlement should be governed by the
principles applicable to coupon settlements under CAFA, the court
orders plaintiffs to file an amended motion for attorney's fees
consistent with the above principles," Tigar wrote.

A representative from Uber declined to comment on Aug. 14. Tina
Wolfson of Ahdoot & Wolfson and Mike Arias of Arias Sanguinetti
Stahle & Torrijos, who represent the plaintiffs, didn't immediately
respond to messages.

The case was originally filed in 2014 claiming Uber misled
consumers about conducting "industry-leading" background checks and
failed to use the Safe Rides Fee to pay to provide more secure
rides. Uber in 2016 settled related lawsuits brought by district
attorney's offices in San Francisco and Los Angeles over how it
touted its safety practices. [GN]


UNITED HEALTHCARE: Must Face Mental Health Coverage Class Action
----------------------------------------------------------------
Jennifer Rigterink, Esq. -- jrigterink@proskauer.com -- of
Proskauer Rose LLP, in an article for The National Law Review,
reports that in the latest volley between participants and group
health plans over mental health services coverage, a federal
district court in California denied United Healthcare's motion to
dismiss a putative class action challenging the reimbursement rates
for out-of-network mental health services.  In this case, the
plaintiffs alleged that UHC reduced reimbursement rates for
out-of-network services by 25% for services provided by a
psychologist and by 35% for services provided by a masters level
counselor in violation of the Paul Wellstone and Pete Domenici
Mental Health Parity and Addiction Equity Act of 2008 (the "Parity
Act").

The Parity Act, which we have blogged about previously, requires
that, if a group health plan or health insurance issuer provides
medical/surgical benefits and mental health and substance use
disorder (MH/SUD) benefits, the financial requirements and
treatment limitations applicable to MH/SUD benefits cannot be more
restrictive than those that apply to medical/surgical benefits.

The court ruled that plaintiffs stated a plausible claim under the
Parity Act.  In so ruling, the court first concluded, over UHC's
objections, that plaintiffs could pursue multiple theories as to
how the reimbursement adjustment violated the Parity
Act—including alleging that the restriction was an impermissible
financial requirement, quantitative treatment limitation and
nonquantitative treatment limitation.  Next, the court rejected
UHC's argument that plaintiffs failed to state a claim because the
complaint did not identify a medical/surgical benefit comparable to
the MH/SUD benefits at issue and did not allege that the
reimbursement policy was applied more stringently to the MH/SUD
benefits than the comparable medical/surgical benefit.  The court
explained that it was sufficient for the complaint to allege that
the defendant had singled out MH/SUD services for disparate
treatment by applying the reimbursement adjustment to MH/SUD
services only.  According to the court, plaintiffs did not need to
identify a medical/surgical analogue that was not subject to a
comparable reimbursement adjustment.

The case is Smith v. United Healthcare Insurance Co., No.
18-cv-06336-HSG (N.D. Cal. July 18, 2019). [GN]


UNITED STATES: Johnson Files Suit v. SSA in Kentucky
----------------------------------------------------
A class action lawsuit has been filed against Commissioner of SSA.
The case is styled as Gregory Johnson, Pamela Osborne, Johnny
McIntosh, Christopher Ooten, John B. Wireman, Teddy Newsome, Logan
Smith, Linda Fouch, Rickey Bailey, on behalf of themselves and all
others similarly situated, Plaintiffs v. Commissioner of SSA,
Defendant, Case No. 7:19-cv-00070-REW (E.D. Ky., Sept. 20, 2019).

The nature of suit is stated as Social Security: DIWC/DIWW.

The United States Social Security Administration (SSA) is an
independent agency of the U.S. federal government that administers
Social Security, a social insurance program consisting of
retirement, disability, and survivors' benefits. Its current
leader, Commissioner Andrew Saul has served since June, 2019,
succeeding Acting Commissioner Nancy Berryhill.[BN]

The Plaintiffs are represented by:

     Alexandra Stewart, Esq.
     Arpit K. Garg, Esq.
     Daniel S. Volchok, Esq.
     Kelsey D. Russell, Esq.
     Wilmer Cutler Pickering Hale & Dorr, LLP - DC
     1875 Pennsylvania Avenue, NW
     Washington, DC 20006
     Phone: (202) 663-6121
     Fax: (202) 663-6363
     Email: arpit.garg@wilmerhale.com
            daniel.colchok@wilmerhale.com
            kelsey.russell@wilmerhale.com

          - and -

     John O. Goss, Esq.
     Goss & Fentress, PLC
     735 Newtown Road, Suite 100
     Norfolk, VA 23502
     Phone: (757) 466-1095
     Fax: (757) 461-4670
     Email: johngoss@gossandfentress.com

          - and -

     Ned Pillersdorf, Esq.
     Pillersdorf, DeRossett & Lane - Prestonsburg
     124 W. Court Street
     Prestonsburg, KY 41653
     Phone: (606) 886-6090
     Fax: (606) 886-6148
     Email: pillersn@bellsouth.net

          - and -

     Stephen A. Sanders, Esq.
     Appalachian Citizens' Law Center - Whitesburg
     317 Main Street
     Whitesburg, KY 41858
     Phone: (606) 633-3929
     Fax: (606) 633-3925
     Email: steve@appalachianlawcenter.org


USAA CASUALTY: Court OKs Certification in Byorth
------------------------------------------------
The United States District Court for the District of Montana,
Billings Division, issued an Order granting in part and denying in
part Plaintiffs' Motion for Class Certification in the case
captioned PETER BYORTH and ANN McKEAN, on behalf of themselves and
all those similarly situated, Plaintiffs, v. USAA CASUALTY
INSURANCE COMPANY and JOHN DOES I-X, Defendant. No. CV
17-153-BLG-TJC. (D. Mont.).

Plaintiffs Peter Byorth and Ann McKean bring this putative class
action against USAA Casualty Insurance Company (USAA), alleging
USAA improperly administered medical payment insurance benefits and
wrongfully denied coverage to Montana consumers. Plaintiffs assert
five counts against USAA: (1) breach of fiduciary duty (2) breach
of contract (3) violation of Montana's Unfair Trade Practices Act
(MUTPA) (4) punitive damages and (5) declaratory and injunctive
relief.

The Plaintiffs also seek certification under Rule 23(b)(3). The
Court may certify a class under Rule 23(b)(3) if the court finds
that questions of law or fact common to the class members
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods of
adjudication.

Plaintiffs seek certification of the following five classes:

   (1) The RF Class: All USAA insureds who, from the starting date
of the applicable statute of limitations to present, submitted a
MedPay claim for payment of a medical bill and had full payment
denied for one or more bill lines based on an RF reason code,
including an RF_2, RF_3, or RF_2_26 or similar RF code, which was
defined in the EOR to mean that the charge exceeded a reasonable
amount for the service provided.

   (2) The PPO Class: All USAA insureds who, from the starting date
of the applicable statute of limitations to present, submitted a
MedPay claim for payment of a medical bill and had full payment
denied for one or more bill lines based on a PPO or similar reason
code, which was defined in the EOR to mean that the charge exceeded
an allowable rate set by databases containing PPO rates.

   (3) The DOC Class: All USAA insureds who, from the starting date
of the applicable statute of limitations to present, submitted a
MedPay claim for payment of a medical bill and had a payment denied
for one or more bill lines based on a or similar code, which was
defined in the EOR to mean the documentation submitted did not
substantiate the need for the billed treatment.

   (4) The Duration of Care or Gap in Care Class: All USAA insureds
who, from the starting date of the applicable statute of
limitations to present, submitted a MedPay claim for payment of a
medical bill and had payment denied for one or more bill lines
based on a PR 48, PR 167, PR 168, PR 172, PR 176 or similar reason
code in the EOR and the insured's electronic claim file shows an
auto move of the bill line for further review due to duration of
care, gap in treatment or similar annotation and

   (5) All Montanans presently insured under USAA MedPay policies.

Rule 23(a)

Under Fed. R. Civ. P. 23(c)(5), a class may be divided into
subclasses that are each treated as a class under the rule. This
means that each subclass must independently meet the requirements
of Rule 23 for the maintenance of a class action. Plaintiffs have
not attempted to show that each subclass meets the requirements of
each 23(a) factor. Rather, in their brief in support of their
Motion to Certify Class, Plaintiffs discuss the factors generally,
without application to each specific subclass. Nevertheless, the
Court is required to review each of the proposed subclasses to
determine whether Plaintiffs' showing satisfies the requirements of
Rule 23(a).

Numerosity

The numerosity requirement is satisfied when the class presented is
so large that joinder of all members is impracticable. An exact
number of members is not required to adequately plead numerosity; a
reasonable estimate is sufficient.. Nevertheless, a conclusory
allegation is not a reasonable estimate.  When proposing
subclasses, the plaintiff must show numerosity is met for each
subclass.  

Plaintiffs estimate the class to include hundreds of USAA insureds
across Montana. Plaintiffs claim this number is supported by USAA's
Notice of Removal, where USAA acknowledged the class would consist
of at least 100 class members. The Notice of Removal states over
100 Montana consumers submitted claims in which AIS provided
services in assistance of the medical bill audit process and in
which USAA CIC paid less than the submitted amount.

These criteria, however, do not match the limitations outlined in
Plaintiffs' proposed classes. Rather, the Notice of Removal relies
on the defined class in Plaintiffs' First Amended Complaint, and
that defined class is substantially broader than the proposed class
in Plaintiffs' Second Amended Complaint, and from the proposed
classes in the instant motion. The Court therefore cannot infer
numerosity is met based upon the First Amended Complaint's proposed
class because the instant proposed classes are defined more
narrowly.  

Nevertheless, USAA does not challenge the numerosity requirement
here. It removed the case to this Court under the Class Action
Fairness Act, alleging the class size easily includes more than 100
members. The Plaintiffs are also challenging USAA practices on a
state-wide basis. Given USAA's lack of opposition and the
representations made in its notice of removal, it is reasonable to
infer the numerosity requirement has been met. Additionally, the
numerosity requirement is relaxed where plaintiffs seek injunctive
and declaratory relief. Reasonable inferences arising from
plaintiffs' evidence are sufficient.  

Commonality

Commonality is met through the existence of the same injury
resulting in a common contention that is capable of classwide
resolution in one stroke. But even a single common question is
sufficient to satisfy the requirement.  

Plaintiffs have identified the following common questions of fact
and law relative to each of their proposed subclasses:

   (1) Does USAA condition coverage of MedPay claims using an RF
methodology without USAA's adjusters conducting individualized
investigations? Does this practice violate Montana law or breach
the policy?

   (2) Does USAA condition coverage of MedPay claims using PPO
denials without USAA's adjusters conducting individualized
investigations? Does this practice violate Montana law or breach
the policy?

   (3) Does USAA condition coverage of MedPay claims using DOC
denials without USAA's adjusters conducting individualized
investigations that the documents are necessary to substantiate the
treatments? Does this practice violate Montana law or breach the
policy?

   (4) Does USAA condition coverage using duration of care or 12th
treatment denials without USAA's adjusters conducting
individualized investigations to determine whether the treatments
are necessary? Does this practice violate Montana law or breach the
policy?

   (5) Does USAA condition coverage using 90-day gap in care
denials without USAA's adjusters conducting individualized
investigations to determine whether the treatments are necessary?
Does this practice violate Montana law or breach the policy?

The Plaintiffs allege these questions can be answered on a class
wide basis because every MedPay claim goes through USAA's MBA
process regardless of any differences the claims may have.
Therefore, the legality of that process holds the class' claims
together. USAA does not dispute that all of its MedPay claims are
processed through AIS under the MBA.

The Court finds that Plaintiffs have sufficiently identified
questions of fact that are common to each subclass.

Therefore, Plaintiffs have identified a common injury, the denial
or reduction of benefits, a common contention the denial of claims
without conducting a reasonable investigation, the common question,
according to Plaintiffs, can be answered on a classwide basis and
it is central to Plaintiffs' claims.

The Court finds the commonality requirement has been satisfied.

Typicality

Rule 23(a)(3) requires that the claims and defenses of the named
plaintiffs be typical of the those of the rest of the class. The
test of typicality is whether other members have the same or
similar injury, whether the action is based on conduct which is not
unique to the named plaintiffs, and whether other class members
have been injured by the same course of conduct.

Here, Plaintiffs claim they suffered the same injury as all class
members as a result of USAA's claims practices the denial or
underpayment of claims. Further, Plaintiffs have submitted exhibits
to their brief demonstrating that Byorth's and/or McKean's claims
were denied or reduced for reasons identified in each subclass.

Plaintiffs have sufficiently alleged and produced evidence to show
that Byorth and McKean have similar injuries to the putative class
members and were allegedly injured by the same course of conduct.
Typicality is therefore met.

Adequacy of Representation

Rule 23(a)(4) requires the named plaintiff to fairly and adequately
protect the interests of the class.  To determine whether this
requirement has been met, courts look to two factors: (1) whether
the named plaintiff's counsel is competent to represent the class
and (2) whether there exists any conflict of interest between the
class representatives and the rest of the class.  

There is no dispute that Plaintiffs' counsel is competent to handle
this matter on behalf of the class. It is also unlikely any
conflict of interest exists or will arise between the class
representatives and class members. Plaintiffs' claims are
substantially similar to the class claims, and Plaintiffs have
vigorously litigated this matter on behalf of the class thus far.

The adequacy of representation requirement is clearly met.

Rule 23(b)

If the Court finds Plaintiffs have satisfied the prerequisites of
Rule 23(a), it must then evaluate whether Plaintiffs have met at
least one of the categories under Rule 23(b). The categories are
not mutually exclusive, and the Court can certify a class under
more than one subdivision.
  
Here, Plaintiffs request that the Court certify four classes under
Rule 23(b)(3) and a single class for declaratory and injunctive
relief under Rule 23(b)(2).

Rule 23(b)(3)

Plaintiffs propose certification of their first four classes under
Rule 23(b)(3). As discussed above, to certify a class under Rule
23(b)(3), the Court must find questions of law or fact common to
class members predominate over any questions affecting only
individual members. The Court must also determine that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.

These two factors are referred to as the predominance and
superiority requirements.

Predominance

The predominance inquiry is more stringent than the commonality
criteria under Rule 23(a)(2) and tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.
Cohesiveness rests on the dominance of common questions over
individual interests in the case.  

Common questions are those where the same evidence will suffice for
each member to make a prima facie showing or the issue is
susceptible to generalized, class wide proof, while individual
questions require class members to present evidence that varies
from member to member.  

Here, common questions do not predominate over the class members'
individual questions.

Plaintiffs' class claims are based on alleged breach of the
insurance policy and violation of the MUTPA, specifically Mont.
Code Ann. Sections 33-18-201(4). Section 201(4) prohibits refusing
to pay claims without conducting a reasonable investigation based
upon all available information.

In order to establish a violation of section 201(4), Plaintiffs
will be required to show USAA (i) refused to pay their medpay claim
(ii) without conducting a reasonable investigation based upon all
available information  and (iii) that the violation caused
Plaintiffs actual damages.
  
For their breach of contract claim, Plaintiffs must establish a
breach of the insurance contract, and that the breach of contract
proximately caused damages, or that the damages likely resulted
from the breach of contract.

Individualized issues would predominate over the common issues in
both of Plaintiffs' claims, since the evidence required to
adjudicate the claims will differ substantially for each class
member. The Court would be required to conduct an inquiry into the
adjustment process for each claim to determine whether USAA's
process was wrongful as to that claim.

Additionally, proving the elements of a MUTPA claim would require
Plaintiffs to show USAA's processing scheme resulted in damages to
the class members. But the criteria for establishing damages under
the MUTPA are individualized. Damages are only awarded under the
MUTPA where the claimant's damages were proximately caused by the
MUTPA violation.   

Addressing this issues would require an individualized
determination of what services were performed, what amount was
billed for those services; was that amount reasonable; how much did
USAA pay toward the bill; and did the health care provider bill the
claimant for the remaining balance? These individualized inquiries
tend to negate predominance.

Plaintiffs' breach of contract claim also raises individual
questions, did USAA's claims process breach the policy for each
claim, and did each member suffer damages as a result?

With respect to the duration-of-care or gap-in-care subclasses,
claims within these classes were not denied; the claims were
flagged to trigger a medical review prior to payment. Therefore,
each claim flagged for review would require an assessment of the
necessity of a medical review, an examination of the physician or
nurse's analysis of the medical records and bills; and an
evaluation of the recommendation to pay or deny the claim. The
adjuster's ultimate decision to pay or deny the claim would also be
subject to review.

Therefore, Plaintiffs' claims present numerous individualized
questions which would plainly predominate over common questions.

Superiority

In addition to predominance, the Court must also consider whether a
class action is superior to other forms of adjudication. Since the
Court has found that Plaintiffs have not satisfied the predominance
requirement, the superiority requirement does not need to be
determined.

Nevertheless, these claims are subject to individual actions.
Contrary to Plaintiffs' argument, individual actions for breach of
insurance contracts and violation of the MUTPA are regularly
brought in this Court. In fact, two similar cases are currently
pending in this Court. Garner v. USAA GIC et al., 19-CV-59-DWM (D.
Mont.); Lorenz v. Garrison, 18cv-82-BLG-TJC (D. Mont.). They are
also not necessarily of de minimis value. Under the MUTPA,
plaintiffs can recover not only the benefits under the insurance
policy but can also recover general damages and punitive damages in
appropriate cases.

Accordingly, the Court finds certification under Rule 23(b)(3) is
not appropriate.

Rule 23(b)(2)

Plaintiffs also seek certification of a single class under Fed. R.
Civ. P. 23(b)(2). As noted, the proposed class consists of all
Montanans presently insured under USAA MedPay policies. Plaintiffs
seek declaratory and injunctive relief.

Under Plaintiffs proposed framework here, their claim for
injunctive and declaratory relief does not seek damages. Their
request for declaratory relief would address each class member's
complaint that USAA adjusts MedPay claims without conducting an
individualized investigation, and their request for injunctive
relief would prevent that practice in the future. Such declaratory
and injunctive relief would satisfy Rule 23(b)(2) since the conduct
complained of is generally applicable to the class as a whole. That
is, each class member holds a USAA MedPay policy and complains of
the same alleged pattern or practice that USAA does not complete an
individualized investigation before (1) paying health care
providers a reduced amount or (2) declining to pay the amount
charged altogether.

Moreover, a single injunction or declaratory judgment would provide
relief to each member of the class; multiple injunctions or
declarations would not be required. Therefore, certification of a
single class under Rule 23(b)(2) seeking declaratory and injunctive
relief is appropriate.

Plaintiffs' motion to certify a class action under Fed. R. Civ. P.
23(b)(2) is granted with respect to their claim for declaratory and
injunctive relief in Count V of Plaintiffs' Second Amended
Complaint.  

The class will consist of all current residents of the state of
Montana who are currently insured under a USAA MedPay policy. The
issues to be determined in the action are (1) whether Plaintiffs
are entitled to declaratory judgment that USAA's MedPay claims
handling practices violate Montana law by either reducing or
denying claims without first conducting a reasonable investigation
and (2) whether Plaintiffs are entitled to an injunction
prohibiting such claims practices.

Plaintiffs' motion for class certification is denied in all other
respects.

A full-text copy of the District Court's September 3, 2019 Order is
available at  https://tinyurl.com/y4t6tu7s from Leagle.com.

Peter Byorth, on behalf of themselves and all those similarly
situated & Ann McKean, on behalf of themselves and all those
similary situated, Plaintiffs, represented by Jeffrey J. Tierney ,
GOETZ, BALDWIN & GEDDES, P.C., 35 North Grand Avenue (59715),
Bozeman, Montana, 59715, John C. Heenan , BISHOP, HEENAN & DAVIES,
1631 Zimmerman Trail, Billings, MT 59102, Brendan W. Donckers
-bdonckers@bjtlegal.com - BRESKIN JOHNSON & TOWNSEND PLLC, pro hac
vice, David E. Breskin - dbreskin@bjtlegal.com - BRESKIN JOHNSON &
TOWNSEND PLLC, pro hac vice, James Devlan Geddes , GOETZ, BALDWIN &
GEDDES, P.C. & Trent M. Gardner , GOETZ, BALDWIN & GEDDES, P.C., 35
N. Grand Ave., Bozeman, MT 59715

USAA Casualty Insurance Company, Defendant, represented by Ian
McIntosh , CROWLEY FLECK, PLLP, 490 N 31st Street Suite 500
Billings, MT 59101,  Jeremy A. Moseley - moseley@wtotrial.com -
WHEELER TRIGG O'DONNELL LLP, Kelsey E. Bunkers , CROWLEY FLECK,
PLLP, 1915 South 19th Avenue, Bozeman, MT  59718 & Hannah R.
Seifert  - Seifert@wtotrial.com - WHEELER TRIGG O'DONNELL LLP.


VIVA WIRELESS: Jones Sues Over Unpaid Overtime Wages
----------------------------------------------------
Joshua Jones, Myeisha Morrison, Camille Jones, Lamon Adams, Tanae
Thompkins and Tenesha Smith, individually, on behalf of all others
similarly situated and as class representatives, Plaintiffs, v.
VIVA WIRELESS, INC., STEELERS WIRELESS, INC., MARCELO HERBAS, RAFIQ
WAZIR ALI, ALEX "DOE", Defendants, Case No. 2:19-cv-04212-MSG (E.D.
Pa., Sept. 12, 2019) is a complaint on behalf of Plaintiffs and
other current and former employees of Defendants who are owed back
wages from Defendants for overtime work for which they did not
receive overtime premium pay pursuant to the Fair Labor Standards
Act. Plaintiff also complain that they are owed wages, overtime
premium pay and/or sales commission under the Pennsylvania Minimum
Wage Act and the Pennsylvania Wage Payment and Collection Law .

Viva Wireless, Inc. was in the business of operating cellular
phones stores under the name Boost Mobile and/or TU Mobile in
Philadelphia, its suburbs, Delaware and New Jersey. Plaintiffs
worked in Defendants' stores.

Plaintiff and their similarly situated co-workers regularly work
and/or worked in excess of 40 hours in the workweek. However,
Plaintiffs and their co-workers were and/or are not paid overtime
premium pay for all work hours in excess of 40 hours in a workweek.
The Defendants undertook to pay Plaintiffs sales commissions but
did not issue Plaintiffs written commission agreements or
statements. The Defendants frequently failed to pay the promised
commissions. The Defendants regularly altered Plaintiffs'
commission structure between the time that their commissions were
earned and the times that those commissions were payable, says the
complaint.[BN]

The Plaintiffs are represented by:

     Jonathan A. Bernstein, Esq.
     MEENAN & ASSOCIATES, LLC
     299 Broadway, Suite 1310
     New York, NY 10007
     Phone: (212) 226-7334
     Email: jb@meenanesqs.com

          - and -

     Christopher Q. Davis, Esq.
     LAW OFFICES OF CHRISTOPHER Q. DAVIS
     80 Broad Street, Suite 703
     New York, NY 10004
     Phone: (646) 430-7930


WESTERN EXPRESS: Removes Benavides Suit to C.D. California
----------------------------------------------------------
The Defendant in the case of STEPHEN BENAVIDES, individually and on
behalf of all others similarly situated, Plaintiffs v. WESTERN
EXPRESS, INC.; and DOES 1 through 50, Defendants, filed a notice to
remove the lawsuit from the Superior Court of the State of
California, County of San Bernardino (Case No. CIVDS1921020) to the
U.S. District Court for the Central District of California on
August 23, 2019. The clerk of court for the Central District of
California assigned Case No. 5:19-cv-01604. The case is assigned to
Judge David O. Carter.

Western Express Inc., is an asset based truckload carrier. The
Company offers truckload van, dedicated fleet, flatbed
transportation, expedited truck & rail, and logistics services
throughout the United States. [BN]

The Plaintiff is represented by:

          Richard D. Marca, Esq.
          Jeff T. Olsen, Esq.
          VARNER & BRANDT LLP
          3750 University Avenue, Suite 610
          Riverside, CA 92501
          Telephone: (951) 274-7777
          Facsimile: (951) 274-7770
          E-mail: Richard.Marca@varnerbrandt.com
                  Jeff.Olsen@varnerbrandt.com


YOUTUBE: LGBTQ Creators File Discrimination Class Action
--------------------------------------------------------
Paige Leskin, writing for Business Insider, reports that LGBTQ
creators are suing YouTube and its parent company, Google, alleging
the video platform discriminated against them by unfairly applying
its policies in a way that restricts queer content from making
money and being seen by a wide audience.

The lawsuit alleges that YouTube's policies are not applied evenly
across content, allowing LGBTQ content to be marked as "shocking"
and "sexually explicit" and hate speech to remain on the platform.

YouTube deploys "unlawful content regulation, distribution, and
monetization practices that stigmatize, restrict, block,
demonetize, and financially harm the LGBTQ+ Plaintiffs and the
greater LGBTQ+ Community," the suit says.

The class-action suit -- meaning plaintiffs with similar complaints
are included, and can join on -- is being brought on by eight
YouTubers who say they have been affected by the platform's
practices.

One of the plaintiffs alleges a Google employee explicitly told
them they weren't able to purchase an ad because it was about LGBTQ
issues. Celso Dulay and Chris Knight, who produce a talk show
called "GNews!," say they tried to buy an ad on YouTube to promote
a Christmastime show they had published.

However, YouTube rejected the ad because of "shocking content."
When Dulay and Knight tried to dispute YouTube's decision, a
content regulator allegedly told the two that their ad was likely
rejected because of the "gay thing."

A recording of Dulay and Knight's conversation with Google AdWords
has been made available on Dropbox.

"So many people have demanded change, have been shut out, and have
went on to pursue other careers," Bria Kam, one-half of the YouTube
couple Bria and Chrissy, told Business Insider. "We kind of feel
hopeless at this point . . . We want systematic change."

Bria and Chrissy say the effect of YouTube's policies have meant
the married couple is no longer able to make a living creating
videos. The pair used to bring in 5 million views and $3,500 to
$4,000 a month with their YouTube channel. But for the past two
years, the couple's revenue has shrunk to $400 to $500 a month.

YouTube did not respond to Business Insider's request for comment.

With more than 500 hours of video being uploaded to the
Google-owned platform each minute, YouTube has become one of the
biggest places online for people to consume content.

The suit alleges that YouTube's policies that determine which
videos are eligible for ads and monetization unfairly target LGBTQ
content. YouTube says that its artificial-intelligence system used
to regulate content is "viewpoint-neutral," but the suit says the
algorithms are applied to the identity of the video creator instead
of the content itself.

Many YouTubers have long insisted that these algorithms are
programmed to demonetize and restrict videos with LGBTQ-related
terms and content in them. This has something that YouTube has
repeatedly denied: CEO Susan Wojcicki said in a recent interview
that YouTube does not "automatically demonetize LGBTQ content," and
insisted there "shouldn't be" words that cause instant
demonetization.

However, one of the plaintiffs in the suit, YouTuber Chase Ross,
alleges that his experiences have proved otherwise. In the lawsuit,
Ross says he recently tested his theory that certain words trigger
videos to be restricted. He uploaded two videos in which he
reviewed different kinds of tea, and peppered in LGBTQ-related
terms in the video. Despite these videos centering on reviewing tea
products, YouTube marked these videos as restricted.

"YouTube has really been messing with me, and that means they're
messing with a lot of people," Ross told Business Insider. "I want
to see the community being respected. I want YouTube to actually
fix things." [GN]


[*] HB 5001 Could Have Thrown Out Servers' Wage Class Actions
-------------------------------------------------------------
Robert Storace, writing for Law.com, reports that Gov. Ned Lamont
is weighing a compromise between restaurant owners and workers,
after vetoing a bill that could have thrown out class action wage
lawsuits.

Numerous class action wage lawsuits by servers against restaurants
could have been thrown out or hobbled if Lamont had signed
Connecticut House Bill 5001.

That is the consensus among both supporters and opponents of the
bill, who now say they are watching closely, as the governor -- who
vetoed the proposed legislation -- might be amenable to a
workaround that affects how servers are paid.

"The governor is currently working with legislative leadership on
crafting a compromise bill," Lamont's spokesperson David Bednarz
said on Aug. 14. "Those discussions are ongoing."

New Haven Legal Assistance Association attorney James
Bhandary-Alexander opposed House Bill 5001, which he said sought to
"get rid of the lawsuits."

"What the bill was aimed at doing was eviscerating all claims that
anyone had or could have had under the law, including all class
action claims and all individual claims," he said.

At issue is Section 7 of the bill, which, would have wiped out
Sections 31-62-E4 within Chapter 54 of the Connecticut General
Statutes -- a roughly five-decades-old provision that requires
segregation of servers' service duties and the non-service tasks,
which involve cleaning bathrooms and any other work not related to
direct face-to-face contact with diners. It then requires employers
to pay accordingly, using the state's minimum wage $10.10 an hour
for nonservice tasks rather than the $6.38 minimum for service
duties.

There are at least seven class action lawsuits pending against
Connecticut restaurants, alleging the companies did not segregate
service duties and nonservice duties. The lawsuits, all involving
Hartford-based employment attorney Richard Hayber, allege the
restaurants underpaid servers for chores like removing garbage,
stocking and sweeping.

Hayber, principal of Hayber Law Firm, said on Aug. 14 that if
Lamont had signed the bill, "in short, it would have meant that
restaurants could have paid the tip rate for non-tipped work, and
gotten away with it."

Scott Dolch, executive director of the 1,200-member Connecticut
Restaurant Association, suggested his members aren't looking to
underpay their staff. Instead, he said they've adhered to the
federal 80/20 rule, which allows for 80% of a server's time to be
spent attending customers and up to 20% allotted to other duties.
The state Department of Labor states on its website that it will
not penalize restaurants who follow the 80/20 rule and don't offer
two pay rates, although that doesn't mean private actions can't be
filed.

Dolch said the current law on segregating job responsibilities is
cumbersome and confusing.

"Clocking in and clocking out for performing service duties and
non-service duties is burdensome," he said. "It could mean clocking
in and out 30 times a day because you can have multiple tables, and
there is side work to be done. It's just so confusing and literally
impossible for a restaurant to manage the process as it's written
now."

Dolch said the current law leaves businesses vulnerable to
litigation.

"It's opening our industry up for more and more lawsuits," he said.
"To be sued, or potentially sued. for doing what is done in other
states is just not right." [GN]



                            *********

S U B S C R I P T I O N   I N F O R M A T I O N

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