/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/191023.mbx C L A S S A C T I O N R E P O R T E R Wednesday, October 23, 2019, Vol. 21, No. 212 Headlines 3M CO: More Firefighters Expected to Take Part in PFAS Lawsuit AKAMI INC: Obtains Summary Judgment Ruling in Zhang FLSA/NYLL Suit ALDER BIOPHARMA: Wolf Balks at Lundbeck Merger Deal AMAZON.COM INC: Fails to Pay Drivers Overtime Wages, Edmonds Says ASHLEY DIANA BLACK: Elson Suit Transferred to S.D. Tex. ASTRAZENECA PHARMA: Sued over Monopoly of Seroquel XR BAUSCH HEALTH: UFCW Sues over Monopoly of Glumetza Sales BEACH ENTERTAINMENT: Hand Seeks to Certify Three Classes BECTON DICKINSON: Remand of Olson Labor Suit to State Court Denied BRIDGE PROPERTY: Court Trims Claims in Limson Consumer Credit Suit BRIGHAM HOME: Hazzard Seeks Overtime Pay for Nurses & Caregivers BULLROCK, LLC: West et al Seek Overtime Pay for Workers CELTIC MARKETING: Born Files Suit Over Unauthorized Calls CHARLES SCHWAB: 9th Cir. Reverses ERISA Arbitration Case Ruling CHEFS' WAREHOUSE: Removes Trujillo Labor Case to C.D. California CK AUTOMOTIVE: Boyd Asserts Fla. Motor Vehicle Repair Act Breach COMMUNITY BANK: Plaintiffs Lawyers Resume Fight Over $2MM Fee CONSUMER ADVOCACY: Nebuchin Suit Alleges Invasion of Privacy CREDIT SUISEE: New York Southern District Dismisses Securities Suit DASMEN RESIDENTIAL: Woodson Seeks to Certify Class DMJJ CONSTRUCTION: Fagerson Sues Over Illegal Telemarketing Call DOROTHY A. BROWN: Smith Seeks to Certify Class DOUBLE J COLLISION: Cabrera Suit to Recover Unpaid Overtime DUKE UNIVERSITY: $18.2MM Attorneys' Fees Awarded in Seaman Suit ECOTECH LLC: Fails to Pay Overtime Wage Under FLSA, Loveless Says ELNA CO: Dec. 23 Deadline Set to Object to Deal on Capacitors Suit EROS INT'L: Opus Chartered Suit Transferred to New Jersey EUBA CORP: Certification of Delivery Drivers Class Sought FACEBOOK INC: Court Dismisses Securities Suit with Leave to Amend FRIENDLY LIMOUSINE: Farooq Suit Seeks Unpaid Overtime Wages I-44 TRUCK CENTER: Enlow Seeks to Recover Overtime Wages Under FLSA IKEA INDUSTRY: Powell Seeks to Conditionally Certify Class INTEGRITY EMPLOYEE: Frazier Suit Asserts FCRA Violation INTERNATIONAL CRUISE: Kirlew Seeks Unpaid Overtime Wages LARSEN & TOUBRO: Faces Meyenhofer Suit for Racial Discrimination LEPRINO FOODS: Add'l. Depositions in Vasquez Labor Suit Partly OK'd LIBERTY CHEVROLET: Shover Seeks Overtime Wages for Salespersons LIBERTY POWER: Court Trims Claims in Second Amended Katz TCPA Suit LIFE TIME: Bid to Strike Class Claims in Rodriguez FLSA Suit Denied LIFESTYLE DIRECT: Faces Class Action Over Bogus Loans LOGITECH INC: Asks Supreme Ct. to Stay Proceedings in Porath Suit MDL 2034: $15MM Deal in Cable TV Antitrust Suit Gets Final OK MIASOLE HI-TECH: Jensen Seeks OT Wages, Damages Under WARN Act MIKE POSTLE: Class Action Mulled Over Poker Cheating Allegations NATIONAL CONSUMER: Trepeta FCRA Suit Underway in E.D. Virginia NATIONSTAR MORTGAGE: Patton Seeks to Certify Class and Subclasses NATIONWIDE MUTUAL: Call Center Employees Class Certified in Cowan NCAA: Deptula Sues Over Disregard for Student-Athletes' Safety NCAA: Dimmack Sues Over Disregard for Student-Athletes' Safety NCAA: Justice Sues Over Disregard for Student-Athletes' Safety NCAA: Kosminskas Sues Over Disregard for Student-Athletes' Safety NEW YORK: Diederich's Fed. Claims Tossed; Case Returns to State Ct. NEW ZEALAND: Dairy Farmers Mull Class Suit Over Bovis Expenses OVATION CREDIT: Class in Diggs FLSA Suit Conditionally Certified PATHWAY SENIOR: Thomas Sues over Collection of Biometeric Data PICORE BERISTAIN: Viloria Seeks Unpaid Wages for Security Guards PORTABLES UNLIMITED: Jones Seeks to Recover OT Wages Under FLSA PROGRESSIVE NORTHWESTERN: Pipkin Sues over Insurance Claims ROCKY MOUNTAIN: Thrasher EFTA Suit Dismissed; Default Entry Vacated S & W SUPERMARKET: Clemente Seeks Unpaid Overtime Wages SALEM COUNTY, NJ: Denial of Indemnification in Class Action Upheld SAN FRANCISCO, CA: Bail System Ruling Fails to Deliver Change SECURE HOME: Kingara Seeks Overtime Pay for Health Staff SIXT RENT: Faces Calderon Suit in Southern District of Florida SMILEDIRECTCLUB INC: Docs over 2019 IPO Misleading, Vang Says SS&S TECHNOLOGIES: Siyam Seeks Overtime Pay for Associates SURF STYLE: Erdman Seeks Copy of Background Check Report TACO'S PUEBLA: Cortes Seeks Unpaid Minimum, Overtime Wages TAL EDUCATION: Bid to Dismiss Amended Lea Securities Suit Granted TEAM LUBRICATION: Wilhite et al Seek Overtime Wages THERANOS: Former CEO Unable to Pay Lawyers' Fees TOYOTA MOTOR: Bid to Stay or Transfer Cardenas RICO Suit Denied TRUMAN ROAD: Smith Seeks Class Certification TWITTER, INC: Doshier Case Moved to Eastern District of Arkansas U.S. SOCCER: Files Motion Against Gender Bias Class Action UNITED STATES: $5.7MM Attorneys' Fees Awarded in Kane County Suit UNITED STATES: Court Decertifies Subclass in Abdi Detainees Suit UNITED STATES: ICE Faces Probe on Detainees Healthcare Class Suit US BANK: Maryland Dist. Ct. Dismisses Suazo Suit with Prejudice VIVINT SOLAR: Crumrine Sues Over Share Price Drop VOLKSWAGEN: Emissions Class Action Proceeding Commences in Germany WAL-MART STORES: Hamilton Appeals C.D. Cal. Ruling to 9th Circuit WHOLE FOODS: Pinkston Sues Over Almondmilk's Misleading Labels WYNN RESORTS: Schrader Sues over Sexual Abuse Cover-Up XPRESSCAPITALGROUP.COM: Schlesinger Case Transferred to M.D. Fla. ********* 3M CO: More Firefighters Expected to Take Part in PFAS Lawsuit -------------------------------------------------------------- Adriana Cotero, writing for KUAM News, reports that a class-action lawsuit recently filed seeks to capture all firefighters who may be suffering from exposure to toxic chemical foams. KUAM sat down with the attorney representing the plaintiffs on the case, Michael Berman. There are 23 named plaintiffs, a majority of who are airport firefighters have filed a class-action lawsuit against a variety of major corporations in the United States that were manufacturing the toxic chemical foam, P-FAS. This is a medical monitoring lawsuit that covers everybody that may have been exposed to the toxins explains the attorney on the case Michael Berman. "In case the court does approve the medical monitoring class they can sign up for the class and on basis they will be able to be medically monitored going forward and they will have more peace of mind about their situation," he said. Berman says the product has been used as early as the 1940s. "I think the people should understand a gasoline fire, a kerosene fire or a diesel oil fire cannot be put out by water, so there was a drive in the community, the science community the chemical community to come up with compounds or a type of treatment that would put these fires out rapidly in order to save more lives," he said. For this reason, the chemicals became widespread and deeply entrenched in the firefighting communities across the United States, "It really started on the military bases first, and the military bases were on the cutting edge of using these chemicals and they began recommending it to civilian firefighters and that's how it all spread out," Berman said, This puts Guam in a uniquely dangerous position, as the island is home to large military bases, and there are concerns of how many people have been exposed to the foam product and the risk factors they now suffer from. Berman says several of his clients have thyroid problems, and that is a prevalent issue connected to the foam. "I have approximately 30 people who have come to me to give me their medical reports and there is a sizeable portion of those suffering right now from ailments directly connected to this," he said. Twenty-three clients now, but Berman says it could easily reach in the hundreds. "The next step is all of these cases all across the united states have been consolidated to a multidistrict court litigation there is one federal court in South Carolina designated as the mdl," he said. Those that were injured in direct connection to toxins and determined from the medical monitoring would then result in more cases to follow. In a separate report, KUAM News noted that the named Defendants are PFAS manufacturers -- The named Defendants are 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Co.); TYCO FIRE PRODUCTS LP; CHEMGUARD, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; KIDDE-FENWAL, INC.; NATIONAL FOAM, INC.; DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND CO.; THE CHEMOURS COMPANY; THE CHEMOURS COMPANY FC, L.L.C. [GN] AKAMI INC: Obtains Summary Judgment Ruling in Zhang FLSA/NYLL Suit ------------------------------------------------------------------ Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York granted the Defendants' motion for summary judgment in the case captioned YAHUI ZHANG, individually and on behalf of those similarly situated, Plaintiff, v. AKAMI, d/b/a AKAMI SUSHI, et al., Defendants, Case No. 15-CV-4946 (VSB) (S.D. N.Y.). Plaintiff Zhang, on behalf of himself and other employees similarly situated, brings the action for alleged violations of the Fair Labor Standards Act, and the New York Labor Law, and for breach of implied contract. The Plaintiff alleges that the Defendants systematically failed to: (1) pay their employees minimum wage and overtime compensation; (2) properly record time spent by employees working; (3) provide Time of Hire Notices; and (4) provide employees with accurate paystubs. He further claims that he was required to commit over 20% of his workday to doing non-tipped work without receiving notification of the tip credit claimed by Defendants. Finally, the Plaintiff alleges that the Defendants failed to post the required New York State Department of Labor posters informing their employees about the minimum pay rates, overtime pay, tip credit, and payday information. Akami was incorporated on July 17, 2014. The Plaintiff began working for Akami as a deliveryman in about August 2014, and continued to be employed by Akami until May 4, 2015. From July 1, 2014 to June 30, 2015, Akami's gross receipts and sales were approximately $364,160. The Plaintiff filed the Amended Complaint on Aug. 6, 2015. On Oct. 13, 2015, he filed a motion to dismiss the Defendants' counterclaims, and the Defendants filed a motion to dismiss the Amended Complaint. On Sept. 26, 2017, Judge Broderick entered a Memorandum & Opinion, granting the Plaintiff's motion to dismiss the Defendants' counterclaims, granting the Defendants' motion to dismiss the Amended Complaint with regard to Counts XII and XIII, and denying the Defendants' motion to dismiss the Amended Complaint with regard to Counts I through XI. The Defendants filed their answer to the Amended Complaint on Oct. 18, 2017. On Sept. 25, 2018, after the close of discovery, the Defendants Akami, Yuan Hong Chen, also known as Andy Chen, Liang Jin Zhuo, and Lan Fang Yang moved for summary judgment as to all claims pursuant to Federal Rule of Civil Procedure 56. Defendant Lan Fang Yang argues that the Plaintiff's FLSA claims should be dismissed because she is not an employer as that term is defined under the FLSA or NYLL. The Defendants argue that Akami was not an enterprise covered by the FLSA because it was not engaged in commerce that resulted in at least $500,000 in gross annual sales volume during the time of the Plaintiff's employment. Judge Broderick finds that the Plaintiff has not demonstrated that there is an issue for trial relating to "enterprise coverage," and the Defendants' motion for summary judgment as to his FLSA claims is granted. The Plaintiff identifies no concrete evidence that calls the accuracy of Akami's tax returns into question. Instead, he impermissibly relies on conclusory allegations and unsubstantiated speculation. Moreover, even if speculation could defeat a motion for summary judgment--which it cannot--the Plaintiff's speculative calculations only arrive at an estimated annual gross volume of sales above the statutory threshold by ignoring the Plaintiff's own testimony about the number of deliveries per day, notes Judge Broderick. Because he has dismissed all of the Plaintiff's federal claims, the Judge must balance the the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction. All of the Plaintiff's FLSA claims have been dismissed. Accordingly, judicial economy, fairness, convenience and comity will be served best by declining to exercise supplemental jurisdiction over the Plaintiff's remaining NYLL claims. Accordingly, the Plaintiff's state-law claims are dismissed without prejudice to filing those claims in state court, rules the court. For the foregoing reasons, Judge Broderick granted the Defendants' motion for summary judgment. The Clerk of Court is respectfully directed to terminate the open motion at Document 63, to enter final judgment in favor of the Defendant, and to close the case. A full-text copy of the Court's Sept. 25, 2019 Opinion & Order is available at https://is.gd/XOAo6b from Leagle.com. Yahui Zhang, on behalf of himself & Yahui Zhang, others similarly situated, Plaintiffs, represented by Kibum Byun, Troy Law, PLLC & John Troy -- troylaw@troypllc.com -- Troy Law, PLLC. Akami Inc, doing business as Akami Sushi doing business as Akita Sushi & Liang Jin Zhuo, Defendants, represented by Eugene Kroner, Law Offices of Vincent S. Wong, Michael Aaron Brand, Law Offices of Vincent S. Wong & Vincent Wong -- vswlaw@gmail.com -- Law Offices of Vincent S. Wong. Yuan Hong Chen, also known as Andy Chen, Defendant, represented by Michael Aaron Brand, Law Offices of Vincent S. Wong & Vincent Wong, Law Offices of Vincent S. Wong. Lan Fang Yang, a/k/a Jane Doe, Defendant, represented by Michael Aaron Brand, Law Offices of Vincent S. Wong, Vincent Wong, Law Offices of Vincent S. Wong & John Tro, Troy Law, PLLC. John Doe, Akami Inc & Liang Jin Zhuo, Counter Claimants, represented by Eugene Kroner, Law Offices of Vincent S. Wong, Michael Aaron Brand, Law Offices of Vincent S. Wong & Vincent Wong, Law Offices of Vincent S. Wong. Yahui Zhang, on behalf of himself, Counter Defendant, represented by John Troy, Troy Law, PLLC. ALDER BIOPHARMA: Wolf Balks at Lundbeck Merger Deal --------------------------------------------------- The case, JACK WOLF, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. ALDER BIOPHARMACEUTICALS, INC., ROBERT AZELBY, PAUL CARTER, PAUL CLEVELAND, JEREMY GREEN, A. BRUCE MONTGOMERY, HEATHER PRESTON, CLAY B. SIEGALL, WENDY YARNO, H. LUNDBECK A/S, LUNDBECK LLC, and VIOLET ACQUISITION CORP., the Defendants, Case No. 1:19-cv-01838-UNA (D. Del., Sept. 30, 2019), stems from a proposed transaction announced on September 16, 2019, pursuant to which Alder BioPharmaceuticals, Inc. will be acquired by H. Lundbeck A/S, Lundbeck LLC, and Violet Acquisition Corp. On September 16, 2019, Alder's Board of Directors caused the Company to enter into an agreement and plan of merger with Lundbeck. Pursuant to the terms of the Merger Agreement, Merger Sub commenced a tender offer to purchase all of Alder's outstanding common stock for $18.00 in cash, plus one contingent value right per share, which represents the right to receive $2.00 per share. The Tender Offer was set to expire on October 21, 2019. On September 23, 2019, the Defendants filed a Solicitation/Recommendation Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading: -- The Solicitation Statement omits material information regarding the Company's financial projections. -- The Solicitation Statement omits material information regarding the analyses performed by the Company's financial advisor in connection with the Proposed Transaction, Centerview Partners LLC. -- The Solicitation Statement fails to disclose whether the Company entered into any nondisclosure agreements that contained "don't ask, don't waive" provisions that are or were preventing the counterparties from requesting waivers of standstill provisions to submit offers to the Company.[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 AMAZON.COM INC: Fails to Pay Drivers Overtime Wages, Edmonds Says ------------------------------------------------------------------ BRADY EDMONDS, on behalf of himself and those similarly situated, Plaintiff, v. AMAZON.COM, INC., a Foreign for Profit Corporation; AMAZON LOGISTICS, INC., a Foreign for Profit Corporation; AMAZON.COM SERVICES, INC., a Foreign for Profit Corporation, Defendants, Case No. 2:19-cv-01613 (W.D. Wash., Oct. 9, 2019) is a lawsuit arising under the Fair Labor Standards Act, for Amazon's failure to pay Plaintiff and other similarly situated drivers overtime wages for all time worked in excess of forty hours in a workweek in violation of the FLSA. As a central part of its delivery and logistics business, Amazon contracts with incorporated delivery service providers all around the country, through its Delivery Service Provider program, and their employees, in order to handle the influx of customer orders, and to retain control over every aspect of the delivery process. These DSPs, in turn, hire drivers like Plaintiff to deliver the Amazon packages within the DSP's service areas. However, even though Plaintiff and the other drivers were nominally employed through DSPs, Amazon directed and controlled Plaintiff and other drivers, dictating nearly every aspect of their delivery work. As such, Amazon jointly employed Plaintiff and these other similarly situated drivers and is liable for wage and hour compliance for these drivers, asserts the complaint. According to the complaint, the Plaintiff and the other drivers were only paid a flat rate with no additional overtime compensation paid for their overtime hours worked. Under the FLSA, workers paid such flat rates are entitled to additional overtime compensation for overtime hours worked. However, the flat rates paid to drivers failed to compensate each of those drivers at a rate of one and one half times the driver's regular hourly wage for hours worked in excess of forty hours per week, in violation of the FLSA. Amazon also failed to keep accurate records of the hours that Plaintiff and those similarly situated worked each week, says the complaint. Plaintiff, Brady Edmonds, worked for Amazon as a driver from June 2018 thru February 2019. Amazon is the largest digital retailer in the United States, recently becoming the second company in world history to reach $1 trillion in value.[BN] The Plaintiffs are represented by: Beth E. Terrell, Esq. Toby J. Marshall, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Phone: (206) 816-6603 Facsimile: (206) 319-5450 Email: bterrell@terrellmarshall.com tmarshall@terrellmarshall.com - and - Andrew R. Frisch, Esq. Paul M. Botros, Esq. Morgan & Morgan, P.A. 8151 Peters Road, Suite 4000 Plantation, FL 33324 Phone. (954) WORKERS Facsimile: (954) 327-3016 Email: afrisch@forthepeople.com pbotros@forthepeople.com ASHLEY DIANA BLACK: Elson Suit Transferred to S.D. Tex. ------------------------------------------------------- Judge Otis D. Wright, II of the U.S. District Court for the Central District of California transferred the case, EMILY ELSON, et al., Plaintiff, v. ASHLEY BLACK, et al., Defendants, Case No. 2:18-CV-00116-ODW (RAOx) (C.D. Cal.), to the U.S. District Court for the Southern District of Texas, Houston Division. The instant matter is a putative class action involving the FasciaBlaster, a self-care product. According to the Plaintiffs, the Defendants market the product on AshleyBlackGuru.com, which contains statements indicating that use of the FasciaBlaster lessens the look of cellulite, improves blood flow, helps reduce pain, and accelerates muscle recovery. Moreover, the Plaintiffs maintain members of the class read the following statement prior to purchasing a FasciaBlaster online: "FasciaBlaster(R) is designed for self-treatment and can be used by anyone on any area of the body. With regular use of the FasciaBlaster(R), one can expect pain reduction and improved flexibility, joint function, circulation, muscle definition and performance, nerve activity, posture, and enhanced beauty including the virtual elimination of CELLULITE." Defendant Ashley Black is an individual who is the founder and principal owner of the corporate entity Defendants and is the person primarily responsible for the wrongdoing alleged. At the time of filing, the Plaintiffs maintained, Ms. Black resides in California and in the Central District. Ms. Black is actively involved as the spokesperson extolling the virtues of the FasciaBlaster. The Plaintiffs maintain that all other Defendants are corporate entities owned and controlled by Ms. Black, but the precise role of each Defendant in the alleged wrongdoing is unclear, and hence will be the subject of discovery. The Plaintiffs filed the suit in California State Court on Oct. 23, 2017. The Defendants removed the matter on Jan. 5, 2018. The Plaintiffs filed a consolidated complaint under the Class Action Fairness Act on April 17, 2018, alleging 35 causes of action, which include violations of the Magnuson-Moss Warranty Act, Song-Beverly Act, California Business and Professions Code, Consumer Legal Remedies Act, as well as express and implied warranty violations under the laws of at least eight states. On Aug. 14, 2018, the Defendants filed their Motions to Dismiss, and added another Motion to Dismiss and Strike on Aug. 16, 2018. The Motions were taken under submission on Dec. 4, 2018. In the interest of judicial economy, Judge Wright resolves only the Defendants' motions to dismiss concerning 12(b)(2) and (4)-(5). Initially, the Judge determines facially that it has subject matter jurisdiction. The Plaintiffs assert that the Court has subject matter jurisdiction under the Magnuson-Moss Warranty Act and CAFA because: (1) it is a class action involving thousands of class members; (2) the Plaintiffs are citizens of the States of California, Florida, Nevada, Arizona, Louisiana, Mississippi, New York and Ohio; Defendants are citizen of the States of Texas and California; and on information and belief more than two-thirds of class members reside outside of California; and (3) the amount in controversy is in excess of $5 million, exclusive of interests and costs. Moreover, the Defendants removed the case from Los Angeles Superior Court under CAFA; accordingly, the Defendants do not challenge the Court's jurisdiction under CAFA. Hence, for purposes of transfer the Court determines that it has subject matter jurisdiction. Next, the Judge finds that the service by posting the Complaint on Facebook was reasonably calculated to provide Ms. Black with actual notice of the action. The Plaintiffs have been unable to locate and serve Ms. Black personally after repeated attempts to do so. The Judge finds this is sufficient to show that Ms. Black "cannot with reasonable diligence be served" through non-electronic means. Further, Ms. Black's social media accounts are actively used. Ms. Black publicly referenced the lawsuit on the internet to communicate with her audience and share her view on the lawsuit. Under these circumstances, the Judge finds that service by social media is the best method for providing actual notice to Ms. Black, and service was therefore proper. Accordingly, the Defendants' Motion to Dismiss for insufficient service of process is denied. The Judge also determines that the Plaintiffs have not satisfied the "exacting" standard necessary to establish general jurisdiction over Ms. Black or any corporate entity, as they have offered no evidence demonstrating that Ms. Black is domiciled in California or that any entity is registered or incorporated to do business in the state, has staff in California, has a registered agent for service of process, or pays state taxes. Even if the Court found general jurisdiction over Ms. Black, the alter ego theory does not succeed in conveying that jurisdiction to the corporate Defendants because the Plaintiffs have fails to sufficiently allege alter ego. The Judge finds that the Plaintiffs have failed to establish that the Court has specific personal jurisdiction over the Defendants. Accordingly, because the Court lacks personal jurisdiction over the Defendants, it may not exercise pendent personal jurisdiction over non-California Plaintiffs' claims. As the Court lacks personal jurisdiction over the Defendants, the Judge must determine whether to dismiss or transfer the action. He finds that all the Defendants are domiciled in Houston, Harris County, Texas. Pursuant to 28 U.S.C. Section 1631 and 1404(a), the Judge finds that transfer is appropriate to the Southern District of Texas, Houston Division because all of the Defendants are subject to general personal jurisdiction in the state of Texas. Moreover, dismissal of this action would not serve the interest of justice here because transfer is proper. Therefore, he denies the Defendants' motion to dismiss pursuant to 12(b)(2), and instead transfers the matter to the Southern District of Texas. For the reasons discussed, Judge Wright (i) struck the Defendants' motions to dismiss and to strike; (ii) denied the Defendants' motion to dismiss for insufficient process and failure to timely serve; and (iii) denied the Defendants' motion to dismiss for lack of personal jurisdiction, but instead transferred the matter to the Southern District of Texas. Accordingly, the Clerk of Court will transfer the action to the U.S. District Court for the Southern District of Texas, Houston Division, 515 Rusk Street, Houston, TX 77002. The Judge denied without prejudice the Motions to Dismiss in light of the Court's order to transfer. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/P0xaxg from Leagle.com. Emily Elson, Stacy Haavisto, Loretta Oakes, Michelle Lanum, Julia Lefebvre, Sue Grlicky, Tilly Dorenkamp, Dina Salas, Arlene Rodriguez & Jerry Gaines, and all others similarly situated, Plaintiffs, represented by Perrin Ferrari Disner -- pdisner@disnerlaw.com -- Law Offices of Perrin F Disner & Michael M. Liskow, Sultzer Law Group PC. Sharon Dalton, Allyson McCarthy, Sheila Smith, Mary Dennis, Kelli Frederick & Joey Campbell, Consol Plaintiffs, represented by David R. Shoop, Shoop APLC, Perrin Ferrari Disner, Law Offices of Perrin F Disner, Thomas S. Alch, Shoop APLC, Bonner C. Walsh, Walsh PLLC, pro hac vice & Michael M. Liskow, Sultzer Law Group PC. Carol Richter & Brooke Neufeld, Consol Plaintiffs, represented by Perrin Ferrari Disner, Law Offices of Perrin F Disner & Michael M. Liskow, Sultzer Law Group PC. Ashley Diana Black International Holdings, LLC, a Delaware Corporation, Defendant, represented by Craig L. Winterman -- cwinterman@hrllp-law.com -- Herzfeld and Rubin LLP, Richard C. Moreno -- rmoreno@murchisonlaw.com -- Murchison and Cumming LLP & Scott L. Hengesbach -- shengesbach@murchisonlaw.com -- Murchison and Cumming LLP. ADB Interests LLC, a Texas Corporation, Defendant, represented by Daniel J. Kasprzak, Johnson Deluca Kurisky and Gould PC, pro hac vice, George A. Kurisky, Jr., Johnson Deluca Kurisky and Gould PC, pro hac vice, Gregory J. Finney, Johnson Deluca Kurisky and Gould PC, pro hac vice, Mark A. Bankston, Johnson Deluca Kurisky and Gould PC, Matthew G. Johnston, Johnson Deluca Kurisky and Gould PC, pro hac vice, Richard C. Moreno, Murchison and Cumming LLP, Scott L. Hengesbach, Murchison and Cumming LLP & Craig L. Winterman, Herzfeld and Rubin LLP. ADB Innovations, LLC, Consol Defendant, represented by Craig L. Winterman, Herzfeld and Rubin LLP, Richard C. Moreno, Murchison and Cumming LLP, Scott L. Hengesbach, Murchison and Cumming LLP & Tina H. Vo -- tvo@murchisonlaw.com -- Murchison and Cumming LLP. ASTRAZENECA PHARMA: Sued over Monopoly of Seroquel XR ----------------------------------------------------- The case, WELFARE PLAN OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS LOCALS 137, 137A, 137B, 137C and 137R, on behalf of itself and all others similarly situated, the Plaintiff, vs. ASTRAZENECA PHARMACEUTICALS LP; ASTRAZENECA LP; ASTRAZENECA UK LIMITED; HANDA PHARMACEUTICALS, LLC; and PAR PHARMACEUTICAL, INC., the Defendants, Case No. 1:19-cv-09036 (S.D.N.Y., Sept. 27, 2019), arises from Defendants' illegal scheme to delay competition in the United States and its territories for Seroquel XR, a prescription medication approved by the U.S. Food and Drug Administration for the treatment of: (1) schizophrenia; (2) acute depressive episodes of bipolar disorder; (3) acute manic or mixed episodes of bipolar disorder in conjunction with other medications; (4) long-term bipolar disorder in conjunction with other medications; and (5) major depressive disorder in conjunction with other medications for those patients who have not had an adequate response to antidepressant medications. Recognizing the huge market for this medication, in 2008, Handa became the first drug manufacturer to file an Abbreviated New Drug Application with the FDA seeking approval to market the 50mg, 150mg, 200mg, and 300mg strengths of generic extended-release quetiapine fumarate tablets, with Seroquel XR as its Reference Listed Drug. Accord Pharmaceuticals, Inc. became the first drug manufacturer to file an ANDA for the 400mg strength of extended-release quetiapine fumarate tablets, with Seroquel XR as its Reference Listed Drug. Handa later filed an ANDA for the 400mg strength of extended-release quetiapine fumarate. Handa sent AstraZeneca four separate paragraph IV notice letters between July and November 2008. Accord sent AstraZeneca two separate paragraph IV notice letters dated September 5, 2008 and January 23, 2009. In these letters, Handa and Accord each certified that they would seek final FDA approval to launch and market their generic extended-release quetiapine fumarate products prior to the expiration of U.S. Patent No. 5,948,437 (437 Patent), a follow-on patent, which supposedly covered Seroquel XR. Handa and Accord both claimed that the '437 Patent was invalid and/or would not be infringed by Handa's and Accord's respective proposed generic extended-release quetiapine fumarate products. The Plaintiff brings this action as an end-payor purchaser of Seroquel XR, on its own behalf and on behalf of all similarly situated end-payor purchasers. Defendants' unlawful conduct has prevented generic extended-release quetiapine fumarate manufacturers from entering the market with competing generic products and has cost Plaintiff and end-payor purchasers hundreds of millions of dollars in overcharge damages. Seroquel XR is a dopamine, serotonin, and adrenergic antagonist. As such, it blocks the effects of these neurotransmitters in the brain, resulting in a reduction of symptoms. In patients with schizophrenia, antagonism of the 5-HT 2A serotonin receptor in the frontal cortex of the brain relieves the negative symptoms while antagonism of the D 2 dopamine receptor relieves negative symptoms. As of 2016, it was the 86th most prescribed medication in the United States, with more than 8 million prescriptions and annual sales exceeding $1 billion.[BN] Counsel for the Welfare Plan of the International Union of Operating Engineers Locals 137, 137A, 137B, 137C and 137R and the Proposed Class, are: Frank R. Schirripa, Esq. David R. Cheverie, Esq. Daniel B. Rehns, Esq. HACH ROSE SCHIRRIPA & CHEVERIE LLP 112 Madison Avenue, 10th Floor New York, NY 10016 Telephone: (212) 213-8311 Facsimile: (212) 779-0028 E-mail: fschirripa@hrsclaw.com dcheverie@hrsclaw.com drehns@hrsclaw.com BAUSCH HEALTH: UFCW Sues over Monopoly of Glumetza Sales -------------------------------------------------------- UFCW LOCAL 1500 WELFARE FUND, on behalf of itself and all others similarly situated, the Plaintiff, vs. BAUSCH HEALTH COMPANIES INC., SALIX PHARMACEUTICALS, LTD., SALIX PHARMACEUTICALS, INC., SANTARUS, INC., ASSERTIO THERAPEUTICS, INC., LUPIN PHARMACEUTICALS, INC., and LUPIN LTD., the Defendants, Case No. 4:19-cv-06156-KAW (N.D. Cal., Sept. 27, 2019), seeks damages and equitable relief arising from Defendants' anticompetitive pay-for-delay agreement, which eliminated generic competition in the United States for branded and generic versions of Glumetza (extended release metformin), in violation of the state antitrust, consumer protection, and common laws. Glumetza is a drug used to treat Type 2 diabetes. Prescription metformin has been available as a generic drug since 2002. Assertio developed an extended-release version of metformin that can alleviate some of the drug's common side effects, particularly gastrointestinal intolerance. Assertio obtained several patents on the extended-release technology and began selling extended-release metformin, marketed under the brand name Glumetza, in 2005. Extended-release mechanisms are very common, however, and Assertio's patents were weak and narrow and could not prevent competition from generic versions of the drug. When Defendant Lupin developed a generic version of Glumetza, Assertio and its co-venturer, Defendant Santarus, sued Lupin for patent infringement. That lawsuit triggered an automatic stay, prohibiting Lupin from entering the market for 30 months. Just before the 30 months were over, and Lupin could enter the market with generic Glumetza, Assertio/Santarus and Lupin settled their lawsuit on or about February 22, 2012, with Assertio/Santarus paying Lupin to delay generic entry. The settlement agreement was a pay-for-delay agreement whereby (1) Lupin agreed not to compete in the market for Glumetza until February 1, 2016, thereby allocating the entire Glumetza market to Assertio/Santarus until that date; and (2) Assertio/Santarus agreed not to compete in the generic Glumetza market from February 1, 2016 to at least August 1, 2016, allocating the entire market for generic versions of Glumetza to Lupin for that six-month period. One possible wrinkle with this plan stemmed from the fact that the weakness of the Assertio patents created the risk that another manufacturer could avoid them and market a generic Glumetza before February 2016, thereby upending the Assertio/Santarus/Lupin anticompetitive scheme. To prevent that possibility, Assertio/Santarus and Lupin included in their agreement two deterrent provisions aimed at other competitors: (a) if another generic manufacturer succeeded in entering the market before February 2016, Lupin could also enter on that earlier date; and (b) Assertio/Santarus would not grant a license to any other manufacturer to enter the market sooner than 180 days after Lupin. These deterrents ensured that, no matter how many resources another manufacturer might expend in overcoming Assertio's patents, they could not reap the financial reward of being the only generic manufacturer on the market. Even if another generic 18 manufacturer won a patent lawsuit against Assertio/Santarus, the deterrent provision would allow Lupin to enter earlier. And even if another generic manufacturer sought to negotiate a license from Assertio/Santarus, the deterrent provision expressly prohibited any license that would deprive Lupin of its 180-day exclusivity period. The agreement between Assertio/Santarus and Lupin unlawfully closed every pathway to generic competition before February 2016 and extended the anticompetitive effect beyond February 2016 by agreeing that Lupin would be the only generic competitor from February 2016 until at least August 2016. In short, Assertio/Santarus and Lupin conjured a monopoly in the sale of Glumetza and its generic equivalents where a monopoly would not have existed under lawful, competitive practices. In November 2013, Santarus, with Glumetza accounting for almost half its sales, announced that it was being acquired by Defendant Salix for $2.6 billion. Through its acquisition of Santarus, Salix acquired commercial rights to Glumetza and joined the Assertio-Santarus-Lupin unlawful patent settlement and reverse payment scheme and wasted no time in exploiting the monopoly that Assertio/Santarus had fashioned: from 2012 to 2015 Salix raised Glumetza prices. In April 2015, when Glumetza accounted for more than 25% of its sales, Salix in turn sold the Glumetza monopoly to Valeant Pharmaceuticals, Inc. (now known as Bausch Health). Valeant paid $14.5 billion to acquire Salix. Through its acquisition of Salix, Valeant acquired commercial rights to Glumetza and joined the Assertio-Santarus-Lupin unlawful patent settlement and reverse payment scheme. Valeant was known in the industry as an exploiter of drug-product monopolies. As Forbes magazine later characterized it, Valeant's business strategy "emphasized boosting drug prices, gutting research and development budgets, [and] firing employees" "Scientists were seen as unnecessary costs to be cut,"while Valeant's "drug-price increases became legendary. "Industry observers concluded that "Valeant was the pure expression of the view that companies are there to make money for shareholders, every other consideration be damned." Within four months of acquiring the Glumetza monopoly, Valeant raised the price by approximately 800%, with a monthly supply increasing for some patients from approximately $500 to $4,600. In the six months before the price hike, Salix made $145 million on Glumetza; in the six months after, Valeant made more than $800 million, the lawsuit says. Attorneys for the Plaintiff are: Todd A. Seaver, Esq. Carl N. Hammarskjold, Esq. Colleen Cleary, Esq. BERMAN TABACCO 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 E-mail: tseaver@bermantabacco.com chammarskjold@bermantabacco.com ccleary@bermantabacco.com - and - Gregory S. Asciolla, Esq. Jay L. Himes, Esq. Karin E. Garvey, Esq. Matthew J. Perez, Esq. Domenico Minerva, Esq. Jonathan S. Crevier, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: gasciolla@labaton.com jhimes@labaton.com kgarvey@labaton.com mperez@labaton.com dminerva@labaton.com jcrevier@labaton.com - and - Roberta D. Liebenberg, Esq. Jeffrey S. Istvan, Esq. Adam J. Pessin, Esq. FINE, KAPLAN AND BLACK, R.P.C. One South Broad Street, 23rd Floor Philadelphia, PA 19107 Telephone: (215) 567-6565 Facsimile: (215) 568-5872 E-mail: rliebenberg@finekaplan.com jistvan@finekaplan.com apessin@finekaplan.com BEACH ENTERTAINMENT: Hand Seeks to Certify Three Classes -------------------------------------------------------- In the class action lawsuit styled as J.T. HAND, individually and on behalf of all others similarly situated, the Plaintiff, vs. BEACH ENTERTAINMENT KC, LLC d/b/a SHARK BAR, et al., the Defendants, Case No.: 4:18-cv-668-NKL (W.D. Mo.), the Plaintiff asks the Court to enter an Order: 1. granting his Motion for Class Certification; 2. certifying the SendSmart, TXT Live!, and Do-Not-Call Classes pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3); SendSmart Class: "all individuals who received one or more text messages from Shark Bar sent using the SendSmart text messaging system, as reflected in the SendSmart Class"; TXT Live! Class: "all individuals who received one or more text messages from Shark Bar sent using the TXT Live! text messaging system, as reflected in the TXT Live! Class List"; Do-Not-Call Class: "all individuals on either the SendSmart or TXT Live! Class Lists who received more than one text message from Shark Bar in any twelve-month period to a number included on the National Do-Not-Call Registry" 3. appointing himself as representative of the SendSmart, TXT Live!, and Do-Not-Call Classes; 4. appointing Plaintiff's counsel as class counsel pursuant to Fed. R. Civ. P. 23(g); and 5. awarding such other and further relief as the Court deems reasonable and just.[CC] Attorneys for the Plaintiff and all others similarly situated are: Bill Kenney, Esq. William C. Kenney, Esq. BILL KENNEY LAW FIRM, LLC 1100 Main Street, Suite 1800 Kansas City, MO 64105 Telephone: (816) 842-2455 Facsimile: (816) 474-8899 E-mail: bkenney@billkenneylaw.com - and - Benjamin H. Richman, Esq. Michael Ovca, Esq. Rafey S. Balabanian, Esq. Eve-Lynn J. Rapp, 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 movca@edelson.com rbalabanian@edelson.com erapp@edelson.com BECTON DICKINSON: Remand of Olson Labor Suit to State Court Denied ------------------------------------------------------------------ Judge Michael M. Anello of the U.S. District Court for the Southern District of California denied the Plaintiff's motion to remand the case captioned PHIL OLSON, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. BECTON, DICKINSON AND COMPANY, a New Jersey corporation, Defendant, Case No. 19cv865-MMA (BGS) (S.D. Cal.), back to the Superior Court of California, County of San Diego. The Plaintiff, a California resident, previously worked for the Defendant as a non-exempt employee in California from December 2016 to September 2017. The Defendant is a New Jersey corporation, with its principal place of business in New Jersey. On April 5, 2019, the Plaintiff filed the putative class action in San Diego Superior Court on behalf of himself and all other similarly situated California employees, alleging the following eight claims for relief: (1) failure to pay overtime wages, in violation of Cal. Lab. Code Sections 510, 1198; (2) failure to provide meal periods, in violation of Cal. Lab. Code Sections 226.7, 512(a); (3) failure to provide rest periods, in violation of Cal. Lab. Code Section 226.7; (4) failure to pay minimum wages, in violation of Cal. Lab. Code Sections 1194, 1197; (5) failure to timely pay wages, in violation of Cal. Lab. Code Sections 201, 202; (6) failure to provide complete and accurate wage statements, in violation of Cal. Lab. Code Section 226(a); (7) failure to reimburse necessary business-related expenses and costs, in violation of Cal. Lab. Code Sections 2800, 2802; and (8) unfair and unlawful business practices, in violation of Cal. Bus. & Prof. Code Section 17200 et seq. The Plaintiff defines the proposed class as all current and former California-based hourly-paid or non-exempt individuals employed by the Defendants within the State of California at any time during the period from four years preceding the filing of the Complaint to final judgment. On May 8, 2019, the Defendant removed the action to the District Court pursuant to the Class Action Fairness Act. On June 7, 2019, the Plaintiff filed a motion to remand the action back to state court. The Defendant filed an opposition, to which the Plaintiff replied. There is no dispute that the proposed class includes more than 100 employees or that the parties are minimally diverse. Thus, the sole issue before the Court is whether the Defendant has shown, by a preponderance of the evidence, that the amount in controversy exceeds $5 million. Upon review of the Plaintiff's allegations, the Defendant's evidence, and the applicable caselaw, Judge Anello finds that the Defendant has satisfied its burden, by a preponderance of the evidence, that the amount in controversy with respect to the Plaintiff's meal and rest break claims is $5,543,730. As a result, the Court has subject matter jurisdiction and remand is improper. Based on the foregoing, Judge Anello denied the Plaintiff's motion to remand. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/m4yMj3 from Leagle.com. Phil Olson, individually, and on behalf of other members of the general public similarly situated, Plaintiff, represented by Douglas Han -- dhan@justicelawcorp.com -- Justice Law Corporation & Shunt Tatavos-Gharajeh -- statavos@justicelawcorp.com -- Justice Law Corporation. Becton, Dickinson and Company, a New Jersey corporation, Defendant, represented by Spencer C. Skeen -- spencer.skeen@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Jesse C. Ferrantella -- jesse.ferrantella@ogletree.com -- Ogletree Deakins & Timothy L. Johnson -- tim.johnson@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C. BRIDGE PROPERTY: Court Trims Claims in Limson Consumer Credit Suit ------------------------------------------------------------------ In the case captioned MARYROSE LIMSON, et al., Plaintiffs, v. BRIDGE PROPERTY MANAGEMENT COMPANY, Defendant, Case No. 19-cv-02795-JCS (N.D. Cal.), Chief Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California (i) granted in part and denied in part BPMC's Motion to Dismiss for Failure to State a Claim and Lack of Jurisdiction, and (ii) denied its Motion to Strike Complaint. The putative class action asserts claims under the federal Fair Credit Reporting Act ("FCRA"), the California Investigative Consumer Reporting Agencies Act ("ICRAA"), and California's Unfair Competition Law ("UCL"). The claims are based on Bridge Property Management Company's (BPMC) alleged failure to follow certain disclosure requirements with respect obtaining consumer background reports about the Plaintiffs, who applied to be tenants and residents of a low-income apartment complex managed by BPMC. The named Plaintiffs are four adults who applied to be tenants or are residents at the Ivy II at College Park, a low-income apartment complex in Chino, California, and their minor children. The Ivy II is owned and managed by BPMC, which is a corporation formed under the laws of the State of California that has its principal place of business in San Francisco, California. The Plaintiffs allege that the Defendants requested, procured, processed, used and/or assisted in acquiring investigative consumer reports on the Plaintiffs as part of their applications for residency at the Ivy II and as part of the annual re-certification of the Plaintiffs to be residents at the Ivy II, without providing proper disclosures in compliance with the FCRA and ICRAA, and without obtaining proper authorization in compliance with the ICRAA. In their Class Allegations, the Plaintiffs seek to assert class claims on behalf of the following class: All persons in the United States who applied to become tenants and/or completed tenant recertifications, and/or were minors with permission to reside at any of Defendants' properties within the applicable Class Period. In their ICRAA claim, among other things, the Plaintiffs allege that BPMC willfully violated California Civil Code Section 1786.16(b)(1) because it failed to provide, by means of a box to check on a written form, the opportunity to request and receive a copy of the consumer background report obtained for them. They further allege that BPMC violated the ICRAA by not informing them that investigative consumer reports would be prepared regarding their character, general reputation, personal characteristics, and mode of living and failing to provide Plaintiffs with the names and addresses of the investigative consumer reporting agency or agencies that made the reports, or a summary of the provisions of Civil Code Section 1786.22. In their FCRA claim, the Plaintiffs allege that BPMC willfully violated 15 U.S.C. Section 1681d(a)(1) by failing to inform them and the putative class of their rights to request additional disclosures, and failing to provide them the written summary of their rights under the FCRA. They allege that BPMC's failure to inform them and the putative Class of their rights under 15 U.S.C. Section 1682d(b) deprived them and the putative Class of the benefit of information that they had been entitled by law to receive, and runs afoul of the FCRA's rationale. Finally, the Plaintiffs allege that BPMC engaged in "unlawful conduct" by violating the FCRA and the ICRAA. They further allege that BPMC engaged in "fraudulent conduct" by willfully concealing investigative consumer reports from the tenants it was investigating in violation of the FCRA and the ICRAA. In addition to the remedies described, the Plaintiffs request declaratory relief to quiet title to their leasehold interests in the Defendants' properties so that the Plaintiffs may hold and continue to occupy their residential apartment homes without fear of unlawful eviction. BPMC filed a Motion to Dismiss and a Motion to Strike, which came on for hearing on Sept. 6, 2019. In the Motion to Dismiss, BPMC argued, among other things, that the Plaintiffs' FCRA and ICRAA claims fail for lack of standing under Article III of the U.S. Constitution, citing the Supreme Court's decision in Spokeo v. Robins. BPMC also argues that the Plaintiffs fail to state a claim under Rule 12(b)(6) as to their FCRA claim because they have alleged no facts showing that the consumer reports obtained by BPMC fall under the FCRA's definition of an "investigative consumer report." BPMC asks the Court to award attorneys' fees in connection with the instant motion under the FCRA, arguing that the law is clear that the Plaintiffs must allege a concrete injury and their filing of the Complaint therefore was in bad faith or for the purposes of harassment. In the Motion to Strike, BPMC argued that the Plaintiffs' allegations in Paragraph 1 of the Complaint, seeking declaratory relief to quiet title in the Plaintiffs' leasehold interest should be stricken because no quiet title claim has been asserted and there are no allegations suggesting such relief is appropriate. Consequently, BPMC contends, these allegations are immaterial and redundant. It also asked the Court to strike allegation in the Complaint referring to an "illegal contract" and asking the Court for a declaration that the Defendants' residential contracts and applications are illegal contracts. According to BPMC, these allegations should be stricken because violation of the FCRA and/or the ICRAA does not invalidate lease agreements or other contracts. Magistrate Judge Spero granted in part and denied in part BPMC's Motion to Dismiss for Failure to State a Claim and Lack of Jurisdiction. He dismissed the Plaintiffs' FCRA claim on the basis that it fails to state a claim under Rule 12(b)(6). He dismissed Plaintiffs' UCL claims on the basis that the Plaintiffs have not alleged an economic injury that establishes standing as to that claim. The Plaintiffs may file an amended complaint to address these deficiencies no later than Nov. 15, 2019. In addition, targeted discovery will be permitted to address the question of whether the Defendant obtained "investigative reports" about the Plaintiffs within the meaning of the FCRA, as set forth in the Court's minute order. The Magistrate Judge further denied the Defendant's Motion to Strike. To the extent the Defendant's arguments turn on the substantive merits of a possible quiet title claim and the remedies requested by the Plaintiffs in their complaint, the Judge declined to strike those allegations. A full-text copy of the Court's Sept. 24, 2019 Order is available at https://is.gd/ID6Que from Leagle.com. Maryrose Limson, individually, as guardian ad litem for AL, a minor, and on behalf of all others similarly situated, Tesha Gamino, individually, as guardian ad litem for minors RR1 and RR2, and on behalf of all others similarly situated, Robert Colon, individually and on behalf of all others similarly situated & Michelle Colon, individually and on behalf of all others similarly situated, Plaintiffs, represented by Theodore Walter Maya, Ahdoot & Wolfson, P.C., Tina Wolfson -- twolfson@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. & Bradley Keith King -- bking@ahdootwolfson.com -- Ahdoot and Wolfson, P.C. Bridge Property Management Company, Defendant, represented by Celia Wan-Tsing Lee -- clee@goldfarblipman.com -- Goldfarb & Lipman LLP & Rye Ryan P. Murphy , Goldfarb & Lipman LLP. BRIGHAM HOME: Hazzard Seeks Overtime Pay for Nurses & Caregivers ---------------------------------------------------------------- CHARITY HAZZARD, individually and on behalf of others similarly situated. the Plaintiff, v. BRIGHAM HOME CARE SERVICES, INC. and CATHERINE G. KAMANDU, the Defendants, Case No. 19-1254 (Mass Super., Sept. 6, 2019), alleges the Defendants failed to pay employees for intra-day travel time between client locations; reimburse employees for transportation expenses; and pay employees overtime wages, all in violation of Massachusetts wage and hour laws. In addition, Ms. Hazzard brings an individual claim against the Defendants for failure to pay her earned sick time wages in violation Massachusetts law. Brigham employs various employees, including licensed practical nurses (LPN), registered nurses, and home health care aides, whose job responsibilities include providing clients with in-home health care and assistance. Brigham employed Ms. Hazzard as a licensed practical nurse from on or around September 30, 2015 through on or around August 9, 2019. Her job responsibilities included traveling to Brigham clients homes to provide healthcare services. During the course of her employment, Brigham paid Ms. Hazzard between around $25.00 and $27.00 per client visit. Brigham also agreed to pay other LPNs and health staff per client visit. Like other health staff, Brigham required Ms. Hazzard to work a multiple clients' homes each workday, which required them to have to travel between clients' homes to fulfill their job duties, the lawsuit says. In fact, Ms. Hazzard many times worked more than 80 hours in a workweek for Brigham. However, Brigham failed to pay Ms. Hazzard one and one-half times her regular rate of pay for hours worked in excess of 40 in a workweek. Brigham also fails to pay other health staff one and one-half times their regular rate of pay for hours worked in excess of 40 in a workweek. Brigham is a company offering in-home health care and assistance to individuals throughout Massachusetts.[BN] Attorneys for the Plaintiff are: Raven Moeslinger, Esq. Nicholas F. Ortiz, Esq. LAW OFFICE OF NICHOLAS F. ORTIZ, PC 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617)338-9400 E-mail: rm@mass-legal.com BULLROCK, LLC: West et al Seek Overtime Pay for Workers ------------------------------------------------------- JOHN WEST and JAMES FLEENER, individually and on behalf of all others similarly, the Plaintiff, vs. BULLROCK, LLC, the Defendant, Case No. 1:19-cv-00214-CRH (D.N.D., Sept. 26, 2019), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. According to the complaint, Bullrock workers, like West and Fleener, were typically scheduled for 12-hour shifts, 7 days a week, for weeks at a time. West worked for Bullrock as a mix technician at a Bullrock saltwater treatment and disposal facility. Throughout his employment with Bullrock, he was paid a salary with no overtime compensation. From July 2018 through April 2019, Fleener worked for Bullrock as a dirty water processor. Throughout his employment with Bullrock, he was paid a salary with no overtime compensation. Bullrock does not pay all of these workers overtime for hours worked in excess of 40 hours in a single workweek. Instead, Bullrock pays them a salary without overtime, the lawsuit says.[BN] Attorneys for the Plaintiff are: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. William R. Liles, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713-352-1100 Facsimile: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com wliles@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713-877-8788 Facsimile: 713-877-8065 E-mail: rburch@brucknerburch.com CELTIC MARKETING: Born Files Suit Over Unauthorized Calls --------------------------------------------------------- DENNIS BORN, individually and on behalf of all others similarly situated Plaintiff, v. CELTIC MARKETING, LLC D/B/A VAD also known as CM AUTO, a limited liability company, SUNPATH LIMITED CORP., a Delaware corporation, NORTHCOAST WARRANTY SERVICES, INC., a Delaware corporation, JOHN DOE 1, an unknown business entity, Defendants, Case No. 8:19-cv-01950 (C.D. Cal. Oct. 12, 2019) is a Class Action Complaint and Demand for Jury Trial against Defendants to stop their illegal practice of making unauthorized calls that play prerecorded voice messages to the cellular telephones of consumers nationwide, and to obtain redress for all persons injured by their conduct. As a primary part of marketing their products and services, Defendants and their agent John Doe 1 placed thousands of placed thousands of automated calls to consumers' cellular and residential phones nationwide. The Defendants did not obtain consent prior to placing these calls and, therefore, are in violation of the Telephone Consumer Protection Act. By placing the calls at issue, Defendants violated the privacy and statutory rights of Plaintiff and the Class, says the complaint. Plaintiff, therefore, seeks an injunction requiring Defendants, to stop its unconsented calling, as well as an award of actual and statutory fines to the Class members, together with costs and reasonable attorneys' fees. Plaintiff is a natural person and is a citizen of the District of Wisconsin. Defendants sell and provide "vehicle protection" contracts.[BN] The Plaintiff is represented by: Mark L. Javitch, Esq. Javitch Law Office 480 S. Ellsworth Ave San Mateo, CA 94401 Phone: 650-781-8000 Facsimile: 650-648-0705 Email: mark@javitchlawoffice.com CHARLES SCHWAB: 9th Cir. Reverses ERISA Arbitration Case Ruling --------------------------------------------------------------- Paul J. Ondrasik, Esq., Edward Thomas Veal, Esq., Melanie Nussdorf, Esq., Eric G. Serron, Esq., and Sara Pikofsky, Esq.,of Steptoe & Johnson LLP, in an article for Mondaq, report that the U.S. Court of Appeals for the Ninth Circuit's recent reversal of the district court's decision in Dorman v. Charles Schwab & Co. has finally opened the door to arbitration of ERISA fiduciary breach claims in that circuit. Last year, district courts in California handed down two decisions rejecting motions to compel the arbitration of claims alleging violations of the fiduciary standards of the Employee Retirement Income Security Act of 1974 (ERISA). Munro v. University of Southern California, 2017 U.S. Dist. LEXIS 166135 (C.D. Cal. 2017), affirmed, 896 F.3d 1088 (9th Cir. 2018), cert. denied, 139 S. Ct. 1239 (Feb. 19, 2019); Dorman v. Charles Schwab & Co., 2018 U.S. Dist. LEXIS 9107 (N.D. Cal., 2018), reversed and remanded, 2019 U.S. App. LEXIS 24735 (9th Cir. Aug. 20, 2019) and 2019 U.S. App. LEXIS 24791 (9th Cir. Aug. 20, 2019) (memorandum opinion). [GN] CHEFS' WAREHOUSE: Removes Trujillo Labor Case to C.D. California ---------------------------------------------------------------- The Chefs' Warehouse West Coast, LLC et al. removed the case captioned as RICHARD TRUJILLO, individually, on behalf of other members of the general public similarly situated, and as an aggrieved employee pursuant to the Attorneys General Act (PAGA), the Plaintiff, vs. THE CHEFS' WAREHOUSE WEST COAST, LLC, a Delaware limited liability company; THE CHEFS' WAREHOUSE, INC., a Delaware corporation DEL MONTE CAPITOL MEAT COMPANY, LLC, a Delaware limited liability company; QZINA SPECIALTY FOODS, INC., a Washington corporation; and/or QZINA SPECIALTY FOODS (AMBASSADOR), INC., a California corporation; and DOES 1 through 10, inclusive, the Defendants, Case No. 19STCV25377 (Filed July 22, 2019), from the Los Angeles County Superior Court to the U.S. District Court for the Central District of California on Sept. 27, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-08370 to the proceeding. The Plaintiff seeks to recover award of unpaid minimum wages, unpaid overtime wages, meal and rest period premiums, statutory penalties, liquidated damages, civil penalties, attorneys' fees, costs, and such other and further relief under the California Labor Code. The Chefs Warehouse Westcoast, LLC operates as a specialty food distributor. The company offers its products to restaurants, hotels, caterers, and gourmet stores.[BN] Attorneys for the Defendants are: Michele J. Beilke, Esq. Julia Y. Trankiem, Esq. Rafael N. Tumanyan, Esq. HUNTON ANDREWS KURTH LLP 550 South Hope Street, Suite 2000 Los Angeles, CA 90071-2627 Telephone: 213 532 2000 Facsimile: 213 532 2020 E-mail: mbeilke@huntonAK.com jtrankiem@huntonAK.com rtumanyan@huntonAK.com CK AUTOMOTIVE: Boyd Asserts Fla. Motor Vehicle Repair Act Breach ---------------------------------------------------------------- NANCY BOYD, individually and on behalf of those similarly situated, Plaintiff, v. CK AUTOMOTIVE LLC, Defendant, Case No. 96986106 (13th Circuit Ct., Hillsborough Cty., Fla., Oct. 9, 2019) is a Class Complaint against Defendant for violation of the Florida Motor Vehicle Repair Act and the Florida Deceptive and Unfair Trade Practices Act. CK Automotive LLC is a repair shop and a Florida limited liability company organized pursuant to the laws of the State of Florida. Plaintiff Ms. Boyd is the current owner of a 2000 Nissan Altima bearing Vehicle Identification Number 1N4DL01D7YC114622. According to the complaint, it is the Defendant's pattern and practice to charge a shop supply fee to its customers without including the required disclosure required under Section 559.905, Florida Statutes. On September 10, 2015, Ms. Boyd began experiencing problems with her vehicle and took it to the Defendant's repair shop for diagnosis and repair. After completing the diagnosis and repairs, the Repair Shop provided Ms. Boyd with a Repair Order. The Repair Order included a charge of $9.60 for "SHOP SUPPLIES". The Repair Order did not include the disclosure that the "SHOP SUPPLIES" represents "charge for miscellaneous shop supplies or waste disposal." On or before January 30, 2018, Ms. Boyd began experiencing problems with the Vehicle and took it in to the Repair Shop for diagnosis and repair. It was determined that the Vehicle had a blown head gasket, and the Repair Shop provided Ms. Boyd with an estimate. Additionally, the Estimate included a $39.87 for "SHOP SUPPLIES." The Estimate did not include the disclosure for the "SHOP SUPPLIES" again, says the complaint.[BN] The Plaintiff is represented by: Roger D. Mason, II, Esq. ROGER D. MASON, II, P.A. 4610 Central Ave., Suite B St. Petersburg, FL 33711 Phone: (813) 304-2131 Email: rmason@flautolawyer.com admin@flautolawyer.com COMMUNITY BANK: Plaintiffs Lawyers Resume Fight Over $2MM Fee ------------------------------------------------------------- Scott Holland, writing for Pennsylvania Record, reports that prominent Western Pennsylvania plaintiffs' lawyer Bruce Carlson continues to haggle over the rights to millions of dollars in legal fees with his former firm, Specter Specter Evans & Manogue. Carlson was co-lead counsel in a class action lawsuit against Community Bank of Northern Virginia. However, following a $24 million settlement that granted more than $2 million to Carlson, who left SSEM during the case, SSEM filed a breach of contract action, claiming Carlson ignored separation agreement terms dictating he could keep only 20 percent of the first $2 million payable to the firm and 35 percent of anything beyond that. Earlier this year, the U.S. Court of Appeals for the Third Circuit bounced the matter back to the Allegheny County Court of Common Pleas. The firm filed an amended complaint on Jan. 14; Carlson responded with preliminary objections on Feb. 22. On April 1, the firm filed a reply to those objections, but in so doing, Carlson said, improperly introduced new factual matters. In an April 16 motion, Carlson said the firm "could have chosen to file a Second Amended Complaint in response" to his preliminary objections, but by not doing so "waived its right to assert new facts of record at this time." He accused the firm of "attempting to sidestep" his preliminary objections--which didn't raise any new facts--and said he shouldn't be compelled to respond while his initial filing is pending. SSEM responded to those objections with an opposition brief offering extensive detail about Carlson's history as an SSEM employee and his June 2004 decision to break off and form his own firm along with Gary Lynch, who is a named defendant in the action, along with Carlson Lynch LTD and Carlson Lynch Sweet Kilpela & Carpenter. "A reading of the entire Separation Agreement shows that where SSEM intended to waive any interest it may have had in the attorneys' fees awarded in a particular case, that intent was set forth clearly and unequivocally," the firm wrote, adding the June 30 separation contract superseded any preceding agreements on fee sharing. "Carlson wants this Court, as he wanted the District Court, to extricate him from a deal which he voluntarily undertook but which simply did not turn out as good as he had hoped," the firm continued. "Carlson was an experienced class action lawyer. He knew that class action litigation is risky and that some cases take a lot more work than others. Sometimes you make a lot of money. Sometimes you don't. "He voluntarily and specifically assumed the known risk that there might be a lot more work involved after he took the case with him and the deal might not be as good as he thought it would be. The Separation Agreement specifically and by its language accounted for that. But Carlson cannot expect this Court to get him out of a bad deal." Carlson is represented by lawyers from Burns White LLC, of Pittsburgh. Stanley M. Stein, of Pittsburgh, is representing SSEM. [GN] CONSUMER ADVOCACY: Nebuchin Suit Alleges Invasion of Privacy ------------------------------------------------------------ VADIM NEBUCHIN, individually and on behalf of all others similarly situated v. CONSUMER ADVOCACY CENTER INC. d/b/a PREMIER STUDENT LOAN CENTER; DOES 1 through 10, inclusive, Case No. 4:19-cv-06335-KAW (N.D. Cal., Oct. 3, 2019), seeks remedies resulting from the illegal actions of the Defendant in contacting the Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act, thereby, invading his privacy. Consumer Advocacy Center Inc., doing business as Premier Student Loan Center, is a small business loan company. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com CREDIT SUISEE: New York Southern District Dismisses Securities Suit ------------------------------------------------------------------- In the cases, SET CAPITAL LLC, et al., Individually and on Behalf of All Others Similarly Situated Plaintiff, v. CREDIT SUISEE GROUP AG, CREDIT SUISSE AG, CREDIT SUISSE INTERNATIONAL, TIDJANE THIAM, DAVID R. MATHERS, JANUS HENDERSON GROUP PLC, JANUS INDEX & CALCULATION SERVICES LLC, and JANUS DISTRIBUTORS LLC d/b/a JANUS HENDERSON DISTRIBUTORS, Defendants. GLENN EISENBERG, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v. CREDIT SUISSE AG and JANUS INDEX & CALCULATION SERVICES LLC, Defendants. SHAOLEI QIU, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v. CREDIT SUISSE GROUP AG and JANUS INDEX & CALCULATION SERVICES LLC, Defendants, Case Nos. 18 Civ. 2268 (AT) (SN), 18 Civ. 2319 (AT) (SN), 18 Civ. 4045 (AT) (SN) (S.D. N.Y.), Judge Analisa Torres of the U.S. District Court for the Southern District of New York granted the Defendants' motions to dismiss. The case arises out of the collapse of a complex investment vehicle known as VelocityShares Daily Inverse VIX Short Term Exchange Traded Notes ("XIV notes" or "XIV ETNs"). XIV notes provided a mechanism by which investors could profit from low volatility in the stock market. In purchasing an exchange traded note ("ETN"), investors agree to pay money to the institution sponsoring the ETN in return for a payment when the note matures, the amount of which is determined by the value of a market index. In the case, the value of XIV notes was derived from the VIX Futures Index, an index that aggregates the price of "VIX futures," which in turn track a measure of market volatility. To allow investors to bet against market volatility, the value of XIV notes was inverse to the value of the VIX Futures Index, such that when the VIX futures contracts underlying the VIX Futures Index decreased in value by 1%, the XIV notes' value increased by 1%, and vice versa. Credit Suisse AG issued and sold the notes, and Janus Henderson Distributors, LLC placed and marketed them. Several Plaintiffs filed suit against Credit Suisse AG (the issuer), Credit Suisse International (one of the calculation agents), Credit Suisse Group AG (their holding company), Tidjane Thiam (Credit Suisse Group's CEO), David R. Mathers (Credit Suisse Group's CFO); and Janus Henderson Distributors, LLC (the marketer), Janus Index & Calculation Services LLC (the other calculation agent), and Janus Henderson Group plc (their holding company). Under Federal Rule of Civil Procedure 42(a) and the Private Securities Litigation Reform Act ("PSLRA"), the suits were consolidated, and the Plaintiffs filed a consolidated class action complaint. The Plaintiffs assert three primary categories of claims. First, they claim that the offering documents for the XIV notes made material misstatements or omissions in violation of Section 10(b) of the Securities Exchange Act of 1934, concerning (1) the existence of a conflict of interest between Credit Suisse and investors; (2) the reliability and accuracy of the intraday indicative value; and (3) the effect of Credit Suisse's hedging on the value of XIV notes. Second, they claim that the Credit Suisse entities and individuals engaged in a scheme to manipulate the market in violation of Section 10(b), by issuing more than 16 million additional XIV notes in January of 2018 as part of a plan to trigger a liquidity crunch, which would cause the notes' value to crater and allow Credit Suisse to accelerate the notes at a large profit. Third, they claim that the Credit Suisse entities and the Janus entities effectively made a material misstatement or omission in violation of Section 10(b) by failing to take action to correct the intraday indicative value or warn the market during the Flatline Period. In addition, they assert claims under Section 9(a)(4) of the Exchange Act, based on the same alleged false statements supporting the Section 10(b) claims, and assert claims for secondary liability under Section 20(a) of the Exchange Act against Thiam, Mathers, Credit Suisse Group, and Janus Henderson Group as controlling persons of the other entities. The Defendants moved to dismiss the complaint, and on Dec. 17, 2018, the Court referred the matter to Magistrate Sarah Netburn. On Aug. 16, 2019, Magistrate Judge Netburn issued a Report and Recommendation ("R&R") recommending that the Defendants' motions to dismiss be granted in their entirety. She found that the January Supplement had expressly warned of all the risks involved in purchasing XIV notes that the Plaintiffs claim ultimately caused their losses, and that the Plaintiffs' allegations could not support a strong inference of scienter, as required by the PSLRA, for either their market-manipulation or failure-to-correct claim. The Plaintiffs timely filed their objections to the R&R on Aug. 30, 2019. The Defendants timely filed their responses on Sept. 13, 2019. The Plaintiffs raise several objections to Magistrate Judge Netburn's conclusion that they did not allege any misstatements or omissions in violation of Section 10(b) and Section 11 in the XIV notes' offering documents. They raise several objections to the R&R's conclusion that their allegations that Credit Suisse executed a scheme to manipulate the market for XIV notes fail to produce a strong inference of scienter. They also raise several objections to the R&R's conclusion that they failed to establish a strong inference of scienter on their claim that the Credit Suisse and Janus entities made a material misrepresentation or omission by failing to correct the intraday indicative value during the Flatline Period on Feb. 5, 2018. Finally, they object to Judge Netburn's implicit denial of leave to amend their complaint, arguing that leave to amend should be freely granted, especially in the context of securities litigation and especially where dismissal of the complaint was based on Rule 9(b). Judge Torres overruled the Plaintiffs' objections with respect to their offering-documents claims. She finds that the Plaintiffs have not identified any specific documents that would have put Credit Suisse on notice of the statistical certainty of volatility spikes or the effect of Credit Suisse adjusting its hedge during such spikes. And Judge Netburn did not clearly err in concluding that, notwithstanding the size of the January sale, the innocent explanation for the large volume of XIV notes sales in January 2018 was more plausible than the inference that Credit Suisse engaged in those sales in order to later cause a liquidity crash. The Judge also overruled the Plaintiffs' objections with respect to their failure-to-correct claims. The Plaintiffs do not specifically identify the reports or statements containing information that would have put Janus or Credit Suisse on notice that the Index was not updating. Though they argue that Janus and Credit Suisse's failure to monitor the Index and the underlying value of VIX futures would also be circumstantial evidence of scienter, they have not shown that Judge Netburn committed clear error in rejecting that argument on the grounds that an allegation that a defendant merely ought to have known is not sufficient to allege recklessness. The Plaintiffs also have not alleged that anyone at Credit Suisse International was monitoring the price movements of VIX futures. The Judge further overruled the Plaintiffs' objections with respect to their Section 9 and Section 20 claims. He finds that the Judge Netburn's sole basis for recommending dismissal of the Plaintiffs' claims under Section 9 of the Exchange Act was that those claims parallel Section 10(b) claims, and the sole objection the Plaintiffs raise to that recommendation is that their Section 10(b) claims are meritorious. Similarly, the Plaintiffs' claims for secondary liability under Section 20 of the Exchange Act are viable only if they establish primary liability. Finally, the Judge overruled the Plaintiffs' objection to the denial of leave to amend. She finds that the Plaintiffs have not established clear error. An amendment is not warranted absent some indication as to what the Plaintiffs might add to their complaint in order to make it viable. Although the R&R made them aware of the potential deficiencies in their complaint, the Plaintiffs have provided no such indication. Judge Torres has reviewed de novo those portions of the R&R to which the Plaintiffs properly object and has reviewed the remainder of the R&R for clear error. For the reasons stated, Judge Torres adopted the R&R in its entirety. The Clerk of Court is directed to terminate the motions in Case No. 18 Civ. 2268 at ECF Nos. 101 and 105, and to close Case No. 18 Civ. 2268, Case No. 18 Civ. 2319, and Case No. 18 Civ. 4045. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/A5MDyV from Leagle.com. Rajan Chahal, individually and on behalf of all others similarly situated, Plaintiff, represented by Laura Helen Posner, Bernstein Litowitz Berger & Grossmann LLP & Eduard Korsinsky -- ek@zlk.com -- Levi & Korsinsky, LLP. Shaolei Qiu, Plaintiff, represented by Christopher J. Gray, Law Office of Christopher J. Gray, P.C. Howard Cannon, Naresh Puri, Nick Singh, Zero Labs Group, LLC & David Silver and Michelle Lynn Silver GST, Movants, represented by Andrei V. Rado, Milberg Tadler Phillips Grossman LLP. Y-GAR Capital LLC, Movant, represented by David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Kershner Trading Group, LLC, Movant, represented by Barbara J. Hart -- bhart@lowey.com -- Lowey Dannenberg P.C. XIV Investor Group, Movant, represented by Adam M. Apton, Levi & Korsinsky, LLP, Carol V. Gilden, Cohen Milstein Sellers & Toll PLLC, Eric Steven Berelovich, Cohen Milstein Sellers & Toll PLLC, Laura Helen Posner, Bernstein Litowitz Berger & Grossmann LLP, Michael Benjamin Eisenkraft, Cohen Milstein Sellers & Toll PLLC & Nicholas Ian Porritt, Levi & Korsinsky, LLP. Princeton Opportunistic Credit Fund L.P., Movant, represented by Mark Allen Strauss, I, Kirby McInerney LLP. Andrew MacEntee, Movant, represented by Michael Walter Stocker, Hagens Berman Sobol Shapiro LLP. Credit Suisse Group AG, David R Mathers, Tidjane Thiam, Credit Suisse AG & Credit Suisse International, Defendants, represented by David George Januszewski -- djanuszewski@cahill.com -- Cahill Gordon & Reindel LLP, Herbert Scott Washer -- hwasher@cahill.com -- Cahill Gordon & Reindel LLP, Peter James Linken, Cahill Gordon & Reindel LLP, Sesi V. Garimella, Cahill Gordon & Reindel LLP & Sheila Chithran Ramesh -- sramesh@cahill.com -- Cahill Gordon & Reindel LLP. Janus Henderson Group PLC, Janus Index & Calculation Services LLC & Janus Distributors, LLC, doing business as Janus Henderson Distributors, Defendants, represented by Jason Michael Halper -- jason.halper@cwt.com -- Cadwalader, Wickersham & Taft LLP, Gillian Groarke Burns -- gillian.burns@cwt.com -- Cadwalader, Wickersham & Taft LLP & Jared Jon Stanisci -- jared.stanisci@cwt.com -- Cadwalader, Wickersham & Taft LLP. DASMEN RESIDENTIAL: Woodson Seeks to Certify Class -------------------------------------------------- In the class action lawsuit styled as ANGELA WOODSON, the Plaintiff, vs. DASMEN RESIDENTIAL, LLC, ET AL., the Defendants, Case No. 2:19-cv-10890-BWA-DMD (E.D. La., Oct. 14, 2019), the Plaintiffs ask the Court to enter an Order certifying a class of: "all current and former residents of the Lagana Run Apartment Complex located at 7001 Martin Drive, New Orleans, Louisiana 70126, who have suffered damages as a result of the negligent operation and management of the apartment complex, including but not limited to, bodily injuries, emotional distress, loss of use and enjoyment, and economic losses." According to the lawsuit, the Defendants have negligently owned and/or managed the Laguna Run Apartment Complex causing damages to the Named Plaintiff and putative class of similarly situated persons. The Defendants have direct knowledge that there is a widespread, unabated mold infestation problem throughout the apartment complex. Every unit that has been tested by Plaintiff counsel's expert has evidenced the presence of harmful and toxic mold, the lawsuit says.[CC] Attorneys for the Plaintiff are: Suzette P Bagneris, Esq. Emile A. Bagneris, Esq. THE BAGNERIS FIRM LLC 2714 Canal Street, Suite 403 New Orleans, LA 70119 Telephone: (504) 810-3995 E-mail: sbagneris@bagnerislawfirm.com Attorneys for the Defendants are: Ernest P. Gieger, Jr., Esq. Emily E. Eagan, Esq. Tucker T. Bohren, Esq. GIEGER, LABORDE, & LAPEROUSE, LLC. 701 Poydras Street, Suite 4800 New Orleans, LA 70139 E-mail: eeagan@gllaw.com egieger@gllaw.com tboln-en@gllaw.com DMJJ CONSTRUCTION: Fagerson Sues Over Illegal Telemarketing Call ---------------------------------------------------------------- Daniel Fagerson, individually and on behalf of all others similarly situated, Plaintiff, v. DMJJ Construction, Inc., Defendant, Case No. 19-cv-01854 (S.D. Tex., September 18, 2019), seeks statutory damages, punitive damages, costs and attorney fees under the Telephone Consumer Protection Act. DMJJ Construction, Inc. operates as a home contractor. Fagerson claims to have received prerecorded voice messages from DMJJ on his cellphone. Fagersonis is on the National Do-Not-Call Registry. [BN] Plaintiff is represented by: Alex S. Madar, Esq. MADAR LAW CORPORATION 14410 Via Venezia #1404 San Diego, CA 92129 Telephone: 858-299-5879 Fax: 619-354-7281 Email: alex@madarlaw.net DOROTHY A. BROWN: Smith Seeks to Certify Class ---------------------------------------------- In the class action lawsuit styled as CAROLINE J. SMITH, on behalf of herself and others similarly situated, the Plaintiffs, v. DOROTHY A. BROWN, the Defendant, Case No. 1:19-cv-05238 (N.D. Ill.), the Plaintiff moves the Court for an order certifying a class consisting of: "all Illinois private eviction-defense attorneys who have paid and are being required to pay court fees, costs and charges for clients who previously had those fees, costs and charges waived due to indigency, and all eviction defendants who have been or will be subjected to the fee requirement despite being issued fee waivers."[CC] Attorney for the Plaintiff are: Clinton A. Krislov, Esq. Christopher M. Hack, Esq. KRISLOV & ASSOCIATES, LTD 20 North Wacker Drive, Suite 1300 Chicago, IL 60606 Telephone: (312) 606-0500 E-mail: clint@krislovlaw.com chris@krislovlaw.com DOUBLE J COLLISION: Cabrera Suit to Recover Unpaid Overtime ----------------------------------------------------------- Hector Cabrera, individually and on behalf of all others similarly situated, Plaintiff, v. Double J Collision Corp., Juan Chopurian and Joseph Vitta, Defendants, Case No. 19-cv-05471 (E.D. N.Y., September 26, 2019), seeks to recover overtime wages due, liquidated damages, and all reasonable attorneys' fees pursuant to the Fair Labor Standards Act of 1938, and New York labor laws. Defendants operate as "Double J," an auto body repair shop where Vitta worked as a car detailer. He claims to have worked in excess of 40 hours per week without being paid overtime premiums. [BN] Plaintiff is represented by: Katherine Morales, Esq. KATZ MELINGER PLLC 280 Madison Avenue, Suite 600 New York, New York 10016 Tel: (212) 460-0047 Email: kymorales@katzmelinger.com DUKE UNIVERSITY: $18.2MM Attorneys' Fees Awarded in Seaman Suit --------------------------------------------------------------- In the case, DANIELLE SEAMAN, individually and on behalf of all others similarly situated, Plaintiff, v. DUKE UNIVERSITY and DUKE UNIVERSITY HEALTH SYSTEM, Defendants, Case No. 1:15-CV-462 (M.D. N.C.), Judge Catherine C. Eagles of the U.S. District Court for the Middle District of North Carolina granted the Class Counsel's uncontested motion for attorney's fees, attorney's expenses, and service award for the class representative. In the antitrust class action, the Court has approved a settlement between the employee class members and Defendants Duke and Duke University Health System. The settlement requires Duke to pay $54.5 million and will also result in significant injunctive relief. The Plaintiffs' counsel asks for attorney's fees of $18,166,666.67, 30% of the common fund. The counsel also seeks $3,320,066.35 in reimbursement for costs. Plaintiff Danielle Seaman also seeks a service award in the amount of $125,000. The Court is familiar with this case and the work of plaintiffs' counsel, which the Court has taken into account. It has reviewed Class Counsel's request and the supporting evidence, as well as attorney's fees and class representative awards from similar cases. For the reasons stated, the Court will grant the motion. Judge Eagles finds that an attorney's fee equal to one-third of the common fund ($18,166,666.67) is reasonable, based on the resources the Class Counsel advanced, the quality of the Class Counsel's work, the results obtained, the risks and obstacles the Class Counsel faced, and fees awarded in similar antitrust cases. Next, he finds that the Class Counsel's zealous advocacy, despite the resources required and the risks involved, supports the multiplier. Courts have found that lodestar multipliers ranging from 2 to 4.5 demonstrate the reasonableness of a requested percentage fee. A 2.89 multiplier is reasonable and appropriate in the case. The Judge then finds that the Class Counsel's cost reimbursement request is fair and reasonable. The remaining costs and expenses are reasonable and legitimate costs associated with prosecuting the case, such as travel, telephone, postage, delivery services, settlement costs, legal research, depositions, and so on. Finally, in light of Dr. Seaman's contributions to the case, the risks she faced and will continue to face, the reasonable ratio between her service award and other Class Members' recovery, and comparable service awards in similar cases, the Judge concludes that the $125,000 request is fair and reasonable. Based on the foregoing, Judge Eagles finds that the Class Counsel's uncontested motion for attorney's fees, attorney's expenses, and service award for the class representative is well-supported and reasonable. Accordingly, he granted the Class Counsel's motion for attorney's fees, reimbursement of costs, and service award for the class representative. The Class Counsel is entitled to an attorney's fee of $18,166,666.67, to be paid from the settlement amount, which is a common fund. The Class Counsel will be reimbursed for expenses of $3,320,066.35, which are to be paid from the settlement amount. A service award of $125,000 will be paid to Dr. Danielle Seaman, also to be paid from the settlement amount. A full-text copy of the Court's Sept. 25, 2019 Memorandum Opinion & Order is available at https://is.gd/4wrFdu from Leagle.com. DANIELLE SEAMAN, individually and on behalf of all others similarly situated, Plaintiff, represented by ROBERT M. ELLIOT -- rmelliot@emplawfirm.com -- ELLIOT MORGAN PARSONAGE, P.A., ABBYE R. KLAMANN -- aklamann@lchb.com -- LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, ANNE B. SHAVER -- ashaver@lchb.com -- LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, BRENDAN P. GLACKIN -- bglackin@lchb.co -- LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, DANIEL C. LYON, ELLIOT MORGAN PARSONAGE, PLLC, DEAN M. HARVEY -- dharvey@lchb.com -- LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, KATHERINE C. LUBIN, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, KELLY M. DERMODY -- bglackin@lchb.com -- LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, LIN Y. CHAN, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, R. MICHAEL ELLIOT -- michaelelliot@emplawfirm.com -- ELLIOT MORGAN PARSONAGE, PLLC, SHIRA J. TEVAH, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, WILSON M. DUNLAVEY, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP & YAMAN SALAHI, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP. UNITED STATES OF AMERICA, Intervenor Plaintiff, represented by BARRY L. CREECH, UNITED STATES DEPARTMENT OF JUSTICE ANTITRUST DIVISION, NICKOLAI G. LEVIN, U.S. DEPARTMENT OF JUSTICE ANTITRUST DIVISION, ERIC D. WELSH, US Department of Justice & JOHN P. LOHRER, UNITED STATES DEPARTMENT OF JUSTICE ANTITRUST DIVISION. DUKE UNIVERSITY & DUKE UNIVERSITY HEALTH SYSTEM, INC., Defendants, represented by BRENT F. POWELL, WOMBLE BOND DICKINSON (US) LLP, DEREK LUDWIN -- dludwin@cov.com -- COVINGTON & BURLING, LLP, EMILY E. ERIXSON, ELLIS & WINTERS LLP, GREGG H. LEVY -- glevy@cov.com -- COVINGTON & BURLING, LLP, JAMES P. COONEY, III, WOMBLE BOND DICKINSON (US), LLP, ASHLEY BASS, COVINGTON & BURLING LLP, MARIANNE F. KIES, COVINGTON & BURLING LLP & SARAH MOTLEY STONE, WOMBLE BOND DICKINSON (US), LLP. WILLIAM L ROPER, Defendant, represented by CLINTON R. PINYAN, BROOKS PIERCE MCLENDON HUMPHREY & LEONARD, D. BRYAN STARRETT, Jr., BROOKS PIERCE MCLENDON HUMPHREY & LEONARD & KEARNS DAVIS, BROOKS PIERCE MCLENDON HUMPHREY & LEONARD. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, UNIVERSITY OF NORTH CAROLINA SCHOOL OF MEDICINE & UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM, Defendants, represented by CARY B. DAVIS , ROBINSON BRADSHAW & HINSON, P.A., ERIK R. ZIMMERMAN, ROBINSON, BRADSHAW & HINSON, P.A. & LAWRENCE C. MOORE, III, ROBINSON BRADSHAW & HINSON, P.A. PRIVATE DIAGNOSTIC CLINIC, PLLC, Interested Party, represented by JOHN ANTHONY ZALOOM, MOORE & VAN ALLEN PLLC. ECOTECH LLC: Fails to Pay Overtime Wage Under FLSA, Loveless Says ----------------------------------------------------------------- BRANDON LOVELESS, on behalf of himself and others similarly situated v. ECOTECH, LLC and MICHAEL AVRUSHENKO, Case No. 4:19-cv-02698 (E.D. Mo., Oct. 3, 2019), accuses the Defendants of violating the Fair Labor Standards Act by forcing the Plaintiff and similarly situated workers to work a substantial amount of overtime without properly paying all compensation. Ecotech, LLC, is a domestic for-profit limited liability company with a principal place of business in Saint Louis, Missouri. Michael Avrushenko is the owner and principal of Ecotech. The Defendants operate an automotive repair and maintenance company located in St. Louis, Missouri. The Defendants specialize in repairs and maintenance services on Subaru, Toyota, Honda, Saab, Volvo, Volkswagen, Audi, BMW, and Nissan. The Defendants employ technicians, like the Plaintiff, to repair and service customers' vehicles.[BN] The Plaintiff is represented by: Robert W. Cowan, Esq. Katie R. McGregor, Esq. BAILEY COWAN HECKAMAN PLLC 5555 San Felipe St., Suite 900 Houston, TX 77056 Telephone: (713) 425-7100 Facsimile: (713) 425-7101 E-mail: rcowan@bchlaw.com kmcgregor@bchlaw.com ELNA CO: Dec. 23 Deadline Set to Object to Deal on Capacitors Suit ------------------------------------------------------------------ A class action lawsuit brought on behalf of indirect purchasers of electrolytic and film capacitors ("Capacitors") is currently pending. Capacitors are electronic components that store electric charges between one or more pairs of conductors separated by an insulator. Plaintiffs claim that Defendants and co-conspirators engaged in an unlawful conspiracy to fix, raise, maintain, or stabilize the prices of Capacitors. Plaintiffs further claim that indirect purchasers of Capacitors may recover for the effect that the conspiracy had on the prices of these electronic components. Plaintiffs allege that, as a result of the unlawful price fixing conspiracy involving Capacitors, they and other indirect purchasers paid more for Capacitors than they would have paid absent the conspiracy. Defendants deny Plaintiffs' claims. Settlements totaling approximately $31 million have now been reached with Defendants ELNA Co., Ltd. and ELNA America, Inc. ("ELNA"); Matsuo Electric Co., Ltd. ("Matsuo"); Nichicon Corporation and Nichicon (America) Corporation ("Nichicon"); and Panasonic Corporation, Panasonic Corporation of North America, SANYO Electric Co., Ltd., and SANYO Electronic Device (U.S.A.) Corporation ("Panasonic") (collectively, "Settling Defendants"). Only certain Defendants have agreed to settle the lawsuit. In addition to the Settling Defendants, NEC TOKIN Corp. and NEC TOKIN America, Inc. ("NEC TOKIN"); Okaya Electric Industries Co., Ltd. ("OEI"); Nitsuko Electronics Corporation ("Nitsuko"); Hitachi Chemical Co., Ltd., Hitachi AIC Inc., and Hitachi Chemical Co. America, Ltd. ("Hitachi"); Soshin Electric Co., Ltd. and Soshin Electronics of America, Inc. ("Soshin"); Rubycon Corp. and Rubycon America, Inc. ("Rubycon"); Holy Stone Enterprise Co., Ltd., Holy Stone Holdings Co., Ltd., Holy Stone Polytech Co., Ltd., and Milestone Global Technology, Inc. ("Holystone"); and Nippon Chemi-Con Corp. and United Chemi-Con, Inc. ("NCC/UCC") have previously agreed to settlements. The case is continuing against the remaining Defendants ("Non-Settling Defendants"). Additional money may become available in the future as a result of a trial or future settlements, but there is no guarantee that this will happen. The Non-Settling Defendant companies include: Nissei Electric Co., Ltd., Shinyei Technology Co., Ltd., Taitsu Corp., and Toshin Kogyo Co., Ltd. (collectively, "Non-Settling Defendants"). The Settlement Classes for all of the Settlement Agreements include the following: All persons and entities in the United States who, during the period from April 1, 2002, through February 28, 2014, purchased one or more Electrolytic Capacitor(s) from a distributor (or from an entity other than a Defendant) that a Defendant or alleged co-conspirator manufactured. A second class is included in the Panasonic Settlement Agreement including the following: All persons and entities in the United States who, during the period from January 1, 2002, through February 28, 2014, purchased one or more Film Capacitor(s) from a distributor (or from an entity other than a Defendant) that a Defendant or alleged co-conspirator manufactured. The Court in charge of the case still has to decide on final approval of the Settlements. Payments will be made only (1) if the Court approves the Settlements and after any appeals are resolved, and (2) after the Court approves a Distribution Plan to distribute the Settlement Funds minus expenses and any Court-approved attorneys' fees ("Net Settlement Funds") to Class Members. The proposed Distribution Plan for these Settlements is to make a pro rata distribution to each Class Member that purchased capacitors in a state that permits indirect purchaser antitrust claims based upon the number of approved purchases per Class Member of Capacitors of film or electrolytic Capacitors during the Settlement class period. YOUR LEGAL RIGHTS AND OPTIONS SUBMIT A CLAIM FORM The only way to be eligible to receive a payment. March 23, 2020 EXCLUDE YOURSELF You will not be included in the Settlement(s) from which you exclude yourself. You will receive no benefits from the Settlement(s) from which you exclude yourself, but you will keep any rights you currently have to sue the Settling Defendants about the claims in the case(s) from which you exclude yourself. December 23, 2019 DO NOTHING NOW You will be included in these Settlements. If you do not submit a Claim Form you will not be eligible to receive a payment. If you do not exclude yourself from these Settlements, you will give up your rights to sue these Settling Defendants about the claims in the lawsuit. OBJECT TO THE SETTLEMENTS If you do not exclude yourself, you can write to the Court explaining why you disagree with these Settlements. December 23, 2019 GO TO HEARING The Court will consider whether the Settlements are fair, reasonable, and adequate. January 23, 2020 [GN] EROS INT'L: Opus Chartered Suit Transferred to New Jersey --------------------------------------------------------- The class action lawsuit styled as OPUS CHARTERED ISSUANCES S.A., COMPARTMENT 127 and AI UNDERTAKING IV, Individually and On Behalf of All Others Similarly Situated, the Plaintiffs, vs. EROS INTERNATIONAL PLC, KISHORE LULLA, PREM PARAMESWARAN, and JYOTI DESHPANDE, the Defendants, Case No. 2:19-cv-07242 (Filed Aug. 20, 2019), was transferred from the U.S. District Court for the Central District of California, to U.S. District Court for the District of New Jersey on Sept 30, 2019. The District of New Jersey Court Clerk assigned Case No. 2:19-cv-18547-ES-SCM to the proceeding. The case is assigned to the Hon. Judge Esther Salas. The case is a class action on behalf of persons and entities that purchased or otherwise acquired Eros securities between July 28, 2017 and June 5, 2019, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. Eros is a global company in the Indian film entertainment industry that co-produces, acquires, and distributes Indian language films in multiple formats worldwide.[BN] Attorneys for the Plaintiffs are: Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone:(310) 201-9150 Facsimile: (310) 201-9160 E-mail: info@glancylaw.com EUBA CORP: Certification of Delivery Drivers Class Sought --------------------------------------------------------- In the class action lawsuit styled as The Estate of Michael McConnell (represented by Kacey LeAnn McConnell), On behalf of himself and those similarly situated, the Plaintiff, vs. EUBA Corp., et al., the Defendants, Case No. 3:18-cv-355 (S.D. Ohio), the Plaintiff moves the Court for an order: 1. conditionally certify the case as a collective action: "all non-owner, non-employer delivery drivers who worked for Defendants at any of their Domino's Pizza locations from October 30, 2015 to present"; 2. approve the Plaintiff's proposed notices and methods of disseminating notice; 3. directing the Defendants to provide name and contact information for all potential class members within 15 days of the court's order; 4. authorizing the Plaintiff to send the notices via regular U.S. mail and e-mail; and 5. authorizing a 90-day opt-in period. The case seeks unpaid minimum wages and associated damages on behalf of Domino's delivery drivers who work for approximately 12 franchise stores in Ohio. The drivers make a straightforward and too-common claim: they have not been properly reimbursed for their delivery expenses, and therefore have "kicked back" a portion of their wages to Defendants in violation of the Fair Labor Standards Act and state wage law. Attorneys for the Plaintiff are: Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Philip J. Krzeski, Esq. BILLER & KIMBLE, LLC 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Telephone: (513) 651-3700 Facsimile: (513) 665-0219 E-mail: abiller@billerkimble.com akimble@billerkimble.com pkrzeski@billerkimble.com FACEBOOK INC: Court Dismisses Securities Suit with Leave to Amend ----------------------------------------------------------------- In the case, IN RE FACEBOOK, INC. SECURITIES LITIGATION, Case No. 5:18-cv-01725-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, granted the Defendants' motion to dismiss the Plaintiffs' Complaint in its entirety with leave to amend. The lawsuit stems from the revelation that Cambridge Analytica acquired the private Facebook data of millions of users and that, upon learning of the leak, Facebook allegedly attempted to suppress evidence of the breach contrary to its stated privacy policy. The Plaintiffs are persons who purchased shares of Facebook common stock between Feb. 3, 2017 and July 25, 2018, who believe that Mark Zuckerberg, Sheryl K. Sandberg, and David M. Wehner, made materially false and misleading statements and omissions in connection with the purchase and sale of Facebook stock. They allege that the Defendants violated Section 10(b), 20(a), and 20A of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder because the Defendants made guarantees that the Cambridge Analytica, and related data-privacy scandals, would not impact Facebook stock while knowing it to be false. Specifically, the Plaintiffs focus on the Defendants' statements and omissions concerning Facebook's privacy and data protection practices and their impact on Facebook's stock price during two time periods: March and July 2018. The Defendants have filed a motion to dismiss the lawsuit arguing that the Plaintiffs have not, and cannot, meet Rule 9(b)'s heightened pleading requirements for securities fraud and instead allege "an overarching hindsight theory. They make four main arguments all centered around the Plaintiffs' inability to meet the elements of securities fraud. First, the Defendants argue the Plaintiffs have not pled an actionable misstatement or omission because they have not identified any false statements. They argue the 36 "actionable" statements or omissions Plaintiffs raise are, in fact, neither actionable nor fraudulent because the Plaintiffs make no attempt to plead that the Defendants lied or mislead investors. As to all the allegations, Judge Davila holds that only Statement 22 is actionable. Statement 22 is Defendant Sandberg's 2017 statement that "no one is going to get your data that shouldn't have it" because "you're controlling who you share with." The Plaintiffs have adequately pleaded that users could not control their data. The Judge holds that the Plaintiffs adequately pleaded falsity as required by the PSLRA for Statement 22. Second, the Defendants argue the Plaintiffs have not pled a strong inference of scienter because the Plaintiffs do not (1) relate the alleged misstatements to any conduct establishing scienter or (2) show facts that the Defendants knew the challenged statements were false. Further, they contend that the Plaintiffs offer only conclusions without alleging any specific facts to support these conclusions. As the Judge explained, the one actionable Statement, Statement 22, lacks scienter because the Plaintiffs do not allege with sufficient particularity that Defendant Sandberg made the statement knowing it was false. Among other things, the Judge finds that the SEC Consent Decree alone was not enough to infer scienter and, likewise, the FTC Consent Decree alone is insufficient to infer scienter as the Plaintiffs have provided no particularized facts from which this Court can infer Sandberg consciously lied. Third, the Defendants contend that the Plaintiffs fail to plead loss causation since Defendants had already warned investors of a potential stock decline and cannot trace any corrective disclosure to the stock price's drop. Finally, the Defendants argue that the Plaintiffs cannot show reliance based on a "fraud-on-the market" theory because the Cambridge Analytica scandal was already known a year before the start of the putative class action and so the market already reacted to the data breach. The Judge does not reach the third and fourth arguments because he grants the Motion to Dismiss on alternative grounds. Accordingly, the Plaintiffs do not adequately plead a securities fraud violation, rules the Court. It is the Plaintiffs' burden to point to plausible and particular facts tending to show fraudulent behavior by the Defendants. Without such a showing, the Plaintiffs cannot survive the higher evidentiary pleading standard enumerated in Rule 9 of the Federal Rules of Civil Procedure. Thus, the Judge will grant the Defendants' Motion to Dismiss. Although the Judge has determined that the Plaintiffs fail to state a claim, it is possible they can cure their allegations by alleging, among other things, more particular facts as to why statements by the Individual Defendants were false when made. Accordingly, because the Plaintiffs may salvage their Complaint, the Judge finds amendment would not be futile. The Plaintiffs' claims, therefore, will be dismissed with leave to amend. Based on the foregoing, Judge Davila granted the Defendants' motion to dismiss the Plaintiffs' Complaint in its entirety with leave to amend. Should the Plaintiffs choose to file an amended complaint, they must do so by Oct. 26, 2019. Failure to do so, or failure to cure the deficiencies addressed in the Order, will result in dismissal of the Plaintiffs' claims with prejudice. The Plaintiffs may not add new claims or parties without leave of the Court or stipulation by the parties pursuant to Federal Rule of Civil Procedure 15. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/XZ64zU from Leagle.com. Fan Yuan, Plaintiff, represented by Jennifer Pafiti, Pomerantz LLP, J. Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, pro hac vice & Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice. Ernestine Bennett, Plaintiff, represented by Danielle Suzanne Myers, Robbins Geller Rudman & Dowd LLP, Darren Jay Robbins, Robbins Geller Rudman & Dowd LLP, Kenneth Joseph Black, Robbins Geller Rudman and Dowd LLP & Jason Cassidy Davis, Robbins Geller Rudman & Dowd LLP. James Kacouris & James Kacouris, individually and on behalf of all others similary situated, Plaintiffs, represented by Jennifer Pafiti, Pomerantz LLP, Jeremy Alan Lieberman, Pomerantz LLP & Joseph Alexander Hood, II, Pomerantz LLP. Fern Helms, Plaintiff, represented by David Lawrence Hecht -- dhecht@piercebainbridge.com -- Pierce Bainbridge Beck Price and Hecht LLP, Claiborne R. Hane, Pierce Bainbridge Beck Price and Hecht LLP & Thomas David Warren, Pierce Bainbridge Beck Price and Hecht LLP. Facebook, Inc., Defendant, represented by Orin Snyder -- osnyder@gibsondunn.com -- Gibson Dunn and Crutcher, pro hac vice, Brian Michael Lutz -- blutz@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Joshua Seth Lipshutz, Gibson, Dunn and Crutcher LLP, Kristin A. Linsley, Esq. -- klinsley@gibsondunn.com -- Gibson, Dunn & Crutcher LLP & Paul J. Collins -- pcollins@gibsondunn.com -- Gibson, Dunn, Crutcher LLP. Mark E. Zuckerberg, David M. Wehner & Sheryl K. Sandberg, Defendants, represented by Orin Snyder, Gibson Dunn and Crutcher & Brian Michael Lutz, Gibson, Dunn & Crutcher LLP. Michael P. Carfagna, Movant, represented by Robert Vincent Prongay -- info@glancylaw.com -- Glancy Prongay & Murray LLP. Phoenix Insurance Company Ltd., Bilkish Patel & Engin Taner, Movants, represented by Jennifer Pafiti, Pomerantz LLP & Jeremy Alan Lieberman, Pomerantz LLP. Public Employees' Retirement System of Mississippi, Movant, represented by Avi Josefson, Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Gerald H. Silk, Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Jeremy P. Robinson, Bernstein Litowitz Berger Grossmann LLP, John Christopher Browne, Bernstein Litowitz Berger Grossman LLP, pro hac vice, Michael D. Blatchley, Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Jason Matthew Kirschberg Gadow Tyler, PLLC, Jonathan Daniel Uslaner, Bernstein Litowitz Berger & Grossman LLP & Kate Whitman Aufses, Bernstein Litowitz Berger Grossmann LLP, pro hac vice. Jeremiah F. Hallisey, Interested Party, represented by Mark Cotton Molumphy, Cotchett, Pitre & McCarthy LLP. Natalie Ocegueda, Interested Party, represented by Francis A. Bottini, Jr., Bottini & Bottini, Inc. Securities And Exchange Commission, Interested Party, represented by Robert Lootfi Tashjian, Securities & Exchange Commission. Amalgamated Bank, as Trustee for the LV LargeCap 1000 Growth Index Fund, Long View Quantitative LargeCap Fund and Long View quant LargeCap Equity VERB Fund, Intervenor, represented by David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP, Jeremy P. Robinson, Bernstein Litowitz Berger Grossmann LLP, John Christopher Browne, Bernstein Litowitz Berger Grossman LLP, Danielle Suzanne Myers, Robbins Geller Rudman & Dowd LLP, Dennis J. Herman, Robbins Geller Rudman & Dowd LLP, Jason Cassidy Davis, Robbins Geller Rudman & Dowd LLP, Jonathan Daniel Uslaner, Bernstein Litowitz Berger & Grossman LLP, Kenneth Joseph Black, Robbins Geller Rudman and Dowd LLP & Michael Albert, Robbins Geller Rudman and Dowd LLP. FRIENDLY LIMOUSINE: Farooq Suit Seeks Unpaid Overtime Wages ----------------------------------------------------------- Imran Farooq, Individually and on behalf of others similarly situated, Plaintiff, v. Friendly Limousine Service, Inc., Paul Muller, Jr. Glenn T. Muller and Shahzad Mohammed Rauf, Defendants, Case No. 19-cv-05472 (E.D. N.Y., September 26, 2019), seeks minimum wages, unpaid overtime and spread-of-hours compensation, liquidated damages, prejudgment and post-judgment interest and attorneys' fees and costs pursuant to the Fair Labor Standards Act, New York Labor Law and the New York State Wage Theft Prevention Act. Defendants operate a chauffeured town car and related motor vehicle car service business located in the town of Great Neck, Nassau where Faroog was employed as a driver from June 20, 2016 until April 11, 2019. He worked in excess of forty hours per week, six days per week, with Saturdays off, from 2:00 p.m. to approximately 1:00 a.m., without any break for meals, or a total of sixty-six hours per week, asserts the complaint. [BN] The Plaintiff is represented by: Arthur H. Forman, Esq. LAW OFFICE OF ARTHUR H. FORMAN 90-20 Metropolitan Avenue Forest Hills, New York 11375 Tel: (718) 268-2616 Email: mail@ahforman.com I-44 TRUCK CENTER: Enlow Seeks to Recover Overtime Wages Under FLSA ------------------------------------------------------------------- CHARLES ENLOW, GARY TROLINGER, and DONALD DORAN, individually and on behalf of all others similarly situated, Plaintiffs, v. I-44 TRUCK CENTER & WRECKER SERVICE, LLC, PEACOCK MANAGEMENT COMPANY, LLC, MARK ROBBINS, and GAIL ROBBINS, Defendants, Case No. 4:19-cv-02767 (E.D. Mo., Oct. 11, 2019) is an action for violations of the Fair Labor Standards Act. Plaintiffs and putative class members were hourly-paid employees who worked in various capacities with the Company, including working in the office handling billing, sending employees on service calls, as well as performing various mechanic related duties. Regardless of the work they performed, Plaintiffs and the other employees of I-44 Truck Center were not paid overtime compensation at one-and-a-half-times their regular rate of pay for each hour worked over 40 each workweek, asserts the complaint. Plaintiffs bring this suit individually and on behalf of other hourly-paid employees of I-44 Truck Center to recover overtime compensation due under the Fair Labor Standards Act. Plaintiffs worked for I-44 Truck Center at its Rolla location. Defendants operate a 24/7 roadside service company with locations along I-44 in central and eastern Missouri, including locations in Rolla, Sullivan, Pacific, and St. Clair, Missouri.[BN] The Plaintiff is represented by: Timothy A. Steadman, Esq. HOLLEMAN & ASSOCIATES, P.A. 1008 West Second Street Little Rock, AR 72201 Phone: 501.975.5040 Fax: 501.975.5043 Email: tim@johnholleman.net IKEA INDUSTRY: Powell Seeks to Conditionally Certify Class ---------------------------------------------------------- In the class action lawsuit styled as TERRI POWELL, On behalf of Herself and all Others Similarly Situated, the Plaintiff, vs. IKEA INDUSTRY DANVILLE, LLC, the Defendant, Case No. 4:18-cv-00058-JLK-RSB (W.D. Va.), the Plaintiff asks the Court to enter an order: 1. conditionally certifying a class of: "all hourly, non-exempt employees, regardless of actual title, who worked for the Defendant at any time during the last three years and who reported work time using the Defendant's electronic time-keeping system"; 2. directing IKEA, within seven calendar days, to provide Plaintiff's counsel, in computer-redable electronic format, the names, job locations, dates of employment, mailing addresses, phone numbers and email address of all persons who are, have been, or will be employed by IKEA, at any time within the last three years; 3. authorizing the Plaintiff to mail, e-mail and text the Plaintiff's proposed notice and consent form to the putative class members; 4. directing the Defendant to post the notice at its facility until the opt-in period closes; and 5. approving a 90-day opt-in period in which putative class members may return their signed consent form.[BN] Attorneys for the Plaintiff are: Greeg C. Greenberg, Esq. ZIPIN, AMSTER & GREENBERG, LLC www.zagfirm.com 87857 Georgia Avenue, MD 20910 Telephone: (301) 587 9373 Facsimile: (240) 839 9142 E-mail: ggreenberg@zagfirm.com - and - Christopher R. Strianse, Esq. STRIANSE HUCKERT, PLLC www.strilaw.com 3501 Monroe Rd. Charlotte, NC 28205 Telephone: (704) 998 2577 Facsimile: (704) 998 5301 E-mail: chris@strilaw.com - and - Tracey F. George, Esq. DAVIS GEORGE MOOK LLC 1600 Genesse St., Suite 328 Kansas City, MO 64102 Telephone: (816) 569 2629 Facsimile: (816) 447 3939 E-mail: tracey@dgmlawyers.com www.dgmlawywers.com Attorneys for the Defendant are: Tevis Marshall, Esq. Bret G. Daniel, Esq. OGLETREE, DEAKINS, NASH SMOAK AND STEWART P.C. Riverfront Plaza West Tower 901 E. Byrd Street, Suite 1300 Richmond, VA 23219 Telephone: (804) 663 2333 Facsimile: (804) 225 8641 E-mail: rshaw@gordonrees.com INTEGRITY EMPLOYEE: Frazier Suit Asserts FCRA Violation ------------------------------------------------------- CHAMBRE FRAZIER, on behalf of herself and on behalf of all others similarly situated, Plaintiff, v. INTEGRITY EMPLOYEE LEASING, INC., PURPLE SQUARE MANAGEMENT COMPANY, LLC, d/b/a DUNKIN DONUTS, Defendants, Case No. 19-006795-CI (6th Judicial Circuit Ct., Pinellas Cty., Fla.., Oct. 11, 2019) is a Class Action Complaint brought against Defendant under the Fair Credit Reporting Act of 1970. The Defendants routinely obtain and use information in consumer reports to conduct background checks on prospective employees and existing employees, and frequently relies on such information, in whole or in part, as basis for adverse employment action, such as denying employment, removal form job assignment, and denying promotions or other job related opportunities. The Defendants were required to disclose to its applicants and employees--in a document that consists solely of the disclosure--that it might obtain a consumer report for employment purposes. However, the Defendants did not make the disclosure in a "stand alone" document consisting solely of disclosure, asserts the complaint. Thus, the Defendants willfully violated the FRCA, in systematic violation of Plaintiff's rights and of other putative class members. Plaintiff is a consumer/applicant who was subject of a consumer report used for employment purposes by Defendants. Defendants are corporations and user of consumer reports as contemplated by the FCRA.[BN] The Plaintiff is represented by: LUIS A. CABASSA, ESQ. Direct Dial: 813-379-2565 BRANDON J. HILL, ESQ. Direct Dial: 813-337-7992 WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Main No: 813-224-0431 Facsimile: 813-229-8712 Email: lcabassa@wfclaw.com bhill@wfclaw.com jcornell@wfclaw.com INTERNATIONAL CRUISE: Kirlew Seeks Unpaid Overtime Wages -------------------------------------------------------- UNIQUA KIRLEW, on behalf of herself and those similarly situated, Plaintiff, v. INTERNATIONAL CRUISE & EXCURSION GALLERY, INC., a Foreign Profit Corporation, Defendant, Case No. 6:19-cv-01955-WWB-LRH (M.D. Fla., Oct. 11, 2019) is an action brought for unpaid overtime compensation, liquidated damages, declaratory relief, and other relief under the Fair Labor Standards Act. Over the last three years, ICE has been engaged in a scheme to avoid paying overtime compensation to its Accounts Managers, alleges the complaint. As a result, many of ICE's Account Managers have been denied overtime wages for their work performed in violation of the FLSA, says the complaint. Plaintiff has worked for ICE since around February 2018 in their office located at 8427 Southpark Circle, Orlando, Florida 32819. INTERNATIONAL CRUISE & EXCURSION GALLERY, INC., is a Foreign Limited Liability Company that does business in Orlando, Florida and is a "leading provider of travel-based loyalty, rewards, and incentive programs".[BN] The Plaintiff is represented by: C. Ryan Morgan, Esq. Jolie N. Pavlos, Esq. Morgan & Morgan, P.A. 20 N. Orange Ave., 14th Floor P.O. Box 4979 Orlando, FL 32802-4979 Phone: (407) 420-1414 Facsimile: (407) 245-3401 Email: RMorgan@forthepeople.com JPavlos@forthepeople.com LARSEN & TOUBRO: Faces Meyenhofer Suit for Racial Discrimination ---------------------------------------------------------------- MARKUS MEYENHOFER and ANDREW RAGLAND, on behalf of themselves and a class of similarly situated individuals, Plaintiffs, v. LARSEN & TOUBRO INFOTECH LIMITED, and LARSEN & TOUBRO INFOTECH LLC Defendants, Case No. 1:19-cv-09349 (S.D. N.Y., Oct. 9, 2019) is an action on behalf of Plaintiffs and a class of similarly situated individuals to remedy pervasive, ongoing race, national origin, and citizenship discrimination by Defendants' employment practices in violation of the Civil Rights Act of 1866 and Title VII of the Civil Rights Act of 1964. While only about 12% of the United States' IT industry (the industry in which LTI operates) is South Asian, at least 95% (or more) of LTI's United States workforce is South Asian, and is primarily composed of visa holders from India. This grossly disproportionate workforce is the result of LTI's intentional pattern or practice of employment discrimination against individuals who are not of South Asian race, who are not of Indian national origin, and who are not visa holders and its utilization of employment practices that result in a disparate impact on these same groups. This discrimination is pervasive throughout the organization and extends to LTI's hiring, job placement, promotion, and termination decisions and practices. In this four inter-related, mutually reinforcing prongs, applicants, employees, and contractors outside of LTI's favored class are similarly disadvantaged and harmed, says the complaint. Plaintiffs were born in the United States, are United States citizens, are of Caucasian race, and are of American national origin. Larsen & Toubro Infotech Limited is an Indian company that provides information technology software and services to clients in the United States and internationally.[BN] The Plaintiffs are represented by: Michael von Klemperer, Esq. KOTCHEN & LOW LLP 1745 Kalorama Road NW, Suite 101 Washington, DC 20009 Phone: (202) 471-1995 Email: mvk@kotchen.com LEPRINO FOODS: Add'l. Depositions in Vasquez Labor Suit Partly OK'd ------------------------------------------------------------------- In the case, ISAIAS VASQUEZ and LINDA HEFKE on behalf of all other similarly situated individuals, Plaintiffs, v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants, Case No. 1:17-cv-00796-AWI-BAM (E.D. Cal.), Magistrate Judge Barbara A. McAuliffe of the U.S. District Court for the Eastern District of California granted in part and denied in part the Plaintiffs' request for leave to conduct additional depositions. The Plaintiffs filed a wage-and-hour class action against Leprino Foods and Leprino Foods Dairy. The action stems from the Defendants' alleged custom and policy to "de crew," i.e., sending workers home prior to the start of their scheduled shift without pay because the Defendants reportedly misjudged its production or labor needs and from their alleged policy of requiring the Plaintiffs and workers to remain on call and subject to return to discuss business matters and/or return to their work stations during their rest and meal breaks if called upon to do so by supervisory personnel. On June 6, 2019, the Plaintiffs filed their motion for class certification. The Defendants opposed the motion on Aug. 30, 2019. The Plaintiffs' reply deadline is Nov. 19, 2019, and a hearing is scheduled for Dec. 9, 2019, before Senior District Judge Anthony W. Ishii. In anticipation of filing their reply, the Plaintiffs now seek leave to exceed Rule 30's 10-deposition limit to depose the putative class members who submitted declarations in support of the Defendants' opposition to the motion for class certification. Prior to filing the motion, the parties engaged in unsuccessful meet-and-confer efforts. Specifically, on Aug. 20, 3019, after the Defendants filed their opposition to the motion for class certification, the Plaintiffs requested that the Defendants stipulate to the Plaintiffs taking the depositions of the 56 individuals whose declarations the Defendants had submitted with their opposition to the Plaintiffs' class certification motion. On Sept. 4, 2019, the Plaintiffs served written discovery on the Defendants, which included demands for production of documents and special interrogatories related to the declarants' personnel records. These requests seek the declarants' personnel files, time records, work schedules, time off request forms, payroll variance forms, pay records, and any records of phone calls the Defendants made to their cell phones. The Plaintiffs also seek the employee ID number corresponding to each declarant in the Defendants' prior time sheet productions. On Sept. 9, 2019, the Defendants advised that they would not stipulate to the Plaintiffs taking 56 depositions. In response, on Sept. 13, 2019, the Plaintiffs proposed 20 depositions. On Sept. 17, 2019, the Defendants rejected the proposal for 20 depositions and advised that they would agree to a total of 15 depositions, including the 8 that the Plaintiff had already taken and 7 additional depositions. The Defendants' proposal was conditioned upon the additional depositions being scheduled for mutually agreeable dates and upon the Plaintiffs' agreement not to seek an extension of time to file their reply to the class certification motion. Following additional email exchanges, the Plaintiffs stated that they must first know when the Defendants would be available for the depositions before agreeing not to seek an extension of the reply deadline. They also indicated that any agreement reached would be contingent on the Defendants producing electronically all responsive documents for the seven deponents at least one week before their depositions and without the Plaintiffs waiving their right to seek additional depositions from the Court after taking the additional seven depositions and without waiving their right to compel all responsive documents for all remaining declarants. The Defendants did not agree to the proposal. In particular, they did not agree with the parts: (1) where the Plaintiffs did not agree to limit their total depositions to 15, (2) where the Plaintiffs insisted that the Defendant do more in response to the Plaintiffs' discovery requests than required by the Federal Rules of Civil Procedure; and (3) where the Plaintiffs insisted on locking down dates at this juncture, without knowing who the Plaintiffs seek to depose. The motion presents two issues: (1) whether the Plaintiffs should be granted leave to exceed the 10-deposition limit of Federal Rule of Civil Procedure 30 in order to depose the putative class members who submitted declarations in support of the Defendants' Opposition to their Motion for Class Certification; and (2) whether the Defendants should be compelled to produce certain personnel data for these individuals prior to their depositions. The parties submitted a Joint Statement Re Discovery Disagreement on Sept. 20, 2019. Magistrate Judge McAuliffe finds that limited depositions of a sampling of the absent, putative class members who have "injected" themselves into the action by submitting such declarations are appropriate. This additional discovery is relevant to the claims and defenses in the instant case. However, the Plaintiffs' request to conduct 56 additional depositions, which is well-beyond the presumptive 10-deposition limit, is not proportional to the needs of the case, is burdensome and is likely to result in cumulative or duplicative information. Similarly, even if limited to the 33 putative class member declarants, such a request is not reasonable or proportional to the needs of the case. Moreover, the Plaintiffs have not made a particularized showing of necessity as to all 33 declarants in order to exceed the 10-deposition limit or that the information is not available from other sources. Although the Defendants now oppose the request for additional depositions, they previously expressed their willingness during meet-and-confer efforts to allow the Plaintiffs to conduct seven depositions of the declarants, in addition to the eight depositions already completed during class certification discovery, for a total of 15 depositions. In light of this offer, the Magistrate Judge holds that it appears reasonable to allow the Plaintiffs the opportunity to select seven declarants for deposition as offered by the Defendants. The Magistrate Judge does not believe, however, that full-day depositions are necessary to thoroughly question absent class members about the substance of their declarations. In allowing depositions of absent class members, other courts have often limited their length. Therefore, each of the seven depositions of absent class members contemplated by the Order will be limited to no more than four hours in length. The Plaintiffs will identify the seven deponents no later than Oct. 2, 2019, and the parties will meet and confer and work out a schedule for these depositions. All depositions must be completed no later than Nov. 8, 2019, with no corresponding extension of the reply deadline. As to the Plaintiffs' related request that the Defendants be required to produce personnel documents for the declarants, the Magistrate Judge finds the request premature. She says it was not part of the original motion for leave to conduct additional depositions and responses to the pertinent discovery requests are not due until Oct. 7, 2019. Even if not premature, the request is not timely. The parties were required to complete all discovery relative to class certification issues no later than May 7, 2019. Additional, ongoing written discovery for purposes of class certification is disfavored. For the reasons stated, Magistrate Judge McAuliffe granted in part and denied in part the Plaintiffs' request for leave to conduct additional depositions. The Plaintiffs' are permitted to conduct seven depositions of the putative class members who have submitted declarations in support of the Defendants' opposition to the motion for class certification. They will identify the seven deponents no later than Oct. 2, 2019, and the parties will meet and confer to work out a schedule for these depositions. The Plaintiffs are limited to four hours for each deposition of the seven deponents. All depositions must be completed no later than Nov. 8, 2019. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/uNN2ZP from Leagle.com. Isaias Vasquez, on behalf of all other similarly situated individuals & Linda Hefke, on behalf of all other similarly situated individuals, Plaintiffs, represented by Cory Lee, The Downey Law Firm, LLC, Philip A. Downey, The Downey Law Firm, LLC, pro hac vice, Robert Gibson, Law Offices of Robert W. Sink, pro hac vice, Eric Daniel Rouen -- rouenlaw@att.net -- Law Office of Eric D. Rouen & Randall Martin Rumph -- rmrlaw10@sbcglobal.net -- Law Office of Randy Rumph. Leprino Foods Company, a Colorado corporation & Leprino Foods Dairy Products Company, a Colorado corporation, Defendants, represented by Lisa M. Pooley -- lpooley@hansonbridgett.com -- Hanson Bridgett LLP, Sandra L. Rappaport -- srappaport@hansonbridgett.com -- Hanson Bridgett LLP & Kyle Aaron Mabe -- kyle.a.mabe@gmail.com -- Hanson Bridgett LLP. LIBERTY CHEVROLET: Shover Seeks Overtime Wages for Salespersons --------------------------------------------------------------- CARLTON SHOVER, individually and on behalf of others similarly situated, the Plaintiff, vs. LIBERTY CHEVROLET, INC., CHARLES E. KNOPF, JR., and JEFFREY P. MANNING, the Defendants, Case No. 19-3034-A (Mass. Super, Sept. 26, 2019), alleges that Defendants failed to pay overtime wages and Sunday Premium Pay as required by state law. The Plaintiff and putative class members are former and current employees of the Defendants engaged in the sale of automobiles and related products. These employees work in excess of 40 hours per week, but do not receive overtime pay for their overtime hours and/or Sunday Premium Pay in violation of Massachusetts law, the lawsuit says. Liberty hired Mr. Shover as a salesperson in or around 2013. Liberty is a company operating a car dealership and selling vehicles in Massachusetts.[BN] Plaintiff's counsel are: Raven Moeslinger, Esq. Nicholas F. Ortiz, Esq. Stephanie C. Ozahowski, Esq. LAW OFFICE OF NICHOLAS F. ORTIZ, P.C. 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617) 338-9400 E-mail: rm@mass-legal.com nfo@mass-legal.com sco@mass-legal.com LIBERTY POWER: Court Trims Claims in Second Amended Katz TCPA Suit ------------------------------------------------------------------ In the case, SAMUEL KATZ and LYNNE RHODES, individually, and on behalf of all others similarly situated, Plaintiffs, v. LIBERTY POWER CORP., LLC and LIBERTY POWER HOLDINGS, LLC, Defendants, Civil Action No. 18-cv-10506-ADB (D. Mass.), Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts (i) granted in part and denied in part Liberty Power's motion to dismiss the Second Amended Complaint; and (ii) denied its motion for summary judgment. In the putative class action, Mr. Katz and Ms. Rhodes allege that Liberty Power Corp., LLC and Liberty Power Holdings, LLC or their agents placed calls in violation of the Telephone Consumer Protection Act ("TCPA"). They bring claims on behalf of four putative classes and claim that Liberty Power violated the TCPA by placing robocalls to cell phones, making telemarketing calls that used an artificial or prerecorded voice, calling numbers that were registered on the national Do Not Call Registry, and failing to maintain and respect an internal do-not-call list. Additionally, the Plaintiffs allege that Liberty Power is engaged in actual and constructive fraudulent transfers in violation of Florida's Uniform Fraudulent Transfer Act ("UFTA"). The Plaintiffs brought claim on behalf of each of the following four putative nationwide classes: a. Robocall Class: All persons in the United States who received one or more telemarketing calls to their wireless telephone numbers by or on behalf of Liberty Power, that were made using an autodialer or an artificial or prerecorded voice, from March 16, 2014 through the date the Court certifies the class. b. Residential Class: All persons in the United States who received one or more telemarketing calls to their residential (wireless or landline) telephone numbers by or on behalf of Liberty Power, that were made using an artificial or prerecorded voice, from March 16, 2014 through the date the Court certifies the class. c. National Do Not Call Class (NDNC Class): All persons in the United States whose residential (wireless or landline) telephone number was registered with the national Do-Not-Call registry for at least thirty days prior to receiving at least two telemarketing calls by or on behalf of Liberty Power to such number within any 12-month period at any time from March 16, 2014 through the date the Court certifies the class. d. Internal Do Not Call Class (IDNC Class): All persons in the United States who received at least two telemarketing calls to their residential (wireless or landline) telephone number by or on behalf of Liberty Power within any 12-month period at any time from March 16, 2014 through the date the Court certifies the class. Ms. Rhodes is the sole named representative for the Robocall Class, and both Ms. Rhodes and Mr. Katz purport to represent the Residential, NDNC, and IDNC Classes. The Plaintiffs claim that Liberty Power or its agents: (1) called Robocall Class members in violation of the TCPA's prohibition on using an ATDS or with an artificial or prerecorded voice in violation of 47 U.S.C. Section 227(b)(1)(A)(iii) ("Count I"); (2) called Residential Class members using an artificial or prerecorded voice in violation of 47 U.S.C. Section 227(b)(1)(B) ("Count II"); (3) called NDNC Class members' registered Do Not Call Registry phone numbers with impermissible frequency in violation of 47 C.F.R. Section 64.1200(c)(2) ("Count III"); and (4) placed telemarketing calls to IDNC Class members without proper internal do not call list procedures in violation of 47 C.F.R. Section 64.1200(d) ("Count IV"). The Second Amended Complaint also asserts claims for actual fraudulent transfers ("Count V") and constructive fraudulent transfers ("Count VI") in violation of the UFTA. Liberty Power has moved to dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). It argues that Ms. Rhodes' claims should be dismissed because she lacks standing to assert claims for calls made to her late father, who was the primary target of most of the calls at issue, and that Mr. Katz's demand for injunctive relief should be dismissed because he is not likely to face future injury. Liberty Power next argues that the TCPA claims should be dismissed because the Second Amended Complaint does not adequately distinguish between Liberty Power and Liberty Power Holdings, and that the TCPA is unconstitutional because it contains a content-based restriction on speech. It asserts that the UFTA claims should be dismissed because they are not pled with particularity and fail to plausibly allege a claim for fraud. Liberty Power argues that summary judgment should be granted on Counts II, III, and IV as alleged by Mr. Katz because, as a professional TCPA litigant, he lacks standing and further because he consented to two of the calls at issue. It also argues that the Court should grant summary judgment on Count I as alleged by Ms. Rhodes because she did not pay for one of the calls she received on her cell phone and on Counts II, III, and IV because she lacks standing to assert claims based on calls to her late father's residential line where she was not named as the subscriber for that phone number. Judge Burroughs (i) granted in part and denied in part Liberty Power's motion to dismiss the Second Amended Complaint; and (ii) denied its motion for summary judgment. Counts V and VI, actual and constructive fraudulent transfers, are dismissed without prejudice. The motion to dismiss and the motion for summary judgment are denid as to Counts I, II, III, and IV. Among other things, the Judge holds that the debt-collection exception to the TCPA is unconstitutional. The government debt collection exception is content based because determining whether a given call comes within the exception turns on the purpose(s) of the call and its subject matter. However, the Judge concludes that the exception is severable from the remainder of the TCPA. There is little doubt that the debt-collection exception is severable. Chapter 5 of Title 47, which contains the TCPA, has a "Separability" provision that provides, if any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances will not be affected thereby. Additionally, the 2015 adoption of the debt-collection exception occurred without any indication that Congress would not have wished to continue protecting citizens from unwanted telemarketing calls if the debt-collection exception was held unconstitutional. For the same reasons articulated by the Ninth and Fourth Circuits, the Judge concludes that the government debt-collection exception of the TCPA is severable. Therefore, the claims in the case are unaffected by the debt-collection exception's unconstitutionality. With respect to the motion for summary judgment, the Judge finds that Mr. Katz has standing to pursue Counts II, III, and IV. Although telemarketing calls may not truly be a scourge for Mr. Katz, who has turned the calls into a financial opportunity, the issue of Mr. Katz's standing boils down to whether he maintained the number that Liberty Power's agents called for any purpose other than attracting telemarketing calls to support his TCPA lawsuits. Maintaining a landline for emergencies is arguably prudent and certainly not beyond believable, particularly considering that Mr. Katz has three young children. Furthermore, Mr. Katz has demonstrated injury that supports standing by testifying that Liberty Power's agents called numerous times and conversed with him on multiple calls for extended periods of time. The fact that Mr. Katz may now, or might someday, be pleased that he received incessant calls from Liberty Power or its agents because of the financial reward the lawsuit could bring does not, by itself, deprive him of standing. Finally, considering that Ms. Rhodes resided at Mr. Rhode's residence, helped register the phone number for the Do Not Call Registry, and regularly answered the phone line at issue, including answering several of the relevant calls placed by Liberty Power's agents, the Judge concludes that she has standing to pursue Counts II, III, and IV. A full-text copy of the District Court's Sept. 24, 2019 Memorandum & Order is available at https://is.gd/fhC6QI from Leagle.com. Samuel Katz, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff, represented by David Christopher Parisi -- dcparisi@parisihavens.com -- Parisi & Havens LLP, pro hac vice, Ethan Mark Preston, Preston Law Offices, pro hac vice, Grace Parasmo -- gparasmo@parasmoliebermanlaw.com -- Parasmo Lieberman Law, pro hac vice, Suzanne L. Havens Beckman -- shavensbeckman@parisihavens.com -- Parisi & Havens, LLP, pro hac vice, Yitzchak H. Lieberman -- ylieberman@parasmoliebermanlaw.com -- Parasmo Lieberman Law, pro hac vice, John L. Fink -- jfink@westborolawyer.com -- Sims and Sims LLP & Matthew R. Mendelsohn, Mazie Slater Katz & Freeman, LLC, pro hac vice. Alexander Braurman & Lynne Rhodes, Plaintiffs, represented by Ethan Mark Preston, Preston Law Offices, David Christopher Parisi Parisi & Havens LLP, Grace Parasmo, Parasmo Lieberman Law, John L. Fink, Sims and Sims LLP & Matthew R. Mendelsohn, Mazie Slater Katz & Freeman, LLC, pro hac vice. Liberty Power Corp., LLC, Delaware limited liability company & LIBERTY POWER HOLDINGS, LLC, Delaware limited liability company, Defendants, represented by Charles A. Zdebski -- czdebski@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC, pro hac vice, Jeffrey P. Brundage -- jbrundage@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC, pro hac vice, Craig R. Waksler -- cwaksler@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC & Rachel E. Moynihan -- rmoynihan@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC. Jefferson Sessions United States Attorney General, Interested Party, represented by Susan M. Poswistilo, United States Attorney's Office. LIBERTY POWER HOLDINGS, LLC, Delaware limited liability company & Liberty Power Corp., LLC, Delaware limited liability company, ThirdParty Plaintiffs, represented by Charles A. Zdebski, Eckert Seamans Cherin & Mellott, LLC, pro hac vice, Craig R. Waksler, Eckert Seamans Cherin & Mellott, LLC & Jeffrey P. Brundage, Eckert Seamans Cherin & Mellott, LLC. LIFE TIME: Bid to Strike Class Claims in Rodriguez FLSA Suit Denied ------------------------------------------------------------------- In the case, GABRIEL RODRIGUEZ and SARAH GIESMAN, Plaintiff, v. LIFE TIME FITNESS, INC., etc., Defendants, Case No. 2:18-cv-1123 (S.D. Ohio), Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio, Eastern Division, denied the Defendants' Motions to Strike Class and Collective Action Claim. Plaintiffs Rodriguez and Giesman are Ohio residents who worked at Life Time Fitness as personal trainers, from 2007-2016 and 2016-2017, respectively. Life Time Fitness owns and operates fitness centers throughout the United States. The Plaintiffs have brought suit alleging that Life Time's compensation scheme, practice of not recording hours worked or informing personal trainers of their rate of pay, and failure to pay minimum wage or overtime violates the Fair Labor Standards Act ("FLSA") and Ohio labor laws. They bring their claims under the FLSA as a collective action for past-due wages, liquated damages for opt in putative class members, and also request additional remedies available under Ohio law by certifying a class pursuant to Federal Rule of Civil Procedure ("FRCP") 23. The Defendants have brought a Motion to strike the class and collective claims from the Plaintiffs' pleadings on the basis that another federal district court has already heard these claims and decided not to certify a nationwide collective action -- Steger v. Life Time Fitness, Inc., No. 14-CV-6056, 2016 WL 245899 (N.D. Ill. Jan. 21, 2016). The Plaintiffs argue that the Illinois decision only addressed a nationwide class, not the more narrowly drawn Ohio class and that intervening Sixth Circuit case law, Stein v. HHGREGG, Inc., 873 F.3d 523 (6th Cir. 2017), counsels against the application of comity because that decision held a compensation scheme like the one at issue in their complaint unlawful. Despite similarities in the claims alleged in the Illinois action and in the instant case, Judge Marbley finds that the more narrowly drawn Ohio class could qualify for class certification under the FLSA or FRCP 23. Further, the Plaintiff's pleadings do not rise to the level of "redundant, immaterial, impertinent, or scandalous matter" and it would thus be inappropriate to strike their class and collective action claims. Since the Defendants cannot establish with certainty on the face of the pleadings that the Plaintiffs will fail to certify a class, the Judge declines to strike the Plaintiffs' class and collective action claims at this time. But the Judge finds that the Defendants are correct that HHGREGG held that a recoverable-draw compensation plan like Lifetime's is lawful. The Plaintiffs, however, are not challenging the lawfulness of a recoverable draw compensation plan in their complaint, but rather, alleging that the Plaintiffs and the members of the Ohio class were consistently and uniformly not paid the minimum wage or overtime pay for all the work they performed during the course of their employment. Thus, the fact that a recoverable draw compensation plan is lawful in theory says nothing about whether the Plaintiffs were actually paid the minimum wage for all the work they performed for Lifetime (and not just the work that they clocked in for). Further, the HHGREGG decision's focus was on whether the district court erred in dismissing certain of the plaintiff's class and collective action claims, whereas Defendants here have brought forth a motion to strike. Since the standard for dismissing claims is different from that for striking pleadings, HHGREGG has little bearing on the Court's decision to deny the Defendant's motion to strike. For the reasons set forth, Judge Marbley denied the Defendants' Motion to Strike. A full-text copy of the Court's Sept. 25, 2019 Opinion & Order is available at https://is.gd/LGCvAc from Leagle.com. Sarah Giesman & Gabriel Rodriguez, Plaintiffs, represented by Michael Fradin -- mike@fradinlaw.com -- Fradin Law Office, Brian Chase -- bchase@bisnarchase.com -- Bisner and Chase, pro hac vice, Ian Silvers, pro hac vice & Jerusalem F. Beligan -- jbeligan@bisnarchase.com -- pro hac vice. Life Time Fitness, Inc., LTF Club Management Company & LTF Club Operations Company, Inc., Defendants, represented by Robert J. Bowes, III -- Robert.Bowes@jacksonlewis.com -- Jackson Lewis, P.C., Eric R. Magnus -- Eric.Magnus@jacksonlewis.com -- Jackson Lewis P.C., pro hac vice & Matthew Richard Byrne -- Matthew.Byrne@jacksonlewis.com -- Jackson Lewis, LLP. LIFESTYLE DIRECT: Faces Class Action Over Bogus Loans ----------------------------------------------------- Ciaran Ryan, writing for Moneyweb, reports that Stellenbosch University Law Clinic is bringing a class action suit to the Western Cape High Court, to stop internet loan lender Lifestyle Direct and 18 other respondents from deceiving the public into applying for bogus loans. Customers who signed up complained that they did not receive any loans, but had their bank accounts debited for so-called "legal services packages". The Law Clinic also wants the court to stop Lifestyle from debiting the accounts of people who applied for what they thought were loan agreements, and from harassing or threatening them for payment. Lifestyle was approached to comment on this article before publication. Its only response, via Henno Bothma of attorneys Abrahams & Gross, which is defending most of the respondents, was that Lifestyle intends defending the case. "Our instructions are to oppose the matter," said Bothma. Asked how Lifestyle intends to answer the claim of misleading the public, Bothma says numerous clients who qualified for loans were referred to lenders and received loans. "Our case will be more fully laid out in our opposing affidavit," he says. 'Unconscionable' The Law Clinic says the lending practices of Lifestyle violate the Consumer Protection Act and are "unconscionable, unjust, unreasonable or unfair". It wants any money deducted from consumers misled by these websites to be returned to them, as well as for the respondents to compensate them for wasted bank charges. The loans are offered to the public via websites such as Loan Quest SA, Loan Locator SA and Loan Hub SA, none of which are registered credit providers. Complaints started dribbling through to consumer website Hello Peter in 2016 when 'loan applicants' reported funds disappearing from their accounts, followed by harassing phone calls, after filling out what they assumed to be an online loan application. The dribble became a flood, with thousands of complaints online by consumers who have fallen victim to these scams. There is also a Facebook group called 'Action Against Lifestyle Legal, Loan Hub SA and other scams'. Those who signed up thought they were applying for a loan or for assistance in finding a loan. They did not believe they were entering into an agreement to purchase unwanted services. All the websites have virtually identical terms of service and legal disclaimers, and require the applicant to provide the date of salary payment to facilitate successful debit orders. Deception intentional The purpose of the websites is to deliberately mislead the public, says the court application. Some offer a 30-day cooling-off period during which applicants can cancel the agreement, but none knew they had entered into an agreement. Consumers also report that their pleas to cancel the unwanted agreements during this cooling-off period fell on deaf ears. The Law Clinic has applied to the court for an 'opt-out' class--meaning anyone who has been adversely affected is assumed to be a member of the class unless specifically opting out. In an affidavit before the court, the Law Clinic's senior attorney Stephan van der Merwe says hundreds of complaints were received from members of the public who had visited one or more of the dozen websites operated by Lifestyle, which appear to offer loans or free loan-finding services. Unrelated 'services' The websites all employ the same modus operandi: they invite consumers to submit an application online for what appears to be a loan or a loan-procuring service. Buried in the terms of service, consumers submitting applications are deemed to have entered into an 'agreement' for a service that has nothing to do with loans, such as "telephonic legal advice assistance". Consumers are required to fill in their bank account details as part of the loan application process, but what they appear not to realise is that they have consented to a monthly debit order against their bank accounts. "Attempts to cancel the 'agreements' and to stop the debit orders are met by stonewalling and threats from companies behind the websites," says Van der Merwe's affidavit. Despite acres of adverse publicity over the years, Lifestyle "continues to operate this scam with impunity and the number of consumers harmed is continuously growing". The Law Clinic is asking the court for recognition as a class, and for an interim interdict to shut down the offending websites and a prohibition on Lifestyle harassing and threatening 'customers' for the recovery of bogus debts. One of the applicants in the case is Ignatius Heyns, who submitted an application through the Loan Zone SA website. Loan Zone SA then debited his bank account. Heyns reversed this, but was then hit with demands for payment and threats of "punitive" action. The more-than-a-dozen websites offering loans are making fraudulent misrepresentations to the public, says the Law Clinic. All but one of the companies that operate the relevant websites were registered on the same day (May 20, 2015), and all share the same directors, namely Malander and Paich. Their websites are also hosted on the same server. On June 10, 2016, Malander resigned as director of some of the companies and was replaced by Paich. Lifestyle Legal, a subsidiary of the Lifestyle Direct Group, plays a critical role in the scam, says the Law Clinic. When a customer fails to make payment in terms of an 'agreement' allegedly concluded through one of the websites, they are handed over to Lifestyle Legal for debt collection. In one case cited by the Law Clinic, after interacting with one of these websites, a consumer's bank account was debited by an entity called All Wheel Auto (Pty) Ltd, despite the fact that the consumer had no prior interaction with the company. Malander is also a director of this business. The case for the interdict to stop these websites from operating in this misleading way (or at all) will come before the court on November 27. [GN] LOGITECH INC: Asks Supreme Ct. to Stay Proceedings in Porath Suit ----------------------------------------------------------------- Logitech Inc. files with the Supreme Court of the United States an application for stay of proceedings in the matter styled LOGITECH INC., Petitioner v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent; JAMES PORATH, individually and on behalf of all others similarly situated, Real Party in Interest. Specifically, Logitech seeks an order staying proceedings in the U.S. District Court for the Northern District of California, pending the filing of a petition for a writ of certiorari from the order of the United States Court of Appeals for the Ninth Circuit denying Logitech's petition for a writ of mandamus in the appellate case titled In re Logitech, Inc., Case No. 19-70248 (9th Cir.). The Ninth Circuit denied the petition on September 12, 2019, on the sole ground that any legal error was not sufficiently clear to warrant issuance of a writ of mandamus. The Application is directed to the Honorable Elena Kagan, Associate Justice of the Supreme Court and circuit justice for the Ninth Circuit. As reported in the Class Action Reporter on Oct. 17, 2019, Plaintiff James Porath moved the Court for an order certifying a class and a subclass: Class: "all United States persons who purchased Logitech's z200 stereo sound system prior to May 23, 2018, either in person or from website page containing any of the following phrases (or derivations therof): "Two drivers per speaker", "Two drivers per satellite", "Two 2.5 drivers per satellite", "Two 2.5-inch drivers per satellite", "Four high quality 2.5-inch drivers", "Two 2.50 drivers", and "Two 2.5 (6.3 cm) driver per satellite"; and Subclass: "all class members domiciled in the State of California." The Plaintiff contends that Logitech's decision to advertise the Z200 speaker set as having two drivers per speaker was fraudulent. The Plaintiff alleges claims under California's Unfair Competition and False Advertising Laws and for common law fraud. The District Court case is captioned as JAMES PORATH, individually and on behalf of all others similarly situated v. LOGITECH, INC., Case No. 3:18-cv-03091-WHA, in the U.S. District Court for the Northern District of California, San Francisco.[BN] The Defendant-Petitioner is represented by: Dale J. Giali, Esq. Keri E. Borders, Esq. MAYER BROWN LLP 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: dgiali@mayerbrown.com kborders@mayerbrown.com - and - Donald M. Falk, Esq. MAYER BROWN LLP 3000 El Camino Real, #300 Palo Alto, CA 94306 Telephone: (650) 331-2000 Facsimile: (650) 331-2060 E-mail: dfalk@mayerbrown.com MDL 2034: $15MM Deal in Cable TV Antitrust Suit Gets Final OK ------------------------------------------------------------- Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania granted (i) certification of the class and (ii) final approval of the class settlement in IN RE: COMCAST CORP. SET-TOP CABLE TELEVISION BOX ANTITRUST LITIGATION, Civil Action No. 09-md-2034 (E.D. Pa.). Comcast is the largest provider of cable multi-channel video programming distribution in the United States, servicing over 24 million customers in 39 states and the District of Columbia. It provides cable services in exchange for a monthly fee based upon the level of service provided. In 2008, individuals began filing lawsuits against Comcast, alleging that Comcast unlawfully tied the sale of Premium Cable to the rental of a Set-Top Box from Comcast. On June 17, 2009, the Judicial Panel on Multidistrict Litigation transferred and consolidated these lawsuits before Judge Brody as a multidistrict litigation. In total, 24 civil actions were consolidated into the MDL. Plaintiffs James E. Deanne, William Gonzales, John Martich, and Carrie D. Cooper, on behalf of themselves and the putative class members they seek to represent, have negotiated and agreed to a Fourth Amended Class Action Settlement Agreement with Defendants Comcast Corporation, Comcast Holdings Corporation, Comcast Cable Communications, Inc., and Comcast Cable Communications Holdings, Inc. in the MDL. On Sept. 5, 2018, Judge Brody preliminarily certified the Settlement Class and preliminarily approved the Settlement Agreement. The parties define the Settlement Class as follows: All persons who: (i) resided in and subscribed to Premium Cable in California, Washington, or West Virginia during the Class Period, or (ii) subscribed to Premium Cable in any state in the United States during the Class Period and elected to opt out of Comcast's arbitration clause as reflected in Comcast's records; and paid Comcast a rental fee for a Set-Top Box at any time during the Class Period. The Class Period covers all Class Members who rented a Set-Top Box anytime starting on or after Jan. 1, 2005 and ending on Sept. 5, 2018, the date of the Court's Order granting preliminary approval of the Settlement Agreement. The Settlement is a claims-made settlement. Comcast will pay all claims made in the aggregate that do not exceed $15.5 million in value. If the Class Members submit more than $15.5 million worth of claims, then benefits will be distributed on a pro rata basis. If they submit less than $15.5 million worth of claims, then Comcast will retain the balance. All the Class Members will be entitled to a cash payment and Current Subscribers will have the choice of either a cash payment or in-kind relief. The Class Members will be entitled to a cash payment in accordance with the length of time they rented a Set-Top Box from Comcast, regardless of the number of Set-Top Boxes they rented. Current Subscribers will be entitled to elect to receive in-kind relief in lieu of a cash payment. They will be entitled to in-kind relief in accordance with the length of time they rented a Set-Top Box from Comcast, and will receive additional in-kind relief if they rented more than one Set-Top Box. Out of an estimated 3.5 million potential Class Members, 20,262 individuals have filed claims; 59 individuals have opted out of the proposed Settlement; and four individuals have filed three objections to the Settlement. On Sept. 10, 2019, the Court held a final fairness hearing. Judge Brody finds that the Settlement Class satisfies the requirements of Rule 23(a) and 23(b)(3). The Judge also grants final approval of the Settlement. Because both the percentage-of-recovery method and the lodestar cross-check indicate that the Plaintiffs' fee request is reasonable, Judge Brody further approves the Plaintiffs' request for $1.1 million as an award of attorneys' fees and reimbursement of expenses. Finally, because the named class representatives provided information necessary to the Plaintiffs' counsel for filing the Complaint and for negotiating the Settlement, the Judge will approve the Plaintiffs' request for an incentive award of $1,000 to each named class representative. A full-text copy of the Court's Sept. 24, 2019 Memorandum is available at https://is.gd/bhdT3Y from Leagle.com. JAMES DEANNE, WILLIAM GONZALES & STATE OF WEST VIRGINIA, Appellants, represented by DIANNE M. NAST -- dnast@nastlaw.com -- NASTLAW LLC. MIASOLE HI-TECH: Jensen Seeks OT Wages, Damages Under WARN Act -------------------------------------------------------------- DENNIS JENSEN, as an individual and on behalf of all others similarly situated v. MIASOLE HI-TECH CORP., a California corporation; and DOES 1 through 50, inclusive, Case No. 19CV356098 (Cal. Super., Santa Clara Cty., Oct. 3, 2019), is brought to recover wages and penalties arising from the Defendants' violation of the California Labor Code, including failure to pay proper overtime wages. On July 10, 2019, the Plaintiff and other similarly situated employees were laid off and/or terminated by the Defendants. The Defendants, however, failed to give the employees 60 days of notice before implementing the mass layoff and/or termination, as required by the California Worker Adjustment and Retraining Notification Act (WARN Act), according to the complaint. Hence, the Plaintiff also seeks to recover damages under the California WARN Act. The Defendant is a California corporation that produces and manufactures solar cell panels and other related cell manufacturing equipment in the United States, including in the State of California. The true names or capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. Mai Tulyathan, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com ktulyathan@diversitylaw.com - and - William L. Marder, Esq. POLARIS LAW GROUP LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 E-mail: bill@polarislawgroup.com MIKE POSTLE: Class Action Mulled Over Poker Cheating Allegations ---------------------------------------------------------------- Jennifer Newell, writing for Legal US Pokersites.com, reports that longtime poker pro Mike Postle is at the center of the allegations of poker cheating. After numerous other poker pros have analyzed videos and considered all possible angles to give Postle the benefit of the doubt, most of them can no longer do so. The claim is that Postle has been cheating in low-stakes cash poker games livestreamed from Stones Gambling Hall near Sacramento, California. And the story has evolved so quickly that there are already attorneys involved, and the story is being covered by an ever-increasing number of media outlets far beyond the normal poker circles. From Accusations to Investigation It started (in the public eye) on Sept. 28 when poker pro Veronica Brill, poker pro and live poker commentator, tweeted the following: "If someone is displaying a probability of cheating on a live stream you don't make the entire room not be able to use their cellphones in an attempt to reduce everyone's anxiety and then still promote the player as one of the best. "You take that player off the stream while you launch a proper, objective investigation done by a third party. Once it's shown that the player has not been cheating, you make your investigation public and let the player back onto the stream. "Am I sure that this player is cheating? No. Do I think that there is a greater than zero % chance that he is? Yes. Have numerous professional poker players voiced their concerns to me regarding this player? Yes. "Also, I brought up my concerns about this player months ago to the person running the live stream. I was told that no one gets this player and that he is just better than everyone. Also, that they had some one or some company come in to check their security." Brill went on to say that the player is nice off stream, and she played with him frequently at Stones. She had been noticing discrepancies and brought them to the attention of Stones' staff but was consistently dismissed. However, the cheating suspicions show Postle had an uncannily high VPIP (voluntarily put money in pot), one that puts him in the top 95% of results. Brill could not let it go without making it known. Those accusations and the initial responses to Brill made Joey Ingram want to investigate on his own. He did some live commentary and looked through hours and hours of play from the livestreams. Ultimately, Ingram watched more than 50 hours of hands involving Postle and concluded that he had two playing styles: "one where he plays GOD-like, soul-reading poker with very wide pre-flop ranges and perfect frequencies, the other where he plays really solid poker most of the time." Ingram ended up posting several videos with explanations and analyses, all with the same almost-undeniable conclusion: Postle cheated. The videos are each several hours long, and these are only two of the Ingram videos of five thus far. Poker pro Doug Polk has also been on the case and producing video content. Theories and Clues Many other poker pros have been analyzing hands, and the posts are all over Twitter and the Two Plus Two thread on the topic. Within one week, that forum thread had more than 4,500 postings and counting. It should be noted that Postle's amazing runs of winning plays have taken place on the Stones Live streams hosted at Stones Gambling Hall. He now rarely plays cash games other than streamed ones. In order for Postle to cheat, he had to be able to know the hole cards of his opponents or know what plays to make. Considering Postle's knowledge of the game, if he was shown the hole cards, he would know how to correctly play the hands. There are several ways he could have cheated, according to those who know about livestreaming and the games in question. -- Headphones or some type of device under Postle's hat (always wears a baseball cap, regularly touches his head in the same general spot) -- Key ring, some type of reader mixed with his keys (always seem to be in sight) -- Cell phone in his lap (regularly reaches into his lap, squirms, looks down into his lap) Some connected Postle with Taylor Smith, a member of the Stones Live tech team. However, it doesn't seem that he was always present when Postle played his winning sessions on the stream. The most frequently mentioned person who could have coordinated with Postle to help cheat -- allegedly -- is Justin Kuraitis, the tournament director at Stones. He is not only in charge of the Stones Live operation, but he is also reportedly at his desk near the livestreaming table during the broadcasts. Postle's winnings seem to only happen when Kuraitis is on site and at his desk. While the livestreaming commentary and broadcasts are all on a 30-minute delay per California gambling regulations, the tech room has access to the hands as they happen so as to prep the stream for the commentators and broadcast. Very few people have access to that information. Kuraitis is one of them. Kuraitis, known as JFKPokerTD on Twitter, locked his social media account but not before tweeting this: "It is unfortunate that these allegations were made public with absolutely no evidence. The reputation of my team and an exciting/fun player are now being publicly mobbed." Postle Responses and Explanations When the accusations against Postle began to gain momentum, he took to Twitter to defend himself. He started with this: "There is so much I want to say and now so much that I am forced to say which involves gloating about my 16-year poker career. On that involves me being so successful everywhere I've played including online, that I've been accused of having an unfair advantage by a handful of local individuals who convinced someone it was true, and to ultimately attack me publicly in the process with nothing but speculation on a tiny fraction of hands that are questionable at best. I've played a unique high-variance style my entire poker career. . ." Postle claimed that he has put "an enormous amount of time into just studying the game" and studying human behavior. He claimed he has been "blessed with very good instincts." Days later, Mike Matusow interviewed Postle for his podcast in an effort to allow Postle to explain himself. On the two-part podcast, Postle claimed to be a winning player for his 16-year career. He said he never liked the accolades or the comments about him running like a god at the table. Even so, he later said he believes he is one of the best poker players in the game. While admitting that he loves making good money, he also said that he doesn't want to travel beyond Sacramento to play the higher-stakes games in other cities like Los Angeles or Las Vegas. Postle claimed that the chip stacks on the livestream are rarely accurate because of hands played before the stream begins and due to reloads not explained on the streams. Thus, he said his win rates and win amounts are exaggerated. Stones Responses and Actions Initially, when the allegations against Postle surfaced, Stones's poker room responded via Twitter that the complaint of cheating had been received earlier in the year and fully investigated. Days later, as the story came together, Stones Gambling Hall suspended all broadcasts of live poker play, including the streaming. There was an investigation in progress, a "multifaceted" one with "outside experts." It would be thorough and detailed, and the outcome would be reported "when available." Since that didn't go over well with anyone following the story, Stones issued a four-part tweet that read: "Stones Gambling is committed to the integrity of our games. We have been alarmed by allegations of unfair play occurring during the streamed broadcasts of our "Stones Live" games and have acted quickly to investigate. "We temporarily halted all broadcasts from Stones. We have also, as a result, halted the use of RFID playing cards. We have taken these steps proactively while we conduct a multifaceted and thorough investigation into every element of these games. "To that end, we are announcing the creation of an independent investigation team. The team will be led by Michael Lipman, a former Assistant US Attorney for the Southern District of California and Chief of that office's fraud unit. "He is assembling other members who will be announced in due course. Stones intends to conduct this investigation and share outcomes with transparency. We will provide updates as appropriate." Victim Responses and Actions Many players who have competed against Postle on the stream have been quick to speak up, as their quiet suspicions have been given voice. In fact, players from all corners of the poker world have spoken up to express their concerns about the likelihood of cheating on a livestream. Their interest goes far beyond the Stones Live stream but covers the future of poker in general. Livestreaming has given poker some new life and helped the game, but a scandal like this can just as easily tear it all down. Concerns also immediately arose about the choice of Lipman as the lead investigator for Stones. Several people in the poker community very quickly determined that Lipman had served as legal counsel for the owners of Stones Gambling Hall. Poker player and gambling attorney Mac VerStandig publicly questioned Stones about it. VerStandig also revealed that his law firm is working with Brill and other victims of Postle. He was meeting in Sacramento with players who claim to have been cheated. "We anticipate bringing suit," he wrote on Twitter. In addition, poker pro and commentator Jamie Kerstetter -- who is also an attorney -- noted in a tweet that the lawsuit is a class action. Mainstream Coverage The story has so many interesting twists and turns that it is spreading beyond the world of poker media. Perhaps, the story hits home because poker is the game played at the kitchen table and with grandparents. Poker is the most popular card game in America…and maybe the world. The vast majority of people in the game have worked for decades to change the image of poker from a backroom game played by cheaters to a clean game that is regulated and trustworthy. Or perhaps, the story resonates because it is the story of an alleged cheater outed by the affected players and community. Of course, the story made it to the local news in northern California where Stones is located. It made it to ESPN on Oct. 4, as Scott Van Pelt explained it in its simplest terms for the masses on SportsCenter. "If a guy were able to cheat his way to six-figure games playing cards and it got solved by a bunch of poker sleuths on the internet, is that a story that interests you?" said Van Pelt. Business cable news network CNBC covered the story, too. [GN] NATIONAL CONSUMER: Trepeta FCRA Suit Underway in E.D. Virginia -------------------------------------------------------------- A class action lawsuit has been filed against National Consumer Telecom and Utilities Exchange, Inc. The case is captioned as Robert Trepeta, On behalf of himself and all other similarly situated individuals, the Plaintiff, vs. National Consumer Telecom and Utilities Exchange, Inc. and Equifax Information Services LLC, the Defendants, Case No. 2:19-cv-00405-MSD-LRL (E.D. Va., Aug. 5, 2019). The case is assigned to the Hon. Judge Mark S. Davis. The suit alleges violation of the Fair Credit Reporting Act. Equifax Information Services LLC and National Consumer Telecom and Utilities Exchange, Inc. filed their answer to the First Amended Class Action on Oct. 10. Magistrate Judge Lawrence R. Leonard on Oct. 16 entered a Rule 26(f) Pretrial Order setting a Scheduling Conference for Nov. 15 at 10:00 a.m. in Norfolk.[BN] Attorneys for the Plaintiff are: Craig Carley Marchiando, Esq. Leonard Anthony Bennett, Esq. Tara Boen Keller, Esq. Matthew James Erausquin, Esq. CONSUMER LITIGATION ASSOCIATES 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: craig@clalegal.com lenbennett@clalegal.com tara@clalegal.com matt@clalegal.com NATIONSTAR MORTGAGE: Patton Seeks to Certify Class and Subclasses ----------------------------------------------------------------- In the class action lawsuit styled as LINDA PATTON, on behalf of themselves And all others similarly situated, the Plaintiffs, vs. NATIONSTAR MORTGAGE LLC OF DELAWARE d/b/a CHAMPION MORTGAGE COMPANY, the Defendant, Case No. 1:17-cv-00099-TJK (D. Colo.), Glendale Hoggard and Linda Patton move the Court for an order certifying Nationwide Class and Subclasses pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). Champion Mortgage is a division of Nationstar Mortgage and offers multiple solutions to meet your reverse mortgage needs.[CC] Attorneys for the Plaintiffs are: Andrea R. Gold, Esq. Katherine M. Aizpuru, Esq. TYCKO & ZAVAREEI LLP 1828 L St. NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 E-mail: agold@tzlegal.com NATIONWIDE MUTUAL: Call Center Employees Class Certified in Cowan ----------------------------------------------------------------- In the case, MYRA COWAN, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE CO., Defendant, Case No. 2:19-cv-1225 (S.D. Ohio), Judge Sarah D. Morrison of the U.S. District Court for the Southern District of Ohio, Eastern Division, (i) denied the Defendant's Motion to Strike; and (ii) granted in part and denied in part Cowan's Motion for Conditional Class Certification and Court-Supervised Notice to Putative Class Members. The Plaintiff is a former hourly non-exempt call center employee of the Defendant who alleges that she was not paid for pre-shift and lunch break work activities in violation of the Fair Labor Standards Act ("FLSA") and Florida common law. Nationwide is an Ohio corporation that operates one of the largest insurance and financial services companies in the world, and is comprised of customer service call centers throughout the United States. The Plaintiff attached her consent to join the case to the Original Complaint and 18 others followed. The Plaintiff was employed by the Defendant in its customer service call center in Gainesville, Florida from February 2017 until November 2018. Of the eight other Declarants, four Declarants also worked in the Defendant's Gainesville, Florida call center, one worked in the Defendant's Canton, Ohio call center, three worked in the Defendant's San Antonio, Texas call center, two worked in Defendant's Lynchburg, Virginia call center, and three work/worked from home. Regardless of their titles or locations (including work-at-home employees), the Declarants' duties included receiving inbound customer calls, answering general customer inquiries, looking up claims, and troubleshooting customer problems. The Declarants were paid an hourly rate for 38.75 hours worked each week. They performed the same off-the-clock work for the same reasons. The Defendant's policy, as communicated through management, required that all the Declarants arrive early so that they could log into their computer systems and be in available mode by shift start. If the Declarants were not in available mode at shift start, managers could give them an "occurrence" or a "point," which cumulatively could lead to the employee being fired. Logging onto the computer and loading the required programs before shift start could take up to one hour. The Declarants also had to be in available mode as soon as their lunch break ended. This necessitated logging back into Nationwide's computer programs and required anywhere from two to 20 minutes of work. The Declarants were not permitted to do any pre-shift work while on the clock. Based on the Declarants' personal observations and conversations with their call center coworkers, all putative class members were subject to the same policies and practices of the Defendant. Taking into account Declarants' pre-shift and lunch work, they performed anywhere from two to 10 hours of unpaid work per week. Although the Defendant had a system for making time alteration requests if the Declarants worked outside their weekly shift schedule of 38.75 hours, time alteration requests for pre-shift work were never granted. According to the Declarants, management consistently denied time alteration requests for pre-shift and lunch work because they viewed the time as non-compensable. They believe that others would be interested in joining the action. On May 21, 2019, the Defendant moved to strike and dismiss all "Consent to Join Wage Claim" forms without prejudice, and requested an order requiring the Plaintiff's counsel to issue a curative notice, remove an improper notice from its website, and for sanctions. In its Motion Strike, the Defendant contends that the Plaintiff's counsel misled putative class members and circumvented the court-sanctioned notice process when the Plaintiff's counsel provided information about the lawsuit as well as opt-in consent forms on its website, prior to the Court's decision on conditional certification. Further, a Nationwide employee then posted the information on their personal Facebook page. The Plaintiff's Motion for Conditional Certification and Court-Authorized Notice followed. While the Plaintiff's Amended Complaint presents a hybrid collective and class action, she presently moves only for collective FLSA certification. She seeks collective action status pursuant to 29 U.S.C. Section 216(b), and has defined the FLSA collective class she wants to represent as: All hourly call-center employees who have been employed by Nationwide Mutual Insurance Co., anywhere in the United States, at any time from April 1, 2016 through the final disposition of the matter. The Defendant opposes, and the Plaintiff's Reply is lodged. As the Plaintiff's counsel removed the information from the firm's website on May 22, 2019--just 40 days after its posting--any minor concerns the Court has with the content of the communication have been remedied. However, in future cases, the Plaintiff should better clarify that the potential Plaintiffs have alternative legal options available besides opting-in to the collective action. Finding the pre-certification communication otherwise appropriate, Judge MOrrison declines to interfere with the rights of the opt-in Plaintiffs or to order sanctions. Accordingly, she denied the Defendant's Motion to Strike. At this initial stage, the Judge finds that the Plaintiff has established that she is similarly situated enough to the putative class members to proceed collectively through discovery. As the District Court for the Eastern District of Michigan noted, the vast majority of United States District Courts have routinely granted conditional certification to call center employees alleging similar 'off-the-clock' FLSA violations. Accordingly, the Plaintiff's Motion for Conditional Class Certification of the collective action is granted. Specifically, the Judge conditionally certified the following class: All non-exempt employees who worked at one of Nationwide's call centers or service centers anywhere in the United States and/or worked from home and provided direct customer support and assistance through phone or e-mail systems, at any time three years prior to the date of the Court's Order through the final disposition of the matter. Having determined that conditional certification is warranted, the Judge now turns to the form and manner of the Plaintiff's proposed Notice. The Plaintiff requests that the Court: (1) approves the Notice and Consent form; (2) allows the Plaintiff to disseminate the Notice and Consent form via U.S. mail, e-mail, and text; (3) allows the Notice and Consent form to be posted in plain view at each of Nationwide's call centers, nationwide; (4) approves a reminder e-mail to be sent to the putative class halfway through a 60-day notice period; and (5) orders the Defendant to produce an electronic and importable roster of putative class members that worked for Nationwide during the relevant time period, which includes their full names, dates of employment, positions of employment, locations of employment, last known mailing addresses, last known telephone numbers, e-mail addresses, and last four digits of their social security numbers, within 14 days of the Order. The Defendant objects to the Plaintiff's proposed Notice on several grounds. To the extent it is being sought, the Judge rejects the Plaintiff's claims for unpaid gap time or straight time under the FLSA. Consequently, the Plaintiff will modify the Notice to make it clear that the lawsuit alleges that Nationwide failed to pay overtime wages as required by the FLSA and that the Plaintiff seeks to recover unpaid overtime wages only. Moving onto the Consent form, the Judge finds it is straightforward and easy to complete. It states the signatory has read and understands the Notice and agrees to opt in to the collective action. The Consent form indicates the signatory agrees to be represented by the law firms of Anderson Alexander, PLLC, and Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, and also specifies that the signatory understands that they will be bound by any settlement reached or judgment entered in the matter. In sum, with the noted revisions made, the Judge anticipates approving the content of the Plaintiff's Notice and Consent form. The Judge permits the Notice and Consent form to be sent via U.S. mail and e-mail to all putative class members. However, the Plaintiff may not notify any potential opt-in Plaintiff of the lawsuit by text message unless she can show that notice by postal and electronic mail is insufficient--or in other words, such notice by both methods has been returned as undeliverable for a particular individual. The Plaintiff may not send notice to any potential class member by text message absent further permission from the Court. The Judge finds that three forms of notice is redundant and unnecessary. The Plaintiff will not post copies of the Notice or Consent form in any of Nationwide's call centers. Next, the Judge orders the Defendant to produce the full names, dates of employment, positions of employment, locations of employment, last known mailing addresses, and e-mail addresses of putative class members to the Plaintiff's counsel in an electronic and importable format within 30 days of the Order. The Judge is not particularly persuaded that it should cut the Plaintiff's requested opt-in period short because the Plaintiff has located 19 opt-in Plaintiffs at this stage in the proceedings. Moreover, she does not find that an additional 15 days will significantly delay the litigation. Accordingly, the opt-in period will be 60 days. Finally, the Plaintiff requests that the Court approves a reminder e-mail to be sent to the putative class halfway through the notice period. The Defendant objects, arguing that such a reminder "would only serve to stir up unwarranted litigation." The Judge agrees with the Defendant. Accordingly, she finds that a reminder e-mail is improper in this instance and denies the Plaintiff's request. For the foregoing reasons, Judge Morrison (i) denied the Defendant's Motion to Strike, and (ii) granted in part and denied in part the Plaintiffs' Motion for Conditional Class Certification and Court-Supervised Notice to Putative Class Members Pursuant to 29 U.S.C. Section 216(b) (ECF No. 25). She conditionally certified the following FLSA class: All non-exempt employees who worked at one of Nationwide's call centers or service centers anywhere in the United States and/or worked from home and provided direct customer support and assistance through phone or e-mail systems, at any time three years prior to the date of the Court's Order through the final disposition of the matter. The Judge denied the Plaintiff's Motion to the extent it seeks approval of her proposed Notice and Consent form. Within 14 days, the counsel will confer and submit a joint draft of a revised proposed notice to the potential Plaintiffs about the collective action and a proposed opt-in consent form with the aforementioned modifications to morrison_chambers@ohsd.uscourts.gov. The Court will resolve any new disputes noted in the draft in an order granting final approval of the notice and opt-in consent form. Within 30 days of the issuance of this Opinion and Order, the Defendant will identify all the putative class members by providing a list in electronic and importable format of the full names, dates of employment, positions of employment, locations of employment, last known mailing addresses, and e-mail addresses of all current and former employees fitting the class description to the Plaintiff's counsel. After receiving the putative class members' contact information from Defendant and upon final approval of a notice and consent form by the Court, the Plaintiff will send the Notices and Consent forms via U.S. mail and e-mail within 21 days. The putative class members will then have 60 days from the date that the Plaintiff sends the Notices to join the litigation. A full-text copy of the Court's Sept. 25, 2019 Opinion & Order is available at https://is.gd/1YdqXE from Leagle.com. Myra Cowan, Plaintiff, represented by Robert E. DeRose, II -- bderose@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, Austin Winters Anderson, ANDERSON2X, PLLC, pro hac vice, Jessica R. Doogan -- jdoogan@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, Lauren Elizabeth Braddy, Anderson Alexander, PLLC, pro hac vice & William Clifton Alexander -- clif@a2xlaw.com -- ANDERSON2X, PLLC, pro hac vice. Nationwide Mutual Insurance Company, Defendant, represented by Tonya B. Braun -- tbraun@jonesday.com -- Jones Day & Lindsay M. Cogley -- lcogley@jonesday.com -- Jones Day. NCAA: Deptula Sues Over Disregard for Student-Athletes' Safety -------------------------------------------------------------- DAVID DEPTULA, individually and on behalf of all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-04186-JRS-TAB (S.D. Ind., Oct. 11, 2019) seeks to obtain redress for injuries Plaintiff sustained as a result of Defendant's reckless disregard for the health and safety of generations of United States Coast Guard Academy student-athletes. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other USCGA football players from the long-term dangers associated with them. They did so knowingly and for profit, the complaint asserts. As such, Plaintiff brings this Class Action Complaint in order to vindicate players' rights and hold the NCAA accountable. Plaintiff David Deptula is a natural person and citizen of the State of Florida. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at Hampton.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Phone: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com NCAA: Dimmack Sues Over Disregard for Student-Athletes' Safety -------------------------------------------------------------- CHRISTOPHER DIMMACK, individually and on behalf of all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, and WASHINGTON AND JEFFERSON COLLEGE, Defendants, Case No. 1:19-cv-04188-SEB-TAB (S.D. Ind., Oct. 11, 2019) is a Class Action Complaint and Demand for Jury Trial against Defendants seeking to obtain redress for injuries sustained as a result of Defendants' reckless disregard for the health and safety of generations of WJC student-athletes. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other WJC football players from the long-term dangers associated with them. They did so knowingly and for profit, says the complaint. As a direct result of Defendant's acts and omissions, Plaintiff and countless former WJC football players suffered and continue to suffer brain and other neurocognitive injuries. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA and WJC accountable. Plaintiff Christopher Dimmack is a natural person and citizen of the State of Pennsylvania. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at Hampton.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Phone: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com NCAA: Justice Sues Over Disregard for Student-Athletes' Safety -------------------------------------------------------------- MELVIN JUSTICE, individually and on behalf of all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, and BROWN UNIVERSITY, Defendants, Case No. 1:19-cv-04192-JPH-DML (S.D. Ind., Oct. 11, 2019) is a Class Action Complaint and Demand for Jury Trial against Defendants seeking to obtain redress for injuries sustained as a result of Defendants' reckless disregard for the health and safety of generations of Brown student-athletes. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Brown football players from the long-term dangers associated with them. They did so knowingly and for profit. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Brown football players suffered and continue to suffer brain and other neurocognitive injuries. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA and Brown accountable, says the complaint. Plaintiff Melvin Justice is a natural person and citizen of the State of California. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at Hampton.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Phone: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com NCAA: Kosminskas Sues Over Disregard for Student-Athletes' Safety ----------------------------------------------------------------- PAUL KOSMINSKAS, individually and on behalf of all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, and BELOIT COLLEGE, Defendants, Case No. 1:19-cv-04193-RLY-TAB (S.D. Ind., Oct. 11, 2019) is a Class Action Complaint and Demand for Jury Trial against Defendants seeking to obtain redress for injuries sustained as a result of Defendants' reckless disregard for the health and safety of generations of Beloit student-athletes. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those Plaintiff experienced, Defendant failed to implement adequate procedures to protect Plaintiff and other Beloit football players from the long-term dangers associated with them. They did so knowingly and for profit, notes the complaint. As a direct result of Defendant's acts and omissions, Plaintiff and countless former Beloit football players suffered and continue to suffer brain and other neurocognitive injuries. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA and Beloit accountable, says the complaint. Plaintiff Paul Kosminskas is a natural person and citizen of the State of Illinois. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at Hampton.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Phone: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Phone: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com NEW YORK: Diederich's Fed. Claims Tossed; Case Returns to State Ct. ------------------------------------------------------------------- Judge Brenda K. Sannes of the U.S. District Court for the Northern District of New York (i) dismissed without prejudice the Plaintiff's federal claims, and (ii) denied as moot the Defendants' motion to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) in the case captioned MIKE DIEDERICH, JR., individually and on behalf of the class of citizens and taxpayer directly affected citizens of the State of New York; JOSHUA DOE; and JANNA DOE, individually, and as representatives of the class of all children similarly situated, Plaintiffs, v. LETITIA JAMES, N.Y.S. Attorney General; CHANCELLOR OF THE NYC DEPARTMENT OF EDUCATION, SUPERINTENDENT OF SCHOOLS OF THE EAST RAMAPO CENTRAL SCHOOL DISTRICT; SUPERINTENDENT OF THE KIRYAS JOEL VILLAGE SCHOOL DISTRICT; BILL de BLASIO, New York City Mayor; MARYELLEN ELIA, New York State Commissioner of Education; BETTY ROSA, Chancellor of the New York State Board of Regents; and THOMAS P. DiNAPOLI, N.Y.S. Comptroller, Defendants, Case No. 1:19-cv-00035 (BKS/CFH) (N.D. N.Y.). On June 8, 2018, Plaintiff Diederich, an attorney proceeding pro se, filed a summons and putative class action complaint in New York Supreme Court, Albany County, on behalf of himself and two fictitious Plaintiffs, Joshua and Janna Doe, alleging claims under New York law. On Dec. 11, 2018, Plaintiff amended his complaint to include federal claims. The Plaintiff's Amended Complaint alleges numerous federal and state law claims against the following Defendants: (1) New York State Attorney General Letitia James; (2) the Chancellor of the New York City Department of Education; (3) the Superintendent of the East Ramapo Central School District; (4) the Superintendent for the Kiryas Joel Union Free School District;4 (5) New York City Mayor Bill de Blasio; (6) New York State Commissioner of Education MaryEllen Elia; (7) Chancellor of the New York State Board of Regents Betty Rosa; (8) and New York State Comptroller Thomas P. DiNapoli. His claims are brought against each Defendant in his or her official and individual capacities except for the claims against Defendants James and DiNapoli, which are brought against them only in their official capacities. In broad terms, the Plaintiff's Amended Complaint, which spans 105 pages, alleges that the Hasidic Jewish community prevents its members' children from receiving an adequate secular education in violation of state and federal law. He requests, among other remedies, that the state and local officials take legal action to prevent such fraud and eliminate the State-condoned educational neglect. On Jan. 9, 2019, Defendant Attorney General Letitia James removed the action to the Court under 28 U.S.C. Section 1446, asserting federal question jurisdiction under 28 U.S.C. Section 1331.1. The Defendants move to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In addition, they argue that the Plaintiff lacks capacity under Fed. R. Civ. P. 17(a), that granting the relief he seeks would violate the Separation of Powers doctrine, that he failed to file a notice of claim as required under the New York Education Law, that he lacks standing under New York law, that his Amended Complaint violates Fed. R. Civ. P. 8, and that he is not a member of the putative class. In response, the Plaintiff voluntarily withdraws his federal claims and requests that the Court remands his state law claims. The Defendants do not oppose the withdrawal of the Plaintiff's federal claims but argue that the Court should dismiss the state law claims. As no Defendant has answered the Plaintiff's Amended Complaint or moved for summary judgment, Judge Sannes holds that the Plaintiff is entitled to voluntarily dismiss the action. Accordingly, she dismissed the Plaintiff's federal claims. The Plaintiff further requests that the Court declines to exercise its supplemental jurisdiction and remands the case back to the New York State Supreme Court. Once remanded, he states that he also intends to withdraw all the state law claims set forth in the Amended Complaint, with the sole exception of his Thirteenth Cause of Action seeking injunctive and other taxpayer relief against the New York State Comptroller. The Defendants argue that the Court should dismiss, rather than remand, the state law claims. Unlike with his federal claims, however, the Judge finds that the Plaintiff has not withdrawn his state law claims, writing only that he "intends" to do so. Moreover, in their reply briefs, the Defendants cite no authority for the proposition that the Court should simply dismiss them rather than remand. The Judge therefore declines the Defendants' request and will accordingly remand the Plaintiff's state law claims to New York Supreme Court, Albany County, where the case originated. For these reasons, Judge Sannes dismissed without prejudice the Plaintiff's federal claims, and denied as moot the Defendants' motions to dismiss. She remanded the action to the New York Supreme Court, Albany County for all further proceedings. The Clerk is directed to mail a copy of the Memorandum-Decision and Order to the Clerk of the Supreme Court of the State of New York in Albany County for filing in Diederich v. James et al., Index No. 903772-18. A full-text copy of the Court's Sept. 25, 2019 Memorandum-Decision & Order is available at https://is.gd/MLygJW from Leagle.com. Mike Diederich, Jr., Individually and on behalf of the class of citizens and taxpayers directly affected citizens of the State of New York, Plaintiff, pro se. Joshua Doe, Individually, and as representative of the class of all children similarly situated & Janna Doe, Individually, and as representatives of the class of all children similarly situated, Plaintiffs, represented by Michael D. Diederich, Jr. -- mike@diederichlaw.com -- Diederich Law Office. Letitia James, N.Y.S. Attorney General, MaryEllen Elia, New York State Commissioner of Education, Betty Rosa, Chancellor of the New York State Board of Regents & Thomas P. DiNapoli, N.Y.S. Comptroller, Defendants, represented by Ryan L. Abel, New York State Attorney General. Chancellor of the NYC Department of Education & Bill deBlasio, New York City Mayor, Defendants, represented by David Sumner Thayer, New York City Law Department & Ryan L. Abel, New York State Attorney General. Superintendent of Schools of the East Ramapo Central School District, Defendant, represented by Elliot A. Hallak -- ehallak@harrisbeach.com -- Harris, Beach Law Firm, Nicholas Roberts -- nroberts@harrisbeach.com -- Harris Beach PLLC, Ryan L. Abel, New York State Attorney General & Victoria A. Graffeo -- vgraffeo@harrisbeach.com -- Harris, Beach Law Firm. Superintendent of the Kiryas Joel Village School District, Defendant, represented by Frederick J. Berman -- fberman@shebitzlaw.com -- Shebitz Berman & Delforte, P.C. & Ryan L. Abel, New York State Attorney General. NEW ZEALAND: Dairy Farmers Mull Class Suit Over Bovis Expenses -------------------------------------------------------------- RNZ reports that a lawyer representing a couple taking the government to court over Mycoplasma bovis compensation says a class action could be next. South Canterbury dairy farmers Aad and Wilma van Leeuwen are taking legal action against the Ministry for Primary Industries for its compensation system which has left them $3 million dollars out of pocket. On Oct. 1 they filed a judicial review at the High Court in Wellington to determine if professional fees and increased banking charges they had incurred as part of the Mycoplasma bovis eradication programme should come under the compensation scheme. Their lawyer, Grant Cameron said depending on the ruling from the High Court, a class action with other impacted farmers would be considered. "I've had approaches from other farmers, I've probably got somewhere north of 30 names sitting on my desk at the moment and there will be discussions as to how joint action might progress from here. "We'd like to have a ruling from the High Court first as to whether or not these particular charges fall within the scheme." Cameron said he expected many more farmers to come forward if the court case was successful. He said farmers should not be left out of pocket from a biosecurity response. "Following an outbreak of Mycoplasma bovis there is a compensatory regime so farmers can be compensated for loss of milk income and loss of the value of cows that had to be culled. "They should be put in the same position they were prior to the outbreak of the virus." He said MPI had decided they were not permitted to pay out professional fees and charges. "But the reality is that in preparing very complicated claims and then progressing with them and arguing with MPI about them, farmers are well and truly out of pocket for these sorts of charges." Cameron said the High Court would determine if that money could be recovered under the compensation scheme. In a statement, the Ministry for Primary Industries said it could not comment on any matters before the courts. But it said the family that Cameron was representing had received over $6 million in compensation to date as a result of Mycoplasma bovis on their farm. It said overall, MPI had paid, or partially paid, more than 1000 compensation claims. [GN] OVATION CREDIT: Class in Diggs FLSA Suit Conditionally Certified ---------------------------------------------------------------- In the case captioned VERNON DIGGS, individually and on behalf of those similarly situated, Plaintiff, v. OVATION CREDIT SERVICES, INC., TERRY D. CORDELL, and AMY MYERS, Defendants, Case No. 3:18-cv-367-J-34MCR (M.D. Fla.), Judge Marcia Morales Howard of the U.S. District Court for the Middle District of Florida, Jacksonville Division, granted the Plaintiff's expedited Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members and Incorporated Memorandum of Law. Diggs initiated the putative collective action on March 16, 2018, by filing a two-count Complaint and Demand for Jury Tria against Defendants Ovation Credit Services, Inc., Terry D. Cordell (Ovation's president), and Amy Myers (Ovation's vice president). In the Complaint, Diggs alleges that the Defendants violated the Fair Labor Standards Act ("FLSA"), by failing to compensate him and other similarly situated employees for their overtime hours (Count One) and by failing to pay him and other similarly situated employees a minimum wage (Count Two). Specifically, Diggs alleges that from at least Aug. 9, 2016, and continuing through April 2017, the Defendants failed to compensate [him] at rate of one and one-half times his regular rate for all hours worked in excess of 40 hours in a single work week. Diggs further alleges that the Defendants failed to pay him at least federal minimum wage for all hours worked. Between March 26, 2018 and July 3, 2018, five other Ovation employees--Kimberly Gosse, Gabor Szabo, Daniel Wessels, Michael Robinson, and Ernest Jackson--opted into the litigation by filing notices of their consent to become party Plaintiffs. The instant Motion for conditional certification followed on Sept. 26, 2018. In support of the Motion, Diggs has submitted his own declaration and declarations from the five opt-in Plaintiffs. The declarations of the opt-in Plaintiffs are substantively identical to Diggs' declaration, except that the opt-in Plaintiffs do not reference any other potential employees that might wish to opt-in and their dates of employment are different. In support of their Response, the Defendants have submitted declarations from Defendant Cordell and from three Ovation employees: Alex Poulot, Tazwell Stuart, and Timothy Scott. Cordell has been the President of Ovation since 2004. In his declaration, Cordell states that Ovation sells credit repair, credit monitoring, and credit education services to the general public by telephone and the internet. Although Diggs and the opt-in Plaintiffs called themselves inside sales representatives, Cordell states that Ovation does not have such a position. Instead, Cordell states, and Diggs does not dispute, that Ovation employed Diggs and the opt-in Plaintiffs as credit analysts. According to Cordell, Ovation has never had a policy or practice of requiring or knowingly allowing Credit Analysts to work off the clock or to not record all hours worked. In fact, Ovation's policy is the opposite--one is not supposed to work off the clock. Similarly, Cordell states that Ovation has a written overtime policy. Alex Poulot has worked as a credit analyst for Ovation on and off since June 2015, and Tazwell Stuart has worked as a credit analyst since September 2016. Contrary to Diggs' assertion that Poulot and Stuart expressed their interest in joining the action, Poulot and Stuart state in their declarations that they have no desire to be involved in the lawsuit, and they do not know any credit analysts who want to be involved. Timothy Scott has worked at Ovation since February 2017, first as a credit analyst and later as a sales manager. He also states that he has no desire to join the lawsuit and knows of no credit analyst at Ovation who would want to do so. Poulot, Stuart, and Scott all state that they have never: (1) worked off the clock; (2) been asked to work off the clock; (3) asked anyone else to work off the clock; or (4) witnessed anyone at Ovation working off the clock; and that Ovation does not have a policy of requiring credit analysts to work off the clock. In the instant Motion, Diggs requests conditional class certification and authorization to notify the potential class members of the opportunity to opt into the case pursuant to the FLSA. In particular, Diggs seeks an order conditionally certifying a class of current and former inside sales representatives or Credit Analysts who worked for the Defendants for the three year period prior to the filing of the Complaint in the case to the present. In response, the Defendants assert that the Motion should be denied because: (1) Diggs has failed to establish that the putative class members are similarly situated; (2) Diggs has failed to present sufficient evidence that other potential members desire to opt in; and (3) Ovation maintained written overtime policies. Judge Howard finds that Diggs provides specific facts to support his belief that other employees are interested in opting into the litigation. Indeed, it is not the type of case where the plaintiff attempts to conditionally certify a broad group based only on the conclusory and unsupported allegations of a few employees. To the contrary, in his declaration, Diggs identifies nine other employees he believes are interested in joining the action based on his discussions with credit analysts while he worked for Ovation. The Judge acknowledges that two of those employees (Poulot and Stuart) have submitted declarations stating that they have no desire to join the action. However, two others (Jackson and Robinson) have since submitted notices of consent to join, which supports Diggs' statement that there are other employees who desire to join the action. And three other employees, not identified by Diggs, have also filed notices of consent to join between the filing of the Complaint and the instant Motion. Although Diggs is vague about the size of the putative collective class or the number of (former and current) employees affected by the Defendants' alleged failure to pay overtime, there is no magic number requirement for the notice stage. Thus, the Judge finds that Diggs has established a reasonable basis to support his assertion that at least five more employees desire to join the action. Next, the Judge must determine whether Diggs has shown that he is similarly situated to the potential class of plaintiffs for which he seeks certification. The Judge is satisfied that Diggs and the opt-in Plaintiffs have the same job duties and pay provisions as all of Ovation's credit analysts. Indeed, despite its objections to the lack of detail in the declarations, the Defendants do not assert that Ovation's credit analysts have different job responsibilities or pay provisions than those described by Diggs and the opt-in Plaintiffs. In short, the Judge is satisfied that the members of the proposed class have the same job title, basic job duties, and pay provisions and seek to assert the same FLSA violation against the Defendants. In sum, at this stage of the proceeding, Diggs has satisfied his burden of demonstrating that there are similarly situated employees warranting conditional certification of a collective action in the case. Diggs also asks the Court to approve his proposed notice form. In response, the Defendants assert numerous objections to the Proposed Notice and proposed means of dissemination. Given the number of objections and the amount of time having passed since the parties last conferred on these issues, the Judge finds it appropriate to direct the parties to meaningfully confer, either in person or by extensive telephone conference, to try to resolve Defendants' objections to the Proposed Notice. After doing so, the parties will file a joint proposed class notice form for distribution to putative class members. If the parties are not able to resolve all of the Defendants' objections, then the parties will file a joint brief to the court that states each side's position regarding the remaining objections still in dispute. The Judge expects the parties to make every effort to resolve their disputes without further Court intervention. Accordingly, Judge Howard granted the Plaintiff's expedited Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members and Incorporated Memorandum of Law to the extent Diggs seeks conditional certification of the putative class identified in the Motion. On Oct. 25, 2019, the parties will meaningfully confer, either in person or by extensive telephone conference, as directed, and file a joint proposed class notice form for distribution to putative class members. By that same date, if the parties are not able to resolve all of the Defendants' objections, then the parties will file a joint brief to the court stating each side's positions regarding any remaining objections still in dispute. The Judge deferred ruling on Diggs' request for Court approval of the Proposed Notice until after the parties have meaningfully conferred on the issue. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/fQzMsw from Leagle.com. Vernon Diggs, Individually and on behalf of those similarly situated, Plaintiff, represented by Andrew Ross Frisch -- afrisch@forthepeople.com -- Morgan & Morgan, PA & Chanelle Ventura, Morgan & Morgan, PA. Ovation Credit Services, Inc., a Florida Profit Corporation, Terry D. Cordell, Individually & Amy Myers, Individually, Defendants, represented by Eric James Holshouser -- eholshouser@rtlaw.com -- Rogers Towers, P.A. & Michael J. Lufkin -- MLufkin@rtlaw.com -- Rogers Towers, P.A. Gerald Thomas Harper, Mediator, pro se. PATHWAY SENIOR: Thomas Sues over Collection of Biometeric Data -------------------------------------------------------------- DARWIN THOMAS, individually and on behalf of all others similarly situated, the Plaintiff, vs. PATHWAY SENIOR LIVING, LLC and PATHWAY MANAGEMENT, LLC, the Defendants, Case No. 2019CH11305 (Ill. Cir., Sept. 30, 2019), seeks to put a stop to Defendants' unlawful collection, use, and storage of Plaintiffs and the putative Class members' sensitive biometric data. When employees work for Defendants, they are required to scan their fingerprint in a biometric time tracking system as a means of authentication, instead of using only key fobs or other identification cards. While there are tremendous benefits to using biometric time clocks in the workplace, there are also serious risks. 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. For example, if a database containing fingerprints or other sensitive, proprietary biometric data is hacked, breached, or otherwise exposed -- like in the recent Yahoo, eBay, Equifax, Uber, Home Depot, MyFitnessPal, Panera, Whole Foods, Chipotle, Omni Hotels & Resorts, Trump Hotels, and Facebook/Cambridge Analytica data breaches or misuses -- employees have no means by which to prevent identity theft, unauthorized tracking or other unlawful or improper use of this highly personal and private information, the lawsuit says. Recognizing the need to protect its citizens from situations like these, Illinois enacted the Biometric Information Privacy Act, specifically to regulate companies that collect and store Illinois citizens' biometrics, such as fingerprints. Despite this law, the Defendants disregard their employees' statutorily protected privacy rights and unlawfully collects, stores, and uses their biometric data in violation of the BIPA, the lawsuit says. The Defendants are for-profit limited liability companies headquartered in Chicago, Illinois.[BN] Attorneys for the Plaintiff are: 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: admin@fishlawfirm.com dfish@fishlawfirm.com kunze@fishlawfirm.com PICORE BERISTAIN: Viloria Seeks Unpaid Wages for Security Guards ---------------------------------------------------------------- VALERIE VILORIA, as an "aggrieved employee" on behalf of other similarly situated "aggrieved employees" under the Labor Code Private Attorney General Act of 2004, the Plaintiff, vs. PICORE BERISTAIN INITIATIVE, INC., a California corporation; DANA PICORE, a natural person; and DOES 1 through 50, inclusive, the Defendant, Case No. 19STCV34621 (Cal. Super., Sept. 30, 2019), alleges that the Defendants failed to provide all rest and meal periods; failed to accurate written wage statements; failed to indemnify for necessary work-related expenditures; and failed to timely pay wages upon termination of employment to the Plaintiff and other similarly situated aggrieved current and former employees who worked in California as hourly employees, including security guards and other employees of the Defendants in comparable positions, at any time during the period of April 9, 2018 to the present, in violation of the California Labor Code and Industrial Welfare Commission. The Plaintiff began working for Defendants as an hourly security guard on or about November 24, 2017. The Plaintiff continuously worked for Defendants from that date until approximately August 1, 2019, when her employment ended.[BN] Attorneys for Plaintiff are: Jaimee K. Wellerstein, Esq. BRADLEY & GMELICH LLP 700 N. Brand Boulevard, 10th Floor Glendale, CA 91203 E-mail: jwellerstein@bglawyers.com - and - David G. Spivak, Esq. Carl Kaplan, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd., Suite 203 Encino, CA 91436 Telephone (818) 582-3086 Facsimile (818)582-2561 E-mail: david@spivaklaw.com carl@spivaklaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Ave, Suite 201 Huntington Beach, CA 92649 Telephone: (562) 256-1047 Facsimile: (562) 256-1006 E-mail: whaines@uelglaw.com PORTABLES UNLIMITED: Jones Seeks to Recover OT Wages Under FLSA --------------------------------------------------------------- TERRENCE JONES, on behalf of himself and others similarly situated v. PORTABLES UNLIMITED RETAIL, LLC, Case No. 7:19-cv-09157 (S.D.N.Y., Oct. 3, 2019), seeks all available relief under the Fair Labor Standards Act and the Massachusetts Minimum Fair Wage Law. Mr. Jones asserts that he, like other salaried store managers, regularly worked over 40 hours per week. He alleges that he often worked over 60 per week and sometimes worked over 70 hours; but unlike other salaried store managers, he did not receive any overtime premium compensation for hours worked over 40 per week. The Defendant is a corporate entity maintaining a headquarters and principal place of business at 136 First Street, in Nanuet, New York (Rockland County). The Defendant operates at least 40 retail stores that, inter alia, sell cellular phones, plans, accessories, and services to customers.[BN] The Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 E-mail: pwinebrake@winebrakelaw.com asantillo@winebrakelaw.com mgottesfeld@winebrakelaw.com PROGRESSIVE NORTHWESTERN: Pipkin Sues over Insurance Claims ----------------------------------------------------------- CHRISTOPHER PIPKIN, the PLAINTIFF, vs. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, the DEFENDANT, Case No. 1:19-cv-00097-BSM (Ark. Cir., Sept. 30, 2019), seeks to recover the difference between the actual cash value of his vehicle and what he was paid, punitive damages, costs, and attorneys' fees. Pipkin also asks the Court to declare that the use of the Mitchell Valuation Report to adjust first-party insurance claims violates Arkansas law and to permanently enjoin its use. Mr. Pipkin insured his 2014 Kia Forte vehicle with Progressive Northwestern Insurance Company. Pipkin was involved in a vehicle collision, and Progressive declared his vehicle a total loss. As it does with all its total loss claims, Progressive used a Mitchell Valuation Report to determine what it would pay on Pipkin's claim. Based on the report, Progressive placed the actual cash value of Pipkin's vehicle at $14,812. This is less than the actual cash value of the vehicle and less than what was required to replace his vehicle with another of like kind and quality. The lawsuit contends that Progressive's use of the Mitchell Report to value total loss claims violates its contracts with its insureds and Arkansas law. Progressive is required to calculate actual cash value through either: (a) the cost of a specific, comparable replacement automobile, or (b) using one of two or more quotations obtained from two or more qualified dealers or appraisal services located within the local market area. Instead of following Arkansas law, Progressive uses the Mitchell Report to cheat its policyholders and increase its profits. The Mitchell Report systematically undervalues the insureds' vehicles, resulting in a payment of less than the actual cash value for all total loss claims, saving Progressive millions of dollars each year at the expense of its insureds. Pipkin brings this as a class action under Rule 23 of the Arkansas Rules of Civil Procedure. Members of the putative class are so numerous that joinder of all such members is impracticable. The exact size of the putative class is unknown but may be easily determined from records maintained by Progressive.[BN] Attorneys for the Plaintiff are: John Holleman, Esq. Timothy A. Steadman, Esq. HOLLEMAN & ASSOCIATES, P.A. 1008 West Second Street Little Rock, AR 72201 Telephone: (501) 975 5040 Facsimile: (501) 975 5043 E-mail: jholleman@johnholleman.net tim@johnholleman.net - and - Lloyd "Tre" Kitchens, Esq. THE BRAD HENDRICKS LAW FIRM 500 C Pleasant Valley Drive Little Rock, AR 72227 Telephone (501) 221-0444 E-mail: tkitchens@bradhendricks.com ROCKY MOUNTAIN: Thrasher EFTA Suit Dismissed; Default Entry Vacated ------------------------------------------------------------------- In the case, MICKEY THRASHER and KIMBERLY CYR, on behalf of themselves and all others similarly situated, Plaintiffs, v. ROCKY MOUNTAIN AUTO BROKERS, INC., Defendant, Civil Action No. 18-cv-02342-PAB-KMT (D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for the District of Colorado granted the Defendant's Motion to Set Aside Entry of Default and to Dismiss for Lack of Subject Matter Jurisdiction. On Sept. 13, 2018, the Plaintiffs filed a class action complaint asserting one claim under the Electronic Fund Transfer Act ("EFTA"). They allege that, on separate dates in 2017, they purchased vehicles on credit from defendant's automobile dealership. The Plaintiffs claim that the Defendant conditioned the extension of credit on their consent to automatic electronic fund transfer ("EFT") payments, which violated the EFTA. The affidavit of service states that Rocky Rodriguez was served with the complaint and summons on Sept. 27, 2018. The affidavit lists Rodriguez as the owner of the Defendant. The Defendant did not file an answer by the applicable deadline. On Oct. 26, 2018, the Plaintiffs moved for a clerk's entry of default under Rule 55. The clerk entered default on Oct. 29, 2018. The Defendant received a copy of the Plaintiffs' motion for entry of default on Oct. 31, 2018, and filed the instant motion on Nov. 2, 2018. Judge Brimmer finds that the Plaintiffs have provided no evidence to demonstrate Rodriguez is a proper recipient of process under Fed. R. Civ P. 4. Therefore, he is unable to tell from the record whether the Defendant was properly served and whether the Court has personal jurisdiction over the Defendant. Although proper service of process is lacking, the Defendant did not request dismissal of the Plaintiffs' claim for insufficient service of process under Rule 12(b)(5). The Judge finds service was insufficient but curable. Although Rodriguez, as the Defendant's general manager, was not authorized to accept service for the Defendant, the attempt of service on him nevertheless gave the Defendant notice of the lawsuit. Further, the Defendant has not alleged any prejudice resulting from ineffective service. The Judge is confident the Plaintiffs can, if given additional time, effectuate proper service. For these reasons, Judge Brimmer finds it appropriate to allow the Plaintiffs one more opportunity to effectuate proper service of process so that the litigation may proceed. The Defendant also argues, however, that the Court lacks subject matter jurisdiction over the Plaintiffs' claim because the Plaintiffs' lack standing under the EFTA. For this reason, the Judge elects to address the Defendant's motion to dismiss for lack of subject matter jurisdiction to determine whether the litigation should go forward and whether it will be futile to afford plaintiffs another opportunity to effect service. The Defendant argues that the Court should dismiss the Plaintiffs' complaint entirely for lack of subject matter jurisdiction on the basis that the Plaintiffs lack standing to bring the lawsuit. The Judge finds that the Plaintiffs have not alleged an injury suffered as a result of the Defendant's conduct beyond its alleged violation of the EFTA. Not only is such an allegation absent from the Plaintiffs' complaint, but it fails to articulate some concrete harm to the Plaintiffs or any indication that the alleged injury affects them in a personal and individual way. Because a violation of the EFTA could readily result in no harm, the mere allegation that the Defendant violated the EFTA does not entail a degree of risk sufficient to meet the concreteness requirement. Thus, the Judge finds that the Plaintiffs lack standing to bring the lawsuit and will dismiss their claim. For the foregoing reasons, Judge Brimmer vacated the Clerk's Entry of Default against the Defendant. The Defendant's Motion to Set Aside is granted. Within 14 days of the entry of the Order, the Defendant may have its costs by filing a Bill of Costs with the Clerk of Court. The case is closed. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/PAEz6G from Leagle.com. Mickey Thrasher, on behalf of themselves and all others similarly situated & Kimberly Cyr, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Jose Francisco Gill -- jgill@ThompsonConsumerLaw.com -- Thompson Consumer Law Group, PLLC & Russell S. Thompson, IV -- rthompson@ThompsonConsumerLaw.com -- Thompson Consumer Law Group, PLLC. Rocky Mountain Auto Brokers, Inc., Defendant, represented by Andrew Edward Swan, Lewis Kuhn Swan PC, Michael Dickson Kuhn, Lewis Kuhn Swan PC & Paul Forrest Lewis, Lewis Kuhn Swan PC. S & W SUPERMARKET: Clemente Seeks Unpaid Overtime Wages ------------------------------------------------------- GUSTAVO CLEMENTE individually and on behalf of others similarly situated, Plaintiff, v. S & W SUPERMARKET, INC. (DBA S & W SUPERMARKET) And ABDUL ALFALAHI, Defendants, Case No. 1:19-cv-09426 (E.D. N.Y., Oct. 11, 2019) is a Class and Collective Action Complaint seeking to recover overtime compensation, spread-of-hours pay, unlawful deductions and breach-of-contract and quantum meruit damages for Plaintiff and similarly situated co-workers who have been employed by Defendants as Supermarket Deli Workers for some or all the time period relevant to this action pursuant to the Fair Labor Standards Act, the New York Labor Law, as recently amended by the Wage Theft Prevention Act, and related provisions from Title 12 of New York Codes, Rules and Regulations. Plaintiffs regularly work for Defendants in excess of 40 hours per week, without receiving appropriate overtime compensation for any of the hours that they worked. In addition, the Defendants failed to pay Plaintiff the required "spread of hours" pay for any day in which they had to work over 10 hours a day; and failed to maintain accurate recordkeeping as required by the FLSA and the NYLL, says the complaint. Plaintiff is a former employee of Defendants, primarily employed in performing the duties of preparing food in the Deli of the Supermarket. Defendants operate a Supermarket where the Plaintiff worked with a principal place of business in Bronx New York.[BN] The Plaintiffs are represented by: Lina Stillman, Esq. Stillman Legal, PC 42 Broadway, 12th Floor New York, NY 10004 Phone: (212) 203-2417 Website: www.FightForUrRights.com SALEM COUNTY, NJ: Denial of Indemnification in Class Action Upheld ------------------------------------------------------------------ Suzette Parmley, writing for Law.com, reports that an appeals court upheld the Department of Law and Public Safety's denial of a request to defend and indemnify Salem County in a class action by county jail inmates who claim jail policies violated their rights. In Stevenson v. Department of Law and Public Safety, the Appellate Division on Oct. 1 concluded that the New Jersey Supreme Court's decision in Wright v. State in 2001 did not apply to Salem County's claims for defense and indemnification. "We have reviewed the County's contentions in light of the record and applicable law, and conclude they are without sufficient merit to warrant extended discussion in a written opinion," wrote Judges Jose Fuentes and Michael Haas in the per curiam opinion. The judges said neither the Tort Claims Act nor Wright "provides support for the County's contentions." The Tort Claims Act states that "the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of an act or omission in the scope of his [or her] employment." Fuentes and Haas said only the county was named as a defendant in the complaint. "Because the Act plainly states that only an employee may seek defense and indemnification, the County was not entitled to do so under the Act, and the County was unable to offer any alternate statutory support for its claim," wrote the panel. "Under these circumstances, the Court's decision in Wright is simply inapplicable." Lee Moore, spokesman for the Attorney General's Office, had no comment. Michael Mulligan of Carneys Point, representing Salem County, couldn't be reached for comment. The case was on appeal from the Department of Law and Public Safety's decision denying indemnification. According to the Oct. 1 decision, on May 17, 2017, four inmates in the Salem County Jail filed a complaint against the county in the Law Division, alleging the county violated their federal and state civil rights by requiring them to be "classified as suicidal for no apparent reason, made to wear garments which exposed [their] private parts, and . . . routinely strip searched" several times a day. The inmates sought compensatory damages and a judgment declaring the county's "policies, practices and customs to be unconstitutional and/or violations of their rights," the decision said. On June 19, 2017, the county filed an answer to the complaint, and two months later, sent a letter to the attorney general and the commissioner of the New Jersey Department of Corrections demanding that the attorney general defend and provide indemnification to the county based on the TCA provision, and referencing Wright. In the Wright case, the state's highest court had to decide whether employees of a county prosecutor's office should be treated as "state employees" eligible for defense and indemnification in a case where they were sued as individuals for alleged improper actions taken during their law enforcement activities. The Supreme Court concluded that county prosecutors held a "hybrid status" due to their "unique role" in performing a "function that has traditionally been the responsibility of the State and for which the Attorney General is ultimately answerable." The attorney general rendered a written decision denying the county's demand on Sept. 21, 2017, explaining that Wright did not apply in the Salem County case because the county jail's strip-search policy was an administrative function, rather than a law enforcement action. Salem County appealed, arguing, among other points, that the county sheriff and corrections officers were state agents hired for law enforcement purposes, and a county sheriff is subject to state government regulations administered by the attorney general and Department of Corrections. The panel disagreed. "In the present case, however, no county employees were parties to the underlying class action lawsuit, and no employees sought defense and indemnification from the State," according to the Appellate Court decision. "Therefore, and contrary to the County's assertions, there is no need to perform a Wright analysis in this matter." [GN] SAN FRANCISCO, CA: Bail System Ruling Fails to Deliver Change ------------------------------------------------------------- RJ Vogt, writing for Law360, reports that seven months after a federal judge ruled that San Francisco's bail system is unconstitutional, nothing has changed. Police can still jail arrestees for up to 48 hours before they reach arraignment, the hearings where judges either set bail or release them without it. While jailed pretrial, those arrestees who can afford to pay an amount preset by the county bail schedule are still allowed to do so, while those who can't afford to pay are forced to wait for a hearing. A new system, tentatively agreed to by civil rights litigators and the local sheriff's office, would put everyone on an equal playing field, according to Equal Justice Under Law executive director Phil Telfeyan. Blocking its implementation, however, is a lack of approval from the board of supervisors, the elected local legislature of San Francisco City and County. "The board of supervisors can meet and approve this at any time," Mr. Telfeyan said. "Reform is long overdue." Mr. Telfeyan would know, having filed the underlying class action nearly four years ago on behalf of two women named Riana Buffin and Crystal Patterson. Charged with grand theft and conspiracy at 19, Ms. Buffin was offered a $30,000 preset bail bond she could not afford and detained for 46 hours before being released after prosecutors dropped the chargers. The needless stint in jail led to her losing a job at a nearby airport. Ms. Patterson, then 29, received a preset $150,000 bail on assault charges and managed to get out with the help of a bail bond agent. Like Ms. Buffin, charges were dropped within two days of arrest, but Ms. Patterson spent months paying off a $15,000 debt, plus interest. The class action sought a permanent block on wealth-based detention and was bound for trial until, in August 2018, then-California Gov. Jerry Brown signed a bill eliminating cash bail. All parties agreed the new law made a bench trial unnecessary, and U.S. District Judge Yvonne Gonzalez Rogers ultimately ruled that the schedules are unconstitutional in March. Her ruling stated she'd block their use pending a hearing on how to word her order. Determining the wording, however, is where things got sticky. Mr. Telfeyan's team argued for an injunction requiring a new process that would allow those who have the money to pay bail and leave, while those who don't could get a waiver and also leave. But Sheriff Vicki Hennessy's office maintained that the case was about bail schedules, not a complete pretrial processing overhaul. As a result, the sheriff said the injunction should only block the use of bail schedules, not grant "a mass release of arrestees." Meanwhile the California Bail Agents Association, which had intervened in the case in 2015 after Hennessy declined to defend the schedules, argued against both proposals. The bail group, which successfully lobbied for a 2020 referendum on the state's bail ban, said eliminating schedules entirely would exceed the scope of the class action by also affecting those who could've paid. The dispute went to mediation, and by mid-July the parties said an agreement "in principle" had been reached. But before that deal could be revealed, the San Francisco Superior Court told the sheriff's office not to agree until the state decided whether to provide $13.8 million for the 24-hour, 7-days-a week-staff and resources that it believed a new pretrial bail system would require. The request was denied a few weeks later in a move that Telfeyan said surprised him. He noted that the state Judicial Council granted funding to several other large counties, such as Los Angeles and Sacramento, for changes required by the new state bail law. "I don't have any insight into their judicial council decision-making," he added, "but they were aware of this lawsuit." In the wake of the state's decision, the sheriff's office ended up sticking with its original plan: no bail schedules, no new system for dealing with the expected increase in pretrial detainees. The plaintiffs, on the other hand, called for a plan in which the bail schedules were still used but all those who couldn't pay could be released without bail within 12 hours. Overcoming their differences, the parties pitched a compromise proposal Aug. 30. Instead of bail schedules, jails would use a risk assessment tool and several other factors to determine if arrestees should be released without bail or see a judge. If 18 hours -- or up to 30 hours, for those police fear will threaten society or flee -- pass without a hearing before a judge, the arrestees would be released without bail. On Sept. 3, Judge Rogers granted the proposed injunction with one key condition: It cannot take effect until the local legislature says it will pay for the associated costs. An attorney for the city declined to comment on whether the board of supervisors would sign off. But American Bail Coalition executive director Jeff Clayton said it's unlikely, considering they could be held liable for paying attorney fees on a case that's dragged on for four years. "They have to fund the use of the algorithm on all these cases, they actually have to spend money," he said. "And why should they be liable for their state judges following the law? They could say, 'No, we're not paying.'" He added that, under the proposal, people who used to be able to pay for release within a few hours could be stuck waiting to find out the bail amount for up to 30 hours, much longer than the 12.6-hour average pretrial incarceration under the old schedules. "It could triple or quadruple the amount of time that people, who would've gotten the same bail under the schedule, would get out," he said. "And it has the potential to increase how those who can't afford to post bond are going to have to sit there and wait. It just makes no sense." But Telfeyan said that, if the deal is implemented, advocates will be able to monitor how the system affects people and whether sheriffs routinely push for 30 hour-detentions. He also maintained that it would allow the "vast majority" of arrestees to get out much sooner than before. The board has until Thanksgiving Day to make its decision. If it won't pay, it's up to Judge Rogers to decide how bail works in San Francisco going forward. [GN] SECURE HOME: Kingara Seeks Overtime Pay for Health Staff -------------------------------------------------------- CHARLES KINGARA, individually and on behalf of others similarly situated, the Plaintiff, v. SECURE HOME HEALTH CARE INCORPORATED, SIDDHARTH PARMAR, and ANKUR RUSTGI, the Defendants, Case No. 19-1359E (Mass Super., Sept. 30, 2019), alleges that Defendants failed to pay employees for intra-day travel time between client locations; reimburse employees for transportation expenses; and pay employees overtime wages, all in violation of Massachusetts wage and hour laws. In addition, Mr. Kingara brings an individual claim against the Defendants for failure to pay his earned sick time wages in violation Massachusetts law. Secure Health employs various employees, including licensed practical nurses (LPN), registered nurses, and home health care aides (collectively, health staff), whose job responsibilities include providing clients with in-home health care and assistance to patients. Secure Health employed Mr. Kingara as a licensed practical nurse from on or around October 15, 2016 through on or around May 4, 2019. Mr. Kingara's job responsibilities included traveling to Secure Health clients' homes to provide healthcare services. During his employment, Secure Health agreed to pay Mr. Kingara between around $27.00 and $28.00 per client visit. Secure Health also agreed to pay other LPNs and health care staff per client visit. Each week, Secure Health assigns each LPN and other health staff a list of clients they must see each day and specifies whether each client must be seen during the morning (before 12:00pm) or during the evening (after 12:00pm but before 8:00pm). Like other health staff, Secure Health required Mr. Kingara to work at multiple clients' homes each workday, which required him to have to travel between clients' homes to fulfill their job duties. Secure Health does not pay its health staff for any time in between client appointments, including wait time or travel time between appointments. It only pays health staff for each assigned client visit. Secure Health does not reimburse its health staff for the transportation expenses they incur in order to perform their required job duties. Mr. Kingara and other health staff worked in excess of 40 hours in a workweek for Secure Health. In fact, Mr. Kingara many times worked in excess of 60 hours in a workweek for Secure Health. However, Secure Health failed to pay Mr. Kingara one and one-half times his regular rate of pay for hours worked in excess of 40 in a workweek. Secure Health also fails to pay other health staff one and one-half times their regular rate of pay for hours worked in excess of 40 in a workweek, the lawsuit says. Secure Health is a company offering in-home health care to elderly individuals throughout the Greater Boston area.[BN] Counsel to the Plaintiff are: Raven Moeslinger, Esq. Nicholas F. Ortiz, Esq. LAW OFFICE OF NICHOLAS F. ORTIZ, PC 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617) 338-9400 E-mail: rm@mass-legal.com SIXT RENT: Faces Calderon Suit in Southern District of Florida -------------------------------------------------------------- A class action lawsuit has been filed against Sixt Rent A Car, LLC. The case is captioned as Philippe Calderon and Ancizar Marin, on behalf of themselves and all others similarly situated, the Plaintiff, vs. SIXT RENT A CAR, LLC and Sixt Franchise USA, LLC, the Defendants, Case No. 0:19-cv-62408-KMW (S.D. Fla., Sept 26, 2019). The suit alleges of violation of the Fair Debt Collection Act. The case is assigned to the Hon. Judge Kathleen M. Williams. Sixt Rent A Car LLC provides car rental services. The company offers new and used cars, hire, leasing, and mobility online services.[BN] Attorneys for the Plaintiffs are: Janet Robards Varnell, Esq. VARNELL AND WARWICK, P.A. P. O. Box 1870 Lady Lake, FL 32158 Telephone: (352) 753-8600 Facsimile: (352) 504-3301 E-mail: jvarnell@varnellandwarwick.com - and - Steven G Calamusa, Esq. GORDON AND DONER PA 4114 Northlake Blvd Palm Beach Gardens, FL 33410 Telephone: (561) 799-5070 Facsimile: (561) 799-4050 E-mail: SCalamusa@ForTheInjured.com - and - Brian William Warwick, Esq. VARNELL & WARWICK, P.A. P.O. Box 1870 Lady Lake, FL 32158 Telephone: (352) 753-8600 Facsimile: (352) 753-8606 E-mail: bwarwick@varnellandwarwick.com SMILEDIRECTCLUB INC: Docs over 2019 IPO Misleading, Vang Says ------------------------------------------------------------- Brittany Vang, Individually and on behalf of all others similarly situated, the Plaintiff, vs. SMILEDIRECTCLUB, INC., JORDAN KATZMAN, ALEXANDER FENKELL, DAVID KATZMAN, KYLE WAILES, STEVEN KATZMAN, RICHARD SCHNALL, SUSAN GREENSPON RAMMELT, CAMELOT VENTURE GROUP, J.P. MORGAN SECURITIES LLC, CITIGROUP GLOBAL MARKETS INC., BOFA SECURITIES, INC., JEFFERIES LLC, UBS SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC, GUGGENHEIM SECURITIES, LLC, STIFEL, NICOLAUS & COMPANY, INCORPORATED, WILLIAM BLAIR & COMPANY, L.L.C. and LOOP CAPITAL MARKETS LLC, the Defendants, Case No. 19C2316 (Tenn. 20th Jud'l Cir., Sept. 30, 2019), is a securities class action on behalf of all purchasers of the Class A common stock of SmileDirectClub pursuant and/or traceable to the Registration Statement issued in connection with SmileDirectClub's September 12, 2019 initial public stock offering (the IPO). On May 3, 2019, SmileDirectClub filed with the SEC a Registration Statement on Form S-1, which, after several amendments would later be utilized for the IPO. The SEC declared the Registration Statement effective on September 11, 2019, and on that same day, SmileDirectClub and the Underwriter Defendants priced and commenced the IPO. On September 13, 2019, SmileDirectClub and the Underwriter Defendants filed the final prospectus for the IPO with the SEC, which forms part of the Registration Statement. The Registration Statement was negligently prepared and, as a result, contained untrue statements of material fact or omitted to state other facts necessary to make the statements made not misleading and was not prepared in accordance with the rules and regulations governing its preparation, the lawsuit says. The IPO was successful for the Company and the Underwriter Defendants, who sold over 58.5 million shares of SmileDirectClub Class A common stock to the public at $23 per share, raising more than $1.3 billion in gross proceeds for the Company. At the time of the filing of this complaint, SmileDirectClub stock was trading for only about $13 per share, 43% below the IPO price, the lawsuit says. SmileDirectClub describes itself as a tele-dentistry company headquartered in Nashville, Tennessee.[BN] Attorneys for the Plaintiff are: Jerry E. Martin, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: 615 244-2202 Facsimile: 615 252-3798 E-mail: jmartin@barrettjohnston.com - and - Darren J. Robbins, Esq. Brian Cochran, Esq. mary k. blasy, Esq. Samuel H. Rudman, Esq. Mary K. Blasy, Esq. Christopher M. Wood, Esq. Brian J. Robbins, Esq. Gregory Del Gaizo, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 Facsimile: 619/231-7424 E-mail: darrenr@rgrdlaw.com bcochran@rgrdlaw.com srudman@rgrdlaw.com mblasy@rgrdlaw.com cwood@rgrdlaw.com - and - Christopher M. Wood, Esq. ROBBINS ARROYO 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: 619/525-3990 Facsimile: 619/525-3991 E-mail: brobbins@robbinsarroyo.com gdelgaizo@robbinsarroyo.com SS&S TECHNOLOGIES: Siyam Seeks Overtime Pay for Associates ---------------------------------------------------------- DINA SIYAM, and all other similarly situated employees of SS&S, the Plaintiff, vs. SS&S TECHNOLOGIES, INC., the Defendant, Case No. 3:19-cv-18535 (N.J. Sup., Sept. 30, 2019), seeks to recover overtime wages under the New Jersey State Wage Payment Law and the Fair Labor Standards Act. According to the complaint, the Plaintiff as well as all other similarly situated employees of SS&S were not paid and one half hours over 40 worked in a workweek. The Plaintiff was employed by the Defendant full time as a non-exempt Associate from January 2018. SS&S is an international investment software company that offers investment services.[BN] Attorneys for the Plaintiff are: Jodi J. Jaffe, Esq. JAFFE GLENN LAW GROUP PA 301 North Harrison Street, Suite 9F No. 306 Princeton, NJ 08540 Telephone: (201) 687 9977 Facsimile: (201) 595 0308 E-mail: Jjaffe@JaffeeGlenn.com SURF STYLE: Erdman Seeks Copy of Background Check Report -------------------------------------------------------- James H. Erdman, on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. Surf Style, Inc., Defendant, Case No. 19-006404, filed in Florida State, Pinellas County, Sixth Circuit Court on September 24, 2019), seeks damages for violations of the Fair Credit Reporting Act. Surf Style is one of the largest surf—style clothing and souvenir retail companies in the United States, with more than forty-nine locations across three states. In April 2019, Erdman applied for a job at Surf Style. He was not accepted due to an unfavorable background check. He requested a copy of his background results for him to dispute said report. Surf Style refused to provide a copy of the report or a written summary. [BN] Plaintiff is represented by: Brandon J. Hill, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Tel: (813) 337-7992, 224-0431 Facsimile: (813) 229-8712 Email: bhill@wfclaw.com - and - Craig C. Marchiando, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 763 J. Clyde Morris Blvd., Ste. 1-A Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 Email: craig@clalegal.com TACO'S PUEBLA: Cortes Seeks Unpaid Minimum, Overtime Wages ---------------------------------------------------------- ESTELA B CORTES, individually and on behalf of others similarly situated, Plaintiff, v. JOHN DOE CORP. (D/B/A TACO'S PUEBLA RESTAURANT), TACO REY CORP. (D/B/A TACO REY), CENTENARIO BAR RESTAURANT CORP. (D/B/A CENTENARIO BAR RESTAURANT), FRANCISCO H. MEDINA CASTELAN , and CLAUDIA GARCIA , Defendants, Case No. 1:19-cv-09434 (S.D. N.Y., Oct. 11, 2019) is an action on behalf of Plaintiff, and other similarly situated individuals, seeking unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938, and for violations of the N.Y. Labor Law, and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor, including applicable liquidated damages, interest, attorneys' fees and costs. Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that she worked. Defendants also failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Defendants likewise failed to pay Plaintiff the required "spread of hours" pay for any day in which she had to work over 10 hours a day, and failed to pay Plaintiff's wages on a timely basis, says the complaint. Plaintiff was employed as a waitress and an administratrix at the Defendants' restaurants. Defendants own, operate, or control three mexican restaurants, located at 2181 Grand Concourse, Bronx, NY 10453 under the name "Taco's Puebla Restaurant"; at 2319 Hughes Avenue, Bronx, New York 10458 under the name "Taco Rey"; and at 1538-40 Webster Avenue, Bronx, New York 10457 under the name "Centenario Bar Restaurant".[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 TAL EDUCATION: Bid to Dismiss Amended Lea Securities Suit Granted ----------------------------------------------------------------- Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York granted the Defendants' motion to dismiss an amended complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6) and Section 101(b) of the Private Securities Litigation Reform Act ("PSLRA") in the case EDWARD LEA and DIOS ASSET MANAGEMENT PTE. LTD., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. TAL EDUCATION GROUP, BANGXIN ZHANG, YUNFENG BAI, and RONG LUO, Defendants, Case No. 18 Civ. 5480 (LAP) (S.D. N.Y.). Plaintiffs Lea and Dios Asset bring the instant securities class action complaint against TAL Education Group ("Company"), Bangxin Zhang, Yunfeng Bai, and Rong Luo. The Plaintiffs assert claims of securities fraud under Section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5 promulgated thereunder. They also allege violations of Section 20(a) of the Exchange Act. The Plaintiffs' claims stem from their purchase of Ohr common stock. The Company is incorporated in the Cayman Islands and provides education services in China. The Plaintiffs allege that the Company and its executives committed securities fraud based on two grounds--what they call the GZ 1-1 fraud and the Shunshun fraud. They allege that as a result of the alleged sham transaction, the Company improperly increased net income by $37.5 million. When these alleged frauds were exposed by the short-selling research firm Muddy Waters, the stock price precipitously declined. The Plaintiffs say that the various materially false or misleading statements demonstrate that the fraud was either made knowingly or severely recklessly. They say that because the individual Defendants participated in the fraudulent scheme and had knowledge of the untrue facts, they participated in the alleged fraudulent schemes. The Defendants now move to dismiss the amended complaint for, inter alia, failure to plead with the specified particularity and failure to state a claim upon which relief may be granted. Judge Preska finds that the Plaintiffs on both alleged frauds are unable to establish falsity or material misrepresentation. In both instances, at most, the Plaintiffs are able to point to a few stars in the night sky, not draw a constellation of control. This is primarily because each star has an alternative explanation so obvious that they render the Plaintiff's inferences unreasonable. The Plaintiffs rely on the alleged sham transactions themselves as evidence of scienter saying, the transactions do not fake themselves. Their argumentation boils down to the following syllogism: 1) the two transactions were fraudulent, 2) senior management knew or should have known, as a matter of law, that certain transactions take place, therefore 3) the Defendants had the requisite scienter. As stated above, the Judge disputes the first premise of the syllogism--there is no material misrepresentation so there can be no scienter. He does not reach the Defendants' other arguments. For the foregoing reasons, Judge Preska concludes that the Plaintiffs fail to plead either a material misrepresentation or omission or scienter. They therefore have not plead either a Section 10(b) or a Section 20(a) violation. Accordingly, he granted the Defendants' motion to dismiss, and denied as moot the Plaintiff's motion to strike various documents. The Clerk of the Court will mark the action closed and deny all pending motions as moot. A full-text copy of the Court's Sept. 25, 2019 Opinion & Order is available at https://is.gd/fTx8nA from Leagle.com. Edward Lea, individually and on behalf of all others similarly situated & Dios Asset Management PTE. LTD., Lead Plaintiffs, represented by Gregory Bradley Linkh -- GLINKH@GLANCYLAW.COM -- Glancy Prongay & Murray LLP, Stan Karas -- SKARAS@GLANCYLAW.COM -- Glancy Prongay & Murray LLP & Lesley Frank Portnoy -- LPORTNOY@GLANCYLAW.COM -- Glancy Prongay & Murray LLP. Jack Extract, Plaintiff, pro se. TAL Education Group, Defendant, represented by Scott D. Musoff -- scott.musoff@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Michael Charles Griffin -- michael.griffin@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Robert Alexander Fumerton -- robert.fumerton@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. TEAM LUBRICATION: Wilhite et al Seek Overtime Wages --------------------------------------------------- KIRK WILHITE, MATTHEW COLLINS, RAYMOND CHENAULT, AND WILLIE SPINNER, the Plaintiffs, v. TEAM LUBRICATION, INC., the Defendant, Case No. 2:19-cv-04343-ALM-EPD (S.D. Ohio, Sept. 30, 2019), alleges that the Defendant failed to pay employees overtime wages and wages for all hours worked pursuant to the Fair Labor Standards Act of 1938 the Ohio Constitution, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. According to the complaint, the Defendant pays Plaintiffs an hourly rate but failed to compensate them for all hours they worked each week. This failure to pay for all hours worked not only constitutes an underpayment of wages; it creates a miscalculation of Plaintiffs regular rates of pay for the purpose of overtime compensation. Team Lubrication has been part of the Jiffy Lube system for 23 years and has serviced over 2.5 million vehicles in the Columbus area. The Defendant offers state of the art automotive services that meet or exceed customer expectations that include the Jiffy Lube Signature Service (TM) Oil Change. The Jiffy Lube Signature Service (TM) Oil Change includes free fluid top offs (up to 2 quarts) for the next 3 months or 3,000 miles whichever comes first.[BN] Attorneys for the Plaintiffs are: Robert E. DeRose, Esq. Jessica R. Doogan, Esq. BARKAN MEIZLISH DEROSE WENTZ MCINERNEY PEIFER, LLP 250 East Broad Street, 10th Floor Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 E-mail: bderose@barkanmeizlish.com jdoogan@barkanmeizlish.com THERANOS: Former CEO Unable to Pay Lawyers' Fees ------------------------------------------------ James Hall, writing for news.com.au, reports that former Theranos chief executive Elizabeth Holmes was once listed by Forbes as the world's youngest self-made billionaires but her fall from grace has been so spectacular she reportedly can't afford to pay legal fees. Three lawyers from the Cooley LLP firm said they haven't been paid for more than a year while defending the former businesswoman's fraud charges. "Further, given Ms. Holmes's current financial situation, Cooley has no expectation that Ms. Holmes will ever pay it for its services as her counsel," lawyers Stephen Neal, John Dwyer and Jeffrey Lombard said in a filing, according to The Mercury News. The law team is seeking approval from the court to ditch the former high-flyer in her class-action battle in which plaintiffs accuse her, her former blood-testing company Theranos and Walgreen of fraud in Arizona and Palo Alto. "It is unfair and unreasonable to require Cooley to continue representing Ms. Holmes in this action," the lawyers said. WHO IS ELIZABETH HOLMES? The former billionaire shot to fame after founding her revolutionary blood testing company Theranos in 2003 at just 19 years of age. It claimed to have invented blood tests that only required very small amounts of blood from a fingerprick instead of a needle. Theranos raised more than $US700 million (A$997.5 million) from venture capitalists and private investors, resulting in a $US10 billion (A$14 billion) valuation at its peak in 2013 and 2014. In 2015, Ms Holmes was celebrated as the youngest and wealthiest self-made female billionaire in the US with an estimated net worth of $US4.5 billion (A$6.4 billion). But in 2016, everything started to fall apart. That multibillion-dollar estimated fortune was slashed to $0 by Forbes as Ms. Holmes was faced with mounting allegations of potential fraud, which allegedly duped investors out of millions. She and former Theranos chief operating officer and president Ramesh "Sunny" Balwani were charged with nine counts of wire fraud and two counts of conspiracy to commit wire fraud, with both pleading not guilty. In September 2018, Theranos was shut down for good. The trial was due to start in August 2020. NEW LEGAL WIN Although Ms. Holmes has been hit with setback after setback, she enjoyed a rare legal win in July. She appeared in a San Jose courtroom, ditching her trademark black turtleneck -- modelled on her hero Steve Jobs -- for a stylish, sleeveless black dress and blazer. She seemed relaxed and even smiled for cameras upon arrival, but ignored questions from waiting reporters including CNBC's Yasmin Khorram, who asked if she would ever make a public statement on the scandal. Ms. Holmes has remained notoriously tight-lipped regarding her downfall. According to Bloomberg, her lawyers had demanded "millions of documents" from the US Food and Drug Administration (FDA) which they argued would be crucial to her defence. The FDA had claimed they would take up to six months to hand over -- a time frame her lawyers had slammed as hurting her case. In June, lawyer Lance A. Wade said prosecutors who had access to those documents enjoyed an unfair advantage, but that when Ms. Holmes' team tried to access them "suddenly the regulatory haze appears in front of all of these requests", Bloomberg reported him as saying. At a sentencing hearing in July, US District Judge Edward Davila agreed six months was "too long". Ms. Holmes is also after records from the Centres for Medicare and Medicaid Services, and the judge ordered the agencies to produce them within 75 days. Ms. Holmes and Mr. Balwani claim those documents could help them prove they were unaware that Theranos' tests were inaccurate and that they had therefore not knowingly misrepresented the company's achievements. However, the FDA is concerned the documents in question could effectively out an anonymous whistleblower. The trial is due to commence in August 2020 but if the FDA fails to provide the documents, it is feared it could cause a delay. [GN] TOYOTA MOTOR: Bid to Stay or Transfer Cardenas RICO Suit Denied --------------------------------------------------------------- Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida denied the Defendants' Motion to Stay or Transfer to the Central District of California the action captioned JAVIER CARDENAS and KURT KIRTON, Plaintiffs, v. TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC., TOYOTA MOTOR ENGINEERING & MANUFACTURING, INC., and SOUTHEAST TOYOTA DISTRIBUTORS, LLC, Defendants, Case No. 18-22798-CIV-MORENO (S.D. Fla.). The class action lawsuit is about whether certain Toyota entities defrauded consumers and engaged in unfair trade practices by concealing a defect in the heating, ventilation, and air conditioning systems installed in 2012-2017 Toyota Camrys and Camry Hybrids. The Plaintiffs allege the Toyota entities' fraudulent conduct violates the Racketeering Influenced and Corrupt Organizations Act, the Magnuson-Moss Warranty Act, Florida's Deceptive and Unfair Trade Practices Act, and the Tennessee Consumer Protection Act; and breaches the implied warranty of merchantability, and constitutes common law fraud or fraudulent concealment. The Defendants believe the lawsuit is a "copycat class action" involving claims substantially similar to those being litigated in three other ongoing class actions against Toyota Motor Sales, U.S.A., Inc. that are currently pending in the Central District of California. For this reason, they ask the Court to transfer the action to California pursuant to the "first-to-file" rule or the federal transfer statute. The Plaintiffs strongly disagree and insist the lawsuit belongs in Florida because there is a named Florida plaintiff, and because there are Florida statutory and common law claims asserted against (among others) one Florida defendant, concerning conduct that occurred in Florida. They further attest the proposed classes in the lawsuit do not overlap with the certified class or proposed classes in the pending California class actions. Judge Moreno finds that the Plaintiffs have carried their burden of proving "compelling circumstances" necessary to justify an exception to the first-to-file rule. Consequently, in exercising its discretion, the Judge declines to transfer the lawsuit across the country to California. The Defendants' Motion to Transfer on this ground is accordingly denied. Next, the Judge finds that the Defendants have failed to meet their burden of establishing that California is the more convenient forum under Section 1404(a). The case raises several issues that are of far greater interest to Florida than California. Consequently, their Motion to Transfer under Section 1404(a) is denied. Alternatively, the Defendants ask the Court to stay the lawsuit pending a result in the upcoming class action trial in Salas. The Judge holds that the lawsuit is quite dissimilar, and chronologically trails far behind Salas. For these reasons, he declines to stay the case pending resolution of the California-only class trial in Salas. Therefore, the Defendants' Motion to Stay is denied. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/fcps9G from Leagle.com. Javier Cardenas, Plaintiff, represented by Alissa Del Riego -- adelriego@podhurst.com -- Podhurst Orseck P.A., Jeffrey A. Koncius , Kiesel Law LLP, pro hac vice, John Gravante, III -- jgravante@podhurst.com -- Podhurst Orseck, P.A., Matthew Weinshall -- mweinshall@podhurst.com -- Podhurst Orseck, Natalie Lesser, Kessler Topaz Meltzer & Check, LLP, pro hac vice, Nicole Ramirez, Kiesel Law LLP, pro hac vice, Paul R. Kiesel, Kiesel Boucher Larson LLP, pro hac vice, Peter A. Muhic, LeVan Law Group, LLC, Tyler S. Graden , Kessler Topza Meltzer & Check, LLP, pro hac vice & Peter Prieto -- pprieto@podhurst.com -- Podhurst Orseck, P.A. Kurt Kirton, individually and on behalf of all others similarly situated, Plaintiff, represented by Jeffrey A. Koncius, Kiesel Law LLP, pro hac vice, Natalie Lesser, Kessler Topaz Meltzer & Check, LLP, pro hac vice, Nicole Ramirez, Kiesel Law LLP, pro hac vice, Paul R. Kiesel, Kiesel Boucher Larson LLP, pro hac vice, Peter A. Muhic, LeVan Law Group, LLC, Tyler S. Graden, Kessler Topza Meltzer & Check, LLP, pro hac vice & Peter Prieto, Podhurst Orseck, P.A. Toyota Motor Corporation, Toyota Motor Sales, U.S.A., Inc. & Toyota Motor Engineering & Manufacturing North America, Inc., Defendants, represented by Brian Michael Ercole -- brian.ercole@morganlewis.com -- Morgan Lewis, Bockius & Melissa Marie Coates -- melissa.coates@morganlewis.com -- Morgan Lewis. Southeast Toyota Distributors, LLC, Defendant, represented by Brian Michael Ercole, Morgan Lewis, Bockius, David J. DePiano, Shapiro, Blasi, Wasserman & Hermann, P.A. & Robert Eric Sacks, Shapiro, Blasi, Wasserman & Hermann, P.A. TRUMAN ROAD: Smith Seeks Class Certification -------------------------------------------- In the class action lawsuit styled as ZACHARY SMITH and BRIAN KAGARICE, individually and on behalf of all others similarly situated, the Plaintiffs, vs. TRUMAN ROAD DEVELOPMENT, LLC d/b/a NO OTHER PUB, et al., the Defendants, Case No. 4:18-cv-670-NKL (W.D. Mo.), Plaintiff asks the Court to enter an Order: a. granting his motion for class certification of: "all individuals who provided their phone number to No Other Pub on a sign-in sheet and who received a text message from No Other Pub." b. certifying Class identified above pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3); c. appointing Plaintiff Smith as representative of the Class; d. appointing Plaintiff Smith's counsel as class counsel pursuant to Fed. R. Civ. P. 23(g); and e. awarding such other and further relief as the Court deems reasonable and just.[CC] Attorneys for the Plaintiff and all others similarly situated are: Bill Kenney, Esq. William C. Kenney, Esq. BILL KENNEY LAW FIRM, LLC 1100 Main Street, Suite 1800 Kansas City, MO 64105 Telephone: (816) 842-2455 Facsimile: (816) 474-8899 E-mail: bkenney@billkenneylaw.com - and - Benjamin H. Richman, Esq. Michael Ovca, Esq. Rafey S. Balabanian, Esq. Eve-Lynn J. Rapp, 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 movca@edelson.com rbalabanian@edelson.com erapp@edelson.com TWITTER, INC: Doshier Case Moved to Eastern District of Arkansas ---------------------------------------------------------------- Twitter removed the case captioned as WILLIAM F. DOSHIER and dotStrategy, Co., the PLAINTIFFS, vs. TWITTER, INC., the DEFENDANT, Case No. 23CV-18-1102 (Filed July 25, 2018), from the Arkansas Circuit Court, Faulkner County to the U.S. District Court for the Eastern District of Arkansas on Sept. 21, 2019. The Eastern District of Arkansas Court Clerk assigned Case No. 3:19-cv-06176-JCS to the proceeding. The case involves advertising placed on the Twitter platform by persons or entities who entered into "Self-Service Advertising agreements with Twitter. The Plaintiffs allege that Twitter improperly charges serve-serve advertisers for "fake Engagements", such as for 'Website clicks or conversions' (Ad Clicks) generated through fake TWITTER accounts, for 'clicks on Promoted Tweets' (Ad Clicks) generated through fake Twitter accounts, and for Follows generated through fake TWITTER accounts." The Plaintiffs bring the claims under Arkansas law.[BN] Attorneys for the Plaintiff are: David A. Hodges, Esq. HODGES LAW Centre Place 212 Center Street, Fifth Floor Little Rock, AR 72201-2429 Email: david@hodgeslaw.com Attorneys for the Defendant are: Jennifer H. Doan, Esq. J. Randy Roeser, Esq. HALTOM & DOAN 6500 Summerhill Road, Suite 100 Texarkana, TX 75503 Telephone: 903.255.1000 Facsimile: 903.255.0800 E-mail: jdoan@haltomdoan.com rroeser@haltomdoan.com U.S. SOCCER: Files Motion Against Gender Bias Class Action ---------------------------------------------------------- Sarah Valenzuela, writing for NY Daily News, reports that the U.S. Soccer Federation filed in late Sept. a court motion in opposition to the women's national team's request that class action status be given to its gender discrimination lawsuit. The USWNT filed their class action certification request on Sept. 11, but has actually been seeking class action status since it filed its lawsuit in March. The gender discrimination suit accuses the federation of inequitable pay, among other claims. The USSF has continued to claim no such discrimination exists and pointed out that the women's team has made more money over an eight-year period than the men's national team. In August, USSF released a controversial "fact sheet" that supposedly broke down the numbers to prove its point. But the spokesperson for the USWNT players in their equal pay lawsuit, Molly Levinson, said the numbers didn't reveal the full truth: The women's national team players only earn $4,950 per game (for 20 wins in friendlies) versus the men's team who earns $13,166 (for 20 wins in friendlies). The men's team can also earn higher bonuses than the women, but has not been able to capitalize on collecting those bonuses out of lack of success in big tournaments--like failing to qualify for the 2018 World Cup in Russia. The latest nugget of information the federation has added to its motion: Megan Rapinoe, Carli Lloyd, Becky Sauerbrunn and Alex Morgan, who are championing the lawsuit, have all earned more than the highest paid players on the men's team between 2014-2019. U.S. Soccer argues that the four lack the standing to represent a class. By seeking class action status, the U.S. players are looking to include in the lawsuits all players called up to the national team. "Pay should be based on performance, not gender. USSF tries to spin the undeniable fact that if the men players won their games, they would be paid considerably more than the women are now," Levinson said. "This is a tired argument from USSF that women players must work twice as hard and win every time men lose in order to be paid and have the same working conditions as the men. "It runs counter to every American principle of equality, won't stop this case from going forward, and doesn't stand a chance in a trial." The USSF motion comes a month after mediation talks between the two sides fell flat and a trial date, set in a Los Angeles U.S. District Court, was scheduled for May 5, 2020. "It is clear that USSF, including its Board of Directors and President Carlos Cordeiro, fully intend to continue to compensate women players less than men. They will not succeed," Levinson said after the failed talks. "We want all of our fans, sponsors, peers around the world, and women everywhere to know we are undaunted and will eagerly look forward to a jury trial." In March, all twenty-eight members of the women's team filed a lawsuit against the federation, claiming "institutionalized gender discrimination" affected USWNT player's paychecks, training, travel, coaching, playing and medical treatment. Support for the USWNT has continued to build, even moreso after the team won its fourth World Cup in July. Even Cordeiro's congratulatory speech at the City Hall rally following the team's ticker tape parade down Manhattan's Canyon of Heroes was interrupted by the crowd's "Equal Pay! Equal Pay!" chants.[GN] UNITED STATES: $5.7MM Attorneys' Fees Awarded in Kane County Suit ----------------------------------------------------------------- In the case, KANE COUNTY, UTAH, individually and on behalf of all others similarly situated, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant, Case Nos. 17-739C; 17-1991C (Consolidated) (Fed. Cl.), Judge Elaine D. Kaplan of the U.S. Court of Federal Claims granted the Plaintiffs' motion for an award of attorney fees and non-taxable expenses. These consolidated cases arise out of suits that Kane County, Utah, brought alleging that the federal government owed it and other similarly-situated units of local government additional payments under the Payment in Lieu of Taxes Act ("PILT") for fiscal years 2015, 2016, and 2017. The Court granted summary judgment in the Plaintiffs' favor in both cases, finding that eligible units of local government were entitled by law to receive the full amount of the payments they were due under PILT, irrespective of a shortfall in the appropriations for those payments in fiscal years 2015, 2016, and 2017. On Oct. 12, 2018, the parties filed a joint status report stipulating to the amounts due to each class member in accordance with the Court's decision. On Oct. 22, 2018, the Court, finding no just reason for delay under RCFC 54(b), directed the Clerk to enter final judgment in favor of the Plaintiffs in the consolidated cases in the total amount of $17,221,821, allocated to each class member as provided in the stipulation. On Nov. 13, 2018, the government filed a motion requesting that the Court amend the judgment by entering separate judgments in each case. The Court granted that motion on Nov. 15, 2018, and on Nov. 16, 2018, the Clerk entered judgments for $16,322,574 in No. 17-739C, and for $899,247 in No. 17-1991C. In the meantime, on Sept. 27, 2018, and prior to the first entry of judgment in the case, the Plaintiffs filed a motion for an award of attorney fees and non-taxable expenses and an accompanying brief, requesting an award of one-third of the total amount recovered on behalf of all the Class Members that timely opted into the lawsuit ($5,740,607), and reasonable and necessary non-taxable, out-of-pocket litigation and class administration expenses incurred ($26,936.96). The government has represented that it takes no position regarding the Plaintiffs' motion. On Nov. 13, 2018, in light of the government's representation that it anticipated filing a notice of appeal of the Court's decision, the Court stayed consideration of the Plaintiffs' motion for attorney fees pending a final decision from the court of appeals. The government noted an appeal to the United States Court of Appeals for the Federal Circuit on Jan. 11, 2019. On May 15, 2019, the parties filed an agreement pursuant to Fed. R. App. P. 42(b) that the appeal be dismissed. On May 15, 2019, the court of appeals dismissed the appeals. In light of that action, the Court has lifted its stay of the motion for attorney fees and non-taxable expenses. Judge Kaplan finds that only the Lead Plaintiff, Kane County, has entered a fee agreement with the class counsel. Therefore, it is appropriate to direct an award of attorney fees and expenses based on the common fund doctrine so that the other Plaintiffs pay their fair share of the costs of the class counsel's advocacy on their behalf. Next, she finds that the lodestar cross-check yields an award consistent with the one derived from the application of the percentage fee the Plaintiffs have requested. For that reason, the Judge concludes that the percentage-based fees sought by the Plaintiffs' counsel are reasonable. The Class counsel seeks reimbursement of $2,639.45 in litigation expenses and $24,297.51 in class notice and administrative expenses (a total of $26,936.96) from the common fund. The Judge has reviewed these expenses and finds them to be reasonable. She therefore grants the Plaintiffs' request for an award of non-taxable costs and expenses. For the foregoing reasons, Judge Kaplan lifted the Court's stays of the motion for attorney fees and applications for bill of costs. She granted the motion for attorney fees and non-taxable expenses. The Clerk is directed to enter judgment in the amount of $5,767,543.96, which will be paid to Smith, Currie & Hancock LLP from the class fund. The applications for bill of costs in Case Nos. 17-739C and 17-1991C will remain pending for the Clerk. A full-text copy of the Court's Sept. 25, 2019 Opinion & Order is available at https://is.gd/xxXBca from Leagle.com. KANE COUNTY, UTAH, individually and on behalf of all others similarly situated, Plaintiff, represented by Alan I. Saltman -- aisaltman@smithcurrie.com -- Smith, Currie & Hancock LLP. USA, Defendant, represented by Mollie Lenore Finnan -- mollie.l.finnan@usdoj.gov -- United States Department of Justice. UNITED STATES: Court Decertifies Subclass in Abdi Detainees Suit ---------------------------------------------------------------- Judge Elizabeth A. Wolford of the U.S. District Court for the Western District of New York has decertified the subclass in the case captioned HANAD ABDI and JOHAN BARRIOS RAMOS, on behalf of himself and all others similarly situated, Petitioners, v. KEVIN McALEENAN, in his official capacity as Acting Secretary of U.S. Department of Homeland Security; THOMAS BROPHY, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; JEFFREY SEARLS, in his official Capacity as Acting Administrator of the Buffalo Federal Detention Facility; and WILLIAM BARR, in his official capacity as Attorney General of the United States, Respondents, Case No. 1:17-CV-00721 EAW (W.D. N.Y.). The class suit involves a certified subclass of asylum-seekers who have demonstrated a credible fear of persecution or torture in their respective homelands. Each has been taken into custody and detained at the Buffalo Federal Detention Facility in Batavia, New York, pursuant to 8 U.S.C. Section 1225(b)(1)(B)(ii). Each has been imprisoned in a maximum-security facility for more than six months without a bond hearing while actively seeking admission into the United States. Petitioners Abdi and Ramos brought the action seeking relief on behalf of themselves individually and on behalf of a proposed class of similarly situated asylum-seekers held at the Buffalo Federal Detention Facility in Batavia, New York. The District Court previously certified the subclass and granted a preliminary injunction requiring that bond hearings be provided to the subclass. Specifically, the District Court defined the certified subclass as follows: All arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigration judge. At that time, the U.S. Court of Appeals for the Ninth Circuit and the majority of district courts in the Second Circuit had imposed a temporal limitation on Section 1225(b) through the canon of constitutional avoidance. However, the Supreme Court subsequently held in Jennings v. Rodriguez that Section 1225(b) cannot reasonably be interpreted to require a bond hearing after six months of detention. The Supreme Court's decision in the Jennings case did not address the constitutional arguments raised in that case, and the Supreme Court remanded those issues for the Ninth Circuit to consider in the first instance. Pending before the District Court are the Respondents' motion to vacate the Court's preliminary injunction order and motion to decertify the subclass, and the Petitioners' motion to enforce the preliminary injunction order. These motions directly confront several questions left open in the Jennings case, including whether asylum-seekers detained pursuant to Section 1225(b)(1)(B)(ii) are entitled to due process protections and, if so, whether the class action device is the appropriate mechanism to resolve the Petitioners' due process challenges. The Respondents also contend that the Court is without jurisdiction to issue class-wide injunctive or declaratory relief pursuant to 8 U.S.C. Section 1252(f)(1). Assuming arguendo that the subclass enjoys constitutional protections, Judge Wolford concludes that the subclass no longer satisfies the requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure. As a result, the subclass must be decertified and the preliminary injunction vacated. The Judge need not, and does not, decide whether these asylum-seekers have Fifth Amendment due process rights. Furthermore, in light of her decision to decertify the subclass, the Respondents' position that the Court does not have jurisdiction to issue class-wide injunctive or declaratory relief pursuant to Section 1252(f)(1) is a moot point and is not addressed. For the reasons stated, Judge Wolford (i) granted the Respondents' motion to decertify the subclass; (ii) vacated the Court's preliminary injunction order granting class-wide relief in favor of the now decertified subclass; and (iii) denied as moot the Respondents' motion to vacate the preliminary injunction and the Petitioners' motion to enforce the preliminary injunction. A full-text copy of the District Court's Sept. 24, 2019 Decision & Order is available at https://is.gd/8fwFOE from Leagle.com. Hanad Abdi, Petitioner, represented by Aadhithi Padmanabhan, New York Civil Liberties Union Foundation, Victoria Marie Roeck, New York Civil Liberties Union Foundation, Antony Philip Falconer Gemmell, New York Civil Liberties Union Foundation, Christopher T. Dunn, NY Civil Liberties Union, Deepa Alagesan, International Refugee Assistance Project, Heidi Lynne Levine -- HLEVINE@SIDLEY.COM -- Sidley Austin LLP, Mariko Hirose, International Refugee Assistance Project, Michael D. Mann -- MDMANN@SIDLEY.COM -- Sidley Austin LLP & Robert Andrew Hodgson, New York Civil Liberties Union Foundation. Johan Barrios Ramos, Petitioner, represented by Victoria Marie Roeck, New York Civil Liberties Union Foundation, Antony Philip Falconer Gemmell, New York Civil Liberties Union Foundation, Deepa Alagesan, International Refugee Assistance Project, Heidi Lynne Levine, Sidley Austin LLP, Mariko Hirose, International Refugee Assistance Project, Michael D. Mann, Sidley Austin LLP, Robert Andrew Hodgson, New York Civil Liberties Union Foundation & Aadhithi Padmanabhan, New York Civil Liberties Union Foundation. Thomas Brophy, Acting Director of Buffalo Field Office of Immigration and Customs Enforcement, Jeffrey Searls, Acting Administrator of the Buffalo Federal Detention Facility, Jefferson Sessions, Attorney General of the United States & Elaine C Duke, Acting, Secretary of the U.S. Department of Homeland Security, Defendants, represented by Kevin Charles Hirst, U. S. Department of Justice - Civil Division, Stacey Ilene Young, U.S. Department of Justice, J. Max Weintraub, U. S. Department of Justice - Civil Division, Nicole N. Murley, U.S. Department of Justice & Tashiba Monique Peoples, U.S. Department of Justice Office of Imigration Litigation-District Court Section. UNITED STATES: ICE Faces Probe on Detainees Healthcare Class Suit ----------------------------------------------------------------- Blake Ellis and Melanie Hicken, writing for CNN, report that when 64-year-old Kamyar Samimi died in the custody of U.S. Immigration and Customs Enforcement (ICE), the agency issued a routine press release saying the preliminary cause of his death was cardiac arrest. It boasted about the nearly $200 million it had been spending annually on health care services for detainees, saying that "comprehensive medical care is provided from the moment detainees arrive and throughout the entirety of their stay." What the press release didn't say was that Samimi's death followed a series of lapses in his medical care -- the sort of breakdowns that have been repeatedly identified in government investigations into the care provided at immigrant detention centers in recent years. Samimi, an Iranian man who was being held by ICE in Aurora, Colorado, had been complaining of vomiting and pain for weeks leading up to his death in 2017, according to ICE's investigation into his treatment. He had told medical staff upon his arrival that he had been taking methadone, a painkiller commonly used to treat opioid addiction, since hurting his back in a car accident. He said he was starting to feel symptoms of withdrawal, yet nurses told investigators they didn't have training in opioid withdrawal. ICE's report, which involved an outside analysis of his treatment and like other death reviews did not directly connect the medical failures to the death, also found that the facility had been without a director of nursing and another medical provider for more than six months. Around a week before Samimi died, he was found unconscious on the floor of his cell but wasn't sent to the hospital. And on the day he died, a nurse tried calling the doctor multiple times for help after the inmate appeared to have suffered a seizure, but the doctor didn't answer or return any of those calls. Investigations into deaths including Samimi's, as well as critical government audits, have raised troubling questions about the quality of medical care at facilities used to hold immigrants. One of the main private contractors providing health care in these facilities, which employed the doctor in the detention center where Samimi was held, is a massive company known as Wellpath, formerly Correct Care Solutions. This company was the focus of a recent CNN investigation that exposed how it has provided substandard care that has led to deaths and other serious outcomes that could have been avoided. Through records and interviews with current and former employees, CNN showed how the company has relied on inexperienced workers, offered minimal training and understaffed facilities -- and how its employees have failed to get inmates the emergency care they needed. Wellpath also works in some of the country's largest detention facilities, where ICE locks up thousands of immigrants -- many of whom have been apprehended for entering the country illegally. In addition to at least five death reviews conducted by ICE that specifically cite issues with the contractor's treatment of immigrant detainees, a recent class action lawsuit spotlighted the company's problematic record -- calling the decision to hire medical contractors such as Wellpath "disturbing." In the suit, more than a dozen current detainees at a variety of detention centers accuse ICE of violating the US Constitution by denying them adequate medical care and failing to provide stronger oversight. ICE did not comment on Wellpath, but in response to the lawsuit an official said that "all ICE detainees, regardless of location, can expect timely and appropriate responses to emergent medical requests, and timely medical care appropriate to the anticipated length of detention." Wellpath did not comment on the lawsuit or government findings about specific detainees and facilities, but said in a statement that it is confident its "team made the best possible care decisions with the information that was available to them." "Our compassionate team of doctors, nurses and health care providers work with our partners to deliver high quality health care in a clinical environment where security is the highest priority," the company said. Private contractor GEO Group operates a number of the immigrant detention centers where Wellpath provides medical care, and it employed the nurses and other medical staff at the facility where Samimi died. The company declined to comment. Opinion: Policymakers, provide adequate health care in prisons and detention centers One of the class-action plaintiffs, Martin Munoz, has Type 2 diabetes and has been detained at the Adelanto ICE Processing Center in California -- where Wellpath is the medical provider -- for more than two years. He alleges in the suit he was given more than triple his regular dose of insulin, resulting in an overdose. He says he wasn't seen by a doctor after the overdose, and that there have been multiple occasions where he hasn't been given his insulin or blood pressure medication. The lawsuit states he went without insulin for six days in February and 10 days this summer, without blood pressure medication for two weeks in the spring and without cholesterol medication for a week in July. Munoz, who has lived in the United States for more than 40 years, most recently worked as a handyman and has four children who are US citizens. Another current detainee at the Adelanto facility alleges he lost vision in one eye when a recommended surgery wasn't provided, while a man held at California's Mesa Verde immigrant detention center -- where Wellpath is also the medical provider -- claims in the lawsuit that he has received no treatment for a severe parasite in his brain. At least 27 people have died while being held in ICE custody since 2017, according to the Southern Poverty Law Center, one of several advocacy organizations involved with the suit. An ICE official said in a statement that "statistically, fatalities in ICE custody occur approximately 100 times less often (than) they do in both federal and state custody nationwide." Related: 19 years old, in jail and begging to go to the hospital Lawmakers who have previously criticized the conditions and medical care at ICE facilities have also expressed serious concerns to CNN about Wellpath. "The reports of widespread and sometimes deadly deficiencies in the medical care provided by Correct Care Solutions . . . are deeply troubling," said Sen. Kamala Harris, D-California, in a statement provided to CNN. "The United States government has a moral obligation to respect the dignity of every individual in its care, and that mission is severely compromised when government agencies transfer responsibility to private corporations incentivized to cut costs and turn profits." In December 2018, Harris and a group of other California lawmakers wrote a letter to ICE, condemning the agency for the "egregious violations" identified during an inspection of the Adelanto detention center. In its 2018 report, a Department of Homeland Security watchdog said it had found that detainees did not "have timely access to proper medical care" and that doctors were indicating they had seen patients they didn't actually visit. ICE said at the time that it takes the findings seriously and would be conducting a review to ensure standards are now being met. "We must ensure that migrants in our custody are treated with the care and respect they deserve," Rep. Scott Peters, D-California, told CNN. "Wellpath must be appropriately investigated, and should not be awarded any contracts until such an investigation has been completed." Colorado Rep. Jason Crow said he has similar concerns about the medical care at the immigrant detention center in his district, the Aurora facility where Samimi died. The ACLU of Colorado recently released a report condemning Samimi's medical care, saying that the doctor "made the medically unjustifiable decision to cut him off from his prescribed methadone." Samimi had even called a friend and told him he was "sicker than hell" and "dying here," according to the death review obtained by the organization and Rocky Mountain PBS. The ACLU is currently suing ICE in an attempt to get more records about what happened. "ICE arrested a man who had lived in the US for over four decades, and 15 days later he died in ICE's care," the ACLU said in a statement about Samimi's death. "The public deserves to know more." [GN] US BANK: Maryland Dist. Ct. Dismisses Suazo Suit with Prejudice --------------------------------------------------------------- In the case, REYNALDO SUAZO, et al., Plaintiffs, v. U.S. BANK TRUST, NA, et al., Defendants, Civil Action No. RDB-18-1451 (D. Md.), Judge Richard D. Bennett of the U.S. District Court for the District of Maryland (i) denied the Plaintiffs' Motion for Leave to File an Amended Complaint; and (ii) dismissed the case with prejudice. Named Plaintiffs Reynaldo and Eva Suazo, Ronald Lewis, and Catherine Martinson, on behalf of themselves and other similarly situated mortgage borrowers, allege that Defendants Caliber Home Loans, Inc. and U.S. Bank Trust, solely in its capacity as Trustee for LSF9 Master Participation Trust, have unjustly enriched themselves by engaging in unlawful debt collection practices. Caliber is alleged to have acted as the debt collector for LSF9, a special purpose vehicle holding title to high-risk mortgages. Through Caliber, LSF9 allegedly pursued outstanding mortgage obligations without the appropriate license under Maryland law. Additionally, the Plaintiffs allege that the Defendants unlawfully charged inspection fees as part of these collection efforts. The Plaintiffs commenced the putative class action lawsuit in the Circuit Court for Montgomery County, Maryland on April 12, 2018. On May 18, 2018, the Defendants removed the case to the Court, citing 28 U.S.C. Sections 1331, 1332, 1367, 1441, 1446, 1453 and the Class Action Fairness Act of 2005 ("CAFA"). In their Original Class Action Complaint, the Plaintiffs alleged that LSF9 had unlawfully extracted profits from mortgage borrowers without obtaining a license to pursue debt collection activities as required under the Maryland Collection Agency Licensing Act ("MCALA"). On June 6, 2018, the Court stayed the case pending the resolution of a consolidated appeal of four Maryland Circuit Court cases before the Court of Appeals of Maryland, Blackstone, et al. v. Sharma, et al.; Shanahan, et al. v. Marvastian, et al., Case No. 40, Sept. Term, 2017; O'Sullivan, et al. v. Altenburg, et al., Case No. 45, Sept. Term, 2017; Goldberg, et al. v. Neviaser, et al., Case No. 47, Sept. Term, 2017. On Aug. 2, 2018, the Maryland Court of Appeals issued its ruling in the consolidated appeal and held that a foreign statutory trust, such as LSF9, is not required to obtain a license as a collection agency under MCALA. Following the Blackstone decision, the Court lifted the Stay; dismissed with prejudice the Plaintiffs' declaratory judgment claim (Count I); dismissed without prejudice Plaintiffs' unjust enrichment claims (Counts II and III); clarified that the Plaintiffs' inspection fee claim under Md. Com. Law Section 12-121(a)(1)(ii) (Count IV) remained pending; permitted the Plaintiffs to file a Motion for Leave to File an Amended Complaint; and dismissed with prejudice all claims asserted against a third Defendant, Select Portfolio Servicing, Inc. On Nov. 9, 2018, the Plaintiffs filed a Motion for Leave to File an Amended Complaint. The proposed Amended Complaint makes sweeping changes to the Original Complaint. In light of the Blackstone decision, the Plaintiffs withdraw their allegation that the Defendants violated MCALA, and now asserts that Defendant LSF9 violated the Maryland Mortgage Lender Law ("MMLL") by operating as an unlicensed mortgage lender. The Amended Complaint also adds new factual allegations to support its inspection fee claim, and introduces a new claim pursuant to the Maryland Consumer Protection Act, and the Maryland Consumer Debt Collection Act. The Amended Complaint now seeks to certify two classes (as opposed to three classes sought in the Original Complaint) comprised of consumers who allegedly suffered harm because of Defendants' practices: the "Caliber Class" and the "Inspection Fee Class." In sum, the Amended Complaint asserts the following three counts: an unjust enrichment claim on behalf of the Named Plaintiffs and the Caliber Class against LSF9 and Caliber (Count I); a claim arising from alleged violations of the Maryland Consumer Debt Collection Act ("MCDCA") and the Maryland Consumer Protection Act ("MCPA"), brought by the Named Plaintiffs and the Caliber Class against all Defendants (Count II); and an inspection fee claim based on violations of Md. Code, on behalf of Ms. Martinson and the Inspection Class against LSF9 and Caliber (Count III). In a single filing, the Defendants oppose the Amendment and seeks dismissal of all of the Plaintiffs' claims with prejudice. Judge Bennett finds that LSF9 is not required to obtain a license under the MMLL because it is not a mortgage lender, as that term is defined by the statute. The Plaintiffs have failed to state a claim under Counts I and II because these Counts are premised on their faulty legal theory that LSF9 violated the MMLL by failing to acquire the proper licensing. In Count III of the proposed Amended Complaint, the Plaintiffs claim that Caliber and LSF9 unlawfully collected inspection fees. The Judge holds that the Court never addressed whether the inspection fee statute applied to foreign statutory trusts like LSF9 or assignees. No authority holds that LSF9 is subject to Maryland law's prohibition against inspection fees. Accordingly, the Plaintiffs have failed to state a claim against LSF9 under Count III. In addition, the proposed Second Amended Complaint merely alleges that Ms. Martinson was charged inspection fees before LSF9 acquired the loans, and that Caliber folded these outstanding fee amounts into the amounts it claimed were due and owing. The mere fact that these fees were charged and subsequently sought to be collected does not suggest that any violation of law has occurred. For this reason, the Plaintiffs have failed to state a claim under Count III of the proposed Second Amended Complaint. The Defendants petition the Court to both deny the Plaintiffs' Motion for Leave to File an Amended Complaint and dismiss the case with prejudice. The Judge finds that the Plaintiffs' proposed Amended Complaint is futile and may not be filed. Accordingly, the Original Complaint governs the case. The only remaining claim in the Original Complaint is the Plaintiffs' inspection fee claim (Count IV). This claim fails for the same reasons that the Plaintiffs' amended inspection fee claim (Count III of the proposed Amended Complaint) fails. No claims remain. Therefore, the case will be dismissed with prejudice. For the reasons set forth, Judge Bennett denied the Plaintiffs' Motion for Leave to File Amended Complaint. The Plaintiffs have failed to state a claim under both the Original and Amended Complaints. Accordingly, the Judge dismissed the case with prejudice. A separate Order follows. A full-text copy of the Court's Sept. 25, 2019 Memorandum Opinion is available at https://is.gd/YCslNj from Leagle.com. Reynaldo Suazo, Eva Suazo, Catherine Martinson & Ronald Lewis, Plaintiffs, represented by Phillip R. Robinson -- info@marylandconsumer.com -- Consumer Law Center LLC, Peter A. Holland -- pat@hollandlawfirm.com -- The Holland Law Firm PC & Scott C. Borison, Legg Law Firm LLP. U.S. Bank Trust, NA, Solely in its capacity as trustee for LSF9 Master Participation Trust & Caliber Home Loans, Inc., Defendants, represented by Ava E. Lias Booker -- alias-booker@mcguirewoods.com -- McGuireWoods LLP, Emily Michele Patterson -- epatterson@mcguirewoods.com -- McGuireWoods LLP & Brian E. Pumphrey -- bpumphrey@mcguirewoods.com -- McGuireWoods LLP, pro hac vice. VIVINT SOLAR: Crumrine Sues Over Share Price Drop ------------------------------------------------- JASON CRUMRINE, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. VIVINT SOLAR, INC., DAVID BYWATER, and DANA RUSSELL, Defendants, Case No. 1:19-cv-05777 (E.D. N.Y., Oct. 11, 2019) is a class action on behalf of persons and entities that purchased or otherwise acquired Vivint securities between March 5, 2019 and September 26, 2019, inclusive. Plaintiff pursues claims against the Defendants under the Securities Exchange Act of 1934. On September 27, 2019, Marcus Aurelius Value published a report alleging that "28 undisclosed lawsuits specifically allege Vivint forged customer contracts or otherwise engaged in fraud or deception." On this news, the Company's share price fell $0.14 per share, or over 2%, to close at $6.55 per share on September 27, 2019, on unusually high trading volume. The complaint alleges that Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company engaged in fraudulent practices, including forging customer contracts; (2) that, as a result, the Company's reported sales and megawatts installed were overstated; (3) that these practices were reasonably likely to lead to regulatory scrutiny: (4) that, as a result, the Company's earnings would be materially and adversely impacted; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, asserts the complaint. Plaintiff Jason Crumrine purchased Vivint securities during the Class Period. Vivint offers solar energy systems to residential customers through a direct-to-home sales model.[BN] The Plaintiff is represented by: Lesley F. Portnoy, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Ave., Suite 530 New York, NY 10169 Phone: (212) 682-5340 Facsimile: (212) 884-0988 Email: lportnoy@glancylaw.com - and - Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 Facsimile: (310) 201-9160 Email: info@glancylaw.com VOLKSWAGEN: Emissions Class Action Proceeding Commences in Germany ------------------------------------------------------------------ John Elkin, writing for Digital Trends, reports that a case has been brought by the Federation of German Consumer Organizations against Volkswagen in which 470,000 owners of the 2.0-liter TDI EA189 engine are seeking compensation due to the company's diesel emissions scandal. The scandal was uncovered in 2015 via a tip from European researchers to the Environmental Protection Agency and the California Air Resources Board. The scandal centered around Volkswagen's emission computer. which was programmed with different parameters depending on whether the vehicle was driving normally or under an emissions test cycle. In an emissions cycle, the emission system would react normally allowing Volkswagen to claim it had "Clean Diesel" engines to combat electric and hybrid competitors. In normal driving conditions, the emissions system would shut down, allowing for better power and mileage, while also creating emissions up to 40 times the legal limit. This suit is aimed at Volkswagen as a parent company--the scandal also included Audi, Seat, and Skoda brands. Volkswagen controlled 70 percent of the United States diesel passenger-car market at the time; current market share statistics are not available at this time, but its clear that the company's share has plunged. The Braunschweig state court declared the suit admissible as proceedings opened. It also suggested that plaintiffs will have a difficult time proving their case. Although the two sides could consider a settlement, Volkswagen has suggested that it would be hard to imagine that happening. The current proceedings in Braunschweig are only to determine whether the company acted illegally. If the court finds that is the case, then plaintiffs would have to proceed with separate actions to garner a settlement. In yet another case stemming from the scandal, prosecutors announced charges of market manipulation against Volkswagen CEO Herbert Diess and also board chairman Hans Dieter Potsch, as well as former CEO Martin Winterkorn, alleging they deliberately informed markets too late about the huge costs to the company that would result from the scandal. Volkswagen continues to reject these charges. Other proceedings against Volkswagen stem from the same issue with the 3.0 liter V-6 diesel models. Those cases are being handled separately from those concerning the four-cylinder engine. [GN] WAL-MART STORES: Hamilton Appeals C.D. Cal. Ruling to 9th Circuit ----------------------------------------------------------------- Plaintiffs Chelsea Hamilton and Alyssa Hernandez filed an appeal from a Court ruling entered in their lawsuit styled Chelsea Hamilton, et al. v. Wal-Mart Stores, Inc., et al., Case Nos. 5:17-cv-01415-AB-KK and 5:17-cv-01485-AB-KK, in the U.S. District Court for the Central District of California, Riverside. As previously reported in the Class Action Reporter, the lawsuit is brought on behalf of "all current and former non-exempt employees employed by Defendants in the State of California who worked in a Walmart Fulfillment Center at any time during the period from June 8, 2013 to the present." The appellate case is captioned as Chelsea Hamilton, et al. v. Wal-Mart Stores, Inc., et al., Case No. 19-56161, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 1, 2019; -- Transcript is due on December 2, 2019; -- Appellants Chelsea Hamilton and Alyssa Hernandez's opening brief is due on January 10, 2020; -- Appellees Does, Wal-Mart Associates, Inc. and Wal-Mart Stores, Inc.'s answering brief is due on February 10, 2020; -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants CHELSEA HAMILTON and ALYSSA HERNANDEZ, on behalf of themselves and all others similarly situated, are represented by: Brian J. Mankin, Esq. FERNANDEZ & LAUBY LLP 4590 Allstate Drive Riverside, CA 92501 Telephone: (951) 320-1444 Facsimile: (951) 320-1445 E-mail: bjm@fernandezlauby.com - and - Stephanie Emi Yasuda, Esq. Kenneth H. Yoon, Esq. LAW OFFICES OF KENNETH H. YOON One Wilshire Boulevard Los Angeles, CA 90017-3383 Telephone: (213) 612-0988 Facsimile: (213) 947-1211 E-mail: syasuda@yoonlaw.com kyoon@yoonlaw.com Defendants-Appellees WAL-MART STORES, INC., a corporation, and WAL-MART ASSOCIATES, INC., a corporation, are represented by: Robert James Herrington, Esq. Mark D. Kemple, Esq. Matthew Ryan Gershman, Esq. GREENBERG TRAURIG LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7700 E-mail: herringtonr@gtlaw.com kemplem@gtlaw.com herringtonr@gtlaw.com - and - Elizabeth Aislinn Dooley, Esq. GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Telephone: (415) 393-8342 E-mail: edooley@gibsondunn.com - and - Theane Evangelis, Esq. Bradley Joseph Hamburger, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7726 E-mail: tevangelis@gibsondunn.com bhamburger@gibsondunn.com WHOLE FOODS: Pinkston Sues Over Almondmilk's Misleading Labels -------------------------------------------------------------- Omar Pinkston, individually and on behalf of all others similarly situated, Plaintiff v. Whole Foods Market Group, Inc., Defendant, Case No. 1:19-cv-09362 (S.D. N.Y., Oct. 9, 2019) seeks damages under that State's Consumer Protection Statutes from Defendant's misleading representations on their products' packaging. Over the past ten years, the number of dairy milk substitutes has proliferated to include "milks" (milk-like beverages) made from various agricultural commodities. Reasons for consuming non-dairy milks include avoidance of animal products due to health, environmental or ethical reasons, dietary goals or food allergies. Two of the most popular milk alternatives are made from soybeans and almonds. Whole Foods Market Group, Inc. manufactures, distributes, markets, labels and sells almondmilk beverages purporting to be characterized by vanilla under the 365 Organic brand. The Products are sold in sizes including 32 and 64 ounces in Vanilla and Unsweetened Vanilla and represented as vanilla on the labels, in point-of-sale marketing, store display ads, print circulars, promotions, websites, television and/or radio ads. The Products' front labels and/or advertising makes direct representations with respect to their primary recognizable and characterizing flavor, by the word "VANILLA" and/or vignette. According to the complaint, the front label representations of "Vanilla" are misleading because the Products (1) contain an insufficient amount of vanilla to independently characterize the Products and (2) the "natural flavor" does not simulate or resemble vanilla. A non-misleading front label description could be "Natural Vanilla Flavored Almondmilk" or "Vanilla Flavored Almondmilk". Had Plaintiff and class members known the truth about the Products, they would not have bought the Product or would have paid less for it, asserts the complaint. As a result of the false and misleading labeling, the Products are sold at premium prices, approximately no less than $5.99 per 64 OZ (across the Products), excluding tax--compared to other similar products represented in a non-misleading way, says the complaint. Plaintiff purchased one or more of the Products identified herein for personal use, consumption or application based on the above representations, for no less than the price indicated.[BN] The Plaintiffs are represented by: Spencer Sheehan, Esq. Sheehan & Associates, P.C. 505 Northern Blvd., Suite 311 Great Neck, NY 11021 Phone: (516) 303-0552 Facsimile: (516) 234-7800 Email: spencer@spencersheehan.com - and - Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Phone: (212) 643-0500 Facsimile: (212) 253-4272 Email: mreese@reesellp.com WYNN RESORTS: Schrader Sues over Sexual Abuse Cover-Up ------------------------------------------------------ BRENNA SCHRADER, an individual, on behalf of herself and all others similarly situated, the Plaintiff, vs. STEPHEN ALAN WYNN; an individual; MAURICE WOODEN, an individual, WYNN LAS VEGAS, LLC dba WYNN LAS VEGAS a Nevada Limited Liability; WYNN RESORTS, LTD, a Nevada Limited Liability Company; and DOES 1-20, inclusive, and ROE CORPORATIONS 1-20, inclusive, the Defendants, Case No. A-19-802598-C (Nev. Dist. Ct., Sept. 26, 2019), alleges that Mr. Wynn engaged in over a decade of sexual abuse, harassment and misconduct while serving as Chief Executive Officer of Wynn Resorts and Wynn Las Vegas. The Defendants collectively engaged in over a decade of cover-up to prevent the discovery and remedy Defendant Wynn's sexual abuse, harassment and misconduct. Defendants' decades-long cover-up of sexual abuse allegations created a culture where employees were afraid to pursue complaints, believed that speaking up would be pointless and result in their inability to work anywhere in Nevada again. These efforts at secrecy made it exceedingly difficult, if not impossible, for gaming regulators, government officials, Defendants supervisors, managers and human resources personnel to detect sexual misconduct and to prevent said misconduct. These efforts at secrecy also created an environment sexually hostile to females that made them feel powerless, without a voice, and incapable of complaining to management, administrative bodies or seeking employment elsewhere in Nevada. The cover-up actions instilled an environment of fear and intimidation that prevented Plaintiff and others similarly situated from filing formal complaints.[BN] Attorneys for the Plaintiffs are: Richard Harris, Esq. Benjamin Cloward, Esq. Burke Huber, Esq. RICHARD HARRIS LAW FIRM 801 South Fourth St. Las Vegas, NV 89101 Telephone: (702) 444-4444 Facsimile: (702) 444-4455 E-mail:burke@richardharrislaw.com XPRESSCAPITALGROUP.COM: Schlesinger Case Transferred to M.D. Fla. ----------------------------------------------------------------- Judge Edward M. Chen of the U.S. District Court for the Northern District of California transferred the case titled BRIAN SCHLESINGER, Plaintiff, v. JOSHUA COLLINS, Defendant, Case No. 19-cv-03483-EMC (N.D. Cal.), to the Middle District of Florida where Mr. Collins resides. Mr. Schlesinger has filed suit against Mr. Collins, doing business as xpresscapitalgroup.com, asserting a violation of the federal Telephone Consumer Protection Act ("TCPA"), and similar California law. According to Mr. Schlesinger, Mr. Collins violated these statutes because he, or another person acting on his behalf, called Mr. Schlesinger using an artificial or prerecorded voice without Mr. Schlesinger's prior express consent. Mr. Schlesinger seeks relief not only for himself but also for a nationwide class (for the TCPA claim) and a California class (for the California claim). Currently pending before the Court is Mr. Collins's motion to dismiss or, in the alternative, transfer. According to Mr. Collins, the instant case against him must be dismissed for lack of personal jurisdiction. In support of his claim that there is no personal jurisdiction, Mr. Collins has submitted a declaration directed to his assertion that the Court lacks general jurisdiction over him. In response, Mr. Schlesinger does not make any claim that the Court has general jurisdiction over Mr. Collins. Rather, he argues only that there is specific jurisdiction. Judge Chen applies a purposeful direction analysis. Purposeful direction is evaluated under the three-part effects test traceable to the Supreme Court's decision in Calder v. Jones. Under this test, a defendant must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state. The Judge holds that there is specific jurisdiction because Mr. Collins, or someone acting on his behalf, made a phone call to California. The TCPA cases finding jurisdiction are consistent with Walden v. Fiore, because the defendant, as in the instants case, targeted California telephone numbers (and presumably residents of California), inflicting harm within the state. Mr. Collins protests still that, even if there is purposeful direction, specific jurisdiction obtains only where the exercise of such would be reasonable, and here it would be unreasonable and it would be more efficient to litigate in Florida where the bulk of the witnesses and evidence are likely to be located. Although Mr. Collins' position is not entirely lacking in merit, the Judge is not persuaded. Mr. Collins shoulders the burden of proving that the exercise of jurisdiction would be unreasonable, and, under Ninth Circuit law, must "present a compelling case" of unreasonableness. Given Mr. Collins knew he was making a call into California, Mr. Collins has not met that high standard. Accordingly, the Judge denies the motion to dismiss based on lack of personal jurisdiction. Mr. Collins also moves to dismiss based on improper venue. He argues that virtually all the actions taken in this matter occurred in Florida, where he resides. But even accepting that as true, that does not mean that a substantial part of the events did not also take place in California where the phone call was directed and where the harm was inflicted. The Judge therefore denies the motion to dismiss based on improper venue. Finally, Mr. Collins argues that, even if the Court does not dismiss the instant case based on lack of personal jurisdiction or improper venue, it should, at the very least, transfer the case to the Middle District of Florida pursuant to 28 U.S.C. Section 1404. The Judge concludes that a transfer to the Middle District of Florida is warranted. He finds that (i) the bulk of the documentary evidence will likely be in Florida, where Mr. Collins resides; and (ii) Mr. Collins resides in Florida, he runs his business out of Florida, and the critical issue in the case will be how he runs his business. For the foregoing reasons, Judge Chen denied Mr. Collins's motion to dismiss but granted his motion to transfer. The Clerk of the Court is instructed to transfer the case to the Middle District of Florida in accordance with the Opinion and close the file. A full-text copy of the Court's Sept. 25, 2019 Order is available at https://is.gd/tX2xzV from Leagle.com. Brian Schlesinger, individually and on behalf of all others similarly situated, Plaintiff, represented by Mark Louis Javitch -- mark@javitchlawoffice.com -- Javitch Law Office. Joshua Collins, an individual, Defendant, pro se. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***