/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/191029.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 29, 2019, Vol. 21, No. 216 Headlines 1ST CONSTITUTION: Faces Parshall Securities Class Action ABB INC: N.C. District Court Dismisses Kimbriel PII Lawsuit ACTIVISION BLIZZARD: ESI Stipulation in Hamano Securities Suit OK'd AK TUBE: Calderas Sues Over Failure to Pay Overtime Wages ALLERGAN INC: K.P. Sues over Defective BIOCELL Implant Products ALLERGAN INC: Rikmus Sues Over Faulty BIOCELL Textured Implants AMERICAN CONSUMER: Davidson Sues Over Illegal Termination AMERICAN EAGLE: Has Made Unsolicited Calls, Aparicio Suit Claims AMERICAN EXPRESS: Bid to Dismiss Anti-Steering Rules Suit Pending AMERICAN EXPRESS: Continues to Defend Marcus Corp. Suit AMTRUST FINANCIAL: Law Firm Investigates Securities Claims ANDA, INC.: Khan Suit Moved to Middle District of Florida ANTHEM BLUE: Bailey Appeals ERISA Suit Ruling to 9th Circuit ANTHEM INC: Nixon Sues Under ERISA for Denial of MISIJF Surgery APPLE INC: Judge Tosses iPhone Notch Design Class Action AUTO MAX: Fails to Pay Proper Wages, Dutra Suit Alleges BABCOCK & WILCOX: Price Class Suit Closed BANK OF HAWAII: Tentative Deal Reached in Overdraft Fees Suit BEACON SALES: Remand of Andrade Labor Suit to State Court Denied BITGRAIL: Fraud Class Action Filed Against Promoters in Calif. BRISTOL-MYERS SQUIBB: Judge Dismisses Securities Class Action CANNABIS & GLASS: Wash. District Court Dismisses Frank TCPA Suit CARAVAN FACILITIES: Howard Sues Over Unpaid Overtime Wages CARIBBEAN LAWN: Mosley Sues Over Unpaid Overtime Wages CENTENE CORP: Discovery Ongoing in Sanchez Class Suit CENTENE CORPORATION: Faces Perez Suit Alleging Violation of TCPA CENTRAL FLORIDA: Fredrick Sues Over Unpaid Overtime Wages CHANDLER MACLEOD: Coal Mine Casuals' Class Action Still on Track CHANDLER MACLEOD: Ruling to Impact Employment Class Actions CHARLOTTE-MECKLENBURG HOSPITAL: Shore Appeals Ruling to 4th Cir. CHART INDUSTRIES: Calif. Suit Over Cryo Tank Failure Ongoing CHART INDUSTRIES: Ontario Suit Over Cryo Storage Tank Ongoing CHEMOURS CO: Bernstein Litowitz Files Securities Class Action CHICAGO, IL: Bid for Summary Judgment in Barlett Labor Suit Granted COACHELLA VALLEY: Faces Class Action Over Illegal Water Charges CONDE NAST: Sued in Calif. Over Automatic Subscription Renewal CONSUELO PRODUCE: Iglesias Sues over OT Wages for Delivery Drivers CROSSMARK INC: Faces Salazar Wage and Hour Suit in California CSX CORP: Denial of Class Cert. in Fuel Surcharge Suit Affirmed DAIMLER TRUCKS: Davidson Suit Asserts FLSA and WARN Act Breach DEL TACO: Discovery Ongoing in Former Calif. Employee's Suit DOW CHEMICAL CO: Faces Suit over Mislabeled Herbicide Product DROPBOX, INC: IPO Documents Misleading, Deinnocentis Claims EARTHCARE MANAGEMENT: Gonzalez Seeks Unpaid Overtime Wages ELGIN MENTAL: Padilla Appeals Decision in Nadzhafaliyev Suit EPIC GAMES: Krohm Dismissed w/o Prejudice for Lack of Jurisdiction FEDEX GROUND: Hall Suit Removed to C.D. California FERRELLGAS PARTNERS: Settlement Reached in Direct Customers Suit FIBROCELL SCIENCE: Faces Franchi Suit Over Sale to Castle Creek GD TRANSPORT: McKimm Seeks Minimum Wages for Truck Drivers GENERAL MOTORS: Palopoli Case Now Under Judges Wilson and Wilner GIGAMON INC: Golub Appeals Decision in Carpenter Securities Suit GLADIATOR ENERGY: Munoz Seeks Overtime Pay for Pump Operators GLOBAL RESORTS: Underpays Housekeepers, Andreus Suit Alleges GLYNN COUNTY, GA: Settles Homestead Class Action for $17.5MM GOOGLE LLC: Azzano et al. Sue over Biometric Data Collection GREENLAND ACQUISITION: Stipulation of Dismissal in Wheby Approved HAIRO'S PLACE: Gonzalez Hits Unpaid Minimum Wages HASBRO INC: Lead Plaintiff Drops Suit over Toys 'R' Us Disclosures HEALTH PROVIDERS CHOICE: Underpays Health Care Staff, Askar Says HEALTH RECOVERY: Foster Sues over Data Breach HEARTHSIDE FOOD: Owens Seeks Overtime Pay for Machine Operators HONEYWELL INT'L: Bendix-Related Asbestos Class Suits Ongoing HUMANA INSURANCE: Hindman Sues Over Deceptive Business Practice J-J CAULKING & WATERPROOFING: Fails to Pay OT, Suit Claims JS ELITE PAINTING: Mejia Seeks Unpaid Overtime Wages KINDER MORGAN: Settlement in Wisconsin Class Suit Wins Court OK LA NUEVA SABROSURA: Underpays Delivery Persons, Aquino Alleges LANDS' END: Delta Airlines' Employees Sue Over Uniforms LEBANON COUNTY, PA: ACLU Files Suit Over Medical Marijuana Ban LEE ENTERPRISES: Affirmative Defenses in Goldsmith Partly Struck LIBERTY MUTUAL: District Court Narrows Johansen TCPA Claims LOPINA ENTERPRISES: Han Sues over Excessive Rental Fees LOUISIANA FARM: 3rd Cir. Upholds Certification of Gautreax Class MACADO'S INC: Servers Granted Conditional Class Certification MAPLEBEAR INC: Misclassifies Shoppers, O'Shea FLSA Suit Alleges MAPLEBEAR, INC: Underpays Personal Shoppers, Jordan Claims MARKETPLACE UNCTION: Delivery Drivers Seek Expense Reimbursements MARTIN SPORTS: Glynn ERISA Suit Seeks Contributions Under CBA MCDONALD'S CORP: Not An Employer in Haynes Suit, 9th Cir. Upholds MCDONALD'S: 9th Cir Affirms Summary Judgment Ruling in Workers Suit MELALUECA, INC: Faces Wainwright Suit in California State Court MERCEDES-BENZ: Ct. Narrows Claims in Defective Transmission Case MICHIGAN: ACLU Refiles Juvenile Lifers' Resentencing Class Action MICRON TECHNOLOGY: Continues to Defend Manning Class Suit MICRON TECHNOLOGY: NY Consolidated Class Suit Dismissed MIDLAND FUNDING: Can't Compel Arbitration in Hejamadi FDCPA Suit MINDBODY INC: Del. Chancery Court Consolidates 3 Stockholders Suits POLARIS INC: Consolidated Economic Loss-Related Class Suit Ongoing POLARIS INC: Guzman and Albright Class Action Ongoing POLARIS INC: Johannessohn et. al. Class Suit Ongoing PPG INDUSTRIES: Settlement in Mild Suit Wins Final Approval PROPAK LOGISTICS: Garcia Suit Removed to C.D. California ROCKWELL COLLINS: Dvorak Suit Removed to S.D. California ROUGE VALLEY: Dickinson Wright Attorney Discusses Court Ruling RUDEEN MANAGEMENT: App. Court Upheld Dismissal of Silver Suit RUST-OLEUM CORP: Concealed True Efficacy of Restore Products SMILEDIRECT: Faces Shareholder Class Action Over IPO SMILEDIRECTCLUB INC: Faces Ginsberg Suit Over IPO-Related Claims SMILEDIRECTCLUB: Sued for Practicing Unlicensed Dentistry SMILES INCLUSIVE: Holding Redlich to Lead IPO Class Action STATE FARM: Sued by Santoro for Charging Customers $3 Service Fee STEVENS TRANSPORT: Parr Suit Transferred to N.D. Texas TARGET CORP: Faces Monroe Employee Suit in California Super. Ct. TIGER BRANDS: Listeriosis Outbreak Class Action May Face Delay TSR INC: Paskowitz Class Suit Ongoing Despite Settlement Agreement UNION PACIFIC: Rail Shippers' Antitrust Suits Ongoing UNITED STATES: ACLU Sues Over Immigrant Family Separations UNITED STATES: TSA Sued for Refusing to Grant $85 Credit USAPD LLC: Fails to Pay Overtime Pay, Ahmed Suit Claims VALVOLINE INC: Allen Sues Over Race Discrimination Against Blacks VISALUS INC: Harris Securities Suit Settlement Gets Final Approval VISALUS INC: Settlement in Kerrigan RICO Suit Gets Final Approval VIVINT INC: Has Made Unsolicited Calls, Betit Suit Claims VSP RETAIL DEVELOPMENT: Vo Sues over Biometric Data Collection WEGMANS: Faces Class Action Over Vanilla Ice Cream Product Label WESTGATE RESORTS: Faces Bermudez Suit over Background Checks WYETH INC: Objection on Denial to Reopen Discovery Overruled Z57, INC: Lopez Seeks Overtime Wages [*] FeganScott Expands Class-Action Litigation Practice in D.C. ********* 1ST CONSTITUTION: Faces Parshall Securities Class Action -------------------------------------------------------- 1st Constitution Bancorp said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on October 15, 2019, that the company has been named as a defendant in a purported securities class action lawsuit entitled, Parshall v. Shore Community Bank, Docket No. C164-19. On August 30, 2019, 1st Constitution Bancorp ("1st Constitution") filed with the Securities and Exchange Commission a definitive proxy statement-prospectus with respect to the special meeting of shareholders of Shore Community Bank, a New Jersey-chartered bank ("Shore"), scheduled to be held on October 18, 2019. Shore shareholders will be asked at the special meeting to vote on a proposal to approve the Agreement and Plan of Merger by and among 1st Constitution, 1st Constitution Bank, a New Jersey-chartered bank and wholly owned subsidiary of 1st Constitution, and Shore, dated as of June 23, 2019 (the "merger agreement"), among other proposals. Pursuant to the merger agreement, Shore will merge with and into 1st Constitution Bank with 1st Constitution Bank as the surviving entity (the "merger"), at the effective time of the merger. A purported securities class action lawsuit has been filed against 1st Constitution, 1st Constitution Bank, Shore and each of the members of the Board of Directors of Shore in the Superior Court of New Jersey, Ocean County, Chancery Division. Captioned Parshall v. Shore Community Bank, Docket No. C164-19 (N.J. Super. Ct.), the complaint was filed on September 9, 2019 (the "Complaint"), purports to have been brought on behalf of all public shareholders of Shore, and seeks to enjoin the defendants from proceeding with the shareholder vote on the merger agreement at the special meeting or consummating the proposed merger unless and until 1st Constitution and Shore disclose allegedly omitted information, in addition to paying damages allegedly suffered by the plaintiffs as a result of the asserted omissions, as well as attorneys' fees and expenses. 1st Constitution and Shore believe that all allegations in the Complaint are without merit, and further believe that no supplemental disclosure is required under applicable laws; however, 1st Constitution and Shore wish to make certain supplemental disclosures related to the merger solely for the purpose of mooting the allegations contained in the Complaint and avoiding the expense and burden of litigation. Nothing in the supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable law of any of the supplemental disclosures. A copy of the supplemental disclosure is available at https://bit.ly/2P5zeYf. 1st Constitution Bancorp operates as a financial services holding company. The Bank provides a wide range of business and consumer financial services, such as checking and savings, personal and business loans, e-banking, trade finance, and e-banking. 1st Constitution Bancorp serves customers in the State of New Jersey. ABB INC: N.C. District Court Dismisses Kimbriel PII Lawsuit ----------------------------------------------------------- Judge Terrence W. Boyle of the U.S. District Court for the Eastern District of North Carolina, Western Division, dismissed the case RICKEY KIMBRIEL and PAULA KIMBRIEL, individually, and on behalf of all others similarly situated, Plaintiffs, v. ABB, INC., and BALDOR ELECTRIC COMPANY n/k/a ABB MOTORS AND MECHANICAL, INC., Defendants, Case No. 5:19-CV-215-BO (E.D. N.C.). Kimbriel has been a machine operator at Defendant Baldor since 2015. Baldor is a subsidiary of Defendant ABB, an industrial technology company incorporated in Delaware with its principal place of business in Cary, North Carolina. Rickey and his wife, Paula Kimbriel, have participated in ABB's health benefits plan since Rickey joined the company. When joining the Plan, Ricky and Paula provided sensitive personal data, including full legal names, addresses, birth dates, and social security numbers, which were stored in the Plan's database along with other information such as their plan member ID, and were accessible through certain ABB employee email accounts. ABB also had Rickey's checking account information for purposes of direct deposit. On Aug. 25, 2017, certain ABB employees' emails were hacked through a phishing scheme, resulting in the compromise of personally identifiable information ("PII") associated with the Plan. On Sept. 7, 2017, ABB sent out a formal notice informing affected employees of the hack, stating that Rickey and his dependent's sensitive PII associated with the plan, specifically names, addresses, plan member IDs, birth dates, and social security numbers, may have been exposed. ABB represented it would pay for identity monitoring services and encouraged affected employees to take additional cautionary steps, including placing a fraud alert with the Federal Trade Commission and a security freeze on their credit files. The PII of the Plan's 17,996 participants was compromised by the breach. In response to the security breach, Rickey Kimbriel stopped making 401(k) contributions, resulting in additional taxes that would have otherwise been deferred. On Feb. 13, 2019, a credit-monitoring service notified Paula Kimbriel of five unauthorized credit inquiries with banking institutions in four different states. Plaintiffs Rickey and Paula Kimbriel commenced the putative class action on behalf of all the nearly 18,000 victims of the ABB security breach. They asserted seven claims for relief. They allege that the Defendants' data security practices and disclosures to employees after the breach violated the North Carolina Unfair & Deceptive Trade Practices Act. Plaintiffs allege the Defendants breached a fiduciary duty by not properly safeguarding the information. They further allege additional claims under negligence, negligence per se, bailment, breach of contract, and breach of implied contract. The Defendants moved to dismiss all of the Plaintiffs' causes of action under both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. They argue the Plaintiffs lack standing under Article III to bring this action because they have not alleged injury-in-fact. They also argue that, even if the Plaintiffs do have standing to pursue their claims, they fail to state a claim on which relief can be granted. Judge Boyle holds that the Plaintiffs have failed to show an injury-in-fact. They have not alleged that they suffered a concrete injury, at least not one that was not a self-imposed harm in response to the speculative threat. Furthermore, while the Plaintiffs' speculation about future harms resulting from the data breach is understandable, even objectively reasonable, the complaint simply does not allege enough facts to conclude that these harms are certainly impending. Accordingly, the Plaintiffs' complaint must be dismissed for lack of Article III jurisdiction. With the consent of the Defendants, the Plaintiffs moved to exceed the page limits set by Local Civil Rule 7.2. The Judge has dismissed the case on standing grounds and is not in need of additional briefing on the merits of the Plaintiffs' causes of action. To the extent the additional pages would address the standing issue, he is not convinced it would benefit from additional briefing. Therefore, he denied the Plaintiffs' motion to exceed the page limit. For these reasons, Judge Boyle granted the Defendants' motion to dismiss for lack of subject-matter jurisdiction, and dismissed the Plaintiffs' complaint. The Judge also dismissed the Plaintiffs' consent motion. The Clerk is directed to close the case. A full-text copy of the Court's Oct. 1, 2019 Order is available at https://is.gd/7w2aAM from Leagle.com. Rickey Kimbriel, on behalf of himself and all others similarly situated & Paula Kimbriel, on behalf of herself and all others similarly situated, Plaintiffs, represented by Joe P. Leniski -- joeyl@bsjfirm.com -- Branstetter, Stranch and Jennings, PLLC & Narendra K. Ghosh -- nghosh@pathlaw.com -- Patterson Harkavy LLP. ABB, Inc. & Baldor Electric Company, unknown ABB Motors and Mechanical Inc., Defendants, represented by Curtis J. Shipley -- curtis.shipley@elliswinters.com -- Ellis & Winters LLP, Jeffrey M. Young, ABB Inc. Legal Department, Kelly Margolis Dagger -- kelly.dagger@elliswinters.com -- Ellis & Winters, LLP, Lenor Cathleen Marquis Segal, Ellis & Winters LLP & Scottie Forbes Lee -- scottie.lee@elliswinters.com -- Ellis & Winters LLP. ACTIVISION BLIZZARD: ESI Stipulation in Hamano Securities Suit OK'd ------------------------------------------------------------------- In the case, CHASE HAMANO, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. ACTIVISION BLIZZARD, INC., et al., Defendants, Case No. 2:19-cv-03788-SVW-AFMx (C.D. Cal.), Magistrate Judge Alexander F. MacKinnon of the U.S. District Court for the Central District of California has entered the Parties' Stipulated Order Regarding the Production of Electronically Stored Information (ESI). Consistent with the Parties' obligations under Rule 26(f) of the Federal Rules of Civil Procedure, the Parties will meet and confer regarding the scope of preservation, including custodians, data sources, date ranges, and categories of information that have been or should be preserved in connection with this litigation. They will disclose categories or sources of responsive information that they have reason to believe have not been preserved or should not be preserved and will explain with specificity the reasons to support such a belief. The Parties will produce ESI in single-page, black and white, TIFF Group IV, 300 DPI TIFF images with the exception of spreadsheet files, presentation files, and audio and video files, which will be produced in native format. If a document is produced in native format, a single-page Bates stamped image slip sheet stating the document has been produced in native format should be provided, with the exception of PowerPoint presentations. Each Party will remove exact duplicate documents based on MD5 or SHA-1 hash values, at the family level. Attachments should not be eliminated as duplicates for purposes of production, unless the parent e-mail and all attachments are also exact duplicates. All ESI will be produced with a delimited, database load file that contains the metadata fields listed in Table 1, attached to the Order. Embedded files in e-mail and e-docs will be produced as attachments to the document that contained the embedded file, with the parent/child relationship preserved. The Parties agree that if any part of an e-mail or its attachments is responsive, the entire e-mail and attachments will be produced, except any attachments that are withheld or redacted on the basis of the attorney-client privilege, attorney work product doctrine, or other applicable privilege. Compressed file types (e.g., .ZIP, .RAR, .CAB, .Z) should be decompressed so that the lowest level document or file is extracted. To the extent a response to discovery requires production of electronic information stored in a database, or stored in a propriety or non-standard source that may not be reasonably usable if produced in the formats described, the Parties will meet and confer regarding the format and methods of such a production. If any documents in a Party's production cannot be properly rendered or processed, the producing Party will provide single page slip sheets for such files bearing the filename and error code generated by the Party's processing tool. To maximize the security of information in transit, any media on which documents are produced will be encrypted. Finally, if documents that the Parties have agreed to produce in native format or portions of metadata fields need to be redacted, the Parties will meet and confer regarding how to implement redactions while ensuring that proper formatting and usability are maintained. A full-text copy of the Court's Oct. 1, 2019 Order is available at https://is.gd/t4vgA9 from Leagle.com. Chase Hamano, Individually and on behalf of all others similarly situated, Plaintiff, represented by Todd L. Kammerman -- tkammerman@aftlaw.com -- Abraham Fructer and Twersky LLP & Marvin A. Miller -- Mmiller@millerlawllc.com -- Miller Law LLC, pro hac vice. R N Croft Financial Group, Movant, represented by Carol V. Gilden -- cgilden@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, pro hac vice. U.A. Local No. 393 Defined Benefit Pension Plan and Defined Contribution Plans, Movant, represented by Tricia L. McCormick -- triciam@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Alexi Pfeffer-Gillett, Robbins Geller Rudman and Dowd LLP, Danielle S. Myers -- dmyers@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Matthew Isaac Alpert, Robbins Geller Rudman and Dowd LLP, Sara B. Polychron, Robbins Geller Rudman and Dowd LLP, Scott H. Saham, Robbins Geller Rudman and Dowd LLP, Tor Gronborg, Robbins Geller Rudman and Dowd LLP & Trig Randall Smith, Robbins Geller Rudman and Dowd LLP. Activision Blizzard Inc, Robert A Kotick & Collister Johnson, Defendants, represented by Erin Carey Trenda -- etrenda@cooley.com -- Cooley LLP, Heather Marie Speers, Cooley LLP, Koji F. Fukumura -- kfukumura@cooley.com -- Cooley LLP & Ryan E. Blair -- rblair@cooley.com -- Cooley LLP. Spencer Neumann, Defendant, represented by Alaina Ashley Bird, Irell and Manella LLP & Craig Varnen, Irell and Manella LLP. AK TUBE: Calderas Sues Over Failure to Pay Overtime Wages --------------------------------------------------------- Carlos Calderas, On behalf of himself and those similarly situated, Plaintiff, v. AK Tube, LLC, Defendant, Case No. 3:19-cv-02431 (N.D. Ohio, Oct. 17, 2019) is a Complaint against AK Tube, LLC for its failure to pay employees overtime wages seeking all available relief under the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. The complaint asserts that the Defendant did not properly calculate overtime based on its regular rate of pay, as defined by the FLSA, but instead calculated overtime based on its hourly rate of pay, resulting in unpaid overtime wages for the three years preceding the filing date of this Complaint and continuing until trial. When Defendant paid Plaintiff and other similarly situated employees both their Base Hourly Wage and Additional Remuneration, Defendant failed to properly calculate its employees' regular rate of pay during workweeks when they worked over 40 hours in one or more workweek(s) for the purposes of overtime pay because Defendant did not include the Additional Remuneration in its regular rate calculations for overtime wages. Consequently, Defendant failed to properly compensate Plaintiff and other similarly situated employees the overtime wages they were due in accordance with the minimum requirements of the FLSA, says the complaint. Plaintiff Calderas worked as a mill operator beginning in approximately 2011 until October 16, 2019. Defendant manufacturers carbon and stainless electric resistant welded tubular steel products and serves the trucking and automotive markets.[BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. Coffman Legal, LLC 1550 Old Henderson Road, Ste. 126 Columbus, OH 43220 Phone: 614-949-1181 Fax: 614-386-9964 Email: mcoffman@mcoffmanlegal.com - and - Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Phone: (614) 704-0546 Facsimile: (614) 573-9826 Email: dbryant@bryantlegalllc.com ALLERGAN INC: K.P. Sues over Defective BIOCELL Implant Products --------------------------------------------------------------- K. P. Individually and on behalf of All Others Similarly Situated v. ALLERGAN, INC., ALLERGAN USA, INC., and ALLERGAN PLC, Case No. 4:19-cv-03973 (S.D. Tex., Oct. 11, 2019), alleges that the Defendants violated the Texas Deceptive Trade Practices Act by engaging in false, misleading or deceptive acts or practices relating to the sale of their BIOCELL products that the Plaintiff relied on to her detriment. Specifically, the Defendants represented that the recalled BIOCELL products met particular standards or had characteristics, benefits or qualities which they do not have, the Plaintiff alleges. In addition, the Defendants failed to disclose information concerning the recalled BIOCEL products, which was known at the time the Plaintiff purchased the product. In 2011, the U.S. Food and Drug Administration identified a link between textured breast implants and a rare form of lymphoma called "breast-implant-associated anaplastic large-cell lymphoma" ("BIA-ALCL"). In December 2018 BIOCELL textured implants were banned completely from the European market. Notwithstanding this information, the Defendants continued to sell BIOCELL products to women in Texas, according to the complaint. It was not until July 24, 2019, following a request from the FDA, that Allergan issued a recall of BlOCELL textured breast implants and tissue expanders in the U.S.A. The FDA made its request after receiving reports suggesting that BIOCELL implants and expanders were associated with hundreds of cases of BIA-ALCL around the world. The FDA reported the risk of BIA-ALCL is six times higher with Allergan's textured implants than textured implants from other manufacturers. As of July 6, 2019, Medical Device Reports submitted to the FDA showed that 481 of the 573 unique cases of BIA-ALCL reported worldwide were associated with Allergan's BIOCELL implants. In most cases, BIA-ALCL is found in the scar tissue and fluid near the implant, but it can also spread through the body. BIA-ALCL can lead to death, especially if not treated promptly. BIA-ALCL can be treated with surgery to remove the implant and surrounding scar tissue and may also require treatment with chemotherapy and radiation treatment. Testing for BIA-ALCL is invasive and symptoms may occur well after the surgical incision has healed, often years after receiving the implant. BIA-ALCL typically occurs in the scar tissue surrounding the implant. Left untreated, it will spread to surrounding tissue such as lymph nodes near the breast and may be fatal. BIA-ALCL is typically treated with surgery meant to remove the implant and surrounding scar tissue although some patients will require chemotherapy, radiation therapy, or both. The products subject to recall ("recalled BIOCELL products") include Allergan Natrelle Saline-Filled Breast Implants, Allergan Natrelle Silicone-Filled Textured Breast Implants, Natrelle 410 Highly Cohesive Anatomically Shaped Silicone-Filled Breast Implants, and Allergan tissue expanders for the breast implants that have BIOCELL texturing. Allergan has made tens of millions of dollars as a result of aggressively marketing a product which it knew or should have known was a serious health hazard to women. As a result of Allergan's conduct Plaintiffs will be forced to expend substantial sums for surgery to remove the implants and for medical monitoring in addition to other medical and related expenses. Breast implants are medical devices that are implanted under the breast tissue or chest muscle to supplement breast tissue or replace breast tissue that has been removed as a result of cancer or trauma. Tissue expanders are another medical device typically used in breast reconstruction and are a type of inflatable breast implant whose purpose is to stretch the skin and muscle to make room for the more permanent implant in the future. The Plaintiff contends she would not have had the Natrelle devices implanted had she known prior to the procedure that BIOCELL textured breast implants would subject her to a significantly greater risk of developing BIA-ALCL, as well as the costs associated with removal, medical monitoring, and other fees and procedures to detect and treat BIA-ALCL. She experienced severe emotional distress when she learned that she is now exposed to a significantly greater risk of developing BIA-ALC, the lawsuit says. Allergan manufactures and sells saline and silicone filled breast implants and tissue expanders under the trade name BIOCEL. Allergan's BIOCELL line of implants are a type of textured breast implants and tissue expanders that were introduced in the United States beginning in 2006.[BN] The Plaintiff is represented by: W. Shawn Staples, Esq. Michael J. Stanley, Esq. STANLEY LAW, P.C. 230 Westcott St., Suite 120 Houston, TX 77007 Telephone: 713 980-4381 E-mail: wsstaples@stanleylaw.com mstanley@stanleylaw.com ALLERGAN INC: Rikmus Sues Over Faulty BIOCELL Textured Implants --------------------------------------------------------------- DANIELLE RIMKUS, Individually and on behalf of all others similarly situated, the Plaintiffs v. ALLERGAN, INC. f/k/a INAMED CORPORATION, ALLERGAN USA, INC., and ALLERGAN plc, the Defendants, Case No. 4:19-cv-02766-RLW (E.D. Mo., Oct. 11, 2019), alleges that Allergan failed to warn the Plaintiff and her physician about the significantly increased risk of developing BIA-ALCL in connection with the BIOCELL textured implants. Allergan manufactured, distributed, and/or sold the BIOCELL textured breast implants that the Plaintiff purchased and had implanted. The BIOCELL textured breast implants were defective and unreasonably dangerous at the time they left Allergan's possession because they did not contain adequate warnings, including the lack of warning concerning the significantly increased risk of developing BIA-ALCL associated with the BIOCELL textured implants, according to the complaint. Ms. Rikmus contends that Allergan knew, or should have known in the exercise of ordinary care, that the BIOCELL textured breast implants were unreasonably dangerous at the time the implants left Allergan's control and were received by her, and that their unreasonably dangerous nature was not generally known to the consumer. She notes that Allergan acquired this knowledge from the performance of extensive studies, reviewing other scientific studies, complaints received from consumers, as well as other sources. Further, the BIOCELL textured breast implants' health risks were known in the scientific and medical community at the time of their manufacture, distribution, or sale. Allergan, in violation of federal law, attempted to conceal this information by not making adverse event reports to the FDA, she alleges. As a result of Allergan's failure to adequately warn of the risks associated with BIOCELL textured implants, the Plaintiff asserts she was harmed. The lack of sufficient warning was a substantial factor in causing the Plaintiff's harm. Had the Plaintiff and her physician been provided the appropriate warnings about the increased risk of BIA-ALCL associated with BIOCELL textured breast implants, she and her physician would have been able to make an informed decision about using the product or selecting an alternative product, the lawsuit says. Breast implants were first introduced in the 1960s. In 1976, Congress passed the Medical Device Amendment to the Federal Food, Drug and Cosmetic Act which allowed the FDA to review and approve new medical devices, including breast implants. BIA-ALCL is a serious cancer and can be fatal, especially if not diagnosed early or promptly treated. BIA-ALCL can be treated by surgically removing the implant and surrounding scar tissue. Some patients may also require chemotherapy and radiation treatments. The symptoms of BIA-ALCL may occur years after the implant placement. The diagnostic testing recommended to determine if BIA-ALCL is present is invasive.[BN] The Plaintiff is represented by: Matthew L. Dameron, Esq. Michael A. Williams, Esq. Eric L. Dirks, Esq. WILLIAMS DIRKS DAMERON LLC Courtney Stout, MO Bar No. 70375 1100 Main Street, Suite 2600 Kansas City, MI 64105 Telephone: (816) 945-7110 Facsimile: (816) 945-7118 E-mail: matt@williamsdirks.com mwilliams@williamsdirks.com dirks@williamsdirks.com cstout@williamsdirks.com - and - Mandy M. Shell, Esq. SHELL LAW & TAX 1656 Washington, Suite 140 Kansas City, MI 64108 Telephone: (816) 399-5030 Facsimile: (816) 205-8420 E-mail: mshell@shell-law.com AMERICAN CONSUMER: Davidson Sues Over Illegal Termination --------------------------------------------------------- STEVEN DAVIDSON, on behalf of himself and others similarly situated, Plaintiff, v. AMERICAN CONSUMER HOME SHOWS LLC and CRAIG GITLITZ, Defendants, Case No. 2:19-cv-05875 (E.D. N.Y., Oct. 17, 2019) is an action, on behalf of himself and other current and former employees similarly situated, to remedy violations of the Fair Labor Standards Act, the New York State Labor Law, the Age Discrimination in Employment Act, Americans with Disabilities Act, New York State Human Rights Law, New York Executive Law, Family and Medical Leave Act, and New York's Paid Family Leave Law. The complaint relates that during the entirety of his employment, Plaintiff was misclassified in that he was only paid commissions for the work he performed for Defendants. Based on Plaintiff's advanced age and after his wife was diagnosed with cancer, Defendants terminated Plaintiff's employment. This termination occurred within months of Plaintiff, through counsel, filing a complaint of discrimination and misclassification against Defendant. At no time prior to or after learning of his wife's diagnosis did Defendants ever advise Plaintiff of his right to take leave to care for his spouse. The Defendants maintained a common policy and practice of, inter alia, not paying employees for all hours worked during their employment or otherwise notifying them of their rights under the law, says the complaint. Plaintiff worked as a trade show sales representative for Defendants from 2004 until his unlawful termination on February 14, 2019. ACS's business consists of putting on trade shows, where it rents out space in a building and then sells booth spaces and sponsorships to exhibitors. These shows include home and garden shows, bridal shows, flower shows and others.[BN] The Plaintiff is represented by: Yale Pollack, Esq. LAW OFFICES OF YALE POLLACK, P.C. 66 Split Rock Road Syosset, NY 11791 Phone: (516) 634-6340 Fax: (516) 634-6341 Email: ypollack@yalepollacklaw.com AMERICAN EAGLE: Has Made Unsolicited Calls, Aparicio Suit Claims ---------------------------------------------------------------- TALISHA APARICIO, individually and on behalf of all others similarly situated, Plaintiff v. AMERICAN EAGLE OUTFITTERS, INC., Defendant, Case No. 0:19-cv-62390-RKA (S.D. Fla., Sept. 25, 2019) seeks to stop the Defendants' practice of making unsolicited calls. American Eagle Outfitters, Inc. retails men's and women's casual apparel, footwear, outerwear, and accessories. The Company's products include jeans, khakis, t-shirts, and other similar apparel. [BN] The Plaintiff is represented by: Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, FL 33301 Telephone: (954) 533-4092 E-mail: MEisenband@Eisenbandlaw.com - and - Ignacio Hiraldo, Esq. IJH LAW 1200 Brickell Ave. Suite 1950 Miami, FL 33131 E-mail: IJHiraldo@IJHLaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 AMERICAN EXPRESS: Bid to Dismiss Anti-Steering Rules Suit Pending ----------------------------------------------------------------- American Express Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 21, 2019, for the quarterly period ended September 30, 2019, that the company's motion to dismiss and compel arbitration of the class action in the class action suit entitled, In re: American Express Anti-Steering Rules Antitrust Litigation (II) is pending. Individual merchant cases and a putative merchant class action, which were consolidated in 2011 and collectively captioned In re: American Express Anti-Steering Rules Antitrust Litigation (II) in the Eastern District of New York, alleged that provisions in our merchant agreements prohibiting merchants from differentially surcharging the company's cards or steering a customer to use another network's card or another type of general-purpose card ("anti-steering" and "non-discrimination" contractual provisions) violate U.S. antitrust laws. Following the Supreme Court decision in Ohio v. American Express Co. in favor of American Express, plaintiffs in both the individual merchant cases and the putative merchant class action filed amended complaints. On April 12, 2019, the individual merchant cases were dismissed with prejudice pursuant to a joint stipulation between the parties. The company's motion to dismiss and compel arbitration of the class action is pending. American Express Company, together with its subsidiaries, provides charge and credit payment card products, and travel-related services to consumers and businesses worldwide. It operates through three segments: Global Consumer Services Group, Global Commercial Services, and Global Merchant and Network Services. American Express Company was founded in 1850 and is headquartered in New York, New York. AMERICAN EXPRESS: Continues to Defend Marcus Corp. Suit ------------------------------------------------------- American Express Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 21, 2019, for the quarterly period ended September 30, 2019, that the company continues to defend itself against an antitrust class action lawsuit entitled, The Marcus Corporation v. American Express Co., et al. In July 2004, the company was named as a defendant in another putative class action filed in the Southern District of New York and subsequently transferred to the Eastern District of New York, captioned The Marcus Corporation v. American Express Co., et al., in which the plaintiffs allege an unlawful antitrust tying arrangement between certain of our charge cards and credit cards in violation of various state and federal laws. The plaintiffs in this action seek injunctive relief and an unspecified amount of damages. No further updates were provided in the Company's SEC report. American Express Company, together with its subsidiaries, provides charge and credit payment card products, and travel-related services to consumers and businesses worldwide. It operates through three segments: Global Consumer Services Group, Global Commercial Services, and Global Merchant and Network Services. American Express Company was founded in 1850 and is headquartered in New York, New York. AMTRUST FINANCIAL: Law Firm Investigates Securities Claims ---------------------------------------------------------- Franklin D. Azar & Associates, P.C. (the "Azar Law Firm") on Oct. 8 disclosed that it is investigating a lawsuit filed against AmTrust Financial Services, Inc. ("AmTrust") on behalf of AmTrust shareholders (OTC PINK:AFSIA, AFSIB, AFSIC, AFSIM, AFSIN, AFSIP) alleging that AmTrust and certain of its officers violated the federal securities laws. AmTrust investors who have purchased at least 30,000 shares of AmTrust Preferred Stock are encouraged to contact the Azar Law Firm at securities@fdazar.com or call 844-241-9475 to learn more about the case. Interested AmTrust shareholders have until October 29, 2019 to apply to be lead plaintiff. The class has not yet been certified. Until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. The lawsuit alleges that in connection with AmTrust's merger announced in 2018, AmTrust informed investors that, unlike AmTrust's common shares, which were being acquired in the Buyout, the six series of publicly traded AmTrust preferred stock were not being purchased in the Merger. The lawsuit alleges that AmTrust misleadingly stated the preferred shares would continue to be listed on the NYSE and would remain listed and outstanding following the Merger. Contrary to these numerous public representations, less than two months following the close of the Merger, on January 18, 2019, AmTrust announced it would delist all six series of AmTrust preferred stock from the NYSE. AmTrust attempted to legitimize the delisting based on the contrived excuse "that the administrative costs and burdens associated with maintaining the listings on the NYSE and the registration exceed the benefits" and that there was a new "ownership structure" due to the Merger. Since these costs, burdens, and new ownership structure were known or had to have been known during the entire time defendants were publicly proclaiming that the preferred stock would remain listed, the only logical conclusion is that defendants never intended or were deliberately reckless when making their public statements that the preferred stock would remain listed on the NYSE. The prices of the preferred stocks dropped by almost 40% the very next trading day, with the preferred stocks losing hundreds of millions of dollars in value. The class action lawsuit seeks to recover on behalf of purchasers of the preferred stock between January 22, 2018 and January 18, 2019. If you have purchased at least 30,000 shares of AmTrust Preferred Stock, you may have a claim for damages, and you may be eligible to seek a position in the case as a lead plaintiff. Please contact the Azar Law Firm's shareholder rights team at securities@fdazar.com or call 844-241-9475. The Azar Law Firm's securities attorneys are highly experienced in representing individual shareholders and institutional investors in recovering damages caused by violations of the securities laws. Its attorneys have established track records litigating securities cases in courts throughout the country and recovering losses on behalf of shareholders. The Azar Law Firm is working with Thornton Law Firm LLP in investigating this action. This may be considered Attorney Advertising in some jurisdictions. Prior results do not guarantee or predict a similar outcome with respect to any future matter. [GN] ANDA, INC.: Khan Suit Moved to Middle District of Florida --------------------------------------------------------- The class action lawsuit styled as Farhan F. Khan, individually and on behalf of all others similarly situated, the Plaintiff, vs. Anda, Inc., the Defendant, Case No. 19-CA-009468, was removed from the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, to the U.S. District Court for the Middle District of Florida (Tampa) on Oct. 7, 2019. The Middle District of Florida Court Clerk assigned Case No. 8:19-cv-02479-MSS-JSS to the proceeding. The suit asserts Health Care/Pharmaceutical Personal Injury Product Liability related issues. The case is assigned to the Hon. Judge Mary S. Scriven. Anda Inc. distributes prescription drugs, proprietary drugs, and toiletries. The company offers vaccines, injectables, medical and surgical supplies, vitamins, and pet medications. Anda serves independent and chain pharmacies, nursing homes, mail order pharmacies, hospitals, clinics, and physician offices in the United States.[BN] The Plaintiff is represented by: John Allen Yanchunis, Sr., Esq. MORGAN & MORGAN, PA One Tampa City Center Ste 700 201 N Franklin Street Tampa, FL 33602-5157 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@forthepeople.com Attorneys for the Defendant are: Jessica Elizabeth Joseph, Esq. FOLEY & LARDNER, LLP 111 Huntington Ave, Suite 2500 Boston, MA 02199 Telephone: (407) 244-3276 Facsimile: (407) 648-1743 E-mail: jjoseph@foley.com ANTHEM BLUE: Bailey Appeals ERISA Suit Ruling to 9th Circuit ------------------------------------------------------------ Plaintiff Aurora Bailey filed an appeal from a Court ruling issued in her lawsuit styled Aurora Bailey, et al. v. Anthem Blue Cross Life and Health Insurance Company, DBA Anthem Blue Cross, et al., Case No. 4:16-cv-04439-JSW, in the U.S. District Court for the Northern District of California, Oakland. As previously reported in the Class Action Reporter, the lawsuit alleges that the Defendants breached the terms of their benefit plans and the Employee Retirement Income Security Act by failing to pay plan benefits to the Plaintiff and the proposed class members. Ms. Bailey is a 22-year-old woman with anorexia nervosa and major depressive disorder. She brought the Case under the Employee Retirement Income Security Act of 1974, as it involves claims for employee benefits under employee benefit health plans regulated and governed under ERISA. The appellate case is captioned as Aurora Bailey, et al. v. Anthem Blue Cross Life and Health Insurance Company, DBA Anthem Blue Cross, et al., Case No. 19-16978, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Aurora Bailey's opening brief is due on December 6, 2019; -- Appellees Anthem Blue Cross Life and Health Insurance Company and Blue Cross of California's answering brief is due on January 6, 2020; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant AURORA BAILEY, on behalf of herself and all others similarly situated, is represented by: Lisa S. Kantor, Esq. KANTOR & KANTOR, LLP 19839 Nordhoff Street Northridge, CA 91324 Telephone: (818) 886-2525 Facsimile: (818) 350-6272 E-mail: lkantor@kantorlaw.net - and - Kathryn M. Trepinski, Esq. LAW OFFICES OF KATHRYN M. TREPINSKI, A LAW CORPORATION 8840 Wilshire Boulevard Beverly Hills, CA 90211 Telephone: (310) 201-0022 E-mail: ktrepinski@trepinskilaw.com Defendants-Appellees ANTHEM BLUE CROSS LIFE AND HEALTH INSURANCE COMPANY, DBA Anthem Blue Cross, and BLUE CROSS OF CALIFORNIA, DBA Anthem Blue Cross, are represented by: Molly Moriarty Lane, Esq. MORGAN LEWIS & BOCKIUS LLP One Market Street Spear Street Tower San Francisco, CA 94105 Telephone: (415) 442-1000 Facsimile: (415) 442-1001 E-mail: mlane@morganlewis.com - and - Lisa R. Weddle, Esq. MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue, 22nd Floor Los Angeles, CA 90071-3132 Telephone: (213) 612-7334 E-mail: lisa.weddle@morganlewis.com ANTHEM INC: Nixon Sues Under ERISA for Denial of MISIJF Surgery --------------------------------------------------------------- Robert Nixon, on behalf of himself and all others similarly situated, Plaintiff v. ANTHEM INC.; and ANTHEM UM SERVICES, INC., Defendants, Case No. 3:19-cv-00076-GFVT (Ky. Cir., Franklin Cty., Oct. 23, 2019), seeks to redress the Defendants' violation of the Employee Retirement Income Security Act of 1974 resulting from their practice of denying coverage for minimally invasive sacroiliac joint fusion surgery as "investigational" and "not medically necessary." Through its wholly-owned subsidiaries and affiliated companies, including Defendant Anthem UM Services Inc., Anthem acts as a full-service company in the business of insuring and administering health insurance and health benefits, many of which are employer-sponsored and governed by ERISA. This case involves the Defendants' uniform practice of denying coverage for medical procedure known commonly as MISIJF on basis that it is "investigational and not medically necessary." The Defendants have developed and utilize a medical coverage policy called "Sacroiliac Joint Fusion (SURG.00127)," which uniformly, and contrary to medical standards, classifies MISIJF procedures as "investigational and not medically necessary." Through uniform development and use of the medical policy Sacroiliac Joint Fusion, the Defendants have erroneously, and contrary to prevailing medical standards, denied all request for MISIJF, says the complaint. Plaintiff Robert Nixon was a participant in and covered by the Catholic Health Initiatives Medical Plan, an employee welfare benefit plan under which the Plaintiff is entitled to health care benefits, a self-funded plan administered by the Defendants. Anthem, Inc. is one of the largest health benefits companies in the United States in terms of medical memberships, serving approximately 40 million members through its affiliated companies as of December 31, 2018.[BN] The Plaintiff is represented by: M. Austin Mehr, Esq. Philip G. Fairbanks, Esq. Erik D. Peterson, Esq. MEHR, FAIRBANKS & PETERSON TRIAL LAWYERS, PLLC 201 West Short Street, Suite 800 Lexington, KY 40507 Phone: 859-225-3731 Facsimile: 859-225-3830 Email: pgf@austinmehr.com APPLE INC: Judge Tosses iPhone Notch Design Class Action -------------------------------------------------------- Mark Wilson, writing for Fast Company, reports that a California judge responded to an Apple class action suit about Apple iPhone notch with a succinctness that shows sometimes the courts really do get it right. In a class action suit filed last December, plaintiffs Christian Sponchiado and Courtney Davis argued that Apple had fraudulently misrepresented the screen size and pixel count of products like the iPhone X, which, instead of being perfect rectangles, feature rounded corners and the controversial "notch" on top, a cut-out which houses a camera and depth sensor. Such would mean that a "5.8-inch" screen isn't viewable as a true, 5.8-inch screen. (Perhaps it would be 5.798 by some measurements. I'm not getting out a ruler.) Apple's own lawyers say that Apple does disclose the few pixels lost to the curved design across its marketing. Indeed, on Apple's own site, right now, the company offers a footnote on mentions of its Super Retina display found on the iPhone X. "The display has rounded corners that follow a beautiful curved design, and these corners are within a standard rectangle. When measured as a standard rectangular shape, the screen is 5.85 inches . . . Actual viewable area is less." Oakland, California, U.S. District Judge Haywood S. Gilliam Jr. appeared to side with Apple (though the argument is under review), offering an absolutely brutal burn of the alleged display duplicity: "There doesn't really seem to be anyone in America who seems to be concerned about it," said Gilliam, according to Law360. This take is absolute perfection. Other class action lawsuits against the Cupertino company make sense: Like when Apple was found to be actively slowing down consumers' iPhones a year into the product's life, for instance. How many of us just didn't get why, one day, our phone suddenly stunk? How many of us felt forced to upgrade in the next cycle as a result? How many of us went through this painfully expensive ritual multiple times? Dozens of lawsuits followed, and California judges didn't immediately give such suits the boot--and most appear to be ongoing. But very few people on Earth bought an iPhone X only to exclaim, "Wait, these corners are round now? I can't see a damn thing!" Of all of Apple's many sins, it's worth giving Cupertino's rounded corners a pass. [GN] AUTO MAX: Fails to Pay Proper Wages, Dutra Suit Alleges ------------------------------------------------------- ALBERTO DUTRA, individually and on behalf of all others similarly situated, Plaintiff v. AUTO MAX, INC.; AUTOMAX PREOWNED, INC.; MARIA WILNER; and GAIL WILNER, Defendants, Case No. 19-2804 (Mass. Super., Middlesex Cty., Sept. 25, 2019) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Dutra was employed by the Defendants as salesperson. Auto Max, Inc. operates a car dealership located in Framingham, Massachusetts. [BN] The Plaintiff is represented by: Josh Gardner, Esq. Nicholas J. Rosenberg, Esq. GARDNER & ROSENBERG P.C. One Street, Fourth Floor Boston, MA 02109 Telephone: (617) 390-7570 E-mail: josh@gardnerrosenberg.com BABCOCK & WILCOX: Price Class Suit Closed ----------------------------------------- Babcock & Wilcox Enterprises, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission dated October 21, 2019, that the Court in Price v. Avril, et al., C.A. No. 2019-0393-JRS, has entered an order closing the case. On May 28, 2019, a putative class action complaint was filed against the Board of Directors (the "Board") of Babcock & Wilcox Enterprises, Inc. (the "Company") in the Court of Chancery of the State of Delaware. The complaint is captioned Price v. Avril, et al., C.A. No. 2019-0393-JRS (Del. Ch.). The complaint asserted, among other things, that members of the Board breached their fiduciary duties by failing to disclose all material information necessary for a fully-informed vote on certain of the proposals presented for consideration at the 2019 annual meeting of the Company's stockholders. The plaintiff also filed a motion to preliminarily enjoin the stockholder vote on the proposals unless and until all material information regarding the proposals was disclosed to the Company's stockholders. The plaintiff withdrew her motion to preliminarily enjoin the stockholder vote on the proposals following the Company's issuance of a supplemental proxy statement on June 6, 2019. The Court granted the plaintiff's request to voluntarily dismiss this action with prejudice as to the named plaintiff only on July 31, 2019, and retained jurisdiction solely for the purpose of adjudicating an anticipated application for attorneys' fees and expenses incurred by plaintiff's counsel. Thereafter, following a period of negotiations, the Company agreed to pay $400,000 in attorneys' fees and expenses to plaintiff's counsel in connection with the mooted disclosure claims asserted in the action without admitting any fault or wrongdoing. On October 16, 2019, the Court entered an order closing the case, subject to the Company filing an affidavit with the Court confirming compliance with the Court's order. In entering the order, the Court was not asked to review, and did not pass judgment on, the payment of the attorneys' fees and expenses or their reasonableness. Babcock & Wilcox Enterprises, Inc., incorporated on January 13, 2015, is a technology-based provider of fossil and renewable power generation and environmental equipment that includes a suite of boiler products and environmental systems. The Company operates in three segments: Power, Renewable and Industrial. The company is based in Barberton, Ohio. BANK OF HAWAII: Tentative Deal Reached in Overdraft Fees Suit ------------------------------------------------------------- Bank of Hawaii Corporation said in its Form 8-K filing with the U.S. Securities and Exchange Commission dated October 21, 2019, that the company has reached a tentative settlement with the named plaintiff to resolve the putative class action lawsuit pending in the United States District Court for the District of Hawaii, Case No. CV 16-005131:14-cv-10318 JMS-WRP. On October 16, 2019, Bank of Hawaii Corporation reached a tentative settlement with the named plaintiff to settle the putative class action lawsuit pending in the United States District Court for the District of Hawaii, Case No. CV 16-005131:14-cv-10318 JMS-WRP which was commenced in September 2016, alleging claims that Bank of Hawaii improperly assessed overdraft fees on certain account transactions. The tentative settlement, subject to documentation and court approvals, provides for forgiveness of certain related and previously charged off overdraft fees, and a payment by the Company of $8.0 million into a class settlement fund the proceeds of which will be used to refund class members, and to pay attorneys' fees, administrative and other costs, in exchange for a complete release of all claims asserted against the Company. Bank of Hawaii said, "The Company previously established a $2.0 million reserve relating to this claim." Bank of Hawaii Corporation is a Delaware corporation and a bank holding company headquartered in Honolulu, Hawaii. BEACON SALES: Remand of Andrade Labor Suit to State Court Denied ---------------------------------------------------------------- Judge Cormac J. Cerney of the U.S. District Court for the Central District of California denied the Plaintiff's motion to remand the case captioned MANUEL ANDRADE, individually and on behalf of all others similarly situated, Plaintiffs, v. BEACON SALES ACQUISITION, INC., BEACON ROOFING SUPPLY, INC., and DOES 1-50, Defendants, Case No. CV 19-06963-CJC(RAOx) (C.D. Cal.), to Los Angeles County Superior Court. Plaintiff Andrade filed the putative wage-and-hour class action against the Defendants. Plaintiff worked for the Defendants as a non-exempt truck driver from Oct. 14, 2014 to January 2016, earning approximately $22 per hour. In January 2016, the Plaintiff transitioned to a role as a salesperson in the Defendants' office, earning a slightly higher hourly wage as well as commissions. He held the job until April 13, 2018. On March 26, 2019, the Plaintiff brought the suit against the Defendants in Los Angeles County Superior Court. On April 10, 2019, he filed the operative First Amended Class Action Complaint ("FAC"). The Plaintiff asserts six causes of action: (1) Unfair Competition; (2) Failure to Pay Minimum and Overtime Wages; (3) Failure to Pay Final Wages Timely ("Waiting Time Penalties"); (4) Failure to Keep Accurate Payroll Records ("Wage Statement Penalties"); (5) Failure to Provide Meal and Rest Periods; (6) Civil Penalties pursuant to California Labor Code Section 2699. Plaintiff brings all but the third and fourth claims on his own behalf and on behalf of a class defined broadly as anyone employed by Defendants in California as a non-exempt employee in the last four years. The third and fourth causes of action are brought on the Plaintiff's own behalf and on behalf of slightly narrower subclasses. In general, the Plaintiff alleges the Defendants committed these Labor Code violations "as matters of policy and/or practice." More specifically, Plaintiff alleges that the Defendants failed to pay employees for opening and closing facilities, maintained timekeeping policies that systematically undercounted employee hours, and prohibited overtime work without express authorization in the absence of an emergency. The Plaintiff served the Defendants with a summons and the FAC on May 25, 2019, and the Defendants acknowledged receipt. On Aug. 9, 2019, the Defendants filed a Notice of Removal to the Central District of California pursuant to CAFA and 28 U.S.C. Section 1332(a). Plaintiff moved to remand the Complaint to state court. Judge Cerney finds that the Notice of Removal was timely regardless of whether the Defendants could have removed at "any time." There is no evidence of undue delay or gamesmanship. The Defendants completed their investigation and filed for removal less than two months after the FAC was filed and before the state court case proceeded to discovery. Nor is there any evidence that the Defendants had notice of removability more than 30 days before filing. The Plaintiff suggests that the Defendants' were obligated to specify when they learned that the case was removable in their Notice of Removal. Such a requirement has not been imposed in analogous cases. Moreover, it could lead to the spectre of inevitable collateral litigation about whether the Defendant had subjective knowledge. The Judge rejects this argument and finds that the Notice of Removal was timely filed. Judge Cerney further finds that the Notice of Removal properly establishes CAFA jurisdiction. The Judge finds that the Defendants' violation rates are reasonable assumptions grounded in the allegations of the FAC. The amount in controversy considers the amount in dispute, not the amount that a plaintiff is likely to recover. For the Plaintiff's overtime, minimum wage, meal period, and rest period claims, the FAC defines the class broadly as all non-exempt employees that worked for the Defendants in the statutory period. The Defendants' showing is sufficient to satisfy CAFA's amount-in-controversy requirement. Finally, the Parciasepe Declaration and the Defendants' reasonable assumptions are sufficient to show by a preponderance of the evidence that the amount in controversy exceeds $5 million. Accordingly, Judge Cerney denied the Plaintiff's motion to remand. A full-text copy of the Court's Oct. 1, 2019 Opinion is available at https://is.gd/I9gjvb from Leagle.com. Manuel Andrade, on behalf of himself and all others similarly situated, Plaintiff, represented by Joshua Cohen Slatkin -- jcohenslatkin@jcslaw4you.com -- Law Office of Joshua Cohen Slatkin. Beacon Sales Acquisition, Inc. & Beacon Roofing Supply, Inc., Defendants, represented by Karin Morgan Cogbill -- kcogbill@littler.com -- Littler Mendelson PC & Linda N. Bollinger -- lbollinger@littler.com -- Littler Mendelson PC. BITGRAIL: Fraud Class Action Filed Against Promoters in Calif. -------------------------------------------------------------- Neil Dennis, writing for CryptoGlobe, reports that law firms Silver Miller and Levi Korsinsky have filed a class action lawsuit with the district court of Northern California against the promoters of the Nano cryptocurrency, alleging fraud and misrepresentation. The filing summarized that the class action was on behalf of all individuals and entities who transferred fiat currency or crypto to BitGrail--the now-defunct Italian crypto exchange that lost around $170 million in Nano tokens--to invest in Nano between October 24, 2015 and February 8, 2018. Shilling on Social Media Chief among the allegations of fraud and misrepresentation are whether the defendents promoted Nano and BitGrail despite being aware of the exchange's shortcomings. The filing points to the use of social media to promote Nano, and mentions specific instances of defendent Troy Retzer downplaying critial comments on Reddit. The filing states: "To fulfill their role in the conspiracy, Defendants Colin LeMahieu, Mica Busch, Zach Shapiro, and Troy Retzer created and managed the XRB network and used social media channels such as Twitter, Medium, and Reddit to recruit unsuspecting investors in the United States and abroad to purchase XRB investments and allow the liquidation of XRB coins and/or store those valuable assets at the inherently unsafe BitGrail exchange." Such promotional tactics, the plaintiff lawyers believe, may have exacerbated the losses on BitGrail as investors were directed to the troubled Italian exchange. Nano hit its price peak around $35 in January 2018 and now stands at $0.77. At the time the tokens went missing in February 2018, the price was around $16. The action asks that the court should require Nano to "rescue fork" the missing Nano into a new cryptocurrency that would fairly compensate the class victims. [GN] BRISTOL-MYERS SQUIBB: Judge Dismisses Securities Class Action ------------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, reports that on September 30, 2019, Judge J. Paul Oetken of the United States District Court for the Southern District of New York dismissed a putative securities class action brought against a pharmaceutical company and certain of its current and former executives. Tung v. Bristol-Myers Squibb Co., et al., 18-cv-1611 (S.D.N.Y. Sept. 30, 2019). Plaintiffs allege that the pharmaceutical company (the "Company") and defendant executives made materially misleading statements and omissions concerning the design of the Company's clinical trial that tested the efficacy of a newly-developed anticancer drug in violation of Sections 10(b), 20(a), and 20A of the Securities Exchange Act of 1934 (the "Exchange Act"), and Rule 10b-5 promulgated thereunder. The Court dismissed the claims finding that plaintiffs failed to sufficiently plead scienter, but granted plaintiffs leave to amend to address the pleading deficiencies. In early 2014, the Company announced a clinical trial that sought to determine whether its new drug, Opdivo, a checkpoint inhibitor, would outperform chemotherapy as a treatment for non-small cell lung carcinoma. Plaintiffs brought suit after the Company's stock dropped in 2016 following the Company's announcement that the trial "failed to demonstrate" the drug was more effective than traditional chemotherapy. Plaintiffs alleged that defendants mischaracterized the parameters of its trial by representing that the purpose of the study is to show that the drug would improve outcomes in subjects "with strongly Stage IV or Recurrent PD-L1+ non-small cell lung cancer." PD-L1 is a protein that "when present on healthy cells, prevents the immune system from attacking them," which is a mechanism cancer cells replicate to prevent an immune response against it. According to plaintiffs, defendants failed to clarify how much PD-L1 expression was required for a patient to "strongly" express PD-L1. After the trial failed, the Company disclosed that "strongly" meant any patient with at least 5% of cancer cells expressing PD-L1, and that the study's design "precluded the researchers from reaching any conclusions about the efficacy of [the drug] for patients whose expression of PD-L1 were higher than 5%." According to plaintiffs, this meant that the Company "had no means under accepted statistical methodologies of finding a significant difference between the performance of [the drug] and chemotherapy." The Court first considered plaintiffs' scienter allegations and found that plaintiffs failed to plead facts raising the requisite "strong inference" that defendants had the motive and opportunity to commit fraud or that they acted recklessly in "an extreme departure from the standards of ordinary care." The Court initially rejected plaintiffs' contention that defendants had a fraudulent motive "to protect competitively sensitive information," noting that guarding competitively sensitive information is merely a "generalized business motive." The Court further found that plaintiffs failed to allege that defendants would receive any "concrete benefits" from withholding information concerning the parameters of the clinical trial, other than the general benefit of "maintaining the appearance of corporate profitability." Accordingly, the Court noted that "[i]f scienter could be pleaded on this basis alone, 'virtually every company in the United States that experiences a downturn in stock price could be forced to defend securities fraud actions'" (citing Acito v. IMCERA Grp, Inc., 47 F.3d 47, 54 (2d Cir. 1995)). The Court also rejected plaintiffs' contention that defendants had a fraudulent motive to artificially inflate the stock price to sell their personal stock holdings—finding that two of the six individual defendants did not sell any stock during the putative class period, and the other four individual defendants who did sell stock during the putative class period either increased their overall holdings or maintained their holdings during the period as a result of stock purchases. According to the Court, plaintiffs failed to demonstrate that that the stock sales were "unusual" or "suspicious," which undermines plaintiffs' motive and opportunity allegations. The Court similarly held that plaintiffs failed to plead facts alleging that defendants acted in a "highly unreasonable [manner] which represents an extreme departure from the standards of ordinary care." The Court held that plaintiffs' allegations -- (i) that defendants knew the industry standards with respect to how "strong" PD-L1 expression is defined given their leading role in the market, (ii) that defendants had in prior trials "employed a 5% cut-off to define mere 'positive' expression" of PD-L1 which contradict their "current position. . . [that it can now] be used to define 'strong' PD-L1 expression," and (iii) defendants' own post-clinical trial statements that a 5% cut-off was not High -- "fall far short of [the] demanding standard" of pleading scienter by recklessness, which requires plaintiffs to plead facts that "indicate a state of mind approximating actual intent." In so holding, the Court noted that "conclusory allegations of [defendants'] knowledge" do not sufficiently allege their knowledge of and departure from industry standards. The Court further noted that plaintiffs did not allege the Company took the categorical position in its earlier studies that "strong" compelled a cut-off of more than 5%, and defendants' post-clinical trial statements occurred "long after" the alleged misrepresentations were made. Additionally, the Court found that although a competing pharmaceutical company defined "strong" PD-L1 expression as 50% or greater in a similar study conducted shortly after the Company's study, plaintiffs failed to allege that the competitor's study "indicated that 'strong' must mean, as a matter of industry practice, a cut-off greater than 5%." According to the Court, "[a]t best, the [competitor's] study could have informed" the Company how the competitor was defining "strong" in their own study, which is insufficient to meet the heightened pleading standards under the PSLRA. Lastly, the Court rejected plaintiffs' argument that the alleged "unexpected" departure from the Company by one of the individual defendants less than six months following the end of the putative class period provided support for scienter, finding that such departure did not rise to the level of being "highly unusual and suspicious." For these reasons, the Court found that plaintiffs failed to sufficiently plead scienter and dismissed the Section 10(b) claims. Based on the dismissal of the Section 10(b) claims against the Company and the individual defendants, the Court dismissed the Section 20(a) and 20A claims as there were no predicate violations of the Exchange Act under which control-person violations could be established. Noting that district courts "typically" grant plaintiffs at least one opportunity to plead fraud with greater specificity when claims are dismissed under FRCP 9(b), the Court granted plaintiffs leave to amend. Tung v. Bristol-Myers Squibb Co. [GN] CANNABIS & GLASS: Wash. District Court Dismisses Frank TCPA Suit ---------------------------------------------------------------- In the case, ROBERTA FRANK, an individual, and all others similarly situated, Plaintiff, v. CANNABIS & GLASS, LLC, a Washington limited liability company; NXNW Retail, LLC, a Washington limited liability company; Delaware Corporation; and TATE KAPPLE and his marital community, Defendants, Case No. 2:19-cv-00250-SAB (E.D. Wash.), Judge Stanley A. Bastian of the U.S. District Court for the Eastern District of Washington granted Defendant Springbig's Motion to Dismiss Under Rule 12(b)(6). Roberta Flank commenced a putative class action against Retail Defendants Cannabis, NXNW, and Tate Kapple, and Defendant Springbig Inc. for their various respective roles in sending unauthorized text messages to her cell phone. More specifically, in October 2018, the Plaintiff visited the Retail Defendants' store. At the point of sale, she gave the sales associate her cell phone number so she could be part of their loyalty program. The Plaintiff was not told that by giving her number she would start receiving text messages from the Retail Defendants that notified her of sales and discounts. Rather, she was told by the employee that her phone number and first name were required before she could enroll in the loyalty program. She visited a second store and was told that she did not have to enroll in a separate rewards program because the two were linked. The next day, she began to receive daily text messages from the Retail Defendants that were sent using Defendant Springbig's SMS short codes. The Plaintiff is bringing claims under the federal Telephone Consumer Protection Act ("TCPA"), and the Washington Consumer Protection Act, which is based on an alleged violation of the Washington Commercial Electronic Mail Act ("CEMA"). Defendant Springbig filed a Motion to Dismiss Under Rule 12(b)(6). A hearing on the motion was held on Sept. 26, 2019 in Spokane, Washington. The Plaintiff has not argued the Court should disregard the 2015 FCC Ruling, or that the necessary factors identified by the FCC in that ruling before an application provider can be held liable should not apply to the case. The 2015 ruling refers to In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7980 (2015) -- where the Federal Communications Commission (FCC) clarified that "application providers that play a minimal role in sending text messages are not per se liable for unwanted robocalls." Instead Plaintiff argues that the allegations in her complaint are sufficient to get past a 12(b)(6) Motion. Her Amended Complaint, however, does not provide any allegations that Defendant Springbig took steps physically necessary to place the call or that it was so involved in the placing of the call as to be deemed to have initiated it. It appears the Plaintiff is attempting to meet this requirement by including in the Amended Complaint the content of sample text messages found on their website, the Court notes. These allegations and examples are not sufficient to establish liability on the part of Defendant Springbig, given that there are no allegations stating the retail Defendants used Defendant Springbig's suggested content, the Court holds. Taken as true, Judge Bastian holds that the Plaintiff's allegations in the Amended Complaint allege that Defendant Springbig had some role, albeit a minor one, in the causal chain that resulted in the sending of the text. According to the guidance provided by the FCC, however, it is not enough to survive a 12(b)(6) motion. Because the Plaintiff's allegations do not allege that Springbig controlled the recipients, timing or content, the Amended Complaint does not allege that Defendant Springbig was the maker or initiator of the text message. Consequently, the Plaintiff has failed to state a TCPA claim against Defendant Springbig, the Court maintains. In order for Defendant Springbig to be liable under CEMA, the Plaintiff must allege that either it initiated the transmission or assisted in the transmission. The Judge finds that the Plaintiff has not alleged that Defendant Springbig was the original sender of the test message. Moreover, her conclusory allegations that Defendant Springbig violated CEMA are not sufficient, given that she has also alleged that Defendant Springbig's role in the alleged violation was providing a programmable platform from which the Retail Defendants initiate the message. Similar to the TCPA, while the Plaintiff has alleged facts that suggest that the Defendant provided some form of assistance, i.e. the software application used to send the text messages, the Plaintiff has not alleged facts to suggest that Defendant Springbig provided substantial assistance to the retail Defendants in the sending of the alleged text message, which is required by the statute. Additionally, she has not alleged any facts that Defendant Springbig knew or consciously avoided knowing the Retail Defendants were violating or intending to violate the law. Because the Amended Complaint fails to allege adequate facts to show that Defendant Springbig initiated the transmission or assisted in the transmission of the text message as contemplated by the statute, the Plaintiff has failed to state a CEMA/CPA claim upon which relief may be granted. Accordingly, Judge Bastian granted Defendant Springbig's Motion to Dismiss. The Plaintiff may file a Second Amended Complaint without delay if she believes she can remedy the pleading to address the legal deficiencies identified. A full-text copy of the District Court's Oct. 1, 2019 Order is available at https://is.gd/Kvbca5 from Leagle.com. Roberta Frank, an individual, and all those similarly situated, Plaintiff, represented by Brian Cameron -- bcameron@cameronsutherland.com -- Cameron Sutherland PLLC & Kirk D. Miller -- kmiller@millerlawspokane.com -- Kirk D Miller PS. Cannabis & Glass LLC, a Washington limited liability company, NXNW Retail LLC, a Washington limited liability company & Tate Kapple, and his marital community, Defendants, represented by John S. Devlin, III -- devlinj@lanepowell.com -- Lane Powell PC & Taylor Washburn -- washburnt@lanepowell.com -- Lane Powell PC. Springbig Inc, a Delaware corporation, Defendant, represented by David S. Almeida, Benesch Friedlander Coplan & Aronoff LLP, pro hac vice, Mark S. Eisen, Benesch Friedlander Coplan & Aronoff LLP, pro hac vice, Medora A. Marisseau, Karr Tuttle & Campbell & Suzanne M. Alton de Eraso, Benesch Friedlander Coplan & Aronoff LLP, pro hac vice. CARAVAN FACILITIES: Howard Sues Over Unpaid Overtime Wages ---------------------------------------------------------- William Howard and David Wright, Individually and on behalf of all others similarly situated, Plaintiffs v. CARAVAN FACILITIES MANAGEMENT LLC, Defendant, Case No. 2:19-cv-02640 filed in Wyandotte County District Court in Kansas on Oct. 17, 2019, is an action for violations of the Fair Labor Standards Act against Defendant. Plaintiffs, and all employees similarly situated to them, allege that Caravan knowingly and unlawfully failed and refused to compensate them with proper overtime pay as required by federal law and that no applicable exemption or exception excused Caravan from non-payment of said overtime. By excluding pre-shift work from the hours paid to Plaintiffs and those similarly situated individuals, Caravan avoided paying Plaintiffs overtime wages for hours they worked in excess of forty-per-week, says the complaint. Plaintiffs were employed by Defendant in positions such as Maintenance Electrician and Stationary Engineer during the relevant timeframe of this lawsuit. Caravan operated its business in the state of Kansas.[BN] Plaintiffs are represented by: Patrick G. Reavey, Esq. Kevin C. Koc, Esq. REAVEY LAW LLC Livestock Exchange Building 1600 Genessee, Suite 303 Kansas City, MO 64102 Phone: (816) 474-6300 Fax: (816) 474-6302 Email: patrick@reaveylaw.com kkoc@reaveylaw.com CARIBBEAN LAWN: Mosley Sues Over Unpaid Overtime Wages ------------------------------------------------------ DOMINIQUE MOSLEY and all others similarly situated, Plaintiff v. CARIBBEAN LAWN & LANDSCAPE, INC., a Florida Profit Corporation, and BRIAN STOLZE, individually, Defendants, Case No. 2:19-cv-14400-XXXX (S.D. Fla., Oct. 23, 2019), is brought under the Fair Labor Standards Act to recover all wages owed to the Plaintiff and others during the course of their employment with the Defendants. According to the complaint, the Defendants have unlawfully deprived the Plaintiff, and all other employees similarly situated, of overtime compensation during the course of their employment. The Plaintiff worked an average of 55 hours per week throughout his entire employment with the Defendants but they refused to compensate him at the proper overtime rate of time-and-one-half required by the FLSA for all hours worked in excess of 40, says the complaint. The Plaintiff worked for the Defendants from May 2016 until October 10, 2019. CLL provides landscaping services, lawn care, pest control, irrigation installation, landscape lighting, and termite prevention for residential and commercial properties in the State of Florida.[BN] The Plaintiff is represented by: Jordan Richards, Esq. Melissa Scott, Esq. USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC 805 East Broward Blvd., Suite 301 Fort Lauderdale, FL 33301 Phone: (954) 871-0050 Email: jordan@jordanrichardspllc.com melissa@jordanrichadrspllc.com CENTENE CORP: Discovery Ongoing in Sanchez Class Suit ----------------------------------------------------- Centene Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2019, for the quarterly period ended September 30, 2019, that the parties in the class action suit entitled, Israel Sanchez v. Centene Corp., et al., are currently in discovery phase. On November 14, 2016, a putative federal securities class action, Israel Sanchez v. Centene Corp., et al., was filed against the Company and certain of its executives in the U.S. District Court for the Central District of California. In March 2017, the court entered an order transferring the matter to the U.S. District Court for the Eastern District of Missouri. The plaintiffs in the lawsuit allege that the Company's accounting and related disclosures for certain liabilities acquired in the acquisition of Health Net violated federal securities laws. In July 2017, the lead plaintiff filed a Consolidated Class Action Complaint. The Company filed a motion to dismiss complaint in September 2017. In August 2019, the Court granted the Company's motion to dismiss in part and denied it in part, dismissing allegations regarding certain statements and thereby narrowing the time period to which the allegations will be subject. The case will now move into the discovery phase. Centene Corporation, incorporated on September 26, 2001, is a healthcare company. The Company provides a portfolio of services to government sponsored healthcare programs, focusing on under-insured and uninsured individuals. The Company operates through two segments: Managed Care and Specialty Services. It provides member-focused services through locally based staff by assisting in accessing care, coordinating referrals to related health and social services and addressing member concerns and questions. It also provides education and outreach programs to inform and assist members in accessing appropriate healthcare services. The company is based in St. Louis, Missouri. CENTENE CORPORATION: Faces Perez Suit Alleging Violation of TCPA ---------------------------------------------------------------- MANUEL PEREZ, individually and on behalf of all others similarly situated, Plaintiff v. CENTENE CORPORATION, a Delaware corporation, Defendant, Case No. 1:19-cv-24384-CMA (S.D. Tex., Oct. 23, 2019), seeks to secure redress for violations of the Telephone Consumer Protection Act. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process, Plaintiff alleges. Through this action, the Plaintiff seeks injunctive relief to halt the Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. The Plaintiff also seeks statutory damages on behalf of himself and members of the class, and any other available legal or equitable remedies. The Plaintiff is a natural person, who was a resident of Miami-Dade County, Florida. The Defendant is a multi-line managed care enterprise that serves as an intermediary for health care programs. Allwell is Centene Corporation's Medicare Advantage product.[BN] The Plaintiff is represented by: Angelica M. Gentile, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 1205 Miami, FL 33132 Phone (305) 479-2299 Facsimile (786) 623-0915 Email: agentile@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com CENTRAL FLORIDA: Fredrick Sues Over Unpaid Overtime Wages --------------------------------------------------------- Brenda Fredrick, individually and on behalf of all others similarly situated, Plaintiff v. Central Florida Investments, Inc., Westgate Resorts, Inc., Westgate Marketing, LLC, and DOES 1-50, inclusive, Defendants, Case No. 3:19-cv-00418 (E.D. Tenn., Oct. 23, 2019), is brought under the Fair Labor Standards Act to recover overtime pay from the Defendants. The Defendants misclassified her and others similarly situated as "independent contractors," and denied them the wages and benefits to which they are lawfully entitled, the Plaintiff alleges. The Defendants retained direct and indirect control over the Plaintiff and the putative FLSA Collective in all aspects of their employment, dictating the manner in which they performed their work. The Plaintiff and those similarly situated routinely work more than 40 hours in a workweek but are not paid an overtime premium for their overtime hours as a result of the Defendants' misclassification, says the complaint. The Plaintiff worked for the Defendants as sales representatives at various luxury resort destinations throughout the United States. The Defendants operate resorts in multiple states around the country, including a resort in Gatlinburg, Tennessee.[BN] The Plaintiff is represented by: David A. Burkhalter, II, Esq. D. Alexander Burkhalter, III, Esq. Zachary J. Burkhalter, Esq. THE BURKHALTER LAW FIRM P.O. Box 2777 Knoxville, TN 37901 Phone: (865) 524-4974 Facsimile: (865) 524-0172 Web site: http://www.burkhalterlaw.com/ - and - Rachhana T. Srey, Esq. Caroline E. Bressman, Esq. NICHOLS KASTER, PLLP 4600 IDS Center 80 S 8th Street Minneapolis, MN 55402 Phone: 612-256-3200 Facsimile: 612-338-4878 E-mail: strey@nka.com cbressman@nka.com - and - Bryce W. Ashby, Esq. DONATI LAW, PLLC 1545 Union Avenue Memphis, TN 38104 Phone: 901-278-1004 Fax: 901-278-3111 Email: bryce@donatilaw.com CHANDLER MACLEOD: Coal Mine Casuals' Class Action Still on Track ---------------------------------------------------------------- Ian Kirkwood, writing for Newcastle Herald, reports that two class actions seeking as much as $50 million on behalf of Mount Arthur coal mine casuals are still on track despite a court ruling on Oct. 8 that the funder of the cases must provide security valued at $2 million to cover the potential costs of a loss. The Mount Arthur class action led by injured mineworker Simon Turner was announced in February 2018 and lodged months later in June 2018 as two actions being heard together. They were among the earliest of a spate of similar cases in the mining industry and other sectors where casual work has spread. The Turner cases against labour-hire firms TESA and Chandler Macleod are being run by Canberra law firm Adero, which has lodged a reported $325 million worth of coal industry cases alone. Turner first went to lawyer Rory Markham in late 2017, saying it was against the Black Coal Award to employ casuals as mineworkers. Other class actions followed CFMMEU litigation on behalf of Queensland truck driver Paul Skene against his "casual" employer WorkPac. The Skene case finished with the Federal Court finding that he was entitled to accrued annual leave because he worked regular and predictable rosters. Employer organisations led by the Australian Industry Group objected, saying the decision would lead to "double-dipping" because casuals were paid loadings to cover such entitlements. But as the Herald has reported since 2016, coal industry casuals typically earn about 40 per cent less than their permanent counterparts doing the same job. The CFMMEU says they are still earning a lot less in situations such as BHP's new "operations services" group, which the union describes as an "in-house labour hire service", introduced in response to the backlash against the contractor arrangements. Adero lawyer Rory Markham said the Oct. 8 verdict in the Federal Court was not a surprise. Justice Michael Lee's decision shows that Mount Arthur Coal (a BHP subsidiary) and Chandler Macleod had asked for security of $1 million for each case to be lodged by the litigation funder - UK-based Augusta Ventures. Although Mt Arthur coal originally proposed . . . that an award of security should be made against Mr. Turner, this relief was abandoned. That was wise. Justice Michael Lee in the Oct. 8 judgement: "Although the Fair Work Act was set up to allow people to take court action without the usual obligation of having to pay the other side if they lose, Justice Lee ruled that this did not apply to litigation funders such as Augusta." Litigation funders have traditionally made their money by taking a contracted slice--usually between 25 per cent to 40 per cent--of any monies awarded. In May this year, Justice Lee questioned the amount that another litigation funder would receive in a separate Adero case, saying it could lead to a "situation where people are getting less than a quarter, on the analysis, of their claim". But Markham told the Herald that the class actions took money to run and the cost and uncertainty of such proceedings put such claims beyond the reach of most individuals. "As far as we are concerned, there has been little willingness by unions or law firms operating on a no-win, no-fee basis to take these sorts of challenges on," Markham said. The union aspect is critical to the Simon Turner case, because Adero is expected to argue that the entire concept of a "casual" mineworker is meaningless, because the Black Coal Award that sets out employment conditions in the industry states that casual employment is only permitted in specified "staff" positions. As enterprise agreements are not supposed to legally conflict with an award sitting "above" them, Adero is expected to argue that coal industry enterprise agreements that provide for "casual" employment are unlawful. In the Mount Arthur cases, this includes an agreement that the union signed in 2015 covering Chandler Macleod employees across the "northern" (Hunter and Gunnedah) region. Simon Turner said on Oct. 8 that the cross-case over costs had been "a delaying tactic" and he was glad it was resolved. Markham said the case would return to the court on October 28, when he expected the costs security would be lodged. "I'm hoping then that we can have the matter programmed for hearing, and that this will take place in the first half of next year," Markham said. The Oct. 8 decision was being closely watched because of a likely flow-on to other Fair Work class actions. Markham agreed with claims that it would make these cases less attractive to litigation funders, especially for smaller claims. [GN] CHANDLER MACLEOD: Ruling to Impact Employment Class Actions ----------------------------------------------------------- David Marin-Guzman, writing for Australian Financial Review, reports that a landmark Federal Court ruling could have a chilling effect on the recent wave of multimillion-dollar employment class actions by requiring that litigation funders must stump up costs ahead of legal action. Justice Michael Lee ruled on Oct. 8 that the Fair Work Act's costs shield, which exempts parties from the usual obligation to pay the other side's costs if they lose, does not apply to litigation funders and is moving to order UK funder Augusta Ventures pay an expected $2.1 million in security of costs before proceeding. The judgment directly affects law firm Adero's class action against Chandler MacLeod's labour hire subsidiary Ready Workforce over alleged underpayment of casuals in the black coal mining industry. The action also brought in BHP as an accessory. Additionally, it will have ramifications for ten other class actions that have been launched over alleged underpayments and workplace law breaches in the past 18 months. The Fair Work Act's costs shield has been a point of attraction for class action funders in using employment law as it means they have less exposure if an action fails. But Justice Lee found the costs shield safeguarded applicants with modest claims, "facing the spectre of an intimidating inequality of arms, to bring an action freed from the vexation that an adverse costs order could mean financial ruination". "There is no compelling textual or contextual argument which would suggest that this protection should be somehow extended to non-party funders who are using these claims to their perceived commercial advantage," he said. An order for security of costs in the Ready Workforce and BHP case would also apply only to the funder, and the funder would not be able to recover its costs from employers if it won. Augusta Ventures told the court this disparity would negatively affect "the appetite of [the funder] to continue to fund representative proceedings in the industrial relations jurisdiction". But Justice Lee ruled that "if it turns out the Funder has not adequately factored that risk into the price it has contracted to charge, this does not seem to me to be something which should be of particular concern to the Court". His decision would be different if he was convinced funding would be withdrawn or there was going to be "a stultification of the claims" but he said he was not satisfied that would be the case on the evidence. "No doubt this will be an integer factored by the market into the price of the provision of litigation funding services in matters of this type," he said. One of the reasons for a security of costs was that Augusta Ventures was based in the UK without assets in Australia. The judge is still to decide on the appropriate form of the costs order, such as by deed of indemnity or by cash, but said it would reflect anticipated party costs. BHP and Ready Workforce are seeking about $1 million each. The class action was filed in June last year and alleges that the labour hire firm engaged workers as casuals rather than permanent employees at BHP's Mount Arthur coal mine to avoid paying award entitlements. Adero has launched similar class actions worth an estimated $150 million against labour hire firms TESA mining, Workpac, Hays and Stellar Recruitment. Decision 'limits' future class actions Justice Lee noted in his decision that industrial class actions had represented just 3.4 per cent of funded actions between 1992 and March 2018 and were "rare beasts" compared to shareholder actions. However, there are now 11 industrial class actions before the courts. Adero Law principal Rory Markham said his firm was considering whether to appeal the decision but warned "we expect all class actions will attract security applications". "From our perspective, this will increase the cost and limit future opportunities for underpayments [class actions] where claims are less than $10 million," he said. He said the decision would put "a lot of pressure" on law firms to find alternative funding arrangements for wage claims. "One of the problems in Australian IR law is a breakdown in compliance and underpayments," he said. "In our experience there isn't a willingness on the part of unions or no-win, no-fee law firms to really take these challenges on." Justice Lee's decision came after he previously criticised UK-based Harbour Litigation Funding's 40 per cent cut of any settlement, or 400 per cent of legal costs, in a separate IR class action as "fantastic in the true sense of the word". Augusta Ventures' 250 per cent return on legal costs for some of its mining class actions has also been criticised for potentially leaving claimants with nothing. [GN] CHARLOTTE-MECKLENBURG HOSPITAL: Shore Appeals Ruling to 4th Cir. ---------------------------------------------------------------- Plaintiffs Della Shore, et al., filed an appeal from a Court ruling entered in their lawsuit entitled Della Shore, et al. v. Charlotte-Mecklenburg Hospital, et al., Case No. 1:18-cv-00961-TDS-LPA, in the U.S. District Court for the Middle District of North Carolina at Greensboro. District Court Judge Thomas D. Schroeder granted the motions of the Charlotte-Mecklenburg Hospital Authority and MedCost to dismiss the Shore, et al., complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), as reported in the Class Action Reporter on Oct. 7, 2019. The Charlotte-Mecklenburg Hospital Authority is a non-profit healthcare conglomerate headquartered in Mecklenburg County, North Carolina. It established and maintains three employee benefit plans: the Pension Plan of the Charlotte-Mecklenburg Hospital Authority, the Carolinas HealthCare System 401(k) Matched Savings Plan, and the Carolinas HealthCare System LiveWELL Health Plan. The City of Charlotte created the Authority in 1943 pursuant to the Hospital Authority Act ("HAA"), which authorizes cities and counties to create hospital authorities whenever a city council or a county board of commissioners finds and adopts a resolution finding that it is in the interest of the public health and welfare to create a hospital authority. The Authority is registered as a "municipal" body. The Authority is governed by the Board of Atrium Commissioners. The putative class action alleges that the Defendants did not comply with the Employee Retirement Income Security Act of 1974 ("ERISA"). The action is brought by former Authority employees who allege that they participated in the Authority's employee benefit plans which should have complied with ERISA requirements. The Plaintiffs allege several claims flowing from a contention that the plans are subject to ERISA and seek a declaration they are covered plans and an order that they be brought into compliance with the law. The appellate case is captioned as Della Shore, et al. v. Charlotte-Mecklenburg Hospital, et al., Case No. 19-2086, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiffs-Appellants DELLA SHORE, ON BEHALF OF THEMSELVES, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND ON BEHALF OF THE ATRIUM PLANS; LISA ENGEL, ON BEHALF OF THEMSELVES, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND ON BEHALF OF THE ATRIUM PLANS; MARK RACZ, ON BEHALF OF THEMSELVES, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND ON BEHALF OF THE ATRIUM PLANS; MICHAEL SCHWOB, ON BEHALF OF THEMSELVES, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND ON BEHALF OF THE ATRIUM PLANS; and LYDIA WALKER, ON BEHALF OF THEMSELVES, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND ON BEHALF OF THE ATRIUM PLANS, are represented by: Jamie Leigh Bowers, Esq. Karen Louise Handorf, Esq. Julie S. Selesnick, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, NW Washington, DC 20005-3965 Telephone: (202) 408-4600 E-mail: jbowers@cohenmilstein.com khandorf@cohenmilstein.com jselesnick@cohenmilstein.com - and - Martha Anne Geer, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 150 Fayetteville Street Raleigh, NC 27601 Telephone: (919) 890-0560 E-mail: mgeer@cohenmilstein.com Defendants-Appellees CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, A NORTH CAROLINA NON-PROFIT CORPORATION doing business as ATRIUM formerly known as CAROLINAS HEALTHCARE SYSTEM, and ATRIUM HEALTH RETIREMENT COMMITTEE are represented by: Mark B. Blocker, Esq. Chris K. Meyer, Esq. Caroline A. Wong, Esq. SIDLEY AUSTIN, LLP 1 South Dearborn Street Chicago, IL 60603-0000 Telephone: (312) 853-7000 E-mail: mblocker@sidley.com cmeyer@sidley.com caroline.wong@sidley.com - and - Mark Hiller, Esq. ROBINSON, BRADSHAW & HINSON, P.A. 1450 Raleigh Road Chapel Hill, NC 27517 Telephone: (919) 328-8814 E-mail: mhiller@robinsonbradshaw.com - and - Travis Styres Hinman, Esq. Charles Evans Johnson, Esq. Jonathan C. Krisko, Esq. David Calep Wright, III, Esq. ROBINSON, BRADSHAW & HINSON, P.A. 101 North Tryon Street Charlotte, NC 28246 Telephone: (704) 377-8365 E-mail: thinman@robinsonbradshaw.com cejohnson@robinsonbradshaw.com jkrisko@robinsonbradshaw.com dwright@robinsonbradshaw.com Defendants-Appellees MEDCOST LLC and MEDCOST BENEFIT SERVICES, LLC, are represented by: Richard Andrew Coughlin, Esq. Maureen Demarest Murray, Esq. Whitney Demain Pierce, Esq. FOX ROTHSCHILD LLP 300 North Greene Street Greensboro, NC 27401 Telephone: (336) 378-5471 E-mail: rcoughlin@foxrothschild.com mmurray@foxrothschild.com wpierce@foxrothschild.com CHART INDUSTRIES: Calif. Suit Over Cryo Tank Failure Ongoing ------------------------------------------------------------ Chart Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 17, 2019, for the quarterly period ended August 31, 2019, that the company continues to defend a purported class action lawsuit related to the alleged failure of its aluminum cryobiological storage tank product. During the second quarter of 2018, Chart was named in lawsuits (including a class action lawsuit filed in the U.S. District Court for the Northern District of California) filed against Chart and other defendants with respect to the alleged failure of a stainless steel cryobiological storage tank (model MVE 808AF-GB) at the Pacific Fertility Center in San Francisco, California. The company continues to evaluate the merits of such claims in light of the limited information available to date regarding use, maintenance and operation of the tank which has been out of its custody for the past six years when it was sold to the Pacific Fertility Center through an independent distributor. Accordingly, an accrual related to any damages that may result from the lawsuits has not been recorded because a potential loss is not currently probable or estimable. Chart Industries said, "We have asserted various defenses against the claims in the lawsuits, including a defense that since manufacture, we were not in any way involved with the installation, ongoing maintenance or monitoring of the tank or related fertility center cryogenic systems at any time since the initial delivery of the tank." No further updates were provided in the Company's SEC report. Chart Industries, Inc. manufactures and sells engineered equipment and packaged solutions; and provides value-add services for the energy and industrial gas industries worldwide. It operates through three segments: Energy & Chemicals, Distribution & Storage Western Hemisphere, and Distribution & Storage Eastern Hemisphere segments. Chart Industries, Inc. was founded in 1992 and is headquartered in Ball Ground, Georgia. CHART INDUSTRIES: Ontario Suit Over Cryo Storage Tank Ongoing ------------------------------------------------------------- Chart Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 17, 2019, for the quarterly period ended August 31, 2019, that the company continues to defend a purported class action lawsuit related to the alleged failure of its aluminum cryobiological storage tank product. Chart has been named in purported class action lawsuits filed in the Ontario Superior Court of Justice against the Company and other defendants with respect to the alleged failure of an aluminum cryobiological storage tank (model FNL XC 47/11-6 W/11) at The Toronto Institute for Reproductive Medicine in Etobicoke, Ontario. The company had confirmed that the tank in question was part of the aluminum cryobiological tank recall commenced on April 23, 2018. Chart Industries said, "We have asserted various defenses against the claims in the lawsuits and are in the early stages of litigation. Accordingly, an accrual related to any damages that may result from the lawsuit has not been recorded because a potential loss is not currently probable or estimable." No further updates were provided in the Company's SEC report. Chart Industries, Inc. manufactures and sells engineered equipment and packaged solutions; and provides value-add services for the energy and industrial gas industries worldwide. It operates through three segments: Energy & Chemicals, Distribution & Storage Western Hemisphere, and Distribution & Storage Eastern Hemisphere segments. Chart Industries, Inc. was founded in 1992 and is headquartered in Ball Ground, Georgia. CHEMOURS CO: Bernstein Litowitz Files Securities Class Action ------------------------------------------------------------- Bernstein Litowitz Berger & Grossmann LLP ("BLB&G") on Oct. 9 disclosed that it filed a securities class action lawsuit on behalf of its client the Electrical Workers Pension Fund, Local 103, I.B.E.W. ("Local 103") against The Chemours Company ("Chemours" or the "Company") (NYSE: CC) and certain of the Company's senior executives (collectively, "Defendants"). The action, which is captioned Electrical Workers Pension Fund, Local 103, I.B.E.W. v. The Chemours Company, asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on behalf of all purchasers of Chemours common stock between February 16, 2017 and August 1, 2019, inclusive (the "Class Period"). Chemours is a spin-off of the Performance Chemicals division of industrial conglomerate E.I. du Pont de Nemours and Company ("DuPont") which began trading as its own public company in 2015. The spin-off was completed pursuant to a Separation Agreement that required Chemours to indemnify DuPont for historic environmental liabilities. The action arises from Defendants' misrepresentations and omissions relating to Chemours' statements and accruals for environmental liabilities arising from its decades-long production, use, and discharge of chemicals manufactured by the Performance Chemicals division, including perfluoroalkyl and polyfluoroalkyl substances ("PFAS")--toxic chemicals that have become the basis for environmental regulatory actions, prosecutions, personal injury lawsuits, and extensive remediation efforts. The Complaint alleges that, throughout the Class Period, Defendants misled investors by representing that Chemours had appropriately accounted and accrued reserves for its environmental liabilities, that the possibility of costs exceeding accrued amounts was "remote," and that, in any event, additional costs would not be material. Chemours also assured investors that its "policies, standards and procedures are properly designed to prevent unreasonable risk of harm to people and the environment," and that its "handling, manufacture, use and disposal of hazardous substances are in accordance with applicable environmental laws and regulations." As a result of these misrepresentations, Chemours shares traded at artificially inflated prices throughout the Class Period. A series of disclosures beginning on May 6, 2019 and culminating on August 1, 2019 revealed the truth about the Company's environmental practices, and that Chemours' liabilities were far greater than the Company had represented. These disclosures included the June 28, 2019 unsealing of a complaint Chemours had filed under seal against DuPont on May 13, 2019, in which Chemours made detailed allegations that its spin-off from DuPont was part a deliberate plan by DuPont to rid itself of significant exposures incurred through decades of PFAS discharge and to unload that responsibility onto Chemours. These disclosures triggered sharp declines in the price of Chemours stock, which lost half its value during this time frame, with Chemours shares falling from $34.18 per share on May 3, 2019 to close at $14.69 per share on August 2, 2019. A copy of the complaint filed in this action is available on BLB&G's website at www.blbglaw.com. If you wish to serve as Lead Plaintiff for the Class, you must file a motion with the Court no later than December 9, 2019, which is the first business day on which the U.S. District Court for the District of Delaware is open that is 60 days after the publication date of October 9, 2019. Any member of the proposed Class may move the Court to serve as Lead Plaintiff through counsel of their choice. Members may also choose to do nothing and remain part of the proposed Class. Local 103 is represented by BLB&G, a firm of over 150 attorneys with offices in New York, California, Louisiana, Illinois, and Delaware. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact Michael D. Blatchley of BLB&G at 212-554-1281, or via e-mail at michaelb@blbglaw.com. Since its founding in 1983, BLB&G has built an international reputation for excellence and integrity. Specializing in securities fraud, corporate governance, shareholders' rights, employment discrimination, and civil rights litigation, among other practice areas, BLB&G prosecutes class and private actions on behalf of institutional and individual clients worldwide. Unique among its peers, BLB&G has obtained several of the largest and most significant securities recoveries in history, recovering billions of dollars on behalf of defrauded investors. More information about BLB&G can be found online at www.blbglaw.com. CONTACT: Michael D. Blatchley Bernstein Litowitz Berger & Grossmann LLP 1251 Avenue of the Americas, 44th Floor New York, New York 10020 (212) 554-1281 [GN] CHICAGO, IL: Bid for Summary Judgment in Barlett Labor Suit Granted ------------------------------------------------------------------- In the case, ROBERT BARLETT and PATRICK LEYDEN, individually and on behalf of other similarly situated SWAT team members of the Chicago Police Department, Plaintiffs, v. CITY OF CHICAGO, Defendant, Case No. 14C7225 (N.D. Ill.), Judge Charles P. Kocoras of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) granted the City's motion for summary judgment, and (ii) denied the Plaintiffs' motion for summary judgment. Plaintiffs Bartlett and Leyden are Chicago Police Department ("CPD") officers who were both assigned to the CPD's Special Weapons and Tactics ("SWAT") Unit when it became a full-time unit in 2005. Bartlett was assigned to the SWAT Unit until April 2017. He is currently on leave from the CPD while performing duties as a field representative for The Fraternal Order of Police, Chicago Lodge No. 7 ("FOP"), the union that represents CPD officers below the rank of sergeant. Leyden remains assigned to the SWAT Unit. In addition to Bartlett and Leyden, the Plaintiffs' FLSA certified collective class includes 76 opt-in Plaintiffs, and the Rule 23 certified class consists of 102 class members. The Plaintiffs currently work or formerly worked as operational members of the SWAT Unit in the rank of police officer. The Plaintiffs filed their third amended class action complaint on Nov. 3, 2017, claiming that they should be compensated for the time required to transport, load/unload, and store their gear between their vehicles and their residences. They seek relief under the Fair Labor Standards Act ("FLSA") (Count I); the Illinois Wage Payment Collection Act ("IWPCA"), as amended, (Count II); and the Illinois Minimum Wage Law ("IMWL") (Count III) for unpaid compensation unpaid overtime compensation, liquidated damages, costs, attorneys' fees, declaratory and injunctive relief, and any such other relief the Court may deem appropriate. On Jan. 22, 2018, the parties filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. The City moves for summary judgment on all counts with respect to liability, as the parties agreed to bifurcate the assessment of liability and damages in the case. The Plaintiffs only move for summary judgment on Counts I and III, the FLSA and IMWL claims, respectively. Having found that the transportation, loading/unloading, and storage of gear is not integral and indispensable to a SWAT operator's principal activity, Judge Kocoras must return to the defaults laid out in the Portal-to-Portal Act. The practical effect of granting the Plaintiffs' requested relief would be to compensate them for the time spent commuting to and from work. Although the Judge recognizes and applauds the Plaintiffs' efforts to hasten their response to critical incidents, the law prohibits a finding that such efforts are compensable when they primarily consist of commute time. As the Supreme Court stated, these arguments are properly presented to the employer at the bargaining table, not to a court in an FLSA claim. Accordingly, Judge Kocoras grants summary judgment in the City's favor as to Counts I and III. Furthermore, Judge Kocoras finds that the parties' agreement affords compensation only for "approved overtime." As the record and the existence of the lawsuit clearly indicate, the City did not agree to pay the Plaintiffs overtime for the transportation and storage of their gear. The City consistently denied their requests for such overtime pay, and there is no provision in the Plaintiffs' collective bargaining agreement that entitles them to compensation for this undertaking. Accordingly, the IWPCA claim cannot stand, and Judge Kocoras grants summary judgment in favor of the City on Count II. For these reasons, Judge Kocoras granted the City's motion, and denied the Plaintiffs' motion. A full-text copy of the Court's Oct. 1, 2019 Memorandum Opinion is available at https://is.gd/lswy4Y from Leagle.com. Robert Bartlett, Individually and on behalf of other similarly situated SWAT team members on the Chicago Police Department, Plaintiff, represented by Paul D. Geiger, Law Offices of Paul D. Geiger & Ronald C. Dahms . Patrick Leyden, Plaintiff, represented by Paul D. Geiger, Law Offices of Paul D. Geiger. City Of Chicago, Defendant, represented by Jennifer Anne Naber -- jnaber@lanermuchin.com -- Laner Muchin, Ltd., James J. Convery -- jconvery@lanermuchin.com -- Laner Muchin, Ltd., Joseph Michael Gagliardo -- jgagliardo@lanermuchin.com -- Laner Muchin, Ltd., Matthew Patrick Kellam, Laner Muchin, Ltd. & Priyavathi Reddy -- preddy@lanermuchin.com -- Laner Muchin, Ltd.. COACHELLA VALLEY: Faces Class Action Over Illegal Water Charges --------------------------------------------------------------- Courthouse News Service reported that a federal class action claims the Coachella Valley Water District, in the California desert, illegally charges its nonagricultural customers more for nonpotable water than it charges agricultural users, including some on the water district's board. CONDE NAST: Sued in Calif. Over Automatic Subscription Renewal -------------------------------------------------------------- Courthouse News Service reported that a class action in superior court claims Conde Nast magazines "enrolls consumers in automatic renewal or continuous service subscriptions without providing the 'clear and conspicuous' disclosures mandated by California law." A copy of the Complaint is available at: https://is.gd/zITqQr CONSUELO PRODUCE: Iglesias Sues over OT Wages for Delivery Drivers ------------------------------------------------------------------ OSCAR IGLESIAS, Individually and on Behalf of All Those Similarly Situated, the Plaintiff, vs. CONSUELO PRODUCE, LLC and PEDRO CONSUELO, Jointly and Severally, the Defendants, Case No. 1:19-cv-04484-ELR (N.D. Ga., Oct. 4, 2019), seeks to recover unpaid overtime premium pay pursuant to the Fair Labor Standards Act. Throughout Plaintiff's employment, he drove a small vehicle weighing less than 10,001 pounds, such that the Motor Carrier Act exemption does not apply, and he is owed overtime wages. The Plaintiff was not paid any overtime wages, despite working in excess of 40 hours per week throughout his employment. The exact number of employees who have suffered the same unpaid overtime wage injury as Plaintiff, and have yet to receive redress is unknown at this time. The Defendants have been in the food delivery industry, delivering food and beverages for clients by using trucks and smaller vehicles. The Plaintiff was employed by Defendants as a delivery driver.[BN] Attorneys for the Plaintiff are: Brandon A. Thomas, Esq. THE LAW OFFICES OF BRANDON A. THOMAS, PC 1 Glenlake Parkway, Suite 650 Atlanta, GA 30328 Telephone: (678) 330-2909 Facsimile: (678) 638-6201 E-mail: brandon@overtimeclaimslawyer.com CROSSMARK INC: Faces Salazar Wage and Hour Suit in California ------------------------------------------------------------- ROSALIE SALAZAR, individually and on behalf of other aggrieved employees, Plaintiff v. CROSSMARK, INC., a corporation; and DOES 1-20, inclusive, Defendants, Case No. 19NWCV00808 (Cal. Super. Ct., Los Angeles Cty., Oct. 23, 2019), is brought under the California Private Attorneys General Act seeking to remedy the Defendants' wage-and-hour violations. The Defendants have engaged in a uniform policy and systematic scheme of wage abuse against the Plaintiff and other non-exempt employees, including failing to provide meal and rest breaks, to pay minimum and overtime wages, and to furnish the Plaintiff and other employees with accurate, itemized wage statements. As a result of these violations, the Defendants are liable for civil penalties under the California PAGA, says the complaint. Rosalie Salazar has been employed by the Defendants as an event specialist from October 2018 to the present in South Gate, California. Crossmark, Inc. is a sales and marketing services company that operates throughout the United States. Crossmark is headquartered in Plano, Texas.[BN] The Plaintiff is represented by: Caspar Jivalagian, Esq. Vache A. Thomassian, Esq. KJT LAW GROUP LLP 230 North Maryland Avenue, Suite 306 Glendale, CA 91206 Phone: 818.507.8525 - and - Christopher A. Adams, Esq. ADAMS EMPLOYMENT COUNSEL 4740 Calle Carga Camarillo, CA 93012 Phone: 818.425.1437 CSX CORP: Denial of Class Cert. in Fuel Surcharge Suit Affirmed --------------------------------------------------------------- CSX Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 17, 2019, for the quarterly period ended September 30, 2019, that the U.S. Court of Appeals for the D.C. Circuit has affirmed the District Court's ruling in denying the class certification in the Fuel Surcharge Antitrust Litigation. In May 2007, class action lawsuits were filed against CSX Transportation, Inc. (CSXT) and three other U.S.-based Class I railroads alleging that the defendants' fuel surcharge practices relating to contract and unregulated traffic resulted from an illegal conspiracy in violation of antitrust laws. The class action lawsuits were consolidated in federal court in the District of Columbia. In 2017, the District Court issued its decision denying class certification. On August 16, 2019, the U.S. Court of Appeals for the D.C. Circuit affirmed the District Court's ruling. CSX Corporation, together with its subsidiaries, provides rail-based freight transportation services. The company offers rail services, as well as transports intermodal containers and trailers. CSX Corporation was founded in 1978 and is based in Jacksonville, Florida. DAIMLER TRUCKS: Davidson Suit Asserts FLSA and WARN Act Breach -------------------------------------------------------------- STEVEN DAVIDSON, individually, and on behalf of others similarly situated, Plaintiff, v. DAIMLER TRUCKS NORTH AMERICA LLC, Defendant, Case No. 3:19-cv-00543 (W.D. N.C., Oct. 17, 2019) is a collective and class action brought by Plaintiff, individually and on behalf of all similarly situated persons employed by Defendant arising from Defendant's willful violations of the Fair Labor Standards Act, the North Carolina Wage and Hour Act, and the Workers Adjustment and Retraining Notification Act of 1988. The Defendant maintained a common policy of prohibiting hourly-paid production line workers from being "clocked in" before and after their scheduled shifts, and/or during their meal breaks, regardless of whether they were working during such times. As a result, hourly-paid production line workers regularly worked "off the clock" before and after their scheduled shifts, and/or during their meal breaks, and were not paid for such work. In many weeks, the work hourly-paid production line workers performed "off the clock" occurred in excess of 40 hours in a workweek, and thus should have been compensated at time-and-a-half of their regular rates of pay, but was not. The Defendant knew that hourly-paid production line workers were working "off the clock" before and after their scheduled shifts, and/or during their meal breaks, but failed to compensate them for such time. In October 2019, Defendant laid off over 500 other full-time employees at its Mount Holly, North Carolina plant, including Plaintiff. The laid-off employees were entitled to receive 60 days advance written notice under the WARN Act from the Defendant. However, the Defendant failed to give the employees notice at least 60 days prior to laying them off, in violation of the WARN Act, says the complaint. Plaintiff worked for Defendant from approximately March 16, 2015 through approximately October 11, 2019 in Defendant's plant in Mount Holly, North Carolina. Defendant is an automotive industry manufacturer of commercial vehicles headquartered in Portland, Oregon, and is a wholly owned subsidiary of the German company Daimler AG.[BN] The Plaintiffs are represented by: Brian L. Kinsley, Esq. CRUMLEY ROBERTS LLP 2400 Freeman Mill Road Greensboro, NC 27406 Phone: (800) 288-1529 Fax: (336) 333-9894 Email: BLKinsley@crumleyroberts.com - and - Jason T. Brown, Esq. Nicholas Conlon, Esq. BROWN, LLC 111 Town Square Place, Suite 400 Jersey City, NJ 07310 Phone: (877) 561-0000 Fax: (855) 582-5297 Email: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com DEL TACO: Discovery Ongoing in Former Calif. Employee's Suit ------------------------------------------------------------ Del Taco Restaurants, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 21, 2019, for the quarterly period ended September 10, 2019, that the parties in the class action suit initiated by a former employee of the company are undergoing discovery. In March 2014, a former Del Taco employee filed a purported class action complaint alleging that Del Taco has not appropriately provided meal breaks and failed to pay wages to its California hourly employees. Del Taco said it intends to assert all of its defenses to this threatened class action and the individual claims. Del Taco has several defenses to the action that it believes could prevent the certification of the class, as well as the potential assessment of any damages on a class basis. Legal proceedings are inherently unpredictable, and the Company is not able to predict the ultimate outcome or cost of the unresolved matter. Del Taco said, "However, based on management's current understanding of the relevant facts and circumstances, the Company does not believe that these proceedings give rise to a probable or estimable loss and should not have a material adverse effect on the Company's financial position, operations or cash flows. Therefore, Del Taco has not recorded any amount for the claim as of September 10, 2019. No further updates were provided in the Company's SEC report. Del Taco Restaurants, Inc. operates a chain of fast food restaurants. The company consists of two separate Mexican fast-food groups, 79 Del Taco units and 36 Taco Villa restaurants. The company offers Mexican food items, such as tacos, burritos, quesadillas, burgers, French fries, and soft drinks. The company was incorporated in 1983 and is based in Atlanta, Georgia. Del Taco Restaurants operates as a subsidiary of W.R. Grace & Co. DOW CHEMICAL CO: Faces Suit over Mislabeled Herbicide Product ------------------------------------------------------------- BOOTHE FARMS, INC.; BIG RISK FARMS, INC.; JEFFREY D. BOOTHE; TERRY BOOTHE; ADAM BOOTHE; RINEHART FAMILY FARMS II; MM FAMILY FARMS; and JASON R. HANKS individually and on behalf of all those others similarly situated, Plaintiffs v. THE DOW CHEMICAL CO.; DOW AGROSCIENCES LLC; CORTEV A, INC.; and E. I. DU PONT DE NEMOURS AND CO., Defendants, Case No. 3:19-cv-00264 (E.D. Ark., Sept. 26, 2019) is an action for damages suffered by the Plaintiffs as a direct and proximate result of the Defendants' negligent and wrongful conduct in connection with the research, design, development, manufacture, testing, promotion, marketing, advertising, distribution, labeling, and sale of Loyant herbicide for use on rice crops. According to the complaint, the Defendants touted Loyant's ability to control certain weeds, such as bamyardgrass, while also representing that Loyant would not impact or harm rice crops or yields, or that any such impacts would be temporary. In direct contrast to these representations, however, Loyant failed to control bamyardgrass as well as other grasses and weeds and damaged the Plaintiffs' and the Class Members' rice crops causing financial loss. The Dow Chemical Company operates as a chemical company. The Company manufactures specialty chemicals, rubber, agro-science, and plastic materials. Dow Chemical serves the packaging, infrastructure, agricultural, and consumer care industries worldwide. [BN] The Plaintiffs are represented by: Clayton Smaistrla, Esq. SAUCIER & SMAISTRLA PLLC 200 Concord Plaza Drive, Suite 750 San Antonio, TX 78216 Telephone: (210) 901-8112 Facsimile: 210-338-8916 E-mail: clayton@s2lawfirm.com - and - Stephen B. Murray, Jr., Esq. Arthur M. Murray, Esq. Jessica W. Hayes MURRAY LAW FIRM 650 Poydras Street, Suite 2150 New Orleans, LA 70130 Telephone: 504-525-8100 Facsimile: 504-584-5249 E-mail: smurrajr@murray-lawfirm.com amurray@murray-lawfirm.com jhayes@murray-lawfirm.com James Pizzirusso Hausfeld LLP - and - James Pizzirusso, Esq. HAUSFELD LLP 1700 K St., NW, Ste 650 Washington, DC 20006 Telephone: 202-540-7200 Facsimile: 202-540-7201 E-mail: jpizzirusso@hausfeld.com DROPBOX, INC: IPO Documents Misleading, Deinnocentis Claims ----------------------------------------------------------- JASON MICHAEL DEINNOCENTIS, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. DROPBOX, INC., ANDREW W. HOUSTON, AJAY V. VASHEE, TIMOTHY J. REGAN, ARASH FERDOWSI, ROBERT J. MYLOD, JR., DONALD W. BLAIR, PAUL E. JACOBS, CONDOLEEZZA RICE, R. BRYAN SCHREIER, MARGARET C. WHITMAN, SEQUOIA CAPITAL XII, L.P., SEQUOIA CAPITAL XII PRINCIPALS FUND, LLC, SEQUOIA TECHNOLOGY PARTNERS XII, L.P., and SC XII MANAGEMENT, LLC, the Defendants, Case No. 5:19-cv-06348-BLF (N.D. Cal., Oct. 4, 2019), is a securities class action on behalf of all persons who purchased Dropbox Class A common stock pursuant or traceable to a the Registration Statement issued in connection with the Company's March 23, 2018 initial public offering. The lawsuit asserts claims under the Securities Act of 1933 against Dropbox, its senior executive officers and directors, and venture capital sponsors of the Company's initial public offering. The Plaintiff acquired Dropbox Class A common stock pursuant and/or traceable to the Registration Statement and was damaged thereby. According to the complaint, the Company maintains a multi-share class voting structure designed to concentrate voting control in the hands of Company insiders and early investors, such as the Defendants, while transferring a disproportionate amount of the economic risk of investing in the Company onto outside investors. Class A shares, which were sold in the IPO, have one vote each, while Class B shares, which are held by Company insiders and early stage investors, have ten votes each. Following the IPO, outstanding shares of Class B common stock represented approximately 98.1% of the voting power of Dropbox's outstanding capital stock. On February 23, 2018, Dropbox filed a registration statement for the IPO on Form S-1, which, after several amendments, was declared effective on March 22, 2018. On March 23, 2018, Dropbox filed the prospectus for the IPO on Form 424B4, which incorporated and formed 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. Specifically, the Registration Statement claimed that a significant proportion of the Company's registered user base was primed for monetization. The Defendants offered and sold 41.4 million Class A shares at $21 per share for over $869 million in gross offering proceeds, which included the full exercise of underwriters' over-allotment option to sell an additional 5.4 million shares. In addition, the Company conducted a private offering of Class A stock concurrently with the IPO in which it sold over 4.7 million shares to an institutional investor for an additional $100 million in gross proceeds. The Defendants also sold stock in the IPO, raking in more than $184 million after applicable underwriting discounts. Underwriters received more than $38.6 million in underwriting discounts and fees from the IPO proceeds, and several, including lead underwriters Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC, received tens of millions of dollars more as a result of payments by Dropbox towards a revolving credit facility maintained by these investment banks. On August 27, 2019, Dropbox stock closed at $17.53 per share, representing a decline of more than 16% from the IPO price. Shockingly, in connection with its second quarter 2019 earnings report, Dropbox still claimed to have "more than 500 million registered users" as of June 2019, indicating that the Company had experienced essentially no significant registered user growth since December 31, 2017 -- months prior to the IPO. The company had only converted an additional 2.6 million paid users in the year-and-a-half since the IPO, representing an annualized post-IPO growth rate of only 15% and less than 1% of the "300 million" figure provided in the Registration Statement. Similarly, the Company's revenue growth rate had dramatically decelerated to only 18% for 2019, a sharp decline from the 40% and 31% annual growth rates highlighted in the Registration Statement. Dropbox is a software and technology Company based in San Francisco, California. Its Class A common stock trades on the NASDAQ under the ticker symbol "DBX." Attorney for the Plaintiff are: Jennifer Pafiti, Esq. Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 1100 Glendon Avenue, 15th Floor Los Angeles, CA 90024 Telephone: (310) 405-7190 E-mail: jpafiti@pomlaw.com jalieberman@pomlaw.com ahood@pomlaw.com pdahlstrom@pomlaw.com EARTHCARE MANAGEMENT: Gonzalez Seeks Unpaid Overtime Wages ---------------------------------------------------------- JOSE GONZALEZ, Individually and On Behalf of All Similarly Situated Persons, Plaintiff, v. EARTHCARE MANAGEMENT, INC. And BRENT ABSHIRE, Defendants, Case No. 4:19-cv-04057 (S.D. Tex., Oct. 17, 2019) is an action arising under the Fair Labor Standards Act, brought both as an individual action and collective action to recover unpaid overtime compensation, liquidated damages, and attorney's fees owed to Plaintiff and all other similarly situated employees employed by, or formerly employed by Defendants its subsidiaries and affiliated companies. Plaintiff regularly worked in excess of 40 hours per week. The Defendants knew of, approved of, and benefited from Plaintiff's regular and overtime work. Plaintiff was entitled to be paid for all hours he worked for the Defendants, and to be paid an overtime premium for all work performed during the hours worked over 40 hours in each workweek. However, the Defendants failed to pay the Plaintiff for all of the overtime hours worked in many workweeks that the Plaintiff was employed by Defendants, as the Plaintiff worked in excess of 40 hours in most weeks, in clear violation of the FLSA. The Defendants' actions were willful and in blatant disregard for Plaintiff's federally protected right, says the complaint. Plaintiff Jose Gonzalez worked for Defendants as a laborer from July 8, 2012 until August 26, 2019. Defendants were an enterprise engaged in interstate commerce, operating on interstate highways, purchasing materials through commerce, transporting materials through commerce and on the interstate highways, conducting transactions through commerce.[BN] The Plaintiff is represented by: Josef F. Buenker, Esq. Thomas H. Padgett, Jr., Esq. Vijay Pattisapu, Esq. THE BUENKER LAW FIRM 2060 North Loop West, Suite 215 Houston, TX 77018 Phone: 713-868-3388 Facsimile: 713-683-9940 Email: jbuenker@buenkerlaw.com tpadgett@buenkerlaw.com vijay@buenkerlaw.com ELGIN MENTAL: Padilla Appeals Decision in Nadzhafaliyev Suit ------------------------------------------------------------ Plaintiff Daniel Padilla filed an appeal from a Court ruling in the lawsuit titled Ali Nadzhafaliyev, et al. v. Daniel Hardy, et al., Case No. 1:17-cv-04469, in the U.S. District Court for the Northern District of Illinois, Eastern Division. The nature of suit is stated as other civil rights. As previously reported in the Class Action Reporter, the case was filed on June 13, 2017, and is captioned as Ali Nadzhafaliyev; Sean Gunderson; Paul Olsson; Abby Grason; James Baker; Mark Owens; Daniel Padilla, Other Similarly situated Detainees who fear retaliation for Participating; and All residents/detainees of the Elgin Mental Health Center, Elgin, Illinois, the Plaintiffs v. Daniel Hardy; Coleen Delaney; Brian Dawson; Jeff Pharis; Danette Jungles; Bill Epperson; Dr. Langely; Debbie Giardina; Richard Malis; Rhyma Jacobson; Tom Comeford; Daniel Malone; Jeff Pilario; Anderson Freeman; Penny Sanchez; Lorrie Campbell; Sharon Coleman; Carmen Carter; Naina Desai; Ghouse Mouhoudini, in his official & individual capacities; and Elgin Mental Health Center, an Illinois Agency; and Daniel Dyslin, in his official capacity(ies) as general Counsel and legal oversight official for the Illinois Department of Human Services, & the Elgin Mental Health Center & his individual capacity, the Defendants, Case No. 1:17-cv-04469 (N.D. Ill.). Elgin Mental Health Center (formerly Elgin State Hospital) is a mental health facility operated by the State of Illinois in Elgin, Illinois. The appellate case is captioned as Daniel Padilla v. Daniel Hardy, et al., Case No. 19-2966, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case states that the Appellant's brief is due on or before November 18, 2019, for Daniel Padilla. Plaintiff-Appellant DANIEL PADILLA, on behalf of himself and other similarly situated detainees, who fear retaliation for participating, appears pro se.[BN] Defendants-Appellees DANIEL HARDY, in his official & individual capacities; COLEEN DELANEY, in her official & individual capacities; DANETTE JUNGLES, in her official & individual capacities; BILL EPPERSON, in his official & individual capacities; and DEBBIE GIARDINA, in her official and individual capacities, are represented by: Nadine J. Wichern, Esq. OFFICE OF THE ATTORNEY GENERAL 100 W. Randolph Street State of Illinois Center Chicago, IL 60601-0000 Telephone: (312) 814-5659 E-mail: nwichern@atg.state.il.us EPIC GAMES: Krohm Dismissed w/o Prejudice for Lack of Jurisdiction ------------------------------------------------------------------ Judge Terrence W. Boyle of the District Court for the Eastern District of North Carolina, Western Division, dismissed without prejudice the case styled as ERIC KROHM, individually, and on behalf of others similarly situated, Plaintiff, v. EPIC GAMES, INC. Defendant, Case No. 5:19-CV-173-BO (E.D. N.C.). Defendant Epic Games is the developer of Fortnite, a popular videogame with millions of players in the United States and around the world. The Plaintiff, like other Fortnite players, was required to create an account in order to play, which entailed providing personally identifiable information ("PII"). The Defendant allegedly promised to maintain appropriate technical safeguards of player data. Around November 2018, a cybersecurity firm alerted the Defendant to a vulnerability in Fortnite's system which allowed cyber-criminals and unauthorized parties to access and extract PII, payment information, and other sensitive data associated with Fortnite players' accounts. Fortnite was allegedly the target of a data hack in the summer of 2018, which affected millions of players' accounts. The Defendant allegedly failed to take measures to cure the cyber vulnerability and to alert customers that their information may have been compromised. In response to learning about the cyber vulnerability, the Plaintiff has taken time and effort to mitigate the risk of identity theft, including changing passwords and paying for credit monitoring services. He has also allegedly experienced mental anguish and anxiety from the fear of identity theft and fraud. The Plaintiff brought the putative class action on behalf of the millions of Fortnite account holders potentially affected by the cyber vulnerability. The Plaintiff alleges violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, breach of implied contract, and negligence. The suit was originally filed in the Circuit Court of Cook County, Illinois. The Defendant removed the case to federal court in Illinois based on the Class Action Fairness Act ("CAFA"). Once in federal court, the case was transferred to the Eastern District of North Carolina pursuant to 28 U.S.C. Section 1404(a) because of a forum selection clause in the End User License Agreement ("EULA"). The Defendant moved to dismiss all of the Plaintiff's causes of action under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, asks the North Carolina Court to compel arbitration pursuant to the arbitration provision of the EULA. The case involves a peculiar role reversal. The Plaintiff, who wants the case returned to Illinois state court, argues that he does not have Article III standing because he has not pled a proper injury-in-fact. The Defendant, who removed the case to federal court, argues the opposite. It argues that the Plaintiff has alleged sufficient injuries for Article III standing, just not the economic damages needed for a cognizable claim under his asserted causes of action. Judge Boyle holds that the case must be dismissed because the North Carolina Court lacks subject-matter jurisdiction over the Plaintiff's claims. The Plaintiff alleges no Article III injury-in-fact. The mere existence of the data vulnerability does not constitute injury-in-fact. Instead, the complaint must allege a sufficient factual basis from which to conclude either that the Plaintiff's compromised data has been misused, or that it will be misused, such that concrete harms are actual or imminent. The Plaintiff's complaint contains no facts showing, or even suggesting, that his personal data has been used as a result of the cyber vulnerability, Judge Boyle finds. Because the Defendant wants the North Carolina Court to dismiss the case under Rule 12(b)(6) or compel arbitration, it argues, among other things, that CAFA entitles it to have its case decided by a federal court. Judge Boyle holds that the Defendant's argument fails. The requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute. The North Carolina Court does not have Article III jurisdiction over the case, and therefore can neither dismiss for failure to state a claim nor compel arbitration. The case must be dismissed without prejudice for lack of jurisdiction. The Plaintiff moved to remand the case back to the Circuit Court of Cook County, Illinois even though the case was transferred from the Northern District of Illinois. The North Carolina Court is aware that at least one circuit has held that a district court can send a case to the original state court even when that state court was not the transferor. Judge Boyle declines to construe the Court's ability to remand quite so liberally. When a court remands a case, it sends the case back to the place from which it came. The case was transferred from the Northern District of Illinois, not the Circuit Court of Cook County. Judge Boyle said he cannot send the case to the Circuit Court of Cook County, and therefore has no other option but to dismiss the case for lack of Article III jurisdiction. Judge Boyle denied the Plaintiff's motion to remand. Finally, the Plaintiff also moved to stay briefing on the Defendant's motion to dismiss pending resolution of his motion to remand. As explained, the Judge is dismissing the case, so the Plaintiff's motion to stay will be mooted. For the reasons stated, Judge Boyle (i) denied the Defendant's motion to dismiss for failure to state a claim; (ii) denied the Plaintiff's motions to remand and to stay briefing; and (iii) dismissed without prejudice the case for lack of jurisdiction. The Clerk is directed to close the case. A full-text copy of Judge Boyle's Oct. 1, 2019 Order is available at https://is.gd/IPH7r9 from Leagle.com. Eric Krohm, individually and on behalf of similarly situated individuals, Plaintiff, represented by Daniel K. Bryson, Whitfield, Bryson & Mason, LLP, Jad Sheikali -- jsheikali@mcgpc.com -- McGuire Law, P.C., Myles P. McGuire -- mmcguire@mcgpc.com -- McGuire Law, P.C., Patrick M. Wallace, Whitfield, Bryson & Mason, LLP & Timothy Patrick Kingsbury -- tkingsbury@mcgpc.com -- McGuire Law, P.C. Epic Games, Inc., a Maryland corporation, Defendant, represented by Constantine Koutsoubas -- ckoutsoubas@kelleydrye.com -- Kelley Drye & Warren LLP, Jeffrey S. Jacobson -- jjacobson@kelleydrye.com -- Drinker Biddle & Reath LLP, Matthew Charles Luzadder -- mluzadder@kelleydrye.com -- Kelley Drye & Warren LLP, Andrew Robert Shores, Williams Mullen, Robert C. Van Arnam, Williams Mullen & Wes J. Camden , Williams Mullen. FEDEX GROUND: Hall Suit Removed to C.D. California -------------------------------------------------- The case captioned ROBERT B. HALL, individually, and on behalf of all others similarly situated, Plaintiff, v. FEDEX GROUND PACKAGE SYSTEM, INC., a Delaware Corporation; GHG CORPORATION, a Nevada Corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 19STCV26934 was removed from the Superior Court of the State of California, in and for the County of Los Angeles, to the United States District Court for the Central District of California on Oct. 17, 2019, and assigned Case No. 2:19-cv-08973. In his Complaint, Plaintiff alleges ten causes of action against FedEx Ground: (1) Failure to Provide Required Meal Periods; (2) Failure to Provide Required Rest Periods; (3) Failure to Pay Overtime Wages; (4) Failure to Pay Minimum Wage; (5) Failure to Pay All Wages Due to Discharged or Quitting Employees; (6) Failure to Maintain Required Records; (7) Failure to Provide Accurate Itemized Wage Statements; (8) Failure to Indemnify Employees for Necessary Expenditures Incurred in Discharge of Duties; (9) Unlawful Deductions from Wages; and (1) Unfair and Unlawful Business Practices.[BN] The Defendants are represented by: SHAUN J. VOIGT, ESQ. FISHER & PHILLIPS LLP 444 South Flower Street, Suite 1500 Los Angeles, California 90071 Phone: (213) 330-4500 Facsimile: (213) 330-4501 Email: svoigt@fisherphillips.com FERRELLGAS PARTNERS: Settlement Reached in Direct Customers Suit ---------------------------------------------------------------- Ferrellgas Partners, L.P. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 15, 2019, for the fiscal year ended July 31, 2019, that the company has reached a settlement with direct customers, pursuant to which the company agreed to pay a total of $6.25 million to resolve all claims asserted by the putative direct purchaser class related to barbeque cylinders. The company has been named as a defendant, along with a competitor, in putative class action lawsuits filed in multiple jurisdictions. The lawsuits, which were consolidated in the Western District of Missouri on October 16, 2014, allege that Ferrellgas and a competitor coordinated in 2008 to reduce the fill level in barbeque cylinders and combined to persuade a common customer to accept that fill reduction, resulting in increased cylinder costs to direct customers and end-user customers in violation of federal and certain state antitrust laws. The lawsuits seek treble damages, attorneys' fees, injunctive relief and costs on behalf of the putative class. These lawsuits have been coordinated for pretrial purposes by the multidistrict litigation panel. The Federal Court for the Western District of Missouri initially dismissed all claims brought by direct and indirect customers other than state law claims of indirect customers under Wisconsin, Maine and Vermont law. The direct customer plaintiffs filed an appeal, which resulted in a reversal of the district court's dismissal. The company filed a petition for a writ of certiorari which was denied. An appeal by the indirect customer plaintiffs resulted in the court of appeals affirming the dismissal of the federal claims and remanding the case to the district court to decide whether to exercise supplemental jurisdiction over the remaining state law claims. Thereafter, in August 2019, the company reached a settlement with the direct customers, pursuant to which it agreed to pay a total of $6.25 million to resolve all claims asserted by the putative direct purchaser class. With respect to the indirect customers, the district court exercised supplemental jurisdiction over the remaining state law claims, but then granted in part the company's pleadings-based motion and dismissed 11 of the 24 remaining state law claims. As a result, there are 13 remaining state law claims brought by a putative class of indirect customers. Ferrellgas Partners said, "We believe we have strong defenses and intend to vigorously defend against these remaining claims. We do not believe loss is probable or reasonably estimable at this time related to the putative class action lawsuit." Ferrellgas Partners, L.P. distributes and sells propane and related equipment and supplies. The company transports propane to propane distribution locations, tanks on customers' premises, or to portable propane tanks delivered to retailers. Ferrellgas Partners, L.P. was founded in 1939 and is headquartered in Overland Park, Kansas . FIBROCELL SCIENCE: Faces Franchi Suit Over Sale to Castle Creek --------------------------------------------------------------- ADAM FRANCHI, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. FIBROCELL SCIENCE, INC., DOUGLAS J. SWIRSKY, JULIAN P. KIRK, JOHN MASLOWSKI, MARC B. MAZUR, KELVIN D. MOORE, MARCUS E. SMITH, and CHRISTINE ST. CLARE, Defendants, Case No. 1:19-cv-02001-UNA (D. Del., Oct. 23, 2019), stems from a proposed transaction, pursuant to which Fibrocell will be acquired by Castle Creek Pharmaceutical Holdings, Inc. and Castle Creek Merger Corp. On September 12, 2019, Fibrocell's Board of Directors caused the Company to enter into an agreement and plan of merger with Castle Creek. Pursuant to the terms of the Merger Agreement, Fibrocell's stockholders will receive $3.00 in cash for each share of Fibrocell common stock they own. On October 11, 2019, the Defendants filed a proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading, the Plaintiff alleges, citing violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. The Proxy Statement omits material information regarding the Company's financial projections because it fails to disclose, for each set of projections: (i) all line items used to calculate EBITDA and EBIT; (ii) projected free cash flows and all underlying line items; and (iii) a reconciliation of all non-GAAP to GAAP metrics, the Plaintiff contends. The Plaintiff adds that the Proxy Statement omits material information regarding the analyses performed by the Company's financial advisor, Canaccord Genuity, in connection with the Proposed Transaction because the Statement fails to disclose the individual multiples and metrics for the companies observed by Canaccord in the analysis. The Proxy Statement also fails to disclose the nature of Canaccord's communications with the "five potential strategic partners identified by the Special Committee" regarding "their potential interest in acquiring the Company," the Plaintiff also points out. The Company's stockholders are entitled to an accurate description of the process leading up to the execution of the Merger Agreement, says the complaint. The Plaintiff is the owner of Fibrocell common stock. Fibrocell is a cell and gene therapy company focused on improving the lives of people with rare diseases of the skin and connective tissue.[BN] The Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Phone: (302) 295-5310 Facsimile: (302) 654-7530 Email: 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 Phone: (484) 324-6800 Facsimile: (484) 631-1305 Email: rm@maniskas.com GD TRANSPORT: McKimm Seeks Minimum Wages for Truck Drivers ---------------------------------------------------------- STEVEN MCKIMM on his own behalf and all similarly situated individuals, the Plaintiff, v. GD TRANSPORT, LLC, a Florida limited liability company, and JOSLEMY S. DELGADO, individually, the Defendants, the Case No. 6:19-cv-01914 (M.D. Fla., Oct. 7, 2019), seeks to recover minimum wages pursuant to the Fair Labor Standards Act. The Plaintiff and those similarly situated worked for Defendants as truck drivers. The Defendants failed to track the Truck Drivers' hours of work beyond those hours tracked by the United States Department of Transportation. In many weeks, the Truck Drivers were paid less than minimum wage for each hour that they worked, the lawsuit says.[BN] Attorney for the Plaintiffs are: Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Telephone: 813 223 5502 Facsimile: 813 223 5402 E-mail: MEdelman@forthepeople.com GENERAL MOTORS: Palopoli Case Now Under Judges Wilson and Wilner ---------------------------------------------------------------- The class action lawsuit styled as Joseph Palopoli, Jr. on behalf of himself and a class of all others similarly situated, the Plaintiff v. General Motors, LLC; General Motors Holdings LLC; and General Motors Company, the Defendants (C.D. Cal., Filed Oct. 11, 2019), was transferred from Judge Dale S. Fischer and Magistrate Judge Steve Kim to Judge Stephen V. Wilson and Magistrate Judge Michael R. Wilner on Oct. 18, 2019, for all further proceedings. The case number now reflects the initials of the transferee judge, Case No. 2:19-cv-08770 SVW(MRWx). The suit involves Diversity-Motor Vehicle Product Liability. The case is related to Case No. 2:19-cv-07668-SVW-MRW. General Motors is an American multinational corporation that designs, manufactures, markets, and distributes vehicles and vehicle parts, and sells financial services, with global headquarters in Detroit's Renaissance Center, in Detroit, Michigan.[BN] The Plaintiff is represented by: Patrice L. Bishop, Esq. Melissa R. Emert, Esq. STULL STULL AND BRODY 9430 West Olympic Boulevard Suite 400 Beverly Hills, CA 90212 Telephone: (310) 209-2468 Facsimile: (310) 209-2087 E-mail: memert@ssbny.com - and - Gary S. Graifman, Esq. KANTROWITZ GOLDHAMER GRAIFMAN 747 Chestnut Ridge Rd., Suite 200 Chestnut Ridge, NY 10977 Telephone: (845) 356-2570 Facsimile: (845) 356-4335 E-mail: ggraifman@kgglaw.com GIGAMON INC: Golub Appeals Decision in Carpenter Securities Suit ---------------------------------------------------------------- Plaintiff John E. Golub filed an appeal from a Court ruling in the lawsuit styled Brian Carpenter, et al. v. Gigamon Inc., et al., Case No. 3:17-cv-06653-WHO, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, the lawsuit was filed on November 17, 2017, alleging violations of the Securities Exchange Act of 1934, arising from a proposed merger between Gigamon and Elliott Management Corporation. Pursuant to the merger, the Company's shareholders stand to receive $38.50 in cash for each share of Gigamon stock they own, representing $1.6 billion in equity value. The appellate case is captioned as John Golub, et al. v. Gigamon Inc., et al., Case No. 19-16975, 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 4, 2019; -- Transcript is due on December 2, 2019; -- Appellant John E. Golub's opening brief is due on January 13, 2020; -- Appellees Arthur W. Coviello Jr., Joan A. Dempsey, Elliott Associates, L.P., Elliott International, L.P., Elliott Management Corporation, Evergreen Coast Capital Corporation, Gigamon Inc., Ginsberg Holdco, Inc., Ginsberg Merger Sub, Inc., Ted C. Ho, Paul A. Hooper, John H. Kispert, Paul E. Milbury, Corey M. Mulloy, Michael C. Ruettgers, Robert E. Switz and Dario Zamarian's answering brief is due on February 13, 2020; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant, JOHN E. GOLUB, On Behalf of Himself and All Others Similarly Situated, is represented by: Danielle Suzanne Myers, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: dmyers@rgrdlaw.com - and - Shawn Anthony Williams, Esq. ROBBINS GELLER RUDMAN & DOWD LLP One Montgomery Street San Francisco, CA 94104 Telephone: (415) 288-4545 E-mail: shawnw@rgrdlaw.com Defendants-Appellees GIGAMON INC., COREY M. MULLOY, PAUL A. HOOPER, ARTHUR W. COVIELLO, Jr., JOAN A. DEMPSEY, TED C. HO, JOHN H. KISPERT, PAUL E. MILBURY, MICHAEL C. RUETTGERS, ROBERT E. SWITZ and DARIO ZAMARIAN are represented by: David Joel Berger, Esq. Jerome F. Birn, Jr., Esq. Joni Ostler, Esq. WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 E-mail: dberger@wsgr.com jbirn@wsgr.com jostler@wsgr.com Defendants-Appellees ELLIOTT MANAGEMENT CORPORATION, ELLIOTT ASSOCIATES, L.P., ELLIOTT INTERNATIONAL, L.P., EVERGREEN COAST CAPITAL CORPORATION, GINSBERG HOLDCO, INC., and GINSBERG MERGER SUB, INC., are represented by: Michael J. Kahn, Esq. GIBSON, DUNN & CRUTCHER LLP 1881 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 849-5330 E-mail: mjkahn@gibsondunn.com - and - Brian Michael Lutz, Esq. GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Telephone: (415) 393-8200 E-mail: blutz@gibsondunn.com GLADIATOR ENERGY: Munoz Seeks Overtime Pay for Pump Operators ------------------------------------------------------------- MARCUS MUNOZ, Individually and on behalf of All Others Similarly Situated, Plaintiff v. GLADIATOR ENERGY LLC and STEVEN CLOY GANTT, Defendants, Case No. 7:19-cv-00251 (W.D. Tex., Oct. 23, 2019), accuses the Defendants of violating the Fair Labor Standards Act in connection with their failure to pay the Plaintiff and other salaried Pump Operators lawful overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff and other similarly situated employees worked in excess of 40 hours per week throughout their tenure with the Defendants, according to the complaint. On average, the Plaintiff and other similarly-situated employees worked over 90 hours per week but they did not receive any overtime compensation as required by the FLSA. Within the time period relevant to this case, the Plaintiff and other similarly situated employees were misclassified as exempt and were only paid a salary, says the complaint. The Plaintiff worked for the Defendants as a Pump Operator from July 2019 through August 2019. Gladiator Energy LLC is a foreign limited liability company, licensed to do business in the State of Texas.[BN] The Plaintiff is represented by: Merideth Q. McEntire, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: merideth@sanfordlawfirm.com josh@sanfordlawfirm.com GLOBAL RESORTS: Underpays Housekeepers, Andreus Suit Alleges ------------------------------------------------------------ NANCY ANDREUS, individually and on behalf of all others similarly situated, Plaintiff v. GLOBAL RESORTS GROUP, CORP. d/b/a EL PARAISO MOTEL, Defendant, Case No. 1:19-cv-23993-RNS (S.D. Fla., Sept. 26, 2019) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Andreus was employed by the Defendant as housekeeper. Global Resorts Group, Corp. d/b/a El Paraiso Motel is a Florida corporation operating a motel and accommodation services. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com GLYNN COUNTY, GA: Settles Homestead Class Action for $17.5MM ------------------------------------------------------------ Taylor Cooper, writing for The Brunswick News, reports that Glynn County released a notice on Oct. 7 of a $17.5 million preliminary settlement in a class-action lawsuit over improper application of the Scarlett Williams homestead exemption. "We had an expert go in and calculate the refund amount, and we believe this will give class members 100 percent of what they're due. You can't get better than that," Jay Roberts, attorney for the class, said. He said the class includes upwards of 13,000 Glynn County residents. "If you applied for and received the local homestead exemption known as the Scarlett Williams exemption . . . for tax years 2010 through 2018, you may be a class member and eligible for a tax refund," the notice released by the county reads. The class-action lawsuit goes back to 2012 when J. Matthew and Elizabeth Coleman filed a lawsuit alleging they had been overcharged on property taxes due to misapplication of the Scarlett Williams homestead exemption. In effect, the homestead exemption "freezes" a property's assessed value at the value of the base year. In the lawsuit, the Colemans alleged the county had used the wrong base year. It had used the year they applied for an exemption as the base year, when it should have used the year before. For some, this means the county has been overcharging them for years. For others, it may mean an increase in property taxes as their base year is changed to a year in which their property values were higher. Two more lawsuits filed in 2013 and 2014 alleged the same thing, and all three were certified as a single class-action lawsuit in 2015. Cobb County Superior Court Judge G. Grant Brantley sided with the county in 2017, clearing it of civil charges. In March 2018, the Georgia Court of Appeals reversed the judge's decision. The case went to the state Supreme Court, which declined to hear the case later that year in August. As such, the appeals court's ruling stands. The settlement is not final until Judge Brantley issues his final order. "The court will hold a final approval hearing at 10 a.m. on Nov. 8, 2019, at the Glynn County Courthouse. After the final approval hearing, the court will decide whether to approve the settlement. The court may also decide how much to pay class counsel or whether to approve the class service petition. We do not know how long it will take the court to make its decision," according to the notice. The settlement notice also details the method by which refunds will be calculated. Generally, refund administrators will take the difference between the value of the correct year and the actual base year and multiply it by the county and Glynn County Schools millage rate. Some factors may impact the calculations, such as the size of the property, whether or not the assessed value was "refrozen" — the practice of resetting the base year to a later year when values were lower — additional property tax exemptions and construction occurring between the incorrect and correct years. "At this time, it is not known how much each individual refund will be. The administrators will calculate the individual refund amounts after the final approval hearing and after the court finally approves the settlement," according to the notice. Not all who meet the criteria will qualify for a refund, however. If the base year used to calculate property taxes is incorrect, but is less than or equal to the correct base year, that taxpayer will be excluded from the settlement, the notice states. For more information on the settlement and to whom it applies, visit glynncounty.org/taxrefundcase. Class counsel in the case is St. Simons Island law firm Roberts Tate. Anyone who meets the class criteria can call the firm at 912-638-5200. "A lot of people have been doing so, starting Oct. 9 when the notice ran in the paper," Roberts said. [GN] GOOGLE LLC: Azzano et al. Sue over Biometric Data Collection ------------------------------------------------------------ MICHAEL AZZANO; and NOE GAMBOA, individually and on behalf of all others similarly situated, Plaintiffs v. GOOGLE LLC, Defendant, Case No. 2019CH11153 (Il. Cir., Cook Cty., Sept. 26, 2019), is an action against the Defendant for collecting and storing individual biometric identifiers and biometric information without notice and consent. Plaintiffs bring the class action to prevent Google from further violating the privacy rights of Google Photos users, and to recover statutory damages for Google's unauthorized collection, storage, and use of these individuals' biometrics in violation of the Biometric Information Privacy Act. Google LLC is a global technology company specializes in internet-related services and products. The Company is primarily focused on web-based search and display advertising tools, search engine, cloud computing, software, and hardware. Google serves customers worldwide. [BN] The Plaintiffs are represented by: Katrina Carroll, Esq. Kyle A. Shamberg, Esq. CARLSON LYNCH LLP 111 West Washington Street, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 E-mail: kcarroll@carlsonlynch.com kshamberg@carlsonlynch.com - and - Tina Wolfson, Esq. Theodore Maya, Esq. Bradley King, Esq. AHDOOT & WOLFSON, PC 10728 Lindbrook Drive Los Angeles, CA 90024 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: twolfson@ahdootwolfson.com tmaya@ahdootwolfson.com bking@ahdootwolfson.com - and - David P. Milian, Esq. CAREY RODRIGUEZ MILIAN GONYA, LLP 1395 Brickell Avenue, Suite 700 Miami, FL 33131 Telephone: (305) 372-7474 Facsimile: (305) 372-7475 E-mail: dmilian@careyrodriguez.com GREENLAND ACQUISITION: Stipulation of Dismissal in Wheby Approved ----------------------------------------------------------------- Greenland Acquisition Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 21, 2019, for the quarterly period ended August 31, 2019, that the stipulation and order of dismissal in Wheby v. Greenland Acquisition Corporation, et al., Case No. 19-1758-MN, has been approved. On July 12, 2019, the Company filed with the Securities and Exchange Commission (SEC) a preliminary proxy statement in connection with a special meeting of the shareholders of the Company to consider and vote on the Business Combination and related matters. Subsequently, the Company filed an amendment to the Preliminary Proxy Statement and on September 26, 2019, the Company filed with the SEC a definitive proxy statement . On September 19, 2019, a purported class action challenging the Business Combination was filed in the United States District Court for the District of Delaware (the "District Court"), captioned Wheby v. Greenland Acquisition Corporation, et al., Case No. 19-1758-MN (D. Del.). The Action alleged certain violations of the Securities Exchange Act of 1934, as amended, and sought, among other things, to enjoin the Business Combination from closing (or, if consummated, to rescind the Business Combination or award rescissory damages), to require the Company to issue a separate proxy statement, and to receive an award of attorneys' fees and costs. The Company believes that the allegations in the complaint are without merit and denies that any further disclosure beyond that already contained in the Preliminary Proxy Statement is required under applicable law to supplement the Preliminary Proxy Statement included therein which has been disseminated to shareholders of the Company. Nonetheless, in order to moot plaintiff's unmeritorious disclosure claims, avoid nuisance and possible expenses, and provide additional information to the shareholders, the Company determined to voluntarily make minor modifications to the Definitive Proxy Statement, which the Company deemed immaterial. On October 14, 2019, the plaintiff, the Company and all other named defendants in the Action entered into a confidential memorandum of understanding, pursuant to which a Stipulation and Order of Dismissal of the Action was filed on October 14, 2019. The Stipulation of Dismissal was approved and entered by the District Court on October 15, 2019. Among other things, the Stipulation of Dismissal acknowledged that the Definitive Proxy Statement mooted the plaintiff's claims regarding the sufficiency of disclosures, dismissed all claims asserted in the Action, with prejudice as to the plaintiff only, permits the plaintiff to seek an award of attorneys' fees in connection with the mooted claims, and reserves the defendants' rights to oppose such an award, if appropriate. Greenland Acquisition Corporation operates as a blank check company. The Company aims to acquire one and more businesses and assets, via a merger, capital stock exchange, asset acquisition, stock purchase, and reorganization. The company is based in Beijing, People's Republic of China. HAIRO'S PLACE: Gonzalez Hits Unpaid Minimum Wages ------------------------------------------------- LINA M. GONZALEZ, on behalf of herself and others similarly situated, Plaintiff, v. HAIRO'S PLACE INC. d/b/a HAIRO'S NIGHT CLUB, JAIRO RODRIGUEZ, CAROLINA RODRIGUEZ, and JOHN DOES 1-5, Defendants, Case No. 1:19-cv-05874 (E.D. N.Y., Oct. 17, 2019) is Complaint against Defendants, brought by Plaintiff, alleging that, pursuant to the Fair Labor Standards Act and the New York Labor Law, she is entitled to recover from the Defendants unpaid minimum wages; liquidated and statutory damages; prejudgment and post-judgment interest; and attorneys' fees and costs. Beginning in January 2019 and continuing through the remainder of her employment on September 9, 2019, Plaintiff was not paid proper minimum wages, asserts the complaint. From the beginning of Plaintiff's employment and continuing through August 2015, Defendants paid Plaintiff entirely in cash and failed to provide Plaintiff with weekly wage statements setting forth, among other things, Plaintiffs gross wages, deductions, and net wages. The Defendants knowingly and willfully operate their business with a policy of not paying either the FLSA minimum wage or the New York State minimum wage to Plaintiff and other similarly situated employees. During the course of Plaintiff's employment, Defendants failed to maintain accurate and sufficient time and pay records, says the complaint. Plaintiff was employed by Defendants to work as a non-exempt server/waitress from July 2014 through September 9, 2019. HAIRO'S, owns and operates a nightclub/sports bar known as "Hairo's Night Club," located at 81-09 Roosevelt Avenue, Jackson Heights, New York 11372.[BN] The Plaintiffs are represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 10 Grand Central 155 East 44th Street - 6th Floor New York, NY 10017 Phone: (212) 209-3933 Fax: (212) 209-7102 Email: info@jcpclaw.com HASBRO INC: Lead Plaintiff Drops Suit over Toys 'R' Us Disclosures ------------------------------------------------------------------ Hasbro, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2019, for the quarterly period ended September 29, 2019, that the lead plaintiff in the putative securities class action lawsuit over the company's alleged misleading statements with respect to the financial condition of Toys"R"Us, Inc. had voluntarily dismissed the action without prejudice against the Defendants. On or about September 28, 2018, a putative securities class action complaint was filed against the Company and certain of its officers and/or directors in the U.S. District Court for the District of Rhode Island, on behalf of all purchasers of Hasbro common stock between April 24, 2017 and October 23, 2017, inclusive. The complaint alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, alleging that Defendants purportedly made materially false and misleading statements in connection with the financial condition of Toys"R"Us, Inc. and its impact on the Company, as well as the financial impact on the Company's business of economic conditions in the United Kingdom and Brazil. On October 18, 2019, the lead plaintiff in this matter voluntarily dismissed the action without prejudice against the Defendants. Hasbro, Inc., together with its subsidiaries, operates as a play and entertainment company. Hasbro, Inc. was founded in 1923 and is headquartered in Pawtucket, Rhode Island. HEALTH PROVIDERS CHOICE: Underpays Health Care Staff, Askar Says ---------------------------------------------------------------- MAHA ASKAR, individually and on behalf of all others similarly situated, Plaintiff v. HEALTH PROVIDERS CHOICE, INC.; and DOES 1 to 10, Defendants, Case No. 5:19-cv-06125 (N.D. Cal., Sept. 26, 2019) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Askar was employed by the Defendants as health care professional. Health Providers Choice Inc provides supplemental healthcare staffing services. The Company offers lab, pharmacy, therapy, case managers, dialysis, home care, house supervisor, intensive care unit, nurse manager, sleep tech, radiology, and trauma care unit positions. [BN] The Plaintiff is represented by: Matthew B. Hayes, Esq. Kye D. Pawlenko, Esq. HAYES PAWLENKO LLP 595 E. Colorado Blvd., Suite 303 Pasadena, CA 91101 Telephone: (626) 808-4357 Facsimile: (626) 921-4932 E-mail: kpawlenko@helpcounsel.com mhayes@helpcounsel.com HEALTH RECOVERY: Foster Sues over Data Breach --------------------------------------------- TROY FOSTER; individually, and on behalf of all others similarly situated, the Plaintiff, v. HEALTH RECOVERY SERVICES, INC., the Defendant, Case No. 2:19-cv-04453-ALM-KAJ (S.D. Ohio, Oct. 6, 2019), alleges that Defendant failed to adequately protect and secure Personal Information in its possession; failed to timely detect the breach; and failed to follow state and federal laws related to protecting health information. As a result, unauthorized individuals gained and kept access to and obtained Personal Information belonging to Plaintiff Foster and Data Breach Class members. Health Recovery Services, Inc. is an Athens, Ohio-based provider of alcohol and drug addiction services. In providing these services, HRS collects and stores the Personal Information of recipients of these services. This Personal Information includes, but is not limited to, names, addresses, telephone numbers, dates of birth, medical information, health insurance information, diagnoses, treatment information, and social security numbers. Social security information and health related information of the type that was involved in this data breach is entitled to high level of protection due to its private and confidential nature. The protection to which this information is entitled is recognized by statutory and case law, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The combination of this information with the names and birth dates of Mr. Foster and Data Breach Class members enhances the sensitivity of the information, making it susceptible to abuse and exploitation and requires the utmost protection in its handling. HRS knew and understood the confidential and private nature of the Personal Information of Plaintiff Foster and Data Breach Class members and owed a duty to Plaintiff Foster and Data Breach Class members to protect and maintain the confidentiality of the Personal Information. In particular, social security numbers are a form of national identifier and are not easily replaced. Unlawful exploitation of social security numbers costs the federal government hundreds of millions of dollars a year from the fraudulent filing of tax returns by identity thieves and extols a severe financial toll on persons whose social security numbers are stolen and/or misappropriated. The present case stems from the unauthorized access of Defendant HRS' computer storage systems. On February 5, 2019, Defendant HRS discovered that an unauthorized IP address had remotely accessed its computer network which contained the Personal Information of Plaintiff Foster and Data Breach Class members since November 14, 2019. Despite Defendant HRS' duty to expeditiously notify individuals that their Personal Information may have been compromised, Defendant HRS kept its knowledge of the data breach secret from Plaintiff Foster and Data Breach Class members until releasing notification titled "NOTICE OF DATA INCIDENT" on April 5, 2019, roughly two months after Defendant discovered that the Personal Information of Plaintiff Foster and the Data Breach Class members had been compromised and misappropriated since November 14, 2018. Troy Foster is a resident of Athens, Ohio. He is, and was during the period of the Defendant HRS' data breach, a citizen of the State of Ohio. Foster was a recipient of services from Health Recovery Services, and thus had his Personal Information compromised as a result of Defendant HRS' data breach. Defendant Health Recovery Services, Inc. is an Ohio private non-profit 501(c)3 corporation with its principle place of business in Athens, Ohio. Defendant HRS' website states that its mission involves "serving those affected with mental illness and alcohol, tobacco, and drug addiction." Defendant HRS states that they offer "both outpatient and residential treatment options for consumers."[BN] Attorney for the Plaintiff are: Michael L. Fradin, Esq. LAW OFFICE OF MICHAEL L. FRADIN 8401 Crawford Ave. Ste. 104 Skokie, IL 60076 Telephone: 847-986-5889 Facsimile: 847-673-1228 E-mail: mike@fradinlaw.com HEARTHSIDE FOOD: Owens Seeks Overtime Pay for Machine Operators --------------------------------------------------------------- JESSICA OWENS on behalf of herself and all others similarly situated, Plaintiff v. HEARTHSIDE FOOD SOLUTIONS, LLC, Defendant, Case No. 3:19-cv-02479 (N.D. Ohio, Oct. 23, 2019), alleges that the Defendant fails to pay its hourly, non-exempt employees, including the Plaintiff, overtime compensation at the rate of one and one-half times their regular rate of pay for all of the hours they worked over 40 each workweek. The Plaintiff estimates that she worked on average between 48 and 52 hours per workweek but she and other similarly situated manufacturing employees were not paid for all hours worked, including overtime compensation for all of the hours they worked over 40 each workweek. Hence, the Plaintiff seeks remedy from the Defendant's violation of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The Plaintiff was employed by the Defendant as a machine operator at its McComb, Ohio facility since August 2017. The Defendant manufactures baked goods and snack foods at facilities located in 38 states, including facilities in McComb, Ohio; Toledo, Ohio; and London, Kentucky.[BN] The Plaintiff is represented by: Lori M. Griffin, Esq. Anthony J. Lazzaro, Esq. Chastity L. Christy, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, OH 44113 Phone: 216-696-5000 Facsimile: 216-696-7005 Email: anthony@lazzarolawfirm.com chastity@lazzarolawfirm.co HONEYWELL INT'L: Bendix-Related Asbestos Class Suits Ongoing ------------------------------------------------------------ Honeywell International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 17, 2019, for the quarterly period ended September 30, 2019, that the Wayne County Employees' Retirement System has voluntarily dismissed its complaint without prejudice, in light of its motion to be appointed as substitute lead plaintiff in the lawsuit by David Kanefsky. On September 13, 2018, following completion of the Securities and Exchange Commission (SEC) Division of Corporation Finance's review of the company's prior accounting for liabilities for unasserted Bendix-related asbestos claims, the SEC Division of Enforcement advised that it had opened an investigation related to this matter. On August 28, 2019, the SEC informed the Company that it had concluded its investigation and that it does not intend to recommend any enforcement action against Honeywell. On October 31, 2018, David Kanefsky, a Honeywell shareholder, filed a putative class action complaint alleging violations of the Securities Exchange Act of 1934 and Rule 10b-5 related to the prior accounting for Bendix asbestos claims. On May 15, 2019, Wayne County Employees' Retirement System, another Honeywell shareholder, filed a putative class action asserting the same claims relating to substantially the same alleged conduct in the same jurisdiction. On August 26, 2019, Wayne County Employees' Retirement System voluntarily dismissed its complaint without prejudice, in light of its motion to be appointed as substitute lead plaintiff in the Kanefsky action. Honeywell said, "We believe neither complaint has any merit." Honeywell International Inc. is a worldwide diversified technology and manufacturing company. The Company provides aerospace products and services, control, sensing and security technologies, turbochargers, automotive products, specialty chemicals, electronic and advanced materials, process technology for refining and petrochemicals, and energy efficient products and solutions. The company is based in Morris Plains, New Jersey. HUMANA INSURANCE: Hindman Sues Over Deceptive Business Practice --------------------------------------------------------------- JAMES HINDMAN, individually and on behalf of all others similarly situated, Plaintiff v. HUMANA INSURANCE COMPANY, a Foreign Profit Corporation, Defendant, Case No. 97470814 (Circuit Ct., Pinellas Ct., Fla., Oct. 17, 2019) is a class action for damages in excess of $15,000.00, exclusive of interest, costs and attorneys' fees, based on Defendant's breach of contract and unfair and deceptive practice of promoting, marketing, and selling dental health insurance plans that claimed to cover topical fluoride applications. Humana Insurance Company does business in Pinellas County, Florida. Plaintiff purchased private Humana Dental Value Plan in September of 2017. Pursuant to the insurance contract, Plaintiff was entitled to two topical fluoride varnish treatments per year at no charge. The identified code on dental procedures ("CPT Code") in the Dental Plan for the fluoride treatment was D1204-- a code that does not exist under the American Dental Association CDT-2017 Code on Dental Procedures and Nomenclature. On March 28, 2018, Plaintiff received a topical fluoride application from his dentist in Florida. Plaintiff's dentist correctly billed Defendant for the topical fluoride application under CPT Code D1208. Despite Plaintiff's coverage for the topical fluoride treatment, Defendant refused to cover the charges to Plaintiff in the amount of $42.00. Despite the fact coverage clearly existed for the treatment, Defendant denied coverage based on the CPT coding error of its own making. Accordingly, the Defendant committed an unfair or deceptive practice by falsely promoting, marketing and selling Dental Plans that claimed to cover topical fluoride applications, says the complaint.[BN] The Plaintiff is represented by: JASON WHITTEMORE, ESQ. Wagner McLaughlin, P.A. 601 Bayshore Blvd., Suite 910 Tampa, FL 33606 Phone: (813) 225-4000 Primary email: Jason@WagenerLaw.com Secondary email: Arelys@WagenerLaw.com J-J CAULKING & WATERPROOFING: Fails to Pay OT, Suit Claims ---------------------------------------------------------- KAREN JUDITH BETETA RODRIGUEZ; GLORIA E. MARTINEZ ANDURAY, individually and on behalf of all others similarly situated, Plaintiff v. J-J CAULKING & WATERPROOFING CORP.; MARIA D. TENORIO, Defendants, Case No. 1:19-cv-24005-JLK (S.D. Fla., Sept. 27, 2019) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiffs were employed by the Defendants as non-exempt, hourly paid employees. J-J Caulking & Waterproofing Corp. provides special trade contracting services. [BN] The Plaintiffs are represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Telephone: (954) 361-8383 E-mail: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 350A Miami, FL 33161 Telephone (305) 773-6661 E-mail: mamane@gmail.com JS ELITE PAINTING: Mejia Seeks Unpaid Overtime Wages ---------------------------------------------------- ELMER MEJIA, Individually and on Behalf of All Those Similarly Situated Plaintiff, v. JS ELITE PAINTING PROS, LLC and JOSE SUYO, Jointly and Severally, Defendants, Case No. 1:19-cv-04654-SDG (N.D. Ga. Oct. 17, 2019) is an action brought on behalf of Plaintiff and all other similarly situated employees of Defendants, to recover unpaid overtime premium pay, owed to them pursuant to the Fair Labor Standards Act, and supporting regulations. The complaint asserts that Plaintiff was not paid overtime wages, despite working in excess of 40 hours per week throughout his employment. Plaintiff was paid straight-time pay for all hours worked, despite working in excess of 40 hours throughout his employment. This failure to pay overtime premium wages to hourly employees can only be considered a willful violation of the FLSA, says the complaint. Plaintiff was employed as a laborer by Defendants to perform painting and cleaning services at commercial and residential properties. Defendants operate a painting and cleaning service called JS Elite Painting Pros, LLC based out of Buford, Georgia.[BN] The Plaintiff is represented by: Brandon A. Thomas, Esq. The Law Offices of Brandon A. Thomas, PC 1 Glenlake Parkway, N.E., Suite 650 Atlanta, GA 30328 Phone: (678) 330-2909 Fax: (678) 638-6201 Email: brandon@overtimeclaimslawyer.com KINDER MORGAN: Settlement in Wisconsin Class Suit Wins Court OK --------------------------------------------------------------- Kinder Morgan, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 21, 2019, for the quarterly period ended September 30, 2019, that the settlement in the Wisconsin class action suit has been granted final approval by the U.S. District Court in Nevada. Beginning in 2003, several lawsuits were filed by purchasers of natural gas against El Paso Corporation, El Paso Marketing L.P. and numerous other energy companies based on a claim under state antitrust law that such defendants conspired to manipulate the price of natural gas by providing false price information to industry trade publications that published gas indices. All of the cases have been settled or dismissed, including the settlement of the final Wisconsin class action lawsuit which was approved by the U.S. District Court in Nevada on August 5, 2019. The amount that was paid in settlement of this matter is not material to our results of operations, cash flows or dividends to shareholders. Kinder Morgan, Inc. operates as an energy infrastructure company in North America. The company operates through Natural Gas Pipelines, Products Pipelines, Terminals, and CO2 segments. Kinder Morgan, Inc. was founded in 1936 and is headquartered in Houston, Texas. LA NUEVA SABROSURA: Underpays Delivery Persons, Aquino Alleges -------------------------------------------------------------- RAMON GARCIA AQUINO, individually and on behalf of all others similarly situated, Plaintiff v. LA NUEVA SABROSURA RESTAURANT, INC. dba QUE SABROSURA RESTAURANT AND BAR; EDDY MORONTA; and MALENA MORONTA, Defendants, Case No. 1:19-cv-08974 (S.D.N.Y., Sept. 26, 2019) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Aquino was employed by the Defendants as delivery person. La Nueva Sabrosura Restaurant, Inc. dba Que Sabrosura Restaurant And Bar operates as a restaurant and bar. [BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 155 East 44th Street-6th Floor New York, NY 10017 Tel: (212) 209-3933 Fax: (212) 209-7102 E-mail: pcooper@jcpclaw.com LANDS' END: Delta Airlines' Employees Sue Over Uniforms ------------------------------------------------------- Courthouse News Service reported that a class of employees at Delta Airlines is suing clothing retailer Lands' End in Wisconsin federal court, claiming their uniforms are causing rashes, hair loss, breathing difficulties and low white blood cell counts, and the dye bleeds onto their skin and personal belongings. A copy of the Complaint is available at: https://is.gd/EEDQbu LEBANON COUNTY, PA: ACLU Files Suit Over Medical Marijuana Ban -------------------------------------------------------------- Nora Shelly, writing for Lebanon Daily News, reports that the ACLU of Pennsylvania filed a class action lawsuit against Lebanon County Courts on Oct. 8, claiming a policy banning people on probation from using medical marijuana is illegal. A ruling on the matter from the Commonwealth Court would apply to all counties in Pennsylvania. Currently, each county can independently decide how to handle medical marijuana use by probationers. The Lebanon County Courts policy signed by President Judge John Tylwalk prohibits the use of the substance for people under county supervision even if they have medical marijuana cards and have complied with state law. The suit claims that state law protects people who use medical marijuana from penalty, and that denying the roughly 60 probationers with medical marijuana cards the right to use it creates life-threatening health risks. "The medical marijuana law makes no exceptions for people on probation. You have a right to use medical marijuana while you're on probation," ACLU of Pennsylvania legal director Witold Walczak said on Oct. 8 at a news conference. "Judges may not agree with the medical marijuana law, they may not support anybody using marijuana, but they must follow the law, and that's what this lawsuit is all about." Tylwalk, whose office deferred comment on the lawsuit to the Administrative Office of Pennsylvania Courts on Oct. 8, told the Lebanon Daily News in September that because county officials received no guidance from the state on how to deal with this issue, they felt the need to pass a blanket policy. The ACLU had been negotiating with lawyers from the Administrative Office of Pennsylvania Courts, and Walczak said they had been told they wouldn't immediately detain any probationers with medical marijuana cards who tested positive for THC. But, negotiations broke down after lawyers for the county couldn't guarantee they wouldn't start violation proceedings against probationers who failed a drug test, Walczak said. The AOPC declined comment on the matter, due to the pending litigation. What's the issue? As thousands of people in Pennsylvania now have medical marijuana cards, law enforcement and the legal system has had to figure out in real time how to deal with people using the substance, which is still considered illegal under federal law. However, Congress passed a provision as part of a spending bill that prohibits the Department of Justice from interfering in states where medical marijuana is legal. This means that even though it's still illegal under federal law, no one using medical marijuana in compliance with the state law in Pennsylvania would be arrested by federal agents. Tylwalk told the Lebanon Daily News in September that since a general condition of supervision holds that people not break any law, then the use of medical marijuana technically violates the terms of supervision, even if federal law enforcement implicitly allows for its use in Pennsylvania. "Those arguments that they have to follow federal law, that's just wrong, they're wrong about that," Walczak said, referencing two separate decisions in federal courts in Philadelphia and Pittsburgh where judges ruled federal probationers can't be violated for following the state medical marijuana act. The Medical Marijuana Act includes no guidance for county judges on how they should deal with people on probation, which means every county can set its own policy or practice. Other Central Pa. counties largely allow for the use of medical marijuana by those under supervision, with some handling the matter on a case-by-case basis. While Lebanon is the lone midstate county with an outright ban, a few others in the state have similar policies. Lycoming County has such a ban, and a panel of judges there denied a man's request to use medical marijuana while on probation. The ACLU plans to appeal that ruling, which could lead to a superior court decision. Who is filing the suit? The ACLU class action suit is filed on behalf of three people on probation in Lebanon County: Melissa Gass, Ashley Bennett and Andrew Koch, as well as all other probationers in the county with medical marijuana cards. Lebanon County's policy is already having severe impacts on the three petitioners, according to the lawsuit. Gass used medical marijuana to help treat seizures, as well as post-traumatic stress disorder, anxiety and depression. The medication she used before medical marijuana made it difficult to function, Gass said. The medical marijuana oil Gass used would help stop her seizures almost as soon as they began, according to the suit, and helped her taper off the other medications. "I'm able to function," she said. "I had under a handful of seizures in a 10 month span." After Gass had to stop using medical marijuana in September, she had 20 seizures in two weeks, according to the suit. "I'm not functionable, I'm put on all kinds of medicine," she said. The suit also describes how Bennett and Koch have had health issues after they were forced to stop using medical marijuana. Bennett said on Oct. 8 that since stopping her medical marijuana use, she has been dealing with nausea that has caused her to lose 18 pounds. Bennett said she's found it difficult to get out of bed and be there for her two young kids. "I just want to feel normal again," she said. What the ACLU's lawsuit says The ACLU contends that the Medical Marijuana Act provides immunity from any penalty to those using the substance. The suit notes that the law states that none of the individuals with medical marijuana cards "shall be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, including civil penalty or disciplinary action by a Commonwealth licensing board or commission, solely for lawful use of medical marijuana or manufacture or sale or dispensing of medical marijuana, or for any other action taken in accordance with this act." Because the legislation doesn't specify how it applies to people under court supervision, it implicitly allows for probationers to use the substance, the ACLU is arguing. Additionally, violating people's probation because they use medical marijuana constitutes a penalty, which the Medical Marijuana Act prohibits, the suit says. "We don't think the law is poorly written at all," Walczak said. "We just think the judges are misreading it and misapplying the law." [GN] LEE ENTERPRISES: Affirmative Defenses in Goldsmith Partly Struck ---------------------------------------------------------------- In the case, STEVEN GOLDSMITH, Plaintiff, v. LEE ENTERPRISES, INC., et al., Defendants., Case No. 4:19CV1772 HEA (E.D. Mo.), Judge Henry Edward Autrey of the U.S. District Court for the Eastern District of Missouri, Eastern Division, (i) denied the Plaintiff's Motion to Strike Defendants' Answer, and (ii) denied in part and granted in part the Plaintiff's Motion to Strike Defendants' Affirmative Defenses. The Plaintiff initially filed a Petition in the Circuit Court for St. Louis County, Missouri. The Defendants removed the action to federal court pursuant to 28 U.S.C. Sections 1441, 1446, and the Class Action Fairness Act of 2005. The Plaintiff filed his six-count First Amended Class Action Complaint with the Court on July 3, 2019. The Defendants filed their Answer including affirmative defenses on July 16. In his Amended Complaint, the Plaintiff alleges that the Defendants overcharged him and other similarly situated St. Louis Post-Dispatch subscribers by "double billing," that is, including the same day in more than one billing period. He alleges breach of contract (Count I), breach of the implied covenant of good faith and fair dealing (Count II), unjust enrichment (Count III), money had and received (Count IV), violation of the Missouri Merchandising Practices Act ("MMPA") by means of unfair practices (Count V), and violation of the MMPA by means of deception (Count VI). In their Answer, the Defendants deny the Plaintiff's allegations regarding improper or double billing. They also deny the allegation that they acted unethically or unlawfully. The Answer sets forth 16 paragraphs of affirmative defenses, 12 of which the Plaintiff now moves to strike. The Plaintiff also moves to strike 19 paragraphs from the Defendants' Answer. The Plaintiff moves to strike paragraphs 37-55 from the Defendants' Answer. These paragraphs respond to their allegations regarding the purported ethical standards of the Direct Marketing Association and American Marketing Association. Judge Autrey finds that the "extraneous" statements raise no issues that will require additional discovery or the irrelevant litigation. Elsewhere in their Answer, the Defendants already denied improper billing and denied acting unethically or unlawfully. The relevance of DMA and AMA ethical standards and whether Defendants violated them are essential aspects of the Plaintiff's Complaint, therefore the Defendants' statements in those veins are not prejudicial. Finally, because the Plaintiff vehemently asserts that the DMA and AMA standards apply to all marketers, the Defendants' statement that they did not purport to adhere to the standards is a nonissue that does not require discovery. Regardless of whether Defendants' answers are "non-responsive," the Plaintiff fails to show that he will be prejudiced if they are not stricken. The Motion to Strike the Answer is denied. The Plaintiff initially moved to strike paragraphs 3-10 and 13-16 of the Defendants' affirmative defenses. In their brief on this motion, the Defendants stated that they do not oppose striking paragraphs 9 and 15. The Plaintiff now moves to strike paragraphs 2-8, 10, 13, 14 and 16 of the Defendants' affirmative defenses. The Judge will not strike the defenses in paragraphs 3, 4, 5, 8 and 10. He finds that the Plaintiff has the enhanced facts, no prejudice results from the inclusion of the aforementioned defenses in the Defendants' Answer. Similarly, the Defendants have clarified the allegations in the Complaint on which they base the voluntary payment defense in paragraph 8. The Judge also finds that at least some facts relevant to the statutory exemptions in the MMPA likely would have been available to Defendants at the time of their Answer. Because they failed to plead any such facts in paragraph 7 or in their brief in opposition, paragraph 7 will be stricken without prejudice. Next, the defense in paragraph 13 cannot be expected to be fully fleshed out in light of the relatively spare class allegations in the Complaint and the limited time period Defendants have to investigate and respond. Paragraph 13 will not be stricken. Paragraph 14 alleges a res judicata defense but is bereft of facts indicating that previous judicial proceedings may exist. Paragraph 14 will be stricken without prejudice. Finally, paragraph 16 is a catch-all defense, in which the Defendant "reserves the right" to amend or supplement its answer and affirmative defenses. Of course, under Rule 15, Defendants may always amend their Answer with leave of the Court or with the Plaintiff's consent. The paragraph does not prejudice the Plaintiff in any way and it will not be stricken. For the foregoing reasons, Judge Autrey denied the Plaintiff's Motion to Strike the Answer, and granted in part and denied in part the Plaintiff's Motion to Strike the Affirmative Defenses. He granted the Plaintiff's Motion to Strike Defendants' Answer without prejudice as to paragraphs 6, 7, 9, 14, and 15, and denied as to paragraphs 3, 4, 5, 8, 10, 13 and 16. A full-text copy of the Court's Oct. 15, 2019 Opinion, Memorandum & Order is available at https://is.gd/dbXVKH from Leagle.com. Steven Goldsmith, on behalf of himself and all other similarly situated, Plaintiff, represented by Daniel Scott Levy -- info@cornfeldlegal.com -- LAW OFFICE OF RICHARD S. CORNFELD, LLC & Richard S. Cornfeld, LAW OFFICE RICHARD S. CORNFELD. Lee Enterprises Inc., Lee Enterprises Missouri, Inc., St. Louis Post-Dispatch LLC & Pulitzer, Inc., doing business as St. Louis Post-Dispatch, Defendants, represented by John M. Hessel -- jhessel@lewisrice.com -- LEWIS RICE, LLC, Roger Myers -- roger.myers@bclplaw.com -- BRYAN CAVE LLP, Edward T. Pivin -- epivin@lewisrice.com -- LEWIS RICE, LLC & Joseph E. Martineau -- jmartineau@lewisrice.com -- LEWIS RICE, LLC. LIBERTY MUTUAL: District Court Narrows Johansen TCPA Claims ----------------------------------------------------------- The United States District Court for the District of Massachusetts issued a Memorandum and Order granting in part and denying in part Defendants' Motion for Summary Judgment in the case captioned KEN JOHANSEN, individually and on behalf of all others similarly situated, Plaintiff, v. LIBERTY MUTUAL GROUP, INC., and SPANISH QUOTES, INC. d/b/a WESPEAKINSURANCE, Defendants, LIBERTY MUTUAL GROUP, INC., Cross-Claimant, v. SPANISH QUOTES, INC. d/b/a WESPEAKINSURANCE, Cross-Defendant, LIBERTY MUTUAL GROUP, INC., LIBERTY MUTUAL INSURANCE COMPANY, Third-Party Plaintiffs, v. PRECISE LEADS, INC., and DIGITAS, INC., Third-Party Defendants, Civil Action No. 15-cv-12920-ADB, (D. Mass.). The case began as a putative class action complaint against Liberty Mutual Group Inc. and Spanish Quotes Inc., which does business as WeSpeakInsurance. Plaintiff Ken Johansen alleged that Liberty Mutual and Spanish Quotes called him, or caused him to be called, multiple times in violation of the Telephone Consumer Protection Act (TCPA), despite his number being listed on the National Do-Not-Call Registry and his request that Liberty Mutual not call him again. Mr. Johansen settled with Liberty Mutual and Spanish Quotes, and his claims against them were dismissed with prejudice on May 30, 2018. The Defendants were then unable to agree whether Liberty Mutual was entitled to indemnity under the Master Services Agreement ("MSA") between Liberty Mutual and Digitas and the associated Aggregator Service Agreement ("ASA") with Spanish Quotes. Liberty Mutual is a diversified insurer, which provides car insurance policies to individual customers. Liberty Mutual entered into a marketing agreement with Digitas, a Boston-based marketing firm. In February 2015, Digitas and Liberty Mutual entered into a Statement of Work ("SOW"). The SOW describes the covered marketing tactics as "paid search, aggregator, affiliate and landing pages (tracking and read out only). . . ." The MSA incorporates the SOW by reference. Digitas then entered into the ASA with Spanish Quotes, which acts as an insurance shopping tool to help individual customers find quotes on auto and home insurance. Presently before the Court are Digitas' and Liberty Mutual's respective motions for summary judgment. I. Liberty Mutual's Claim for Indemnity Liberty Mutual claims that Digitas violated its duty to indemnify in accordance with Section 14 of the MSA. Digitas claims that the MSA indemnity provision is inapplicable because it only relates to third-party claims and Liberty Mutual has failed to identify a relevant third-party claim. According to Digitas, the third-party action in this case, Mr. Johansen's original lawsuit, did not arise out of Digitas' SOW with Liberty Mutual. Therefore, Liberty Mutual cannot seek indemnity based on an alleged violation of the SOW. In its Amended Answer, which includes the third-party complaint at issue, Liberty Mutual referenced the MSA's explicit warranty that all services would be performed in a competent and professional manner by qualified personnel and will conform to the Client's requirements as specified in the applicable SOW. The Court previously summarized the claim as follows: The statement of work did not include outbound calls, but Digitas made such calls and did so without adequate procedures to ensure compliance with the TCPA, including the unlawful calls to Mr. Johansen that led to this lawsuit. Liberty Mutual has therefore identified a third-party claim that arose from Digitas' alleged violations of the MSA. Liberty Mutual argues that Digitas breached its MSA warranty regarding the nature of the services it would provide. Specifically, the SOW specified that the authorized tactics to be used by Digitas included paid search, aggregator, affiliate and landing (pages tracking and readout only). The SOW did not reference the use of "warm transfers." With a warm transfer, after a customer has consented to receive a quote, an outbound call is made to verify the interest. The call is then transferred to the insurance provider to provide that quote. The SOW also does not reference the use of "Lead Forms." With a "Lead Form," an outbound call is made to a customer after that customer has completed an online form requesting contact information and consenting to be called. According to Liberty Mutual, there is nothing in the summary judgment record to dispute the material fact that it prohibited warm transfers by phone or Lead Form. Digitas argues that, though transfers are not included on the list of campaign activities in the SOW, the SOW also does not explicitly prohibit their use. Digitas has provided no evidence that creates a dispute of material fact as to whether warm transfers and Lead Forms were permitted under the relevant agreement. Digitas argues, for the first time, in its response to Liberty Mutual's motion for summary judgment that, because Liberty Mutual failed to sign the SOW, it raises an issue of fact concerning the binding nature of the SOW that precludes summary judgment. The mere failure to sign is insufficient to establish that there was not a contract, the District Court holds. "A written contract, signed by only one party, may be binding and enforceable even without the other party's signature if the other party manifests acceptance." Haufler v. Zotos, 845 N.E.2d 322, 331 (Mass. 2006). For the reasons that follow, it is clear that Digitas manifested acceptance of the SOW, the District Court maintains. From Digitas' course of performance after learning of Mr. Johansen's initial complaints, the District Court infers that it understood that warm transfers were prohibited under its agreement with Liberty Mutual. On multiple occasions, Digitas explicitly told Liberty Mutual that its campaign should not have used warm transfers, including informing Liberty Mutual that it did not allow transfers' in Digitas' programs and that none of its campaigns with Liberty Mutual should have calling out as a feature. Spanish Quotes also understood that the Liberty Mutual campaign should not have included any transfers. Spanish Quotes informed Digitas that because the Liberty Mutual number had been placed on a warm transfer list, it would not charge Liberty Mutual for 237 paid calls. Because Spanish Quotes' sources were strictly prohibited from engaging in phone transfers, it excluded any transfers from its invoice to Liberty Mutual. Under the ASA, Spanish Quotes had a duty to indemnify against a claim that arose from a breach of warranty. Part of that agreement was Spanish Quotes' warranty that Services will not violate any other laws, rules or regulations of the United States. Both Digitas and Spanish Quotes have therefore failed to demonstrate that there is a genuine dispute of material fact concerning whether they understood that transfers should not have been a part of their work for Liberty Mutual, the District Court opines. To the contrary, communications between the companies demonstrate that both Spanish Quotes and Digitas understood that they should not have engaged in transfers as part of the Liberty Mutual campaign, the District Court adds. The Court finds that because the contract merely requires the opportunity for complete control and not the actual transfer or tender of the defense, Liberty Mutual met its condition precedent obligations needed to receive the benefits of Digitas' indemnification, the precise terms of which were not set forth in the MSA. Moreover, the Court rejects both of Spanish Quotes' arguments opposing summary judgment and consequently finds that Liberty Mutual performed as required to receive the indemnity referenced in the ASA. Liberty Mutual further argues that it had a right to insist on full and complete indemnity, but that Digitas only offered partial indemnity. Digitas argues that its duty to indemnify arises only if Liberty Mutual's losses are related to Digitas' breach of the MSA and that, because the claim was settled, there has been no finding that Liberty Mutual's loss was due to Digitas' breach of the MSA. The MSA's indemnity provision specifically anticipates that Digitas would have to indemnify Liberty Mutual in the event of a settlement of claims that arose due to Digitas' breach of the agreement. The provision specifies that Digitas would indemnify the other party from and against any and all third party claims, damages, liabilities costs and expenses to the extent arising out of any breach of any warranty conditioned upon the opportunity for complete control of the defense and settlement thereof. The Court has already determined that Digitas was given the opportunity for complete control of the defense, and now has to decide whether Digitas also had the requisite opportunity for complete control of the settlement. Digitas argues that Liberty Mutual took complete control of the settlement negotiations, flying in the face of the MSA's indemnity provision. From the evidence attached to Digitas' own motion for summary judgment, however, the Court finds that Liberty Mutual provided an opportunity for Digitas to control the settlement negotiations. For example, Liberty Mutual informed Digitas that it could reach out to Mr. Johansen's counsel directly, but Digitas did not do so. Liberty Mutual also brought numerous settlement offers and counteroffers to Mr. Johansen's counsel at the request of Digitas and Precise Leads, showing that Liberty Mutual was willing to act at the direction of Digitas and Precise Leads. Liberty Mutual therefore fulfilled its obligations under the MSA, despite Digitas' continued refusal to act, the Court holds. Furthermore, the Court stated it will not eviscerate the indemnity provision by finding that it was essentially permissive, allowing parties to defend one another in the event that they decided to take control of the defense. Liberty Mutual is thus entitled to indemnification for its attorney's fees incurred in defending against the Johansen lawsuit, the Court holds. II. Liberty Mutual's Breach of Contract Claims The Court finds that Digitas breached its contract with Liberty Mutual by failing to indemnify. The Court also finds that Spanish Quotes failed to defend or indemnify. III. Liberty Mutual's Negligence Claim Finally, Liberty Mutual argues that it is entitled to summary judgment on its negligence claim. In its third-party complaint, Liberty Mutual claims that Digitas negligently violated the TCPA in its performance of its duties under the MSA. Liberty Mutual therefore seeks to recover damages to the extent that it is found liable to Mr. Johansen for the alleged TCPA violations. Because the parties have already settled Mr. Johansen's underlying allegations, Liberty Mutual will not be found liable to Mr. Johansen for any alleged TCPA violations. Because the Court now does not have to decide whether Liberty Mutual is liable to Mr. Johansen, Liberty Mutual will not be entitled to relief to the extent that it is found liable to Johansen for damages arising from any violations of the TCPA. Therefore, the issue is moot, the Court opines. Accordingly, for the reasons stated, Liberty Mutual's motion for summary judgment is GRANTED in part, insofar as the Court finds that Digitas and Spanish Quotes violated their contractual duties to indemnify Liberty Mutual, and DENIED in part, insofar as its claim of negligence was premised upon a finding that it was liable to Mr. Johansen for violating the TCPA. Likewise, Digitas' motion for summary judgment is DENIED in part and GRANTED in part. The full-text copy of the District Court's October 2, 2019 Memorandum and Order is available at https://tinyurl.com/y68yuwf9 from Leagle.com Liberty Mutual Insurance Company & Liberty Mutual Group Inc., ThirdParty Plaintiffs, represented by Anthony A. Froio - AFroio@RobinsKaplan.com - Robins, Kaplan, Miller & Ciresi LLP, Michael Reif - MReif@RobinsKaplan.com -, Robins Kaplan LLP, pro hac vice & Manleen K. Singh - KCWildfang@RobinsKaplan.com - Robins, Kaplan, Miller & Ciresi LLP. Digitas, Inc., ThirdParty Defendant, represented by John E. Frey , Wildman, Harrold, Allen & Dixon, 1330 Connecticut Avenue NW Washington, DC 20036, pro hac vice, Lauren Jaffe , Steptoe & Johnson, LLP, pro hac vice, Michael Dockterman - mdockterman@edwardswildman.com - Edwards Wildman Palmer LLP, pro hac vice, Julianne Landsvik - jlandsvik@cooley.com - Cooley LLP & Laura Greenberg-Chao - lgreenbergchao@henshon.com - Henshon Klein. Liberty Mutual Group Inc., Cross Claimant, represented by Anthony A. Froio - AFroio@RobinsKaplan.com - Robins, Kaplan, Miller & Ciresi LLP, Michael Reif -MReif@RobinsKaplan.com - Robins Kaplan LLP & Manleen K. Singh - KCWildfang@RobinsKaplan.com - Robins, Kaplan, Miller & Ciresi LLP. SPANISH QUOTES, INC., Cross Defendant, represented by Joseph J. Koltun , Koltun Law Office, 600 Atlantic Avenue, Boston, MA, 02210-2211 & Anthony A. Froio - AFroio@RobinsKaplan.com - Robins, Kaplan, Miller & Ciresi LLP. LOPINA ENTERPRISES: Han Sues over Excessive Rental Fees ------------------------------------------------------- MENG-TSE "Mark" HAN and MIN "Amy" HONG, individually and behalf of all others similarly situated, the Plaintiffs, vs. LOPINA ENTERPRISES, a California general partnership, GREG SCHUYLER, an individual, and DOES 1-50, the Defedants, Case No. 19CV356280 (Cal. Super., Oct. 4, 2019), alleges that Defendant violated the Milpitas Municipal Code by effecting mobile home space rent increases that exceeded Chapter 30 of the Milpitas Municipal Code without filing Home Rental Review Board and without the Board allowing such increases; and increasing mobile home space rents more than once in a 12-month period. In or around December 2011, the Plaintiffs signed a rental agreement for a mobile home rental space at Milpitas or a term of five years commencing on December 20, 2011. That 2011 rental agreement provided that the initial space rent for Plaintiffs' mobile home rental space was $398.00 per month and further provided for annual increases in that monthly rent of around seven percent during the term of the rental agreement. Plaintiffs' rental agreement expired on December 20, 2016, at which time the monthly space rent for Plaintiffs' mobile home rental space will be increased by 1.72% to $530.67 effective July 1, 2017. Starting on May 1, 2018, Defendants increased Plaintiffs' monthly space rent to $600.00, which was an increase of more than 13%. For the months from May 2018 to August 2018, Defendants charged $600.00 per month in space rent. The May 2018 space rent increase violated Milpitas Municipal Code because Defendants had already increased Plaintiffs' space rent to $530.67 as of July 1, 2017 and Section III-30-6.00 prohibits more than one increase in mobile home and space rent in any 12-month period, the lawsuit says. The Plaintiffs are mobile homeowners and mobile home rental space tenants Mobilodge of Milpitas mobile home park. The Plaintiffs are seniors with limited English proficiency. Lopina Enterprises rents mobile home rental spaces to owners of mobile homes sited at Mobilodge of Milpitas.[BN] Attorneys for Individual and Representative Plaintiffs are: Joshua Katz, Esq. LAW OFFICE OF JOSHUA KATZ 144 South E Street, Suite 206 Santa Rosa, CA 95404 Telephone: (707) 546 4510 Facsimile: (707) 575-6014 E-mail: jkatz@sonomalegal.com - and - Todd Espinosa, Esq. LAW OFFICE OF TODD ESPINOSA 2000 Broadway Street Redwood City, CA 94063 Telephone: (650) 241—3873 Facsimile: (650) 409-2550 E-mail: tie@toddespinosalaw.com LOUISIANA FARM: 3rd Cir. Upholds Certification of Gautreax Class ---------------------------------------------------------------- The Court of Appeal of Louisiana, Third Circuit, affirmed the trial court's class certification order in the case captioned JOSEPH HARVEY GAUTREAUX, ET AL., v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO., Case No. 19-17. (3rd Cir.) Plaintiffs were all insured by Louisiana Farm Bureau Casualty Insurance Company's (Farm Bureau) and received payment of the considered cash value for a total loss vehicle calculated with the help of an automated computer system called Mitchell Work Center Total Loss (WCTL). Plaintiffs brought the current class action challenging Farm Bureau's use of Mitchell WCTL in valuing first-party vehicle total loss claims, claiming the use of this system fails to comply with the specific requirements of La.R.S. 22:1892(B)(5) and constitutes a breach of Farm Bureau's duty of good faith and fair dealing in violation of La.R.S. 22:1973. Plaintiffs assert that the Mitchell WCTL system is unfairly low in its valuation of vehicles and filed suit in an attempt to recover for alleged underpayment of individual insurance claims. A formal judgment was rendered on August 23, 2018, in favor of Plaintiffs, granting Plaintiffs' motion for class certification, designating Joseph Harvey Gautreaux, Susie Lagneaux, Yvette Beauchamp, and Wilfred Meaux as class representatives with the definition of the class to be certified as "[a]ll persons insured by Louisiana Farm Bureau Casualty Insurance Company who have made a claim for first party total loss, which claim Louisiana Farm Bureau Casualty Insurance Company evaluated using Mitchell WorkCenter Total Loss, from July 1, 2013 to the present date (date of class action notice]." Farm Bureau thereafter instituted an appeal, challenging the ruling of the trial court. On review, the Appellate Court: -- finds that the trial court did not err in its conclusion that the numerosity requirement was satisfied based on facts and circumstances of the case; -- finds that there is no manifest error with the trial court's ruling that common questions did exist within the potential class; -- agrees with the trial court's conclusion that the proposed class representatives met the adequacy requirements and finds that Plaintiffs' claims also appear to be typical of the class; -- finds no error in the trial court's opinion that Plaintiffs objectively defined their class using ascertainable criteria such that the constituency of the class is easily determined for purposes of any judgment that may be rendered; -- finds no error in that trial court opinion that common questions of Farm Bureau's alleged liability, and whether such liability allows Plaintiffs to recover penalties under La.R.S. 22:1892(B)(5) and 22:1973, predominate over any questions affecting individual members, as any individual questions are easily answered using readily available, objective data and criteria; -- agrees with the trial court that a class action is superior to other available methods under the facts and circumstances of the ligitation. For the reasons stated, the Appellate Court concludes that the trial court did not manifestly err in its judgment, having correctly and fairly determined the common question to be answered and the class certification issues in the current case. Accordingly, the Appellate Court affirms the judgment of the trial court and assess costs to Louisiana Farm Bureau Casualty Insurance Company. The appellate panel comprised of Judges Sylvia R. Cooks, John E. Conery, and Van H. Kyzar. The full-text copy of the Appellate Court's October 2, 2019 Opinion is available at https://tinyurl.com/y4y2pvbr from Leagle.com Charles C. Garrison , Caffery, Oubre, Campbell & Garrison, LLP, P. O. Drawer 12410, New Iberia, LA 70562-2410, (337) 364-1816, COUNSEL FOR DEFENDANT/APPELLANT: Louisiana Farm Bureau Casualty Insurance Co. Wayne J. Lee , Stone, Pigman, Walthers, Wittmann L.L.C., 909 Poydras Street, Suite 3150, New Orleans, LA 70112, (504) 581-3200, COUNSEL FOR DEFENDANT/APPELLANT: Louisiana Farm Bureau Casualty Insurance Co. Andrew L. Plauche, Jr. , Plauche, Maselli, Parkerson LLP, 701 Poydras St., Suite 3800, New Orleans, LA 70139, (504) 582-1142, COUNSEL FOR DEFENDANT/APPELLANT: Louisiana Farm Bureau Casualty Insurance Co. George Febiger Riess , 228 St. Charles Avenue, Suite 1224, New Orleans, LA 70130-0000, (504) 568-1962, COUNSEL FOR PLAINTIFFS/APPELLEES: Joseph Harvey Gautreaux, Susie Lagneaux, Yvette Beauchamp, Wilfred Meaux. Kenneth W. DeJean , DeJean Law Firm, P.O. Box 4325, Lafayette, LA 70502-4325, (337) 235-5294, COUNSEL FOR PLAINTIFFS/APPELLEES: Joseph Harvey Gautreaux, Susie Lagneaux, Yvette Beauchamp, Wilfred Meaux. Kenneth David St. Pe , St. Pe Law Firm, 311 W. University Avenue, Suite A, Lafayette, LA 70506, (337) 534-4043, COUNSEL FOR PLAINTIFFS/APPELLEES: Joseph Harvey Gautreaux, Susie Lagneaux, Yvette Beauchamp, Wilfred Meaux. Stephen B. Murray, Jr. , Murray Law Firm, 650 Poydras Street, Suite 2150, New Orleans, LA 70130, (504) 525-8100, COUNSEL FOR PLAINTIFFS/APPELLEES: Joseph Harvey Gautreaux, Susie Lagneaux, Yvette Beauchamp, Wilfred Meaux. John Randall Whaley , Whaley Law Firm, 6700 Jefferson Highway, Building 12, Suite A, Baton Rouge, LA 70806, (225) 302-8810, COUNSEL FOR PLAINTIFFS/APPELLEES: Joseph Harvey Gautreaux, Susie Lagneaux, Yvette Beauchamp, Wilfred Meaux. MACADO'S INC: Servers Granted Conditional Class Certification ------------------------------------------------------------- Courthouse News Service reported that a federal court in West Virginia granted conditional class certification to servers at Macado's restaurants who claim the chain underpaid them. A copy of the Momorandum Opinion is available at: https://is.gd/rCiW4P MAPLEBEAR INC: Misclassifies Shoppers, O'Shea FLSA Suit Alleges --------------------------------------------------------------- KATHERINE O'SHEA, BRIAN POSNER AND TOM BACON on behalf of themselves, and all other plaintiffs similarly situated, known and unknown, Plaintiffs v. MAPLEBEAR, INC. D/B/A INSTACART AND "DOES" 1 THROUGH 100, INCLUSIVE, Defendants, Case No. 1:19-cv-06994 (N.D. Ill., Oct. 23, 2019), alleges violations of the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. The Plaintiffs allege that Instacart controlled the "when," "where," and "how" of their jobs. They assert that the work they performed was within the usual course of Instacart's business of grocery delivery and they were completely dependent on the Instacart platform to perform grocery delivery work. The Plaintiffs argue they were not independently engaged in grocery delivery outside of their work for Instacart. Under the applicable test for employment under the federal Fair Labor Standards Act and the Illinois Minimum Wage Law, Shoppers are presumptive employees entitled to labor law protections such as minimum wage guarantees, overtime compensation, workers' compensation insurance coverage, payroll tax contributions, and other employee benefits, says the complaint. By misclassifying Shoppers as independent contractors, however, Instacart denied them rights, shifting all risk to Shoppers and saving itself millions in overhead in the process, the Plaintiffs contend. The Defendants intentionally misrepresented to the Plaintiffs that they were independent contractors and, therefore, not entitled to wages for non-productive time, reimbursements for expenses incurred in relation to their employment, workers' compensation insurance benefits, and tax benefits enjoyed by employees, says the complaint. The Plaintiffs were continuously employed by Defendants as Shoppers. Instacart maintains substantial ongoing business operations throughout the United States, including San Francisco County, and is in the business of providing online grocery shopping and delivery service.[BN] The Plaintiffs are represented by: Shounak S. Dharap, Esq. THE ARNS LAW FIRM 515 Folsom Street, Third Floor San Francisco, CA 94105 Phone: (415) 495-7800 - and - John W. Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 401 Chicago, IL 60604 Phone: (312) 853-1450 MAPLEBEAR, INC: Underpays Personal Shoppers, Jordan Claims ---------------------------------------------------------- MICHAEL JORDAN, Individually and on behalf of all Similarly Situated Individuals, the Plaintiff, vs. MAPLEBEAR, INC, dba INSTACART; and DOES 1 THROUGH 100, inclusive, the Defendants, Case No. CGC-19-579780 (Cal. Super., Oct. 4, 2019), contends that the Defendant misclassfies the Plaintiff and members of the putative class as independent contractors. Instacart is a grocery shopping and delivery service company whose workers shop for groceries from various grocery stores, including Saveway, Whole Foods, Costco, Bi-Rite, BevMo!, Sprouts, CVS, and Andronico's, then deliver them to Instacart customers. The Plaintiffs and putative class members worked or continue to work as personal shoppers, drivers, and delivery persons for Instacart. Shoppers are dispatched through a mobile phone application to shop, purchase, and deliver groceries to customers at their home and businesses. According to the complaint, Shoppers are presumptive employees entitled to labor law protections such as minimum wage guarantees, overtime compensation, workers' compensation insurance coverage, payroll taxcontributions, and other employee benefits. By misclassifying Shoppers as Independent contractors, however Instacart denied them these rights, shifting all risk to Shoppers and saving itself millions in overhead in the process.[BN] Attorneys for the Plaintiff are: Robert S. Arns, Esq. Jonathan E. Davis, Esq. Kevin M. Osborne, Esq. Julie C. Erikson, Esq. Shournak S. Dharap, Esq. THE ARNS LAW FIRM 515 Folsom St., 3rd Floor San Francisco, CA 94109 Telephone: (415) 495 7800 Facsimile: (415) 495 7888 E-mail: rsa@rnslaw.com jed@rnslaw.com kmo@rnslaw.com jce@rnslaw.com ssd@rnslaw.com MARKETPLACE UNCTION: Delivery Drivers Seek Expense Reimbursements ----------------------------------------------------------------- STACY DIXON, individually and on behalf of similarly situated persons, Plaintiff, v. MARKETPLACE UNCTION, INC. D/B/A SCARPINO'S PIZZERIA AND TEK HAMMENT, Defendants, Case No. 0:19-cv-02728 (D. Minn., Oct. 17, 2019) is a lawsuit brought as a collective action under the Fair Labor Standards Act, as a class action under Minnesota's Fair Labor Standards Act, Minnesota's Payment of Wages Act, and common law to recover unpaid minimum wages and overtime hours owed to Plaintiff and similarly situated persons employed by Defendants at their Scarpino's Pizzeria stores. The Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, Defendants fail to reimburse at all for the use of the drivers' vehicles, such that the drivers' unreimbursed expenses cause their wages to fall so far below minimum wage that many likely operate at a net loss. Plaintiff and similarly situated drivers were paid less than minimum wage, and Defendants' failure to reasonably reimburse the amount of their drivers' automobile expenses diminishes their wages even further below the federal and state minimum wage requirements. In sum, Defendants' reimbursement policy fails to reflect the realities of delivery drivers' automobile expenses, says the complaint. Plaintiff Stacy Dixon was employed by Defendants from approximately August, 2014 to November, 2016 as a delivery driver at Defendants' Scarpino's Pizzeria Pizza stores located in the Minneapolis-St. Defendants own and operate numerous Scarpino's Pizzeria Pizza franchise stores.[BN] The Plaintiff is represented by: Karen Hanson Riebel, Esq. Kate M. Baxter-Kauf, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue S., Suite 2200 Minneapolis, MN 55401 Phone: (612) 339-6900 Fax: (612) 339-0981 Email: khriebel@locklaw.com kmbaxter-kauf@locklaw.com - and - Joe P. Leniski, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa Parks Ave. Suite 200 Nashville, TN 37203 Phone: 615/254-8801 Facsimile: 615/255-5419 Email: joeyl@bsjfirm.com - and - J. Forester, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Phone: (214) 210-2100 Fax: (214) 346-5909 Email: jay@foresterhaynie.com MARTIN SPORTS: Glynn ERISA Suit Seeks Contributions Under CBA ------------------------------------------------------------- COLLEEN A. GLYNN, CHRISTOPHER P. WELLING, in their capacity as Trustees and Fiduciaries of ERISA Plans, and DOUGLAS C. ANDERSON, on his own behalf and on behalf of others similarly situated, Plaintiffs v. MARTIN SPORTS & ENTERTAINMENT, LLC, DAVID MARTIN and THERESA MARTIN, Defendants, Case No. 1:19-cv-12189-IT (D. Mass., Oct. 23, 2019), is brought by fiduciaries of Employee Retirement Income Security Act of 1974 plans seeking to collect contributions from the Company that were/are owed under the terms of a collective bargaining agreement. The action also includes a state-law claim for nonpayment of wages brought by a former employee of the Defendants on his own behalf and on behalf of others similarly situated pursuant to Massachusetts General Laws. On May 9, 27 and 29, Martin Sports produced the Boston Bruins' Fan Fest before the Boston Bruins' hockey playoff home games. On May 8, 2019, Martin Sports entered into a collective bargaining agreement with IATSE, Local 11, under which Local 11 would supply stagehands to perform services related to the Boston Bruins' Fan Fest produced by Martin Sports. May 20, 2019, and June 4, 2019, ART Payroll sent invoices to Martin Sports related to the services provided by the Local 11 referred stagehands. The invoices reflected the amounts owed by the Defendants for the work performed by employees of the Defendants related to the Boston Bruins' Fan Fest. Despite repeated requests, Martin Sports refused and failed to pay the wages and ERISA plan contributions as invoiced by ART Payroll. Plaintiff Anderson and the similarly situated individuals provided the services related to the unpaid invoices. In accordance with the terms of its collective bargaining agreement with IATSE Local 11, Martin Sports owed the Funds the following amounts for worked performed under the collective bargaining agreement related to the Boston Bruins' Fan Fest: Pension Fund of Local No. 11, I.A.T.S.E. ($2,721.23); International Alliance of Stage Employees Local 11 Section 401(k) Plan ($680.31); and IATSE Local 11 Joint Apprentice Committee Educational Fund ($226.77), says the complaint. Plaintiffs Colleen A. Glynn and Christopher P. Welling are Trustees and Fiduciaries of the ERISA Plans. Plaintiff Douglas C. Anderson is a natural person who resides at 16 Harvard Street, in Charlestown, Massachusetts. Martin Sports & Entertainment, LLC is a limited liability company with a mailing address of P.O. Box 252084, in West Bloomfield, Michigan.[BN] The Plaintiffs are represented by: Gabriel O. Dumont, Jr., Esq. DUMONT, MORRIS AND BURKE, P.C. 141 Tremont Street, Suite 500 Boston, MA 02111 Phone: (617) 227-7272 Email: gdumont@dmbpc.net MCDONALD'S CORP: Not An Employer in Haynes Suit, 9th Cir. Upholds ----------------------------------------------------------------- In the case, GUADALUPE SALAZAR; GENOVEVA LOPEZ; JUDITH ZARATE, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. McDONALD'S CORP., a corporation; McDONALD'S USA, LLC, a limited liability company; McDONALD'S RESTAURANTS OF CALIFORNIA, INC., a corporation; BOBBY O. HAYNES SR. AND CAROL R. HAYNES FAMILY LIMITED PARTNERSHIP, dba McDonald's, erroneously sued as Bobby O. Haynes and Carole R. Haynes Family Limited Partnership, Defendants-Appellees, Case No. 17-15673 (9th Cir.), Judge Susan P. Graber of the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's summary judgment in favor of McDonald's. McDonald's U.S.A., LLC contracts with franchisees to license the McDonald's name, trademark, and various business practices. The Haynes Family Limited Partnership operated eight McDonald's franchises in Oakland and San Leandro, California, during the relevant period. The franchise agreements required Haynes to pay fees to McDonald's. To maintain the franchise, Haynes had to meet certain standards, such as serving McDonald's products. Plaintiffs Salazar, Lopez, and Zarate worked at a Haynes-operated McDonald's franchise restaurant in Oakland. They sued McDonald's and Haynes on behalf of a class of approximately 1,400 employees at Haynes-operated McDonald's franchises in the Bay Area. They allege that McDonald's and Haynes denied overtime premiums, meal and rest breaks, and other benefits in violation of California wage-and-hour statutes. The Plaintiffs also allege negligence and seek civil penalties under California's Private Attorneys General Act ("PAGA"). They further allege that McDonald's and Haynes are their joint employers. Haynes selects, interviews, and hires employees for its franchises. It trains new employees and sets their wages, which are paid from Haynes' bank account. Haynes sets employees' schedules and monitors their time entries. Haynes also supervises, disciplines, and fires employees such as the Plaintiffs. There is no evidence that McDonald's performs any of those functions. Nonetheless, evidence in the record, viewed in the Plaintiffs' favor, would permit a finding that McDonald's could have prevented some of the alleged wage-and-hour violations but did not do so. Under the franchise agreement, McDonald's required Haynes to use its Point of Sale ("POS") and In-Store Processor ("ISP") computer systems every day to open and close each franchise location of McDonald's. Managers of the Haynes McDonald's franchises took various courses with McDonald's at Hamburger University and then trained other employees on topics such as meal and rest break policies. At least one McDonald's-trained manager was required to be present during each shift at the Haynes franchises. Haynes management also voluntarily used the McDonald's computer systems for scheduling, timekeeping, and determining regular and overtime pay through applications that come with the ISP software, including e*Restaurant People Management Deployment and McDonald's Dynamic Shift Positioning Tool. The e*Restaurant app is described as "a bundle of tools designed to innovate employee management—from hire to retire." It includes e*HR and e*Labor. The Positioning Tool determines where employees "should be positioned throughout their shifts and what duties they should perform." McDonald's encouraged franchisees to use these additional applications but did not require them to do so. McDonald's ISP system assigns all hours recorded by workers to the date on which the shift began, including on overnight shifts. The Plaintiffs allege that this system caused many employees who worked more than eight hours in a 24-hour period to miss out on overtime pay that they earned, because the system did not recognize these additional hours as overtime. The ISP system is also set to daily and weekly overtime thresholds of 8:59 hours (instead of 8:00 hours) and 50:00 hours (instead of 40:00 hours). The Plaintiffs allege that the system's settings caused many workers to miss out on overtime pay that they earned for working between eight and nine hours in one day or between 40 and 50 hours in one week. The ISP settings do not schedule any rest breaks or require second meal periods. Under the ISP settings, meal periods are set to occur at intervals of 5:15, 5:30, or 6:00 hours, instead of at the five-hour mark required by California law. And the ISP does not flag when rest breaks are missed. The Plaintiffs allege that these settings caused workers to miss out on overtime pay that they should have earned for missed and late breaks. After the filing of the action, the Plaintiffs and Haynes reached a classwide settlement involving both injunctive and monetary relief. McDonald's then moved for summary judgment on the ground that it is not a joint employer of workers at franchises and that it owes them no duty of care. The district court entered summary judgment in favor of McDonald's, ruling that McDonald's is not a joint employer of the Plaintiffs because it does not retain or exert direct or indirect control over the Plaintiffs' hiring, firing, wages, hours, or material working conditions and does not suffer or permit the Plaintiffs to work, or engage in an actual agency relationship with the franchisee. The district court denied the Plaintiffs' negligence claim on the basis of California's "new-right exclusive remedy doctrine." Later, the district court granted McDonald's' Federal Rule of Civil Procedure 12(f) motion to strike the Plaintiffs' PAGA claims because a classwide adjudication of their ostensible-agency theory was "unmanageable." McDonald's then filed another summary judgment motion, arguing that ostensible agency can never support employer liability for California wage-and-hour violations. The district court granted that summary judgment motion, holding that California Wage Order No. 5-2001, section 2(H)'s definition of an employer precludes ostensible-agency liability. The Plaintiffs timely appealed. Reviewing the summary judgment de novo, and viewing the facts in the light most favorable to the Plaintiffs, Judge Graber affirmed the district court's ruling. As to joint employment, Judge Graber first finds that the district court properly ruled that McDonald's is not an employer under the "control" definition, which requires "control over the wages, hours, or working conditions. McDonald's involvement in its franchises and with workers at the franchises is central to modern franchising and to the company's ability to maintain brand standards, but does not represent control over wages, hours, or working conditions. Second, Judge Graber finds that the district court also correctly concluded that McDonald's does not meet the "suffer or permit" definition of employer. The Defendants did not suffer or permit the Plaintiffs to work "because neither had the power to prevent them from working, and the third-party employer had the exclusive power to hire and fire the workers, to set their wages and hours, and to tell them when and where to report to work." Finally, the district court correctly concluded that McDonald's is not an employer under the common law definition. Judge Graber finds that there is evidence suggesting that McDonald's was aware that Haynes was violating California's wage-and-hour laws with respect to Haynes' employees. But there is no evidence that McDonald's had the requisite level of control over the Plaintiffs' employment to render it a joint employer under the principles set forth in Martinez, Curry v. Equilon Enterprises, LLC, and other applicable California precedents. The Plaintiffs next argue that McDonald's is liable for wage-and-hour violations under an ostensible-agency theory, pursuant to Wage Order 5-2001. Judge Graber holds that the Plaintiffs correctly note that, in California, agency principles ordinarily encompass both actual and ostensible agency. But the Wage Order is more specific and, therefore, controls. Thus, she holds that McDonald's cannot be held liable for those violations under an ostensible-agency theory. The Plaintiffs also allege that McDonald's owed them a duty of care, which it breached by supervising Haynes' managers inadequately and thereby failing to prevent the alleged wage-and-hour violations. This claim fails for two reasons, the Ninth Circuit finds. First, the negligence claim arises from the same facts as the wage-and-hour claims. Under California law, "where a statute creates a right that did not exist at common law and provides a comprehensive and detailed remedial scheme for its enforcement, the statutory remedy is exclusive." The Plaintiffs cannot prove damages except by establishing a statutory wage-and-hour violation, which brings the Court full circle to the exclusivity of the statutory remedy. Second, the Plaintiffs must also prove duty. Under California law, McDonald's had no "supervisory" duties with respect to Haynes. Therefore, the Plaintiffs meet neither the damages nor the duty elements required to prove negligence. Finally, the Plaintiffs contend that the district court erred by striking their representative PAGA claim and by denying class certification. Because the Ninth Circuit affirms dismissal of all claims, it need not and do not consider the Plaintiffs' arguments on the merits of these rulings. A full-text copy of the Ninth Circuit's Oct. 1, 2019 Opinion is available at https://is.gd/PB4QOl from Leagle.com. Michael Rubin (argued) -- mrubin@altber.com -- Barbara J. Chisholm -- bchisholm@altber.com -- P. Casey Pitts -- cpitts@altber.com -- and Matthew J. Murray -- mmurray@altber.com -- Altshuler Berzon LLP, San Francisco, California; Joseph M. Sellers -- jsellers@cohenmilstein.com -- and Miriam R. Nemeth -- mnemeth@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, Washington, D.C.; for Plaintiffs-Appellants. Pratik A. Shah (argued) -- pshah@akingump.com -- James E. Tysse, and Martine E. Cicconi, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Michael I. Gray and Elizabeth B. McRee -- ebmcree@jonesday.com -- Jones Day, Chicago, Illinois; Kelsey Israel-Trummel -- kitrummel@jonesday -- Jones Day, San Francisco, California; for Defendants-Appellees. Catherine K. Ruckelshaus, National Employment Law Project, New York, New York; Shannon Liss-Riordan, Lichten & Liss-Riordan P.C., Boston, Massachusetts; for Amici Curiae National Employment Law Project, Impact Fund, Legal Aid at Work, Centro Legal de la Raza, Asian Americans Advancing Justice—Los Angeles, Los Angeles Alliance for a New Economy, and Equal Rights Advocates. Dennis J. Herrera, City Attorney; Christine Van Aken, Chief of Appellate Litigation, Yvonne Meré, Chief of Complex & Affirmative Litigation; Matthew Goldberg, Deputy City Attorney; Office of the City Attorney, San Francisco, California; Barbara J. Parker, City Attorney; Maria Bee, Special Counsel;, Erin Bernstein, Senior Deputy City Attorney; Malia McPherson, Attorney; Office of the City Attorney, Oakland, California; for Amici Curiae City of Oakland and City and County of San Francisco. Karen Marchiano, DLA Piper LLP (US), East Palo Alto, California; Norman M. Leon and John F. Verhey, DLA Piper LLP (US), Chicago, Illinois; for Amici Curiae International Franchise Association and California Restaurant Association. Robert R. Roginson, Ogletree Deakins Nash Smoak & Stewart P.C., Los Angeles, California, for Amici Curiae Employers Group and Chamber of Commerce of the United States of America. MCDONALD'S: 9th Cir Affirms Summary Judgment Ruling in Workers Suit ------------------------------------------------------------------- Courthouse News Service reported that the Ninth Circuit ruled in favor of McDonald's, affirming summary judgment against a class of employees who say they were denied overtime premiums, meal breaks and rest breaks. Under California law, McDonald's cannot be classified as an employer of its franchisees' workers. A copy of the Opinion is available at: https://is.gd/MYfSeP MELALUECA, INC: Faces Wainwright Suit in California State Court --------------------------------------------------------------- A class action lawsuit has been filed against Melalueca, Inc. The case is captioned as Joann Wainwright, on behalf of other member of the general public similarly situated, the Plaintiff, vs. Does 1-100 and Melalueca, Inc., an Idaho corporation, the Defendants, Case No. 34-2019-00266415-CU-OE-GDS (Cal. Super., Oct. 4, 2019). The suit alleges violation of employment-related laws. Melaleuca, Inc. manufactures and distributes of nutritional, pharmaceutical, personal care, facial care, home, and wellness products. The Company offers vitamins, supplements, food and weight loss, cleaning, laundry, medicine, dental, facial, hair, bath and body, beauty, and candles.[BN] The Plaintiff is Represented by: Douglas Han, Esq. JUSTICE LAW CORPORATION 751 N Fair Oaks Ave, Ste 101 Pasadena, CA 91103-3069 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 E-mail: dhan@justicelawcorp.com MERCEDES-BENZ: Ct. Narrows Claims in Defective Transmission Case ---------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division issued an order granting in part and denying in part Defendant's Motion for Summary Judgment in the case captioned TERRY HAMM, et al., Plaintiffs, v. MERCEDES-BENZ USA, LLC, Defendant, Case No. 5:16-cv-03370-EJD, (N.D. Cal.). The Court also denied Plaintiff's cross-motion for partial summary judgment or adjudication of issues. In this action, Plaintiffs Terry Hamm and Bryce Meeker bring various consumer protection claims predicated on allegations that Defendant Mercedes-Benz USA, LLC (MBUSA) knew of and actively concealed defects in vehicle transmission systems. The alleged defect caused their vehicles to enter limp mode in which their vehicles could not shift or accelerate. Plaintiffs allege that MBUSA knew of the defect but failed to disclose it, thereby violating the California Consumer Legal Remedies Act (CLRA), the California Unfair Competition Law (UCL), and the Kansas Consumer Protection Act (KCPA). MBUSA moved for summary judgment, contending that because Plaintiffs purchased their vehicles used from sellers other than MBUSA, neither was involved in a transaction with MBUSA so as to trigger MBUSA's duty to disclose any defect under California or Kansas law. MBUSA also contends that there is no evidence of reliance. MBUSA separately contends that Plaintiff Meeker cannot invoke the KCPA because he purchased his vehicle in Illinois, not Kansas. STANDARDS A motion for summary judgment or partial summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The moving party bears the initial burden of informing the court of the basis for the motion and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. If the moving party meets the initial burden, the burden then shifts to the non-moving party to go beyond the pleadings and designate specific materials in the record to show that there is a genuinely disputed fact. A genuine issue for trial exists if the non-moving party presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in his or her favor. Hamm's CLRA And UCL Claims: Duty to Disclose The CLRA prohibits deceptive acts and practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer. Hamm's SAC alleges that MBUSA violated section 1770(a)(5) by representing that its goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have by representing that its goods or services are of a particular standard, quality, or grade, if they are of another, by advertising goods and services with the intent not to sell them as advertised, by representing that its subscription service confers or involves rights, remedies, or obligations which it does not have or involve, by representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not. The UCL prohibits business practices that are (1) unlawful, (2) unfair, or (3) fraudulent. Cal. Bus. & Prof. Code Section 17200. The SAC alleges that MBUSA's actions were unlawful in that they violated the CLRA. The SAC also alleges that MBUSA's marketing and sale of the subject vehicles without disclosing the alleged defect when MBUSA knew of the defect amounts to a deceptive business practice. The SAC further alleges that MBUSA intentionally concealed its knowledge of the defect. Id. Although the SAC alleges affirmative misrepresentations and omissions, the parties' respective briefs treat Hamm's claims as entirely omissions-based claims. Omissions may give rise to liability under both the CLRA and UCL. Here, Hamm's theory of liability against MBUSA is straightforward: MBUSA, as the manufacturer, had a duty to disclose the alleged defect in their used vehicles' transmission systems because the alleged defect poses an unreasonable safety risk. The issue raised by MBUSA's motion, however, is not as straightforward: to whom this duty of disclosure is owed. MBUSA contend that it does not owe a duty to disclose to Hamm because there was no relationship between MBUSA and Hamm to trigger such a duty. MBUSA emphasizes that Hamm did not purchase his vehicle directly from MBUSA or from an authorized Mercedes-Benz dealership. Moreover, MBUSA contends that the law does not impose a duty to do the impossible. MBUSA reasons that MBUSA had no ability to make disclosures to Hamm because he (1) is the fourth owner of his vehicle (2) bought it after it was marketed and sold by MBUSA (3) bought it from a Toyota dealership and (4) never looked at any vehicle brochures, marketing materials or other publications by MBUSA. In response, Hamm contends that the nature of the alleged defect imposed a duty to disclose, regardless of the lack of any relationship between Hamm and MBUSA. Hamm reasons that if he proves a defect known to MBUSA that either poses a safety risk or that goes to an essential function of the car, then California holds that MBUSA has a duty to disclose the defect. Duty to Disclose Unreasonable Safety Risk The Court concludes that under California law, a manufacturer has a duty to disclose a defect that poses an unreasonable safety risk even if that manufacturer did not have a transactional relationship with the vehicle owner. That Hamm and MBUSA did not have a transactional relationship is not fatal to Hamm's claim. Duty to Disclose Under Rutledge Hamm contends that Rutledge imposes a separate duty to disclose on MBUSA that is independent of any unreasonable safety risk. Rutledge v. Hewlett-Packard Co., 238 Cal.App.4th 1164, 1179 (2015). Id. Because the court finds that MBUSA had a duty to disclose an unreasonable safety risk, it is unnecessary for the court to consider Plaintiffs' duty to disclose theory under Rutledge for purposes of deciding MBUSA's motion for summary judgment. Reliance MBUSA next contends that the CLRA and UCL claims fail because Hamm cannot establish reliance. In response, Hamm contends that he is not required to show reliance. Hamm draws a distinction between a duty to disclose claim based upon a partial representation theory, where a plaintiff must show reliance, and a claim based upon nondisclosure of a material fact, such as a safety issue as alleged in the present case. Hamm contends that reliance is required for the first type of claim, but not for the second, citing Falk v. General Motors Corp., 496 F.Supp.2d 1088, 1095 (N.D. Cal. 2007)). Hamm's reading of Falk is inaccurate. In Falk, GM truck owners alleged that GM had a duty to disclose that their trucks' speedometers were defective. The Falk court held that plaintiffs had adequately stated a claim of fraud by omission, and in doing so specifically addressed the justifiable reliance element of the fraud by omission claim. Thus, contrary to Hamm's assertion, Falk confirms that a plaintiff must establish reliance to prevail on a fraud by omission claim. The Falk court concluded that the reliance element was easily satisfied by plaintiffs' allegation that a reasonable customer would not have paid the asking price had it been disclosed that the speedometer was defective. Here, MBUSA's argument is essentially that Hamm cannot satisfy the first of the two sub-elements of reliance, namely that had MBUSA disclosed the alleged defect, Hamm would have been aware of it. MBUSA's position is well supported. Hamm purchased his vehicle fourth-hand from a Toyota dealership. Hamm never reviewed any sales brochures or advertising materials, or any other materials published by MBUSA, regarding the 7-year-old used 2006 CLK350 prior to or at the time of sale. He never talked to anyone from MBUSA or from a Mercedes-Benz dealership) about his prospective purchase. A reasonable jury could find based on these facts that even if MBUSA had disclosed the alleged defect, Hamm would not have been aware of it, and therefore MBUSA is not liable for the alleged CLRA and UCL violations. Hamm, however, has presented evidence from which a reasonable jury could infer that he would have been aware of the alleged defect. When Hamm saw the 2006 CLK350 on the Toyota dealership lot, he used his cell phone to search for information on various websites, including Cars.com, Edmunds and the usual suspects. Hamm also looked at a couple of magazines and may have looked at Car & Driver and others. In addition, the dealership provided Hamm with information about the vehicle. In sum, a genuine issue of material facts precludes summary judgment on Hamm's claims. Meeker's KCPA Claim MBUSA contends that Meeker's KCPA claim fails because, among other things, he cannot show the existence of a Kansas consumer transaction. The court agrees. The KCPA provides that no supplier shall engage in any deceptive act or practice in connection with a consumer transaction. A consumer transaction is defined as a sale, lease, assignment or other disposition for value of property or services within this state to a consumer or a solicitation by a supplier with respect to any of these dispositions. Here, Meeker's transaction did not take place within the state of Kansas. Meeker testified that when he was in Chicago, Leydon made an offer, the I accepted and the I drove the vehicle home. Prior to Meeker leaving Chicago to return home to Kansas, Leydon gave Meeker the used 2007 C230, its title, and all of its keys. As a matter of law, title to the used 2007 C230 passed to Meeker in Illinois when Leydon tendered the vehicle to him there. Meeker does not challenge the general principle that title passes when delivery is made, but argues that no contract of sale was made and no consideration given until after Meeker and the car were in Kansas. Meeker analogizes his exchange with Leydon in Chicago as that of a driver delivering a car to a valet, and argues that the exchange did not result in a transfer of title. Further, Meeker contends that no agreement to sell the car was even negotiated until Meeker was in Kansas. That agreement, along with Meeker's payment made from Kansas pursuant to the agreement, encompassed the transaction. Meeker emphasizes that he did not execute a bill of sale or pay for the vehicle until after he returned to Kansas. Meeker also asserts that he did not feel he had an agreement to buy the car while he was in Illinois. Meeker's subjective understanding is inconsistent with Leydon giving Meeker possession of the vehicle, keys, and title and Leydon permitting Meeker to drive the vehicle hundreds of miles away from Chicago. There is also no evidence that Meeker ever communicated his subjective understanding to Leydon. The transaction occurred in Illinois. Because Meeker did not engage in a transaction within Kansas, his KCPA claim fails. Plaintiffs' Motion Violates The One-Way Intervention Rule MBUSA contends that Plaintiffs' cross-motion violates the one-way intervention rule because it seeks to establish liability before class certification. Plaintiffs counter that there is no one-way intervention bar because MBUSA opted to move for summary judgment before class certification, citing this court's decision in Villa v. San Francisco Fort-Niners, Ltd., 104 F.Supp.3d 1017, 1022 (N.D. Cal. 2015). Plaintiffs' reliance on Villa is misplaced. In Villa, this court held that the one-way intervention rule applied and denied the plaintiffs' motion for partial summary judgment as to liability. The present case is in the same posture as Villa: the court has not yet ruled on class certification. Nevertheless, Plaintiffs argue that the court should proceed with Plaintiffs' motion because the rationale for a one-way intervention rule] disappears when the defendant himself moves for summary judgment before a decision on class certification. Plaintiffs have plucked this sentence from Villla out of context. In Villa this court explained immediately after the quoted sentence that in such a situation, only the slender reed of stare decisis stands between the defendant and the prospective onrush of litigants. In other words, when a defendant proceeds with a motion for summary judgment, the defendant proceeds at its peril, knowing that it may, in the absence of class certification, face the onrush of litigants who will not be bound by the summary judgment ruling. Therefore, the rationale for a one-way intervention rule disappears when the defendant moves for summary judgment before class certification. When read in context, the stand-alone sentence from Villa relied on by Plaintiffs does not support their argument. For the reasons set forth above, MBUSA's motion for summary judgment is GRANTED as to Meeker's KCPA claim and DENIED in all other respects. Plaintiffs' motion for partial summary judgment or summary adjudication of issues is DENIED. The Court directed the parties to jointly file a proposed schedule for class certification briefing and a proposed hearing date. A full-text copy of the District Court's September 30, 2019 Order is available at https://tinyurl.com/y2ptowsp from Leagle.com Terry Hamm & Charlie A Jacquo-Stevenson, Plaintiffs, represented by Michael D. Braun - mdb@braunlawgroup.com - Braun Law Group, P.C., Roy Arie Katriel - rak@katriellaw.com - The Katriel Law Firm & Gary S. Graifman - ggraifman@kgglaw.com - Kantrowitz Goldhamer & Graifman, P.C. Bryce Meeker, Plaintiff, represented by Gary S. Graifman, Kantrowitz Goldhamer & Graifman, P.C. & Roy Arie Katriel, The Katriel Law Firm. Mercedes-Benz USA, LLC, Defendant, represented by Troy Masami Yoshino, Squire Patton Boggs (US) LLP, 275 Battery Street, Suite 2600, San Francisco, CA, 94111, Eric J. Knapp - eric.knapp@squirepb.com - Squire Patton Boggs (US) LLP & Scott Jefferson Carr, Carroll Burdick and McDonough LLP, 44 Montgomery Street Suite 400 San Francisco, CA 94104-4606 MICHIGAN: ACLU Refiles Juvenile Lifers' Resentencing Class Action ----------------------------------------------------------------- Voice of Detroit reports that a federal class action lawsuit, Hill v. Whitmer was re-filed by Attorney Deborah LaBelle and the Michigan ACLU on behalf of over 200 Michigan juvenile lifers who have languished in prison far beyond the U.S. Supreme Court's abolition of mandatory juvenile life without parole in 2012, and its declaration making the ruling retroactive in 2016. They have yet to see a judge for judicial review and resentencing. On Sept. 9, LaBelle filed a Third Amendment to the Complaint alleging that the delays constitute clear violations of federal due process law. On Oct. 3, LaBelle countered the state's position that the denial of programming and training to lifers does not adversely affect their chances for parole. The 200 juvenile lifers represent 63 percent of the total number of the state's juvenile lifers, 363. County prosecutors are seeking renewed life without parole for them, in apparent violation of the high court's holdings that only the rarest child proven to be incapable of rehabilitation should die in prison. Seventy percent of Michigan juvenile lifers are Black. The highest number, 60, come from Wayne County. Will Michigan Attorney General Dana Nessel live up to her campaign promises on behalf of the state's juvenile lifers in this newest phase of Hill v. Whitmer? asks the Voice of Detroit. "There's an understanding, obviously, that when juveniles commit crimes, it does not mean that they are someone who forever cannot be rehabilitated," Nessel told Michigan Public Radio, while campaigning for AG. "Their brains are not fully formed. There's a lot of scientific evidence and scientific data that bears that out. So I do think that in all but the most extreme cases, you should be giving that person the opportunity to be paroled at some point in life." A complete list of the juvenile lifers awaiting resentencing is included in Hill v. Whitmer case documents at http://voiceofdetroit.net/wp-content/uploads/List-of-juvenile-lifers-awaiting-resentencing.pdf In 2016, former Wayne County Prosecutor John O'Hair and other retired prosecutors, outraged at Michigan's non-compliance with the U.S. Supreme Court rulings, called on the federal government to intervene. "Some prosecutors and judges in Michigan have ignored the Court's guidance that life sentences for youth are impermissible except for 'the rare juvenile offender who exhibits such depravity that rehabilitation is impossible,' and have relied heavily on the life without parole option provided to them by the Legislature," O'Hair wrote in an editorial published in several newspapers. "[The incarcerated juvenile lifers] got a shock recently when prosecutors recommended life without parole -- again -- for most, if not all, of those eligible for resentencing. Their actions undermine the Supreme Court and are an affront to our justice system." Meanwhile, 22 states have either abolished juvenile life without parole, and five have no one serving that sentence, a rapid increase over the past several years. The U.S. is the ONLY country in the world that sentences children to die in prison. It is also the only country in the world with TRUE life without parole. In others, lifers are still afforded regular parole hearings and release if rehabilitated. The battle against JLWOP has ignited a broader battle against LWOP across the U.S., from Pennsylvania to California. Nessel's office now represents the state in ongoing hearings before U.S. District Court Judge Mark Goldsmith on the Hill case, replacing former Attorney General Bill Schuette, a virulent opponent of releasing juvenile lifers. Goldsmith appointed Atty. Deborah LaBelle as the official representative of the juvenile lifer class when he earlier struck down provisions of state statutes passed in 2014 that denied resentenced juvenile lifers their access to "good time" credits. In her filing Sept. 9, LaBelle wrote, "More than three years after the United States Supreme Court's ruling in Montgomery v. Louisiana . . . . (2016), confirmed that plaintiffs are entitled to be resentenced, nearly 200 Hill class members remain in prison awaiting resentencing with no relief in sight. To compound this injustice, many would be eligible for release on parole or even immediate release if they are resentenced to a term-of-years. A delay this serious should no longer be countenanced. "Therefore, Plaintiffs request permission to amend their complaint to add a claim seeking a declaratory judgement that the unreasonable delay in resentencing violates the Plaintiffs' due process rights." She added, "The delay in resentencing Plaintiffs is inexcusable. It came about by Michigan's initial over-designation of the majority of the Plaintiff class as the rarest of youth whose crime evidences irreparable corruption and is incapable of rehabilitation, and seeking to reimpose Plaintiffs' life-without-parole sentences. But seeking to reimpose life-without-parole sentences on the majority of youth (including those who were convicted of felony murder, those who have exemplary prison records and demonstrable rehabilitation) should not result in over three years of delay in Plaintiffs having the opportunity to demonstrate that a term-of-years sentence is warranted and thus provide them with their constitutional right to a meaningful opportunity to obtain their release." Charles Lewis, now 60, has served nearly 44 years in prison, since the age of 17 for the killing of an off-duty police officer in 1976, during a period of violent racial strife and mortal danger for Black youth in the city. Lewis is one of 60 juvenile lifers for whom Wayne County Prosecutor Kym Worthy has recommended renewed LWOP. He has always maintained his innocence. Lewis' trial Judge Joseph Maher never stated on the record why he dismissed Lewis' first jury after it heard from the officer's partner and numerous other eyewitnesses that another man committed the crime. During an appeal hearing in 2006, Judge Deborah Thomas said that meant he should have been acquitted and subject to double jeopardy, and that the prosecution's theory of the case, drawn from three younger juveniles who were threatened with charges if they did not testify against Lewis, was "a scientific impossibility." Judge Gershwin Drain ordered Lewis' conviction and sentence dismissed in an order on April 3, 2000, but the order was lost in another file for 10 years. After Lewis moved to carry out the order, his entire case file came up missing and he was accused of forgery, with no documentary proof. He says legal precedents mandate his case should have been dismissed. He is one of the first juvenile lifers facing a recommendation of LWOP to be scheduled for a mitigation hearing Tues. Oct. 15 at 9 am in front of Wayne County Circuit Court Judge Qiana Lillard, Rm. 502 FMHJ. In his defense brief, Lewis' attorney Sanford Schulman is asking for him to be re-sentenced to a term of 40 years, which would mean immediate discharge due to Judge Goldsmith's restoration of good-time benefits to the juvenile lifer class. Lewis told VOD that at least 30 juvenile lifers, also recommended for LWOP, are in the Macomb Correctional Facility Re-Entry Program with him. Attorney Schulman is court-appointed and selected numerous resentencing experts including a polygraph examiner (with respect to the validity of Lewis' innocence claim), a psychiatrist, a mitigation specialist, and an MDOC misconduct specialist, with generally positive results recommending release. Lewis hopes to resume a promising musical career upon release. He was known before his arrest and during his imprisonment for "world-class" talent in writing music, producing concerts, and playing virtually every musical instrument. But he said others with him are not so fortunate. "Many don't have attorneys, or have not seen them or experts to which they are entitled under state law, and they don't know when or if ever they will ever benefit from the U.S. Supreme Court rulings," he said. He remembered the joy with which juvenile lifers greeted the Miller v. Alabama ruling in 2012. "That was the first time we knew we would not have to die in prison," he recalled. His mother said prison officials told her when he was sentenced that she would not even be able to get his body to bury him after he died in prison. But Lewis is gravely concerned that judges have resentenced some juvenile lifers to life without parole again, without adequate grounds, and wonders what action is planned in their defense. Additionally, other plaintiffs' filings in the Hill v. Whitmer federal case indicate that many juvenile lifers who HAVE been re-sentenced face ongoing complications with the parole board, based in part on the state's admitted policy of denying programming and training to prisoners serving life. David Bennett, incarcerated since 1972 for the murder of a young woman, was resentenced to LWOP on June 5, 2019 by visiting Wayne County Circuit Court Judge Dalton Roberson, known before his retirement for his relatively liberal stance. At the time of Bennett's original sentencing in 1992, experts said he was suffering from schizophrenia and other mental disorders, and he was placed on a regimen of multiple anti-psychotic medications. His attorneys Eric Van Campen and Kristin Lavoy wrote in their defense brief that Bennett "has committed no act of aggression or violence" in the last 45 years. "Even though he was sentenced to die in prison, Mr. Bennett chose to better himself in every way possible," they said. "He has put extraordinary effort into developing skills to cope with his mental illness and manage the trauma of his youth. "Today, Mr. Bennett's mental health is so stable that the only medication he takes is for depression. Thus, Mr. Bennett has demonstrated not only that he had the capacity for rehabilitation at the time of his offense, but that he has been successfully rehabilitated through his own efforts, the aging process, and the programming he has received within the MDOC." But Judge Roberson gave Bennett life again. The Judge said Bennett had been on multiple anti-psychotic medications and expressed fear that he would not continue taking his meds if he was not in a structured environment, despite contrary indications from expert defense witnesses. Barbara Hernandez was resentenced to LWOP on Aug. 8, 2019 by Oakland County Circuit Court Judge Nanci Grant. Born on March 16, 1974, Hernandez left home at 14 as a result of ongoing physical and sexual abuse first from her father and then from her stepfather. She moved in with a boyfriend four years her senior. In 1990 when Barbara was sixteen, her boyfriend coerced her into helping him steal a car as part of a plan to leave the state. When Barbara brought a man with a car to the house, her boyfriend attacked and killed the victim while Barbara was in another room. Oakland County Prosecutor Jessica Cooper recommended LWOP for nearly 100 percent of that County's juvenile offenders. Along with former Michigan AG Schuette, Wayne Co. Prosecutor Kym Worthy, and Berrien County Prosecutor, she has been one of the most strenuous opponents of any change in juvenile lifer laws. In Michigan's Ottawa County, the sole juvenile lifer there, Juan Carlos Nunez, was resentenced to LWOP April 24, by County Circuit Court Judge Jon Hulzing. Nunez was 16 at the time of the murder in question, which took place during a robbery gone wrong. Judge Hulsing considered the six Miller factors mitigating crimes committed by youths, but declared that Nunez "still knew right from wrong." This constituted a deliberate misstatement of the U.S. Supreme Court findings in Miller and Montgomery, which cited scientific evidence that the brains of juveniles, in particular the areas involving impulse control, do not develop fully until the age of 25. The Hill v, Whitmer complaint until now had proceeded chiefly along lines of the defense's argument in Count VI. Count VI alleges that by failing or refusing "to provide programming, education, training and rehabilitation opportunities," Defendants have "deprived Plaintiffs of meaningful opportunities to obtain release based on their demonstrated growth, maturity and rehabilitation." The State took the position essentially that the parole board does not require proof of such programming in releasing prisoners on parole and identified various defendants who had been re-sentenced to terms of years despite the lack of such resources. However, LaBelle cites juvenile lifers who have been re-sentenced to a term of years, but not yet paroled, awaiting completion of such programming. "Kevin Boyd must complete substance abuse core programming, yet he has been denied access to this program during his over thirty-years of incarceration in MDOC facilities," writes LaBelle. "The prosecutor in Oakland County sought to resentence Kevin Boyd, a named class representative, to life without parole. On May 15, 2019, Kevin was instead resentenced to a term of 25-60 years. With good time credits he was eligible for release on June 1, 2015. Kevin was not interviewed by the Parole Board until June 24, 2019, and is still waiting to receive its decision, over three months later. Tykeith Turner was resentenced on December 21, 2016 to 25-60 years. He has outstanding requirements for core programming, including substance abuse and violence prevention programming. Defendants refused to allow Tykeith's requests to participate in this programming even after his life-without-parole sentence was vacated and he was resentenced to a term-of-years sentence. On April 29, 2018, Tykeith became parole-eligible and the next day he was interviewed by the Parole Board. Tykeith has yet to receive a decision more than a year later. Defendants' records note that Tykeith is still awaiting classification referral for substance abuse and violence prevention core programming; they also note that Tykeith as ineligible for this programming because of his "lifer" status. 1 (See Ex. 2). "Defendants also fail to address class members, including Christopher Wiley and Lorenzo Harrell, whose parole decision was deferred specifically because they had been unable to complete core programs. In fact, Defendants deferred Christopher Wiley's and Lorenzo Harrell's parole reviews for months because they had not completed recommended core programming. "But Defendants denied them access to this critical programming while they were waiting to be resentenced. Thus, they remained incarcerated—despite being immediately parole-eligible—solely because they had failed to complete recommended core programs." There are thirty-two other class members who have been resentenced, are parole-eligible, and have outstanding core programming requirements. It is unclear when or if they will ever be provided this programming before their parole review hearings, or whether their parole determinations will be deferred, denied or delayed because of this lack of core programming." [GN] MICRON TECHNOLOGY: Continues to Defend Manning Class Suit --------------------------------------------------------- Micron Technology, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 17, 2019, for the fiscal year ended August 29, 2019, that the company continues to defend a putative class action suit initiated by Chris Manning. On June 13, 2019, current Micron employee Chris Manning filed a putative class action lawsuit on behalf of Micron employees subject to the Idaho Claim Act who earned a performance-based bonus after the conclusion of fiscal year 2018 whose performance rating was calculated based upon a mandatory percentage distribution range of performance ratings. On behalf of himself and the putative class, Manning asserts claims for violation of the Idaho Wage Claim Act, breach of contract, breach of the covenant of good faith and fair dealing, and fraud. No further updates were provided in the Company's SEC report. Micron Technology, Inc., through its subsidiaries, manufactures and markets dynamic random access memory chips (DRAMs), static random access memory chips (SRAMs), flash memory, semiconductor components, and memory modules. The company is based in Boise, Idaho. MICRON TECHNOLOGY: NY Consolidated Class Suit Dismissed ------------------------------------------------------- Micron Technology, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 17, 2019, for the fiscal year ended August 29, 2019, that the consolidated class action suit before the U.S. District Court for the Southern District of New York has been dismissed. On January 23, 2019, a complaint was filed against Micron and two of its officers, Sanjay Mehrotra and David Zinsner, in the U.S. District Court for the Southern District of New York. The lawsuit purports to be brought on behalf of a class of purchasers of the company's stock during the period from June 22, 2018 through November 19, 2018. Subsequently two substantially similar cases were filed in the same court adding one of the company's former officers, Ernie Maddock, as a defendant and alleging a class action period from September 26, 2017 through November 19, 2018. The separate cases were joined, and a consolidated amended complaint was filed on June 15, 2019. The consolidated amended complaint alleges that defendants committed securities fraud through misrepresentations and omissions about purported anticompetitive behavior in the Dynamic Random Access Memory (DRAM) industry and seek compensatory and punitive damages, fees, interest, costs, and other appropriate relief. On October 2, 2019, the parties submitted a joint stipulation to dismiss the complaint. The Court approved the stipulation and dismissed the complaint on October 3, 2019. Micron Technology, Inc., through its subsidiaries, manufactures and markets dynamic random access memory chips (DRAMs), static random access memory chips (SRAMs), flash memory, semiconductor components, and memory modules. The company is based in Boise, Idaho. MIDLAND FUNDING: Can't Compel Arbitration in Hejamadi FDCPA Suit ---------------------------------------------------------------- In the case, SHANTHI R. HEJAMADI and RICARDO VARELA, on behalf of themselves and those similarly situated, Plaintiffs, v. MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT, INC.; and JOHN DOES 1 to 10, Defendants, Civil No. 18-13203 (KSH) (CLW) (D. N.J.), Judge Katherine S. Hayden of the U.S. District Court for the District of New Jersey denied without prejudice the Defendants' motion to compel arbitration of the Plaintiffs' claims on an individual basis and dismiss the first amended class action complaint ("FAC"). Hejamadi and Varela sued Defendants Midland Funding and Midland Credit on behalf of themselves and others similarly situated for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"). The Plaintiffs allege that the Defendants assert that they incurred or owed certain financial obligations arising from accounts which were primarily for their personal, family, or household purposes. They further maintain that the Accounts were assigned to or placed with defendants for collection at which time they "were past-due and in default." The Defendants sought to collect a debt that Hejamadi owed by mailing her collection letters dated Oct. 25, 2017 and Nov. 13, 2017. Similarly, they mailed Varela a collection letter dated Nov. 14, 2017 in an attempt to collect a debt he owed. The Plaintiffs allege that contrary to their statements in those collection letters, the Defendants continue to offer flexible payment options for accounts even after they are sent to attorneys or after lawsuits have been filed. They further assert that the Defendants do not, nor did they ever, intend to make flexible payment options unavailable. According to the Plaintiffs, the Defendants' "policy and practice" to send collection letters that allegedly falsely threaten that flexible options will no longer be available violates the FDCPA. To collect the debt allegedly owed by Hejamadi, Midland Funding sued her in the Superior Court of New Jersey, Bergen County, Special Civil Part. On May 24, 2018, Hejamadi filed an answer and class action counterclaim asserting one cause of action for violation of the FDCPA. Midland Funding subsequently dismissed its claim against Hejamadi with prejudice. On Aug. 17, 2018, as a result of Midland Funding dismissing its cause of action against Hejamadi, the state court entered an order realigning the parties so that Hejamadi was now identified as the Plaintiff and Midland Funding was identified as the Defendant. That same day, the state court issued a second order transferring the case to the Law Division. Midland Funding removed the action to the Court on Aug. 24, 2018. The action in the Court was originally captioned as Hejamadi against Midland Funding. On Nov. 26, 2018, the operative amended complaint was filed. It added Varela as a Plaintiff and MCM as a Defendant. The Plaintiffs purport to bring it on behalf of a class defined as all natural persons with an address within the State of New Jersey, to whom, from Dec. 1, 2016 through and including May 24, 2018, Defendants sent one or more letters in an attempt to collect a Citibank, N.A. debt which contained the same or similar statement that "If the account goes to an attorney, our flexible options may no longer be available to you." On Feb. 4, 2019, the Defendants filed the pending motion to compel arbitration and dismiss the FAC. They argue that the agreements governing the Accounts provide that (i) all claims related to the Accounts must be submitted to binding arbitration, and (ii) the Plaintiffs' waived their right to bring class action claims. The Defendants have included the operative agreements for each of the Plaintiffs' Accounts as exhibits to the motion to compel arbitration. Judge Hayden states that at issue is the first question a court must ask before compelling parties to arbitrate -- whether there is an agreement to arbitrate. In determining whether an agreement to arbitrate exists, a court must first assess whether to apply the standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a motion for summary judgment under Fed. R. Civ. P. 56. The Judge finds that the Plaintiffs do not attach a copy of the agreements containing the arbitration provision to the FAC, and their claims are based entirely on the collection letters allegedly sent by the Defendants. Indeed, the Plaintiffs do not even mention the agreements or arbitration provision in the FAC. Rather, their existence is raised for the first time by the Defendants in their motion to compel arbitration and the affidavits they submitted in support of that motion. Undeterred, the Defendants argue that the FAC "readily admits the existence" of the agreements by alleging the Plaintiffs' debts "were incurred for personal, family or household purposes" and "were past-due and in default" when they were "placed with or assigned" to them for collection. Courts in the District, however, have found that such allegations are insufficient to show that an agreement to arbitrate exists. Accordingly, because the question of arbitrability cannot be resolved without considering evidence extraneous to the pleadings, it would be inappropriate to apply a Rule 12(b)(6) standard in deciding the instant motion, Judge Hayden says. Thus the motion to compel arbitration must be denied pending further development of the factual record, the Court maintains. Once the parties have completed limited discovery on the issue of arbitrability, the Defendants may renew their motion to compel arbitration. At such time, the Court will review it pursuant to the standard applicable to motions for summary judgment under Fed. R. Civ. P. 56. For these reasons, Judge Hayden denied, without prejudice, the Defendants' motion to compel arbitration and dismiss the FAC. A full-text copy of the District Court's Oct. 1, 2019 Opinion is available at https://is.gd/Bskd6B from Leagle.com. SHANTHI HEJAMADI, Plaintiff, represented by EVAN WILLIAM LEHRER, KIM LAW FIRM LLC, JASON ROBERT D'AGNENICA, KIM LAW FIRM LLC & YONGMOON KIM -- jhk@thekimlawfirm.com -- Kim Law Firm LLC. RICARDO VARELA, Plaintiff, represented by JASON ROBERT D'AGNENICA, KIM LAW FIRM LLC, RONALD IRA LEVINE & YONGMOON KIM, Kim Law Firm LLC. MIDLAND FUNDING LLC, Defendant, represented by ELLEN BETH SILVERMAN -- esilverman@hinshawlaw.com -- HINSHAW & CULBERTSON LLP & HAN SHENG BEH -- hbeh@hinshawlaw.com -- HINSHAW & CULBERTSON LLP. MIDLAND CREDIT MANAGEMENT, INC., Defendant, represented by HAN SHENG BEH, HINSHAW & CULBERTSON LLP. MINDBODY INC: Del. Chancery Court Consolidates 3 Stockholders Suits ------------------------------------------------------------------- Judge Kathleen St. J. McCormick of the Court of Chancery of Delaware, in an Oct. 1, 2019 Order, consolidated three related actions involving Mindbody Inc. and Stollmeyer. They are: (i) Ryan v. Mindbody, Inc., C.A. No. 2019-0061-KSJM ("Ryan Action"); (ii) Luxor Capital Partners, LP v. Stollmeyer, C.A. No. 2019-0442-KSJM ("Luxor Action"); and (iii) Luxor Capital Partners, LP v. Stollmeyer, C.A. No. 2019-0293-KSJM ("Appraisal Action"). The individual actions were captioned PHILIP RYAN, JR. and DONALD FRIEDMAN, on behalf of themselves and all other similarly situated stockholders of MINDBODY, Inc., Plaintiffs, v. MINDBODY, INC., RICHARD L. STOLLMEYER, KATHERINE BLAIR CHRISTIE, COURT CUNNINGHAM, GAIL GOODMAN, CIPORA HERMAN, ERIC LIAW, ADAM MILLER, GRAHAM SMITH, VISTA EQUITY PARTNERS MANAGEMENT, LLC, TORREYS PARENT, LLC, TORREYS MERGER SUB, INC., and INSTITUTIONAL VENTURE PARTNERS XIII, L.P., MINDBODY, INC., et al., Defendants; LUXOR CAPITAL PARTNERS, LP, LUXOR CAPITAL PARTNERS OFFSHORE MASTER FUND, LP, LUXOR WAVEFRONT, LP, and LUGARD ROAD CAPITAL MASTER FUND, LP, on behalf of themselves and all other similarly situated former stockholders of MINDBODY, INC., Plaintiffs, v. RICHARD L. STOLLMEYER, BRETT WHITE, and ERIC LIAW, Defendants, C.A. Nos. 2019-0061-KSJM, 2019-0442-KSJM ( Del. Ch.). The Related Actions are consolidated for all purposes. All papers and documents previously served and filed in any of the Related Actions are deemed a part of the record in the Consolidated Action. The Consolidated Action will bear the following caption: IN RE MINDBODY, INC., Consolidated STOCKHOLDERS LITIGATION C.A. No. 2019-0442-KSJM. Two groups of stockholder Plaintiffs and counsel seek to be appointed to leadership roles in the Consolidated Action. Plaintiff in the Ryan Action, Philip Ryan, Jr., proposes that his claims brought pursuant to 8 Del C. Section 225, as well as disclosure issues addressed in the trial briefs filed at C.A. No. 2019-0061-KSJM, be severed from the Consolidated Action and remain in the Ryan Action. Ryan also seeks to be appointed the Lead Plaintiff and to have his counsel, Prickett, Jones & Elliott, P.A. and Kessler Topaz Meltzer & Check, LLP, appointed as the co-lead counsel in the Consolidated Action. Plaintiffs in the Luxor Action, Luxor Capital Partners, LP, Luxor Capital Partners Offshore Master Fund, LP, Luxor Wavefront, LP, and Lugard Road Capital Master Fund, LP, do not oppose severing the Section 225 Claims from the Consolidated Action, but they argue that certain of the Ryan Disclosure Issues should be litigated as part of the Consolidated Action. The Luxor Plaintiffs propose that they each be appointed as the Lead Plaintiffs and have their counsel, Friedlander & Gorris, P.A., and Bernstein Litowitz Berger & Grossman LLP, appointed as the co-lead counsel in the Consolidated Action. As a threshold matter, Judge McCormick granted Team Ryan's request to sever the Section 225 Claims. Team Ryan may continue to pursue those claims. The Section 225 Claims have been fully litigated and briefed, there is no reason to delay their resolution, and it would be inefficient to switch teams for the purpose of prosecuting those claims at this stage. The parties in the Ryan Action will contact Chambers to reschedule oral argument on the Section 225 Claims. Following oral argument, the Court will determine whether the Ryan Disclosure Issues should be resolved as part of the Section 225 Claims or as part of the Consolidated Action. The record on the Section 225 Claims will be considered part of the record in the Consolidated Action, such that the class may benefit from the record created on the Section 225 Claims to date. On the leadership dispute, Judge McCormick finds that the Luxor Plaintiffs' significant relative ownership stake tips the balance in their favor. Accordingly, the Luxor Plaintiffs are appointed as the Lead Plaintiffs of the Consolidated Action, the Court rules. The law firms of Friedlander & Gorris, P.A. and Bernstein Litowitz Berger & Grossmann LLP are appointed as the Co-Lead Counsel. The following law firms are designated as additional counsel: Prickett, Jones & Elliott, P.A.; Kessler Topaz Meltzer & Check, LLP; and Schall Law Firm. The Co-Lead Counsel will set policy for the prosecution of the litigation, delegate and monitor the work performed to ensure that there is no duplication of effort or unnecessary expense, and initiate and coordinate the activities of the counsel. The Verified Complaint in the Luxor Action is deemed operative for the Consolidated Action. The parties will confer on an appropriate schedule moving forward regarding the Consolidated Action, including a deadline for the Lead Plaintiffs to file an amended Consolidated Complaint. A full-text copy of the District Court's Oct. 1, 2019 Order is available at https://is.gd/zb9GcS from Leagle.com. POLARIS INC: Consolidated Economic Loss-Related Class Suit Ongoing ------------------------------------------------------------------ Polaris Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2019, for the quarterly period ended September 30, 2019, that the company continues to defend the class action suit entitled, In re Polaris Marketing, Sales Practices, and Product Liability Litigation (D. Minn.), June 15, 2018. The putative class action is pending in the United States District Court for the District of Minnesota and arises out of allegations that certain Polaris products suffer from unresolved fire hazards allegedly resulting in economic loss, and is the result of the consolidation of the three putative class actions the company reported in its April 26, 2018 quarterly report and that were filed between April 5-10, 2018. Polaris Inc. is an American manufacturer of motorcycles, snowmobiles, ATV, and neighborhood electric vehicles. Polaris was founded in Roseau, Minnesota, USA, where it still has engineering and manufacturing. The company's corporate headquarters is in Medina, Minnesota. The company manufactured motorcycles through its Victory Motorcycles subsidiary until January 2017, and currently produces motorcycles through the Indian Motorcycle subsidiary, which it purchased in April 2011. Polaris produced personal watercraft from 1994-2004. The company was originally named Polaris Industries Inc. and was renamed in 2019 to Polaris Inc. POLARIS INC: Guzman and Albright Class Action Ongoing ----------------------------------------------------- Polaris Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2019, for the quarterly period ended September 30, 2019, that the company is facing a putative class action pending in the United States District Court for the Central District of California and alleges violations of various California consumer protection laws, including in connection with ROPS (rollover protection systems) certifications, for various Polaris products sold in California: Paul Guzman and Jeremy Albright v. Polaris Inc., Polaris Industries Inc., and Polaris Sales Inc., August 8, 2019. Polaris Inc. is an American manufacturer of motorcycles, snowmobiles, ATV, and neighborhood electric vehicles. Polaris was founded in Roseau, Minnesota, USA, where it still has engineering and manufacturing. The company's corporate headquarters is in Medina, Minnesota. The company manufactured motorcycles through its Victory Motorcycles subsidiary until January 2017, and currently produces motorcycles through the Indian Motorcycle subsidiary, which it purchased in April 2011. Polaris produced personal watercraft from 1994-2004. The company was originally named Polaris Industries Inc. and was renamed in 2019 to Polaris Inc. POLARIS INC: Johannessohn et. al. Class Suit Ongoing ---------------------------------------------------- Polaris Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2019, for the quarterly period ended September 30, 2019, that the company continues to defend a class action suit entitled, Riley Johannessohn, Daniel Badilla, James Kelley, Kevin Wonders, William Bates and James Pinion, individually and on behalf of all others similarly situated v. Polaris Industries (D. Minn.), October 4, 2016. The company has been named as a defendant in a putative class action pending in the United States District Court for the District of Minnesota. The lawsuit alleges excessive heat hazards on certain other Polaris products and seeks damages for alleged economic loss. Polaris Inc. is an American manufacturer of motorcycles, snowmobiles, ATV, and neighborhood electric vehicles. Polaris was founded in Roseau, Minnesota, USA, where it still has engineering and manufacturing. The company's corporate headquarters is in Medina, Minnesota. The company manufactured motorcycles through its Victory Motorcycles subsidiary until January 2017, and currently produces motorcycles through the Indian Motorcycle subsidiary, which it purchased in April 2011. Polaris produced personal watercraft from 1994-2004. The company was originally named Polaris Industries Inc. and was renamed in 2019 to Polaris Inc. PPG INDUSTRIES: Settlement in Mild Suit Wins Final Approval ------------------------------------------------------------ In the case, Trevor Mild v. PPG Industries, Inc. et al., Case No. 2:18-cv-04231 (C.D. Cal., May 20, 2018), the Hon. R. Gary Klausner granted Plaintiff's Motion for Final Approval of Class Action Settlement and Plan of Allocation. No objections have been filed and there were no objectors present at the October 21 hearing. Plaintiff's Motion for Attorney Fees and Reimbursement of Litigation Expenses is taken under submission. PPG Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 17, 2019, for the quarterly period ended September 30, 2019, that on May 20, 2018, a putative securities class action lawsuit was filed in the U.S. District Court for the Central District of California against the Company and three of its current and former officers. On September 21, 2018, an Amended Class Action Complaint was filed in the lawsuit. The Amended Complaint, captioned Trevor Mild v. PPG Industries, Inc., Michael H. McGarry, Vincent J. Morales, and Mark C. Kelly, asserts securities fraud claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on behalf of a putative class of persons who purchased or otherwise acquired stock of the Company between January 19, 2017 and May 10, 2018. The allegations relate to, among other things, allegedly false and misleading statements and/or failures to disclose information about the Company's business, operations and prospects. The parties reached a settlement in principal on May 1, 2019. On June 2, 2019, the plaintiff filed with the Court a Petition for Preliminary Approval of the proposed settlement, including the proposed settlement amount of $25 million. On July 25, 2019, the Court granted preliminary approval of the settlement, and now the parties are proceeding with the remaining procedures required to obtain final approval. The Court scheduled October 21, 2019 for a hearing to consider the plaintiff's request for final approval of the settlement. PPG's insurance carriers confirmed to the Company insurance coverage for the full amount of the proposed settlement. PPG Industries, Inc. manufactures and distributes paints, coatings, and specialty materials worldwide. The company was founded in 1883 and is headquartered in Pittsburgh, Pennsylvania. PROPAK LOGISTICS: Garcia Suit Removed to C.D. California -------------------------------------------------------- The lawsuit styled ROBERT GARCIA, an individual, on behalf of himself and others similarly situated, Plaintiff v. PROPAK LOGISTICS, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. RIC1904790, was removed from the Superior Court of the State of California for the County of Riverside to the U.S. District Court for the Central District of California on Oct. 23, 2019. The District Court Clerk assigned Case No. 5:19-cv-02034 to the proceeding. The Plaintiff's Complaint asserts these causes of action: (1) Failure to Pay Wages and/or Overtime Under Labor Code; (2) Failure to Provide Rest Breaks Pursuant to Labor Code; (3) Violation of Labor Code; (4) Penalties Pursuant to Labor Code; and (5) Violation of Business & Professions Code.[BN] The Defendants are represented by: Katherine C. Den Bleyker, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 633 West 5 Street, Suite 4000 Los Angeles, CA 90071 Phone: 213.250.1800 Facsimile: 213.250.7900 Email: Katherine.DenBleyker@lewisbrisbois.com ROCKWELL COLLINS: Dvorak Suit Removed to S.D. California -------------------------------------------------------- STEPHANIE DVORAK, an individual, and on behalf of herself and on behalf of all persons similarly situated, Plaintiff v. ROCKWELL COLLINS, INC., a Corporation; AIR ROUTING INTERNATIONAL L.P., a Limited partnership; and Does 1 through 50, inclusive, Defendants, Case No. 37-2019-000421510CU-OE-CTL was removed from the Superior Court of the State of California, for the County of San Diego, to the U.S.District Court for the Southern District of California on Oct. 23, 2019. The District Court Clerk assigned Case No. 3:19-cv-02042-H-BGS to the proceeding. The Complaint alleged ten causes of action against the Defendants: (1) Unfair Competition; (2) Failure to Pay Overtime Wages; (3) Failure to Pay Minimum Wages; (4) Failure to Provide Required Meal Periods; (5) Failure to Provide Required Rest Periods; (6) Failure to Provide Accurate Itemized [Wage] Statements; (7) Failure to Reimburse Employees for Required Expenses; (8) Failure to Provide Wages When Due; (9) Wrongful Termination; and (10) Retaliation.[BN] The Defendants are represented by: Timothy M. Rusche, Esq. SEYFARTH SHAW LLP 601 S. Figueroa Street, Suite 3300 Los Angeles, CA 90017 Phone: (213) 270-9600 Facsimile: (213) 270-9601 Email: trusche@seyfarth.com - and - Jonathan L. Brophy, Esq. Jarea W. Speier, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Phone: (310) 277-7200 Facsimile: (310) 201-5219 Email: jbrophy@seyfarth.com jspeier@seyfarth.com ROUGE VALLEY: Dickinson Wright Attorney Discusses Court Ruling -------------------------------------------------------------- Brian Radnoff, Esq. -- bradnoff@dickinsonwright.com -- of Dickinson Wright, in an article for JDSupra, reports that since the Ontario Court of Appeal's decision in Jones v. Tsige, creating an Ontario version of the tort of invasion of privacy called "intrusion upon seclusion", privacy-related class actions have emerged as a growth area. Many of these have focused on the institutional release of personal information and some have been successfully certified. However, a review of two recent Ontario Superior Court decisions, Broutzas v. Rouge Valley Health System and Kaplan v. Casino Rama, highlight some of the difficulties in certifying these types of actions. In both cases, certification of the class action was refused. Broutzas v. Rouge Valley Health System involved a proposed class action relating to hospital employees selling to RESP salespeople the contact information of women who had recently given birth. Kaplan v. Casino Rama involved a proposed class action relating to a hacker stealing and posting online the personal information of nearly 11,000 casino customers. Whether Information Is Private In Broutzas, the Court determined the information relating to whether a woman had given birth was not private. This kind of information was typically posted on social media, announced and shared with family and friends. In addition, some class members gave their contact information to companies in exchange for free baby products. Moreover, a person's contact information is normally public information. The Court concluded that none of the information released was protected under the tort. This type of information can be distinguished from medical information, which is private. Ultimately, a release of personal information does not necessarily mean an invasion of privacy. The invasion must be something a reasonable person would find highly offensive, causing distress, humiliation, or anguish. Release of contact information, or that a person gave birth, does not qualify. The Issue of Overbreadth and Indirect Defendants The Court in Rouge Valley concluded there was no cause of action against the RESP salespeople. The salespeople were not negligent as they did not owe a duty of care to the class members. Furthermore, they were not involved in the actual breach themselves. It would be unreasonable to impose a duty on the salespeople to ensure the information was not improperly obtained. Similarly, in Kaplan, while the casino may have been negligent for the breach, it was not liable for intrusion upon seclusion. The hacker, not the casino had invaded the class members' privacy. Common Issues In Broutzas, the class members did not share common issues. Some had publicly announced their birth, meaning the information was not private. Some women were not contacted by any salespeople. Others purchased RESPs because of the solicitations, meaning they did not suffer harm. Others had already purchased RESPs from the same companies prior to the breach. As a result, different class members would be in very different positions. Moreover, the defendants did not share common issues. The issues of invasion of privacy and negligence were relevant to the hospital defendants but not to the RESP salespeople. Resolving issues relating to liability for the hospital defendants would be irrelevant to the RESP salespeople. In Kaplan, the class members faced a similar problem. While the casino customers were affected by the same breach, the type and amount of information that was revealed varied between them. No common issue existed because the standard of care owed by the casino varied depending on the information exposed. Ultimately, neither proposed proceeding contained sufficient common issues between the class members that would advance the claim. Conclusion There have been instances of successful certification motions in privacy class actions in Ontario, particularly where it was clear the information was personal, such as medical information, and the action was not overbroad and limited to direct defendants. In appropriate cases, however, defendants will be able to contest whether the class action should be certified. Privacy class actions can raise issues that make certification difficult. When a privacy class action is commenced, defendants should carefully consider whether certification can be successfully opposed. There will be occasions where certification will likely be successful, but these recent decisions demonstrate that, in the right case, it makes sense to oppose certification. [GN] RUDEEN MANAGEMENT: App. Court Upheld Dismissal of Silver Suit ------------------------------------------------------------- In the case, THOMAS SILVER, an individual, and all those similarly situated, Appellant, v. RUDEEN MANAGEMENT COMPANY, INC., a Washington corporation, Respondent, Case No. 36165-9-III (Wash. App.), Judge Kevin M. Korsmo of the Court of Appeals of Washington, Division Three, affirmed the trial court's dismissal at summary judgment of Silver's class action. Thomas Silver rented an apartment managed by Rudeen for about 40 months. Upon entering into the tenancy, Silver paid Rudeen a $300 damage deposit. He vacated the premises June 30, 2015, after giving timely notice of his intention. On that same day, Rudeen provided Silver a "preliminary" "Deposit Disposition" statement. The disposition claimed Silver owed $2,516 for excessive wear and tear. On Aug. 18, 2015, Rudeen sent Silver a "final" "Deposit Disposition" statement claiming a revised amount of $2,281.35 for excessive wear and tear. Rudeen sometime thereafter began efforts to collect on its claim. Silver responded by filing the class action. On Aug. 10, 2017, he filed a complaint for damages against Rudeen, asserting the existence of a class of the Plaintiffs and a single cause of action: a contention that Rudeen had violated the Residential Landlord-Tenant Act of 1973 ("RLTA"), by not providing within 21 days a final statement concerning the damage deposit pursuant to RCW 59.18.280. The Plaintiff requested that the court refunds each class member's security deposit, give each class member double the amount of the deposit, and award attorney fees costs. Rudeen eventually moved for summary judgment, arguing that the action was filed outside the two-year statute of limitations. Silver contended that his action was subject to the three-year statute of limitations governing recovery of personal property. The trial court concluded that the only cause of action asserted was a violation of the RLTA governed by a two-year statute of limitations. The trial court granted summary judgment and dismissed the case for untimely filing. Silver timely appealed to the Appellate Court. The sole issue presented is whether the two- or three-year statute of limitations period applied to the complaint. Judge Korsmo agrees with the trial court that the two-year period applied. The Judge concludes that the action is an action to enforce the statute, not an action for return of property. It is the difference between saying "I did not do $300 worth of damage, return my deposit," and saying "you did not respond in a timely fashion as required, so pay me the statutory remedies." The former involves a personal right of the Plaintiff to possession of his own funds. The latter involves a breach of statutory duty in derogation of the Plaintiff's rights. The case was an action to enforce the deposit return obligation of the RLTA. It was not an action for return of personal property. The two-year statute of limitations period applied. The action was brought more than two years after it had accrued. Hence, the trial court correctly determined that it was untimely, Judge Korsmo held. Accordingly, Judge Korsmo affirmed the trial court's ruling. A full-text copy of the Appellate Court's Oct. 1, 2019 Opinion is available at https://is.gd/SFSc24 from Leagle.com. Brian Cameron, Attorney at Law, 421 W Riverside Ave Ste 660, Spokane, WA, 99201-0410, Kirk David Miller -- kmiller@millerlawspokane.com -- Kirk D. Miller, P.S., 421 W Riverside Ave Ste 660, Spokane, WA, 99201-0410, Counsel for Appellant(s). Timothy W. Durkop -- mail@durkoplaw.com -- Attorney at Law, 2906 N Argonne Rd, Spokane Valley, WA, 99212-2235, Counsel for Respondent(s). RUST-OLEUM CORP: Concealed True Efficacy of Restore Products ------------------------------------------------------------- ALLEN GARRARD, individually and on behalf of all others similarly situated, Plaintiff, v. RUST-OLEUM CORPORATION, Defendant, Case No. 4:19-cv-00836-DGK (W.D. Mo., Oct. 17, 2019) is a Complaint against Defendant related to the company's marketing and sale of Rust-Oleum Restore products, specifically Rust-Oleum Deck Start Wood Primer, Restore 2X One Coat Solid Stain, and Restore 4X Deck Coat. Rust-Oleum sold Restore Products to Missouri consumers for the purpose of resurfacing wooden structures, but the company misrepresented, omitted, and concealed material information concerning the efficacy of Restore Products, including (1) Restore Products are more prone to chipping, peeling, and flaking than comparable wood resurfacing products; (2) Restore Products do not last longer than comparable products and, instead, they deteriorate more quickly than comparable products; and (3) Restore Products do not provide enhanced protection that is superior to comparable products despite a premium price charged for Restore Products, says the complaint. Rust-Oleum sold Restore Products with full knowledge of these conditions, yet did not disclose them to consumers. In this respect, Rust-Oleum has concealed and omitted material facts in violation of the law. Rust-Oleum's conduct harmed consumers. Rust-Oleum charges a premium for its products, and consumers pay enhanced prices for Restore Products. Moreover, consumers have not received the benefit of their bargain in that they have not received the product they purchased. Had Plaintiff and consumers been aware of the defective nature of Restore Products, they would not have purchased Restore Products or would have paid far less money for them, the complaint asserts. Plaintiff purchased his Restore Products in the State of Missouri, and suffered damages as a result of Rust-Oleum's conduct within Missouri. Rust-Oleum Corporation is an Illinois corporation with its principal place of business in Vernon Hills, Illinois. Rust-Oleum Corporation is owned by RPM International, Inc.[BN] The Plaintiff is represented by: Matthew L. Dameron, Esq. Amy R. Jackson, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Phone: (816) 945-7110 Fax: (816) 945-7118 Email: matt@williamsdirks.com amy@williamsdirks.com SMILEDIRECT: Faces Shareholder Class Action Over IPO ---------------------------------------------------- Courthouse News Service reported that a shareholder class action in Davidson County Court claims that SmileDirect made false or misleading statements in its $1.3 billion IPO, "specifically . . . the severity of the legal obstacles SmileDirect faces in 40 states," causing the share price to drop from $23 to $13 in 15 days. A copy of the Complaint is available at: https://is.gd/MqvW8Q SMILEDIRECTCLUB INC: Faces Ginsberg Suit Over IPO-Related Claims ---------------------------------------------------------------- BARRY GINSBERG, individually and on behalf of all others similarly situated, Plaintiff v. SMILEDIRECTCLUB, INC., DAVID KATZMAN, KYLE WAILES, STEVEN KATZMAN, ALEXANDER FENKELL, J.P. MORGAN SECURITIES, INC., CITIGROUP GLOBAL MARKETS INC., BOFA SECURITIES, INC., JEFFERIES LLC, UBS SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC, and CAMELOT VENTURE GROUP, Defendants, Case No. 1:19-cv-09794 (S.D.N.Y., Oct. 23, 2019), is a federal securities class action brought on behalf of persons and entities that purchased or otherwise acquired SmileDirectClub Class A common stock (a) pursuant and/or traceable to the registration statement and prospectus issued in connection with the Company's September 12, 2019 initial public offering, or (b) during the period from September 8, 2019, through October 2, 2019, inclusive, and suffered damages. The Plaintiff pursues claims against the Company, certain of its top officials, and certain banks, which acted as underwriters to the IPO under Sections 11 and 15 of the Securities Act of 1933 and under Sections 10(b), 20(a), and 20A of the Exchange Act of 1934. On September 12, 2019, SmileDirectClub completed its IPO, issuing shares at a price of $23.00 per share. The Offering Price was inflated, and the shares have not traded remotely close to that price since becoming publicly available, the Plaintiff alleges. The Company sold approximately 58.54 million shares of Class A common stock and received proceeds of approximately $1.27 billion, net of underwriting discounts and commissions. The proceeds from the IPO were purportedly to be used for employee incentive bonuses, certain equity arrangements, and general corporate disclosures. On September 24, 2019, a class action lawsuit was filed in the Middle District of Tennessee by dentists, orthodontists, and consumers against the Company and certain of its officers and directors for false advertising, fraud, negligence, and unfair and deceptive trade practices. The complaint alleges, inter alia, that inaccurate statements were made in the IPO's Registration Statement and that the Company is subject to litigation for operating as a dentist without proper licensing in several states, among other litigations. On this news, the SDC share price fell $1.47 (or nearly 9%), from $17.15 to $15.68 per share on September 24, 2019, on unusually high trading volume. The price continued to decline over the next two trading sessions to close at $14.51 on September 25, 2019, and $12.94 on September 26, 2019, on unusually high trading volume. The cumulative decline as a result of this disclosure was $4.21. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff acquired SDC common stock at an artificially inflated price in traceable to the IPO. SmileDirectClub was founded in 2014 and is headquartered in Nashville, Tennessee. The Company manufactures, markets, and sells clear dental aligner treatments through its Web site: https://smiledirectclub.com/ and over 300 brick-and-mortar retail locations.[BN] SmileDirectClub was founded in 2014 and is headquartered in Nashville, Tennessee. The Company manufactures, markets, and sells clear dental aligner treatments through its website https://smiledirectclub.com/ and over 300 brick-and-mortar retail locations.[BN] The Plaintiff is represented by: Ian M. Press, Esq. KIRBY McINERNEY LLP 250 Park Avenue, Suite 820 New York, NY 10177 Phone: (212) 371-6600 Facsimile: (212) 699-1194 Email: ipress@kmllp.com SMILEDIRECTCLUB: Sued for Practicing Unlicensed Dentistry --------------------------------------------------------- Courthouse News Service reported that a class of shareholders claims in a federal lawsuit that SmileDirectClub practiced unlicensed dentistry in several states and faced legal action because of it, causing stock value to drop from a high of $23 a share to $12.94. A copy of the complaint is available at: https://is.gd/kYWA3V SMILES INCLUSIVE: Holding Redlich to Lead IPO Class Action ---------------------------------------------------------- Matt Ogg, writing for Business News Australia, reports that Holding Redlich has confirmed the process is underway for a class action against embattled Gold Coast-based dental group Smiles Inclusive. The company has seen profits, cash and its share price deteriorate since its April 2018 initial public offering (IPO) that raised $35 million to support an ambitious national acquisition plan. Smiles' expansion included joint venture partnerships (JVPs) with dentists around the country, but its guidance to the market and results worsened over time. From a listing price of $1 the company's share price has dwindled to 4.6 cents at the time of writing, as Smiles undertakes a capital raising to stay afloat and pay a small fraction of the $19 million it owes to National Australia Bank (ASX: NAB). The capital raising was announced prior to a substantial adjustment to Smiles' FY19 loss from $19 million in the unaudited results to $31 million in the statutory figures. Two JVP dentists who have been vocal about governance issues at the group are Dr John Camacho and Dr Arthur Walsh, who are now taking their battle against the corporate up a notch. "Holding Redlich Melbourne have stepped forward ready to lead the $50 million class action process," Camacho said in a press release this morning. "Regardless if Smiles goes into administration, we are committed to recouping cash from Morgans, KPMG, Talbot Sayer and Smiles Directors and Officers personally. "The class action, aimed at recouping 95 cents a share, offers a lot more upside for shareholders than the current 4 to 5 cents on offer." Holding Redlich confirmed with Business News Australia that the action was on the cards. "Holding Redlich have agreed to lead a class action process working closely with aggrieved dentists and shareholders. The IPO is the starting point," a spokesperson for the firm said. Smiles Inclusive CEO Tony McCormack has responded claiming he is "not aware that any class action has commenced and has not received any legal proceedings". In an announcement to the ASX on Oct. 8, Smiles said it had become aware that some parties were "sending misleading and deceptive information to shareholders and issuing media releases which deliberately misrepresent matters relating to the Company and its operations". "All interested parties should treat these statements with extreme caution," the company said. "The motivation of these parties is unknown at this time, but all indications are is that their intention is to see the company fail. "The Company's recently announced rights issue is fully underwritten and will provide the Company with the opportunity to execute its turnaround plan." At the time of writing, Smiles had not responded to requests for comment about which specific information it believed was "misleading and deceptive". [GN] STATE FARM: Sued by Santoro for Charging Customers $3 Service Fee ----------------------------------------------------------------- MELISSA SANTORO, individually and on behalf of all others similarly situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, Case No. 7:19-cv-09782 (S.D.N.Y., Oct. 23, 2019), is brought on behalf of New York residents and former residents seeking compensatory damages arising from the Defendant's charging of $3 service fees. In direct violation of New York law, the Defendant charges a $3 fee, which it calls a "Service Charge" or "Installment Fee," in order for its insurance customers to receive a paper billing statement and/or pay by United States mail. Indeed, a portion of the Defendant's website entitled "Lower Installment Fees with Paperless Billing," states "selecting the paperless option for your State Farm Payment Plan may result in a reduction of your SFPP installment fee." The Defendant's conduct is prohibited by New York General Business Law and, therefore, constitutes a deceptive act and practice under GBL, says the complaint. Ms. Santoro has had insurance accounts with the Defendant. The Defendant is the largest property, casualty, and automobile insurance company in the United States.[BN] The Plaintiff is represented by: Philip L. Fraietta, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Phone: (646) 837-7150 Facsimile: (212) 989-9163 Email: pfraietta@bursor.com - and - Frederick J. Klorczyk III, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: fklorczyk@bursor.com STEVENS TRANSPORT: Parr Suit Transferred to N.D. Texas ------------------------------------------------------ The class action lawsuit styled as Jeremy Parr, individually and on behalf of others similarly situated, and on behalf of the general public, the Plaintiff, vs. Stevens Transport, Inc., Stevens Transport T 22 L., Inc, Stevens Transport CO. Inc., Stevens Transport CD, Inc. (dba Stevens Transport), the Defendants, Case No. 3:19-cv-02610 (May 14, 2019), was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Northern District of Texas (Dallas) on Oct. 7, 2019. The Northern District of Texas Court Clerk assigned Case No. 3:19-cv-02378-S to the proceeding. The case is assigned to the Hon. Judge Karen Gren Scholer. The Plaintiff worked as a truck driver for Defendants and seeks relief for violations of California law arising out of Defendants' policy of failing to pay minimum wage for all hours worked; failing to provide off-duty meal periods; failing to permit and authorize paid, off-duty rest periods; failing to provide accurate itemized wage statements, and failing to timely pay all wages due, all in violation of the California Labor Code and California's Industrial Welfare Commission Wage Order.[BN] Attorneys for the Plaintiff are: Daniel S. Brome, Esq. Matthew C. Helland, Esq. NICHOLS KASTER, LLP 235 Montgomery, Suite 810 San Francisco, CA 94104 Telephone: (415) 277-7234 Facsimile: (415) 277-7238 E-mail: dbrome@nka.com helland@nka.com - and - Jason T. Brown, Esq. JTB LAW GROUP LLC 155 2nd Street, Suite 4 Jersey City, NJ 07302 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com - and - Lotus Cannon, Esq. Nicholas Raymond Conlon, Esq. BROWN, LLC 111 Town Square Place, Suite 400 Jersey City, NJ 07310 Telephone: 877-561-000 E-mail: nicholasconlon@jtblawgroup.com Attorneys for Stevens Transport Inc. are Brian Davis Berry, Esq. Jared Lee Palmer, Esq. OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. One Market Plaza, Suite 1300 San Francisco, CA 94105 Telephone: (415) 369-3554 Facsimile: (415) 442-4870 E-mail: brian.berry@ogletree.com jared.palmer@ogletreedeakins.com TARGET CORP: Faces Monroe Employee Suit in California Super. Ct. ---------------------------------------------------------------- A class action lawsuit has been filed against Target Corporation, et al. The case is captioned as Deena Monroe, on behalf of all others similarly situated, the Plaintiff v. Target Corporation, Johnny Camacho, and Does 1-100, the Defendants, Case No. 34-2019-00266832-CU-OE-GDS (Cal. Super., Oct. 11, 2019). The lawsuit arises from employment-related issues. Target Corporation is the eighth largest retailer in the United States, and is a component of the S&P 500 Index.[BN] The Plaintiff is represented by: Laura Van Note, Esq. SCOTT COLE & ASSOCIATES 555 12th Street, Ste. 1725 Oakland, CA 94607 Telephone: (510) 891-9800 TIGER BRANDS: Listeriosis Outbreak Class Action May Face Delay -------------------------------------------------------------- Riaan Grobler, writing for News24, reports that the class action brought against Tiger Brands following a listeriosis outbreak caused by some of its products could take years before it finally gets to court. In April, Tiger Brands received the summons for a class action linked to the listeriosis outbreak from the Gauteng High Court in Johannesburg. In February, the court determined that Richard Spoor Attorneys could go ahead with the class action, representing more than 1,000 people affected by the listeriosis outbreak in 2017 and 2018 that claimed more than 200 lives. On Oct. 8, Spoor said the class action could be delayed "for years" as Tiger Brands had issued subpoenas against food-testing laboratories to obtain information about the identities of people or parties who submitted samples for testing listeriosis and the results of those tests during the period of the outbreak. Two laboratories -- Aspirata and Deltamune -- have indicated that they would oppose this as the information is confidential. In a worst-case scenario, the matter could go all the way to the Constitutional Court, which could take years, Spoor said. Tiger Brands has lodged an application in the High Court to compel the disclosure of the documents. 'Fishing expedition' "This is a fishing expedition," Spoor said. "There is no reason to believe that anyone other than [Tiger Brands] is responsible for the outbreak." Spoor said his firm might participate in the litigation of the matter between Tiger Brands and the laboratories to speed up the matter. "Foremost, is the question of public policy and privacy. We want companies to submit products for testing. From a health and safety point of view, it is desirable for corporations to test often for any signs of contamination and to respond appropriately. "But when these companies send their samples to private laboratories to be tested, at their own expense, and the results become public knowledge, it creates a strong disincentive for them to do so." Products found to be contaminated are not sold to the public. Spoor said chicken, for example, may contain traces of listeria, but this is not a "train smash" as it will be cooked, killing the bacteria. "But in the eyes of the public, it sounds appalling. So here you have a small manufacturer that submits its products, listeria is found and appropriate measures are taken, so there's no risk to anybody. However, the fact that listeria was found could be very bad for [the company's reputation] if it comes out in public. "People could become terrified, even if there is no risk involved." This is the reason the laboratories want to keep their records confidential, Spoor said. "It could cause reputational harm that just isn't justified." That said, the subpoenas are causing a delay in the class action. Constitutional matter "One of the important issues is that this is a constitutional matter. It's about the right to privacy. So this is a matter that could, conceivably, go all the way to the Constitutional Court and that process can take a few years. "We really don't want that to happen." This is why Spoor is contemplating intervening by joining Tiger Brands as an applicant to "find a solution that is in the interest of the claimants and justice". Spoor said a decision on this was to be made by Oct. 11. News24 has approached a spokesperson at Tiger Brands for comment. This will be added once received. In a statement in December last year, the company said it would follow the legal process to bring closure to all parties. "Tiger Brands reiterates that no liability has been established against the company for the listeriosis outbreak. "However, should liability be determined, the company will respond appropriately to any legitimate claims," the statement read. In the same statement, Tiger Brands chief corporate affairs officer Mary Jane Morifi said the R1m that the company extended to assist in supporting the class action process, and a hotline to facilitate it, was a sign that the company was committed to finding a resolution for everyone affected. [GN] TSR INC: Paskowitz Class Suit Ongoing Despite Settlement Agreement ------------------------------------------------------------------ TSR, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 15, 2019, for the quarterly period ended August 31, 2019, that the Company has entered into the Settlement and Release Agreement with the Investor Parties with respect to the proxy contest pertaining to the election of directors at the 2018 Annual Meeting but the Settlement Agreement did not resolve the pending litigation filed by Susan Paskowitz against the Company, Joseph F. Hughes, Winifred M. Hughes and certain current and former directors of the Company in the Supreme Court of the State of New York on October 11, 2018, which is the only ongoing litigation in which the Company is involved. On October 16, 2018, the Company was served with a complaint filed in the Supreme Court of the State of New York, Queens County, by Susan Paskowitz, a stockholder of the Company, against the Company; Joseph F. Hughes and Winifred M. Hughes; current and former directors Christopher Hughes, Raymond A. Roel, Brian J. Mangan, Regina Dowd, James J. Hill, William Kelly, and Eric Stein; as well as stockholders Zeff Capital, L.P. , QAR Industries, Inc. and Fintech Consulting LLC. The complaint purports to be a class action lawsuit asserting claims on behalf of all minority stockholders of the Company. Ms. Paskowitz alleges the following: the sale by Joseph F. Hughes and Winifred M. Hughes of an aggregate of 819,491 shares of the Company's common stock ("controlling interest") to Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC was in breach of Joseph F. Hughes' and Winifred M. Hughes' fiduciary duties and to the detriment of the Company's minority stockholders; the members of the Board of Directors of the Company named in the complaint breached their fiduciary duties by failing to immediately adopt a rights plan that would have prevented Joseph F. Hughes and Winifred M. Hughes from selling their shares and preserved a higher premium for all stockholders; Zeff, QAR, and Fintech are "partners" and constitute a "group." Ms. Paskowitz also asserts that Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC aided and abetted Joseph F. Hughes' and Winifred M. Hughes' conduct, and ultimately sought to buy out the remaining shares of the Company at an unfair price. The complaint requests declarations from the court that: (1) Joseph F. Hughes' and Winifred M. Hughes' sale of their controlling interest to Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC was in breach of their fiduciary duties, and that those shares may not be voted or sold back to the Company pending further court order, (2) the members of the Board of Directors named in the complaint breached their fiduciary duties by failing to timely adopt a stockholder rights plan, which resulted in the loss of the ability to auction the Company off to the highest bidder without interference from Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC, and (3) Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC must make a number of disclosures regarding their plans for the Company, their relationships with one another, and any agreements with Joseph F. Hughes and Winifred M. Hughes. The complaint has not assigned any monetary values to alleged damages, but it seeks: (1) for Joseph F. Hughes and Winifred M. Hughes, and Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC, to disgorge any benefit they received from the sale of the Hughes’ controlling interest, (2) for the Board of Directors to pay damages equal to the reduced value of the class members’ shares as auctionable assets, and (3) reasonable attorneys' fees and costs. Although the Company is named as a defendant, there are no claims or damage allegations against the Company, and the complaint states that it names the Company solely to effectuate equitable relief if granted. On May 6, 2019, a stipulation of dismissal was filed in this action with respect to defendants Joseph F. Hughes, Winifred M. Hughes, and Regina Dowd, in which the plaintiff and these defendants agreed to the dismissal of all claims asserted by and against them, without prejudice. On July 26, 2019, the Company filed cross-claims against Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC relating to alleged breaches of fiduciary duties and for indemnification and contribution filed. On June 14, 2019, Ms. Paskowitz filed an amended complaint in the Supreme Court of the State of New York, Queens County against the members of the Board of Directors and Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC, which asserts substantially similar allegations to those contained in the October 11, 2018 complaint. In addition to the members of the Board of Directors named in the original complaint, the amended complaint names directors Ira Cohen, Joseph Pennacchio, and William Kelly as defendants. The amended complaint also asserts a derivative claim purportedly on behalf of the Company against the named members of the Board of Directors. The amended complaint seeks declaratory judgment and unspecified monetary damages. The complaint requests: (1) a declaration from the court that the members of the Board of Directors named in the complaint breached their fiduciary duties by failing to timely adopt a stockholder rights plan, which resulted in the loss of the ability to auction the Company off to the highest bidder without interference from Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC; (2) damages derivatively on behalf of the Company for unspecified harm caused by the Directors' alleged breaches of fiduciary duties; (3) damages and equitable relief derivatively on behalf of the Company for the Directors' alleged failure to adopt proper corporate governance practices; and (4) damages and injunctive relief against Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC based on their knowing dissemination of false or misleading public statements concerning their status as a group. The complaint has not assigned any monetary values to alleged damages. On July 15, 2019, the Company filed an answer to the amended complaint and cross-claims against Zeff Capital, L.P., QAR Industries, Inc. and Fintech Consulting LLC for breaches of their fiduciary duties, aiding and abetting breaches of fiduciary duties, and indemnification and contribution based on their misappropriation of material nonpublic information and their failure to disclose complete and accurate information in SEC filings concerning their group actions to attempt a creeping takeover of the Company. In addition, on December 21, 2018, the Company filed a complaint in the United States District Court, Southern District of New York, against Zeff Capital, L.P., Zeff Holding Company, LLC, Daniel Zeff, QAR Industries, Inc., Robert Fitzgerald, Fintech Consulting LLC, and Tajuddin Haslani for violations of the disclosure and anti-fraud requirements of the federal securities laws under Sections 13(d) and 14(a) of the Securities Exchange Act of 1934 ("Exchange Act"), and the related rules and regulations promulgated by the SEC, for failing to disclose to the Company and its stockholders their formation of a group and the group’s intention to seize control of the Company. The complaint requests that the court, among other things, declare that the defendants have solicited proxies without filing timely, accurate and complete reports on Schedule 13D and Schedule 14A in violation of Sections 13(d) and 14(a) of the Exchange Act, direct the defendants to file with the SEC complete and accurate disclosures, enjoin the defendants from voting any of their shares prior to such time as complete and accurate disclosures have been filed, and enjoin the defendants from further violations of the Exchange Act with respect to the securities of the Company. The Company has filed motions for preliminary injunction and expedited discovery. The court held an initial pretrial conference on April 23, 2019 during which it ordered the parties to participate in a mediation of the claims raised in the action. The parties subsequently participated in mediation sessions through the Court-annexed Mediation Program; however, no resolution has been reached. On January 7, 2019, Ms. Paskowitz filed a related action against Zeff Capital, L.P., Zeff Holding Company, LLC, Daniel Zeff, QAR Industries, Inc., Robert Fitzgerald, Fintech Consulting LLC, and Tajuddin Haslani in the Southern District of New York, which asserts claims against them for breach of fiduciary duty and under federal securities laws similar to those asserted in the Company's action. Although the Company is not a party to Ms. Paskowitz's action, the court has determined to treat the Company's and Ms. Paskowitz's respective actions as related. On August 7, 2019, following the Company's initial rescheduling of the 2018 Annual Meeting for September 13, 2019 and the filing of Preliminary Proxy Statements by the Company and Zeff Capital, L.P., Zeff Capital, L.P. filed a complaint in the Delaware Court of Chancery against the Company seeking an order requiring the Company to hold its next annual meeting of stockholders on or around September 13, 2019, and obligating the Company to elect Class I and Class III directors at that annual meeting. On August 30, 2019, the Company entered into the Settlement and Release Agreement with the Investor Parties with respect to the proxy contest pertaining to the election of directors at the 2018 Annual Meeting, which was agreed to be held on October 22, 2019. Pursuant to the Settlement Agreement, the parties have agreed to forever settle and resolve any and all disputes between the parties, including without limitation disputes arising out of or relating to the following litigation: (i) The complaint relating to alleged breaches of fiduciary duties filed on November 1, 2018 by Fintech Consulting LLC against the Company in the Delaware Court of Chancery, which was previously dismissed voluntarily; (ii) The complaint for declaratory and injunctive relief for violations of the federal securities laws filed on December 21, 2018 by the Company against the Investor Parties in the United States District Court in the Southern District of New York; (iii) Cross-claims relating to alleged breaches of fiduciary duties and for indemnification and contribution filed on July 26, 2019 by the Company against the Investor Parties in New York Supreme Court, Queens County; and (iv) The complaint to compel annual meeting of stockholders filed on August 7, 2019 by Zeff Capital, L.P. against the Company in the Delaware Court of Chancery. No party admitted any liability by entering into the Settlement Agreement. The Settlement Agreement did not resolve the pending litigation filed by Susan Paskowitz against the Company, Joseph F. Hughes, Winifred M. Hughes and certain current and former directors of the Company in the Supreme Court of the State of New York on October 11, 2018, which is the only ongoing litigation in which the Company is involved. In addition, concurrently with the Settlement Agreement, the parties entered into a share repurchase agreement under which the Company may purchase 633,074 shares of the Company's Common Stock, at a purchase price of $6.25 per share, from the Investor Parties, and Christopher Hughes, the Chairman of the Board of Directors and the Chief Executive Officer of the Company, may purchase 320,000 shares of Common Stock, at a purchase price of $6.25 per share, from the Investor Parties, for an aggregate purchase price of $5,956,712.50 in cash, subject to the terms and conditions contained in the Repurchase Agreement. The Company also agreed to make a payment of $1,543,287.50 to the Investor Parties at the closing of the Repurchase for the settlement of all disputes between the parties, dismissal of any and all claims related thereto, including the lawsuits mentioned above, and the settlement and release of any and all matters (the "Settlement Payment"). There can be no assurance that either the Company or Christopher Hughes will ultimately consummate these purchases. Pursuant to the Settlement Agreement, (1) the Company agreed to adopt an amendment to the Company's Amended and Restated By-Laws, dated April 9, 2015 (the "By-Laws Amendment"), providing that stockholders of the Company owning at least forty percent (40%) of the issued and outstanding Common Stock may request a special meeting of stockholders; (2) the Investor Parties agreed not to take any action to call or otherwise cause a special meeting of stockholders to occur prior to December 30, 2019 unless the Company fails to hold the 2018 Annual Meeting; (3) the Company agreed to amend and restate the Company's Rights Agreement, dated August 29, 2018 (the "Amended Rights Agreement"), to confirm that a Distribution Date (as defined in the Amended and Restated Rights Agreement) shall not occur as a result of any request by any of the Investor Parties for a special meeting; (4) the Company agreed that prior to the earlier of (A) the completion of the Repurchase and the payment of the Settlement Payment and (B) January 1, 2020, the Board of Directors shall not consist of more than seven (7) directors. The Settlement Agreement provides the Company will solicit proxies for two alternative Class I director slates for election at the 2018 Annual Meeting: one slate for the Company's nominees, and one slate for nominees selected by Zeff Capital, L.P. If the Company completes the Repurchase and makes the Settlement Payment prior to the 2018 Annual Meeting, Zeff Capital, L.P. will withdraw its director slate from consideration at the 2018 Annual Meeting and a vote for Zeff Capital, L.P.'s nominees shall constitute a vote for the Company's nominees. If the Repurchase is not completed or the Settlement Payment is not made prior to the 2018 Annual Meeting, then the Company will withdraw its director slate and a vote for the Company's nominees shall constitute a vote for the slate proposed by Zeff Capital, L.P. If the Repurchase is not completed or the Settlement Payment is not made as of 5:00 pm, Eastern Time, on December 30, 2019, the current members of the Board of Directors will resign from the Board. If the Repurchase is completed after the 2018 Annual Meeting and prior to December 30, 2019, the two directors nominated by Zeff Capital, L.P. will resign from the Board of Directors. In addition, the Settlement Agreement provides for mutual releases between the Company and each of the Investor Parties and certain of their affiliates. Each of the Investor Parties and certain of their affiliates also agreed to certain customary standstill provisions, including without limitation, with regard to certain actions in connection with the 2018 Annual Meeting, Extraordinary Transactions (as defined in the Settlement Agreement) with the Company, and the acquisition of any securities (or beneficial ownership thereof) of the Company, each of which expire on the later of December 30, 2019, or, should the Company consummate the Repurchase and the payment of the Settlement Payment prior thereto, the opening of the Company's advance notice period in respect of its annual meeting occurring during the calendar year 2027. TSR said, "At this time, it is not possible to predict the outcome of the litigation matters or their effect on the Company and the Company's consolidated financial position." TSR, Inc. provides contract computer programming services in the New York metropolitan area, New England, and the Mid-Atlantic region. TSR, Inc. was founded in 1969 and is based in Hauppauge, New York. UNION PACIFIC: Rail Shippers' Antitrust Suits Ongoing ----------------------------------------------------- Union Pacific Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 17, 2019, for the quarterly period ended August 31, 2019, that the company continues to defend antitrust suits by rail shippers. According to the report, 20 rail shippers (many of whom are represented by the same law firms) filed virtually identical antitrust lawsuits in various federal district courts against the company and four other Class I railroads in the U.S. Currently, Union Pacific Railrod Company (UPRR) and three other Class I railroads are the named defendants in the lawsuit. An appellate hearing related to the U.S. District Court for the District of Columbia's denial of class certification for the rail shippers was held on September 28, 2018. On August 16, 2019, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the decision of U.S. District Court denying class certification. A status conference is expected to determine how the case will proceed. Since the D.C. Circuit's ruling, approximately 25 lawsuits have been filed in federal court based on claims identical to those alleged in the class case. Union Pacific has also entered into certain tolling agreements. Like the class action claims, Union Pacific believes these claims are without merit. Union Pacific Corporation, through its subsidiary, Union Pacific Railroad Company, engages in the railroad business in the United States. Union Pacific Corporation was founded in 1862 and is headquartered in Omaha, Nebraska. UNITED STATES: ACLU Sues Over Immigrant Family Separations ---------------------------------------------------------- Courthouse News Service reported that the ACLU has filed a lawsuit against more than a dozen current and former Trump administration officials seeking damages on behalf of immigrant children and their parents who were "cruelly and inhumanely separated from each other by the U.S. government." A copy of the Complaint is available at: https://is.gd/Cbx3yp UNITED STATES: TSA Sued for Refusing to Grant $85 Credit -------------------------------------------------------- Courthouse News Service reported that a federal class action claims the Transportation Security Administration and JPMorgan Chase bank refuse to grant an $85 credit they promised for enrolling in TSA's expedited security-screening program if they categorize the enrollment "as a 'business' card, not a 'consumer' card," a distinction without a difference. A copy of the Complaint is available at https://is.gd/WLf28U USAPD LLC: Fails to Pay Overtime Pay, Ahmed Suit Claims ------------------------------------------------------- TWANA AHMED, individually and on behalf of all others similarly situated, Plaintiff v. USAPD, LLC DBA USA PATROL DIVISION; and ISAM SAMARA, Defendants, Case No. 4:19-cv-03620 (S.D. Tex., Sept. 25, 2019) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Ahmed was employed by the Defendants as non-exempt hourly paid employees. USAPD, LLC, d/b/a USA Patrol Division is a Limited Liability Company in Texas. The Company is engaged as a security agency. [BN] The Plaintiff is represented by: Michelle Mishoe Miller, Esq. MISHOE MILLER LAW, PLLC 4309 Yoakum Blvd. Houston, TX 77006 Telephone: (713) 521-6575 Facsimile: (832) 550-2073 E-mail: Michelle.Miller@mishoemillerlaw.com VALVOLINE INC: Allen Sues Over Race Discrimination Against Blacks ----------------------------------------------------------------- DOROTHY ALLEN, ADMINISTRATOR OF THE ESTATE OF GARRETT ALLEN, and SIRROM STERGIS, CURTIS PRATT, JAMAR BEASLEYMARION ROUSE, JEVAN NEWCOMB, ANTONIO WAINWRIGHT v. VALVOLINE INC., BRIAN FLEMING, and MATTHEW MARSHALL, Defendants, Case No. CV-19-923820 (Ohio Cir., Cuyahoga Cty., Oct. 23, 2019), is brought under the Ohio Revised Code to correct the Defendants' unlawful employment practices that discriminate on the basis of race and to provide appropriate relief to African American employees, who were and are adversely affected by those practices. The Plaintiffs allege that Valvoline has engaged in, and continues to engage in, unlawful race discrimination by (1) denying African American employees equal opportunity for promotion to management and management-track positions; (2) denying African Americans equal paid hourly positions; (3) denying African Americans equal pay for management positions; and (4) engaging in discriminatory hiring practices. The Plaintiffs were given a Valvoline employee handbook that they reviewed, but Valvoline did not permit them to keep. Valvoline's handbook contains a two-page policy entitled "Dress Code and Appearance Guideline." Valvoline's Dress Code and Appearance Guideline applies its rules more restrictively on hairstyles worn by African Americans. Valvoline's Dress Code and Appearance Guideline applies its rules more restrictively on facial hair worn by African Americans, according to the complaint. Due to Valvoline's broadly worded and discriminatorily restrictive Dress Code and Appearance Guideline, Defendant Fleming used the policy to harass the Plaintiffs, as well as other African Americans he supervised, says the complaint. The Plaintiffs were employed by Valvoline. The Plaintiffs are African American and members of a protected class. Valvoline is a Kentucky corporation licensed to do business in Cuyahoga County, in the State of Ohio, and regularly does and solicits business and engages in other persistent courses of conduct or derives substantial revenue from goods used or consumed, or services rendered in the State of Ohio.[BN] The Plaintiffs are represented by: Lewis A. Zipkin, Esq. Kevin M. Gross, Esq. ZIPKIN WHITING CO., L.P.A. The Zipkin Whiting Building 3637 South Green Road - 2nd Floor Beachwood, OH 44122 Telephone: (216) 514-6400 Facsimile: (216) 514-6406 E-mail: zfwlpa@aol.com kgross.zipkinwhiting@gmail.com VISALUS INC: Harris Securities Suit Settlement Gets Final Approval ------------------------------------------------------------------ In the case, ERIC J. HARRIS, SR., individually, and on behalf of all others similarly situated, and CAPRECE BYRD, BRYANT WATTS, RENAE WHITE, LAURA HERL, DR. FRANK McWHORTER, ERIC J. HARRIS, SR. and CONNIE BATES, individually on their own behalf, Plaintiffs, v. VISALUS, INC., a corporation, et al, Case No. 17-cv-12626 (E.D. Mich.), Judge Matthew F. Leitman of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Named Plaintiff's Unopposed Motion for Final Approval of Proposed Settlement and Final Judgment. Plaintiff Eric Harris, acting individually and on behalf of the Settlement Class, filed a Motion seeking final approval of their Agreement with the Defendants to settle all individual and class claims that have, or could have, been made, in the Plaintiffs' Third Amended Complaint. On review, Judge Leitman finds that the Settlement is fair, adequate, and reasonable; and entered final approval of the Settlement. For purposes of the Final Approval Order and Judgment, the Settlement Class is defined as all U.S. Independent Promotors of ViSalus, Inc. who qualified for units in the Founders' Equity Incentive Plan between Jan. 1, 2015 through March 1, 2017. The claims of the Named Plaintiffs and all the members of the Settlement Class are dismissed in their entirety with prejudice. The Judge approved a $15,000 incentive award for Eric J. Harris, Sr. A full-text copy of the District Court's Oct. 1, 2019 Order is available at https://is.gd/haocMF from Leagle.com. Caprece Byrd, Bryant Watts & Renae White, Plaintiffs, represented by Brent Caldwell bcaldwell@pfalawfirm.com -- Pregeg Faucett & Abbott PLLC, Mark R. Miller -- mrm@wexlerwallace.com -- Wexler Wallace, Matthew J.M. Prebeg -- mprebeg@pfalawfirm.com -- Prebeg, Faucett & Abbott PLLC, Patrick E. Cafferty -- PCafferty@CaffertyClobes.com -- Cafferty Clobes Meriwether & Sprengel LLP & Andrew Kochanowski -- akochanowski@sommerspc.com -- Sommers Schwartz, P.C. Dr Frank McWhorter, Connie Bates & Laura Herl, Plaintiffs, represented by Mark R. Miller, Wexler Wallace, Patrick E. Cafferty, Cafferty Clobes Meriwether & Sprengel LLP &Andrew Kochanowski, Sommers Schwartz, P.C. Eric J Harris Jr, Plaintiff, represented by Brent Caldwell, Pregeg Faucett & Abbott PLLC, Mark R. Miller, Wexler Wallace, Patrick E. Cafferty, Cafferty Clobes Meriwether & Sprengel LLP & Andrew Kochanowski, Sommers Schwartz, P.C. VISALUS, INC., Nick Sarnicola, Ashley Sarnicola, Blake Mallen, Ryan Blair, Todd Goergen & Gary J. Reynolds, Defendants, represented by Andrew Clark -- aclark@honigman.com -- Honigman, Miller, Schwartz & Cohn, LLP, Brian A. Howie -- brian.howie@quarles.com -- Quarles & Brady LLP, Edward A. Salanga -- esalanga@quarles.com -- Quarles & Brady LLP, Kevin D. Quigley -- kevin.quigley@quarles.com -- Quarles & Brady LLP, Michael S. Catlett -- michael.catlett@quarles.com -- Quarles & Brady LLP & Nicholas B. Gorga -- ngorga@honigman -- Honigman, Miller. Vincent Owens, Defendant, pro se. Michael Craig, Defendant, represented by Andrew Clark, Honigman LLP & Nicholas B. Gorga, Honigman LLP. VISALUS INC: Settlement in Kerrigan RICO Suit Gets Final Approval ----------------------------------------------------------------- In the case, TIMOTHY KERRIGAN, LORI MIKOVICH and RYAN M. VALLI, individually, and on behalf of all others similarly situated, Plaintiffs, v. VISALUS, INC., a corporation, et al., Defendants, Case No. 14-cv-12693 (E.D. Mich.), Judge Matthew F. Leitman of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Named Plaintiffs' Unopposed Motion for Final Approval of Proposed Settlement and Final Judgment. The Motion sought final approval of the Class Representatives' Settlement Agreement with the Defendants to settle all individual and class claims that have, or could have, been made in the Plaintiffs' Fourth Amended Complaint as specified in their Settlement Agreement. The Complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). Judge Leitman determined that the Settlement is fair, adequate, and reasonable. The Judge thus granted the Motion. The Settlement Class include all the members of the Settlement Class who did not submit timely and valid requests for exclusion. Twenty-two individuals, members of the Settlement Class, timely submitted notices to opt out of the class settlement, and therefore their rights are not affected by the final judgment. They are (1) Johnny Volpe, ViSalus IP #3396754; (2) Victoria Hughes, ViSalus IP #1822936; (3) Cynthia Cialdella, ViSalus IP #2757479; (4) Alison Belgrave, ViSalus IP #1330764; (5) Carlos Ubinas, ViSalus IP #2502998; (6) Jean-Michel Moulin, ViSalus IP #1621357; (7) Kimberley Earl, ViSalus IP #3462962; (8) Maxime Lacoursiere, ViSalus IP #2329006; (9) Benoit Giguere, ViSalus IP #1269371; (10) Caroline Dombroskie, ViSalus IP #3953459; (11) Christopher Scarfo, ViSalus IP #514227; (12) Youri Durocher, ViSalus IP #1631810; (13) Claudette Grondin, ViSalus IP #1269648; (14) Shakeel Khan, ViSalus IP #1422532; (15) Victoria Loughlin, ViSalus IP #667640; (16) Willington Tique, ViSalus IP #1247502; (17) Blake Moore, ViSalus IP #407918; (18) Jodi Woodside, ViSalus IP #650736; (19) Julie Grenier, ViSalus IP #2284611; (20) Callie Chicoine, ViSalus IP #748296; (21) Cindy Long, ViSalus IP #817462; and (22) Susan Escritor, ViSalus IP #1921072. For purposes of the Final Approval Order and Judgment, the Settlement Class is defined as all current or former Independent Promoters (IPs) of ViSalus who reside in the United States or Canada that lost money as a ViSalus IP between July 9, 2008 and the Preliminary Approval Date of June 14, 2019. In determining whether an IP lost money as an IP for purposes of the Settlement Class, the following calculation was used: (a) $49 of the cost of any ViSalus promoter system purchased (regardless of additional amounts spent above $49); plus (b) the costs spent on Vi-Net; plus (c) all renewal fees paid by the IP, minus; (d) all commissions received by the IP; minus (e) the value of all free product received by the IP (including, but not limited to, free products received as part of the 3 for Free promotion); and minus (f) the value of all Vi Points earned by the IP. The claims of the Named Plaintiffs and all the members of the Settlement Class are dismissed in their entirety with prejudice. Judge Leitman approved incentive awards to the Named Plaintiffs in the following amounts: (i) Timothy Kerrigan, $15,000; (ii) Lori Mikovich, $10,000; and (iii) Ryan Valli, $10,000. A full-text copy of the District Court's Oct. 1, 2019 Order is available at https://is.gd/bCWTWU from Leagle.com. Timothy Kerrigan, Lori Mikovich & Ryan M. Valli, Plaintiffs, represented by Brent Caldwell -- bcaldwell@pfalawfirm.com -- Pregeg Faucett & Abbott PLLC, Edward A. Wallace, Wexler Wallace LLP, Jason J. Thompson , Sommers Schwartz, P.C., Mark R. Miller , Wexler Wallace, Matthew J.M. Prebeg -- mprebeg@pfalawfirm.com -- Prebeg, Faucett & Abbott PLLC, Sarah Lindsay Rickard -- SRickard@sommerspc.com -- Sommers Schwartz PC & Andrew Kochanowski -- akochanowski@sommerspc.com -- Sommers Schwartz, P.C. VISALUS, INC., Visalus Holdings, LLC, Robert Goergen, Sr., Todd Goergen, Ryan Blair & Blake Mallen, Defendants, represented by Andrew Clark , Honigman, Miller, Schwartz & Cohn, LLP, Barry M. Rosenbaum -- BROSENBAUM@SEYBURN.COM -- Seyburn, Kahn, Brian A. Howie -- brian.howie@quarles.com -- Quarles & Brady LLP, Edward A. Salanga -- Edward.salanga@quarles.com -- Quarles & Brady LLP, Kevin D. Quigley -- kevin.quigley@quarles.com -- Quarles & Brady LLP, Michael S. Catlett , Quarles & Brady LLP & Nicholas B. Gorga -- -- ngorga@honigman.com -- Honigman, Miller. Ropart Asset Management Fund, LLC & Ropart Asset Management Fund II, LLC, Defendants, represented by Barry M. Rosenbaum, Seyburn, Kahn, Marc L. Newman -- mln@miller.law -- The Miller Law Firm, E. Powell Miller -- epm@miller.law -- The Miller Law Firm & Kevin F. O'Shea -- kfo@miller.law -- Miller Law Firm. Mojos Legacy, LLC, Fragmob, LLC, Freedom Legacy, LLC, Wealth Builder International, Inc., Residual Marketing, Inc., Jaketrz, Inc., Insider Corporate and Partnership Defendant Company Does 1- 10, Frank Varon, Kyle Pacetti, Jr., Jake Trzcinski, Michael Craig, Lavon Craig, Timothy Kirkland, Holley Kirkland, Joshua Jackson, Aaron Fortner, Rachel Jackson, Tara Wilson, Anthony Lucero, Rhonda Lucero, Individual Defendant John Does 1-10, Jason O'Toole, Lori Petrilli, Gary J. Reynolds, Kevin Merriweather, OCD Marketing, Inc., Power Couple, Inc., ArriveBy 25, Inc., BAM Ventures, Inc., Jason O'Toole International Holdings, Inc., Gooder, LLC, Red Letters, LLC, M-Power Path, Inc., A Berry Good Life, Inc., Network Dynamics America Corp., Got Heart Global, Inc., Beachlifestyle Enterprises, LLC, Wealth Builder International, LLC, Prospex Automated Wealth Systems, Inc. & 9248-2587 Quebec, Inc., Defendants, represented by Barry M. Rosenbaum, Seyburn, Kahn. Nick Sarnicola, Defendant, represented by Marc L. Newman, The Miller Law Firm. Rock Ridge Asset Management Company, LLC, Ropart Asset Management, LLC, Living Trust Dated 9/30/1991 F/B/O Robert B. Goergen & Hashtag One, LLC, Defendants, represented by E. Powell Miller, The Miller Law Firm, Kevin F. O'Shea, Miller Law Firm & Marc L. Newman, The Miller Law Firm. VIVINT INC: Has Made Unsolicited Calls, Betit Suit Claims --------------------------------------------------------- AMY BETIT, individually and on behalf of all others similarly situated, Plaintiff v. VIVINT, INC., Defendant, Case No. 0:19-cv-62419 (S.D. Fla., Sept. 28, 2019) seeks to stop the Defendant's practice of making unsolicited calls in violation of the Electronic Mail Communications Act. Vivint, Inc. provides home automation solutions. The Company offers thermostats, electronic door locks, carbon monoxide alarms, smoke alarms, fixed video cameras, lighting and small appliance control products, glass-break and motion detectors, door and window sensors, recessed door sensors, switches, and light bulbs. Vivint serves customers in the United States. [BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Thomas J. Patti, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Tel: (954) 907-1136 Fax: (855) 529-9540 E-mail: jibrael@jibraellaw.com tom@jibraellaw.com VSP RETAIL DEVELOPMENT: Vo Sues over Biometric Data Collection -------------------------------------------------------------- AMANDA VO, individually and on behalf of all others similarly situated, Plaintiff v. VSP RETAIL DEVELOPMENT HOLDING, INC., Defendant, Case No. 2019CH11261 (Il. Cir., Cook Cty., Sept. 27, 2019) alleges violation of the Biometric Information Privacy Act. The Plaintiff alleges in the complaint that the Defendant actively capture, collect, store, and obtain -- without providing notice, obtaining informed written consent or publishing data retention policies -- the biometrics of thousands of individuals who use the Defendant's Virtual Try-On software. VSP Retail Development Holding, Inc. provides insurance and related services. [BN] The Plaintiff is represented by: Myles P. McGuire, Esq. Evan Meyers, Esq. David L. Gerbie, Esq. MCGUIRE LAW, P.C. 55 W. Wacker, 9th Floor Chicago, IL 60601 Telephone: (312) 893-7002 E-mail: mmcguire@mcgpc.com emeyers@mcgpc.com dgerbie@mcgpc.com WEGMANS: Faces Class Action Over Vanilla Ice Cream Product Label ---------------------------------------------------------------- Jonathan Dienst, writing for NBC 4 New York, reports that Wegmans supermarket was hit with a class action complaint after a pair of ice cream buyers accused the chain of misleading consumers by marketing its ice cream as having vanilla, even though the ingredient is not listed on the products' labels. In the complaint filed on Oct. 4 in New York federal court, Quincy Steele, of Pennsylvania, and Jimmy Arriola, of the Bronx, said that instead of using vanilla flavoring or vanilla extract, Wegmans' ice creams use a non-vanilla "natural flavor" to achieve the vanilla taste while selling its products at premium prices, calling the alleged practice "misleading and deceptive." "The front label statements of "vanilla ice cream" are understood by consumers to identify a product where the characterizing flavor is vanilla and supplied to the Products only from the vanilla plant," according to the complaint. "The proportion of the characterizing component, vanilla, has a material bearing on price or consumer acceptance of the products because it is more expensive and desired by consumers," the complaint goes on to say. To showcase their allegations, the plaintiffs include photos of Wegmans' ice cream ingredient lists, which show no mention of the vanilla, but rather "natural flavor." To drive the point across, the plaintiffs also include photos of the ingredients lists of various competing ice cream brands for comparison. The competing brands list vanilla extract in their ingredient list. The consumers who have presented the complaint say the supermarket chain tried to deceive them into thinking the product is made using real vanilla in violation of federal regulations and that the chain should have stated that it was artificially flavored. Steele and Arriola will represent their Pennsylvania and New York state sub-class but look to be joined by other sub-classes from the other states with store locations: Maryland, Massachusetts, New Jersey, North Carolina and Virginia. "Plaintiff and class members reasonably and justifiably relied on these negligent misrepresentations and omissions, which served to induce and did induce, the purchase of the Products," the complaint says. The plaintiffs accuse Wegmans of violating New York consumer protection laws, negligent representation, breach of warranty, fraud and unjust enrichment. Steele and Arriola seek monetary damages and for the supermarket chain to correct the alleged misleading labels. Wegmans contends it has complied with all regulations and industry standards. "We take great pride in the quality of all of our Wegmans Brand products," a Wegmans' spokesperson said in a statement to News 4. "We believe that the labeling of our ice cream fully complies with all regulations and industry standards, and is not misleading in any way." [GN] WESTGATE RESORTS: Faces Bermudez Suit over Background Checks ------------------------------------------------------------ WILFRED BERMUDEZ, individually and on behalf of all others similarly situated, Plaintiff v. WESTGATE RESORTS, INC., Defendant, Case No. 6:19-cv-01847-RBD-DCI (M.D. Fla., Sept. 25, 2019) alleges violations of the Fair Credit Reporting Act. Westgate Resorts, Inc. operates resorts. The Company provides resort and hotel accommodations, including resorts with spa's, pools, and other recreational activities. [BN] The Plaintiff is represented by: Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 257-0572 E-mail: MEdelman@forthepeople.com WYETH INC: Objection on Denial to Reopen Discovery Overruled ------------------------------------------------------------ In the case, APRIL KRUEGER, individually and on behalf of all others similarly situated, Plaintiff, v. WYETH, INC. f/k/a AMERICAN HOME PRODUCTS, a Pennsylvania corporation; WYETH PHARMACEUTICALS f/k/a WYETH-AYERST PHARMACEUTICALS, a Pennsylvania corporation; and DOES 1 through 100 Inclusive, Defendants, Case No. 3:03-cv-2496-JAH (MDD) (S.D. Cal.), Judge John A. Houston of the U.S. District Court for the Southern District of California overruled the Defendants' objection to Magistrate Judge Dembin's order denying their motion to amend the scheduling order to reopen discovery and for permission to conduct discovery of a sampling of the absent class members and prescribers. WYETH: Objection on to Denial of Bid to Reopen Discovery Overruled The consumer protection class-action lawsuit was filed in 2003. The case was transferred to a Multi-District Litigation ("MDL") pending in the Eastern District of Arkansas. After limited discovery and motions practice, the case was remanded to the Southern District of California from the MDL in 2007. On March 30, 2011, the California Court granted in part and denied in part the Plaintiff's class certification motion, and certified the following Class: All California consumers who purchased Wyeth's Hormone Replacement Therapy products, Premarin, Prempro, and/or Premphase, for personal consumption between January 1995 and January 2003, and were exposed to a representation from Wyeth, or health care providers, or read in literature in which Wyeth advertised or provided to third parties to be disseminated under its brand or the third parties' brand, that Premarin, Prempro, and/or Premphase lowered cardiovascular, Alzheimers and/or dementia risk, or did not increase breast cancer risk, and do not seek personal injury damages resulting from it. The Defendants objected to the inclusion of the exposure criteria in the class definition by filing their Motion for Reconsideration of the Class Certification Order. On July 13, 2011, their Motion for Reconsideration was denied. They filed a petition for permission to appeal the Order certifying the class and the Order denying the motion for reconsideration. The U.S Court of Appeals for the Ninth Circuit denied the petition on Oct. 18, 2011. A month later, the parties filed the Joint Discovery Plan in which the Defendants stated that they planned "to pursue discovery on a number of matters, including, but not limited to: (3) the class members' physicians' views regarding Premarin, Prempro and Premphrase; (4) the class members' exposure to written or oral statements regarding the potential benefits or risks of Premarin, Prempro and Premphrase; (5) the class members' knowledge regarding the potential benefits or risks of Premarin, Prempro and Premphrase." The discovery phase began on Nov. 30, 2011 and was scheduled to close on June 15, 2012 pursuant to the scheduling order. On May 8, 2012, the parties filed a joint motion for a determination of a discovery dispute, involving the scheduling of nine depositions of non-party witnesses, all of whom were former employees of the Defendants. Magistrate Judge Dembin found good cause to extend the fact discovery deadline to July 20, 2012, for the sole purpose of taking the depositions of the nine persons identified in the joint motion. On May 16, 2012, the Plaintiff filed a motion for leave to take 14 additional depositions. The Defendants opposed the Plaintiff's motion but offered to stipulate to five additional depositions. Magistrate Judge Dembin found that the Defendants' proffered stipulation was reasonable and allowed the Plaintiff a total of 15 depositions. However, the court emphasized that discovery deadlines would remain unchanged; with a fact discovery deadline of July 20, 2012 and an expert discovery deadline of Aug. 10, 2012. At the conclusion of discovery and after denying the Defendants' initial motions for summary judgment and to decertify the class, the California District Court invited both parties to file supplemental briefs addressing whether to amend the class definition considering the issue of ascertainability. In the Oct. 7, 2015 Order on the supplemental briefs, the California District Court deleted the exposure requirement from the class definition. It adopted the Plaintiff's suggested class definition and amended the definition to include: All California consumers who purchased Wyeth's Hormone Replacement Therapy products, Premarin, Prempro, and/or Premphase, or personal consumption between January 1995 and January 2003, and who do not seek personal injury damages resulting from it. A case management conference was held on Dec. 11, 2015 and Magistrate Judge Dembin set a briefing schedule on the Defendant's request for discovery of the absentee class members. On Jan. 8, 2016, the Defendants filed the motion seeking to amend the scheduling order and for absent class member discovery. They sought permission to conduct limited surveys and depositions from a sampling of absent class members and their prescribers to determine: (1) whether the absent class members were exposed to the alleged misrepresentations, (2) the degree of exposure, and (3) the effect of that exposure on the individual class members' decisions to purchase the hormone therapy medication. In addition, they argued that discovery is highly relevant, and necessary to present their defense that the individual class members cannot prove an injury or harm if they were not exposed to any alleged misrepresentation -- elements required for both Article III standing and liability under California consumer protection laws. On April 4, 2016, Magistrate Judge Dembin issued an order denying the Defendants' motion to reopen discovery. The Magistrate Judge found the Defendants failed to show good cause for amending the Scheduling Order. Their failure to pursue the discovery while discovery was open despite knowledge of the supposed need precludes a finding of diligence. The Defendants filed a timely objection. While awaiting a ruling on the objection, the Defendants filed a motion for summary judgment, incorporating the argument that the Plaintiffs had not produced evidence of injury or reliance by the class members on the alleged misrepresentations and omissions. The Court issued an order granting in part and denying in part the Defendants' motion for summary judgment. Thereafter, upon the Defendants' request, the Court allowed the parties to submit supplemental briefing on the Defendant's objection to the discovery order. The objection is now before the Court. Judge Houston first reviews the Defendants' reasons for seeking the modification. Wyeth initially objected to the Magistrate Judge's order denying the motion to reopen discovery and argued that the evidence sought is required to rebut the "presumption or inference of exposure" and thus class-wide reliance on the misrepresentations. The Defendants further argue that the Magistrate Judge erred in finding that they did not establish good cause. Judge Houston finds that no reliance element exists under the Unfair Competition Law (UCL). For example, under the fraudulent prong of the UCL, the Plaintiff must show that members of the public are likely to be deceived by the Defendants' business practice. Actual falsehood, the perpetrator's knowledge of falsity, and perhaps most importantly, the victim's reliance on the false statements are not required to show a violation of California's UCL. Moreover, the Plaintiff's burden to establish the causal connection or link required between the Defendant's alleged unfair or fraudulent business practice and the injury has not changed since the issuance of the Court's October 2015 order. The same causal connection was required in March 2011 before fact discovery began and before the Defendants implemented their discovery plan to pursue information involving, among other interests, "class members' knowledge" regarding the potential benefits or risks of their HRT. The Defendants made no request to extend fact discovery deadlines to achieve these goals prior to discovery cutoff. Wyeth argues that the Court impermissibly expanded the scope of the class by implementing a "presumption of exposure." Judge Houston disagrees. He finds that nothing in the Court's 2015 and 2019 Orders changed the facts in dispute or the defenses available. The Defendants may present evidence that the alleged misrepresentations or omitted facts were not material in an effort to rebut any class-wide inference of reliance established by the Plaintiff at trial. However, they may only reopen discovery to do so when an unforeseeable, unusual, or unavoidable circumstance makes complying with the discovery deadline beyond their control. None of those circumstances exist in the case. The discovery the Defendants now seek could have been obtained during the discovery period. Accordingly, Judge Houston finds no error in the Magistrate Judge's determination that the Defendants' failure to pursue this discovery while discovery was open despite knowledge of the supposed need precludes a finding of diligence. Judge Houston finds that the Magistrate Judge's order denying the Defendant's motion to amend the scheduling order and reopen discovery was neither clearly erroneous nor contrary to law. Accordingly, Judge Houston overrules the Defendant's objections. A full-text copy of the California Court's Oct. 1, 2019 Memorandum Opinion is available at https://is.gd/xPcuUb from Leagle.com. April Krueger, Plaintiff, represented by Anthony D. Birchfield, Jr. -- Birchfield@BeasleyAllen.com -- Beasley, Allen, Crow, Methvin, Portis & Miles, PC, Breean Walas, Walas Law Firm, PLLC, 708 W 2nd St; Little Rock, Arkansas 72201, pro hac vice, David B. Byrne, III, David B Byrne III, 218 Commerce St., Montgomery, AL 36104-2540, pro hac vice, Eileen L. McGeever, Rushall and McGeever, 6100 nnovation Way Carlsbad, California 92009, P. Leigh O'Dell, Beasley Allen Crow Methvin Portis & Miles PC, 218 Commerce Street, Montgomery, AL 36104 & William Gary Holt, Gary Holt & Associates PA, 708 West Second Street, P.O. Box 3887Little Rock, AR 72201, pro hac vice. Wyeth Inc, a Pennsylvania corporation, Defendant, represented by Alexandra Walsh -- awalsh@wilkinsonwalsh.com -- Wilkinson Walsh + Eskovitz LLP, Bert L. Slonim -- bert.slonim@arnoldporter.com -- Kaye Scholer LLP, pro hac vice, Bert L. Wolff, Skadden Arps Slate Meagher & Flom LLP, 1096 Avenue of the Americas. New York, NY 10036, pro hac vice, Beth A. Wilkinson -- bwilkinson@wilkinsonwalsh.com -- Wilkinson Walsh + Eskovitz LLP, pro hac vice, Christopher M. Young -- christopher.young@dlapiper.com -- DLA Piper US, David C. Bonnin, DLA Piper LLP, pro hac vice, Grace Lee elee@shb.com -- Shook Hardy & Bacon LLP, Hayden A. Coleman, Skadden Arps Slate Meagher & Flom LLP, 4 Times Square Floor 24, New York, NY, 10036, pro hac vice, Jennifer L. Saulino, Wilkinson Walsh + Eskovitz LLP, 900 M. Street NW, Suite 800. Washington, DC 20036, pro hac vice. Wyeth Pharmaceuticals, Inc., a Pennsylvania corporation, Defendant, represented by Bert L. Slonim, Kaye Scholer LLP, pro hac vice, Bert L. Wolff, Dechert LLP, pro hac vice, Beth A. Wilkinson, Wilkinson Walsh + Eskovitz LLP, pro hac vice, Christopher M. Young, DLA Piper US, David C. Bonnin, DLA Piper LLP, pro hac vice, Grace Lee, Shook Hardy & Bacon LLP, Hayden A. Coleman, Dechert LLP, pro hac vice, Jessica D. Miller, Skadden Arps Slate Meagher & Flom LLP, pro hac vice, John H. Beisner, Skadden Arps Slate Meagher & Flom LLP, Kieran Gostin, Wilkinson Walsh + Eskovitz LLP, pro hac vice, Nathan E. Hoffman, Dechert, LLP, Fletcher C. Alford, SNR Denton US LLP, Frank Lane Heard, III, Wiliiams & Connolly LLP, Pamela Joan Yates, Kaye Scholer LLP & Ryan B. Polk, Gordon & Rees LLP. DOES, 1-100, inclusive, Defendant, represented by Nathan E. Hoffman, Dechert, LLP. Diana Boucher, Michele Coleman, Pamela Creek, Laura Fiveash, Mike Marquard, Amy Waltz, Peggy Woglom & Rick Zuniga, Miscellaneous Partys, represented by Joseph David Cohen, Porter Hedges, L.L.P, pro hac vice & Robert A. Shields, Wilson Turner Kosmo LLP. Z57, INC: Lopez Seeks Overtime Wages ------------------------------------ YVONNE LOPEZ, individually and on behalf of all persons similarly situated, JAIRUS HILL individually and on behalf of all persons similarly situated, the Plaintiffs, vs. Z57, INC., a California Corporation; CONSTELLATION HOMEBUILDER SYSTEMS, INC. a Delaware Corporation; ZURPLE, INC., Delaware corporation, and DOES 1-50, Inclusive, the Defendants, Case No. 37-2019-00053014-CU-OE-CTL (Cal. Super., Oct. 4, 2019), alleges that Defendants failed to provide required meal periods; failed to provide required rest periods; failed to pay overtime wages; failed to pay minimum wages; failed to pay all wages due to discharged and quitting employees; failed to maintain required records; and failed to furnish accurate itemized wage statements pursuant to the California Labor Code. The Plaintiffs were employed as non-exempt employees. Beginning approximately December 2017 until September 2019, they were paid in whole or in part on an hourly basis and in whole or in part on a sales commissions and non-discretionary bonuses. As a direct and proximate result of the Defendants' unlawful actions, the Plaintiffs and class members have suffered, and continue to suffer, from loss of earnings, the lawsuit says. The Defendants offer marketing services, social media services, and CRM systems for real estate professionals.[BN] Attorneys for the Plaintiffs are: Jean-Claude Lapuyade, Esq. JCL LAW FIRM, APC 3990 Old Town Avenue, Suite C204 San Diego, CA 92110 Telephone: (619) 599-8292 Facsimile: (619) 599-8291 E-mail: JLAPUYADE@CL-LAWFIRM.COM - and - Shani O. Zakay, Esq. ZAKAY LAW GROUP, APC 5850 Oberlin Drive, Suite 230a San Diego, CA 92121 Telephone: (619) 255-9047 Facsimile: (858) 404-9203 [*] FeganScott Expands Class-Action Litigation Practice in D.C. --------------------------------------------------------------- Chicago-based law firm FeganScott on Oct. 9 disclosed that attorney Jessica Meeder has joined the firm to open its Washington D.C. office. Meeder will help FeganScott expand its class-action litigation practice and will anchor the firm's presence in Washington D.C. Meeder specializes in class-action, mass tort, and multi-district litigation and has spent many years prosecuting class-action and multi-plaintiff cases at both the state and federal levels. Her passionate advocacy has resulted in numerous favorable judicial opinions, at both the trial court and appellate court levels, thus ensuring her clients a path to justice. Recently Meeder represented numerous patients who were sexually abused by a Kaiser Permanente pain management physician. She also represented residents of Flint, Mich. in a class-action lawsuit for clean drinking water. Her experience in creatively and effectively advocating for victims of civil rights violations, catastrophic personal injury, sexual assault and fraud will benefit FeganScott's national reach and advocacy. "Jessica is a skilled class-action attorney who is adept at navigating complex and nuanced legal issues," said Elizabeth Fegan, founding partner of FeganScott. "Her insight and effective representation will play a key role in chartering our east coast presence." Prior to joining FeganScott, Meeder was a partner at Murphy, Falcon & Murphy, a preeminent trial law firm in Baltimore, MD. Meeder earned her juris doctorate from the University of Maryland School of Law, where she was an editor for the University of Maryland Law Journal of Race, Religion, Gender and Class. Subsequently, she clerked for the Honorable Robert M. Bell, Chief Judge of the Maryland Court of Appeals, Maryland's highest court. Founded in 2019 by legal industry veterans Elizabeth Fegan and Timothy Scott, FeganScott is a national class-action law firm dedicated to helping victims of sexual assault, discrimination, consumer fraud and antitrust violations. Elizabeth Fegan currently represents victims of sexual abuse by Hollywood mogul Harvey Weinstein as co-lead counsel in the class action litigation. About FeganScott FeganScott -- http://www.feganscott.com-- is a national class-action law firm dedicated to helping victims of sexual abuse, discrimination, consumer fraud, antitrust violations and more. The firm is championed by acclaimed class-action and veteran attorneys and has successfully recovered $1 billion for millions of victims nationwide. FeganScott is committed to pursuing successful outcomes with integrity and excellence, while holding unjust parties accountable. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. 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