/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/200226.mbx C L A S S A C T I O N R E P O R T E R Wednesday, February 26, 2020, Vol. 22, No. 41 Headlines 400 NEW YORK: Zuniga Sues Over Unpaid Overtime Wages Under FLSA ACCEL LOGISTICS: Supervisors' Labor Suit Seeks Unpaid OT Wages AIRBNB INC: Faces $5-Mil. Class Action Over Unpaid Taxes AIRGAS USA: Court Dismisses Lit'l Pepper's Contract Breach Suit ALLERGAN INC: F.A. Suit Moved From California to D. New Jersey ALLINA HEALTH: Class Settlement in Larson Gets Prelim. Approval AMAG PHARMACEUTICALS: Barnes Suit Moved From Missouri to N.J. APEX SYSTEMS LLC: Walls Labor Suit Seeks Unpaid Overtime Wages APPLE INC: Blix Mulls Class Action Over Sherlocking ASSET ACCEPTANCE: Wins Summary Judgment in Goodman FDCPA Suit ASSOCIATED STAFFING: Tonel Labor Suit Seeks Unpaid Overtime Wages BARNSTABLE COUNTY, MA: Smith Suit Dismissed Without Prejudice BEACH HOUSE: Faces Nygaard FLSA Suit Over Mandatory Tip Pool BLACKROCK MORTGAGE: Court Denies Bid to Dismiss Garfield Suit BRENT DENNY: Dismissal of Kihn Complaint Sought BUSINESS FUNDING: Fabricant Hits Illegal Telemarketing Calls BYNUM TRANSPORT: Fails to Pay Drivers Minimum Wage, McCann Says C-CAT INC: Beeson Suit Seeks Unpaid Overtime Wages CANNTRUST HOLDINGS: Faces Shareholder Class Action in Ontario CAPITAL COMEBACK: Fabricant Hits Illegal Telemarketing Calls CEMEX INC: Nowakowski Labor Suit Deal Gets Final Court Approval CENTRAL VALLEY: Brink Gets Court Nod to File 2nd Amended Complaint CERTIFIED FLOORING: FLSA Class Certified in Couch Suit CHAMPION PETFOODS: Court Narrows Claims in Cesare Suit CHARTER COMMUNICATIONS: Faces Class Action Over Unsolicited Texts CHARTER COMMUNICATIONS: Rahmatullah Suit Moved to C.D. California CHURCHILL CREDIT: Faces Naiman Suit Over Unwanted Phone Calls COCA-COLA CO: Batchelor Sues Over Misleading Drink Label CREDIT CORP: Fote Suit Seeks to Certify Class CREDIT ONE BANK: Thompson Sues Over Auto-dialed Collection Calls DIPLOMAT PHARMACY: Morabito Challenges Sale to UnitedHealth DIRECTV: Customers Make Another TCPA Class Certification Bid DOUBLE DOWN: 9th Cir. Affirms Arbitration Bid Denial in Benson Suit EDWARDS BUILDERS: Dernay Hits Illegal Telemarketing Calls EQUIFAX: Gibbs Law Wins $1.5-Bil. Data Breach Settlement EUPHORIUM LIFE: Faces Megay TCPA Suit Over Telemarketing Texts EXPRESSIVE LIGHTING: Simmons Seeks Overtime Wages Under FLSA FLOYD MAYWEATHER JR: 9th Circuit Upholds Boxing Suit Dismissal FUSION INDUSTRIES: Leal Seeks OT Wages for Installation Laborers GEO GROUP: Faces Class Action Over Voluntary Work Program GERON CORP: Faces Tollen Securities Suit Over Drop of Stock Price GNC HOLDINGS: Misrepresents Skin Oil as Vitamin E Oil, Brock Says GODADDY.COM LLC: Bennett Suit Moved From Arizona to S.D. Alabama HAMBLEN COUNTY, TN: Torres Suit Seeks to Certify Class HEALTH CARE SERVICE: Briscoe Seeks to Certify Classes & Subclasses HEALTHCARE SERVICES: Guijarro Labor Suit Moved to C.D. California HEALTHPRO HERITAGE: Improperly Pays Workers, Carman Suit Says HEARTLAND BEEF: Snider Suit Moved to Central District of Illinois HOMETOWN HEART: Faces Craig Suit in Calif.; June 24 Hearing Set HUDSON VALLEY: Swain Seeks to Recover Wages & Benefits Under FLSA INFINITY HEALTHCARE: Ark. Upholds Certification of Boyd Class JAKARTA: Legal Team Plans to Replace Three Flood Case Plaintiffs JAMES S. FARRIN: Can Partly Compel Responses in Garey Suit JUMIO: Settles Biometric Data Privacy Class Action for $7M JUUL LABS: Cooper Suit Moved From N.D. Texas to N.D. California LENNAR CORP: Quirk Seeks Overtime Pay for Construction Managers LIVE NATION: Wellinger FLSA Suit Removed to C.D. California LOANME INC: Cal. App. Upholds Dismissal of Smith Suit MAKES CENTS: Faces Fabricant Suit Alleging Invasion of Privacy MCGRAW-HILL: Independent Book Retailers' Suit Asserts Monopoly MDL 2836: Court Dismisses Zetia (Ezetimibe) Antitrust Suit MEDICAL CENTER: Justices Hear Arguments in Hospital Liens Case MERRY MAIDS: Averts Home-Cleaners' Wage Class Action in Calif. NEW MEXICO: Court Denies Stay Bids in Duran Suit OCWEN FINANCIAL: Powell Plaintiffs Can File 2nd Amended Complaint OPERA LIMITED: Kehoe Law Firm Investigates Securities Claims PEREGRINE EXPRESS: White Sues for Denied Meal/Rest Breaks PK MANAGEMENT: Court Denies Bid to Certify Class in Riley Suit PLAINS ALL: Property Owners' Easement Class Action Certified PROGRESSIVE DIRECT: Stanikzy Sues for Breach of Contract PUBLIC ACCESS: Appeals Court Hears Arguments in Fees Case QUALITY ECO: Milton Suit Seeks to Recover Overtime Pay Under FLSA QUDIAN INC: Faces Securities Class Action in New York RAND MCNALLY: Faces Van Zeeland Suit Over Defective TND Tablet 80 RAYTHEON COMPANY: Plan Member Sues Over Denied Treatment RESCARE INC: Diaz Files Suit Under FCRA SAINT FRANCIS: Faces Mowery Class Suit Over Ransomware Attack SANDERSON FARMS: 2nd Circuit Affirms Class Action Dismissal SKYLINE: Former Employees Sue Over Unpaid Insurance Premiums SOUTHWEST AIRLINES: Garay Remanded to Alameda County Superior Court SQUARE INC: Faces Class Action Over Unauthorized Texts ST. ELIZABETH REGIONAL: Court Denies Bid to Dismiss Walkinshaw Suit STATE FARM: 11th Circuit Affirms Dismissal of Crawford's Auto Suit TARTE INC: $1.7M Settlement in Patora Fraud Suit Has Final Approval TREASURY WINE: Faces Second Class Action After Profit Downgrade TWIN BAIL: Faces Sloatman Suit Over Unwanted Marketing Calls UBER: Gibson Dunn Secures $20MM Class Action Settlement UNITED STATES: Calhoun Suit Seeks to Certify Class of Veterans UNITED STATES: First Circuit Affirms Dismissal of Jalbert Suit VCI CONSTRUCTION: Olivas Labor Suit Removed to C.D. California VH PROPERTY CORP: Servers Sue Over Unpaid Overtime, Missed Breaks WAL-MART INC: Court Grants Bid to Sever Claims in Monda Suit WALGREEN CO: Faces Whittington Employment Suit in California WATSON GRINDING: Cortez Sues in Texas Dist. Ct. for Harris Cty. WAYNE COUNTY, MI: Faces Vehicle Seizure, Civil Forfeiture Lawsuit WESTPAC BANKING: March 30 Lead Plaintiff Motion Deadline Set XALER: Averts TCPA Class Action Over Unsolicited Text Messages YAHOO INC: July 20 Claims Filing Deadline Set YES TO INC: Whitfield Seeks Damages Over Face Mask Rash YOSHINOYA AMERICA: DeSalvo Suit Says Website not Blind-Friendly ZEETOGROUP LLC: Wayne Sues Over SMS Ad Blasts ZOOM TELEPHONICS: Repackages Used Modems as New, Schulze Alleges [^] CLASS ACTION Money & Ethics Conference on May 4 ********* 400 NEW YORK: Zuniga Sues Over Unpaid Overtime Wages Under FLSA --------------------------------------------------------------- Oscar Zuniga, on behalf of himself and all others similarly situated, Jose Melendez, Gladis Sofia Escobar de Burgos, Eugenia Gutierrez, individually v. 400 NEW YORK AVENUE REST. CORP. and BRETT HUGHES, individually, Case No. 2:20-cv-00901 (E.D.N.Y., Feb. 19, 2020), seeks redress against the Defendants for unpaid overtime, unpaid spread of hours pay and notice and wage statement violations pursuant to the Fair Labor Standards Act and the New York Labor Law. The Defendants failed to pay the Plaintiffs and the potential class and collective overtime pay for all hours worked over forty per workweek, says the complaint. The Defendants also failed to pay the Plaintiffs and the potential class spread of hours pay for all shifts in which they worked greater than ten hours in one day. The Plaintiffs are current and former kitchen workers for the Defendants. Defendant 400 New York Avenue Rest. Corp., doing business as FH Riley's, is a New York corporation registered to do business in the State of New York.[BN] The Plaintiffs are represented by: Troy L. Kessler, Esq. KESSLER MATURA P.C. 534 Broadhollow Road, Suite 275 Melville, NY 11747 Phone: (631) 499-9100 Email: tkessler@kesslermatura.com ACCEL LOGISTICS: Supervisors' Labor Suit Seeks Unpaid OT Wages -------------------------------------------------------------- Gregory Billingsley, Matthew Blann and Cody Hopkins, individually and on behalf of all others similarly situated, Plaintiff, v. Accel Logistics, Inc., Defendant, Case No. 20-cv-00091, (W.D. Tex., Jan. 23, 2020), seeks unpaid overtime wages and statutory damages pursuant to the Fair Labor Standards Act. Defendant owns and operates an oilfield services company where Plaintiffs worked as "field supervisors" in various job sites throughout Texas. They claim to have worked in excess of 40 hours in a workweek but were not paid time-and-one-half their regular rate of pay. [BN] Plaintiff is represented by: Jay Forester, Esq. Meredith Mathews, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Tel: (214) 210-2100 Email: jay@foresterhaynie.com mmathews@foresterhaynie.com - and - Shane McGuire, Esq. Daniel A. Cook, Esq. THE MCGUIRE FIRM, PC 102 N. College St., Suite 301 Tyler, TX 75702 Phone: 903-630-7154 Fax: 903-630-7173 Email: shane@mcguirefirm.com daniel@mcguirefirm.com AIRBNB INC: Faces $5-Mil. Class Action Over Unpaid Taxes -------------------------------------------------------- K.T. McKee, writing for Rome News-Tribune, reports that on any given weekend in Rome, there are at least 50 residents renting out either a room or an entire home to visitors through Airbnb, according to City Attorney Andy Davis. Each one of those rentals comes with a "service fee" instituted by San Francisco-based Airbnb, Inc. Where all of those collected fees end up has become the basis of a federal lawsuit filed on Jan. 31 by Rome, Cartersville, Tybee Island and Hart County. They're seeking class-action status and more than $5 million in damages. To Rome and the more than 600 Georgia cities and counties the suit claims are affected, at least a portion of those fees represent taxes due. Those governments have so far not been paid by Airbnb. This comes on the heels of a similar class-action civil suit involving Rome against web-based hotel booking companies such as Expedia and Hotels.com. Filed more than 15 years ago, that one took seven years to net a favorable ruling. But Rome began receiving back payments on those taxes beginning in 2012, according to City Clerk Joe Smith. "As a result of that case and the growth of Airbnbs and other types of similar booking companies, cities and counties have been inquiring about the frustration of not having the hotel/motel taxes collected," Davis said on Feb. 3. "Airbnb has failed to pay the municipalities the taxes." Rome has an 8% hotel/motel excise tax. Its ordinance defines "hotel" to mean "any structure or any portion of a structure including any lodginghouse, roominghouse, dormitory, Turkish bath, bachelor hotel, studio hotel, motel, motor hotel, auto court, inn, public club or private club containing guestrooms and which is occupied or is intended or designed for occupancy by guests, whether rent is paid in money, goods, labor or otherwise." According to the lawsuit, the plaintiffs first sent a letter to Airbnb, Inc., five years ago, demanding they collect and remit applicable excise taxes due them. Similar letters were sent out in January 2017 and again in January 2019. The defendants have never responded to either demand, the lawsuit claims. "Defendants engage in deceptive, unlawful, unfair, and fraudulent business acts and practices by misrepresenting to consumers and owners that Defendants are displaying and collecting Occupancy Taxes, which in fact Defendants to not display or collect," the suit claims. Airbnb consumers and owners are paying the taxes, the suit contends, but "(d)efendants have created (and will continue to create) the likelihood of confusion with respect to the Occupancy Taxes due to the Plaintiff government recipients." [GN] AIRGAS USA: Court Dismisses Lit'l Pepper's Contract Breach Suit --------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Defendant's Motion to Dismiss the case LIT'L PEPPER GOURMET, INC., Plaintiff, v. AIRGAS USA, LLC, Defendant. Case No. 19cv837-LAB (AGS). (S.D. Cal.). Defendant Airgas USA, LLC manufactures and distributes commercial gas cannisters nationwide. Lit'l Pepper filed the complaint on behalf of itself and all other California Airgas customers, alleging that Airgas's decision to impose these fuel surcharges constitutes breach of contract and a violation of various California consumer protection laws. Airgas moved to dismiss the Complaint, arguing that the terms of sale found on its website permit it to impose these fuel surcharges. Specifically, Lit'l Pepper alleges that the terms found on the parties' invoices permitted Airgas to impose a fuel surcharge only when there were extraordinary or emergency increases in fuel costs. In Plaintiff's view, there were no such extraordinary circumstances and Airgas's decision to impose a fuel surcharge therefore breached both the explicit terms of the agreement and the covenant of good faith and fair dealing. Although Plaintiff's complaint alleges that there were no extraordinary or emergency circumstances, it doesn't account for the possibility that any surcharge increases were the result of unanticipated cost increases. Indeed, Plaintiff concedes in its complaint that the price of fuel in California increased by approximately 25 percent from April 28, 2015 to October 1, 2018, which suggests that there were in fact unanticipated increases in the costs of providing the product. The increase in the fuel surcharge 130% over the same period may have outstripped the increase in the price of fuel, but there is no requirement in the contract that the fuel surcharge precisely track the cost of fuel. As pled, Lit'l Pepper has not stated a valid claim for breach of contract, the Court finds. Lit'l Pepper next argues that Airgas's imposition of a fuel surcharge constitutes an unlawful, unfair, and/or fraudulent business practice in violation of California Business and Professions Code Section 17200, et seq., commonly known as the UCL. Lit'l Pepper's complaint sets forth a laundry list of predicate statutes that Airgas supposedly violated by imposing a fuel surcharge, including, among others, California Civil Code Sections 1572 (actual fraud), 1573 (constructive fraud), 1709 (fraudulent deceit), 1711 (deceit upon the public), and 1670.5 (unconscionable contracts). But Lit'l Pepper makes no serious effort to plead a violation of any of these predicate statutes, the Court finds. It doesn't plead the specific elements of the statutes, nor does it plead any factual support for its allegations other than that Airgas imposed a fuel surcharge. Because Lit'l Pepper did not take care to specifically plead the elements of the predicate, unlawful California Civil Code violations, it has not stated a plausible claim under the UCL's unlawful prong, the Court holds. Lit'l Pepper next alleges that Airgas's decision to impose a fuel surcharge, even if not unlawful, was an unfair business practice in violation of the UCL. An unfair business practice is one that offends an established public policy or is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. Plaintiff does not explain how specifically Airgas's actions were unfair, except that the decision to impose a fuel surcharge amounted to a systematic breach of the parties' agreement. Lit'l Pepper has not plausibly alleged any breach of the parties' agreement, so this argument doesn't hold water here, the Court opines. But even putting aside the systematic breach argument, federal courts in California have regularly rejected claims that surcharges even those disproportionate to the seller's underlying costs constitute unfair competition. Airgas's invoices and delivery orders disclosed the existence and the amount of the fuel surcharge, and Lit'l Pepper regularly paid these surcharges for years. The UCL does not provide courts with a general license to assess the fairness of contracts and Plaintiff has identified no authority that requires a for-profit business to identify the specific statute or contract that permits it to charge a fee for a service. Instead, the burden is on Lit'l Pepper to show that the fee was impermissible. It hasn't met that burden here, the Court notes. Lit'l Pepper's last UCL claim is that Airgas's decision to impose a fuel surcharge constituted a fraudulent business practice. To show that a business practice is fraudulent, a plaintiff must demonstrate that members of the public are likely to be deceived. Here, because Lit'l Pepper hasn't plausibly alleged that Airgas exceeded its authority under the contract in imposing the fuel surcharge, it also hasn't plausibly alleged that the public would be deceived by Airgas's actions. Plaintiff's last claim is that Airgas's terms and conditions violated California Business and Professions Code Section 17500, also known as California's False Advertising Law. California's False Advertising Law prohibits any 'unfair, deceptive, untrue, or misleading advertising.' To state a claim for violation of this law, a plaintiff must allege that there was an advertisement that was directed at the public and that it was unfair, deceptive, untrue, or misleading. Lit'l Pepper has not plausibly alleged a violation of California's False Advertising Law because it has neither shown that Airgas's terms and conditions were advertisements directed at the public nor that the terms were untrue or deceptive. Although the definition of advertising in section 17500 is expansive and includes any manner or means whatsoever, the statute as a whole clearly refers to advertising, not to contracts. Lit'l Pepper has identified no authority holding that a contract between parties constitutes advertising and the Court declines to adopt such a broad reading. Further, even if the Court were to construe Airgas's terms of service as an advertisement, for the reasons stated, Lit'l Pepper has not plausibly pled that there was anything false, unfair, or deceptive about them. Defendant's motion to dismiss is GRANTED, the Court rules. A full-text copy of the District Court's November 21, 2019 Order available at https://tinyurl.com/stlgbb2 from Leagle.com Lit'l Pepper Gourmet, Inc., a California corporation, Individually and on behalf of those similarly situated, Plaintiff, represented by John Kenneth Landay - jlanday@landayroberts.com - Landay Roberts LLP. Airgas USA, LLC, a Delaware limited liability company, Defendant, represented by Kanika D. Corley - kanika.corley@akerman.com - Akerman LLP. ALLERGAN INC: F.A. Suit Moved From California to D. New Jersey -------------------------------------------------------------- F.A., S.B., K.B., M.C., M.D.E., A.F., M.G., T.K., C.L, C.M., G.A.M., M.M.P., M.S., and A.V., individually and on behalf of all others similarly situated v. ALLERGAN, INC. f/k/a INAMED CORPORATION; ALLERGAN USA, INC.; ALLERGAN plc; and DOES 1 through 20, inclusive, Case No. 8:19-cv-02337, was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the District of New Jersey on Feb. 19, 2020. The New Jersey District Court Clerk assigned Case No. 2:20-cv-01760 to the proceeding. The lawsuit arises from claims for personal injury and product liability. Allergan, Inc. was an American global pharmaceutical company focused on eye care, neurosciences, medical dermatology, medical aesthetics, breast enhancement, obesity intervention and urologics.[BN] The Plaintiffs are represented by: Ruhandy Glezakos, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, PC 10728 Lindbrook Drive Los Angeles, CA 90024 Phone: (310) 474-9111 Facsimile: (310) 474-8585 Email: rglezakos@ahdootwolfson.com twolfson@ahdootwolfson.com ALLINA HEALTH: Class Settlement in Larson Gets Prelim. Approval --------------------------------------------------------------- Judge Susan Richard Nelson of the U.S. District Court for the District of Minnesota issued an Order granting Plaintiffs' Motion for Preliminary Approval of Class Action Settlement in the case captioned Judy Larson, Janelle Mausolf, and Karen Reese, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. Allina Health System; the Allina Health System Board of Directors; the Allina Health System Retirement Committee; the Allina Health System Chief Administrative Officer; the Allina Health System Chief Human Resources Officer; Clay Ahrens; John I. Allen; Jennifer Alstad; Gary Bhojwani; Barbara Butts-Williams; John R. Church; Laura Gillund; Joseph Goswitz; Greg Heinemann; David Kuplic; Hugh T. Nierengarten; Sahra Noor; Brian Rosenberg; Debbra L. Schoneman; Thomas S. Schreier, Jr.; Abir Sen, Sally J. Smith; Darrell Tukua; Penny Wheeler; Duncan Gallagher; Christine Webster Moore; Kristyn Mullin; Steve Wallner; John T. Knight; and John Does 1-20, Defendants, Case No. 17-cv-03835 (SRN/TNL), (D. Minn.). The action involves claims for alleged violations of the Employee Retirement Income Security Act (ERISA), with respect to the Allina Health System 403(b) Retirement Savings Plan and the Allina 401(k) Retirement Savings Plan (Plans). On review, the District Court conditionally certifies the following class (Settlement Class): All current and former participants and beneficiaries (excluding Defendants and their Immediate Family Members) of the Allina Health System (Allina) 403(b) Retirement Savings Plan and the Allina 401(k) Retirement Savings Plan at any time between August 18, 2011 and the date of this Order. The Court preliminarily appoints the Named Plaintiffs Judy Larson, Janelle Mausolf, and Karen Reese as class representatives for the Settlement Class and Kessler Topaz Meltzer & Check LLP, Bailey & Glasser LLP, Izard Kindall & Raabe LLP, and Nichols Kaster, PLLP as Class Counsel for the Settlement Class. The Court preliminarily approves the proposed Plan of Allocation, finding it is fair, reasonable, and adequate. The parties' Settlement Agreement is hereby preliminarily approved as fair, reasonable, and adequate, the Court rules. The Settlement calls for $2,425,000, which the Court finds fair, reasonable, and adequate, taking into account the costs, risks, and delay of trial and appeal. The method of distributing the Class Settlement Amount is efficient, relying on Defendants' records and requiring no filing of claims. The Settlement terms related to attorneys' fees do not raise any questions concerning fairness of the Settlement, and there are no agreements, apart from the Settlement, required to be considered under FED. R. CIV. P. 23(e)(2)(C)(iv). The Class Settlement Amount is within the range of settlement values obtained in similar cases. A fairness hearing is scheduled for April 16, 2020, at 9:30 a.m. to make a final determination on the merits of the Settlement. A full-text copy of the District Court's November 21, 2019 Order available at https://tinyurl.com/u3cvslp from Leagle.com Judy Larson, individually and on behalf of themselves and all others similarly situated, Janelle Mausolf, individually and on behalf of themselves and all others similarly situated & Karen Reese, individually and on behalf of themselves and all others similarly situated, Plaintiffs, represented by Brock J. Specht - bspecht@nka.com - Nichols Kaster, PLLP, Carl F. Engstrom - cengstrom@nka.com - Nichols Kaster, PLLP, Douglas Patrick Needham - dneedham@ikrlaw.com - Izard, Kindall & Raabe, LLP, pro hac vice, Kai H. Richter - krichter@nka.com - Nichols Kaster, PLLP, Mark K. Gyandoh , Capozzi Adler, P.C., 2933 North Front St., Harrisburg, Pennsylvania, pro hac vice, Mark Patrick Kindall -mkindall@ikrlaw.com - Izard, Kindall & Raabe, LLP, pro hac vice & Robert A. Izard, Jr. - rizard@ikrlaw.com - Izard, Kindall & Raabe, LLP, pro hac vice. Allina Health System, The Allina Health System Board of Directors, The Allina Health System Retirement Committee, The Allina Health System Chief Administrative Officer, The Allina Health System Chief Human Resources Officer, Clay Ahrens, John I. Allen, Jennifer Alstad, Gary Bhojwani, Barbara Butts-Williams, John R. Church, Laura Gillund, Joseph Goswitz, Greg Heinemann, David Kuplic, Hugh T. Nierengarten, Sahra Noor, Brian Rosenberg, Debbra L. Schoneman, Thomas S. Schreier, Jr., Abir Sen, Sally J. Smith, Darrell Tukua, Penny Wheeler, Duncan Gallagher, Christine Webster Moore, Kristyn Mullin, Steve Wallner, John T. Knight & John Does, Defendants, represented by Andrew J. Holly holly.andrew@dorsey.com - Dorsey & Whitney LLP, Eric G. Serron , Steptoe & Johnson LLP, 1330 Connecticut Avenue NW Washington, DC 20036, pro hac vice, Nicholas J. Bullard - bullard.nick@dorsey.com - Dorsey & Whitney LLP, Paul J. Ondrasik, Jr. , Steptoe & Johnson LLP, 1330 Connecticut Avenue NW Washington, DC 20036, pro hac vice & Stephen P. Lucke - lucke.steve@dorsey.com - Dorsey & Whitney LLP. AMAG PHARMACEUTICALS: Barnes Suit Moved From Missouri to N.J. ------------------------------------------------------------- The case captioned as Mary Jo Barnes, individually and on behalf of others similarly situated v. AMAG Pharmaceuticals, Inc., Case No. 3:19-cv-05088, was transferred from the U.S. District Court for the Western District of Missouri to the U.S. District Court for the District of New Jersey on Feb. 19, 2020. The District of New Jersey Court Clerk assigned Case No. 2:20-cv-01771 to the proceeding. AMAG Pharmaceuticals, Inc. is an American pharmaceutical company developing products that treat iron deficiency anemia in adult patients.[BN] APEX SYSTEMS LLC: Walls Labor Suit Seeks Unpaid Overtime Wages -------------------------------------------------------------- Karyn Walls, individually and on behalf of all others similarly situated, Plaintiff, v. Apex Systems, LLC, Defendant, Case No. 20-cv-00044 (E.D. Va., January 24, 2020), seeks to recover unpaid overtime pay and other damages under the Fair Labor Standards Act. Apex is a specialized engineering technical services organization with offices located in Glen Allen, Virginia where Walls worked as an implementation consultant. Walls claims to be paid a flat amount for each day worked and denied overtime for hours worked in excess of 40 hours in a workweek. [BN] Plaintiff is represented by: Andrew W. Dunlap, Esq. Michael A. Josephson, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 Email: adunlap@mybackwages.com mjosephson@mybackwages.com - and - Richard J. Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com - and - Harris D. Butler, III, Esq. Zev H. Antell, Esq. BUTLER ROYALS, PLC 140 Virginia Street, Ste. 302 Richmond, VA 23219 Telephone: (804) 648-4848 Facsimile: (804) 237-0413 Email: harris.butler@butlerroyals.com zev.antell@butlerroyals.com APPLE INC: Blix Mulls Class Action Over Sherlocking --------------------------------------------------- Stephen Warwick, writing for iMore, reports that Blix has called on iOS developers to fight back against Apple over sherlocking, the practice of copying and incorporating ideas from smaller developers into its own software. According to a report from Financial Times, Blix says it plans to bring a resolution to the issue, claiming that there are thousands of developers suffering from the practice. Blix's own grievance with Apple relates to Apple's 'Sign in with Apple' feature, which it sued the company over in October for patent infringement. Not only does it claim that Apple stole a feature from BlueMail which allowed users to sign up to services with an anonymous email, but it also claims that Apple buried its app in App Store search results, and booted its desktop app from the store altogether. According to the report: "But the start-up said that the slow legal process worked in Apple's favour. It said other developers that share its concerns, but are fearful of retribution, should speak up. "We are considering all options, including a class-action lawsuit," said Ben Volach, who co-founded Blix with his brother Dan. "We are going to make sure this is resolved. We are sure there are thousands [of developers] that are suffering from this." Other developers have waded into the debate too. The chief executive of Astro, Matt Ronge said: "The pattern is that they see what's popular, they implement it into their device, they bundle it, and they use private APIs [a programming protocol] that others don't have access to — so their version has a leg-up on the competition, Apple created its own version of Astro's tool, which turned your iPad into a second display for Mac, into Sidecar. As noted in the report, Blix claims it is considering all options, including a class-action lawsuit against Apple, a scenario Apple will no doubt be keen to avoid. [GN] ASSET ACCEPTANCE: Wins Summary Judgment in Goodman FDCPA Suit -------------------------------------------------------------- In the case, AARON GOODMAN, Plaintiff, v. ASSET ACCEPTANCE LLC and ENCORE CAPITAL GROUP, INC., Defendants, Civil Action No. 18-cv-01667-RM-KMT (D. Colo.), Judge Raymond P. Moore of the U.S. District Court for the District of Colorado granted the Defendants' Motion for Summary Judgment. Under the Complaint, Plaintiff Aaron Goodman asserts that the Defendants violated the Fair Debt Collection Practices Act ("FDCPA") when they sent a letter seeking to collect an alleged debt which was time-barred. Goodman is in the masonry business and has been for more than 22 years. In 2001, the Plaintiff obtained a Gordon's Jewelers Citibank credit card and purchased something in that store. At some point in time, the Loan was sold to the Defendants. In January 2012, the Defendants entered into a Consent Decree with the Federal Trade Commission ("FTC") where, among other things, Defendants agreed to make the following disclosure when collecting on debt where the debt is past the date for obsolescence under the Fair Credit Reporting Act (FCRA). In March 2013, the Defendants sent the Plaintiff a collection letter. In the letter, as required by the Consent Decree, the following disclosure was made: "The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it, and we will not report it to any credit reporting agency." The Plaintiff took no action on the letter. He put it in his desk and essentially forgot about it until after he filed the lawsuit. The letter is not the one complained of in the case. In September 2015, the Defendants entered into a Consent Order with the Consumer Financial Protection Bureau ("CFPB"). Pursuant to the In the Matter of Encore Capital Group, Inc., Administrative Proceeding No. 2015-CFPB-0022, found at https://www.consumerfinance.gov/policy-compliance/enforcement/actions/encore/ (last visited Dec. 13, 2019) ("Consent Order"), the Defendants agreed to include the following statement for consumer accounts where the debt is time-barred and generally cannot be included in a consumer report: "The law limits how long you can be sued on a debt and how long debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau." In June 2018, the Defendants sent the Plaintiff the collection letter at issue. In that Letter, as required by the Consent Order, they made the following disclosure: "The law limits how long you can be sued on a debt and how long debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau." When the Plaintiff received the letter, he was upset by its age, looked up the statute of limitations, believed the statute had run, and contacted a lawyer. He made no payment nor did he make any promise to make any payment. The Plaintiff does not contend, nor could he, that the Defendants sued him or threatened to sue him if he did not pay the Loan. Based on the Letter, the Plaintiff filed the lawsuit asserting two claims under Section 1692e of the FDCPA. The second claim is identified as a class action claim but no motion has ever been filed to certify any class. The Defendants have moved for summary judgment alleging the Plaintiff cannot show they violated the FDCPA. Judge Moore finds that the Letter in the case does not offer to "settle" the Loan as if it was not time-barred. It plainly states -- verbatim -- what the Seventh Circuit found to be glaringly, and intentionally, omitted: "The law limits how long you can be sued on a debt." The Seventh Circuit was concerned the consumer would risk the loss of the protection of the statute of limitations or would face a potential lawsuit if the consumer made or promised to make a partial payment but such concern appears premised on the proposition the debt collector would sue when it affirmatively represented it would not do so. Thus, the debt collector's representation that it "will not" sue would, in fact, be false. The Letter, however, plainly says the Defendants "will not" sue and disclosed why it would not do so: the debt was time-barred. And, further, the Defendants did not sue. Thus, the allegations and facts are distinguishable. And, Pantoja's premise unsupportable. In summary, Judge Moore finds the Letter is not only technically accurate but also not deceptive or misleading. The Plaintiff claims the Letter misleads an unsophisticated consumer in violation of the FDCPA; Judge Moore finds otherwise. Therefore, Judge Moore granted the Defendants' Motion for Summary Judgment. The Clerk will enter final judgment in favor of the Defendants and against the Plaintiff. The Defendants are awarded costs and shall, within 14 days of the date of the Order, file a bill of costs, in accordance with the procedures under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1, which will be taxed by the Clerk. The Clerk will close the case. A full-text copy of the District Court's Dec. 20, 2019 Order is available at https://is.gd/vRVSUW from Leagle.com. Aaron Goodman, Plaintiff, represented by James Constantine Vlahakis , Sulaiman Law Group, Ltd., Mohammed Omar Badwan, Sulaiman Law Group, Ltd. & Omar Tayseer Sulaiman, Sulaiman Law Group, Ltd. Asset Acceptance, LLC & Encore Capital Group, Inc., Defendants, represented by Jamie N. Cotter -- cotter@spencerfane.com -- Spencer Fane LLP & Joshua Caine Dickinson -- jdickinson@spencerfane.com -- Spencer Fane LLP. ASSOCIATED STAFFING: Tonel Labor Suit Seeks Unpaid Overtime Wages ----------------------------------------------------------------- Edgar Tonel, individually and on behalf of all others similarly situated, Plaintiff, v. Associated Staffing, Inc., Defendant, Case No. 20-cv-00283 (S.D. Tex., January 24, 2020), seeks to recover unpaid overtime and other damages for violation of the Fair Labor Standards Act. Associated Staffing is a specialized engineering technical services organization with offices located in Houston where Tonel worked as a structural engineer. Tonel claims to be paid a flat amount for each day worked and denied overtime for hours worked in excess of 40 hours in a workweek. [BN] Plaintiff is represented by: Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 Email: adunlap@mybackwages.com - and - Richard J. Burch, Esq. James A. Jones, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com jjones@brucknerburch.com BARNSTABLE COUNTY, MA: Smith Suit Dismissed Without Prejudice ------------------------------------------------------------- In the case, STEVEN SMITH, Plaintiff, v. SHERIFF BARNSTABLE JAIL, Defendant, Civil Action No. 20-10128-WGY (D. Mass.), Judge William G. Young of the U.S. District Court for the District of Massachusetts (i) denied without prejudice the Plaintiff's motion for leave to proceed in forma pauperis, (ii) denied without prejudice his motion for temporary restraining order, and (iii) dismisses the action without prejudice. On Jan. 21, 2020, Smith, a pretrial detainee in custody at the Barnstable County Correctional Facility, filed a pro se complaint accompanied by motions for a temporary restraining order and for leave to proceed in forma pauperis. The Plaintiff's two-page, handwritten complaint is brought pursuant to 42 U.S.C. Section 1983 and names as sole Defendant the Barnstable County Sheriff, in his official capacity. According to the complaint, upon arrival as a new inmate at the jail,the Plaintiff was tagged -- like a bird -- with an ID Bracelet made of plastic and fastened together by a metal button-lock type of clasp. The Plaintiff states that he fiercely objects to this invasion of his body, not only is it annoying and degrading, but it is an incubator of germs." He states that "tagging" is akin to owning the Plaintiff as property and suggests that ID cards are the norm. The Plaintiff seeks to have the Court orders the Barnstable Sheriff to immediately stop said practice. He does not seek monetary damages. The Plaintiff's one-page motion for temporary restraining order seeks an order to enjoin the practice of tagging pre-trial detainees with unmoveable (ID wristbands immediately. The motion seeks to proceed as a class action. Based on the information contained in the prison account statement, Judge Young directs the appropriate prison official to withdraw an initial partial payment from the Plaintiff's account, followed by payments on a monthly basis until the entire $350 filing fee is paid in full. Even if the action is dismissed upon a preliminary screening, the Plaintiff remains obligated to pay the filing fee. The Judge finds that the Plaintiff drafted his own handwritten motion. The Plaintiff failed to submit an affidavit and his motion is not a suitable substitute because it is not signed under the penalties of perjury and does not meet the statutory requirement. Because the complaint is subject to summary dismissal, the Plaintiff will not be granted additional time to file a renewed motion for leave to proceed in forma pauperis and affidavit. Next, the Judge finds that there is no certification in writing of any effort the Plaintiff has made to provide at least informal notice to the Defendant and no details as to the reasons why such notice should not be required in view of an immediate and irreparable need for injunctive relief. Because he finds that Plaintiff has not shown a reasonable likelihood of success on the merits, the Judge does not need to reach the other factors in determining whether to issue a temporary restraining order. The Judge holds that the Plaintiff's complaint fails to state a plausible claim for a violation of his constitutional rights. The Plaintiff complains of the alleged indignity of having to wear an identification bracelet, however, the complaint cites no case law, and the Judge has found none, which would indicate that the Plaintiff has a constitutional right to choose the form of identification badge issued by the penal institution. The assertions set forth in the Plaintiff's complaint are insufficient to support a claim for a constitutional violation under either the Eighth or Fourteenth Amendments concerning the conditions of his confinement. The complaint does not allege any specific threat to his personal safety and the Judge cannot find that the prison's use of identification bracelets violates federal law. Moreover, to the extent the Plaintiff seeks to represent a class, there is no basis to certify a class under Rule 23 of the Federal Rules of Civil Procedure, and the absence of the counsel prevents the Court from certifying a class. Although the Court often affords pro se Plaintiffs an opportunity to amend a complaint in recognition that basic fairness, as well as sound prudential reasons, the counsel against most uses of the power to dismiss cases sua sponte, the case is one of those cases in which it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile. Accordingly, Judge Young denied without prejudice (i) the Plaintiff's motion for leave to proceed in forma pauperis, and (ii) the dePlaintiff's motion for temporary restraining order. The Judge dismissed without prejudice the Plaintiff's complaint pursuant to 28 U.S.C. Section 1915A. A full-text copy of the Court's Jan. 29, 2020 Memorandum & Order is available athttps://is.gd/N3o5FW from Leagle.com. Steven Smith, Plaintiff, pro se. BEACH HOUSE: Faces Nygaard FLSA Suit Over Mandatory Tip Pool ------------------------------------------------------------ HOLLY NYGAARD and QUANELL GEE, on behalf of themselves and all others similarly situated v. BEACH HOUSE HOSPITALITY GROUP, LLC d/b/a BEACH HOUSE BAR & GRILL; and EREZ SUKARCHI, individually, Case No. 4:20-cv-00233-SAL (D.S.C., Jan. 23, 2020), seeks actual damages, liquidated damages, attorneys' fees and costs, and other relief under the Fair Labor Standards Act of 1938 and the South Carolina Payment of Wages Act over mandatory tip pool. The Defendants paid Nygaard, Gee, and all Plaintiffs, a direct, or hourly, wage less than the statutory minimum wage by taking the "Tip Credit" under the FLSA, the Plaintiffs allege. Beach House had a policy that required Plaintiffs Nygaard and Gee and others to remit from the tips they received--a portion of their tips at the end of each shift into the mandatory Tip Pool. From the Tip Pool, the Defendants redistributed a portion of the Plaintiffs' tips to other employees, who were not employees who "customarily and regularly" received tips, says the complaint. Plaintiff Nygaard was employed by Beach House from Feb. 2015 through July 2019 as a bartender. Plaintiff Gee was employed by Beach House from May 2017 August 2019 as a server. The Defendants own and/or operate Beach House.[BN] The Plaintiffs are represented by: Bruce E. Miller, Esq. BRUCE E. MILLER, P.A. 147 Wappoo Creek Drive, Suite 603 Charleston, SC 29412 Telephone: 843.579.7373 Facsimile: 843.614.6417 E-mail: bmiller@brucemillerlaw.com BLACKROCK MORTGAGE: Court Denies Bid to Dismiss Garfield Suit ------------------------------------------------------------- Judge Kathaleen McCormick of the Court of Chancery of Delaware denied the Defendants' motions to dismiss the case, ROBERT GARFIELD, Plaintiff, v. BLACKROCK MORTGAGE VENTURES, LLC, BLACKROCK, INC., HC PARTNERS, LLC, STANFORD L. KURLAND, DAVID A. SPECTOR, ANNE D. MCCALLION, MATTHEW BOTEIN, FARHAD NANJI, MARK WIEDMAN, JOSEPH MAZELLA, and ANDREW S. CHANG, Defendants, and PENNYMAC FINANCIAL SERVICES, INC., Nominal Defendant, C.A. No. 2018-0917-KSJM (Del. Ch.). Garfield claims to have been a beneficial owner of PennyMac, Inc. Class A common stock since Dec. 10, 2015. The Plaintiff filed the Verified Class Action and Derivative Complaint on Dec. 20, 2018. He brings two causes of action: a direct claim for breach of fiduciary duty against the Defendants, and, in the alternative, a derivative claim for the same breaches of fiduciary duty In response to the Defendants' initial motion to dismiss, the Plaintiff filed the Amended Complaint on March 11, 2019. The Defendants renewed their motion to dismiss on March 25, 2019. The action challenges the fairness of a reorganization that transformed PennyMac from an "Up-C" structure to a simple corporate form. The reorganization created benefits for the Defendants who held units in the company's operating subsidiary, but not for the stockholders who held Class A common stock in the parent corporation. The Plaintiff holds Class A common stock and argues that the reorganization should be subject to the entire fairness standard of review. The Defendants moved to dismiss pursuant to Court of Chancery Rule 12(b)(6), arguing they should obtain the benefit of the business judgment rule under Corwin because a majority of disinterested stockholders approved the transaction. The Plaintiff responds that Corwin is inapplicable because the Amended Complaint adequately pleads the existence of a controlling stockholder group whose self-interest diverged from that of other stockholders. He further responds that the Amended Complaint adequately states a claim under the entire fairness standard. Under Delaware law, a stockholder vote cannot restore the business judgment rule under Corwin when there is a controller that benefits personally from the transaction. Following this logic, Judge McCormick finds Corwin is inapplicable because the complaint supports a reasonably conceivable inference that two large PennyMac stockholders constituted a control group that stood to benefit from the reorganization. She further finds that the complaint states a claim when evaluated under the entire fairness standard. The Defendants' motions to dismiss are denied on the grounds that the Plaintiff has alleged sufficient facts from which the Court can infer that BlackRock and HC Partners constituted a control group, rendering entire fairness the proper standard of review. The Plaintiff has also pled sufficient facts to call into question the entire fairness of the Reorganization. A full-text copy of the District Court's Dec. 20, 2019 Memorandum Opinion is available at https://is.gd/5ntOVw from Leagle.com. Kurt M. Heyman -- kheyman@hegh.law -- Aaron M. Nelson -- anelson@hegh.law -- HEYMAN ENERIO GATTUSO & HIRZEL LLP, Wilmington, Delaware; Jason M. Leviton, Joel A. Fleming, Amanda R. Crawford, BLOCK & LEVITON LLP, Boston, Massachusetts; Counsel for Plaintiff Robert Garfield. Kenneth J. Nachbar -- knachbar@mnat.com -- MORRIS NICHOLS ARSHT & TUNNELL, Wilmington, Delaware; Deborah S. Birnbach, Jennifer B. Luz, Katherine B. Dacey, GOODWIN PROCTER LLP, Boston, Massachusetts; Counsel for Defendants Stanford L. Kurland, David A. Spector, Anne D. McCallion, Matthew Botein, Farhad Nanji, Mark Wiedman, Joseph Mazzella, Andrew S. Chang, and Nominal Defendant PennyMac Financial Services, Inc. Kevin R. Shannon -- kshannon@potteranderson.com -- Berton W. Ashman, Jr. -- bashman@potteranderson.com -- Callan R. Jackson -- cjackson@potteranderson.com -- POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; John P. Coffey, Adina C. Levine, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York; Counsel for Defendants BlackRock Mortgage Ventures, LLC and BlackRock, Inc. David E. Ross -- dross@ramllp.com -- S. Michael Sirkin -- msirkin@ramllp.com -- ROSS ARONSTAM & MORITZ LLP, Wilmington, Delaware; Counsel for Defendant HC Partners, LLC. BRENT DENNY: Dismissal of Kihn Complaint Sought ----------------------------------------------- In the class action lawsuit styled as BRADLEY EDWARD KIHN v. BRENT DENNY, PHILLIP HESCHE, SONYA KIHN, LINDA KIMMEL, STAR THOMAS, SUSAN WARD, Case No. 1:19-cv-00979-RJJ-RSK (W.D. Mich.), the Defendants ask the Court for an order dismissing the Plaintiff's claims against them under Fed. R. Civ. P. 12(b)(6).[CC] Attorneys for the Plaintiff are: Patrick William O Keefe, Esq. O KEEFE LAW, PLLC 3893 Okemos Rd., Suite B1 Okemos MI 48864 Telephone: 517-253-0114 E-mail: patrick@okeefelaw.net Attorneys for the Defendants are: Allan C. Vander Laan, Esq. Bradley C. Yanalunas, Esq. CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C. 2851 Charlevoix Drive, SE, Ste. 327 Grand Rapids, MI 49546 Telephone: 616 975-7470 E-mail: avanderlaan@cmda-law.com byanalunas@cmda-law.com BUSINESS FUNDING: Fabricant Hits Illegal Telemarketing Calls ------------------------------------------------------------ Terry Fabricant, individually and on behalf of all others similarly situated, Plaintiffs, v. Business Funding Pro, Inc. and Does 1 through 10, Defendant, Case No. 20-cv-00660 (C.D. Cal., January 22, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Business Funding Pro is a loan providing company. Fabricant claims to have received auto-dialed telemarketing calls from Business Funding Pro on his phone despite being registered in the National Do-Not-Call registry. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com BYNUM TRANSPORT: Fails to Pay Drivers Minimum Wage, McCann Says --------------------------------------------------------------- ROBERT MCCANN, on behalf of himself and on behalf of all others similarly situated v. BYNUM TRANSPORT, INC., Case No. 8:20-cv-00178 (M.D. Fla., Jan. 23, 2020), alleges that the Defendant failed to pay its drivers minimum wage under the Fair Labor Standards Act. The Plaintiff and the class are over-the-road truck drivers that transport the Defendant's customer's goods across the country resulting in days in which the Plaintiff and the class are on duty for a continuous period of 24 hours or more. While over-the-road transporting Defendant's customer's cargo, Plaintiff and the Class were responsible for their assigned trucks for more than 24 consecutive hours, says the complaint. Bynum Transport is a family-owned and operated liquid food-grade carrier headquartered in Auburndale, Florida, that operates throughout the United States.[BN] The Plaintiff is represented by: Brandon j. Hill, Esq. Luis A. Cabassa, Esq. WENZEL FENTON CABASSA , P.A. Telephone: 813 379-2565 1110 N. Florida Ave., Suite 300 Tampa, FL 33602 Telephone: 813 224-0431 Facsimile: 813 229-8712 E-mail: bhill@wfclaw.com lcabassa@wfclaw.com jcornell@wfclaw.com rcooke@wfclaw.com - and - Chad A. Justice, Esq. JUSTICE FOR JUSTICE LLC 1205 N Franklin Street, Suite 326 Tampa, FL 33602 Telephone: 813 566-0550 Facsimile: 813 566-0770 E-mail: chad@getjusticeforjustice.com C-CAT INC: Beeson Suit Seeks Unpaid Overtime Wages -------------------------------------------------- David Beeson, individually and on behalf of all others similarly situated, Plaintiff, v. C-Cat, Inc., Defendant, Case No. 20-cv-00252 (S.D. In., January 23, 2020), seeks to recover unpaid overtime and other damages under the Fair Labor Standards Act. C-Cat hired Beeson in May 2016 until October 2019 as a Service Technician, installing and maintaining cable and related equipment. Beeson claims that he was not compensated for all travel time to worksites, and regularly and routinely working more than 40 hours per week but did not receive overtime compensation for all hours worked beyond 40 hours per week. [BN] Plaintiff is represented by: John H. Haskin, Esq. JOHN H. HASKIN & ASSOCIATES 255 North Alabama Street, 2nd Floor Indianapolis, IN 46204 Telephone: (317) 955-9500 Facsimile: (317) 955-2570 Email: jhaskin@jhaskinlaw.com CANNTRUST HOLDINGS: Faces Shareholder Class Action in Ontario ------------------------------------------------------------- James West, writing for Midas Letter Live, reports that CannTrust Holdings Inc (NYSE:CTST) (TSX:TRST) (FRA:C9S) became the defendant in a class action lawsuit filed with the Ontario Court of Justice by a consortium of law firms on behalf of shareholders and investors who bought shares on the Toronto Stock Exchange from October 2018 to September 2019, or through the company's prospectus offering in May 2019. The suit is sweeping in scope as it includes the company's auditors, KPMG, as well as the investment banks who were instrumental in bringing investors into the company's prospectus offering. Those include Merrill Lynch, Citigroup Global Markets, Credit Suisse, RBC Dominion Securities, Jefferies LLC, and Canaccord Genuity among others. The class action lawsuit, now being conducted by law firms Henein Hutchison LLP, Kalloghlian Professional Corporation, A. Dimitri Lascaris Law Professional Corporation and Strosberg Sasso Sutts, LLP, is filed under Ontario Court of Justice File #CV-19-00629743-00CP. The statement of claim seeks as yet unspecified damages, but the prospectus offering alone raised $230 million. The full scope and scale of the subterfuge and illegal activity at CannTrust's operations dating from June 1st 2018 sound more akin to the operations of a black market grow-op, rather than a licensed producer. The company hid cannabis grown in unlicensed rooms behind false walls built for that purpose, and sourced cannabis seeds from the black market. The team overseeing the growth of plants from the black market seeds changed the tags on the plants to names of strains that the company did acquire through the legal system. According to the complaint, "Unbeknownst to investors, on or around June 1, 2018, CannTrust began storing cannabis in rooms in its Vaughan Facility without the required approval from Health Canada. Then, starting on or around October 1, 2018, CannTrust, with the knowledge and approval of executive management, began producing and selling cannabis made in rooms that did not have the required licenses. CannTrust employees intentionally deceived Health Canada inspectors, including by installing fake walls to hide the cannabis being grown in the unlicensed rooms." The claim further alleges that a designated team led by former VP of cultivation Brady Green were tasked with not just growing the plants from black market seeds to maturity, but with ensuring at every step of the way inspectors from Health Canada were prevented from finding out that the plants were from black market seeds. Most damningly, the suit quotes an article from Bloomberg that says, (quoting from minutes recorded at a meeting of the Board of Directors, that CEO Peter Aceto okayed the establishment of cultivation in the unlicensed rooms despite being fully aware that the rooms were not licensed. Between October 2018 and March 2019, CannTrust was growing and distributing cannabis that was grown in five rooms in the Niagara Facility that were not licensed and/or compliant with regulations. As far as what this means for the future of CannTrust's licensed facilities in Vaughn and Pelham, Ontario, it seems dubious that either of those facilities will be producing cannabis anytime soon. The long and arduous path of a class action lawsuit can take years, and non-operating agricultural assets depreciate significantly when not properly maintained. It is unlikely the sale of assets will yield even a fraction of damages sought if the plaintiffs are successful, and it is the directors, current and former, as well as the underwriters of the financing, who will be the likely targets of any collection efforts. Former CannTrust employee Nick Lalonde was the whistleblower who brought all of these allegations to light. [GN] CAPITAL COMEBACK: Fabricant Hits Illegal Telemarketing Calls ------------------------------------------------------------ Terry Fabricant, individually and on behalf of all others similarly situated, Plaintiffs, v. Capital Comeback, LLC and Does 1 through 10, Defendant, Case No. 20-cv-00652 (C.D. Cal., January 22, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Capital Comeback is a business financing company. Fabricant claims to have received auto-dialed telemarketing calls from Capital Comeback on his phone despite being registered in the National Do-Not-Call registry. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com CEMEX INC: Nowakowski Labor Suit Deal Gets Final Court Approval --------------------------------------------------------------- Judge Terry J. Hatter, Jr. of the U.S. District Court for the Central District of California, Western Division, has entered Judgment in the case, ERIC NOWAKOWSKI, as an individual and on behalf of all others similarly situated, Plaintiff, v. CEMEX, INC., a Louisiana corporation; CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC, a Delaware limited liability company; and DOES 1 through 50, inclusive, Defendants, Case No. CV-17-02475 TJH (SHKx) (C.D. Cal.). The following matters came regularly as scheduled for hearing on Dec. 16, 2019: (1) the Plaintiff's Motion for Final Approval of Class Action Settlement; and (2) the Plaintiff's Motion for Attorney's Fees and Costs. Both Motions were unopposed. Upon consideration of the Motions, the evidence filed in support thereof, the Court's entire file therein, and the arguments of the counsel at the hearing, the Court entered its Order granting both Motions on Jan. 8, 2019. Judge Hatter finds that the Settlement is fair, reasonable and adequate, and in the best interests of the Class, and granted final approval of the Settlement. The parties are ordered to carry out the Settlement as provided for in the Amended Joint Stipulation. In addition, the request for an enhancement payment of $5,000 to the Plaintiff and Class Representative Eric Nowakowski is granted. The Judge further approved payment of $4,500 to the Settlement Administrator, Simpluris, Inc., for services rendered and to be rendered in administering the Settlement. He further approved payment of $11,250 to the California Labor and Workforce Development Agency for its share of civil penalties under the Private Attorneys General Act, Cal. Labor Code sections 2698, et seq. Concurrently with the motion for final approval of the Settlement, the Plaintiff moved for attorney's fees equal to 25% of the total settlement fund, or $84,479.50, plus litigation costs in the amount of $15,000, which Motion the Judge granted. Two Class Members, Brandon R. Gilstrap and Thomas E. Schultz, timely and validly opted out of the Settlement. These two individuals therefore are excluded from the Class and are not bound by the Amended Joint Stipulation, the Final Order, or the Judgment. Judgment is entered as follows: Plaintiff Eric Nowakowski and the Settlement Class Members consisting of all current and former hourly, non-exempt employees employed by Defendant CEMEX Construction Materials Pacific, LLC at its non-unionized quarries in California during the time period from Nov. 9, 2013 through Aug. 22, 2019, who have not otherwise opted out, will take nothing from Defendants CEMEX, Inc. and CEMEX Construction Material Pacific, LLC except as set forth in Amended Joint Stipulation. The Court will retain jurisdiction over the parties to interpret, implement and enforce the Judgment. A full-text copy of the Court's Jan. 29, 2020 Judgment is available at https://is.gd/Ce9zjp from Leagle.com. Eric Nowakowski, as an individual and on behalf of all others similarly situated, Plaintiff, represented by Zachary Crosner -- zach@crosnerlegal.com -- Crosner Legal PC & Michael R. Crosner -- mike@crosnerlegal.com -- Crosner Legal PC. Cemex Inc, a Louisiana corporation & Cemex Construction Materials Pacific, LLC, a Delaware limited liability company, Defendants, represented by Dorothy Sheng-Ing Liu -- DLiu@HansonBridgett.com -- Hanson Bridgett LLP & Emily Jane Leahy -- eleahy@hansonbridgett.com -- Hanson Bridgett LLP. CENTRAL VALLEY: Brink Gets Court Nod to File 2nd Amended Complaint ------------------------------------------------------------------ In the case, CHRISTIAN BRINK and DAVID MAIER, on behalf of themselves, all others similarly situated, and on behalf of the general public, Plaintiff, v. CENTRAL VALLEY AUTO TRANSPORT; and DOES 1-100, Defendants, Case No. 1:19-cv-01213-AWI-SKO (E.D. Cal.), Magistrate Judge Sheila K. Oberto of the U.S. District Court for the Easterns District of California, Fresno Division, granted the Plaintiffs leave to file their Second Amended Complaint. On June 6, 2018, Plaintiff Brink filed a Class Action Complaint in the Superior Court of the State of California, County of Tulare. On Aug. 14, 2018, the Defendant filed an Answer to the Plaintiff's Class Action Complaint. On Dec. 13, 2018, Plaintiff Brink filed a First Amended Complaint, adding Plaintiff Maier and a cause of action for violations of the Private Attorneys General Act of 2004. While in the Superior Court of the State of California, County of Tulare the Parties met and conferred regarding a stipulation to file a Second Amended Complaint, which would add claims for reimbursements and misclassification, dismiss the claims for overtime and recovery periods, and add a class and subclasses consistent with the additional claims. The Parties filed a stipulation to file a Second Amended Complaint on Aug. 22, 2019. Based upon the proposed Second Amended Complaint attached to the stipulation, the Defendant removed the action to the Court, on Aug. 30, 2019, under the Class Action Fairness Act of 2005, alleging, among other things, that the majority of the newly alleged Misclassification Class are residents of states other than California. The Superior Court of the State of California, County of Tulare did not rule on the Parties' stipulation prior to the Defendant removing the case and, therefore, the Second Amended Complaint was never filed. The number of the putative Misclassification Class members who are residents of states other than California directly impacts the jurisdiction of the Court. The Plaintiffs believe obtaining the contact information for the putative Misclassification Class members will aid them in evaluating the Court's jurisdiction. The Defendant has agreed to provide the Plaintiffs with the contact information for the putative class members after engaging in a Belaire West notice process. The Belaire West notice will need to be sent to individuals who fall under the class definition in the Second Amended Complaint, as that class definition was used in the Defendant's notice of removal. The Parties believe that the Second Amended Complaint should be filed before the Belaire West notices are mailed. Through the stipulation and/or the filing of the Second Amended Complaint, the Plaintiffs do not concede the Court's jurisdiction and reserve their right to challenge jurisdiction. The Defendant's signing of the stipulation will not constitute an admission of any of the allegations set forth in the Second Amended Complaint. It reserves its right to raise any and all affirmative defenses (substantive or procedural) and the stipulation will not be deemed a waiver of any affirmative defenses or of any other legal or factual position in connection the alleged claims in the suit or in connection with the Plaintiff's filing of the Second Amended Complaint, including but not limited to the Defendant's right to challenge the Second Amended Complaint by filing a motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for summary judgment or adjudication. The Parties stipulate to and respectfully request that the Court grants the Plaintiffs leave to file their Second Amended Complaint. The Defendant will have 30 days following the filing and service of the Second Amended Complaint to file its responsive pleading. Based on the parties' above-stipulation, Magistrate Judge Oberto granted the Plaintiffs leave to file their Second Amended Complaint through ECF within 10 business days of the Order. Service on the Defendant of the Second Amended Complaint will be deemed effective when the Second Amended Complaint is filed and served through ECF. The Defendant will have 30 days following the filing and service of the Second Amended Complaint to file its responsive pleading. A full-text copy of the Court's Jan. 29, 2020 Order is available at https://is.gd/5C5OSz from Leagle.com. Christian Brink, on behalf of themselves, all others similarly situated, and on behalf of the general public & David Maier, on behalf of themselves, all others similarly situated, and on behalf of the general public, Plaintiffs, represented by David Thomas Mara -- dmara@maralawfirm.com -- Mara Law Firm PC, Jamie Kathryn Serb -- jserb@maralawfirm.com -- Mara Law Firm, PC & Jill Marie Vecchi -- jvecchi@maralawfirm.com -- Mara Law Firm. Central Valley Auto Transport, Inc., Defendant, represented by David J. Cooper -- dcooper@kleinlaw.com -- Klein, Denatale, Goldner, Cooper, Rosenlieb & Kimball, LLP, Mayra G. Estrada -- mestrada@kleinlaw.com -- Klein DeNatale Goldner & Olivia Vanessa Franco Chavez -- vchavez@kleinlaw.com -- Klein DeNatale Goldner. CERTIFIED FLOORING: FLSA Class Certified in Couch Suit ------------------------------------------------------ In the class action lawsuit styled as ANTHONY COUCH, et al., Plaintiffs, on their own behalf, and for all others similarly situated v. CERTIFIED FLOORING INSTALLATION, INC., Case No. 1:19-cv-00059-DRC (S.D. Ohio), the Hon. Judge Douglas R. Cole entered an order on Feb. 14, 2020: 1. denying CFI's motion to dismiss First Amended Complaint of Anthony Couch or, in the alternative, motion for Summary Judgment; 2. granting Plaintiff's motion for conditional class certification; 3. directing Plaintiffs to file a new Notice of Rights within seven days, in which Plaintiffs delete the class definition language in the second paragraph of that Notice and instead insert the following: "This notice applies to all current and former Carpet Installers employed by Certified Flooring Installation, Inc., who worked over forty hours in any workweek beginning January 24, 2016 through the present and were not paid time and a half for the hours worked over forty."; 4. conditionally certifying the Fair Labor Standards Act class; 5. conditionally approving Couch's proposed opt-in Notice as amended to include the language set forth above, for distribution to the putative class members. The Court said, "Within 14 days of the Plaintiffs filing their amended Notice of Rights with the Court, the Defendants shall identify all putative class members by providing a list in electronic and importable format of the names, addresses, and (if known) email addresses of all current and former employees fitting the class description above. Within 14 days of receiving the putative class members' contact information from Defendants, Couch shall send the Notices, as amended, via U.S. mail and (if possible) email. The putative class members shall then have 60 days from the date that Couch sends the Notices to join this litigation." CFI offers contracting services. The company provides installation of carpets, hardwood, vinyl, laminate, and ceramic floors, as well as window treatments.[CC] CHAMPION PETFOODS: Court Narrows Claims in Cesare Suit ------------------------------------------------------ In the case, ANTHONY CESARE, et al., Plaintiffs, v. CHAMPION PETFOODS USA INC., etal., Defendants, Civil Action No. 18-744 (W.D. Pa.), Judge Cathy Bissoon of the U.S. District Court for the Western District of Pennsylvania granted in part and denied in part the Defendants' Motion to Dismiss Plaintiffs' Class Action Complaint. On June 5, 2018, Cesare, Elizabeth Donatucci and Taylor Kennedy filed a Class Action Complaint on behalf of a putative class of Pennsylvania purchasers of dog food from Defendants Champion Petfoods USA Inc. and Champion Petfoods LP. On Feb. 26, 2019, the Plaintiffs filed a Motion for Leave to File an Amended Complaint, which was granted on the same day. The First Amended Complaint (FAC) alleges that the Defendants, nationwide sellers of premium-priced dry dog foods under the Orijen and Acana brand names have misrepresented the Products to sell them at higher prices -- that is, more than four times the prices of their competitors. Contrary to the Defendants' representations, the Plaintiffs claim that the Products do not mirror what a dog would eat in the wild because they contain virtually no animal muscle meat and instead consist largely of animal waste and byproducts; the Products are not made from ingredients that are fresh and regionally sourced and, instead, contain ingredients sourced from foreign suppliers and shipped through middle men throughout the continent; and the Products are also not made from ingredients of a quality fit for human consumption, as evidenced by the fact that the Products contain levels of heavy metals exponentially higher than those found in foods consumed by humans. The Plaintiffs state that Champion touts its products as "The World's Best Petfood," and that the Products' packaging materials contain various misrepresentations regarding their quality and ingredients. These allegations give rise to six Counts against Defendants, all under Pennsylvania law: (I) violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"); (II) breach of express warranty; (III) breach of implied warranty; (IV) fraudulent omission; (V) unjust enrichment; and (VI) negligent misrepresentation. The Defendants' Motion to Dismiss rests on seven arguments: (1) All claims in the First Amended Complaint ("FAC") fail to state a claim for relief; (2) The economic loss doctrine bars the UTPCPL, fraudulent omission and negligent misrepresentation claims; (3) Plaintiffs fail to plead the UTPCPL, fraudulent omission and negligent misrepresentation claims with sufficient particularity to satisfy Federal Rule of Civil Procedure 9(b); (4) The Plaintiffs' fraudulent omission claim fails because they do not allege that Defendants had a duty to disclose; (5) The Plaintiffs' breach of express warranty claim fails because they have not pleaded the existence of a warranty or facts suggesting that any of the Defendants' statements are untrue; (6) The Plaintiffs' breach of implied warranty claim fails because they do not allege that the dog food was unmerchantable or unfit for its ordinary use; and (7) The Plaintiffs' unjust enrichment claim fails because they have not pleaded facts establishing that it would be inequitable for the Defendants to retain any benefits conferred. Judge Bissoon granted in part and denied in part the Defendants' Motion to Dismiss. The Judge dismissed with prejudice the Plaintiffs' (i) claim that the Defendants violated the UTPCPL (Count I); (ii) fraudulent omission claim (Count IV); and (iii) negligent misrepresentation claim (Count VI). The Judge denied the Defendants' Motion to Dismiss Counts II, III, and V. Among other things, Judge Bissoon finds that the Plaintiffs have alleged sufficient facts with respect to their claims that the Defendants' marketing of the ingredients in their Products is false and misleading. They have alleged that contrary to the Defendants' claims, ingredients are not "fresh" but are "expired"; rather than being "regional," ingredients are mostly "imported from outside the Commonwealth of Kentucky" with "a substantial portion [being] imported from outside the United States"; instead of being supplied by "PEOPLE WE TRUST," ingredients are acquired through a "complex, convoluted supply chain" with multiple processors that Defendants may be unaware of; and that ingredients are "clearly [designated by bills of lading] to be inedible and unfit for human consumption" before inclusion in the Products. These facts, if true, are sufficient under Fed. R. Civ. P. 12(b)(6). The District Court has held that, until the Court of Appeals for the Third Circuit or the Pennsylvania Supreme Court rules otherwise, it will apply the economic loss doctrine to UTPCPL claims, particularly where the claims are plain and obvious restatements of contract-theories. As the UTPCPL claim is barred by the economic loss doctrine, the Judge will not address the issues of particularity or justifiable reliance by the parties. All the allegations cited in the FAC relate to the quality or characteristics of the goods sold, such as representations that the Products contained the fullest expression of biologically appropriate and fresh regional ingredients, unmatched inclusions of free-run poultry, wild-caught fish and whole nest-laid eggs and featured fresh, raw or dehydrated ingredients from minimally processed poultry, fish and eggs that are deemed fit for human consumption prior to inclusion in our foods. The Judge finds that the fraudulent omission claim is barred by the economic loss doctrine, and she will not address the issues of particularity or justifiable reliance by the parties. Finally, the Plaintiffs have alleged no facts or law to suggest that the Defendants had an independent duty and not, instead, one related to their warranty claims about the quality and characteristics of the Products. As no independent duty exists, the Judge finds that the negligent misrepresentation claim is barred by the economic loss doctrine, and will not address the issues of particularity or justifiable reliance by the parties. A full-text copy of the District Court's Dec. 20, 2019 Memorandum & Order is available at https://is.gd/SBR0qB from Leagle.com. ANTHONY CESARE, ELIZABETH DONATUCCI & TAYLOR KENNEDY, individually and on behalf of themselves and all others similarly situated, Plaintiffs, represented by Charles E. Schaffer -- CSchaffer@lfsblaw.com -- Levin Sedran & Berman, David C. Magagna, Jr., Levin Sedran & Berman, LLP, pro hac vice & D. Aaron Rihn, Robert Peirce & Associates, P.C. CHAMPION PETFOODS USA INC. & CHAMPION PETFOODS LP, Defendants, represented by Cathy R. Gordon -- GordonC@LitchfieldCavo.com -- Litchfield Cavo LLP, David A. Coulson, Greenberg Traurig, P.A., pro hac vice, Elisa M. Hevia, Greenberg Traurig, P.A., pro hac vice & Vincent P. Lamperski -- Lamperski@LitchfieldCavo.com -- Litchfield Cavo LLP. CHARTER COMMUNICATIONS: Faces Class Action Over Unsolicited Texts ----------------------------------------------------------------- Law360 reports that Charter Communications Inc. has been targeted by a new proposed class action claiming the telecom company sent unsolicited text messages to consumers in violation of the Telephone Consumer Protection Act. Daniel Rease is looking to represent a class of consumers who in the last four years received more than one text from, or on behalf of, the Connecticut-based company through automated dialing technology with their prior express consent, according to the complaint filed on Feb. 3 in Connecticut federal court. [GN] CHARTER COMMUNICATIONS: Rahmatullah Suit Moved to C.D. California ----------------------------------------------------------------- The case captioned Shahid Rahmatullah, Individually and on behalf of all others similarly situated v. CHARTER COMMUNICATIONS, LLC, a Delaware limited liability company; and, DOES 1through 25, Case No. CIV DS 1938121, was removed from the Superior Court of the State of California, County of San Bernardino, to the U.S. District Court for the Central District of California on Feb. 19, 2020. The District Court Clerk assigned Case No. 8:20-cv-00336 to the proceeding. In the Complaint, the Plaintiffs seek recovery for the following: (1) alleged violations of the California Labor Code and (2) alleged violations of the California Business and Professions Code.[BN] The Defendants are represented by: Joseph W. Ozmer, II, Esq. J. Scott Carr, Esq. Abigail S. Romero, Esq. KABAT CHAPMAN & OZMER LLP 333 S. Grand Avenue, Suite 2225 Los Angeles, CA 90071 Phone: (213) 493-3980 Facsimile: (404) 400-7333 Email: jozmer@kcozlaw.com scarr@kcozlaw.com aromero@kcozlaw.com CHURCHILL CREDIT: Faces Naiman Suit Over Unwanted Phone Calls ------------------------------------------------------------- SIDNEY NAIMAN, individually and on behalf of all others similarly situated v. CHURCHILL CREDIT SOLUTIONS, and DOES 1 through 10, inclusive, and each of them, Case No. 3:20-cv-00539 (N.D. Cal., Jan. 23, 2020), alleges that the Defendants promotes and markets their merchandise, in part, by placing unsolicited telephone calls to wireless phone users, in violation of the Telephone Consumer Protection Act. The Plaintiff seeks damages and any other available legal or equitable remedies resulting from the illegal actions of the Defendants, in negligently, knowingly, and/or willfully contacting the Plaintiff's cellular telephone in violation of the TCPA and related regulations, specifically the National Do-Not-Call provisions, thereby invading the Plaintiff's privacy. In July 2019, Churchill contacted the Plaintiff's cellular telephone number ending in -6535, in an attempt to solicit the Plaintiff to purchase Churchill's services. Churchill did not possess the Plaintiff's "prior express consent" to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on his cellular telephone, says the complaint. Churchill Credit is a debt consolidation business.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: 323-306-4234 Facsimile: 866-633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com COCA-COLA CO: Batchelor Sues Over Misleading Drink Label -------------------------------------------------------- William Batchelor, individually and on behalf of all others similarly situated, Plaintiff v. The Coca-Cola Company, Defendant, Case No. 20-cv-00594 (S.D. N.Y., January 23, 2020), seeks to recover actual damages, statutory damages, attorney fees and costs for breaches of express warranty, implied warranty of merchantability and for violation of the Magnuson Moss Warranty Act. The Coca-Cola Company manufactures, distributes, markets, labels and sells iced tea beverages purporting to be low in sugar under their "Honest" brand. Its label contains the statement "JUST A TAD SWEET," that implies the said products is "low sugar" despite containing substantial sugar on its "Nutrition Facts" label, asserts the complaint. [BN] Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Blvd., Ste. 311 Great Neck NY 11021-5101 Tel: (516) 303-0552 Facsimile: (516) 234-7800 Email: spencer@spencersheehan.com CREDIT CORP: Fote Suit Seeks to Certify Class --------------------------------------------- In the class action lawsuit styled as JOSEPH FOTE, Individually and on Behalf of All Others Similarly Situated v. CREDIT CORP. SOLUTIONS INC. d/b/a TASMAN CREDIT CORP., Case No. 2:19-cv-00513-PP (E.D. Wisc.), the Plaintiff asks the Court to enter an order pursuant to the Fair Debt Collection Practices Act and Wisconsin Consumer Act: 1. certifying a class of: "(a) all natural persons in the State of Wisconsin (b) who were sent a collection letter by Tasman, (c) seeking to collect a debt for personal, family, or household purposes, (d) that stated: "This collection agency is licensed by the Division of Banking in the Wisconsin Department of Financial Institutions, www.wdfi.org.", (e) where the letter was mailed between April 9, 2018 and July 4, 2018, inclusive, (f) and was not returned by the postal service."; 2. appointing himself as class representative; and 3. appointing Ademi & O'Reilly, LLP as its counsel. The case concerns the legality of standard form collection letters used by Tasman to collect consumer debts. Credit Corp is a debt collection agency.[CC] The Plaintiff is represented by: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. Ademi & O'Reilly, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CREDIT ONE BANK: Thompson Sues Over Auto-dialed Collection Calls ---------------------------------------------------------------- Rita Ann Thompson, individually and on behalf of all others similarly situated, Plaintiff, v. Credit One Bank, N.A., Defendant, Case No. 20-cv-00173 (D. Nev., January 24, 2020), seeks injunctive relief, statutory damages and any other available legal or equitable remedies resulting from violations of the Telephone Consumer Protection Act. Credit One is a debt collector that targets low-income borrowers. Thompson claims that she never owed Credit One nor done business with them yet she still received collection calls from them. [BN] Thompson is represented by: Gustavo Ponce, Esq. KAZEROUNI LAW GROUP, APC 6069 South Fort Apache Rd., Ste. 100 Las Vegas, Nevada 89148 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Email: gustavo @kazlg.com DIPLOMAT PHARMACY: Morabito Challenges Sale to UnitedHealth ----------------------------------------------------------- FRANK MORABITO, individually and on behalf of all others similarly situated v. DIPLOMAT PHARMACY, INC. BRIAN GRIFFIN, PHILLIP R. HAGERMAN, BENJAMIN WOLIN, REGINA BENJAMIN, DAVID C. DREYER, KENNETH KLEPPER and SHAWN C. TOMASELLO, Case No. 2:20-cv-10181-MFL-EAS (E.D. Mich., Jan. 23, 2020), is a stockholder class action against Diplomat and the Company's Board of Directors for breaches of fiduciary duty as a result of the Defendants' efforts to sell the Company to UnitedHealth Group Incorporated, as a result of an unfair process for an unfair price. The Plaintiff also seeks to enjoin the expiration of a Tender Offer on a proposed all-cash transaction, whereby Diplomat stockholders would receive only $4.00 a share for each share of Diplomat they own. The terms of the Proposed Transaction were memorialized in a Dec. 9, 2019 filing with the Securities and Exchange Commission on Form 8-K attaching the definitive Agreement and Plan of Merger. The Plaintiff alleges that Defendants breached their fiduciary duties to the Company's shareholders by agreeing to the Proposed Transaction, which undervalues Diplomat and is the result of a flawed sales process. The Plaintiff adds that post-closure, Diplomat shareholders will be frozen out of seeing the return on their investment of any and all of the Company's future profitability. According to the complaint, the Defendants caused to be filed the materially deficient 14D-9 on Jan. 8, 2020, with the SEC in an effort to solicit stockholders to tender their Diplomat shares in favor of the Proposed Transaction. The Plaintiff contends that the 14D-9 is materially deficient and deprives Diplomat stockholders of the information they need to make an intelligent, informed and rational decision of whether to tender their shares in favor of the Proposed Transaction. The Plaintiff is a stockholder of the Company. Diplomat operates as an independent specialty pharmacy in the United States.[BN] The Plaintiff is represented by: Anthony L. DeLuca, Esq. ANTHONY L. DELUCA, PLC 14950 East Jefferson Avenue, Suite 170 15 Grosse Pointe Park, MI 48230 Telephone: (313) 821-5905 Facsimile: (313) 821-5906 E-mail: aldplc@gmail.com - and - Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Ryan P. Cardona Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Telephone: (610) 667-6200 Facsimile: (610) 667-9029 E-mail: mackerman@brodskysmith.com rcardona@brodskysmith.com DIRECTV: Customers Make Another TCPA Class Certification Bid ------------------------------------------------------------ Law360 reports that a proposed group of DirecTV customers made another attempt on Jan. 31 to gain recognition as a class as they sue to hold the satellite provider accountable for violating the Telephone Consumer Protection Act by allegedly contacting them without consent. The renewed class certification motion urged a Georgia federal court to find that it can easily distinguish a group of people who all received calls from DirecTV despite not wanting to be contacted, thereby allowing the lawsuit to move forward. [GN] DOUBLE DOWN: 9th Cir. Affirms Arbitration Bid Denial in Benson Suit ------------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order denying the Defendants-Appellants' motion to compel arbitration in the case, ADRIENNE BENSON; MARY SIMONSON, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. DOUBLE DOWN INTERACTIVE, LLC, a Washington limited liability company; INTERNATIONAL GAME TECHNOLOGY, a Nevada corporation, Defendants-Appellants, Case No. 18-36015 (9th Cir.). The Ninth Circuit finds that Double Down failed to carry its burden to prove, under Washington law, that either Plaintiff assented to the arbitration clause in its terms of use. In the absence of actual notice, a browsewrap agreement like the Terms of Use at issue, is enforceable only if a reasonably prudent user would have constructive notice of those terms. Constructive notice, in turn, depends on "the conspicuousness and placement of the terms and conditions, as well as the content and overall design" of the website or mobile application. Simonson never received constructive notice of the Terms of Use. Benson also never received constructive notice of Double Down's Terms of Use. The "Terms of Use" hyperlink and accompanying notification that are accessible during gameplay on the Facebook platform do not cure the notice problem. Significantly, the hyperlink and notification become visible only after a user scrolls to the bottom of the platform. Moreover, like the settings menu on the mobile platform, the hyperlink and notification are obscured amongst the brightly colored icons on the Facebook platform, id., and they are set out in typeface that is substantially smaller than all other text on the screen. Moreover, Double Down's remaining arguments are not persuasive, says the Ninth Circuit. Repeated use of a website or mobile application does not contribute to constructive notice because users are no more likely to stumble upon inconspicuous hyperlinks on their hundredth or thousandth visit than they are on their first. Nor do the terms and conditions that govern all transactions on the Apple App Store place a reasonably prudent user of the mobile platform on constructive notice of Double Down's Terms of Use. In light of the foregoing, the Ninth Circuit Court affirmed. A full-text copy of the Court's Jan. 29, 2020 Memorandum is available at https://is.gd/OeqrXA from Leagle.com. EDWARDS BUILDERS: Dernay Hits Illegal Telemarketing Calls --------------------------------------------------------- Michele Dernay and Sid Naiman, individually and on behalf of all others similarly situated, Plaintiffs, v. Edwards Builders & Developers, Inc. and Does 1 through 10, Defendant, Case No. 20-cv-00163 (C.D. Cal., January 22, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Edwards Builders & Developers is a construction company. Dernay and Naiman claim to have received auto-dialed telemarketing calls from Edwards on their phones despite being registered in the National Do-Not-Call registry. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com EQUIFAX: Gibbs Law Wins $1.5-Bil. Data Breach Settlement -------------------------------------------------------- Law360 reports that Gibbs Law Group LLP won a $1.5 billion settlement against Equifax for a massive data security breach and reached deals against Hyundai over shattering sunroofs and a television manufacturer over improperly collected consumer data, earning it a spot among Law360's 2019 Class Action Groups of the Year. [GN] EUPHORIUM LIFE: Faces Megay TCPA Suit Over Telemarketing Texts -------------------------------------------------------------- Keith Megay, individually and on behalf of all others similarly situated v. Euphorium Life, LLC, a Washington Limited Liability Company, Case No. 2:20-cv-00114 (W.D. Wash.), alleges that the Defendant promotes and markets its merchandise, in part, by sending unsolicited text messages to wireless phone users, in violation of the Telephone Consumer Protection Act. On Dec. 21, 2019, the Defendant sent telemarketing text messages to the Plaintiff's cellular telephone number ending in 4340. The Defendant's text messages constitute telemarketing because they encouraged the future purchase or investment in property, goods, or services, i.e., selling the Plaintiff marijuana-related products. At no point in time did the Plaintiff provide the Defendant with his express written consent to be contacted using an automatic telephone dialing system, says the complaint. 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 Defendant is a recreational marijuana store. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process.[BN] The Plaintiff is represented by: Ryan L. McBride, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Ave., Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ryan@kazlg.com EXPRESSIVE LIGHTING: Simmons Seeks Overtime Wages Under FLSA ------------------------------------------------------------ Crystal Simmons v. Expressive Lighting Inc., Case No. 1:20-cv-00367 (E.D.N.Y., Jan. 23, 2020), alleges that the Defendant failed to pay the Plaintiff and all those similarly similarly-situated overtime wages for working more than 40 hours in a week, as required by the Fair Labor Standards Act, the New York Labor Law and the New York Minimum Wage Act. The Plaintiff also alleges she was terminated in discrimination and retaliation because she complained about underpayment/reduction of wages. The Plaintiff was employed by the Defendant as a manual worker performing variety of tasks, including data entry, from March 2013 to Jan. 6, 2020. The Defendant was engaged in the business of selling lighting fixtures and related items to a wide variety of businesses and individuals across the United States and overseas.[BN] The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: 718-740-1000 Facsimile: 718-355-9668 E-mail: abdul@abdulhassan.com FLOYD MAYWEATHER JR: 9th Circuit Upholds Boxing Suit Dismissal -------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit issued an Opinion affirming a district court judgment granting Defendants' Motion to Dismiss in IN RE PACQUIAO-MAYWEATHER BOXING MATCH PAY-PER-VIEW LITIGATION. The case is captioned IN RE PACQUIAO-MAYWEATHER BOXING MATCH PAY-PER-VIEW LITIGATION. GERALD F. ALESSI; VICTOR BOBADILLA; ENRIQUE BARRIOS; DAVID BRADLEY; BILL BRADY; CHAMAR BYNUM; VICTOR CAPO; SEAN MICHAEL CRABTREE; DEVARIOUS CRAIG; KRISTINA DARDEN; JOHN DAY; PAUL DEHART; BRIAN DENIS FLYNN; DAVID GALANDAK; RAY HEREDIA; GREG HOEVENER; JAMMERS, INC.; SETH J. LAMB; JOSEPH LAKE; PAUL MAHONEY; ROBERT MARTINEZ; HEATHER McDONALD; SUSAN MEDINA; HOWARD MILLER; LISETTE NAZARIO; FELIX NATAL; EVANS NYCOLE; GARY REMPEL; JACQUELINE MORA RODRIGUEZ; JASON SCHOFIELD; GABRIEL IVAN SANTOS; DAVID SMITH; ANGELA THILL; JOSHUA THRAILKILL; CHRISTOPHER VALLARO; CITY NIGHTS HOSPITALITY, LLC, Plaintiffs-Appellants, v. FLOYD MAYWEATHER, JR.; MAYWEATHER PROMOTIONS, LLC; EMMANUEL PACQUIAO; TOP RANK, INC.; ROBERT ARUM; MICHAEL KONCZ; HOME BOX OFFICE, INC.; TODD DUBOEF, Defendants-Appellees. JAMMERS, INC., DBA Flight Restaurant/Flights Beer Bar, individually and on behalf of all others similarly situated; CITY NIGHTS HOSPITALITY, LLC, DBA 48 Lounge, Plaintiffs-Appellants, v. TOP RANK, INC.; EMMANUEL PACQUIAO; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF; MAYWEATHER PROMOTIONS, LLC; FLOYD MAYWEATHER, JR.; HOME BOX OFFICE, INC., Defendants-Appellees. PAUL MAHONEY, individually and on behalf of all others similarly situated; BRIAN DENIS FLYNN; JOHN DAY; HEATHER McDONALD; ANGELA THILL; GARY REMPEL, Plaintiffs-Appellants, v. EMMANUEL PACQUIAO; RANK, INC.; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF; FLOYD MAYWEATHER, JR.; MAYWEATHER PROMOTIONS, LLC; HOME BOX OFFICE, INC., Defendants-Appellees. ENRIQUE BARRIOS; CHRISTOPHER VALLARO; FELIX NATAL; CHAMAR BYNUM; DAVID SMITH, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. EMMANUEL PACQUIAO; RANK, INC.; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF; FLOYD MAYWEATHER, JR.; MAYWEATHER PROMOTIONS, LLC; HOME BOX OFFICE, INC., Defendants-Appellees. GERALD F. ALESSI, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. TOP RANK, INC.; ROBERT ARUM; TODD DUBOEF; EMMANUEL PACQUIAO; MICHAEL KONCZ; HOME BOX OFFICE, INC.; FLOYD MAYWEATHER, JR.; MAYWEATHER PROMOTIONS, LLC, Defendants-Appellees. BILL BRADY, individually and on behalf of all others similarly situated; HOWARD MILLER; PAUL BRODSKY; MARCY LOKIETZ, Plaintiffs-Appellants, v. HOME BOX OFFICE, INC.; MAYWEATHER PROMOTIONS, LLC; FLOYD MAYWEATHER, JR.; EMMANUEL PACQUIAO; TOP RANK, INC.; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF, Defendants-Appellees. DAVID BRADLEY, Plaintiff-Appellant, v. EMMANUEL PACQUIAO; RANK, INC.; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF; HOME OFFICE, INC.; MAYWEATHER PROMOTIONS, LLC; FLOYD MAYWEATHER, JR., Defendants-Appellees. VICTOR BOBADILLA; LISETTE NAZARIO; JASON SCHOFIELD; EVANS NYCOLE, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. TOP RANK, INC.; MAYWEATHER PROMOTIONS, LLC; ROBERT ARUM; EMMANUEL PACQUIAO; FLOYD MAYWEATHER, JR.; HOME BOX OFFICE, INC.; MICHAEL KONCZ; TODD DUBOEF, Defendants-Appellees. DAVID GALANDAK; ROBERT MARTINEZ; SUSAN MEDINA, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. TOP RANK, INC.; EMMANUEL PACQUIAO; HOME OFFICE, INC.; MAYWEATHER PROMOTIONS, LLC; FLOYD MAYWEATHER, JR.; ROBERT ARUM; TODD DUBOEF; MICHAEL KONCZ, Defendants-Appellees. GREG HOEVENER, Plaintiff-Appellant, v. TOP RANK, INC.; MAYWEATHER PROMOTIONS, LLC; ROBERT ARUM; EMMANUEL PACQUIAO; FLOYD MAYWEATHER, JR.; TODD DUBOEF; MICHAEL KONCZ; HOME BOX OFFICE, INC., Defendants-Appellees. DEVARIOUS CRAIG; KRISTINA DARDEN, Plaintiffs-Appellants, v. EMMANUEL PACQUIAO; RANK, INC.; ROBERT ARUM; TODD DUBOEF; MICHAEL KONCZ; HOME BOX OFFICE, INC.; FLOYD MAYWEATHER, JR.; MAYWEATHER PROMOTIONS, LLC, Defendants-Appellees. PAUL DEHART; RAY HEREDIA, Plaintiffs-Appellants, v. TOP RANK, INC.; EMMANUEL PACQUIAO; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF; FLOYD MAYWEATHER, JR.; MAYWEATHER PROMOTIONS, LLC; HOME BOX OFFICE, INC., Defendants-Appellees. SETH J. LAMB; VICTOR CAPO, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. HOME BOX OFFICE, INC.; MAYWEATHER PROMOTIONS, LLC; TOP RANK, INC.; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF; EMMANUEL PACQUIAO; FLOYD MAYWEATHER, JR., Defendants-Appellees. JACQUELINE MORA RODRIGUEZ; GABRIEL IVAN SANTOS, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. TOP RANK, INC.; ROBERT ARUM; MICHAEL KONCZ; TODD DUBOEF; EMMANUEL PACQUIAO; MAYWEATHER PROMOTIONS, LLC; FLOYD MAYWEATHER, JR.; HOME BOX OFFICE, INC., Defendants-Appellees. JOSHUA THRAILKILL, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. TOP RANK, INC.; ROBERT ARUM; TODD DUBOEF; EMMANUEL PACQUIAO; MICHAEL KONCZ; MAYWEATHER PROMOTIONS, LLC; FLOYD MAYWEATHER, JR.; HOME BOX OFFICE, INC., Defendants-Appellees. SEAN MICHAEL CRABTREE, Plaintiff-Appellant, v. EMMANUEL PACQUIAO; RANK, INC.; MICHAEL KONCZ; ROBERT ARUM; TODD DUBOEF; FLOYD MAYWEATHER, JR.; MAYWEATHER PROMOTIONS, LLC; HOME BOX OFFICE, INC., Defendants-Appellees. Nos. 17-56366, 17-56372, 17-56379, 17-56381, 17-56382, 17-56384, 17-56385, 17-56386, 17-56387, 17-56388, 17-56392, 17-56394, 17-56395, 17-56398, 17-56399, 17-56401. (9th Cir.). Pacquiao and Mayweather squared off at the MGM Grand Garden Arena in Las Vegas in May 2015. Home Box Office, Inc. (HBO) was the fight broadcaster. After twelve rounds, Mayweather was declared the winner against underdog Pacquiao in a unanimous decision. During the post-fight press conference, Pacquiao revealed that he had injured his right shoulder in training camp nearly a month before. Plaintiffs in numerous jurisdictions seized on the injury disclosure and filed putative class-action complaints alleging that Pacquiao was "damaged goods", that the fight was a "magnificent con" and that they would not have purchased tickets had they known of Pacquiao's injury. Plaintiffs filed putative class action complaints in numerous jurisdictions against the Pacquiao Defendants, the Mayweather Defendants, and HBO. In August 2015, the U.S. Judicial Panel on Multidistrict Litigation created an MDL and issued a transfer order under 28 U.S.C. Sec. 1407 to centralize pretrial proceedings in the Central District of California. On February 22, 2016, Plaintiffs filed 16 consolidated class-action complaints. The district court accepted these complaints as filed on July 7, 2016. At the time the district court ruled on the motions to dismiss, the MDL consisted of 26 individual actions, 13 jurisdiction-specific complaints filed on behalf of putative classes of PPV purchasers, a single complaint filed on behalf of a nationwide putative class of ticket holders, and a single complaint filed on behalf of a nationwide putative class, including California and New York subclasses, of commercial entities that purchased closed-circuit distribution rights to televise the fight. On August 25, 2017, the district court dismissed all complaints with prejudice. The district court held that Plaintiffs suffered no cognizable injury to a legally protected interest because "the alleged misrepresentations and omissions implicate the core of athletic competition" as opposed to "business outcomes and financial performance." Plaintiffs timely appealed. Plaintiffs in this case paid to see a boxing match between two of the top fighters in the world, Mayweather and Pacquiao. Each was medically cleared to fight by NSAC physicians before he entered the ring. Ultimately, a three-judge panel declared Mayweather the overall winner of the match, but each of the judges declared Pacquiao the winner of between two and four rounds. And although the match may have lacked the drama worthy of the pre-fight hype, Pacquiao's shoulder condition did not prevent him from going the full twelve rounds, the maximum number permitted for professional boxing contests. Plaintiffs therefore essentially got what they paid for a full-length regulation fight between these two boxing legends, the Ninth Circuit opines. The Ninth Circuit finds unpersuasive Plaintiffs' remaining argument that their claims are no different than claims alleging fraudulent inducement to procure sales of any other goods or service. In a typical consumer-protection case, consumers form beliefs about what they can expect by relying on public representations regarding the features of the good or service at issue. An advertisement that states that a certain model of a car is equipped with a sunroof and an in-dash navigation system, for example, gives rise to the reasonable expectation that the model in fact has both features. If the car lacks one or both, consumers might bring suit, alleging that they were injured because the advertisements misrepresented the car's features. These principles do not apply with equal force to claims brought by fans in the sports context, the Ninth Circuit states. A sports match or game, unlike a consumer good or service, is defined only by a set of rules that are well-known to fans; the rest is determined by how the match is fought or the game is played. Nor can it be said that fan expectations are uniform: a move or play that exceeds one fan's expectations disappoints the next. The "human drama of athletic competition" distinguishes this case from the garden-variety consumer protection cases. The Ninth Circuit further notes that in seeking to hold Defendants liable for alleged omissions and misrepresentations regarding Pacquiao's physical condition, Plaintiffs' theory of liability is potentially boundless. The nature of competitive sports is such that athletes commonly compete - and sometimes dramatically win - despite some degree of physical pain and injury. Taken to its logical extreme, Plaintiffs' theory would require all professional athletes to affirmatively disclose any injury—no matter how minor—or risk a slew of lawsuits from disappointed fans. Such a result would fundamentally alter the nature of competitive sports: Opponents would undoubtedly use such information to their strategic advantage, resulting in fewer games and matches won through fair play, and gone would be the days of athletes publicly declaring their strength and readiness for fear of a lawsuit alleging that fans were misled. In sum, the Ninth Circuit opines that the district court was correct to knock out Plaintiffs' complaints. Accordingly, the Ninth Circuit affirmed the district court decision on the Pacquiao-Mayweather case. A full-text copy of the Ninth Circuit's November 21, 2019 Opinion available at https://bit.ly/38YciRV from Leagle.com Hart L. Robinovitch - hart.robinovitch@zimmreed.com - (argued), Zimmerman Reed LLP, Scottsdale, Arizona; Paul B. Derby , Courtney E. Curtis , and John J. O'Kane IV , Skiermont Derby LLP, 800 Wilshire Boulevard, Suite 1450 Los Angeles, California 90017, Laurence D. King – lking@kaplanfox.com - and Matthew B. George - mgeorge@kaplanfox.com - Kaplan Fox & Kilsheimer LLP, San Francisco, California; Marc A. Goldich , Axler Goldich LLC, 1520 Locust StreetSuite 301Philadelphia, PA 19102, Philadelphia, Pennsylvania; Kevin P. Roddy - kroddy@wilentz.com - Wilentz Goldman & Spitzer P.A., Woodbridge, New Jersey; Melissa Emert , Stull Stull &. Brody, New York, New York; Caleb Marker - caleb.marker@zimmreed.com - Zimmerman Reed LLP, Manhattan Beach, California; William B. Federman - WBF@FEDERMANLAW.COM - and Carin L. Marcussen - CLM@FEDERMANLAW.COM - Federman & Sherwood, Oklahoma City Mark G. Tratos - tratosm@gtlaw.com - (argued), Greenberg Traurig LLP, Las Vegas, Nevada; Ruth A. Bahe-Jachna - baher@gtlaw.com - Greenberg Traurig LLP, Chicago, Illinois; for Defendants-Appellees Floyd Mayweather and Mayweather Promotions LLC. Daniel M. Petrocelli - dpetrocelli@omm.com - (argued), Jeffrey A. Barker – jbarker@omm.com - David Marroso - dmarroso@omm.com - and Esteban Rodriguez- erodriguez2@omm.com - O'Melveny & Myers LLP, Los Angeles, California, for Defendants-Appellees Emmanuel Pacquiao , Top Rank Inc., Robert Arum , Michael Koncz , Todd DuBoef , and Home Box Office Inc. FUSION INDUSTRIES: Leal Seeks OT Wages for Installation Laborers ---------------------------------------------------------------- JAVIER LEAL, on behalf of himself and all others similarly situated v. FUSION INDUSTRIES INTERNATIONAL, LLC, a Florida Limited Liability Company, Case No. 2:20-cv-00051 (M.D. Fla., Jan. 23, 2020), seeks unpaid overtime compensation for granite installation laborers under the Fair Labor Standards Act. The Plaintiff contends that the Defendant has a policy and practice of failing to accurately record the hours worked by piece rate paid granite installation laborers by not accounting for compensable meal and rest breaks as hours worked; and failing to pay piece rate paid granite installation laborers like Plaintiff full and proper overtime compensation for all overtime hours worked. The Plaintiff worked for the Defendant as a piece rate paid granite installation laborer from Oct. 14, 2016, through Jan. 7, 2020. The Defendant operates a large scale countertop and cabinetry company in Ft. Myers, Florida.[BN] The Plaintiff is represented by: Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A. 10368 W. State Road 84, Suite 103 Davie, FL 33324 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 E-mail: noah@floridaovertimelawyer.com GEO GROUP: Faces Class Action Over Voluntary Work Program --------------------------------------------------------- A class action lawsuit has been filed in federal court in Tacoma, Washington, against The GEO Group, Inc., the owner and operator of the Northwest Detention Center. The name of the case is Nwauzor, et al. v. The GEO Group, Inc., No. 17-cv-05769. A federal judge decided that this lawsuit should be a class action on behalf of a "Class" or "Class Members" that includes all civil immigration detainees who participated in the Voluntary Work Program at the Northwest Detention Center at any time since September 26, 2014. This notice summarizes the rights of Class Members and their options before an upcoming trial. More information is in a detailed notice available at the website below. Class Members must decide whether to stay in the Class and be bound by whatever results, or ask to be excluded and keep their right to sue GEO. There is no money available now, and no guarantee there will be. This lawsuit is about whether GEO is an 'employer' and whether the Class Members are 'employees' under the Washington Minimum Wage Act. And if so, whether GEO violated the Act by failing to pay Class Members the minimum hourly wage under Washington law for work performed under the $1-a-day Program. GEO denies the allegations made in the lawsuit. The Court has not decided whether GEO did anything wrong. Class Members have a choice of whether to stay in the Class or not, and they must decide this now. If they stay in the Class, they will be legally bound by all orders and judgments of the Court, and they won't be able to sue, or continue to sue, GEO as part of any other lawsuit for backwages owed between September 26, 2014, and the date of trial. If Class Members do not make a decision by March 24, 2020, they will forfeit the opportunity to bring an individual action for the same damages in the future. The Court has approved Ugochukwu Goodluck Nwauzor and Fernando Aguirre-Urbina to serve as the Class Representatives. The Court has also appointed the law firms of Schroeter Goldmark & Bender, Open Sky Law, PLLC, and Menter Immigration Law PLLC of Seattle, WA, and the Law Office of R. Andrew Free of Nashville, TN, to represent the Class. If Class Members want to participate in the class action against GEO and they want to have the Class Representatives and Class Counsel represent their interests, they are not required to do anything at this time. Class Members may also hire their own lawyer to appear in Court on their behalf. If Class Members ask to be excluded from the Class, they will keep any rights to sue GEO for these claims and will not be bound by any orders or judgments of the Court. If they do not want to participate in the lawsuit, they must send a Request to Be Excluded form (or similar document) by mail, email, fax or other method of delivery to the Notice Administrator at the locations identified below. The Request to Be Excluded must be in writing and delivered, transmitted, or postmarked on or before March 24, 2020. The Request to Be Excluded form must be delivered to the Notice Administrator by mail, email or fax to the following address: Nwauzor, et al. v. The Geo Group, Inc. c/o JND Legal Administration PO Box 91226 Seattle, WA 98111 Email: info@vwpclassaction.com Fax: (206) 788-8766 If Class Members have any questions or want a detailed notice or other documents about this lawsuit and their rights, they can visit www.VWPClassAction.com; or email JND Legal Administration at info@VWPClassAction.com; or call: Toll-Free in U.S.: 855-961-0959 Seattle-Tacoma, Washington Area: 206-806-6835 Toll-Free in Mexico: 1-800-733-4126 [GN] GERON CORP: Faces Tollen Securities Suit Over Drop of Stock Price ----------------------------------------------------------------- MICHAEL TOLLEN, on behalf of himself and a class of similarly situated investors v. GERON CORPORATION and JOHN A. SCARLETT, Case No. 3:20-cv-00547 (N.D. Cal., Jan. 23, 2020), accuses the Defendants of violating the Securities Exchange Act of 1934 for misleading investors about the results of a clinical study of a drug called imetelstat, which was intended to treat certain cancers that occur in bone marrow. Specifically, the Plaintiff asserts, Defendants misled investors about the results of a clinical drug study of imetelstat called IMbark. That study was designed to ascertain whether imetelstat helped patients with a cancer called myelofibrosis. Geron was developing imetelstat in partnership with Janssen Biotech Inc., a division of Johnson & Johnson. Not surprisingly, the Plaintiff notes, Scarlett's encouraging statements about the IMbark study caused Geron's stock price to increase more than 28% in one trading day. While Defendant Scarlett is free to tout "positive" information about Imbark under the federal securities laws, he is bound to do so in a manner that will not mislead investors, the Plaintiff asserts. On March 27, 2018, a biotech journalist published an article, which called out Defendants Scarlett and Geron for misleading the market with their statements on March 19, 2018, and for failing to disclose IMbark's primary endpoint data or the baseline disease characteristics of patients in the study, all of which would help investors evaluate Defendants' encouraging claims. On this news, Geron shares, which had closed at $5.98 per share on March 26, 2018, dropped 29% over the next two days to close at $4.23 per share on March 28, 2018. This partial disclosure of the Defendants' deception, however, did not fully reveal the extent of the fraud with respect to IMbark. On September 27, 2018, the Defendants issued a press release finally admitting that IMbark was a failure. Geron disclosed that patients in the IMbark study had shown only 10% spleen volume reduction and 32% TSS reduction. Not coincidentally, the Defendants further announced that Janssen had decided to terminate its partnership with Geron. In response to these belated disclosures, the price of Geron's stock plummeted from $6.23 per share to $2.31 per share the next day, a decrease of over 62%. The case is a securities class action brought on behalf of all purchasers of Geron common stock between March 19, 2018, and Sept. 26, 2018, inclusive, who were damaged by the decline of the Company's share price. The Plaintiff purchased Geron common stock on the public market during the Class Period. Geron is a biopharmaceutical company. John A. Scarlett is the Company's President and Chief Executive Officer.[BN] The Plaintiff is represented by: Frank J. Johnson, Esq. Brett M. Middleton, Esq. Kristen O'Connor, Esq. JOHNSON FISTEL, LLP 655 West Broadway, Suite 1400 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 E-mail: FrankJ@johnsonfistel.com BrettM@johnsonfistel.com KristenO@johnsonfistel.com GNC HOLDINGS: Misrepresents Skin Oil as Vitamin E Oil, Brock Says ----------------------------------------------------------------- TOBY BROCK, individually and on behalf of all others similarly situated v. GNC HOLDINGS, INC., and DOES 1 through 10, inclusive, Case No. 2:20-cv-00785 (C.D. Cal., Jan. 24, 2020), alleges that the Defendants violated the California Consumers Legal Remedies Act, the California False Advertising Law and the California Unfair Competition Law by misrepresenting GNC's Vitamin E Skin Oil as Vitamin E oil. The Plaintiff alleges that GNC's Vitamin E Skin Oil is not Vitamin E oil, it is mostly a vegetable oil used for cooking called Safflower oil masquerading as Vitamin E oil. According to the complaint, GNC's false and deceptive Vitamin E skin oil label misleads and shortchanges consumers and creates a competitive advantage over other competitors, large and small, who play by the rules. Safflower oil does not deliver the cosmetic benefits of Vitamin E oil. The Plaintiff contends that the Defendants prominently display "Vitamin E Skin Oil" front and center on each bottle of the Product. The "Vitamin E" label claim is written in the largest font, in capital lettering, on the front of each and every bottle. He adds that Safflower oil is starkly omitted from the front label of the packaging despite being the primary oil; the Defendant tellingly does not label the Product "Safflower skin oil." The Plaintiff purchased the Product at a GNC in Los Angeles, California, in Summer of 2019 for $12. In making her purchase, the Plaintiff relied upon the Defendants' labeling and advertising claims, including "Vitamin E Skin Oil" prominently labeled in large capital lettering front and center on the front of the bottle, says the complaint. GNC is a Pittsburgh, Pennsylvania-based American company selling health and nutrition related products, including vitamins, supplements, minerals, herbs, sports nutrition, diet, and energy products.[BN] The Plaintiff is represented by: Ryan J. Clarkson, Esq. Shireen M. Clarkson, Esq. Matthew T. Theriault, Esq. Bahar Sodaify, Esq. CLARKSON LAW FIRM, P.C. 9255 Sunset Blvd., Suite 804 Los Angeles, CA 90069 Telephone: (213) 788-4050 Facsimile: (213) 788-4070 E-mail: rclarkson@clarksonlawfirm.com GODADDY.COM LLC: Bennett Suit Moved From Arizona to S.D. Alabama ---------------------------------------------------------------- The case captioned as Jason Bennett, on behalf of himself and all others similarly situated v. GoDaddy.com LLC, Case No. 2:16-cv-03908, was transferred from the U.S. District Court for the District of Arizona to the U.S. District Court for the Southern District of Alabama on Feb. 19, 2020. The Alabama District Court Clerk assigned Case No. 1:20-cv-00094-KD-B to the proceeding. The nature of suit is stated as other statutory actions. GoDaddy is an American publicly traded Internet domain registrar and web hosting company, headquartered in Scottsdale, Arizona, and incorporated in Delaware.[BN] The Plaintiff is represented by: John R. Cox, Esq. 9786-A Timber Circle Spanish Fort, AL 36527 Phone: 251.517.4753 Email: federalcourt.notices.jrclegal@gmail.com The Defendants are represented by: Aaron M McKown, Esq. COZEN O'CONOR PC 200 S Biscayne Blvd., 30th Fl. Miami, FL 33131 Phone: (305) 424-9020 Fax: (786) 220-0205 - and - Taylor Widawski, Esq. COZEN O'CONOR PC 999 3rd Ave., Ste. 1900 Seattle, WA 98104 Phone: (206) 224-1285 Fax: (206) 455-8242 HAMBLEN COUNTY, TN: Torres Suit Seeks to Certify Class ------------------------------------------------------ In the class action lawsuit styled as MICHELLE TORRES, et al., on behalf of themselves and those similarly situated v. W. DOUGLAS COLLINS, in his official capacity as Hamblen County General Sessions Judge, et al., Case No. 2:20-cv-00026 (E.D. Tenn.), the Plaintiffs move the Court for an order: 1. certifying a class of: "all people who are or will be arrested and charged with criminal offenses and who are or will be detained in the Hamblen County Jail because of Defendants' bail practices." 2. appointing Plaintiffs as class representatives; and 3. appoint Plaintiffs' counsel as class counsel. The Plaintiffs allege that Defendants maintain bail and pretrial detention practices that violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution, as well as the Sixth Amendment right to counsel, says the complaint. The Plaintiffs are being held pretrial in the Hamblen County Jail solely because they cannot pay for their release. The Hamblen County General Sessions Court is one of 95 General Session Courts in Tennessee.[CC] Attorneys for the Plaintiffs are: Tara Mikkilineni, Esq. ImeIme Umana, Esq. CIVIL RIGHTS CORPS 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: 202-894-6124 Facsimile: 202-609-8030 E-mail: tara@civilrightscorps.org imeime@civilrightscorps.org - and - Seth Wayne, Esq. Jonathan Backer, Esq. Mary B. McCord, Esq. INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION (ICAP) Georgetown University Law Center 600 New Jersey Ave. NW Washington, D.C. 20001 Telephone: 202-662-9042 E-mail: sw1098@georgetown.edu jb2845@georgetown.edu - and - George T. Lewis, Esq. Matthew G. White, Esq. BAKER DONELSON 265 Brookview Centre Way, Suite 600 Knoxville, TN 37919 Telephone: 865-549-7000 E-mail: blewis@bakerdonelson.com mwhite@bakerdonelson.com HEALTH CARE SERVICE: Briscoe Seeks to Certify Classes & Subclasses ------------------------------------------------------------------ In the class action lawsuit styled as LAURA BRISCOE, KRISTIN MAGIERSKI, and EMILY ADAMS on behalf of themselves and all others similarly situated v. HEALTH CARE SERVICE CORPORATION and BLUE CROSS AND BLUE SHIELD OF ILLINOIS, Case No. 1:16-cv-10294 (N.D. Ill.), the Plaintiffs ask the Court for an order: A. granting Plaintiffs' Motion for Class Certification and certifying two classes and subclasses: ERISA Lactation Class: "all persons who were insured by or participants in ERISA, non-grandfathered, and non-federal employee health benefit plans insured or administered by HCSC in the United States, who from August 1, 2012 to present received Comprehensive Lactation Services ("CLS"), submitted the CLS claim to Health Care Service Corporation ("HCSC"), and HCSC denied or imposed cost-sharing on the CLS claim." (a) The Out-of-Network CLS Subclass: "all members of the ERISA Lactation Class who received CLS from an out-of-network provider"; and (b) The CLS Scope Subclass: "all members of the ERISA Lactation Class who submitted a claim for CLS that did not include one of HCSC's Procedure Codes." Non-ERISA Lactation Class: "all persons who were insured by or participants in non- ERISA, non-grandfathered, and non-federal employee health benefit plans insured or administered by HCSC in the United States, who from August 1, 2012 to present received CLS, submitted the CLS claim to HCSC, and HCSC denied or imposed cost-sharing on the CLS claim." (a) The Out-of-Network CLS Subclass: "all members of the Non-ERISA Lactation Class who received CLS from an out-of-network provider. (b) The CLS Scope Subclass: All members of the Non-ERISA Lactation Class who submitted a claim for CLS that did not include one of HCSC's Procedure Codes. Excluded from the Classes are Health Care Service Corporation, its subsidiaries or affiliate companies, its legal representatives, assigns, successors and employees. B. appointing Plaintiff Briscoe as Class Representative for the ERISA Lactation Class and subclasses; C. appointing Plaintiffs Magierski and Adams as Class Representatives for the Non-ERISA Lactation Class and subclasses; D. appointing Chimicles Schwartz Kriner & Donaldson-Smith LLP as Class Counsel pursuant to Rules 23(a)(4) and 23(g); and E. granting such other relief as the Court deems appropriate under the circumstances. HCSC offers a wide variety of health and life insurance products and related services, through its operating divisions and subsidiaries.[CC] Attorneys for the Plaintiffs are: Kimberly Donaldson-Smith, Esq. Nicholas E. Chimicles, Esq. Stephanie E. Saunders, Esq. 361 W. Lancaster Avenue CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP Haverford, PA 19041 Telephone: (610) 642-8500 E-mail: NEC@Chimicles.com KMD@Chimicles.com SES@Chimicles.com - and - Paul D. Malmfeldt, Esq. BLAU & MALMFELDT 566 West Adams Street, Suite 600 Chicago, IL 60661-3632 Telephone: (312) 443-1600 Facsimile: (312) 443-1665 - and - Jonathan W. Cuneo, Esq. Pamela B. Gilbert, Esq. Monica E. Miller, Esq. Katherine Van Dyck, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Ave. NW, Suite 200 Washington, DC 20016 Telephone: (202) 789-3960 Facsimile: (202) 789-1813 HEALTHCARE SERVICES: Guijarro Labor Suit Moved to C.D. California ----------------------------------------------------------------- The case captioned Maria Guijarro, an individual and class representative on behalf of herself and all other similarly situated non-exempt former and current employees v. HEALTHCARE SERVICES GROUP, INC., a Pennsylvania corporation; HCSG WEST, LLC, a New Jersey limited liability company; YOLOCARE INC., dba TERRACINA POST ACUTE, a California Corporation; and DOES 1 through 100, inclusive, Case No. CIVDS1937215, removed from the Superior Court of the State of California, County of San Bernardino, to the U.S. District Court for the Central District of California on Feb. 19, 2020. The District Court Clerk assigned Case No. 5:20-cv-00324 to the proceeding. The Plaintiff asserts ten causes of action for (1) failure to provide meal periods, (2) failure to provide rest periods, (3) failure to pay overtime wages, (4) failure to pay minimum wages, (5) failure to timely pay wages during employment, (6) failure to pay all wages due to discharged employees, (7) failure to maintain personnel records, (8) failure to furnish accurate itemized wage statements, (9) failure to reimburse employees for business expenses, and (10) unfair business practices.[BN] The Defendants are represented by: Kenneth D. Sulzer, Esq. Matthew Scholl, Esq. CONSTANGY, BROOKS, SMITH & PROPHETE, LLP 2029 Century Park East, Suite 1100 Los Angeles, CA 90067 Phone: (310) 909-7775 Facsimile: (424) 276-7410 Email: ksulzer@constangy.com mscholl@constangy.com - and - Sarah K. Hamilton, Esq. CONSTANGY, BROOKS, SMITH & PROPHETE LLP 601 Montgomery Street, Suite 350 San Francisco, CA 94111 Phone: (415) 918-3000 Facsimile: (415) 918-3009 Email: shamilton@constangy.com HEALTHPRO HERITAGE: Improperly Pays Workers, Carman Suit Says -------------------------------------------------------------- Ryan Carman, individually and on behalf of all others similarly situated, Plaintiff, v. Healthpro Heritage, LLC, Defendant, Case No. 20-cv-00232 (D.S.C., January 23, 2020), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' fees, and costs under the provisions of the Fair Labor Standards Act of 1938. Healthpro is a diversified therapy and related service provider where Carman worked as a therapy manager from July 2017 to July 2018. He claims to have regularly worked more than 8 hours per day and 40 hours per week but not paid any additional wages for overtime filing the required paperwork such as insurance claims, discharge paperwork and summaries of the work that was performed. [BN] Plaintiff is represented by: Don J. Foty, Esq. HODGES & FOTY, LLP 4409 Montrose Blvd, Ste. 200 Houston, TX 77006 Telephone: (713) 523-0001 Facsimile: (713) 523-1116 Email: dfoty@hftrialfirm.com - and - Joshua D. Christian, Esq. 1007 E. Washington St. P.O. Box. 332 Greenville, SC 29601 Telephone: (864) 232-7363 Facsimile: (864) 370-3731 HEARTLAND BEEF: Snider Suit Moved to Central District of Illinois ----------------------------------------------------------------- In the case, TIFFANIE SNIDER, individually, and on behalf of all others similarly situated, Plaintiff, v. HEARTLAND BEEF, INC., an Indiana corporation, Defendant, Case No. 1:19-cv-07386 (N.D. Ill.), Judge Steven C. Seeger of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part the Defendant's Motion to Transfer case. Plaintiff Snider lives in downstate Illinois in McDonough County, which is within the boundaries of the Central District. She worked at an Arby's restaurant operated by Defendant Heartland Beef in Macomb, Illinois. Measured in driving distance, Macomb is closer to St. Louis (162 miles) and Des Moines (214 miles) than Chicago (246 miles). By way of comparison, Washington D.C. is closer to New York City (225 miles) than Macomb is to Chicago. The case is about the use of biometric information at that downstate Arby's, plus six other restaurants scattered across Illinois. The complaint alleges that Heartland Beef requires its employees to scan their fingerprints into an employee database. Heartland Beef allegedly uses a biometric time-tracking system that requires employees to use fingerprint scans as a means of authentication each time they start or stop working. Employees have to submit to a fingerprint scan when they use a register, too. So every time Snider clocked in or out of work, or used the register, she had to submit to a biometric scan. Snider claims that Heartland Beef's scanning and retention of employees' fingerprints violates the Illinois Biometric Information Privacy Act ("BIPA"). She brings claims on behalf of herself and a putative class of all citizens of Illinois who have had their fingerprints collected, captured, received, or otherwise obtained by Heartland Beef in Illinois. The Court held that the complaint lacks any connection to the Northern District of Illinois. Snider lives in or near Macomb, Illinois, and Heartland Beef is based in Bloomington, Indiana. So, the dispute is between a resident of the Central District of Illinois and a resident of the Southern District of Indiana. The conduct in question did not take place there, either. Snider worked at only one restaurant, and it is located in Macomb, Illinois. The complaint has no link -- not a party, not an act, not an omission, not anything -- to the judicial district. The only exception is the address of the Plaintiff's counsel. Snider filed the lawsuit in downtown Chicago, hundreds of miles from home. She sued in the Circuit Court of Cook County, and Heartland Beef removed it to federal court. Heartland Beef later filed a motion to transfer the case to the Southern District of Indiana. It supported its motion with a declaration from its Vice President of Human Resources. Heartland Beef operates 37 restaurants across the Midwest, including seven in Illinois. All of the corporate decision-making takes place in Indiana. All of Heartland's corporate-wide functions, including finance, marketing, legal, and human resources, are carried out of Heartland's Bloomington headquarters. All of its officers and senior management work at the Bloomington headquarters, and that's where they made the key decisions about the use of the technology in question. The records are located in Bloomington, too. Snider wants her case to stay in the Northern District of Illinois. Heartland Beef wants to litigate on its home turf in the Southern District of Indiana. After taking all of the facts into account, Judge Seeger concludes that the case belongs in the Central District of Illinois. No party is from the Northern District of Illinois. None of the acts and omissions that gave rise to the claims took place in the Northern District, either. The case has no nexus to the District, so it simply doesn't belong there. Litigating the case in the Central District of Illinois will be more convenient than litigating in Indiana, let alone the Northern District of Illinois, rules the Court. Litigating the case in the Central District of Illinois will advance the interests of justice, too. Because the case belongs elsewhere, the Judge does not reach the merits of Heartland Beef's motion to dismiss for failure to state a claim. That decision rests with the transferee Court. Based on the foregoing, Judge Seeger granted in part and denied in part the Motion to Transfer. The case is transferred to the Central District of Illinois under 28 U.S.C. Section 1404(a). A full-text copy of the Court's Jan. 29, 2020 Memorandum Opinion & Order is available at https://is.gd/dV5nCS from Leagle.com. Tiffanie Snider, individually and on behalf of all others similarly situated, Plaintiff, represented by Aaron M. Zigler, Keller Lenkner LLC, Alexios James Dravillas -- ajd@kellerlenkner.com -- Keller Lenkner LLC, Ashley C. Keller -- ack@kellerlenkner.com -- Keller Lenkner LLC, James Dominick Larry -- nl@kellerlenkner.com -- Keller Lenkner LLC & Travis D. Lenkner -- tdl@kellerlenkner.com -- Keller Lenkner LLC. Heartland Beef, Inc., an Indiana corporation, Defendant, represented by Gary M. Miller -- gmiller@shb.com -- Shook, Hardy & Bacon LLP, Matthew C. Wolfe -- mwolfe@shb.com -- Shook, Hardy & Bacon LLP & Brian Scott Jones -- b.jones@boselaw.com -- Bose McKinney & Evans LLP. HOMETOWN HEART: Faces Craig Suit in Calif.; June 24 Hearing Set --------------------------------------------------------------- A class action lawsuit has been filed against Hometown Heart. The case is captioned as NICHOLAS CRAIG, AN INDIVIDUAL ON BEHALF OF HIMSELF AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED v. HOMETOWN HEART, A CALIFORNIA CORPORATION and DOES 1 THROUGH 50, INCLUSIVE, Case No. CGC20582454 (Cal. Super., San Francisco Cty., Jan. 24, 2020). Hometown Heart specializes in direct to consumer operations in the cannabis industry. A case management conference is set for June 24, 2020, at 10:30 a.m. The Plaintiff is represented by: Norman B. Blumenthal, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037-3107 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 E-mail: norm@bamlawca.com HUDSON VALLEY: Swain Seeks to Recover Wages & Benefits Under FLSA ----------------------------------------------------------------- CHLOE SWAIN, CAROLINA VASQUEZ, BRITTANY KIECHLE, individually and on behalf of all other persons similarly situated who were employed by Defendants v. DR. SHEILA M. JODLOWSKI, individually and in her representative capacity, and HUDSON VALLEY BEHAVIORAL SOLUTIONS, LLC, Case No. 7:20-cv-00617 (S.D.N.Y., Jan. 23, 2020), seeks to recover wages and benefits which the Plaintiffs and members of the putative class were and are entitled to receive for work they performed pursuant to the New York Labor Law and the Fair Labor Standards Act. According to the complaint, the Defendants have violated the FLSA and NYLL by failing to pay their employees, including the Plaintiffs, overtime wages, spread-of-hours pay and noticed wages, for failing to provide lunch breaks, and for failing to maintain and provide accurate wage and pay records including paystubs and W-2s. The Plaintiffs and putative class of individuals performed work for the Defendants as Paraprofessionals, Behavior Analysts and other related positions. Hudson Valley Behavioral Solutions is a behavior analyst in Hopewell Junction, New York.[BN] The Plaintiffs are represented by: Brooke D. Youngwirth, Esq. CORBALLY, GARTLAND AND RAPPLEYEA, LLP 35 Market Street Poughkeepsie, NY 12601 Telephone: (845) 454-1110 INFINITY HEALTHCARE: Ark. Upholds Certification of Boyd Class ------------------------------------------------------------- The Supreme Court of Arkansas issued an Opinion affirming a circuit court judgment granting Plaintiffs' Motion for Class Certification in the appellate case, INFINITY HEALTHCARE MANAGEMENT OF ARKANSAS, LLC; SKYLINE HEALTHCARE, LLC; HIGHLANDS OF NORTH LITTLE ROCK JOHN ASHLEY HOLDINGS, LLC, D/B/A NORTH LITTLE ROCK HEALTH AND REHABILITATION; 2501 JOHN ASHLEY DRIVE HOLDINGS, LLC; SKYLINE HIGHLAND HOLDINGS, LLC; JS HIGHLAND HOLDINGS, LLC; SKYLINE SERVICES GROUP, LLC; SKYLINE ARKANSAS HEALTHCARE, LLC; AND SKYLINE ARKANSAS HOLDINGS, LLC, Appellants, v. DAFONY BOYD, DEANA ATKINS-DAVIS, LATOYIA FLOYD, AND HANNAH BARNES, Appellees, Case No. CV-19-362 (Ark.). The Complaint, as amended, and filed in 2018, asserted that the Appellees worked as non-exempt, hourly-paid, licensed practical nurses (LPNs) and certified nursing assistants (CNAs) at a nursing home and rehabilitation center known as Northridge or the facility located on John Ashley Drive in North Little Rock. Appellees claimed that Northridge had a common policy and practice of deducting a thirty-minute meal break from the plaintiffs' and putative class members' hours worked each shift whether or not those employees were actually able to take the break. Appellees thus alleged that Northridge's meal-deduction policy violated the minimum-wage and overtime provisions of the Arkansas Minimum Wage Act (AMWA). Appellees filed a motion for class certification in the Pulaski County Circuit Court. The circuit court entered an order on March 7, 2019 certifying a class as follows: All individuals who worked at the facility located at 2501 John Ashley Drive, North Little Rock, Arkansas 72114 as an LPN or CNA, within the past (3) years, excluding named Defendants and relatives of named Defendants. Defendants appeal the Pulaski County Circuit Court's March 7, 2019 order granting class certification for nursing employees at a health and rehabilitation facility. Infinity also appeals the circuit court's March 15, 2019 ruling on its objections to class certification; the circuit court's April 1, 2019 order on its motion for rulings on its opposition to class certification, motion for findings of fact and conclusions of law under Arkansas Rule of Civil Procedure 52(b)(1), and motion to modify class-certification order under Arkansas Rule of Civil Procedure 60(a); and all intermediate rulings involving the substance of those orders, merged with those orders, or necessarily affecting those orders. Skyline also appeals the circuit court's April 1, 2019 ruling on their motion for rulings on their opposition to class certification, motion for findings of fact and conclusions of law under Rule 52(b)(1), and motion to modify class-certification order under Rule 60(a). For reversal, Skyline and Infinity both argue that Appellees failed to meet their burden to prove class-certification requirements of numerosity, commonality, typicality, adequacy, predominance, and superiority, and that the circuit court's class-certification order is insufficient under Arkansas Rule of Civil Procedure 23(b) and 52(a)(1). Infinity further argues that (1) the plaintiffs below are not "members of a class" to sue as a representative party because Infinity did not exist when they were employed at the facility, and (2) the appellate court should direct the circuit court to decide its motion to dismiss before taking up any remaining class-certification issues. The circuit court found that the class is so numerous that joinder is impracticable because the facility averaged fifty employees daily. On review, the Appellate Court concludes that the circuit court's finding of numerosity was sufficient and that its determination that numerosity was satisfied was not an abuse of discretion. The circuit court also determined that common questions included, but were not limited to, whether facility owners paid the minimum wage or overtime as required and whether the owners had an automatic time-deduction policy. Skyline argues that commonality is lacking because forms to reclaim automatically deducted time were sometimes available and not available at other times. The record indicates that Northridge had a time-reclamation policy for at least part of the relevant time period. Appellees assert that the time-reclamation policy was the same even if at times the availability of the claim forms was inconsistent. The common questions remain regardless of who the owner or employer is at any given time, and they satisfy the commonality requirement. Infinity's additional defense that it was not in existence when the class representatives worked at the facility does not prevent class certification because we do not delve into the merits of claims or defenses at the class certification stage. The circuit court's conclusion that common questions exist was not an abuse of discretion, the Appellate Court opines. The circuit court further found that the claims are typical because the same alleged unlawful conduct was directed at the plaintiffs as well as the putative class. Infinity's typicality challenge is based primarily on its argument that it was not in existence at the time of the alleged violations. Skyline argues that the named class members do not have claims typical of the class because their job duties varied. In this case, the claims of the named representatives and proposed class members are based on the same practice or course of conduct of the facility owners. Additionally, defenses as to who the facility owners or managers may be at any given time are not appropriate to consider at the class-certification stage, the Appellate Court says. Therefore, the circuit court did not abuse its discretion in finding that the claims are typical, the Appellate Court opines. The circuit court concluded that the class representatives would fairly and adequately represent the class because they are members of the class and are intimately familiar with the facility owners' conduct and policy governing the case. Infinity argues that the representative parties are inadequate because Infinity never employed any of them when the illegal actions allegedly occurred. The record indicates that all the named class members for at least some period of time had similar jobs and that all are familiar with the facility's payment procedures. Likewise, now is not the time to consider any defense as to whether Barnes was an employee of any facility owner. The circuit court thus did not abuse its discretion in finding adequacy, the Appellate Court opines. When it outlined some of the common questions in the case, the circuit court determined that common legal and factual issues predominated over the individual issues. Infinity argues that predominance is not met because there were multiple owners when the alleged violations occurred. Skyline argues against predominance by asserting that the procedures changed during the relevant time and that some employees were able to submit time-reclamation forms. Appellees contend that the facility's policy was the same and that only the availability of time-reclamation forms varied. Even if the procedures on break-time payments changed during the relevant time, the conduct of the defendants toward the class is a common question that applies equally to all class members, and it predominates. Likewise, the Supreme Court do not delve into the merits of any defense Infinity may have when we consider certification of the class. The Appellate Court thus finds that the circuit court did not abuse its discretion on this point. Finally, the circuit court found that resolution of the common questions through a class action was the superior method for a fair and efficient adjudication of the controversy. Appellants argue that a class action is not the superior way of handling the claims because of the highly individualized, employee-by-employee, and week-by-week proof. Both Infinity and Skyline essentially argue that individual trials would be necessary to establish liability and damages. The Appellate Court finds that the circuit court did not abuse its discretion in either its class-certification order or in its Rule 52 order using the form that Infinity and Skyline provided to specifically address the issues they had raised. In conclusion, the Appellate Court holds that the circuit court properly determined that the requirements of Rule 23 were satisfied, and in its class-certification order, it defined the class and sufficiently set forth the claims and defenses. Although Infinity invites the Appellate Court to impose a new requirement that dispositive motions be decided before a ruling on a class-certification motion, the Appellate Court decline to do so. A full-text copy of the Appellate Court's November 21, 2019 Opinion available at https://bit.ly/3a5wx0e from Leagle.com Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: R.T. Beard III - rbeard@mwlaw.com - Nathan A. Read - nread@mwlaw.com - and Lauren S. Grinder - lgrinder@mwlaw.com - for appellants. Holleman & Associates, P.A., by: John Holleman , Timothy A. Steadman , and Jerry Garner , 200 W Capitol Ave Ste 1620, Little Rock, AR, 72201. for appellees. JAKARTA: Legal Team Plans to Replace Three Flood Case Plaintiffs ---------------------------------------------------------------- The Jakarta Post reports that the Jakarta Flood Victims Legal Advocacy Team, which represents a group of flood victims in their class action suit against the Jakarta administration, is considering replacing three of its plaintiffs who failed to show up to the opening session of the trial on Feb. 3. The five plaintiffs in the lawsuit, which was registered on Jan. 13, represent flood victims from each of Jakarta's five municipalities. The lawsuit cites Law No. 24/2007 on disaster mitigation, which stipulates that the central and regional governments are responsible for disaster mitigation. "However, Bilmar Limbong, 46, representing West Jakarta, Tri Agus Arianto, 51, representing East Jakarta and Yunita Turnip, 46, representing South Jakarta did not appear at the Central Jakarta District Court. [GN] JAMES S. FARRIN: Can Partly Compel Responses in Garey Suit ---------------------------------------------------------- In the case, WILLIAM PARKER GAREY, et al., Plaintiffs, v. JAMES S. FARRIN, P.C., et al., Defendants, Case No. 1:16cv542 (M.D. N.C.), Magistrate Judge L. Patrick Auld of the U.S. District Court for the Middle District of North Carolina granted in part and denied in part the Fox Defendants' Motion to Compel Against Plaintiffs. Alleging violations of the Driver's Privacy Protection Act of 1994 ("DPPA"), James Garey ("J. Garey"), William Garey ("W. Garey"), and Aaron Cruthis ("Original Plaintiffs") initiated a purported class action against a lawyer and various law firms. Shortly thereafter, the Original Plaintiffs filed an amended complaint, which (1) added Amanda Reilly, Adilah McNeil, Charlotte Clevenger ("C. Clevenger"), Andrew Clevenger ("A. Clevenger"), and Justin Brent Blakeslee as Plaintiffs and (2) added various lawyers and law firms as Defendants. The Amended Complaint alleges that each Defendant knowingly obtained, disclosed and used one or more the Plaintiff's protected personal information from a motor vehicle record for the purpose of marketing that the Defendant's legal services without the Plaintiffs' express consent as required by the DPPA. The Amended Complaint seeks injunctive relief, attorney's fees, and $2,500 in liquidated damages per Plaintiff for each instance in which a defendant knowingly obtained or used a plaintiff's protected personal information. The Defendants moved to dismiss the Amended Complaint. As relevant in the case, the Fox Defendants' dismissal motion asserted that the Plaintiffs' theory would unconstitutionally restrict the Fox Defendants' Protected 'Commercial Speech' Interests. In support of this contention, they maintained that the Plaintiffs' theory violates well-established commercial speech precedent. More specifically, they argued that the Plaintiffs' claim fails the intermediate-scrutiny test, under which any prohibitions on protected commercial speech must 'directly advance a substantial governmental interest and be appropriately tailored to that purpose. The Court (per Judge Loretta C. Biggs) denied the the Defendants' various dismissal motions. The Fox Defendants subsequently sought reconsideration of the Dismissal Opinion, contending, inter alia, that it "misconstrued Central Hudson," which sets forth a four-step 'intermediate scrutiny' test to determine whether a regulation of commercial speech is consistent with the First Amendment. Asserting that the Dismissal Opinion erred at step one of the Central Hudson test, theys urged the Court to continue with the Central Hudson analysis" and complete "steps two through four of the Central Hudson test. Thereafter, the Fox Defendants filed a Joint Notice of Constitutional Challenge to Federal Statute. After the Reconsideration Opinion issued, the Court (per the Magistrate Judge) entered a Scheduling Order for the matter. The Scheduling Order imposed a discovery deadline of April 30, 2020. It also established a deadline for filing a motion for class certification of Aug. 31, 2019, which deadline, at the parties' request, the Court in July 2019 enlarged to Oct. 30, 2019. Later that month, the Fox Defendants filed the Motion, seeking to compel responses to multiple interrogatories, requests for production of documents, and requests for admission. In response, the Plaintiffs revised certain of their discovery responses but opposed the Motion as to the remaining discovery requests. The Plaintiffs subsequently moved to amend their Amended Complaint. Although the Amendment Motion envisioned limiting the Plaintiffs' claim to obtaining their personal information, the Second Amended Complaint does not adopt such a limited scope. Rather, it challenges the Defendants' obtaining and using the Plaintiffs' information. Rather than answering the Second Amended Complaint, the Fox Defendants moved to dismiss. They base their dismissal request on the notion that the Plaintiffs lack standing and "failed to plead actual damages in conformity with Rule 9" of the Federal Rules of Civil Procedure. However, the Second Dismissal Motion expresses the Fox Defendants' intent to fully brief and argue their First Amendment defenses if the Plaintiffs' claim survives the motion to dismiss. The matter case comes before the Court on the Fox Defendants' Motion to Compel Against Plaintiffs. The Motion seeks to compel responses to multiple Admission Requests, Interrogatories, and Document Requests: (i) Interrogatories 7 through 11 that comprise the first set of disputed discovery, (ii) Interrogatories 12, 13, 15, 16, and 17, (iii) Interrogatories 14, 18, 19, and 20, as well as to Document Requests 4 through 8, and (iv) Interrogatory 30. Finally, the Fox Defendants seek to be awarded their fees and expenses involved in compelling these responses. Rule 37 makes expense-sifting discretionary when, as here, a motion to compel is granted in part and denied in part. Under the circumstances, Judge Auld concludes that the parties should bear their own expenses. Accordingly, the Judge denied the Fox Defendants' expense-shifting request. Judge Auld concludes that the Second Amended Complaint drops J. Garey and A. Clevenger and their claims, rendering further discovery as to them unnecessary. In addition, the Plaintiffs proposed stipulations, to which the Fox Defendants did not object, that resolve Interrogatories 7-11. Interrogatories 12 and 13 remain relevant to the Fox Defendants' defenses; however, Interrogatories 14-20 and Document Requests 4-8 lack relevance, and Document Requests 4-5 further qualify as unduly burdensome and overbroad. Finally, the Plaintiffs must identify the common and individualized issues of fact in the matter. Based on the foregoing, Judge Auld granted in part and denied in part the Fox Defendants' Motion to Compel as follows: on Jan. 10, 2020, W. Garey, Aaron Cruthis, Amanda Reilly, Adilah McNeil, C. Clevenger, and Justin Brent Blakeslee must (1) serve the specified stipulations to Interrogatories 7-11; (2) serve responses to Interrogatories 12 and 13; and (3) identify each common issue of fact that they contend can be resolved on a classwide basis and each individualized issue of fact that they contend cannot be resolved on a classwide basis. A full-text copy of the Court's Dec. 20, 2019 Memorandum Opinion & Order is available at https://is.gd/ETUC1O from Leagle.com. WILLIAM PARKER GAREY, ON BEHALF OF HIMSELF AND OTHERS SIMARLY SITUATED, Mr. AARON KENT CRUTHIS, ON BEHALF OF HIMSELF AND OTHERS SIMARLY SITUATED, JUSTIN BRENT BLAKESLEE, ADILAH HANEEFAH-KHADI MCNEIL, CHARLOTTE MOFFAT CLEVENGER & BELINDA LEE STEINMETZ, Plaintiffs, represented by ROBERT PEEL HOLMES, IV, WHITE & STRADLEY, PLLC & J. DAVID STRADLEY -- stradley@whiteandstradley.com -- WHITE & STRADLEY, PLLC. JAMES S. FARRIN, P.C., doing business as LAW OFFICES OF JAMES SCOTT FARRIN, MARCARI, RUSSOTTO, SPENCER & BALABAN, P.C., RIDDLE & BRANTLEY, L.L.P, WALLACE PIERCE, PLLC, R. BRADLEY VAN LANINGHAM, doing business as BRADLEY LAW GROUP, JAMES S. FARRIN, DONALD W. MARCARI, SEAN A. COLE, JARED PIERCE, VAN LANINGHAM & ASSOCIATES, PLLC, CHRIS ROBERTS, CRUMLEY ROBERTS, LLP, HARDEE & HARDEE, LLP, CHARLES HARDEE & G. WAYNE HARDEE, Defendants, represented by BRADLEY M. RISINGER -- brisinger@foxrothschild.com -- FOX ROTHSCHILD LLP, JEFFREY R. WHITLEY -- jwhitley@foxrothschild.com -- FOX ROTHSCHILD LLP, MATTHEW NIS LEERBERG -- mleerberg@foxrothschild.com -- FOX ROTHSCHILD LLP & TROY D. SHELTON -- tshelton@foxrothschild.com -- FOX ROTHSCHILD LLP. LANIER LAW GROUP, P.A., Defendant, represented by BRADLEY M. RISINGER, FOX ROTHSCHILD LLP, CHRISTOPHER PATRICK RAAB, CAUDLE & SPEARS, P.A., HAROLD CRAIG SPEARS, CAUDLE & SPEARS, P.A., JEFFREY R. WHITLEY, FOX ROTHSCHILD LLP, MATTHEW NIS LEERBERG, FOX ROTHSCHILD LLP & TROY D. SHELTON, FOX ROTHSCHILD LLP. LISA LANIER, Defendant, represented by BRADLEY M. RISINGER, FOX ROTHSCHILD LLP, HAROLD CRAIG SPEARS, CAUDLE & SPEARS, P.A., JEFFREY R. WHITLEY, FOX ROTHSCHILD LLP, MATTHEW NIS LEERBERG, FOX ROTHSCHILD LLP & TROY D. SHELTON, FOX ROTHSCHILD LLP. HARDISON & COCHRAN, PLLC & BENJAMIN T. COCHRAN, Defendants, represented by REID CALWELL ADAMS, Jr., WOMBLE BOND DICKINSON (US) LLP, BRADLEY M. RISINGER, FOX ROTHSCHILD LLP, JEFFREY R. WHITLEY, FOX ROTHSCHILD LLP, JONATHAN REID REICH, WOMBLE BOND DICKINSON (US) LLP & TROY D. SHELTON, FOX ROTHSCHILD LLP. TED A. GREVE & ASSOCIATES, P.A., TED A. GREVE, LAW OFFICES OF MICHAEL A. DEMAYO, L.L.P. & MICHAEL A. DEMAYO, Defendants, represented by REID CALWELL ADAMS, Jr., WOMBLE BOND DICKINSON (US) LLP, BRADLEY M. RISINGER, FOX ROTHSCHILD LLP & JONATHAN REID REICH, WOMBLE BOND DICKINSON (US) LLP. KATHERINE E. ANDREWS-LANIER, Defendant, represented by HAROLD CRAIG SPEARS, CAUDLE & SPEARS, P.A., BRADLEY M. RISINGER, FOX ROTHSCHILD LLP, JEFFREY R. WHITLEY, FOX ROTHSCHILD LLP & TROY D. SHELTON, FOX ROTHSCHILD LLP. UNITED STATES OF AMERICA, Interested Party, represented by RACHAEL L. WESTMORELAND, UNITED STATES DEPARTMENT OF JUSTICE. JUMIO: Settles Biometric Data Privacy Class Action for $7M ---------------------------------------------------------- Chris Burt, writing for BiometricUpdate.com, reports that Jumio has reached a proposed $7 million settlement in a class action lawsuit filed under the Biometric Information Privacy Act (BIPA) of Illinois, for performing facial biometric processes with its NetVerify service, allegedly without meeting the informed consent requirements of the state. Notice of the proposed settlement has been posted online by law firm KCC, in which Jumio vigorously denies that it violated the law. The previously unreported lawsuit applies to state residents whose biometrics, specifically face geometries, were captured by Jumio, its technology, or any parents, subsidiaries, or agents, between December 21, 2013, and December 23, 2019, at which point the company updated its Privacy Policy for Online Services to include special information for Illinois residents. The new information makes explicitly clear its policies for the collection, transmission, storage and retention of biometric information. While Jumio does not perceive any violation of the law, the company acknowledges the importance of biometric data privacy, VP of Global Marketing Dean Nicolls told Biometric Update in a telephone interview. For that reason, notwithstanding that the role of Jumio's business customers is a separate matter, legally speaking, the company wanted to do right by its customers and their end users, leading to the settlement. Nicolls draws an analogy to the data controller and data processor roles articulated in the EU's GDPR, which makes the responsibilities of each somewhat clearer than they are in BIPA. The matter is complicated not just by the differences between states, but also by Jumio offering its technology through an SDK, as most other onboarding companies do, or an API, which leaves more control over messaging, and therefore informed consent for biometrics collection, in the hands of the customer implementing it. "For any of our customers, or really any customers out there that collect biometrics, there are two things that you need to do," he explains. "First you need to update the privacy policy on your website to reflect that they're collecting biometric information for a very specific purpose, which is identity verification. There's more nuance there and they have to contact their attorneys to come up with the right wording, but that's one thing that they need to do. The other part is they need to provide clear opt-out language before the biometric is actually captured." In addition to its privacy policy, Nicolls notes Jumio has updated its SDK to include a specific notice to Illinois residents, and that it is working with its current customers that operate in Illinois to help them make sure any necessary changes are made. "It's something we're going to weather just fine," Nicolls contends. "We actually believe in the principles of BIPA, we believe that people should have choice and they should be able to opt out, and we're doing everything in our power to protect our customers as best we can." Options for potential class members in the settlement of Prelipceanu v. Jumio Corporation are to accept the settlement, exclude themselves from it, object to the settlement, or do nothing. Exclusions and objections must be received by the court by February 26, while acceptances can be received until March 22. BIPA lawsuits have typically targeted employers or consumer-facing companies, rather than their technology partners, as the responsibilities of technology providers under the regulation are not clear, and there is precedence indicating vendors are not liable for BIPA consent violations. Facebook recently settled a BIPA class action for $550 million, in a case that helped establish the low standing requirements for BIPA's procedural violations. Suits filed, dismissed and challenged in court A typical BIPA suit, a potential class action against an employer over the use of a fingerprint biometric time and attendance system without meeting the Act's informed consent requirements, has been dropped. Javier De La Rosa had his request to dismiss the federal court suit against his former employer Choice Hotels International without prejudice granted, Law360 reports. Details of why he has now dropped the suit were not provided, but the dismissal without prejudice means it could be refiled, likely in a different venue. A similar suit has been brought against pharmaceutical packaging company Nosco Inc., according to a separate Law360 article, with a former employee filing in Cook County Circuit Court. WeWork, meanwhile, is seeking a dismissal of the BIPA consent violation suit filed against it in the federal court for the Northern District of Illinois on grounds that the allegation does not show a specific violation, and may not meet the one-year statute of limitations, according to Bloomberg Law. Biometric vending machine company Canteen's parent company Compass Group USA has also had a potential class action suit filed against it for allegedly failing to meet BIPA's informed consent standards, Kiosk Marketplace reports. The suit filed in Cook County Circuit Court claims no data retention or deletion policy was shared by the company. The settlement of its BIPA lawsuit by Facebook in a case that the U.S. Chamber of Commerce claimed could cause "devastating harm" to business could amount to damages of a couple of hundred dollars per user, the Chicago Tribune reports. Attorney Jay Edelson, who represents some plaintiffs, expects a record number of claims to be filed, while another, Paul Geller, estimated 5 to 6 million Facebook users could be included. At 5.5 million users, the settlement would amount to $100 each. "We decided to pursue a settlement as it was in the best interest of our community and our shareholders to move past this matter," said Facebook spokesperson Dina El-Kassaby in a statement. [GN] JUUL LABS: Cooper Suit Moved From N.D. Texas to N.D. California --------------------------------------------------------------- The case captioned Ethan Cooper, on behalf of himself and all others similarly situated v. JUUL LABS INC.; ALTRIA GROUP, INC., Case No. 4:20-cv-00083, was transferred from the U.S. District Court for the Northern District of Texas to the U.S. District Court for the Northern District of California on Feb. 19, 2020. The District Court Clerk assigned Case No. 3:20-cv-01238-WHO to the proceeding. The lawsuit arises from claims for personal injury and product liability. Juul Labs, Inc. is an American electronic cigarette company which spun off from Pax Labs in 2017. It makes the Juul e-cigarette, which packages nicotine salts from leaf tobacco into one-time use cartridges.[BN] The Plaintiff is represented by: Gabe Thomas Vick, Jr., Esq. VICK CARNEY LLP 111 York Avenue Weatherford, TX 76086 Phone: (817) 596-5533 Email: tvick@vickcarneylaw.com The Defendants are represented by: Andrew D. Bergman, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002-2755 Phone: 713.576.2400 Fax: 713.576.2499 Email: andrew.bergman@arnoldporter.com - and - Russel H. Falconer, Esq. GIBSON, DUNN & CRUTCHER LLP 2001 Ross Avenue, Suite 2100 Dallas, TX 75201 Phone: Telephone: (214) 68-3170 Facsimile: (214) 571-2958 Email: rfalconer@gibsondunn.com LENNAR CORP: Quirk Seeks Overtime Pay for Construction Managers --------------------------------------------------------------- KEVIN QUIRK v. LENNAR CORPORATION and LENNAR HOMES, LLC, Case No. 8:20-cv-00174-SDM-TGW (M.D. Fla., Jan. 23, 2020), seeks to recover from the Defendants unpaid overtime wages and liquidated damages owed to the Plaintiff and all other current and former employees--construction managers/superintendents--who are similarly situated, pursuant to the Fair Labor Standards Act of 1938. The Plaintiff was employed by the Defendants as a Construction Manager (a/k/a Superintendent) from June 20, 2018, to Jan. 2, 2020. During his employment with the Defendants, the Plaintiff alleges that he worked an average of 50 hours per work week, but was not compensated at a rate of time and one-half his regular rate of pay for all hours worked over 40 in a work week. The Plaintiff and other Construction Managers/Superintendents are classified by the Defendants as exempt under the FLSA and are paid a salary based on a 40-hour work week, says the complaint. Lennar is a home construction and real estate company based in Miami, Florida.[BN] The Plaintiff is represented by: Gregory A. Owens, Esq. Wolfgang M. Florin, Esq. FLORIN GRAY BOUZAS OWENS, LLC 16524 Pointe Village Drive, Suite 100 Lutz, FL 33558 Telephone: (727) 254-5255 Facsimile: (727) 483-7942 E-mail: greg@fgbolaw.com wolfgang@fgbolaw.com LIVE NATION: Wellinger FLSA Suit Removed to C.D. California ----------------------------------------------------------- The case captioned George Wellinger, individually and on behalf of all others similarly situated v. LIVE NATION WORLDWIDE, INC.; LIVE NATION ENTERTAINMENT, INC.; and DOES 1 through 50, inclusive, Case No. 19STCV15283, was removed from the California Superior Court, Los Angeles County, to the U.S. District Court for the Central District of California on Feb. 19, 2020. The District Court Clerk assigned Case No. 2:20-cv-01612 to the proceeding. The initial complaint asserted three causes of action against the Defendants for: (1) Failure to Pay Overtime Wages under the Fair Labor Standards Act; (2) Restitution and Injunction under the California Unfair Competition Law for FLSA violations; and (3) Failure to Pay Overtime, provide meal and rest periods and pay premiums, provide accurate itemized wage statements, pay all final wages, keep accurate payroll records of hours worked, and pay overtime and earned commission twice per month, all under the California Private Attorneys General Act.[BN] The Defendants are represented by: Elena R. Baca, Esq. Chris A. Jalian, Esq. PAUL HASTINGS LLP 515 South Flower Street, Twenty-Fifth Floor Los Angeles, CA 90071-2228 Phone: (213) 683-6000 Facsimile: (213) 627-0705 Email: elenabaca@paulhastings.com chrisjalian@paulhastings.com LOANME INC: Cal. App. Upholds Dismissal of Smith Suit ----------------------------------------------------- The Court of Appeals of California for the Fourth District, Division Two, affirmed the trial court's dismissal of the case, JEREMIAH SMITH, Plaintiff and Appellant, v. LOANME, INC., Defendant and Respondent, Case No. E069752 (Cal. App.). Smith filed a class action complaint against LoanMe, alleging that LoanMe violated the California Invasion of Privacy Act. Smith alleged that LoanMe violated section 632.7 by recording a phone call with Smith without his consent while he was using a cordless telephone, and he claimed that a "beep tone" at the beginning of the call did not constitute sufficient notice that LoanMe was recording the call. LoanMe is in the business of providing personal and small business loans. Smith's wife is the borrower on a loan from LoanMe. In October 2015, an employee of LoanMe called the telephone number provided to LoanMe by Smith's wife to discuss the loan. Smith answered the call on a cordless telephone and informed the caller that his wife was not available, and the call then ended. The call lasted approximately 18 seconds. LoanMe recorded the call. Three seconds into the call LoanMe "caused a 'beep tone' to sound." It is LoanMe's practice to cause a beep tone to play at regular 15 second intervals on all of its outbound calls. LoanMe did not orally advise Smith that the call was being recorded. Smith also did not sign a contract granting LoanMe consent to record calls. In September 2016, Smith filed a class action complaint against LoanMe, alleging that LoanMe recorded phone calls without consent in violation of section 632.7 and seeking statutory damages and injunctive relief. On the parties' stipulation, the trial court ordered a bifurcated bench trial to resolve the "the beep tone issue." After listening to a recording of the phone call, the trial court concluded that the beep tone provided Smith sufficient notice under section 632.7 that the call was being recorded and that Smith implicitly consented to being recorded by remaining on the call. The trial court entered judgment against Smith. The Appellate Court requested supplemental briefing on the issue of whether section 632.7 applies to the recording of a phone call by a participant in the phone call or instead applies only to recording by third party eavesdroppers. It asked that the briefs address the question in light of the plain language of section 632.7, its legislative history, and its relationship with other provisions of the Privacy Act. No California appellate opinion addresses the issue. Several federal district courts in California have analyzed the issue, and they are not in agreement. The Appellate concludes that the plain language of section 632.7 clearly and unambiguously applies to third party eavesdroppers alone, not to the parties to cellular and cordless phone calls. Section 632.7 prohibits only third party eavesdroppers from intentionally recording telephonic communications involving at least one cellular or cordless telephone. Conversely, section 632.7 does not prohibit the participants in a phone call from intentionally recording it. Consequently, Smith failed to state a claim against LoanMe under section 632.7, the Appellate Court opines. The legislative history of section 632.7 confirms that interpretation. The Appellate Court must therefore affirm the judgment in favor of LoanMe, because Smith alleges only that LoanMe recorded calls to which LoanMe was a party. For these reasons, the Appellate Court affirmed the trial court's dismissal of Smith's lawsuit. A full-text copy of the Appellate Court's Dec. 20, 2019 Opinion is available at https://is.gd/ZbjXY2 from Leagle.com. Law Offices of Todd M. Friedman, Todd M. Friedman and Adrian R. Bacon for Plaintiff and Appellant. Finlayson Toffer Roosevelt & Lilly, Michael R. Williams and Jared M. Toffer for Defendant and Respondent. MAKES CENTS: Faces Fabricant Suit Alleging Invasion of Privacy -------------------------------------------------------------- Terry Fabricant, individually and on behalf of all others similarly situated v. MAKES CENTS CAPITAL LLC, and DOES 1 through 10, inclusive, and each of them, Case No. 2:20-cv-01496 (C.D. Cal., Feb. 14, 2020), alleges that the Defendant negligently contacted the Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act, and related regulations, specifically the National Do-Not-Call provisions, thereby, invading the Plaintiff's privacy. According to the complaint, the Defendant used an "automatic telephone dialing system" to place its call to the Plaintiff seeking to solicit its services. The Defendant's calls constituted calls that were not for emergency purposes. The Defendant did not possess the Plaintiff's "prior express consent" to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on its cellular telephone. Based on the Plaintiff's experiences of being called by the Defendant after requesting they stop calling, the Defendant failed to establish and implement reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under the TCPA, says the complaint. The Plaintiff is a natural person residing in Los Angeles County, California. Makes Cents Capital LLC is a business finance company.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com MCGRAW-HILL: Independent Book Retailers' Suit Asserts Monopoly -------------------------------------------------------------- Campus Book Company, Inc., BJJ Corporation, CBSKY, Inc., CBSNM, Inc., and RENTTEXT.COM, Inc. each individually and as representatives of all others similarly situated, Plaintiffs, v. McGraw-Hill Global Education Holdings, LLC, Pearson Education, Inc., Cengage Learning, Inc., Barnes & Noble Education, Inc., Barnes & Noble College Booksellers, LLC, Follett Higher Education Group, Inc. and Educational Publishers Enforcement Group,, Defendants, Case No. 20-cv-00102 (D. Del., January 22, 2020), seeks a permanent injunction preventing the Defendants from continuing anticompetitive effects and damages pursuant to Section 1 of the Sherman Act, the Clayton Act and various state anti-trust laws. Defendants are publishers and book retailers who are alleged of monopolizing the collegiate textbook market and in the process eliminate all substitute products and retail competitors, including the significant secondary market for course materials. Plaintiffs are retailers who sell and rent course materials to students at independent collegiate retail stores located around colleges and universities throughout the United States and also online. [BN] Plaintiff is represented by: John C. Phillips, Jr.. Esq. David A. Bilson, Esq. PHILLIPS, GOLDMAN, MCLAUGHLIN & HALL P.A. 1200 North Broom Street Wilmington, DE 19806 Telephone: (302) 655-4200 Facsimile: (302) 655-4210 Email: jcp@pgmhlaw.com dab@pgmhlaw.com - and - Nicole Williams, Esq. Mackenzie S. Wallace, Esq. THOMPSON & KNIGHT LLP 1722 Routh Street, Suite 1500 Dallas, TX 75201 Telephone: (214) 969-1700 Facsimile: (214) 969-1751 Email: Nicole.Williams@tklaw.com Mackenzie.Wallace@tklaw.com - and - Stuart Cochran, Esq. L. Kirstine Rogers, Esq. STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Road, Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 Email: stuart@sgc.law krogers@sgc.law MDL 2836: Court Dismisses Zetia (Ezetimibe) Antitrust Suit ---------------------------------------------------------- In the case, In re ZETIA (EZETIMIBE) ANTITRUST LITIGATION, MDL No. 2:18-md2836 (E.D. Va.), Judge Rebecca Beach Smith of the U.S. District Court for the Eastern District of Virginia, Norfolk Division, (i) granted the Merck Defendants' Motion to Dismiss the Direct Purchaser Plaintiffs (DPPs)' and the Retailer Plaintiffs' Amended Complaints; and (ii) granted in part and denied in part the Glenmark Defendants' Motion to Dismiss the Direct Purchaser Plaintiffs (DPPs)' and the Retailer Plaintiffs' Amended Complaints. The matters before the Court are Motions to Dismiss filed by the Merck Defendants and the Glenmark Defendants against the DPPs' and the Retailer Plaintiffs' Amended Complaints. The Merck Defendants' Motion to Dismiss New Claims and Allegations in Direct Purchaser Plaintiffs' Amended Consolidated Class Action Complaint, to which the Glenmark Defendants joined in, seeks dismissal of the DPPs' Amended Complaint to the extent DPPs seek to recover under federal law for alleged overcharges on purchases made from any entity other than Glenmark or Merck. The Glenmark Defendants' Motion to Dismiss Retailer Plaintiffs' Amended Complaints, seeks dismissal of the Retailer Plaintiffs' Amended Complaints in their entirety because they are founded on the existence of an implausible conspiracy involving Merck, Glenmark, and Par that is not supported by well-pled factual allegations, or, in the alternative, dismissal for lack of standing insofar as they seek damages flowing from the Retailers Plaintiffs' purchases of generic Zetia from Par, as well as dismissal of the Retailer Plaintiffs' per se claim in Count One with prejudice consistent with the Court's Aug. 9, 2019 opinion. Finally, the Merck Defendants' Motion to Dismiss New Claims and Allegations in Retailers' Amended Complaints and to Strike Immaterial Reference to Permanent Injunctive Relief, seeks dismissal of the Retailers' Amended Complaints to the extent they allege a three-way conspiracy among Merck, Glenmark, and Par, and to the extent they seek damages under the Sherman Act from Merck and Glenmark for alleged overcharges Retailers paid to Par, and requests the court to strike the references to 'permanent injunctive relief' in the introductory sections of Retailers' Amended Complaints. In order to overcome a motion to dismiss, a plaintiff alleging an antitrust conspiracy must submit pleadings that raise a reasonable expectation that discovery will reveal evidence of illegal agreement. A conclusory allegation of agreement at some unidentified point does not show an illegal agreement. While the court must construe factual allegations in the light most favorable to the plaintiff, it does not assume the validity of the plaintiffs' legal conclusions. On Aug. 29, 2019, these matters were referred to U.S. Magistrate Judge Douglas E. Miller pursuant to the provisions of 28 U.S.C. Section 636(b) and Federal Rule of Civil Procedure 72(b), to conduct necessary hearings, including the hearing that was held on Sept. 23, 2019, and to submit to the undersigned district judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motions. By copy of the Magistrate Judge's Report and Recommendation ("R&R"), filed on Oct. 15, 2019, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge within 14 days from the date of service of the R&R on the objecting party. Two sets of objections were filed on Oct. 28, 2019: the Retailer Plaintiffs' Objections to Report and Recommendation Regarding Motions to Dismiss; and Objections by Direct Purchaser Class Plaintiffs to the Report and Recommendation Granting Defendants' Motions to Dismiss Direct Purchaser Class Plaintiffs' Amended Consolidated Class Action Complaint. On Nov. 12, 2019, the counsel for the Merck Defendants and the Glenmark Defendants filed the Defendants' Response to Plaintiffs' Objections to the Magistrate Judge's Report and Recommendation Granting Defendants' Motions to Dismiss New Claims and Allegations in Plaintiffs' Amended Complaints. Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the Court, having reviewed the record in its entirety, makes a de novo determination of those portions of the R&R to which the Defendants have specifically objected. Judge Smith disagrees with the R&R's conclusion that Par lacked the capacity to engage in the concerted action that is at the core of this matter. Accordingly, Judge Smith sustains the Retailers' and DPPs' Objections to the conclusion of Part III.A of the R&R, and denies the Motions to Dismiss insofar as they seek dismissal of those parts of the Amended Complaints that refer to a three-way conspiracy between Merck, Glenmark, and Par. However, Judge Smith does not agree with the entirety of the Plaintiffs' reasoning, particularly with regards to its reading of the R&R's treatment of the Copperweld case. Under applicable Supreme Court and Fourth Circuit precedent, the DPPs and the Retailer Plaintiffs are barred from pursuing claims against Merck and Glenmark for damages resulting from their purchases of ezetimibe from Par, because they were not direct purchasers from Merck or Glenmark with respect to those purchases. Accordingly, Judge Smith overruled the objections to Part III.B of the R&R, and dismisses the claims in the Retailer Plaintiffs' and DPPs' Amended Complaints insofar as they seek damages from Merck and Glenmark stemming from purchases made from Par. The R&R also recommends that the per se Section 1 claim in Count One of the Retailers' Amended Complaints should be dismissed with prejudice, and that the reference to "permanent injunctive relief" should be stricken from the Retailers' Amended Complaints. In their Objection, the Retailer Plaintiffs incorporate their previous objections to dismissing the per se claim, contained in ECF No. 235, for purposes of preserving their appellate rights, but add no new arguments. The Retailer Plaintiffs do not object to striking the "permanent injunctive relief" language from their Amended Complaints. The court previously ordered that the per se Section 1 claim in the Retailer Plaintiffs' original complaints be dismissed with prejudice in its Opinion of Aug. 9, 2019. For the reasons stated in the R&R and in the Court's Opinion of Aug. 9, 2019, Judge Smith dismisses with prejudice the per se Section 1 claim in Count One of the Retailers' Amended Complaints, and strikes the reference to permanent injunctive relief in paragraph 1 of Retailers' Amended Complaints. Judge Smith, having reviewed the record in its entirety, having examined the Objections to the R&R, and having made de novo findings with respect thereto, sustained in part and overruled in part the Retailer Plaintiffs' Objections and the Direct Purchaser Plaintiffs' Objections. Specifically, Judge Smith adopted the R&R's recommendations and conclusions, with the exception of the alternative legal reasoning in Part III.A. Accordingly, the Glenmark Defendants' and Merck Defendants' Motions to Dismiss are granted, as set forth in the Memorandum Opinion and Order. However, Judge Smith denied Glenmark's request that the Court dismisses the Retailer Plaintiffs' Amended Complaints in their entirety because they are founded on the existence of an implausible conspiracy involving Merck, Glenmark, and Par. Further, Judge Smith dismissed with prejudice the per se Section 1 claim in Count One of the Retailers' Amended Complaints, and strikes the reference to "permanent injunctive relief" in paragraph 1 of the Retailers' Amended Complaints. In sum, Judge Smith finds that the Amended Complaints plead sufficient facts to establish an antitrust conspiracy between Par, Glenmark, and Merck with regard to the antitrust harm alleged, but finds that the Retailer Plaintiffs and DPPs are barred under Illinois Brick from suing Merck and Glenmark for damages resulting from their purchases from Par. The Plaintiffs' claims will proceed against Merck and Glenmark as outlined in the court's prior Opinions and in the Memorandum Opinion and Order. A full-text copy of the District Court's Dec. 20, 2019 Memorandum Opinion & Order is available at https://is.gd/VjoQLP from Leagle.com. FWK Holdings, LLC, Plaintiff, represented by William Hanes Monroe, Jr. -- bill@glasserlaw.com -- Glasser & Glasser PLC, Alberto Rodriguez, Sperling & Slater, P.C., pro hac vice, Bradley Joseph Vettraino, Hagens Berman Sobol Shapiro LLP, pro hac vice, David Paul Germaine -- dgermaine@vaneklaw.com -- Sperling & Slater, P.C., pro hac vice, Debra Josephson, Roberts Law Firm, P.A., pro hac vice, Ethan Janus Barlieb, Kessler Topaz Meltzer & Check LLP, pro hac vice, Hannah Schwarzschild -- hannahs@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Jeffrey Robert Moran -- jmoran@vaneklaw.com -- Vanek, Vickers & Masini, P. C., pro hac vice, John Paul Bjork -- jbjork@vaneklaw.com -- Sperling & Slater, P.C., pro hac vice, Joseph Howard Meltzer -- jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice, Joseph Michael Vanek -- jvanek@vaneklaw.com -- Sperling & Slater, P.C., pro hac vice, Karen Sharp Halbert, Roberts Law Firm, P.A., pro hac vice, Kip Andrew Harbison, Glasser & Glasser PLC, Kristen Anne Johnson -- kristenj@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Marc Christian Greco -- marcg@glasserlaw.com -- Glasser & Glasser PLC, Matthew Charles Weiner -- matt@hilliardshadowenlaw.com -- Hilliard & Shadowen LLP, pro hac vice, Michael Andrew Glasser -- michael@glasserlaw.com -- Glasser & Glasser PLC, Richard Steven Glasser, Glasser & Glasser PLC, Sarah Elizabeth DeLoach, Roberts Law Firm, P.A., pro hac vice, Sharon Robertson, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Stephanie Smith, Roberts Law Firm, P.A., pro hac vice, Steve Shadowen -- steve@hilliardshadowenlaw.com -- Hilliard & Shadowen LLP, pro hac vice, Terence Scott Ziegler -- tziegler@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice, Thomas Matthew Sobol -- tom@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & William R. Olson, Roberts Law Firm, P.A, pro hac vice. CESAR CASTILLO, INC., individually and on behalf of all those similarly situated, Plaintiff, represented by Linda Phyllis Nussbaum -- lnussbaum@nussbaumpc.com -- Nussbaum Law Group P. C., pro hac vice, Jayne Arnold Goldstein, Shepherd, Finkelman, Miller & Shah, LLP, pro hac vice, Kip Andrew Harbison, Glasser & Glasser PLC, Marc Christian Greco, Glasser & Glasser PLC, Michael Andrew Glasser, Glasser & Glasser PLC, Richard Steven Glasser, Glasser & Glasser PLC & William Hanes Monroe, Jr., Glasser & Glasser PLC. Rochester Drug Cooperative, Inc., on behalf of itself and all others similarly situated, Plaintiff, represented by Barry Steven Taus -- btaus@tcllaw.com -- Taus, Cebulash & Landau LLP, pro hac vice, David Francis Sorensen -- dsorensen@bm.net -- Berger & Montague, PC , pro hac vice, Peter Russell Kohn -- pkohn@faruqilaw.com -- Faruqi & Faruqi, LLP, pro hac vice, William Hanes Monroe, Jr., Glasser & Glasser PLC, Archana Tamoshunas -- atamoshunas@tcllaw.com -- Taus, Cebulash & Landau LLP, pro hac vice, Bradley Joseph Demuth -- bdemuth@faruqilaw.com -- Faruqi & Faruqi, LLP, pro hac vice, Ellen Toporoff Noteware, Berger Montague, PC, pro hac vice, Joseph Thomas Lukens -- jlukens@faruqilaw.com -- Faruqi & Faruqi, LLP, pro hac vice, Karissa Joelle Sauder, Berger Montague, PC, pro hac vice, Kevin Landau -- klandau@tcllaw.com -- Taus, Cebulash & Landau LLP, pro hac vice, Kip Andrew Harbison, Glasser & Glasser PLC, Marc Christian Greco, Glasser & Glasser PLC, Michael Andrew Glasser, Glasser & Glasser PLC, Nicholas Urban, Berger Montague, PC, pro hac vice, Richard Steven Glasser, Glasser & Glasser PLC & Zachary David Caplan -- zcaplan@bm.net -- Berger & Montague, PC , pro hac vice. Sergeants Benevolent Association Health & Welfare Fund, on behalf of itself and all others similarly situated, Plaintiff, represented by Christine A. Williams, DurretteCrump PLC, Kevin Jermone Funk, Durrette Arkema Gerson & Gill PC, Wyatt B. Durrette, Jr., Durrette Arkema Gerson & Gill PC, Adam Eric Polk, Girard Sharp LLP, pro hac vice, Christina Hildegard Connolly Sharp, Girard Gibbs LLP, pro hac vice & James Arthur Cales, III, Furniss Davis Rashkind & Saunders PC. Merck & Co., Inc., Merck Sharp & Dohme Corp., Schering-Plough Corp., Schering Corp. & MSP Singapore Co. LLC, Defendants, represented by Stephen Edward Noona, Kaufman & Canoles, P.C., Ashley Elizabeth Johnson, Gibson Dunn & Crutcher LLP, pro hac vice, Caeli Anne Higney, Gibson, Dunn & Crutcher LLP, pro hac vice, Christopher Dean Dusseault -- CDusseault@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice, Deborah Lynn Stein, Gibson Dunn & Crutcher LLP, pro hac vice, Eric Jonathan Stock -- estock@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice, Jennifer Kirsten Bracht, Gibson Dunn & Crutcher LLP, pro hac vice, Jennifer Laura Greenblatt, Goldman Ismail Tomaselli Breenan & Baum LLP, pro hac vice, Marissa Blair Moshell, Gibson Dunn & Crutcher LLP, pro hac vice, Samuel Grant Liversidge -- sliversidge@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Tarek Ismail, Goldman Ismail Tomaselli Breenan & Baum LLP, pro hac vice, Timothy Patrick Best, Gibson Dunn & Crutcher LLP, pro hac vice & Veronica Smith Lewis, Gibson Dunn & Crutcher LLP, pro hac vice. Glenmark Pharmaceuticals, Ltd. & Glenmark Generics Inc., USA, Defendants, represented by James Kevin Fee, Morgan Lewis Bockius LLP, Dustin Mitchell Paul, Vandeventer Black LLP, Francis A. DeSimone, Morgan Lewis & Bockius LLP, pro hac vice, Jason Z. Pesick, Winston & Strawn LLP, pro hac vice, Jennifer Lynn Eaton, Vandeventer Black LLP, Jessica Johnston Taticchi, Morgan Lewis & Bockius LLP, pro hac vice, Mark J. Fanelli, Morgan Lewis & Bockius LLP, pro hac vice, Melina Rose DiMattio, Morgan Lewis & Bockius LLP, pro hac vice, Richard Brendan Fee, Morgan Lewis & Bockius LLP, pro hac vice, Richard Hooper Ottinger, Vandeventer Black LLP, Stacey Anne Mahoney -- stacey.mahoney@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice, Steven Andrew Reed, Morgan Lewis & Bockius LLP, pro hac vice, Teri Josie Diaz, Morgan Lewis Bockius LLP & Zachary Mills Johns, Morgan Lewis & Bockius LLP, pro hac vice. Par Pharmaceutical, Inc., Defendant, represented by John Marcus McNichols, Williams & Connolly LLP, Kathryn Jordan Mims, White & Case LLP, Benjamin Mordecai Greenblum, Williams & Connolly LLP, pro hac vice, David Alan Forkner, Williams & Connolly LLP, pro hac vice & Eric Grannon -- egrannon@whitecase.com -- White & Case LLP, pro hac vice. Zydus Pharmaceuticals (USA) Inc., Interested Party, represented by Donald Charles Schultz, Crenshaw Ware & Martin PLC. Apotex USA, Inc. and Apotex Corp., Interested Party, represented by David Neil Ventker, Ventker, Henderson, PLLC, Brian Sodikoff, Katten Muchin Rosenman LLP, pro hac vice & Guylaine Hache, Katten Muchin Rosenman LLP, pro hac vice. MEDICAL CENTER: Justices Hear Arguments in Hospital Liens Case -------------------------------------------------------------- Greg Land, writing for Law.com, reports that lawyers battling over claims that a Columbus hospital routinely violates the law by filing inflated liens against uninsured accident victims were peppered with questions by Georgia's Supreme Court justices pondering whether the use of the standardized billing rates is unreasonable and, if so, whether a class action is the proper remedy. The plaintiffs -- four former patients of The Medical Center -- argue that the hospital's use "chargemaster" rates for billing uninsured patients at rates that are higher than what other patients are charged is a violation of Georgia's hospital lien statute, which allows providers to bill for "reasonable" charges. But the chargemaster rates bear no relation to the actual costs billed to insurers or government payers, and are particularly damaging to uninsured patients whose ability to recover is affected by the limits of a tortfeasors' coverage, and whose access to often badly needed funds is blocked by the liens, the plaintiffs' lawyers said. Lawyers for The Medical Center argue that its liens comport with the law, and that hospitals around the country routinely base their bills on their own chargemasters. The hospital also argues that an opinion allowing the class to be certified should be reversed because of the varying circumstances surrounding each patient's treatment. Medical Center attorney William Withrow Jr. of Troutman Sanders had scarcely begun his argument when Chief Justice Harold Melton stopped him on Feb. 4. "Is the chargemaster reasonable?" asked Melton, positing a "two-step procedure" whereby that issue is resolved before class certification is addressed. Withrow said the relevance of the chargemaster has dissipated as the litigation progressed, and that the plaintiffs "want some sort of declaration of what reasonableness would be." Melton expressed confusion, noting the hospital's defense has been that it relied on the chargemaster. Most patients don't pay chargemaster rates, said Withrow, but the hospital believes those rates are reasonable. But "that's not what the case turns on now," Withrow said. "That's still very much in the air," Melton countered. Justice Charlie Bethel asked whether a class could be certified that included everyone who underwent the same treatment, using a hernia operation as an example. No, Withrow said, because the patients and their circumstances are all different. Justice David Nahmias asked why the reasonableness question couldn't be answered. "As I recall, the hospital's position was that its chargemaster rate is reasonable," he said. Is that still true "in every single case?" The question must be asked on a case-by-case basis, said Withrow, whose team includes firm partner Lindsey Mann and Paul Ivey Jr., Robert "Cal" Martin and Lauren Dimitri of Hall Booth Smith in Columbus. "Our costs will vary," he said, noting that there is no evidence in the record indicating how many people pay chargemaster rates. Ivey then rose to address the fraud claims, arguing that the lien statute allows a hospital to file a "placeholder" lien to make sure it gets paid, and works in conjunction with another portion of the law that requires a hospital to perfect the lien by providing notice to the patient and any insurer as to how much it will charge. If the court allows uninsured plaintiffs to collect damages for medical bills paid by others' insurance, it will "legislate a windfall" in violation of the law's intent, he said. Melton asked whether a hospital could be accused of fraud for charging rates it knows will not actually be paid, no matter how "wild." Ivey responded the rates are set by third-party vendors. The plaintiffs are represented by Frank Lowrey IV, Michael Terry and Michael Baumrind of Bondurant Mixson & Elmore and Charles and Austin Gower of Columbus' Charles A. Gower P.C. Lowery disputed that the reasonableness of the chargemaster rates are no longer central to the case. "There no question that the lien has to be for a reasonable amount," he said, otherwise it defeats the whole purpose of the law. Plaintiffs hit with exorbitant liens suffer an "immediate impact," and can't unlock a settlement until the lien is satisfied, he said. Nahmias questioned whether a hospital making a claim for more than most patients pay amounted to racketeering, and compared the practice to a car dealership that posts suggested retail prices "that nobody ever pays." In this case, Lowrey said, the hospital is charging its uninsured patients more simply because they're uninsured. Bethel noted that allowing those who have insurance and can afford health care to help carry the weight of those who cannot is a commonplace practice to help "smooth out the curve" of cost. "They can't smooth it out on the backs of uninsured" patients, Lowrey said. Nahmias again returned to how a reasonable rate schedule would be crafted. "Your complaint is that the chargemaster is a blunderbuss," he said. "You want to exchange it for another blunderbuss." [GN] MERRY MAIDS: Averts Home-Cleaners' Wage Class Action in Calif. -------------------------------------------------------------- Kathleen Dailey, writing for Bloomberg Law, reports that Merry Maids and two related franchisors extricated themselves from a wage and hour class action brought by over 180 home-cleaners in California, after a California federal judge ruled they couldn't be held liable in light of a recent Ninth Circuit opinion. The franchisors can't be held liable under an ostensible agency theory following the Oct. 2019 decision in Salazar v. McDonald's Corp.. The court here had previously decided that they weren't joint employers, either, so there's no longer any viable theory of liability, the U.S. District Court for the Eastern District of California said Jan. 31. [GN] NEW MEXICO: Court Denies Stay Bids in Duran Suit ------------------------------------------------ In the case, DWIGHT DURAN et al., Plaintiffs, v. MICHELLE LUJAN GRISHAM et al., Defendants, Civ. No. 77-721 KK/SCY (D. N.M.), Magistrate Judge Kirtan Khalsa of the U.S. District Court for the District of New Mexico denied the Motions to Stay and Terminate filed by Messrs. Abraham Piedra, Leo Duran, David Peterson, Carnell Hunnicutt, Chris Williams, Jerry Kame, Erminio Acosta, James Ruiz, Ken Cordova, Michael Clark, Aaron Feeney, Shane Harrison, Christopher Perez, Marvin Riley, Frank Chavez, Fredrick Williams, Davis Wilson, Gilbert Rhodes, Emanuelu Tunoa, and Guy Young. On Sept. 5, 2019, the Court entered an Order Granting Preliminary Approval of Class Action Settlement Agreement, and Approving and Directing the Issuance of Notice to Plaintiff Class Members. In it, the Court ordered the Defendants to post the parties' Revised Settlement Agreement ("RSA") and an approved Notice to Class Members in specified locations in every New Mexico Corrections Department ("NMCD") facility from Sept. 24, 2019 to Dec. 23, 2019. It further ordered any class member wishing to object to the proposed settlement to submit his or her objections by Dec. 23, 2019. In a subsequent order, the Court set a final hearing regarding whether the proposed settlement should be approved for Feb. 3, 2020. Numerous class members have since filed objections to the RSA. In addition, the Movants filed the Motions to Stay and Terminate presently before the Court. In their motions, the Movants ask the Court to: (a) stay all proceedings in the case; (b) terminate all the current counsel for the Plaintiff class; and, (c) terminate the RSA. In support of these requests, the Movants contend that the class counsel have conspired with the Defendants to illegally terminate the overcrowding restrictions in the consent decree entered in the case on Sept. 20, 1991, without the class members' consent. They further argue that the RSA is illegal because it conflicts with the New Mexico Corrections Population Control Act ("CPCA"). Finally, the Movants contend that the Notice to the Plaintiff Class Members omits salient facts and misstates the law, and that the class counsel have not adequately explained the RSA to them. Magistrate Judge Khalsa holds that the Movants are mistaken in asserting that the PLRA's termination provisions do not apply to the overcrowding restrictions in the 1991 consent decree. This mistake, in turn, undercuts their argument that the class counsel conspired with the Defendants to illegally terminate the overcrowding restrictions. The Movants are also mistaken in arguing that the RSA violates the CPCA. Far from conflicting with the RSA, the CPCA actually provides a mechanism the Defendants may use to reduce excessive prisoner population and thereby remain in compliance with the RSA's cap. Certainly, the RSA in no way purports to override or abrogate the CPCA's requirements. Also unavailing are the Movants' various arguments regarding the adequacy of the information the class counsel has provided to the Plaintiff class about the RSA. The Movants have failed to present any evidence or argument that would call into question the Court's prior approval of the notice and notice procedures. Their requests for additional procedures are simply not practicable given the size and fluidity of the class and the multiple correctional facilities at issue. In short, the Movants' contention that class counsel betrayed them by entering into the RSA is based entirely on misconceptions and unreasonable expectations. Magistrate Judge Khalsa advises the class members generally and the Movants specifically that, until further Order of the Court, the Court will only entertain motions brought on behalf of one or more class members in the action if they are filed by the class counsel. The Motions filed by individual class members will be summarily denied. Notwithstanding the foregoing, Magistrate Judge Khalsa recognizes that: (a) the individual class members were entitled to file objections to the RSA between Sept. 24, 2019 and Dec. 23, 2019; (b) the Movants' Motions to Stay and Terminate were filed during that time period; and, (c) portions of the motions can be construed as objections to the RSA. As such, he will consider the Movants' Motions to Stay and Terminate in deciding whether to finally approve the RSA, to the extent that the motions can be construed as objections to the agreement. Magistrate Judge Khalsa denied the Motions to Stay and Terminate filed by Messrs. Piedra, Duran, Peterson, Hunnicutt, Chris Williams, Kame, Acosta, Ruiz, Cordova, Clark, Feeney, Harrison, Perez, Riley, Chavez, Fredrick Williams, Wilson, Rhodes, Tunoa, and Young. A full-text copy of the Court's Jan. 29, 2020 Order is available at https://is.gd/l9pGcf from Leagle.com. Dwight Duran, Plaintiff, represented by Alexandra Freedman Smith, Law Office of Alexandra Freedman Smith, LLC, David C. Fathi, ACLU National Prison Project, pro hac vice, Katherine Loewe, Law Firm of Ryan J. Villa, Mark H. Donatelli, Rothstein Law Firm, Nicholas T. Davis -- Nick.Davis@tklaw.com -- Law Office of Philip B. Davis, Peter Cubra, Law Office of Peter Cubra & Philip B. Davis, Philip B. Davis, Attorney at Law. Susana Martinez, Governor, Defendant, represented by Jennifer Saavedra, New Mexico Attorney General's Office, Mark F. Swanson, New Mexico Attorney General, Olga Serafimova, Office of the Attorney General, Rebecca C. Branch, New Mexico Attorney General's Office, David W. Arnold, Nathan & Roberts, M. Victoria Amada, Office of the Attorney General & Vincent M. Nathan, Nathan & Roberts. OCWEN FINANCIAL: Powell Plaintiffs Can File 2nd Amended Complaint ----------------------------------------------------------------- The United States District Court for the Southern District of New York has granted plaintiffs in the case, Ronald E. Powell et al., Plaintiffs, v. Ocwen Financial Corporation et al., Defendants. No. 1:18-cv-01951 (VSB) (SDA). (S.D.N.Y.), leave to file a second amended complaint. Plaintiffs Ronald E. Powell, Robert O'Toole, Robert Wilson, Brian Jordan, Donald G. Schaper and William R. Seehafer, as Trustees of The United Food & Commercial Workers Union & Employers Midwest Pension Fund (the "UFCW Plan") commenced the purported class action under the Employee Retirement Income Security Act of 1974 ("ERISA") against Defendants Ocwen Financial Corporation, Ocwen Loan Servicing, LLC and Ocwen Mortgage Servicing, Inc. (collectively, "Ocwen"); Wells Fargo Bank, N.A. ("Wells Fargo"); Assurant, Inc., Standard Guaranty Insurance Company, American Security Insurance Company, Voyager Indemnity Insurance Company and American Bankers Insurance Company of Florida (collectively, the "Assurant Defendants"); Southwest Business Corporation ("SWBC"); Altisource Residential Corporation; Altisource Asset Management Corporation; HomeSure Services, Inc.; Cross Country Home Services, Inc.; HomeSure of America, Inc.; HomeSure Protection of Virginia, Inc.; Altisource Solutions, Inc.; REALHome Services and Solutions, Inc.; and Altisource Online Auctions, Inc. Plaintiffs' Amended Complaint alleged that Defendants committed misconduct with respect to the management of residential mortgages underlying two trusts in which Plaintiffs' benefit plan invested, i.e., trusts created by American Home Mortgage Investment Corporation ("AHMI Trusts"). In their Amended Complaint, Plaintiffs allege claims under ERISA for breach of fiduciary duty, in violation of 29 U.S.C. Sec. 1105 and 1109, and for prohibited transactions, in violation of 29 U.S.C. Sec. 1106(b). On March 15, 2019, District Judge Broderick granted in part and denied in part various Defendants' motions to dismiss. The motions of Ocwen and Wells Fargo to dismiss the Amended Complaint were converted to motions for summary judgment with respect to the following two issues: (1) whether the underlying mortgages in the AHMI Trusts qualify as "plan assets" of the UFCW Plan; and, if so, (2) whether Ocwen qualifies as a fiduciary of the UFCW Plan. On April 12, 2019, the parties jointly submitted counter-proposals for a discovery and briefing schedule. On April 16, 2019, Judge Broderick approved Plaintiffs' proposal, which called for discovery on the threshold issues. In September 2019, Plaintiffs "concluded" that they own certificates in pooling and servicing agreement ("PSA") trusts and an indenture trust (the "Additional Trusts") for which Ocwen acted as servicer for some or all of the securitized mortgages, but which were not included in the Amended Complaint. In October 2019, Plaintiffs' counsel emailed Defendants' counsel the names of the specific trusts that Plaintiffs sought to add to this case in a proposed amended pleading. Defendants' counsel stated that they opposed the amendment. On October 16, 2019, Plaintiffs filed the instant motion seeking leave to file their proposed Second Amended Complaint (SAC). Defendants filed their opposition to the motion. First, Ocwen and Wells Fargo contend that Plaintiffs have acted with undue delay and dilatory motive in making their motion to amend. However, Plaintiffs have explained their delay, which was precipitated by Plaintiffs' belated discovery of the Additional Trusts, in extensive submissions to the Court. Second, Ocwen and Wells Fargo argue that Plaintiffs' proposed amendments would cause undue prejudice to Defendants due to the increased costs and burdens to conduct discovery and prepare for trial. While some prejudice does exist, inasmuch as the Defendants shall be disadvantaged by having discovery conducted regarding the added Trusts, such disadvantage "is not so substantial as to . . . bar the amendment." Thus, the Court in its discretion finds no undue prejudice imposed on Defendants by the SAC. Third, Ocwen, Wells Fargo, the Assurant Defendants and SBWC contend that the proposed amendments are futile. The Court disagrees. Ocwen and Wells Fargo argue that no-action clauses of the Additional Trusts bar the amendment. However, Judge Broderick already held in this case that no-action clauses did not bar the claims regarding the AHMI Trusts, Powell, 2019 WL 1227939, at *9, and the cases cited by Defendants do not involve ERISA breach of fiduciary duty claims like the ones pled in the SAC. The Court in its discretion finds that Defendants have not met their burden of showing prejudice, bad faith and/or futility of the amendment. Thus, Plaintiffs' motion to amend is granted, the Court rules. A full-text copy of the District Court's November 21, 2019 Order available at https://tinyurl.com/t5jugh2 from Leagle.com Ronald E. Powell, as Trustee of The United Food & Commercial Workers Union & Employers Midwest Pension Fund, Robert O'Toole, as Trustee of The United Food & Commercial Workers Union & Employers Midwest Pension Fund, Robert Wilson, as Trustee of The United Food & Commercial Workers Union & Employers Midwest Pension Fund, Brian Jordan, as Trustee of The United Food & Commercial Workers Union & Employers Midwest Pension Fund, Donald G Schaper, as Trustee of The United Food & Commercial Workers Union & Employers Midwest Pension Fund & William R. Seehafer, as Trustee of The United Food & Commercial Workers Union & Employers Midwest Pension Fund, Plaintiffs, represented by Justin Silver Brooks - jbrooks@gbblegal.com - Guttman Buschner & Brooks PLLC, Aaron Lee Brody - ABRODY@SSBNY.COM - Stull Stull & Brody, David Charles Harrison - dharrison@lowey.com - Lowey Dannenberg P.C., Elizabeth Hardeman Shofner - lshofner@gbblegal.com - Guttman, Buschner & Brooks PLLC, R. Bradley Miller , Guttman, Buschner & Brooks, 2000 P Street, NW, Suite 300, Washington, D.C. 20036, Scott Vincent Papp - spapp@lowey.com - Lowey Dannenberg P.C. & Barbara J. Hart , Lowey Dannenberg P.C. Ocwen Financial Corporation, Ocwen Loan Servicing, LLC & Ocwen Mortgage Servicing, Inc., Defendants, represented by Aaron Michael Rubin - amrubin@orrick.com - Orrick, Herrington & Sutcliffe LLP, Claudia Wilson Frost - cfrost@orrick.com - Orrick, Herrington & Sutcliffe LLP, Kenneth Patrick Herzinger -kherzinger@orrick.com - Orrick, Herrington & Sutcliffe LLP, Richard Andre Jacobsen, Jr. - Rjacobsen@orrick.com - Orrick, Herrington & Sutcliffe LLP & Thomas Nill Kidera - tkidera@orrick.com - Orrick, Herrington & Sutcliffe LLP. Altisource Residential Corporation & Altisource Asset Management Corporation, Defendants, represented by Joseph De Simone - jdesimone@mayerbrown.com - Mayer Brown LLP, Kevin Charles Kelly - kkelly@mayerbrown.com - Mayer Brown LLP & Paul Whitfield Hughes - phughes@mwe.com - McDermott Will & Emery. OPERA LIMITED: Kehoe Law Firm Investigates Securities Claims ------------------------------------------------------------ Kehoe Law Firm, P.C. is investigating potential securities claims on behalf of shareholders of Opera Limited ("Opera" or the "Company") (NasdaqGS: OPRA) to determine whether Opera issued materially misleading information to the investing public in violation of the federal securities laws. A class action lawsuit was filed on behalf of all persons and entities who purchased, or otherwise acquired, the American Depositary Shares ("ADS") of Opera Limited (i) pursuant and/or traceable to the Company's initial public offering that commenced on or about July 27, 2018 (the "IPO" or "Offering"); and/or (ii) Opera securities between July 27, 2018 and January 15, 2020, inclusive (the "Class Period"). The class action lawsuit seeks to recover damages for Opera investors under the federal securities laws. If you purchased, or otherwise acquired, Opera securities during the Class Period and wish to discuss Kehoe Law Firm's investigation or have questions about the class action lawsuit or your potential legal rights, please contact either John Kehoe, Esq, (215) 792-6676, Ext. 801, jkehoe@kehoelawfirm.com, or Michael Yarnoff, Esq., (215) 792-6676, Ext. 804, myarnoff@kehoelawfirm.com, info@kehoelawfirm.com. According to the lawsuit, the Offering Documents and defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that (1) Opera's sustainable growth and market opportunity for its browser applications was significantly overstated; (2) Defendants' funded, owned, or otherwise controlled, loan services applications and/or businesses relied on predatory lending practices; (3) all the foregoing, once revealed, were reasonably likely to have a material negative impact on Opera's financial prospects, especially with respect to its lending applications' continued availability on the Google Play Store; and (4) as a result, the Offering Documents and defendants' statements were materially false and/or misleading and failed to state information required to be stated therein. Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors from securities fraud, breaches of fiduciary duties, and corporate misconduct. Combined, the partners at Kehoe Law Firm have served as Lead Counsel or Co-Lead Counsel in cases that have recovered more than $10 billion dollars on behalf of institutional and individual investors. [GN] PEREGRINE EXPRESS: White Sues for Denied Meal/Rest Breaks --------------------------------------------------------- Jessie White, on behalf of himself and all others similarly situated, Plaintiff, v. Peregrine Express LLC, Defendant, Case No. 20-cv-00166 (N.D. Ohio, January 24, 2020), seeks redress for missed meal/rest breaks in violation of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. Peregrine Express operates a parcel delivery service and delivers Amazon packages to customers in Northeast Ohio where White was employed as a driver between October 2018 and July 2019 as a non-exempt driver. White claims to be denied bona fide meal periods despite Peregrine automatically deducting 30 minutes per day for a meal period. [BN] Plaintiff is represented by: Anthony J. Lazzaro, Esq. Chastity L. Christy, Esq. Lori M. Griffin, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, OH 44113 Tel: (216) 696-5000 Fax: (216) 696-7005 Email: anthony@lazzarolawfirm.com chastity@lazzarolawfirm.com lori@lazzarolawfirm.com PK MANAGEMENT: Court Denies Bid to Certify Class in Riley Suit -------------------------------------------------------------- In the case, LEORA RILEY et al., Plaintiffs, v. PK MANAGEMENT, LLC et al., Defendants, Civil Action No. 18-2337-KHV (D. Kan.), Judge Kathryn H. Vratil of the U.S. District Court for the District of Kansas overruled the Plaintiffs' Motion For Class Certification, Appointment Of Class Representatives and Appointment Of Class Counsel. Riley and Terri Ozburn commenced the putative class action claims against PK Management, LLC, Central Park Investors, LLC, Aspen Companies Management, LLC and Central Park Holdings, LLC. The Plaintiffs allege that the Defendants failed to prevent and remedy uninhabitable living conditions at Central Park Towers, an apartment building in Kansas City, Kansas. Specifically, the Plaintiffs claim (1) breach of the implied warranty of habitability; (2) breach of the statutory duty to materially comply with a lease agreement and provide habitable housing; (3) failure to provide essential services; (4) breach of contract; (5) unjust enrichment; (6) nuisance; and (7) negligence. Plaintiffs seek monetary damages and injunctive relief. The Plaintiffs are residents of Central Park Towers, a 195-unit apartment building in Kansas City, Kansas which participates in the U.S. Department of Housing and Urban Development ("HUD") Section 8 program for low-income tenants. From Jan. 26, 2013 until Oct. 29, 2015, Central Park Investors and PK Management owned and managed Central Park Towers. On Oct. 29, 2015, Central Park Investors sold Central Park Towers to Central Park Holdings. Central Park Holdings and Aspen Companies Management are the current owner and property manager, respectively. Under the Motion For Class Certification, the Plaintiffs seek to certify the following class: All persons who currently reside at Central Park Towers or formerly resided therein at any time from Jan. 26, 2013 to the date the Class is Certified. They ask the Court to appoint Riley and Ozburn as the class representatives, and to appoint the class counsel. On review, Judge Vratil concludes that the Plaintiffs' proposed class does not satisfy the requirements of Rule 23(a) and (b) of the Federal Rules of Civil Procedure. It is not to say that no class could ever be certified. Rather, the Plaintiffs need to more creatively and thoughtfully address the requirements of Rule 23, the Court states. For these reasons, Judge Vratil overruled the Plaintiffs' Motion For Class Certification. A full-text copy of the District Court's Dec. 20, 2019 Memorandum & Order is available at https://is.gd/ZJB5I0 from Leagle.com. Leora Riley, Individually and on behalf of all others similarly situated & Terri Ozburn, Individually and on behalf of all others similarly situated, Plaintiffs, represented by Bryce B. Bell -- bbb@belllawkc.com -- Bell Law, LLC, Gina M. Chiala, Heartland Center for Jobs and Freedom, Inc., pro hac vice, Jeffrey M. Lipman -- info@lipmanlawfirm.com -- Lipman Law Firm, PC, pro hac vice, Mark W. Schmitz -- ms@belllawkc.com -- Bell Law, LLC & Zachary D. Poole, ZDP Law, LLC. PK Management, LLC, Defendant, represented by Derek H. Mackay -- mackay@knightnicastro.com -- Knight Nicastro MacKay, LLC & Pamela Winter -- winter@knightnicastro.com -- Knight Nicastro MacKay, LLC. Central Park Investors, LLC, Defendant, represented by Jacqueline M. Sexton, Foland, Wickens, Roper, Hofer & Crawford, PC & Zachary Tyler Bowles, I, Foland, Wickens, Roper, Hofer & Crawford, PC. Aspen Companies Management, LLC & Central Park Holdings, LLC, Defendants, represented by Jeffrey A. Bullins, Simpson, Logback, Lynch, Norris, PA, John G. Schultz, Franke Schultz & Mullen, PC, Michael T. Halloran, Franke Schultz & Mullen, PC, Nicholas D. Savio, Franke Schultz & Mullen, PC & Phillip R. Raine, Simpson, Logback, Lynch, Norris, PA. PLAINS ALL: Property Owners' Easement Class Action Certified ------------------------------------------------------------ The Law Office of Cappello & Noel on Feb. 4 disclosed that on January 28, 2020, United States District Court Judge Philip Gutierrez certified a class-action lawsuit filed against Plains All American Pipeline by Santa Barbara County property owners who have easement contracts with Plains and whose properties were impacted during the 2015 Refugio oil spill. (Grey Fox, LLC et. al v. Plains All American Pipeline, L.P., et. al, U.S. District Court, Central District, Case Number 2:16-cv-03157-PSG-JEM, December 17, 2018). The property owners are represented by Cappello & Noël LLP, Lieff Cabraser Heimann & Bernstein LLP and Keller Rohrback LLP; Barry Cappello is lead trial counsel. In 1991, Plains predecessor, Celeron Pipeline Company of California, built pipelines on 130 miles of private property to transport crude oil and other liquids from the California coast to inland refinery markets in California. At the time, property owners signed easement contracts allowing Lines 901 and 903 pipelines to be built on their property. The easement contracts state that the pipeline owners would maintain, operate and repair the pipeline as needed. "Property owners relied on Plains to maintain the old pipelines, but Plains didn't. Plains let them deteriorate and break. Now Plains is asserting that the old easement gives them the right -- for up to two years -- to rip up miles of vineyards, ranchlands, farms, pristine coastal private property to install a new pipeline system next to the old pipeline, without adequate compensation," says Cappello. The class action will determine if Plains will be prevented from using the old easements for its new easement across the properties. If Plains is prevented, it can get its new pipeline but it will have to pay for it. "The new pipeline system will take almost two years to build, require hundreds of workers and vehicles, create extensive construction noise, dust, vibrations and toxins," says Cappello. "Plains will need nearly twice the easement than was required when building the original pipelines. Property owners want to ensure they are properly compensated and their property is protected." Notification of the class certification will be sent to all affected property owners. The law firms also are representing two other certified subclasses against Plains involving the oil spill: fisheries and beachfront and beach easement property owners/renters. They also are seeking compensation for 500 oil workers who were terminated from their jobs on the oil platforms and onshore facilities when Plains shut down the pipeline. [GN] PROGRESSIVE DIRECT: Stanikzy Sues for Breach of Contract -------------------------------------------------------- Ameenjohn Stanikzy, individually and on behalf of all others similarly situated, Plaintiffs, v. Progressive Direct Auto Insurance Company, Defendant, Case No. 20-cv-00118 (W.D. Wash., January 24, 2020), seeks injunctive relief, statutory damages, treble damages and all other relief resulting from Breach of Contract and violation of the Washington Consumer Protection Act. On October 9, 2019, Stanikzy was involved in a collision while insured by Progressive. Based upon its investigation, Progressive declared the vehicle a total loss. Stanikzy claims that the amount was substantially lower than the valuation that would have been offered. [BN] Plaintiff is represented by: Scott P. Nealey, Esq. LAW OFFICE OF SCOTT P. NEALEY 71 Stevenson St #400 San Francisco, CA 94105 Phone: (415) 231-5311 (415) 640-4806 Fax: (415) 231-5313 Email: snealey@nealeylaw.com PUBLIC ACCESS: Appeals Court Hears Arguments in Fees Case --------------------------------------------------------- Harper Neidig, writing for The Hill, reports that a federal appeals court heard arguments on Feb. 3 in a legal challenge to the fees the government charges for access to online court records. At issue is the judiciary's Public Access to Court Electronic Records system (PACER), which charges users 10 cents a page for documents. Those fees generated $146.4 million in revenue for the federal court system in 2016, the most recent year on which data is available. A group of nonprofits -- the National Veterans Legal Services Program, the National Consumer Law Center and Alliance for Justice -- filed a class-action lawsuit against the government in 2016, arguing that the fees are excessive and in violation of the law. The nonprofits argue that federal court administrators are using the money for other programs and services that should be funded by Congress. During oral arguments in the Federal Circuit Court of Appeals on Feb. 3, a panel of three judges sharply questioned both sides, as they worked through how to handle the lawsuit. Judge Raymond Clevenger, a George H.W. Bush appointee, suggested that it's unclear how much money the government should be charging for access. Clevenger said PACER fees seem appropriate if they are paying for enhancements to the system itself. But "if the cost is for decorating the office of my [court records] officer, I'm not sure that that qualifies" as an appropriate use of PACER revenue, Clevenger added. The groups challenging the fees say that the law provides that the court system can only charge PACER fees necessary to maintaining the system. "Instead of complying with this law, the [Administrative Office of the U.S. Courts] has used PACER fees to fund projects far removed from the costs of providing records on request—for example, using the money to buy flat-screen TVs for jurors, to send notices to bankruptcy creditors, and to fund a study by Mississippi for its own court system," the groups wrote in a recent court filing. The Justice Department, though, is arguing that the nonprofit groups have no standing to bring the lawsuit. Alisa Klein, the attorney arguing on behalf of the government, said that court access laws enacted by Congress did not provide an avenue for such class-action suits. "We do not believe Congress put this court in the position of going back over the judiciary's internal accounting and expenditures and compelling the judiciary to produce documents that are exempt under FOIA," Klein said. But Clevenger was skeptical of that claim. "[Congress] instead authorized the judicial conference to charge a fee even if it was knowingly, blatantly illegal and to collect the fee and to have absolutely no remedy -- that's your position?" Clevenger shot back in a testy exchange. A district court judge ruled in 2018 that the PACER fees are in excess of what the law allows, but that the judiciary is free to use the revenue for certain uses not related to maintaining the court records system. Both sides appealed that ruling, which left the nonprofits and the government unsatisfied. The case has drawn interest from lawmakers, journalists, academics and even former judges. A group of retired jurists filed an amicus brief in the case last year, putting forth an argument that goes beyond what the plaintiffs are pushing for. "The best policy is to make PACER free," the group wrote. "The economics of electronic information make that easy." [GN] QUALITY ECO: Milton Suit Seeks to Recover Overtime Pay Under FLSA ----------------------------------------------------------------- NICHOLAS MILTON, and all others similarly situated v. QUALITY ECO TECHNOLOGIES, LLC, Case No. 3:20-cv-00043 (E.D. Va., Jan. 23, 2020), seeks declaratory relief, injunctive relief, unpaid overtime compensation and liquidated damages under the Fair Labor Standards Act. Mr. Milton is a resident of Richmond, Virginia, and a former employee of QET. He was employed by the Defendant as an Installer from Jan. 2019 through Sept. 2019. He worked out of the Defendant's Richmond area operations but serviced customers up and down the Eastern United States. Despite knowledge of its obligations under federal wage laws, including the FLSA, the Defendant suffered and permitted the Plaintiff and similarly situated employees to routinely work more than 40 hours per week without overtime compensation, says the complaint. QET is in the business of providing and installing eco-friendly ventilation, air filtration, insulation, and power conservation products to residential and commercial customers.[BN] The Plaintiff is represented by: Harris D. Butler, III, Esq. Zev H. Antell, Esq. BUTLER ROYALS, PLC 140 Virginia Street, Suite 302 Richmond, VA 23219 Telephone: (804) 648-4848 Facsimile: (804) 237-0413 E-mail: harris.butler@butlerroyals.com zev.antell@butlerroyals.com - and - Craig Juraj Curwood, Esq. CURWOOD LAW FIRM, PLC 530 E. Main Street, Suite 710 Richmond, VA 23219 Telephone: (804) 788-0808 Facsimile: (804) 767-6777 E-mail: ccurwood@curwoodlaw.com QUDIAN INC: Faces Securities Class Action in New York ----------------------------------------------------- Pomerantz LLP on Feb. 5 disclosed that a class action lawsuit has been filed against Qudian Inc. ("Qudian" or the "Company") (NYSE: QD) and certain of its officers. The class action, filed in United States District Court, for the Southern District of New York, and indexed under 20-cv-00577, is on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired Qudian securities between December 13, 2018 and January 15, 2020, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Qudian securities during the class period, you have until March 23, 2020, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Qudian was founded in 2014 and is headquartered in Xiamen, the People's Republic of China ("China"). Qudian provides online small consumer credit products in China, using big data-enabled technologies, including artificial intelligence and machine learning to purportedly transform the consumer finance experience. Qudian offers small credit products, such as cash credit products; merchandise credit products to finance borrowers' direct purchase of merchandise offered on its marketplace on installment basis; and budget auto financing products. In addition, it operates a platform for loan recommendations and referrals. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) regulatory developments in China threatened to negatively impact Qudian's fiscal full year 2019 ("FY19") financial results; (ii) Qudian's business was unprepared to mitigate the risks associated with these regulatory changes; (iii) as a result, Qudian's loan portfolio was plagued by growing delinquency rates; (iv) all of the foregoing made Qudian's repeated assertions concerning its FY19 financial guidance unrealistic; and (v) as a result, the Company's public statements were materially false and misleading at all relevant times. On January 16, 2020, Qudian issued a press release announcing "that the Company withdraws its fiscal 2019 guidance and will not issue guidance in the near term due to uncertainty related to the recent regulatory and operating environment." The press release stated that "China's online consumer finance industry was affected by several regulatory developments in the fourth quarter of 2019, including further restrictions on loan collection practices, more stringent user data privacy rules and the requirements for P2P lending platforms to orderly exit their P2P businesses," which had "reduced the availability of funding for consumer credit and driven up delinquency rates across the industry, including the Company's loan portfolio." On this news, Qudian's ADS price fell $0.84 per share, or 19.13%, to close at $3.55 per share on January 16, 2020. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] RAND MCNALLY: Faces Van Zeeland Suit Over Defective TND Tablet 80 ----------------------------------------------------------------- JAMES VAN ZEELAND v. RAND MCNALLY, Case No. 1:20-cv-00548 (N.D. Ill., Jan. 23, 2020), is brought on behalf of the Plaintiff and all others similarly situated to remedy the Defendant's violations of Magnuson-Moss Warranty Act, the Consumer Fraud and Deceptive Practices Act, and Illinois Uniform Deceptive Trade Practices Act relating to the sale of Rand McNally TND Tablet 80 Truck GPS. The lawsuit arises from the Defendant's misconduct, including its concealment of material facts concerning the design, manufacture, performance history, and propensity for failure and malfunction of the TND Tablet 80 during the distribution, marketing, sale, advertisement, and customer service performed with respect to the TND Tablet 80. The Plaintiff contends that during the course of marketing and selling the TND Tablet 80 to him and Class members, the Defendant knew that the TND Tablet 80 was defective based upon warranty data, consumer complaints received by the company and/or that were posted on public online forums, as well as through sources not currently available to him. He adds that the Defendant further knew that there was no fix to eliminate or substantially reduce the failures and malfunctions of the TND Tablet 80, and that there continues to be no fix to date. The Plaintiff seeks injunctive relief, actual damages, restitution and/or disgorgement of profits, statutory damages, attorneys' fees, costs, and all other relief available to him and the Class. The Plaintiff and the Putative class are all current and former owners of the Rand McNally TND Tablet 80 Truck GPS (TND Tablet 80). Rand McNally is an American technology and publishing company that provides mapping, software and hardware for the consumer electronics, commercial transportation and education markets. The company is headquartered in Chicago, with a distribution center in Richmond, Kentucky.[BN] The Plaintiff is represented by: Katrina Carroll, Esq. Kyle A. Shamberg, Esq. CARLSON LYNCH, LLP 111 W. Washington Street, Suite 1240 Chicago, IL 60602 Telephone: (312) 750-1265 E-mail: kcarroll@carlsonlynch.com kshamberg@carlsonlynch.com - and - James C. Shah, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 1845 Walnut Street, Suite 806 Philadelphia, PA 19103 Telephone: (610) 891-9880 Facsimile: (866) 300-7367 E-mail: jshah@sfmslaw.com RAYTHEON COMPANY: Plan Member Sues Over Denied Treatment -------------------------------------------------------- N.R., by and through his parents and guardians, S.R. and T.R., individually and on behalf of all others similarly situated, and derivatively on behalf of the Raytheon Health Benefits Plan, Plaintiff, v. Raytheon Company, Raytheon Health Benefits Plan and William M. Bull, Defendants, Case No. 20-cv-00456 (D. Mass., January 24, 2020), seeks to enforce the Federal Mental Health Parity Act, through Employment Retirement Security of Act of 1974. Raytheon Health Benefit Plan is an employee welfare benefit plan that provides health benefits for Raytheon employees and their dependents. N.R. is a five-year old child who was diagnosed with autism spectrum disorder in 2017 and was recommended that N.R. receive speech therapy services. This, however, was denied under their benefit plan. [BN] Plaintiff is represented by: Stephen Churchill, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Tel: (617) 607-3260 Fax: (617) 448-2261 Email: steve@fairworklaw.com - and - Eleanor Hamburger, Esq. Richard E. Spoonemore, Esq. SIRIANNI YOUTZ SPOONEMORE HAMBURGER 701 Fifth Avenue, Suite 2560 Seattle, WA 98104 Tel. (206) 223-0303 Fax. (206) 223-0246 Email: rspoonemore@sylaw.com ehamburger@sylaw.com RESCARE INC: Diaz Files Suit Under FCRA --------------------------------------- Susana Diaz, on behalf of herself, all others similarly situated, Plaintiff, v. Rescare, Inc., RSCR California, Inc. and Does 1 through 50, inclusive, Defendants, Case No. CGC-20-582448, (S.D. Fla., January 24, 2020) seeks statutory damages due to Defendants' systematic and willful violations of the Fair Credit Reporting Act. Diaz applied for employment with Rescare and RSCR California and as part of the employment requirements, Diaz signed a disclosure and authorization form to perform a background investigation. Diaz claims that the form does not inform applicants whom they should contact to obtain a copy of the report, where to send a written request for the report and who to address the request to making the entire process for obtaining a copy unduly burdensome. [BN] The Plaintiff is represented by: Shaun Setareh, Esq. Thomas Segal, Esq. Farah Grant, Esq. SETAREH LAW GROUP 315S Beverly Dr., Suite 515 Beverly Hills, CA 90212 Telephone (310) 888-7771 Facsimile (310) 888-0109 Email: shaun@setarehlaw.com thomas@setarehlaw.com farrah@setarehlaw.com SAINT FRANCIS: Faces Mowery Class Suit Over Ransomware Attack ------------------------------------------------------------- TERESA MOWERY and GREGORY RUTLEDGE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED v. SAINT FRANCIS HEALTHCARE SYSTEM, Case No. 1:20-cv-00013-SRC (E.D. Mo., Jan. 23, 2020), arises out of the recent ransomware attack at SFHS's medical facilities that disrupted operations by blocking access to SFHS's computer systems and data, including the highly sensitive patient medical records of thousands of patients. A ransomware attack is a type of malicious software that blocks access to a computer system or data, usually by encrypting it, until the victim pays a fee to the attacker. On September 21, 2019, SFHS was impacted by a malware incident. As a result of the Ransomware Attack, the Plaintiffs assert that they and the proposed class members suffered ascertainable losses in the form of disruption of medical services, out-of-pocket expenses and the value of their time reasonably incurred to remedy or mitigate the effects of the attack. The Plaintiffs add that their and Class Members' sensitive personal information--which was entrusted to SFHS, its officials and agents--was compromised and unlawfully accessed due to the Ransomware Attack. Information compromised in the Ransomware Attack includes names, demographic information, date of birth, Social Security numbers, driver's license or identification card numbers, employment information, health insurance information, medical information, other protected health information as defined by the HIPAA, and additional personally identifiable information (PII) and protected health information (PHI) that SFHS collected and maintained. SFHS is in the business of rendering hospital services, medical care, treatment, and health services to persons in Missouri, Arkansas, Illinois, Kentucky, and Tennessee through a network of providers and facilities.[BN] The Plaintiffs are represented by: Brandon M. Wise, Esq. PEIFFER W LF CARR & KANE, APLC 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Telephone: 314.833.4825 E-mail: bwise@pwcklegal.com - and - Gary E. Mason, Esq. WHITFIELD BRYSON & MASON LLP 5101 Wisconsin Ave., NW, Ste. 305 Washington, DC 20016 Telephone: 202 640.1160 Facsimile: 202.429.2294 E-mail: gmason@wbmllp.com - and - Gary M. Klinger, Esq. KOZONIS & KLINGER, LTD. 227 W. Monroe Street, Suite 2100 Chicago, IL 60630 Telephone: 312 283 3814 Facsimile: 773 496 8617 E-mail: gklinger@kozonislaw.com SANDERSON FARMS: 2nd Circuit Affirms Class Action Dismissal ----------------------------------------------------------- Shearman & Sterling LLP, in an article for Mondaq, reports that on December 10, 2019, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action asserting claims under Section 10(b) of the Securities Exchange Act of 1934 against a chicken producing company and certain of its executives. The decision is significant because it confirms that securities fraud plaintiffs within the Second Circuit (which hears appeals from Connecticut, New York and Vermont) are required to allege with particularity the elements of the alleged illegal conduct supposedly giving rise to a securities violation, and is likely to serve as persuasive authority outside of the Circuit. In Gamm v. Sanderson Farms, Inc., the plaintiffs had alleged that defendants' SEC filings contained misrepresentations because they failed to disclose an illegal antitrust conspiracy to drive up chicken prices by reducing supply and to manipulate a chicken price index. The court held that the complaint was properly dismissed because the plaintiffs failed to plead with sufficient particularity facts supporting the alleged antitrust conspiracy, explaining that "when a securities fraud complaint claims that statements were rendered false or misleading through the nondisclosure of illegal activity, the facts of the underlying illegal acts must be pleaded with particularity in accordance with the requirements of Rule 9" of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act (PSLRA). The plaintiffs acknowledged that their allegations of misstatements and omissions had to be pleaded with particularity under the PSLRA and Rule 9(b), but they argued that facts of the underlying antitrust conspiracy only needed to meet the plausibility standard of Rule 8 of the Federal Rules of Civil Procedure. The court rejected that argument, holding that, because the plaintiffs' nondisclosure and material omission claims were entirely dependent upon the predicate allegation that the defendants participated in a collusive antitrust conspiracy, the plaintiffs' allegations "must also provide particularized facts about the underlying conspiracy" in order to properly allege with the requisite particularity "all facts" upon which their securities fraud claim was based. The court reasoned that "[u]ntil and unless they have done so, [the] appellants' complaint had not met the burden of explaining what rendered the statements materially false or misleading." Next, the Second Circuit assessed whether the plaintiffs had alleged the basic elements of an antitrust conspiracy. With respect to the alleged collusive activities to reduce supply, the court determined that "[a]lthough appellants do allege that [the defendants] engaged in 'anticompetitive' conduct, there is virtually no explanation as to how that collusive conduct occurred, and whether and how it affected trade." It further noted that the plaintiffs failed to allege that the defendants or any other chicken producers were successful in reducing the supply of chicken, or that any reduction in supply resulted from an anticompetitive agreement. Moreover, the court emphasized that the plaintiffs failed to allege "when [the company] decided on its course of supply reduction, which industry peers were a part of that decision, how specific supply reductions were performed by each of the different poultry producers, what information [the company] knew about its peers' supply reductions, if any, and -- perhaps most basic of all -- whether [the company] actually reduced chicken supply, and if so, by what volume." With respect to the alleged conspiracy to manipulate the chicken price index, the plaintiffs alleged that the company and other chicken producers submitted artificially high prices to the government agency that maintained the index, and coordinated these activities by learning about the prices other producers were submitting through a service that collected such information for the industry. The court held, however, that the plaintiffs' allegations failed to show "when and how" the company used this service, or to allege what communications the company had with the government agency that maintained the index, when that information was provided, and whether it was false. Finally, the court concluded that "[t]he complaint is entirely silent" as to whether the alleged manipulative conduct "unreasonably restrained trade, and whether that restraint affected interstate commerce." [GN] SKYLINE: Former Employees Sue Over Unpaid Insurance Premiums ------------------------------------------------------------ Angela Kennecke, writing for KELOLAND, reports that we all trust our employers when they say they're taking money out of our paycheck for insurance premiums. Dozens of South Dakota employees had money taken out by Skyline Health Care, but their premiums were never paid. Now some of those former employees are taking legal action. The company, which had taken over 19 South Dakota nursing homes in 2017, put 900 seniors at risk after it couldn't pay its bills or its employees. In November, KELOLAND Investigates looked into major medical bills that former Skyline employees thought were covered by insurance. November 21, 2019 Charles Johnson/Former Skyline Employee: It was discovered that Skyline hadn't paid the self-funded insurance plan for about six months. Kennecke: Deductions were taken out of the employees paychecks and weren't applied to the premium. Is that fraud? Johnson: I think so. I think it could be considered fraud. Or could it be considered theft? "I felt we were victims. It should be a crime," Theresa Dante said. Theresa Dante, a former cook at the Redfield Care and Rehab Center is one of Skyline's former employees. She's also a member of the new class action lawsuit filed in federal court in New Jersey, where Skyline Healthcare was once located above this pizza shop. The federal lawsuit alleges that when Skyline bought nursing homes in Arkansas, Kansas, Nebraska, and South Dakota, it told the employees that they would be enrolled in health, dental, and Aflac insurance plans, with premiums directly deducted from their paychecks. But the complaint says while the money was taken out of their checks, no insurance was ever bought. The lawsuit claims that Skyline violated the Racketeer Influenced and Corrupt Organizations Act, or RICO, which is a federal law typically used in organized crime cases. The former employees accuse Skyline of mail fraud and wire fraud, which includes submitting fake tax forms to the IRS to show that Skyline was complying with the Affordable Care Act, as well as fraudulently taking funds from employees' paychecks. The lawsuit alleges that Skyline set up a phony company, Cornerstone Quality Care, out of its New Jersey office, to enroll South Dakota employees in various insurance plans, deduct the premiums and then pocket the money. Also submitted into evidence with the case was part of a court deposition of Skyline owner Joseph Schwartz in 2017. Schwartz said, "because a guy sends a bill in, it doesn't mean he needs to get paid." At its peak, Skyline had more than 100 facilities across the country. Now several states have passed new laws that require closer vetting of potential nursing home buyers. South Dakota is not among them. KELOLAND Investigates searched the database of Data. Medicare.gov for Schwartz family ownership or involvement in nursing homes in the U.S. as of Feb. 4. The map below was developed from the list of Schwartz family ownership or involvement as listed in the website's database. KELOLAND Investigates in November 2019 searched the database of Data.Medicare.gov and found that the site still listed the Schwartzes as owning, or involved in, several nursing homes in the U.S. The data was listed as current as of Nov. 20, 2019. [GN] SOUTHWEST AIRLINES: Garay Remanded to Alameda County Superior Court ------------------------------------------------------------------- Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted Garay's motion to remand the case, MARCO GARAY, Plaintiff, v. SOUTHWEST AIRLINES CO., Defendant, Case No. 19-cv-05452-PJH (N.D. Cal.), to the Alameda County Superior Court. On Oct. 25, 2018, the Plaintiff filed his complaint alleging a putative employment-related class action against the Defendant in Alameda county. Based on that complaint, the Defendant removed the Plaintiff's action to the California District Court on Dec. 14, 2018, thereby giving rise to the related case Garay v. Southwest Airlines Co., 18-cv-07538-PJH ("Southwest I"). On Feb. 28, 2019, the District Court granted the Plaintiff's first motion to remand. The Defendant filed its second notice of removal of the Plaintiff's action to the District Court on Aug. 29, 2019. The Defendant bases its subsequent removal on the same complaint and expressly acknowledges that no further process, pleadings, or orders related to the case have been filed in the Superior Court action or served by any party. On Sept. 28, 2019, the Plaintiff filed the instant motion to remand challenging the Defendant's subsequent notice of removal. In his complaint, the Plaintiff alleges six claims on behalf of all persons employed by the Defendant in California four years prior to the Plaintiff's action. Such claims include the following: (i) failure to provide meal periods; (ii) failure to provide rest periods; (iii) failure to pay hourly and overtime wages; (iv) failure to provide accurate written wage statements; (v) failure to timely pay all final wages (waiting time penalties); and (vi) unfair competition. In his complaint, the Plaintiff does not specify the amount in damages sought. Judge Hamilton finds that the Defendant fails to provide any proof that the information supporting the labor-related statistics ultimately testified to by Inlow in her declarations in support of the Defendant's subsequent removal was not available to it at the time of its initial Dec. 14, 2018 removal in Southwest I. While "the complexities of using various systems to derive the data and the need to conduct quality control audits to ensure the data represented that which was intended may have taken the Defendant's Technology Department "four months" to complete a system that would allow Inlow to testify to the ultimate labor-related statistics provided in support of the subsequent removal, the Defendant failed to testify to anything that prevented it from pursuing that course of investigation prior to its first removal. Moreover, any purported complexities of using various systems to derive the data aside, the Defendants fail to explain how the underlying information used to "derive" such "data" was itself unavailable to defendant at the time of its first removal. In short, the information now proffered by the Defendant "could -- and indeed, should -- have been presented" in opposing the Plaintiff's first motion to remand in Southwest I, and that the Defendant is belatedly attempting to do so now does not render its factual showing new and different for purposes of allowing a successive removal petition. Judge Hamilton concludes that the Court's anticipation of a subsequent removal depended upon the identification of new information in the course of discovery -- not the Defendant's more laborious internal investigation post-remand. Consistent with that recognition, the Judge notes that a litigant, including the Defendant, may still seek a successive removal on the basis of newly discovered information produced by the Plaintiff in discovery. For these reasons, Judge Hamilton granted the Plaintiff's Motion to Remand, and remanded the action to the Alameda County Superior Court. A full-text copy of the District Court's Dec. 20, 2019 Order is available at https://is.gd/mQXyFq from Leagle.com. Marco Garay, Plaintiff, represented by Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group & William Matthew Pao -- william@setarehlaw.com -- Setareh Law Group. Southwest Airlines Co., Defendant, represented by Richard Howard Rahm -- rrahm@littler.com -- Littler Mendelson, Angela Joy Rafoth -- arafoth@littler.com -- Littler Mendelson, P.C. & Charles Robert Harrington -- rharrington@littler.com -- Littler Mendelson, P.C. SQUARE INC: Faces Class Action Over Unauthorized Texts ------------------------------------------------------ Ross Todd, writing for Law.com, reports that Square Inc. now faces a class action lawsuit claiming the mobile payments company sends unauthorized texts to consumers as part of its SquareUp loyalty program. According to a lawsuit filed on Feb. 3 in U.S. District Court for the Northern District of California, the company uses cellphone numbers that customers enter into Square card readers in order to receive digital receipts to later send unsolicited texts for loyalty programs from separate vendors. The lawsuit, filed by lawyers at Kazerouni Law Group, claims that Square violates the Telephone Consumer Protection Act by sending text messages to consumers who didn't opt into the SquareUp program and only provided their number to obtain a receipt via text message. The suit also claims Square violated the TCPA in cases where consumers opted into the program but were not made aware that they would receive loyalty texts from businesses other than the ones whose program they intended to opt into. The complaint says that consumers "received woefully insufficient disclosure before providing their phone number and therefore could not have provided meaningful consent to receive loyalty texts sent by Square on behalf of its SquareUp loyalty clients." A Square spokesperson said the company hadn't yet been served with the complaint on Feb. 4 and was just beginning to review the allegations. "Based on our initial review, we believe plaintiffs are confused as to how our receipts, loyalty, and text marketing products work," the spokesperson said. "We believe the claims are without merit." Abbas Kazerounian of the Kazerouni Law Group was out of the office and unavailable for comment. The complaint points out that plaintiffs do not challenge Square's practice of sending receipts via text message, but instead targets the association of consumer payment card information with their mobile phone numbers to create consumer profiles Square uses in the loyalty program--a program which is marketed to vendors as a way to attract and retain customers. "What Square fails to mention in its marketing of the Loyalty Program is that customers who do 'enroll' do not provide consent to receive those automated text messages from any business. And worse, even customers who do not 'enroll' still receive automated text messages from Square," the complaint says. The suit seeks to certify a nationwide class of any consumer who over the past four years has received a loyalty text message from Square via an automatic telephone dialing system. The suit seeks damages under the TCPA of as much as $500 per text message, or treble damages of $1,500 per text message for violations found to be willful. [GN] ST. ELIZABETH REGIONAL: Court Denies Bid to Dismiss Walkinshaw Suit ------------------------------------------------------------------- In the case, NICHOLE WALKINSHAW, et al., Plaintiffs, v. SAINT ELIZABETH REGIONAL MEDICAL CENTER, COMMONSPIRIT HEALTH f/k/a CATHOLIC HEALTH INITIATIVES, and CHI NEBRASKA f/k/a CHI HEALTH, Defendants, Case No. 4:19-CV-03012 (D. Neb.), Judge Brian C. Buescher of the U.S. District Court for the District of Nebraska (i) denied the Defendants' Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6); (ii) denied Defendant CommonSpirit Health's Motion to Dismiss for Lack of Personal Jurisdiction; and (iii) denied as moot the Plaintiffs' Motion for Leave to Take Jurisdictional Discovery. The Plaintiffs consist of seven nurses employed at Saint Elizabeth Regional Medical Center ("SERMC"). SERMC is a Nebraska corporation and is directly owned by CHI-Nebraska d/b/a CHI-Health. CHI-Health is a Nebraska corporation and, until recently, was a subsidiary of Catholic Health Initiatives ("CHI"). After a merger between CHI and another health system, Dignity Health, CHI-Health and SERMC became part of CommonSpirit Health. CommonSpirit is a corporation registered in Colorado and headquartered in Illinois. The seven named Plaintiffs, Walkinshaw, Tysha Bryant, April Endicott, Heather Nabity, Meghan Martin, Alandrea Ellwanger, and Troy Stauffer, have all worked for SERMC since at least February 2015. Since then, the Defendants have followed an "On-Call Policy" which governs nurses' compensation for time spent on call. Pursuant to the on-call policy, nurses are required to be available for work at times other than during their regular-scheduled shifts. The "On-Call Work" consists of responding to telephone calls, text messages, and emails from doctors and performing preparatory and follow-up work related to those communications. From Feb. 6, 2015 until Sept. 30, 2018, the Defendants paid the Plaintiffs $2 an hour for on-call work performed during weekdays and $2.50 per hour for on-call work on weekends. On June 1, 2017, the Defendants adopted a written on-call policy. According to the 2017 Policy, nurses were to be paid time and a half their regular rate for work relating to the principal activities of the position that can be taken care of with a phone call or access to work from home. Despite the 2017 Policy, the Plaintiffs allege they continued to be compensated for on-call work at a rate between $2 and $2.50 per hour. In October 2018, the on-call policy was amended. The 2018 Policy had many of the same requirements as the 2017 Policy but changed on-call work compensation to $3 per hour for 0 to 50 on-call hours and $4 per hour for 51-plus-on-call hours. The 2018 Policy was still in effect on June 24, 2019, the date of the filing of the Amended Complaint. The Plaintiffs bring claims against SERMC, CHI-Health, and CommonSpirit for alleged violations of the Fair Labor Standards Act ("FLSA"), the Nebraska Wage and Hour Act ("NWHA"), the Nebraska Wage Payment and Collection Act ("NWPCA"), and for breach of contract. Defendants SERMC, CHI-Nebraska, and CommonSpirit filed a motion to dismiss all the Plaintiffs' claims for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Defendant CommonSpirit filed a separate motion to dismiss all the claims against it for lack of personal jurisdiction. The Plaintiffs filed a Motion for Leave to Take Jurisdictional Discovery for purposes of refuting the Defendants' arguments regarding lack of personal jurisdiction. Judge Buescher determines that the Court has specific personal jurisdiction over defendant CommonSpirit based on CommonSpirit's alleged contacts with Nebraska in relation to the subject matter of the present lawsuit. Accordingly, it is not necessary to proceed on the theory of piercing the corporate veil. The Judge will deny CommonSpirit's Motion to Dismiss under 12(b)(2). Next, Judge Buescher finds that the Plaintiffs' Amended Complaint sufficiently alleges facts that fulfill the required elements for a FLSA overtime claim at this stage in the proceedings. Their allegations are sufficient to give the Defendants fair notice of what the claim is and the grounds upon which it rests. The Judge will deny the Defendants' motion to dismiss Count I. The Judge will also deny the Defendants' motion to dismiss claim II. The Defendants claim that ECF text minute entry #359 in that case demonstrates that the court used a weekly approach. The Judge holds that the Defendants' argument is disingenuous in the context of the accompanying briefing. It is far more plausible that the Court dismissed the NWHA claim because the Plaintiffs failed to present adequate evidence than it is to believe the Court adopted a new legal standard in a text minute entry. The Defendants attack the Plaintiffs' third cause of action because the Plaintiffs failed to identify the "regular base rate" on which their claim hinges. In fact, the Plaintiffs each plead their regular rates of pay specifically. They have sufficiently plead enough facts to make the Defendants' alleged violation of the NWPCA plausible and therefore the Defendants' motion to dismiss the NWPCA claim contained in Count II and Count III is denied. Construing the facts in the light most favorable to the Plaintiffs, there is enough information in the Amended Complaint to survive a motion to dismiss, the Court states. The Plaintiffs allege the 2017 Policy was agreed to by the parties and it mutually bound the parties to specific obligations including overtime work and pay. They allege the Defendants breached the contract and caused damages to them by failing to pay them at the rate of one-and-a-half-time pay for the overtime work they performed pursuant to the contract. This adequately states a claim for breach of contract under Nebraska law. Finally, the Defendants move to dismiss the Amended Complaint because the Plaintiffs fail to demonstrate facts to establish a class action. The class certification issue is premature at this stage in the proceedings. Although the Plaintiffs' Amended Complaint purports to be a class action, the Plaintiffs have yet to move for class certification. The Judge will defer any judgment on the merits of class certification until the appropriate motion is filed by the Plaintiffs. Accordingly, Judge Buescher (i) denied the Defendant CommonSpirit Health's Motion to Dismiss under Fed. R. Civ. P. 12(b)(2); (ii) denied as moot the Plaintiffs' Motion for Leave to Take Jurisdictional Discovery; and (iii) denied the Defendants' Motion to Dismiss under Fed. R. Civ. Pro 12(b)(6). A full-text copy of the District Court's Dec. 20, 2019 Memorandum & Order is available at https://is.gd/HG7a4i from Leagle.com. Nichole Walkinshaw, and all other similarly situated former or current employees of Defendant, Tysha Bryant, and all other similarly situated former or current employees of Defendant, April Endicott, and all other similarly situated former or current employees of Defendant, Heather Nabity, and all other similarly situated former or current employees of Defendant, Meghan Martin, and all other similarly situated former or current employees of Defendant, Alandrea Ellwanger, and all other similarly situated former or current employees of Defendant & Troy Stauffer, and all other similarly situated former or current employees of Defendant, Plaintiffs, represented by Kathleen M. Neary -- kathleen@vpowerslaw.com -- POWERS LAW FIRM, Robert J. Barton, BLOCK, LEVITON LAW FIRM, Vincent Cheng -- vincent@blockesq.com -- BLOCK, LEVITON LAW FIRM, pro hac vice & Vincent M. Powers -- vince@vpowerslaw.com -- POWERS LAW FIRM. Saint Elizabeths Regional Medical Center, CommonSpirit Health, formerly known as Catholic Health Initiatives & CHI Nebraska, formerly known as CHI Health, Defendants, represented by Anne B. Hucker -- ahucker@polsinelli.com -- POLSINELLI LAW FIRM, Emma R. Schuering -- eschuering@polsinelli.com -- POLSINELLI LAW FIRM, Jason N.W. Plowman, POLSINELLI LAW FIRM & Karen K. Cain -- kcain@polsinelli.com -- POLSINELLI LAW FIRM. STATE FARM: 11th Circuit Affirms Dismissal of Crawford's Auto Suit ------------------------------------------------------------------ In the case, CRAWFORD'S AUTO CENTER, INC., et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellees, Case No. 17-12583 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirmed the District Court's order granting the Defendants' motion to dismiss each of the Plaintiffs' claims. Plaintiffs Crawford's Auto Center and K & M Collision, LLC are two auto body collision repair shops located in Pennsylvania and North Carolina. They brought the class action suit against dozens of insurer defendants, alleging claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and state law fraud and unjust enrichment theories. The Defendants consist of seven families of insurance companies -- State Farm, Allstate, GEICO, Progressive, Farmers Insurance, Liberty Mutual, and Nationwide -- but Progressive and Farmers Insurance were dismissed voluntarily from the appeal. The Defendants are obligated to indemnify collision losses under their insurance claimants' policies. In the event the claimants' vehicles can be repaired, the vehicles must be restored to pre-loss or pre-damaged condition. The Plaintiffs allege the Defendants have the option to repair the vehicles or pay for the repairs, but they choose to pay for the repairs -- performed by collision repair shops -- because it protects them from liability for such repairs. Each Defendant insurer group has a direct repair program ("DRP"). These programs are composed of collision repair shops around the country that agree to the Defendants refer a consistent volume of repair work to the collision repair shops that participate in each Defendant's respective DRP. The Plaintiffs have not entered into such agreements with the Defendants and are not part of any of their DRPs. The Plaintiffs' complaint describes a scheme that enables the Defendants to pay as little for repairs as possible. They allege that the scheme harmed non-DRP collision repair shops, like the Plaintiffs, because non-DRP shops expect to be compensated at a rate that is commensurate with the standard of repairs that they are performing. They say the Defendants have created a unilateral solution to achieve their goal of cost savings by instituting policy language "qualifying their obligation" to pay only the prevailing rate. Under the Plaintiffs' theory, the Defendants' scheme allows them to pay less for the repairs than what they believe they are owed. The Plaintiffs also allege that the Defendants and the Information Providers skew the raw data that gets loaded into the estimating software by scrubbing the estimates presented by the Plaintiffs. They claim that as a result of these processes, the Defendants consistently refuse to pay anything over the prevailing rate and thus have "artificially suppressed" the compensation they are owed. They are suing the Defendants for their attempts to enforce these artificial prevailing rates upon them because they have not agreed to the Defendants' "limited, pre-defined compensation." The Plaintiffs claim the Defendants' practices amount to RICO extortion and fraud, as well as common law fraud and unjust enrichment. They allege that the Defendants misrepresented and omitted material facts to arrive at their prevailing rate for automobile repairs for the purpose of deceiving the Plaintiffs to accept artificially suppressed compensation for insured repairs. They say they were coerced or forced to accept suppressed compensation for insured repairs predicated on fear of economic harm, i.e., if the repair facilities wanted to do business with the Defendants. The Plaintiffs first filed their complaint in April 2014 in the U.S. District Court for the Northern District of Illinois. After the Defendants moved to dismiss, the parties stipulated that the Plaintiffs would amend their complaint. The Plaintiffs filed their first amended complaint in August 2014. In December 2014, the Judicial Panel on Multidistrict Litigation transferred the action to the Honorable Gregory Presnell in the Middle District of Florida for consolidated pretrial proceedings. The Defendants again moved to dismiss. The District Court, now overseeing the multidistrict litigation, granted the motion, dismissed the complaint, and granted the Plaintiffs leave to amend. They filed their Second Amended Complaint in January 2016. The Defendants moved to dismiss for a third time. The Plaintiffs filed a response to Defendants' motions with a number of exhibits attached. These exhibits included the Defendants' repair estimates and the Plaintiffs' repair orders. The Defendants filed a motion to strike these exhibits, claiming that submitting them was "entirely improper" at the motion to dismiss stage because those exhibits were neither referred to in the Complaint nor central to the Plaintiffs' claims. The District Court referred the matter to a Magistrate Judge, who issued an order granting, in part, the Defendants' motion to strike and excluding Exhibits E1-E7 from consideration. The District Court overruled the Plaintiffs' objections to the Magistrate Judge's order and agreed with the decision to exclude Exhibits E1-E7. Following oral argument, the District Court dismissed each of the Plaintiffs' claims with prejudice for failure to state a claim. It dismissed all claims with prejudice, because nothing suggested the Plaintiffs can ever overcome the issues to state a valid RICO claim. The District Court also dismissed with prejudice the Plaintiffs' state law claims for common law fraud and unjust enrichment. It dismissed Plaintiffs' unjust enrichment claim because they failed to allege they had conferred a benefit upon the Defendants. The Plaintiffs timely appealed. While the appeal was pending, the Court issued its opinion in Quality Auto Painting Center of Roselle, Inc. v. State Farm Indem. Co. In Quality Auto, it held that repair shop plaintiffs failed to allege viable Sherman Act antitrust claims for colluding to lower repair prices by improperly pressuring the shops to lower prices and by threatening to boycott those who do not comply, as well as common law claims for unjust enrichment and quantum meruit under New Jersey, Kentucky, Missouri, and Virginia law. For the appeal, the panel ordered and received supplemental briefing on the impact, if any, Quality Auto had on the case. The Eleventh Circuit affirmed the District Court's ruling. The Eleventh Circuit finds that the Plaintiffs' RICO claims fail because they have not alleged any fraudulent or wrongful conduct to show there were predicate acts of fraud and extortion. Similarly, they did not plead their state law fraud claim with particularity. The Plaintiffs' unjust enrichment claim is also foreclosed by the Appellate Court's decision in Quality Auto. Neither was the District Court's decision to exclude Exhibits E1-E7 clearly erroneous or contrary to law. Finally, any amendment to the Plaintiffs' Complaint would have been futile, so the District Court's dismissal with prejudice was not in error, the Eleventh Circuit opines. A full-text copy of the Eleventh Circuit's Dec. 20, 2019 Order is available at https://is.gd/TP8MWv from Leagle.com. Richard L. Fenton -- richard.fenton@dentons.com -- for Defendant-Appellee. Hal Kemp Litchford, for Defendant-Appellee. Michael L. McCluggage -- mmccluggage@eimerstahl.com -- for Defendant-Appellee. Dan W. Goldfine -- dgoldfine@swlaw.com -- for Defendant-Appellee. Michael P. Kenny -- mike.kenny@alston.com -- for Defendant-Appellee. David Francis Sorensen -- dsorensen@bm.net -- for Plaintiff-Appellant. Patricia Mulvoy Kipnis, for Plaintiff-Appellant. Allison P. Fry, for Plaintiff-Appellant. John William Barrett -- jbarrett@baileyglasser.com -- for Plaintiff-Appellant. Steven Bloch -- sbloch@bm.net -- for Plaintiff-Appellant. TARTE INC: $1.7M Settlement in Patora Fraud Suit Has Final Approval ------------------------------------------------------------------- In the case, JEANNIE PATORA, individually on behalf of herself and on behalf of all others similarly situated, Plaintiff, v. TARTE, INC. Defendant, Case No. 7:18-cv-11760-KMK (S.D. N.Y.), Judge Kenneth M. Karas of the U.S. District Court for the Southern District of New York granted final approval of a Settlement Agreement. On Oct. 2, 2019, the Court granted the motion of the Plaintiff for preliminary approval of the Settlement Agreement and certification of the Settlement Class. Commencing on Oct. 23, 2019, Angeion Group, the Settlement Administrator, began providing notice to the Settlement Class members in compliance with the Notice Plan, due process, and Rule 23 of the Federal Rules of Civil Procedure. On Jan. 28, 2020, the Court held a Fairness Hearing. Judge Karas finds that the Settlement Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class members. He granted final approval of the Settlement Agreement. The Parties will carry out their respective obligations under the Settlement Agreement in accordance with its terms. The Opt-Out Members are not bound by the Settlement Agreement and the Final Approval Order and Judgment and will not be entitled to any of the benefits afforded to the Settlement Class members under the Settlement Agreement. Solely for purposes of the Settlement Agreement and the Final Approval Order and Judgment, the Judge certified the following Settlement Class: All persons and entities that, between Nov. 13, 2013 and Jan. 21, 2020, both resided in the United States and purchased in the United States any of the Products for personal use and not for resale. The Judge granted final approval to the appointment of (i) Plaintiff Jeannie Patora as the Class Representative and (ii) The Sultzer Law Group, P.C. as the Class Counsel for the Settlement Class. The Court awarded (i) the Class Counsel $554,296.57 in fees and reimbursement of $12,370.10 in expenses, and (ii) Plaintiff Jeannie Patora $2,500 as a Service Award. Pursuant to Section 4.1 of the Settlement Agreement, the Settlement Funds, consisting of $1.7 million, will be used to pay (a) any necessary taxes and tax expenses; (b) all costs and expenses associated with disseminating notice to the Settlement Class, including but not limited to the Class Notice and Summary Settlement Notice; (c) all costs and expenses associated with the administration of the Settlement, including but not limited to processing claims and fees of the Settlement Administrator; (d) any Attorneys' Fees and Expenses award made by the Court to Class Counsel; (e) any Service Award granted by the Court to Plaintiff; (f) cash payments distributed to the Settlement Class Members who have submitted timely, valid, and approved Claims, pursuant to the claims process outlined in Section 4.2 of the Settlement Agreement and the distribution method outlined in Section 4.3 of the Settlement Agreement; and (g) the Residual Funds, if any, pursuant to Section 4.4 of the Settlement Agreement. The Defendant's payment of a total of $1.7 million (inclusive of amounts already paid for class notice and administration costs), will be in full satisfaction of all individual and class claims asserted in, or that could have been asserted in, the Action, including for the attorneys' fees, expenses and service awards, and other amounts described in the Final Approval Order and Judgment. If any excess Residual Funds remain in the Settlement Fund after the payments described, the Judge directed the Parties and the Claims Administrator to distribute all such Residual Funds to Consumer Reports as the cy pres recipient. T The Judge dismissed the Action in its entirety with prejudice, and without fees or costs except as otherwise provided for. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, there is no just reason for delay in the entry of the Final Approval Order and Judgment and immediate entry by the Clerk of the Court is expressly directed. The Judge entered judgment in the matter pursuant to Rule 58 of the Federal Rules of Civil Procedure. A full-text copy of the Court's Jan. 29, 2020 Final Approval Order is available at https://is.gd/WKPdwa from Leagle.com. Jeannie Patora, individually on behalf of herself and all others similarly situated, Plaintiff, represented by Michael Milton Liskow -- liskow@gmail.com -- The Sultzer Law Group P.C. & Jason P. Sultzer -- sultzerj@thesultzerlawgroup.com -- The Sultzer Law Group. Tarte, Inc., Defendant, represented by Trenton H. Norris -- trent.norris@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP & George Langendorf -- george.langendorf@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP, pro hac vice. TREASURY WINE: Faces Second Class Action After Profit Downgrade --------------------------------------------------------------- Simon Evans, writing for Australian Financial Review, reports that law firm Maurice Blackburn is looking for a potential second win over Penfolds owner Treasury Wine Estates in a new class action being investigated after the recent surprise profit downgrade, three years after securing a $49 million settlement in a previous case. Maurice Blackburn class actions principal Miranda Nagy is handling the latest potential action for possible breaches of sharemarket disclosure laws after a profit dive in the United States caused mainly by a cheap wine glut wiped $3 billion from Treasury's sharemarket value. Ms. Nagy spearheaded a previous class action against Treasury in a long-running case between 2015 and 2017, which eventually ended with a $49 million settlement by the wine group on August 28, 2017 in favour of shareholders. That case also centred on Treasury's US wine business and similar disclosure issues after profits went south in 2013, resulting in the infamous crushing of millions of bottles of cheap wine which had built up in distributors' warehouses. Treasury Wine chief executive Mike Clarke was not at the helm of the company during that downgrade, and was hired by an embarrassed Treasury board in 2014 to instil more consistency into investment returns and long-term brand-building. Maurice Blackburn is the second large law firm to investigate a possible class action by shareholders this time around, with Slater and Gordon revealing it was testing the appetite of Treasury shareholders to become involved in its own potential class action over the same issue. Disclosure questions The 2013 downgrade and $160 million in write-downs were also mainly related to the commercial wine segment, in bottled wine with price tags of $US10 ($14.89) or less. Maurice Blackburn said the latest claim centred on Treasury's announcement on January 28 in which it revealed a 17 per cent decline in earnings in its Americas division for the six months ended December 31, and a downgrade of full-year profit forecasts to a range of 5 to 10 per cent, instead of the anticipated range of 15 to 20 per cent. Maurice Blackburn is investigating whether Treasury Wine should have made a "corrective disclosure" much earlier. Treasury on January 28 blamed changed market dynamics as a flood of private label and exclusive brands hit the market across the industry, and some internal upheaval in its top US management after Australasian executive Angus McPherson ended up not being able to shift permanently to the US to take the top job because of personal reasons. Ms. Nagy said the January 28 announcement raised serious questions about Treasury's disclosure culture. "Like this recent announcement, the earlier class action we ran against Treasury also concerned an alleged failure to disclose serious problems in the Americas, particularly in Treasury's Commercial wine," she said. "We are investigating whether the facts are connected and whether Treasury has learned its lessons from the past," Ms Nagy said. She said Treasury shareholders would naturally have expected a high standard from the company after the events that prompted the last class action. Maurice Blackburn said shareholders who bought Treasury shares between February 14, 2019 and January 28, 2020 may be eligible to pursue financial redress for the heavy losses in share value. [GN] TWIN BAIL: Faces Sloatman Suit Over Unwanted Marketing Calls ------------------------------------------------------------ LALA SLOATMAN, individually and on behalf of all others similarly situated v. TWIN BAIL BONDS, and DOES 1 through 10, inclusive, and each of them, Case No. 2:20-cv-00693 (N.D. Cal., Jan. 23, 2020), alleges that the Defendants promote and market their merchandise, in part, by placing unsolicited telephone calls to wireless phone users, in violation of the Telephone Consumer Protection Act. The Plaintiff seeks damages and any other available legal or equitable remedies resulting from the illegal actions of the Defendant, in negligently, knowingly, and/or willfully contacting the Plaintiff's cellular telephone in violation of the TCPA and related regulations, specifically the National Do-Not-Call provisions, thereby invading the Plaintiff's privacy. Beginning in Oct. 2018, the Defendants contacted the Plaintiff's cellular telephone number ending in -7696, in an attempt to solicit the Plaintiff to purchase their services. The Defendants did not possess the Plaintiff's "prior express consent" to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on her cellular telephone, says the complaint. Twin Bail provides bail bonds with its principal place of business located in Santa Ana, California.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: 323-306-4234 Facsimile: 866-633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com UBER: Gibson Dunn Secures $20MM Class Action Settlement ------------------------------------------------------- Law360 reports that Gibson Dunn & Crutcher LLP helped a pair of Korean ramen companies beat a $500 million antitrust suit and secured a $20 million settlement for Uber to resolve independent contract misclassification claims by drivers, landing it among Law360's 2019 Class Action Practice Groups of the Year. [GN] UNITED STATES: Calhoun Suit Seeks to Certify Class of Veterans -------------------------------------------------------------- In the case, WALTON CALHOUN, EDWARD COWEN, and JOHN DOE, on behalf of themselves and all other individuals similarly situated; and NATIONAL VETERANS LEGAL SERVICES PROGRAM v. RYAN D. MCCARTHY, in his official capacity as Secretary of the Army; BARBARA BARRETT, in her official capacity as Secretary of the Air Force; and THOMAS MODLY, in his official capacity as Secretary of the Navy, Case No. 1:19-cv-03744-EGS (D. Colo.), the Plaintiffs move the Court for an order: 1. certifying a class consisting of all veterans who: a. Submitted an application to one of the Correction Boards after June 12, 2012 and through the time when class notice may be given; b. Are still awaiting a decision from one of the Correction Boards; c. Have not received a final decision from a Correction Board with respect to such application within 18 months of the Correction Board's receipt of the application; and d. Submitted applications that were not excluded by the Secretary of the applicable military department from the timeliness standards pursuant to 10 U.S.C. section 1557(c) due to the Secretary determining such applications warranted a longer period of consideration; and 2. appointing Orrick, Herrington & Sutcliffe, LLP as class counsel. As detailed in the First Amended Complaint, the Correction Boards for the various branches of the United States military have failed to comply with 10 U.S.C. section 1557(b). This statute requires final action on all applications received by the Correction Boards within 18 months of receipt. The Correction Boards annually fail to meet this deadline. Walter Calhoun, Edward Cowen, and John Doe all have applications that have been pending before the Correction Boards for over 18 months. Class Plaintiffs now bring this Motion to certify a class of similarly situated veterans with applications pending more than 18 months. The United States Air Force is the aerial warfare service branch of the United States Armed Forces. The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the eight uniformed services of the United States.[CC] The Plaintiffs are represented by: John "Jay" Jurata, Jr., Esq. Shane McCammon, Esq. Matthew D. LaBrie, Esq. Rene Kathawala, Esq. Michael J. Buchanan, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP Columbia Center 1152 15th Street, N.W. Washington, D.C. 20005-1706 Telephone: (202) 339-8400 Facsimile: (202) 339-8500 E-mail: jjurata@orrick.com smccammon@orrick.com mlabrie@orrick.com rkathawala@orrick.com mbuchanan@orrick.com fzalom@orrick.com - and - Barton F. Stichman, Esq. Rochelle Bobroff, Esq. NATIONAL VETERANS LEGAL SERVICES PROGRAM 1600 K Street, N.W., Suite 500 Washington, DC 20006-2833 Telephone: (202) 621-5677 Facsimile: (202) 328-0063 E-mail: bart@nvlsp.org rochelle@nvlsp.org UNITED STATES: First Circuit Affirms Dismissal of Jalbert Suit -------------------------------------------------------------- In the case, CRAIG R. JALBERT, in his capacity as Trustee of the F2 Liquidating Trust, on behalf of himself and all others similarly situated, Plaintiff, Appellant, v. U.S. SECURITIES AND EXCHANGE COMMISSION, Defendant, Appellee, Case No. 18-2043 (1st Cir.), the U.S. Court of Appeals for the First Circuit affirmed the district court's order granting SEC's motion to dismiss Jalbert's complaint for lack of subject matter jurisdiction and failure to state a claim. F-Squared was an SEC-registered investment adviser firm headquartered in Wellesley, Massachusetts. It served clients in the advisor, institutional, retail, and retirement markets. At some unspecified point, the SEC began investigating F-Squared for violations of federal securities laws. On Dec. 4, 2014, with the threat of administrative and cease-and-desist proceedings looming, F-Squared executed an Offer of Settlement pursuant to Rule 240(a) of the Rules of Practice of the SEC. The SEC accepted the Offer and settled with F-Squared on Dec. 22, 2014, through the entry of an Order Instituting Administrative and Cease-and-Desist Proceedings, to which F-Squared consented. Under the terms of the Order, F-Squared admitted that, between April 2001 and September 2008, advertising materials for one of its investment strategies included statements based on the inaccurate compilation of performance and historical data which improved and inflated the strategy's historical performance. That conduct, F-Squared accepted, violated federal securities laws. F-Squared agreed to cease and desist from committing further securities-laws violations and to undertake certain compliance measures. The Order also required F-Squared to pay $30 million in disgorgement and a $5 million civil money penalty to the United States Treasury. As agreed, F-Squared transferred $35 million directly into the Treasury. In July 2015, F-Squared filed for bankruptcy. The F2 Liquidating Trust was established during the bankruptcy proceedings to recover on behalf of F-Squared as its successor-in-interest. The bankruptcy court appointed Craig Jalbert as the trustee. On Oct. 26, 2017, Jalbert filed a complaint in the U.S. District Court for the District of Massachusetts against the SEC purporting to represent the F2 Liquidating Trust and all other individuals and entities similarly situated who had money collected from them by the SEC as 'disgorgement' without statutory authority or in excess of statutory authority during the six years prior to the filing of the complaint. Jalbert asserted two claims under the Administrative Procedure Act, alleging that: (1) in light of the then-recent Supreme Court opinion in Kokesh v. SEC, the SEC exceeded its statutory authority by seeking and obtaining disgorgement from F-Squared and the similarly situated members of the Proposed Class as a separate monetary penalty in both administrative proceedings and federal court actions; and (2) the SEC "failed to observe the procedural requirements" of federal securities law by not obtaining an accounting of profits allegedly acquired as a result of wrongdoing before ordering disgorgement. The complaint sought a declaration that the SEC's collection of disgorgement was unlawful pursuant to 5 U.S.C. Section 706; the setting aside of the $30 million disgorgement paid by F-Squared under the Order; and a refund of that payment, as well as similar refunds for the putative class members. On April 4, 2018, the SEC filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). On Aug. 22, 2018, the district court entered a memorandum and order granting the SEC's motion to dismiss. The court determined that it lacked subject matter jurisdiction because Congress vested the courts of appeals with exclusive jurisdiction over challenges to SEC orders. It also held that Jalbert had failed to state a claim upon which relief could be granted because F-Squared, as part of the settlement, clearly and unambiguously waived the right to judicial review by any court. Jalbert then filed the timely appeal of the district court's dismissal. Jalbert's big-ticket argument is that in light of the Supreme Court's decision in Kokesh -- which holds that disgorgement ordered in civil enforcement proceedings constitutes a "penalty" subject to the five-year statute of limitations set forth in 28 U.S.C. Section 2462,2 137 S. Ct. at 1639 -- the SEC's $30 million disgorgement order against F-Squared was unauthorized under the statutes governing SEC disgorgement because it was a penalty and not a remedial, compensatory charge. Unconvinced by Jalbert's arguments that the voluntary, express waiver of judicial review in the Order is void or ineffective, the First Circuit concludes that the district court correctly decided that the complaint failed to state a claim upon which relief could be granted inasmuch as F-Squared waived judicial review by any court. Having decided that Jalbert's claims are not entitled to judicial review, it is unnecessary to address Jalbert's remaining arguments, and his conclusion is sufficient to dispose of the appeal. For the foregoing reasons, the First Circuit affirmed the district court's order. A full-text copy of the First Circuit's Dec. 20, 2019 Order is available at https://is.gd/6aY0F7 from Leagle.com. Alex Lipman -- alipman@brownrudnick.com -- with whom William R. Baldiga -- wbaldiga@brownrudnick.com -- Justin S. Weddle -- jweddle@brownrudnick.com -- Ashley L. Baynham -- abaynham@brownrudnick.com -- and Brown Rudnick LLP were on brief, for appellant. John B. Capehart, Senior Counsel, Securities and Exchange Commission, with whom Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor, and Daniel Staroselsky, Senior Litigation Counsel, were on brief, for appellee. VCI CONSTRUCTION: Olivas Labor Suit Removed to C.D. California -------------------------------------------------------------- VCI Construction, LLC, removed the case captioned as JUAN OLIVAS, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act; TANNER YOUNG, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act v. VCI CONSTRUCTION, LLC an unknown entity; and DOES 1 through 100, inclusive, Case No. CIVDS1804393 (Filed Feb. 23, 2018), from the Superior Court of the State of California for the County of San Bernardino to the U.S. District Court for the Central District of California on Jan. 23, 2020. The Plaintiffs assert claims against the Defendants alleging violation of the California Labor Code by failing to pay overtime wages, meal and rest period premiums, and minimum wages. VCI is a full service contractor serving construction and engineering need for telecom, wireless and utility markets.[BN] The Defendant is represented by: Evan R. Moses, Esq. Carolyn B. Hall, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: 213 239 9800 Facsimile: 213 239 9045 E-mail: evan.moses@ogletree.com carolyn.hall@ogletree.com VH PROPERTY CORP: Servers Sue Over Unpaid Overtime, Missed Breaks ----------------------------------------------------------------- Adriana Curiel, Brissette Curiel, Jackeline Honorio and Maria Rodriguez, individually and on behalf of all others similarly situated, Plaintiff, v. VH Property Corp. and Does 1 through 25, Case No. 20STCV03009 (Cal. Super., January 23, 2020), seeks to recover unpaid overtime, redress for missed meal and rest breaks and for failure to provide complete and accurate wage statements under the California Labor Code and applicable Industrial Welfare Commission Wage Orders. VH Property operates as the "Trump National Golf Club" where Plaintiffs worked as servers from January to November 2018. [BN] Plaintiff is represented by: Jonathan M. Genish, Esq. BLACKSTONE LAW, APC 8383 Wilshire Boulevard, Suite 745 Beverly Hills, CA 90211 Telephone: (310) 622-4278 Email: jgenish@blackstonepc.com WAL-MART INC: Court Grants Bid to Sever Claims in Monda Suit ------------------------------------------------------------ In the case, KATHY MONDA, et al., Plaintiffs, v. WAL-MART, INC., Defendant, Case No. 3:19-cv-155 (S.D. Ohio), Judge Thomas M. Rose of the U.S. District Court for the Southern District of Ohio, Western Division, (i) granted the Defendant's Renewed Motion to Sever Plaintiffs' Claims or, in the Alternative, to Try Plaintiffs' Claims Separately; and (ii) denied without prejudice the Defendant's Partial Motion to Dismiss Plaintiffs' Amended Complaint. The Amended Complaint contains four claims, each brought under Title VII of the Civil Rights Act of 1964, alleging that Walmart discriminated against one or more of the Plaintiffs (all of whom are women) based on their gender: (i) Count 1 - Disparate Treatment on the Basis of Pay (brought by all the Plaintiffs); (ii) Count 2 - Disparate Treatment on the Basis of Promotion (brought by Morgan, Shearer-Luke, McKinney, Thomas, and Monda); (iii) Count 3 - Disparate Impact on the Basis of Pay (brought by all the Plaintiffs); and (iv) Count 4 - Disparate Impact on the Basis of Promotion (brought by Morgan, Shearer-Luke, McKinney, Thomas, and Monda, i.e., the same five women who bring Count 2). The Plaintiffs allege that they are former members of a national class action lawsuit, Wal-Mart Stores, Inc. v. Dukes, that alleged sex discrimination in pay and promotion by Walmart. In 2011, the U.S. Supreme Court reversed the district court's order that had certified the proposed nationwide class in that lawsuit. The Plaintiffs allege that the action stems from Dukes, and that they previously filed EEOC charges and Amended EEOC charges. The Plaintiffs contend that, throughout its stores in the State of Ohio, Walmart maintained a pattern or practice of gender discrimination in either compensation or promotion, and that the evidence that Walmart engaged in such a pattern is relevant evidence that may be used by each individual plaintiff to support her assertion that Walmart's actions with respect to her own pay or promotion (or both) were driven by gender discrimination. They allege that, in each of Walmart's regions, the compensation and/or promotion policies and practices of Walmart had a disparate impact (not justified by business necessity) on female employees, including the Plaintiffs. The Plaintiffs also allege that Walmart introduced a new pay structure in 2004, that starting in 2005 Walmart changed how start pay was established for hourly employees, and that in 2006 Walmart added a cap on the pay permitted for each job class. Additionally, they allege that stores within Walmart's Ohio regions have common formats, hourly jobs, positions, department structure, and management jobs. Within each region, each individual store has Assistant Managers who supervise staff, and all stores have Store Managers who are in charge of the store. Also within each region, stores are supervised by District Managers, who are responsible for ensuring store compliance with company policies and have authority to make or approve compensation and promotion decisions for hourly employees in the stores within their district. Each region consists of multiple districts that are each headed by a Regional Vice President. The Complaint also contains paragraphs with allegations concerning each Plaintiff individually. Each of the Plaintiffs worked at different stores from one another and worked at different points in time -- and for various lengths of time -- during the overarching time frame of 1991 through 2015. With a few exceptions, the Plaintiffs worked in different positions and departments (ranging from Greeter to Pharmacy Technician to Assistant Manager). Each has different male comparators. Pending before the Court are two motions filed by Defendant Wal-Mart: (1) The Defendant's Renewed Motion to Sever Plaintiffs' Claims or, in the Alternative, to Try Plaintiffs' Claims Separately, and (2) The Defendant's Partial Motion to Dismiss Plaintiffs' Amended Complaint. In its Motion to Sever, Walmart asks that the Court severs the claims of each of the Plaintiffs from one another pursuant to Federal Rule of Civil Procedure 21. The Plaintiffs filed separate responses in opposition to both the Motion to Dismiss and the Motion to Sever. Walmart filed separate replies in support of each motion. Following briefing, the Plaintiffs also filed a Statement of Recent Ruling. Judge Rose finds that each of the Plaintiffs were misjoined as Plaintiffs with one another. This finding is also in line with other similar lawsuits filed by former class members of the Dukes national class action, where courts granted motions to sever that involved similar (if not identical) arguments raised by the parties. Given that the first requirement under Rule 20(a)(1) is not met, it is dispositive of the issue and the Judge need not consider whether the second requirement is met. While it is true that the Plaintiffs share at least two of the same causes of action (Counts 1 and 3), similar issues of liability alone are not sufficient to meet the requirements under Rule 20(a)(1). Next, Judge Rose finds that as misjoined Plaintiffs, each of the Plaintiffs must proceed with her claims against Wal-Mart in separate actions. Each Plaintiff's claims are therefore severed from the other Plaintiffs' claims, the claims of all of the Plaintiffs except Monda (the first-named Plaintiff) are dismissed without prejudice, and all of the Plaintiffs except Monda will be dropped as parties to the action. Finally, Judge Rose anticipates potential issues regarding the venue for each of the separate actions, and it may end up being appropriate for one or more of the separate actions to be transferred to another district or division. The Judge does not dismiss the action, but instead -- in accordance with the procedure set forth -- orders that each of the Plaintiffs proceed in her own separate action. The Court implements the procedure in an effort to avoid adversely affecting the viability of any claim of any Plaintiff due to the finding of misjoinder, while also providing for judicial efficiency, clarity, and fundamental fairness in an attempt to avoid future delays. For the reasons stated, Judge Rose granted the Defendant's Renewed Motion to Sever Plaintiffs' Claims or, in the Alternative, to Try Plaintiffs' Claims Separately. To implement severance, the Judge directed the Clerk of the Court and the parties to follow the procedure: 1. The claims of Plaintiffs Lee, McKinney, Colvin, Thomas, DeVault, Morgan, and Shearer-Luke (i.e., all plaintiffs except for Monda) are dismissed without prejudice; 2. On Jan. 31, 2020, Monda may file a Second Amended Complaint in this action if she chooses to continuing pursuing her claims; 3. On Jan. 31, 2020, each of the other seven Plaintiffs besides Monda may file a separate complaint to initiate her own individual action (the Clerk being directed to waive filing fees for such actions and to assign such actions to the undersigned, and counsel for those other seven Plaintiffs being directed to contact the Clerk when filing those individual actions in order to facilitate the waiver of filing fees); 4. On Jan. 31, 2020, each of the Plaintiffs (through written filing(s), which may be made jointly) must either show cause why venue remains proper in the judicial district for her claims or identify which judicial district would be the proper venue to which the Court should transfer her claims; 5. On Feb. 14, 2020, Walmart may (if it so chooses) make a written filing concerning -- as to each Plaintiff's separate action -- why venue remains, or does not remain, proper in the judicial district and indicate if the parties have consented to transfer the action to another district or division; 6. On Feb. 1, 2020, each of the Plaintiffs besides Monda will be dropped as a party in the action; and 7. On Feb. 1, 2020, the Court's October 17, 2019 Order temporarily staying discovery in the matter will be terminated, thus lifting the stay on discovery in the action with respect to Monda and Walmart (subject to any applicable rules or statutes). In light of this ruling and procedure, the Court did not address, and instead denied without prejudice the Defendant's Partial Motion to Dismiss Plaintiffs' Amended Complaint. If it so chooses, Walmart may file an appropriate motion, in one or more of the separate actions stemming from the Order, that may raise one or more of the arguments from the Motion to Dismiss. A full-text copy of the District Court's Dec. 20, 2019 Entry & Order is available at https://is.gd/bKrQyR from Leagle.com. Kathy Monda, Tandi Lee, Jerilynn McKinney, Beckie Colvin, Rose Thomas, Sylvia Devault, Gwen Morgan & Jody Shearer-Luke, Plaintiffs, represented by Cathleen Scott -- cscott@scottwagnerlaw.com -- Scott Wagner & Associates, P.A., pro hac vice & Lindsey Wagner -- lwagner@scottwagnerlaw.com -- Scott Wagner & Associates. Wal-Mart, Inc., Defendant, represented by Alison M. Day -- aday@littler.com -- Littler Mendelson PC, Sana Ahmed -- sahmed@littler.com -- Littler Mendelson, PC & Scott A. Forman -- sforman@littler.com -- Littler Mendelson, P.C., pro hac vice. WALGREEN CO: Faces Whittington Employment Suit in California ------------------------------------------------------------ A class action lawsuit has been filed against Walgreen Co. The case is captioned as Charles Whittington, On behalf of others similarly situated v. Walgreen Co., a Illinois corporation and Does 1-50, Case No. 34-2020-00274097-CU-OE-GDS (Cal. Super., Sacramento Cty., Jan. 24, 2020). The lawsuit alleges violation of employment-related laws. Walgreen is an American company that operates as the second-largest pharmacy store chain in the United States behind CVS Health. Walgreen specializes in filling prescriptions, health and wellness products, health information, and photo services.[BN] The Plaintiff is represented by: Matern J. Matern, Esq. MATERN LAW GROUP, PC One Market Plaza Spear Tower, Suite 3676 San Francisco, CA 94105 Telephone: (855) 888-2651 WATSON GRINDING: Cortez Sues in Texas Dist. Ct. for Harris Cty. --------------------------------------------------------------- A class action lawsuit has been filed against Watson Grinding and Manufacturing Co. The case is captioned as RAMON CORTEZ, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED v. WATSON GRINDING AND MANUFACTURING CO.; WATSON VALVE SERVICES INC.; KMHJ LTD; and KMHJ MANAGEMENT COMPANY LLC, Case No. 202005191-7 (Texas Dist., Harris Cty., Jan. 24, 2020). The case is assigned to the Hon. Judge Donna Roth. For more than 50 years, Watson Grinding has provided precision machined parts, thermal spray coatings and grinding services to the companies in the Oil & Gas, Chemical and Mining industries.[BN] The Plaintiff is represented by: Gregory F. Cox, Esq. MOSTYN LAW FIRM 3810 W. Alabama St. Houston, TX 77027-5204 WAYNE COUNTY, MI: Faces Vehicle Seizure, Civil Forfeiture Lawsuit ----------------------------------------------------------------- Mark Hicks and Oralandar Brand-Williams, writing for The Detroit News, report that the lead attorney for two residents who are suing Wayne County over its vehicle seizure and civil forfeiture practices said on Feb. 5 that the federal complaint is aimed at stopping "seize and ransom" activities against motorists. Wesley Hottot of the Institute of Justice, a nonprofit public interest law firm, discussed the lawsuit filed in U.S. District Court during a news conference outside the federal courthouse downtown, accompanied by the plaintiffs, Melisa Ingram and Robert Reeves, who spoke about how the seizure of their vehicles affected their lives. "For too long, the residents of Wayne County and Detroit have been preyed upon under the flimsy legal pretenses" of civil forfeiture law, Hottot said. The suit, filed late on Feb. 4, says Wayne County's vehicle seizure and civil forfeiture practices are unconstitutional, unreasonable and unfairly target residents who have not been charged with crimes. Hottot said Wayne County "leads the state in questionable forfeiture activity." Maria Miller, the spokesman for the Wayne County Prosecutor's Office and an assistant prosecutor, said on Feb. 5, "It is the longstanding practice of WCPO not to comment on pending litigation outside of court. The matter will be addressed in court by our legal representatives." James Martinez, a spokesman for the county, said in an email: "We have no comment at this time on any potential pending litigation." The Institute of Justice argues that despite the plaintiffs having done nothing wrong, the county has deprived them their vehicles "for half a year or longer." The lawsuit asserts Reeves has been waiting months to free his 1991 Chevrolet Camaro, two cell phones and $2,280 in cash seized in July. Police approached the Detroit man after he met with an acquaintance they believed had construction machinery allegedly stolen from a Home Depot. "I feel like I was robbed," Reeves said at the news conference. "I'm fighting back 'cause I don't want anyone else to go through what I went through. "It's affected my entire life," he said. "It's been very hard for me and my family." Officers did not arrest anyone in connection with the alleged theft, and "in the more than six months since, no forfeiture complaint has been filed against Robert's vehicle (and other property), and there has been no opportunity for him to contest the seizure," his attorneys wrote in the filing. Reeves received no answers from the Vehicle Seizure Unit, and his attorney also was ignored, according to the document. Sheriff's deputies allegedly took Ingram's 2017 Ford Fusion on two occasions when her then-boyfriend borrowed it: first, when he allegedly picked up a prostitute and, about six months later, as the man left a barbecue at a home that authorities claimed was "in some way, connected to drugs or prostitution," according to the filing. The first time, Ingram paid more than $1,300, including towing and fees, to have her car released. The second time, as the single mother faced bankruptcy as a result of the first seizure of her car, the Vehicle Seizure Unit demanded she pay at least $1,800, the suit claims. "If not for the first seizure of her car, Melisa would not have declared bankruptcy," the document stated. "The second seizure only compounded her financial problems and led her to release the vehicle to Ford in bankruptcy." Institute for Justice attorneys allege county authorities still filed a forfeiture complaint against Ingram and stopped her from retrieving personal belongings for seven months. "In many ways, Melisa was victimized twice: First by her partner and a second time by Detroit's outrageous vehicle forfeiture program, which turns a blind-eye to the innocence of owners," Hottot said in a statement. Ingram said she's part of the lawsuit and sharing her story because she doesn't want anyone else to experience what she has. Ingram's ordeal, according to her and the lawyers, has created a financial hardship and has forced her to catch buses because she can't get another vehicle. The suit follows lengthy efforts by state officials to reform civil asset forfeiture laws, which had allowed police to seize and sell property seized if there was reasonable cause to believe it was related to a drug crime. In May, Michigan Gov. Gretchen Whitmer signed into law bipartisan legislation requiring a conviction before police can permanently confiscate property in most cases. Other bills signed require the government to notify a person that his or her property has been seized and to return that property within 14 days if the forfeiture is not justified. The suit claims the seizure of Ingram and Reeves' cars are "part of a broader policy and practice under which the county seizes vehicles, including from innocent owners, fails to provide adequate notice or opportunity to be heard, and continues holding them until the owner pays a 'redemption fee,' towing and storage fees." Citing a Michigan Capitol Confidential article, the plaintiff's lawyers allege the county "has forfeited no fewer than 2,600 cars and collected not less than $1.2 million in revenue." The lawsuit seeks compensatory damages as well as permanent injunctions halting the county's seizure policies. Attorney Barton Morris, who also represents the plaintiffs, said while Wayne County has most of the complaints there also have been concerns about forfeiture policies used by law enforcement agencies in Oakland and Macomb counties. The Institute for Justice said on Feb. 4 that in response to other lawsuits the group filed, federal judges in Albuquerque and Philadelphia have shut down similar municipal forfeiture programs. [GN] WESTPAC BANKING: March 30 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------ Robbins Geller Rudman & Dowd LLP on Feb. 4 disclosed that a securities class action lawsuit has been filed in the District of Oregon on behalf of purchasers of Westpac Banking Corporation (NYSE:WBK) securities between November 11, 2015 and November 19, 2019 (the "Class Period"). The case is captioned Byrne v. Westpac Banking Corp., No. 20-cv-00171, and is assigned to Magistrate Judge John V. Acosta. The Westpac securities class action lawsuit charges Westpac and certain of its officers with violations of the Securities Exchange Act of 1934. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Westpac securities during the Class Period to seek appointment as lead plaintiff in the Westpac securities class action lawsuit. A lead plaintiff acts on behalf of all other class members in directing the Westpac securities class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the Westpac securities class action lawsuit. An investor's ability to share in any potential future recovery of the Westpac securities class action lawsuit is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff of the Westpac securities class action lawsuit or have questions concerning your rights regarding the Westpac securities class action lawsuit, please visit our website by clicking here or contact Brian Cochran at 800/449-4900 or 619/231-1058, or via e-mail at bcochran@rgrdlaw.com. Lead plaintiff motions for the Westpac securities class action lawsuit must be filed with the court no later than March 30, 2020. The Westpac securities class action lawsuit alleges that: (1) contrary to Australian law, Westpac failed to report over 19.5 million International Funds Transfer Instructions ("IFTIs") to Australia's financial crimes regulator, AUSTRAC; (2) Westpac failed to appropriately monitor and assess the money laundering and terrorism financing risks associated with movement of money into and out of Australia; (3) Westpac failed to conduct appropriate due diligence on transactions in South East Asia and the Philippines that had known financial indicators relating to child exploitation risks; and (4) Westpac's Anti-Money Laundering and Counter-Terrorism Financing policy was inadequate to identify, mitigate, and manage money laundering and terrorism financing risks. On November 19, 2019, AUSTRAC filed a civil action against Westpac alleging over 23 million breaches of Australia's Anti-Money Laundering and Counter-Terrorism Financing Act of 2006, including failing to report over 19.5 million IFTIs, failing to perform enhanced due diligence on correspondent banks in high-risk jurisdictions, and potentially providing services used in the exploitation of children in South East Asia and the Philippines. AUSTRAC also alleged that Westpac had been aware of the heightened child exploitation risks since at least 2013. On this news, the price of Westpac American Depositary Receipts ("ADRs") declined more than 7% over the next three trading days to close at $16.67 per ADR on November 22, 2019. Thereafter, on November 25, 2019, Westpac's CEO, defendant Brian Charles Hartzer, resigned as a result of the scandal. Robbins Geller Rudman & Dowd LLP -- http://www.rgrdlaw.com-- is one of the world's leading law firms representing investors in securities litigation. With 200 lawyers in 9 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For six consecutive years, ISS Securities Class Action Services has ranked the Firm in its annual SCAS Top 50 Report as one of the top law firms in the world in both amount recovered for shareholders and total number of class action settlements. Robbins Geller attorneys have helped shape the securities laws and have recovered tens of billions of dollars on behalf of aggrieved victims. Beyond securing financial recoveries for defrauded investors, Robbins Geller also specializes in implementing corporate governance reforms, helping to improve the financial markets for investors worldwide. Robbins Geller attorneys are consistently recognized by courts, professional organizations, and the media as leading lawyers in the industry. Contacts: Robbins Geller Rudman & Dowd LLP Brian Cochran 800/449-4900 or 619/231-1058 bcochran@rgrdlaw.com [GN] XALER: Averts TCPA Class Action Over Unsolicited Text Messages -------------------------------------------------------------- Amanda K. Blackmon, Esq. -- mandi.blackmon@troutman.com -- and Ethan G. Ostroff, Esq. -- ethan.ostroff@troutman.com -- of Troutman Sanders LLP, in an article for Lexology, reports that in March 2019, plaintiffs Axel Derval and Morgan Simmons initiated a Telephone Consumer Protection Act class action lawsuit against Xaler -- a cannabis delivery company. Plaintiffs alleged that Xaler employs a "uniform policy of causing text messages to be sent to consumers' cellular telephones on Xaler's behalf without prior express consent." Xaler asserts that it only sends text messages to its customers who have consented to receive text messages. In a brief opinion, Judge Otis White of the United States District Court for the Central District of California nixed plaintiffs' class claim on numerosity grounds. The Court acknowledged that numerosity does not turn on a fixed number of class members, and that numerosity may be met when the exact number of class members is unknown. However, the party moving for class certification must show "some evidence of or reasonably estimate the number of class members." Speculation about the class size is not enough to satisfy numerosity. In support of their motion for class certification and allegation that numerosity was satisfied, plaintiffs relied on "hundreds of [online] reviews from different [Xaler] customers" on a particular website. Plaintiffs argued that "hundreds of reviews mean hundreds of Xaler customers, all of whom must have received text messages from Xaler," and "common sense dictates at least some of those customers" received text messages without providing consent. Based on these allegations, the Court held that plaintiffs failed to satisfy the numerosity requirement of Rule 23. The Court found that the reviews on weedmaps.com did not support a finding that the "customers received unwanted text messages, revoked consent to receive messages, or continued to receive messages after revocation." Thus, while plaintiffs showed that there may be enough Xaler customers to show numerosity, "[e]vidence of possible class membership is not evidence of actual numerosity." Without addressing any other Rule 23 requirements, the Court denied class certification. It is not often that we see class certification defeated on numerosity grounds, but this decision from the Central District of California is a reminder to consider every angle to defeat class certification. [GN] YAHOO INC: July 20 Claims Filing Deadline Set ---------------------------------------------- Jay Peters, writing for The Verge, reports that Yahoo famously suffered numerous data breaches from 2012 to 2016 (including one in 2013 that affected all 3 billion of its users), and the company is informing users that they can now submit claims for either credit monitoring or cash compensation as part of a proposed class action lawsuit settlement. Yahoo says if you had a Yahoo account anytime between 2012 and 2016 and are a resident of the US or Israel, the class action settlement may affect you. The total amount of the settlement fund is $117.5 million, up from a proposed $50 million settlement that was rejected by a judge. Yahoo will use that settlement fund to pay for: * A minimum of two years of credit monitoring for individual users * A cash payment of $100 to users who can prove they already have at least 12 months of credit monitoring (though the final cash amount may be higher or lower depending on how many claims are filed) * Compensation for time spent dealing with issues resulting from the data breaches * Out-of-pocket costs users may have had to pay as a result of having their information stolen in the data breaches, such as paying an accountant to help refile a falsified tax return * Reimbursement for some costs of Yahoo's premium or small business services If you want to file a claim, you can find the forms right here. You must submit your claim online or by mail by July 20th. But before you get too excited, just remember the Equifax situation; if a ton of people go through this process and opt for the cash payment, you're not getting anything close to $100. In addition to the 2013 breach that affected 3 billion Yahoo users, this proposed class action lawsuit also covers a 2014 "state-sponsored" hack that affected more than 500 million accounts, a 2012 "data security intrusion" (though Yahoo says there is no evidence that user credentials, email accounts, or contents of emails were taken from that), and a breach that lasted from 2015 to September 2016 where hackers were able to gain access to approximately 32 million Yahoo email accounts. [GN] YES TO INC: Whitfield Seeks Damages Over Face Mask Rash ------------------------------------------------------- Imani Whitfield, on behalf of herself and all others similarly situated, Plaintiff v. Yes To, Inc., Defendant, Case No. 19-cv-00468 (C.D. Cal., January 24, 2020), seeks damages resulting from fraud, unjust enrichment, breach of express and implied warranty, fraudulent concealment and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, California's Consumers Legal Remedies Act, California's Unfair Competition Law. Yes To, Inc. manufactures, markets and sells "Yes To Grapefruit Vitamin C Glow-Boosting Unicorn Paper Mask," a cosmetic product that is applied to the face. Yes To, Inc. is a Delaware corporation with its principal place of business in Pasadena, California. Whitfield, a Philadelphia resident, used the mask and experienced severe skin irritation and burning and her skin eventually developed a rash that resembled a severe sunburn. [BN] Plaintiff is represented by: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com - and - Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-Mail: scott@bursor.com YOSHINOYA AMERICA: DeSalvo Suit Says Website not Blind-Friendly --------------------------------------------------------------- Brett DeSalvo, individually and on behalf of themselves and all others similarly situated, Plaintiff, v. Yoshinoya America, Inc. and Does 1 to 10, inclusive, Defendant, Case No. 20-cv-00676 (C.D. Cal., January 22, 2020), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act and California's Unruh Civil Rights Act. Defendant's website, https://www.yoshinoyaamerica.com, provides a large selection of Japanese rice bowls for delivery. Plaintiff is legally blind and claims that said site cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Bobby Saadian, Esq. Thiago Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Tel: (213) 381-9988 Fax: (213) 381-9989 Email info@wilshirelawfirm.com ZEETOGROUP LLC: Wayne Sues Over SMS Ad Blasts --------------------------------------------- Amy Wayne, individually and on behalf of all others similarly situated, Plaintiff, v. Zeetogroup LLC and Tibrio LLC, Defendants, Case No. 20-cv-00175 (S.D. Cal., January 26, 2020), seeks injunctive relief, statutory damages and any other available legal or equitable remedies resulting from violations of the Telephone Consumer Protection Act. GetItFree.us is a site offering freebies and raffle prized owned and/or controlled by both Zeeto and Tibrio. Part of the marketing plan used by Zeeto and Tibrio includes sending text messages en masse to consumers regarding promotions and other offerings. Wayne did not give her express consent to be contacted in this manner. [BN] Wayne is represented by: Amanda F. Benedict, Esq. LAW OFFICE OF AMANDA F. BENEDICT 7710 Hazard Center Dr. Ste E-104 San Diego, CA 92108 Telephone: (760) 822-1911 Facsimile: (760) 452-7560 Email: amanda@amandabenedict.com ZOOM TELEPHONICS: Repackages Used Modems as New, Schulze Alleges ---------------------------------------------------------------- WILLIAM SCHULZE, On behalf of himself and all others similarly situated v. ZOOM TELEPHONICS, INC. and MTRLC LLC, Case No. 1:20-cv-10140-IT (D. Mass., Jan. 23, 2020), alleges that the Defendants repackage and sell used Motorola-branded modems, registered to prior customers, as new modems, in violation of the Florida Deceptive and Unfair Trade Practices Act. The Plaintiff contends that nothing on the packaging indicates that these modems are used, and they are sold alongside new modems. He insists that because these used modems are already registered to others, they cannot be used by the consumers, who are deceived into buying them because they believe the modems are new. Mr. Schulze brings this action as a class action on behalf of individuals, who purchased the Defendants' Motorola-branded modems that were sold as new, but which in fact had already been registered to others, and therefore are unusable. He seeks compensation for himself and the other members of the putative class, as well as injunctive relief to stop Defendants from defrauding the public. He adds that the Defendants' practice is deceptive and causes consumers to buy products--used modems registered to others--that they would not otherwise buy. The Plaintiff purchased what he believed to be a brand-new Motorola-branded modem (MT7711) at a Best Buy in The Villages, Florida. Best Buy is an authorized retailer of Motorola-branded products but only markets these products as new, not used or refurbished. In 2016, Zoom purchased the right to manufacture, market, and sell modems using the Motorola brand name. Since then, the Defendants have marketed and sold models that are branded as Motorola. Zoom has one primary supplier, T&W, a Chinese company that provides 99% of its inventory. As of 2018, modems represented 90% of Zoom's annual net sales. MTRLC is a wholly-owned subsidiary of Zoom that focuses on the sale of Zoom's Motorola branded products. MTRLC is the exclusive producer of Motorola-branded cable modems and gateways.[BN] The Plaintiff is represented by: Katherine M. Aizpuru, Esq. Hassan A. Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 E-mail: kaizpuru@tzlegal.com hzavareei@tzlegal.com - and - Janet R. Varnell, Esq. Matthew Peterson, Esq. VARNELL & WARWICK, PA P.O. Box 1870 Lady Lake, FL 32158-1870 Telephone: 352 753-8600 Facsimile: 352-503-3301 E-mail: jvarnell@varnellandwarwick.com mpeterson@varnellandwarwick.com [^] CLASS ACTION Money & Ethics Conference on May 4 --------------------------------------------------- Beard Group, Inc. is hosting the 4th Annual Class Action Money & Ethics Conference in NYC on Monday, May 4th. Sponsorship opportunities are currently available. Showcase your firm's expertise on a panel in front of 150+ class action attorneys, general counsel, litigation financiers, consultants, claims administrators, reporters and academics. For sponsorship options and details, contact Colin Post at colin@beardgroup.com Visit the conference website: http://bit.ly/2RlIHvo ********* 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 2020. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***