/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/200423.mbx C L A S S A C T I O N R E P O R T E R Thursday, April 23, 2020, Vol. 22, No. 82 Headlines A1 DIABETES: Jones Seeks to Stop Autodialed Telemarketing Calls ALLSTATE FIRE: Ayanbadejo Seeks Review of Order to Texas App. Ct. ALLSTATE INDEMNITY: Sixth Circuit Flips Dismissal of Perry Suit ALTRIA GROUP: Martinez Challenges Anticompetitive Deals on E-Cigs ANTARES PHARMA: Bid to Dismiss Smith Class Suit Still Pending ANTERO RESOURCES: Seeks 4th Cir. Review of Ruling in Romeo Suit ARCONIC INC: Ortiz Sues Over Unlawful Employment Practices BANK OF AMERICA: Fortinbras Appeals Decision in AEP Fund Suit BARNES & NOBLE: Faces Delaware Class Suit BED BATH & BEYOND: Faces Vitiello Securities Suit in New Jersey BENIHANA MARINA: Fails to Pay All Wages, Iniguez Suit Alleges BLUE APRON: Court Reverses Summary Judgment in Sciabacucchi Suit BP EXPLORATION: Denial of Review of Mueller's Compensation Upheld BPI SPORTS: Underfills Diet Supplement Containers, Garcia Claims CAJUN OPERATING: Website Inaccessible to Blind, Alcazar Claims CALIFORNIA: Court Dismisses Archer Prisoners Suit with Prejudice CELEBRITY CRUISES: Nedeltcheva Sues Over Exposure to COVID-19 COLLECTO INC: Faces Church FDCPA Suit in District of New Jersey CONAIR CORPORATION: Hergert Liability Suit Moved to N.D. Illinois COVETRUS INC: Continues to Defend Cops Retirement System Suit CR ENGLAND: Clarke Labor Class Suit Removed to C.D. California CSX TRANS: Billingsley FMLA Suit Moved from Florida to Maryland DISTRICT OF COLUMBIA: Fails to Contain COVID-19, Banks et al Claim DO LAB INC: Jimenez Sues Over Failure to Refund Festival Tickets ENSURETY VENTURES: Hirsch TCPA Suit Dismissal with Prejudice Upheld FITNESS INT'L: Barnett Seeks Refund of Unearned Membership Fees FLYWHEEL SPORTS: Ct. Orders Arbitration in Henricks TCPA Suit GENERAL MOTORS: Court Dismisses First Amended Hall Suit H Z & J SERVICES: Mercedes Seeks Minimum and OT Pay for Drivers HERITAGE-CRYSTAL CLEAN: Settlement Reached in Adelphia Class Suit HERSHA HOSPITALITY: Schaefer ADA Suit Removed to C.D. California HOOTERS III: Scott and Seales Sue Over Abrupt Termination HYUNDAI MOTOR: Michael Balks at Unsolicited Telemarketing Calls IBERIABANK CORP: Suits Challenge First Horizon Merger INTERNATIONAL FLAVORS: Faces Securities Class Suits in Tel Aviv JEI TRUCKING: Williams FLSA Suit Moved From Arkansas to Oklahoma JUUL LABS: Gabbard Consumer Class Suit Removed to E.D. Kentucky KENNER, LA: La. App. Affirms Prelim Injunction Ruling in Drumm Suit KILOO A/S: McDonald Suit Seeks to Certify Classes & Subclasses LIGHTHOUSE INSURANCE: Bond et al Sue over Unsolicited Phone Calls LYFT INC: Keiner Named Lead Plaintiff in Securities Suit MDL 2184: $13MM Google Electronic Comm. Suit Deal Gets Final Ct. OK MDL 2286: Court Denies Bid to Stay Midland TCPA Suit MDL 2744: Ct Narrows Claims in Monostable Electronic Gearshift Suit MENLO THERAPEUTICS: Faces Foamix Merger-Related Class Suits MENLO THERAPEUTICS: Settlement Reached in Savelstrov Class Suit MESA AIR GROUP: Lowthorp Alleges Misleading IPO Docs NCAA: Baker Seeks Damages Over Football-Related Head Injuries NESTLE PURINA: Jacquin Consumer Suit Removed to E.D. Missouri NEW YORK: App. Ct. Dismisses Counts I, II v. MTA & LIRR in Jacobs NEWLINK GENETICS: 2nd Cir. Appeal in Nguyen Action Still Pending NORRISTOWN AREA SCHOOL: Spanish Teacher Alleges Discrimination NOVO NORDISK: FWK Holdings Alleges Price-Fixing of Insulin Drugs NUVANCE HEALTH: Fails to Defend PII From Data Breach, Gyscek Says OHIO STATE UNIVERSITY: Does Sue Alleging Civil Rights Violations ONE PLANET: Court Partly Denies Bid to Dismiss Schley TCPA Suit OPKO HEALTH: Avraham Class Action Ongoing OPKO HEALTH: Bid to Dismiss Consolidated Class Action Pending OPKO HEALTH: Data Security Breach Suits v. BioReference Ongoing OPKO HEALTH: Sharon Suit in Tel Aviv Closed Temporarily OUTLAW LABORATORY: Certification of 3 Classes Sought PENNSYLVANIA: Faces C.Z. Class Suit in Pennsylvania Sup. Ct. PREFERRED CAREGIVERS: Misclassifies Employees, Badon Claims R&B CORP: Nixon Sues in E.D. Virginia Alleging Violation of FDCPA RALPHS GROCERY: Torres Seeks Civil Penalties for Unpaid Wages RENT-A-CENTER INC: Agreement in Principle Reached in Russel Suit RESOLUTE ENERGY: Ct. Dismisses Mack Securities Suit RUTTER'S INC: Johnson Sues Over Data Security Breach SAC WIRELESS: Smith Sues Over Failure to Pay Overtime Wages SAFEGUARD PROPERTIES: Misclassifies Employees, Lian Suit Claims SALT & STRAW: Hayes Labor Class Suit Removed to C.D. California SINCLAIR BROADCAST: Bid to Nix Illinois Consolidated Suit Pending SITEL OPERATING: Court Grants Bid for Conditional Certification STATE FARM: Court Certifies Rule 23 Class in Bally Suit STELLAR COMMUNITIES: Greenberg Sues Over Unwanted Marketing Texts T.S. DUDLEY LAND: Fails to Pay Overtime to Agents, Penska Claims TECHNIPFMC PLC: Continues to Defend Prause Securities Class Suit TEP ROCKY: 10th Cir. Affirms Sefcovic Suit Settlement Approval TEP ROCKY: Dismissal of Bid to Intervene in Sefcovic Deal Upheld TITAN RESTAURANT: Bid to Certify Classes in Knoll FLSA Suit Denied TODD TAYLOR CUSTOM: Morales Seeks to Recover Unpaid Back Wages TRANSAMERICA PREMIER: Alvarez EFTA Suit Moved to C.D. California TRUEFIRE LLC: Faces Llamas Suit in M.D. Florida Over Data Breach UBER TECHNOLOGIES: Capriole Suit Moved From D. Mass. to N.D. Cal. UNION SECURITY: Licea Suit Seeks to Recover Unpaid Overtime Wages UNITED STATES: Ninth Circuit Appeal Initiated in Sai Class Suit UNITED VALET: Denies Hourly Workers' Earned Wages, Afarinesh Says WHOLE FOODS: ShiKai CBD Lotion Can't Be Legally Sold, Figura Says YKF FOODS: Vari Seeks Unpaid Minimum Wages for Delivery Drivers ZOOM VIDEO: Lawton Sues Over Deceptive Advertising of Software ********* A1 DIABETES: Jones Seeks to Stop Autodialed Telemarketing Calls --------------------------------------------------------------- DAVID JONES, individually, and on behalf of all others similarly situated v. A1 DIABETES & MEDICAL SUPPLY, INC., a Tennessee corporation, Case No. 2:20-cv-02248-SHL-cgc (W.D. Tenn., March 31, 2020), seeks to stop A1 Diabetes from making or directing its agents to make unsolicited prerecorded and autodialed telemarketing calls to consumers without their consent, in violation of the Telephone Consumer Protection Act. The Plaintiff alleges that A1 Diabetes placed well over 10 autodialed and prerecorded calls to his cell phone number, including text message calls, despite being told that he has no need for A1 Diabetes' services and never consented to the calls in the first place. A1 Diabetes is a for-profit corporation that provides consumers medical equipment and supplies to those with diabetes.[BN] The Plaintiff is represented by: Bradley G. Kirk, Esq. Telephone: (901) 206-6163 E-mail: bgkirklaw@gmail.com - and - Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd., 28th Floor Miami, FL 33131 Telephone: 877 333 9427 Facsimile: 888 498 8946 E-mail: law@stefancoleman.com - and - Patrick Peluso, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Avenue, Suite 300 Denver, CO 80210 Telephone: 702 213 0676 E-mail: ppeluso@woodrowpeluso.com ALLSTATE FIRE: Ayanbadejo Seeks Review of Order to Texas App. Ct. ----------------------------------------------------------------- Plaintiff John-Henry Ayanbadejo filed an appeal from a court ruling issued in his lawsuit styled John-Henry Ayanbadejo, individually and on behalf of similarly situated persons v. Chanel Goosby, and Allstate Fire & Casualty Insurance Co., Case No. 2019-18186, in the Texas District Court. As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendants for violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act when after being engaged in false, misleading, or deceptive acts or practices that Mr. Ayanbadejo relied on. Mr. Ayanbadejo had switched insurance providers from his full coverage Farmers Insurance Co. to full coverage Allstate Indemnity Co. due to the Defendants advertising and the lower rates offered. The Defendants violated DTPA when the Defendants withdrew money from the Plaintiff's Wells Fargo Account and used the illegally obtained funds to pay a 6-month policy of another customer. The Defendants have also failed to pay any claim due to the Plaintiff. The appellate case is captioned as John-Henry Ayanbadejo, Individually, and on Behalf of Similarly Situated Persons v. Chanel Goosby, Allstate Fire & Casualty Insurance Co., Case No. 14-20-00264-CV, in the Texas Court of Appeals, Fourteenth Court of Appeals.[BN] Plaintiff-Appellant John-Henry Ayanbadejo, Individually, and on Behalf of Similarly Situated Persons, is represented by: Olu McGuinnis Otubusin, Esq. LAW CHAMBERS OF MCGUINNIS AND ASSOCIATES 6430 Richmond Avenue, #350 Houston, TX 77057 Telephone: (713) 782-6982 Facsimile: (713) 782-6984 E-mail: mcguinnis@sbcglobal.net Defendants-Appellees Chanel Goosby and Allstate Fire & Casualty Insurance Co. are represented by: John M. Causey, Esq. HOPE & CAUSEY, PC 815 W Davis St., #300 Conroe, TX 77301 Telephone: (936) 441-4673 ALLSTATE INDEMNITY: Sixth Circuit Flips Dismissal of Perry Suit --------------------------------------------------------------- Judge Karen Nelson Moore of the U.S. Court of Appeals for the Sixth Circuit reversed the judgment of the district court dismissing the case, ANDREA PERRY, individually and on behalf of all other Ohio residents similarly situated, Plaintiff-Appellant, v. ALLSTATE INDEMNITY COMPANY, et al., Defendants-Appellees, Case No. 18-4267 (6th Cir.), and remanded for further proceedings consistent with her Opinion. Perry's home suffered water damage and required extensive repairs. To pay for the damage, she filed a claim with her insurer, Allstate Indemnity Company. Allstate did not dispute that Perry's home was seriously damaged, or that it was required to pay for repairs or replacement. And the parties agree that the total estimated cost to repair or replace Perry's home is $32,965.09. After making deductions for "depreciation," Allstate provided Perry with a net payment of $28,394.74. The source of the disagreement is Allstate's deduction of labor costs as part of the calculation of depreciation. Perry's payout was calculated on an "actual cash value" ("ACV") basis. Her Allstate insurance policy provides, "If you do not repair or replace the damaged, destroyed or stolen property, payment will be on an actual cash value basis. This means there may be a deduction for depreciation." The policy does not define "depreciation." Allstate contends that "depreciation" must account for the cost of both materials and labor. Perry does not dispute that "depreciation" includes the cost of materials, but claims that the term "depreciation" is ambiguous with respect to labor costs. The district court accepted Allstate's definition and granted its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Perry timely appealed. As an initial matter, Allstate argues that Perry has standing only to pursue her claims against Allstate, the division that issued her insurance policy. Perry concedes that the remaining Allstate entities are not parties to the policy at issue in the case. Therefore, Perry lacks standing to pursue her claims against those entities because her injury is not traceable to them. It does not matter that Perry brought the suit as a putative class action on behalf of policyholders of the other Allstate entities. The rule works the other way around. Potential class representatives must demonstrate individual standing vis-a-vis the defendant; they cannot acquire such standing merely by virtue of bringing a class action. As Perry is the only named Plaintiff in the action, no other named Plaintiffs exist to create standing against the remaining Allstate entities. On remand, the district court should dismiss without prejudice Perry's claims against the remaining Allstate entities. Now, Judge Moore turns to the merits. The question on appeal is whether Perry's insurance policy permits Allstate to depreciate labor costs in calculating ACV. Allstate argues that it was entitled to depreciate labor costs, in addition to the cost of materials, in calculating ACV. Perry says the policy is ambiguous. The district court sided with Allstate and granted Allstate's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Moore reviews de novo the decision to dismiss Perry's complaint. She finds that neither the insurance policy nor the Ohio Administrative Code defines "depreciation." And the Ohio Supreme Court has not weighed in on the question. Thus, "depreciation" is left undefined and, Perry argues, is ambiguous. The Judge agrees that the policy is ambiguous and holds that Allstate improperly depreciated labor costs in calculating ACV. Because Perry's interpretation of "depreciation" is a fair reading of an ambiguous term, her interpretation prevails against the insurer. Judge Moore accordingly hold as a matter of law that it was improper for Allstate to depreciate labor costs to arrive at its net payment to Perry for the damage to her home. Judge Moore reversed the district court's judgment of dismissal, and remanded for further proceedings consistent with her Opinion. A full-text copy of the Court's March 18, 2020 Opinion is available at https://is.gd/UAslac from Leagle.com. Andrea Perry, individually and on behalf of all other Ohio residents similarly situated, Plaintiff, represented by Daniel P. Goetz -- dgoetz@weismanlaw.com -- Weisman, Kennedy & Berris, James A. DeRoche, Garson Johnson, Patrick J. Perotti -- pperotti@dworkenlaw.com -- Dworken & Bernstein, R. Eric Kennedy -- ekennedy@weismanlaw.com -- Weisman, Kennedy & Berris & Stuart I. Garson, Garson Johnson. Allstate Indemnity Company, Allstate Property & Casualty Insurance Company, Allstate Insurance Company, Allstate Vehicle & Property Insurance Company, Encompass Home & Auto Insurance Company, Encompass Insurance Company of America, Encompass Indemnity Company, Encompass Property & Casualty Company & Esurance Insurance Company, Defendants, represented by Kristine M. Schanbacher -- kristine.schanbacher@dentons.com -- Dentons US, Leah R. Bruno, Dentons US, Mark L. Hanover, Dentons US, pro hac vice & Gregory R. Farkas -- gfarkas@frantzward.com -- Frantz Ward. ALTRIA GROUP: Martinez Challenges Anticompetitive Deals on E-Cigs ----------------------------------------------------------------- Anthony Martinez, on behalf of himself and all others similarly situated v. ALTRIA GROUP, INC., and JUUL LABS, INC., Case No. 3:20-cv-02597 (N.D. Cal., April 14, 2020), is brought as an antitrust class action against the Defendants concerning anticompetitive agreements between them in which Altria agreed to refrain from competing against Juul in the United States market for closed-system electronic cigarettes in return for a substantial ownership interest in Juul, in violation of the Sherman Act and the Clayton Act. In light of declining sales in the market for traditional cigarettes and a shift by consumers to alternative nicotine delivery devices, Altria viewed participation in the e-cigarette market as essential to its long-term survival, according to the complaint. In 2013, Altria entered the market through its subsidiary Nu Mark LLC. Its flagship product was the MarkTen e-cigarette. In 2015, Juul entered the market and quickly captured a substantial market share. By 2018, Juul had obtained market share of over 70 percent, stunning Altria and other competitors. Juul's swift rise posed a grave competitive threat to Altria in both the e cigarette and traditional cigarette markets. To eliminate that threat, Altria began a two-prong strategy of acquiring Juul, while continuing to compete against it. Altria's efforts to acquire Juul were unsuccessful initially. With respect to competition, Altria introduced a new product known as the MarkTen Elite which closely resembled Juul's product. With respect to acquisition, Altria entered into negotiations to acquire an ownership interest in Juul. Initially, Juul refused to negotiate. But in the fall of 2018, Juul agreed to negotiate with Altria, under the condition that Altria stop competing with Juul in the market for e-cigarettes. In particular, Juul refused to proceed with negotiations unless and until Altria had withdrawn its products. At first, Altria refused. In October 2018, however, Altria agreed and began to withdraw its e-cigarette products from the market. According to the complaint, the agreements between Altria and Juul whereby Altria and Juul agreed to allocate the market for e-cigarettes were anticompetitive. The Defendants' conduct has illegally restrained competition in the relevant market in violation of the Sherman and Clayton Acts. As a direct and proximate result of the Defendants' anticompetitive conduct, prices for e-cigarettes were raised, fixed and stabilized at supracompetitive levels. Altria's investment in Juul and its exit from the market eliminated its existing e-cigarette product and halted its ongoing innovation efforts toward developing new and improved products. Thus, consumers lost the benefit of current and future head-to-head competition between Altria and Juul, and between Altria and other competitors. By these agreements, the Plaintiff contends, Altria and Juul agreed to divide and allocate the market for e-cigarettes. By this lawsuit, the Plaintiff seeks damages and injunctive relief for the collusive and concerted restraint in trade orchestrated by the Defendants. Plaintiff Anthony Martinez purchased Juul products directly from Juul during the relevant period. Juul is the leading manufacturer of closed-system e-cigarettes, generating over $1 billion in sales in 2018.[BN] The Plaintiff is represented by: Joseph R. Saveri, Esq. Steven N. Williams, Esq. Kevin Rayhill, Esq. Anupama K. Reddy, Esq. JOSEPH SAVERI LAW FIRM, INC. 601 California Street, Suite 1000 San Francisco, CA 94108 Phone: (415) 500-6800 Facsimile: (415) 395-9940 Email: jsaveri@saverilawfirm.com swilliams@saverilawfirm.com kquackenbush@saverilawfirm.com areddy@saverilawfirm.com ANTARES PHARMA: Bid to Dismiss Smith Class Suit Still Pending ------------------------------------------------------------- Antares Pharma, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 31, 2019, that the Defendants' motion seeking dismissal of a class action suit initiated by Randy Smith is still pending. On October 23, 2017, Randy Smith filed a complaint in the District of New Jersey, captioned Randy Smith, Individually and on Behalf of All Others Similarly Situated v. Antares Pharma, Inc., Robert F. Apple and Fred M. Powell ("Smith"), Case No. 3:17-cv-08945-MAS-DEA, on behalf of a putative class of persons who purchased or otherwise acquired Antares securities between December 21, 2016 and October 12, 2017, inclusive, asserting claims for purported violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against Antares, Robert F. Apple and Fred M. Powell. The Smith complaint contends that defendants made false and/or misleading statements and/or failed to disclose that: (i) Antares had provided insufficient data to the FDA in connection with the NDA for XYOSTED(R); and (ii) accordingly, Antares had overstated the approval prospects for XYOSTED(R). On July 27, 2018, the court entered an order appointing Serghei Lungu as lead plaintiff, Pomerantz LLP as lead counsel, and Lite DePalma Greenberg, LLC as liaison counsel for plaintiff. On August 3, 2018, the parties submitted a stipulation and proposed order, setting forth an agreed-upon schedule for responding to the complaint, which the court granted. Pursuant to that order, plaintiff filed a Consolidated Amended Class Action Complaint on October 9, 2018. On November 26, 2018, defendants filed a motion to dismiss. Plaintiff filed an opposition to the motion on January 10, 2019 and defendants filed a reply in support of their motion on February 25, 2019. On July 2, 2019, the court dismissed the complaint in its entirety without prejudice. On July 29, 2019, plaintiff filed a Consolidated Second Amended Class Action Complaint against the same parties alleging substantially similar claims. On September 12, 2019, defendants filed a motion to dismiss the Consolidated Second Amended Class Action Complaint. Plaintiffs' opposition was filed on October 28, 2019 and defendants' reply in support of their motion was filed on November 27, 2019. The Company believes that the claims in the Smith action lack merit and intends to defend them vigorously. No further updates were provided in the Company's SEC report. Antares Pharma, Inc. focuses on developing and commercializing self-administered parenteral pharmaceutical products and technologies worldwide. The company was founded in 1978 and is headquartered in Ewing, New Jersey. ANTERO RESOURCES: Seeks 4th Cir. Review of Ruling in Romeo Suit --------------------------------------------------------------- Defendant Antero Resources Corporation filed an appeal from the District Court's decision in the lawsuit entitled Jacklin Romeo, Susan S. Rine, and Debra Snyder Miller, individually and on behalf of others similarly situated v. Antero Resources Corporation, Case No. 1:17-cv-00088-IMK-MJA, in the U.S. District Court for the Northern District of West Virginia at Clarksburg. As previously reported in the Class Action Reporter, the Colorado corporation, Antero Resources, failed to pay royalties to the Plaintiffs under a lease agreement for land in West Virginia. According to the complaint, the Plaintiffs allege that they suffered monetary damages from not being paid royalties. The Plaintiffs hold the Defendant responsible for allegedly breaching their contractual agreement with by failing to make royalty payments after June 1, 2007. The Plaintiffs argue that the Company had to pay royalties "based upon prices received for marketable residue gas and marketable natural gas liquids... without deductions." The appellate case is captioned as Antero Resources Corporation v. Jacklin Romeo, et al., Case No. 20-205, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiffs-Respondents JACKLIN ROMEO, individually and on behalf of others similarly situated, et al., are represented by: George A. Barton, Esq. Stacy A. Burrows, Esq. LAW OFFICES OF GEORGE A. BARTON, P.C. 7227 Metcalf Avenue Overland Park, KS 66204 Telephone: 913-563-6250 Email: gab@georgebartonlaw.com stacy@georgebartonlaw.com - and – Larry Lee Javins, II, Esq. Taylor M. Norman, Esq. BAILEY, JAVINS & CARTER, LC P. O. Box 3712 Charleston, WV 25337-0000 Telephone: 304-345-0346 – and – Howard Moses Persinger, III, Esq. PERSINGER LAW OFFICE 237 Capitol Street Charleston, WV 25301 Telephone: 304-346-9333 Defendant-Petitioner ANTERO RESOURCES CORPORATION is represented by: Kevin Charles Abbott, Esq. LAW OFFICE OF KEVIN C. ABBOTT 812 Crossbow Court McMurray, PA 15317 Telephone: (724) 941-2160 Email: kevin@kabbottlaw.com - and – W. Henry Lawrence, IV, Esq. Shaina Danielle Massie, Esq. Amy Marie Smith, Esq. STEPTOE & JOHNSON PLLC 400 White Oaks Boulevard Bridgeport, WV 26330 Telephone: (304) 933-8000 Email: hank.lawrence@steptoe-johnson.com shaina.massie@steptoe-johnson.com amy.smith@steptoe-johnson.com – and – Nicolle Renee Snyder Bagnell, Esq. REED SMITH, LLP 225 5th Avenue Pittsburgh, PA 15222 Telephone: (412) 288-7112 Email: nbagnell@reedsmith.com ARCONIC INC: Ortiz Sues Over Unlawful Employment Practices ---------------------------------------------------------- ANDRES G. ORTIZ, as an individual and on behalf of all others similarly situated, Plaintiff v. ARCONIC, INC., a Corporation, ARCONIC GLOBAL FASTENERS & RINGS, INC., a Corporation, KEVITA ENG, individual, DOES 1-10, individuals, and DOES 11-20, business entities inclusive, Defendants, Case No. 20STCV12375 (Cal. Sup. Ct., March 30, 2020) alleges that Defendants engaged in retaliation and wrongful termination in violations of California Labor Code and California Code of Regulations, intentional infliction of emotional distress, and unfair business practices in violation of B&P Code. Plaintiff begun working with Defendants' Arconic Fastening Systems (AFS) division on February 25, 2013 and was unlawfully terminated by Defendant Eng after 6 years of dedicated work and commitment because of the complaint he made regarding the barrel incident on January 11, 2019. Plaintiff says his termination was acted with malice by fabricating false reasons in order to cover up Defendants' true discriminatory and retaliatory reasons for engaging such adverse employment actions. The complaint asserts that Plaintiff has suffered and will continue to suffer mental, physical, and emotional distress, including but not limited to humiliation, anxiety, nervousness, and depression. Kevita Eng is the Human Resource Manager at the AFS. Arconic Inc., formerly Alcoa Inc., is engaged in lightweight metals engineering and manufacturing. [BN] The Plaintiff is represented by: Amir Mostafavi, Esq. MOSTAFAVI LAW GROUP, APC 528 Palisades Dr., Suite 220 Pacific Palisades, CA 90272 Tel: (310)473-1111 Fax: (310)473-2222 Email: amir@mostafavilaw.com BANK OF AMERICA: Fortinbras Appeals Decision in AEP Fund Suit ------------------------------------------------------------- Objector Fortinbras Asset Management GmbH filed an appeal from the District Court's Memorandum Opinion and Order issued on February 26, 2020, in the lawsuit styled ALASKA ELECTRICAL PENSION FUND, et al. v. BANK OF AMERICA, CORPORATION, et al., Case No. 14-CV-7126 (JMF), in the U.S. District Court for the Southern District of New York. The Memorandum Opinion and Order overruled Fortinbras' objection and held that the Claims Administrator and Class Counsel did not err in finding Fortinbras' disputed claims invalid and excluding them from the proposed distribution of the lawsuit's settlement. As previously reported in the Class Action Reporter on March 12, 2020, District Court Judge Jesse M. Furman (i) granted the Lead Counsel's motion for Court approval to make distributions of net settlement funds to the claimants with valid claims, and (ii) overruled the objection of Fortinbras Asset Management GmbH, formerly known as Prospero Beteiligungsverwaltung GmbH. Claimant-Appellant Fortinbras has filed an objection, on the ground that Epiq wrongfully rejected certain of its claims. In this long-lasting and complex class action, institutional investors alleged that many of the world's largest banks illegally manipulated the U.S. Dollar ISDAfix, a benchmark interest rate incorporated into a broad range of financial derivatives. After more than three years of litigation, the Plaintiffs reached settlements with each Defendant, all of which were approved by the Court, along with proposed plans of distribution. Pursuant to the Court's Orders, the claims administrator, Epiq Systems, Inc., published notice of the settlements and received and reviewed individual claims. Following the settlements, Epiq distributed more than 59,000 notice packets to potential class members advising them of the settlement. Epiq ultimately received more than 31,000 claims before the filing deadlines set by the settlements. Of those claims, Epiq determined that 2,369 should be rejected in full and that 28,750 are eligible for payment. Epiq valued 23,413 of those claims at equal to or less than $100; of the remaining authorized claimants, 5,124 are eligible to receive payments averaging $64,897.32 total from both settlement funds, and 213 are eligible to receive payments averaging $6,289.21 from the later settlement fund only. The appellate case is captioned as Alaska Electrical Pension Fund, et al. v. Bank Of America Corporation, et al., Case No. 20-1086, in the U.S. Court of Appeals for the Second Circuit.[BN] Plaintiffs Alaska Electrical Pension Fund, on behalf of itself and all others similarly situated, et al., are represented by: Christopher M. Burke, Esq. Hal D. Cunningham, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 600 W. Broadway, Suite 3300 San Diego, CA 92101 Telephone: (619) 233−4565 Facsimile: (619)−233−0508 Email: cburke@scott−scott.com hcunningham@scott−scott.com – and - Daniel Lawrence Brockett, Esq. Daniel Paul Cunningham, Esq. Marc Laurence Greenwald, Esq. Steig Olson, Esq. Jonathan Bacon Oblak, Esq. QUINN EMANUEL URQUHART & SULLIVAN LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: (212) 849−7000 Facsimile: (212) 849 7100 Email: danbrockett@quinnemanuel.com danielcunningham@quinnemanuel.com marcgreenwald@quinnemanuel.com steigolson@quinnemanuel.com jonoblak@quinnemanuel.com – and – David W. Mitchell, Esq. Patrick Joseph Coughlin, Esq. Brian O. O'Mara, Esq. Steven M Jodlowski, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231−1058 Facsimile: (619) 231−231−7423 Email: davidm@rgrdlaw.com patc@rgrdlaw.com bomara@rgrdlaw.com sjodlowski@rgrdlaw.com – and – Stanley D. Bernstein, Esq. Ronald Judah Aranoff, Esq. BERNSTEIN LIEBHARD, LLP 10 East 40th Street New York, NY 10016 Telephone: (212) 779−1414 Facsimile: (212) 779−3218 Email: bernstein@bernlieb.com raranoff@wmd−law.com – and – Sylvia Sokol, Esq. Kristen M. Anderson, Esq. Thomas Kay Boardman, Esq. SCOTT + SCOTT, L.L.P. 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (646) 571−0612 Facsimile: (212) 223−6334 Email: ssokol@scott−scott.com kanderson@scott−scott.com tboardman@scott−scott.com – and – Jeremy Daniel Andersen, Esq. QUINN, EMANUEL, URQUHART, OLIVER & HEDGES, LLP 865 South Figueroa Street, 10th Flr. Los Angeles, CA 90017 Telephone: (213) 443−3000 Facsimile: (212) 443−3100 Email: jeremyandersen@quinnemanuel.com – and – Michael James O'Connor, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 777 6th Street, 11th Floor Washington, DC 20001 Telephone: (202) 538−8148 Facsimile: (202) 538−8100 Email: michaeloconnor@quinemanuel.com – and – Randi Dawn Bandman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 9601 Wilshire Boulevard, Suite 510 Los Angeles, CA 90210 Telephone: (310) 859−3100 Facsimile: (310) 278−2148 Email: randib@rgrdlaw.com Defendants Bank Of America Corporation, et al., are represented by Adam Selim Hakki, Esq. SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848−4924 Facsimile: (646) 848−4924 Email: ahakki@shearman.com Objector-Appellant Fortinbras Asset Management GmbH is represented by: Geoffrey Milbank Horn, Esq. LOWEY DANNENBERG P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997−0500 Facsimile: (914) 997−0035 Email: ghorn@lowey.com BARNES & NOBLE: Faces Delaware Class Suit ----------------------------------------- Barnes & Noble Education, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on March 3, 2020, for the quarterly period ended January 25, 2020, that the company has been named as a defendant in a purported class action suit pending before the U.S.District Court for the District of Delaware. On or about January 22, 2020, a purported class action complaint was filed in the United States District Court for the District of Delaware against the Company, along with several publishers, another collegiate bookstore retailer, and an industry association by Campus Book Company, Inc., BJJ Corporation, CBSKY, Inc., CBSNM, Inc., and Renttext.com, Inc. The plaintiffs claim, on their own behalf and on behalf of the purported class, that the Company and the other defendants violated Section 1 of the Sherman Act (15 U.S.C. Section 1), Section 2 of the Sherman Act (15 U.S.C. Section 2), Section 13(a) of the Robinson-Patman Act (15 U.S.C. Section 13(a)), and various state antitrust and unfair trade practices laws for alleged activities in connection with inclusive access and the sale of course materials to universities and their students. Barnes & Noblesaid, "We intend to vigorously defend this matter and are currently unable to estimate any potential losses." Barnes & Noble Education, Inc. is one of the largest contract operators of physical and virtual bookstores for college and university campuses and K-12 institutions across the United States. The company is also one of the largest textbook wholesalers, inventory management hardware and software providers, and a leading provider of digital education solutions. The company is based in Basking Ridge, New Jersey. BED BATH & BEYOND: Faces Vitiello Securities Suit in New Jersey --------------------------------------------------------------- Stephen and June Vitiello, Individually and On Behalf of All Others Similarly Situated v. BED BATH & BEYOND INC., MARK J. TRITTON, MARY A. WINSTON, and ROBYN M. D'ELIA, Case No. 2:20-cv-04240 (D.N.J., April 14, 2020), is brought on behalf of persons and entities that purchased or otherwise acquired Bed Bath & Beyond securities between October 2, 2019, and February 11, 2020, inclusive, seeking to pursue claims against the Defendants under the Securities Exchange Act of 1934. On January 8, 2020, Bed Bath & Beyond withdrew its fiscal 2019 guidance, purportedly due to pressures on sales and profitability, as well as a new strategic plan for the Company's operations. On this news, the Company's share price fell $3.20, or over 19%, to close at $13.4 per share on January 9, 2020, thereby, injuring investors. On February 11, 2020, Bed Bath & Beyond issued a press release announcing preliminary fourth-quarter 2019 financial results. Therein, the Company disclosed "a 5.4% decline in comparable sales driven primarily by store traffic declines combined with inventory management issues," including that "inventory within certain key categories in the Bed Bath & Beyond assortment was too low or out-of-stock during the period." On this news, the Company's share price fell $3.06 per share, or over 20%, to close at $11.79 per share on February 12, 2020, on unusually heavy trading volume. According to the complaint, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the Defendants failed to disclose to investors: (1) that, due to "aggressive disposition of inventory," the Company lacked sufficient inventory in key categories to support holiday sales; (2) that the Company's internal control over inventory levels and financial reporting was not effective; (3) that, as a result of the foregoing, the Company was likely to experience reduced sales; and (4) that, as a result, the Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiffs purchased Bed Bath & Beyond securities during the Class Period. Bed Bath & Beyond is a retailer that sells a wide variety of domestics merchandise and home furnishings. The Company operates under many brand names, including Christmas Tree Shops, Harmon, buybuy BABY, and Cost Plus World Market.[BN] The Plaintiffs are represented by: James E. Cecchi, Esq. Lindsey H. Taylor, Esq. Donald A. Ecklund, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Phone: (973) 994-1700 - and – Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 Facsimile: (310) 432-1495 - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Phone: (215) 638-4847 Facsimile: (215) 638-4867 BENIHANA MARINA: Fails to Pay All Wages, Iniguez Suit Alleges ------------------------------------------------------------- SHEILA INIGUEZ v. BENIHANA MARINA CORP.; and DOES 1 through 50, inclusive, Case No. 20SMCV00508 (Cal. Super., Los Angeles Cty., March 30, 2020), is brought on behalf of the Plaintiff and similarly-aggrieved employees seeking civil penalties pursuant to the Private Attorney General Act arising from the Defendants' failure to pay all wages. The Plaintiff alleges that the Defendants failed to pay all wages, and failed to provide rest and meal periods. The Plaintiff was employed by the Defendants from May 2019 through December 2019 at their Santa Monica work site.[BN] The Plaintiff is represented by: Katherine J. Odenbreit, Esq. Joshua D. Klein, Esq. MAHONEY LAW GROUP, APC 249 E. Ocean Boulevard, Suite 814 Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 E-mail: kmahoney@mahoney-law.net jklein@mahoney-law.net BLUE APRON: Court Reverses Summary Judgment in Sciabacucchi Suit ---------------------------------------------------------------- In the case, MATTHEW B. SALZBERG, JULIE M.B. BRADLEY, TRACY BRITT COOL, KENNETH A. FOX, ROBERT P. GOODMAN, GARY R. HIRSHBERG, BRIAN P. KELLEY, KATRINA LAKE, STEVEN ANDERSON, J. WILLIAM GURLEY, MARKA HANSEN, SHARON MCCOLLAM, ANTHONY WOOD, RAVI AHUJA, SHAWN CAROLAN, JEFFREY HASTINGS, ALAN HENDRICKS, NEIL HUNT, DANIEL LEFF, and RAY ROTHROCK, Defendants Below, Appellants, and BLUE APRON HOLDINGS, INC., STITCH FIX, INC., and ROKU, INC., Nominal Defendants Below, Appellants, v. MATTHEW SCIABACUCCHI, on behalf of himself and all others similarly situated, Plaintiff Below, Appellee, Case No. 346, 2019 (Del.), Judge Karen L. Valihura of the Supreme Court of Delaware reversed the decision of the Court of Chancery granting Matthew Sciabacucchi's motion for summary judgment. The Supreme Court of Delaware is asked to determine the validity of a provision in several Delaware corporations' charters requiring actions arising under the federal Securities Act of 1933 to be filed in a federal court. Blue Apron Holdings, Inc., Roku, Inc., and Stitch Fix, Inc. are all Delaware corporations that launched initial public offerings in 2017. Before filing their registration statements with the United States Securities and Exchange Commission, each company adopted a federal-forum provision ("FFP"). Appellee Sciabacucchi bought shares of each company in its initial public offering or a short time later. On Dec. 29, 2017, he filed a putative class-action complaint in the Court of Chancery against the individuals who had served as the companies' directors since they went public, and named the companies as nominal Defendants. The complaint sought a declaratory judgment that the federal-forum provisions are invalid under Delaware law. The Court of Chancery granted the motion for summary judgment. In reaching that result, the court examined its 2013 decision in Boilermakers Local 154 Retirement Fund v. Chevron Corp., the Court's 2014 decision in ATP Tour, Inc. v. Deutscher Tennis Bund, federal case law, and what the Court of Chancery described as "first principles" of Delaware corporate law. It decided that the constitutive documents of a Delaware corporation cannot bind a plaintiff to a particular forum when the claim does not involve rights or relationships that were established by or under Delaware's corporate law. Because the FFPs attempt to accomplish that feat, the court held that the federal-forum provisions are "ineffective and invalid." Judge Valihura reviews the Court of Chancery's decision to grant summary judgment de novo. A court may grant summary judgment only if, based on the undisputed material facts, the moving party is entitled to judgment as a matter of law. There are no material facts in dispute in the appeal, and the issues on which she decides the appeal concern the interpretation of the statutes governing the permissible contents of a Delaware corporation's certificate of incorporation. Statutory interpretation is a question of law, which we review de novo. The Plaintiff must show that the federal-forum provisions do not address a proper subject matter of charter provisions under 8 Del. C. Section 102(b)(1). Judge Valihura concludes that FFPs are a relatively recent phenomenon designed to address the post-Cyan difficulties presented by multi-forum litigation of Securities Act claims. The policies underlying the Delaware General Corporation Law ("DGCL") include certainty and predictability, uniformity, and prompt judicial resolution to corporate disputes. The law strives to enhance flexibility in order to engage in private ordering, and to defer to case-by-case law development. Delaware courts attempt to achieve judicial economy and avoid duplicative efforts among courts in resolving disputes. FFPs advance these goals. The General Assembly has also recognized the need to maintain balance, efficiency, fairness, and predictability in protecting the legitimate interests of all stakeholders, and to ensure that the laws do not impose unnecessary costs on Delaware entities. FFPs do not violate that sense of balance as they allow for litigation of federal Securities Act claims in a federal court of the Plaintiff's choosing, but also allow for consolidation and coordination of such claims to avoid inefficiencies and unnecessary costs. Finally, the DGCL was intended to provide directors and stockholders with flexibility and wide discretion for private ordering and adaptation to new situations. That a board's action might involve a new use of plain statutory authority does not make it invalid under the law, and the boards of Delaware corporations have the flexibility to respond to changing dynamics in ways that are authorized by the statutory law. For the reasons set forth, Judge Valihura reversed the decision of the Court of Chancery. A full-text copy of the Supreme Court of Delaware's March 18, 2020 Order is available at https://is.gd/mkX60y from Leagle.com. Kurt M. Heyman -- kheyman@hegh.law -- Melissa N. Donimirski -- mdonimirski@hegh.law -- HEYMAN ENERIO GATTUSO & HIRZEL LLP Wilmington, Delaware; Jason M. Leviton -- jason@blockesq.com -- Joel A. Fleming -- joel@blockesq.com -- BLOCK & LEVITON LLP, Boston, Massachusetts; Counsel for Plaintiff. William B. Chandler III -- wchandler@wsgr.com -- Randy J. Holland -- rholland@wsgr.com -- Bradley D. Sorrels, Lindsay Kwoka Faccenda -- lfaccenda@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware; Boris Feldman , David J. Berger , WILSON SONSINI GOODRICH & ROSATI, P.C., Palo Alto, California; Counsel for Defendants Katrina Lake, Steven Anderson, J. William Gurley, Marka Hansen, Sharon McCollam, Anthony Wood, Ravi Ahuja, Shawn Carolan, Jeffrey Hastings, Alan Hendricks, Neil Hunt, Daniel Leff, Ray Rothrock, and Nominal Defendants Stitch Fix, Inc. and Roku, Inc. Catherine G. Dearlove -- dearlove@rlf.com -- Sarah T. Andrade -- andrade@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Michael G. Bongiorno, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York; Timothy J. Perla, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts; Counsel for Defendants Matthew B. Salzberg, Julie M.B. Bradley, Tracy Britt Cool, Kenneth A. Fox, Robert P. Goodman, Gary R. Hirshberg, and Brian P. Kelley, and Nominal Defendant Blue Apron Holdings, Inc. BP EXPLORATION: Denial of Review of Mueller's Compensation Upheld ----------------------------------------------------------------- In the case, BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C., Requesting Parties-Appellants, v. CLAIMANT ID 100319411, Objecting Party-Appellee, Case No. 19-30145 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's denial of discretionary review of the Settlement Program's calculation of the business economic loss awarded to Claimant, Mueller Copper Tube Co., Inc. The appeal is one of many arising out of the Deepwater Horizon spill and the ensuing Economic and Property Damages Class Action Settlement Agreement. BP appeals the district court's denial of discretionary review of the Settlement Program's calculation of the business economic loss awarded to the Claimant. The Claimant submitted a claim for business economic loss to the Deepwater Horizon Court Supervised Settlement Program ("CSSP"). In order to ensure that Claimant's profit and loss statements ("P&Ls") only reflected the activity of the claiming facility, the Settlement Program accountants compared the Claimant's financial statements of the copper tube profit center ("Divisional P&Ls") with its gross sales general ledger statements ("Transaction Level Sales Records"), which detailed all sales transactions for the copper tube profit center. This filtering process resulted in new P&Ls that the Settlement Program used to calculate Claimant's award. Additionally, the record shows that the Settlement Program's accountants compared Claimant's tax returns with its Divisional P&Ls and sought clarification from Claimant via email and a conference call regarding potential discrepancies. The CSSP's Claims Administrator found Claimant eligible for $29,701,243.19 in total compensation. BP appealed the award to the internal Appeal Panel, arguing, inter alia, that the award was based on inaccurate and inappropriate financial documents, citing to substantial discrepancies in Claimant's tax returns as evidence that the financials were unreliable. The Claimant's affidavit of the CFO and Treasurer of Mueller Industries, Inc. explained that these discrepancies stem from the Claimant's parent company's transfer-pricing tax preparation methodology. Upon its independent review, the Appeal Panel rejected BP's final proposal of $0 and ultimately awarded Claimant $27,412,374.17 in total compensation. BP sought discretionary review of the Appeal Panel's decision in district court, which was denied. BP appealed, asserting that the district court abused its discretion in denying review because the Appeal Panel's decision misapplied the Settlement Agreement by failing to require the Settlement Program to reconcile and resolve the material discrepancies (millions of dollars) between the Claimant's financials and its tax returns, an issue BP alleges is a recurring issue on which Appeal Panels are split. The Fifth Circuit holds that BP's arguments on appeal are unavailing. The issues raised in the case are fact-specific, centered around the Appeal Panel's analysis of the Claimant's financials, and do not implicate an Appeal Panel split or misapplication of the Settlement Agreement. Ultimately, BP challenges the correctness of a discretionary administrative decision in the facts of a single claimant's case. The Fifth Circuit has repeatedly held that denial of review in these cases is well within the district court's discretion. Accordingly, the district court's judgment denying discretionary review is affirmed. A full-text copy of the Court's Jan. 15, 2020 Opinion is available at https://is.gd/xiVfw7 from Leagle.com. Don Keller Haycraft -- dkhaycraft@liskow.com -- for Requesting Party-Appellant. James Andrew Langan -- andrew.langan@kirkland.com -- for Requesting Party-Appellant. Jeffrey W. Willis -- jwillis@rh-law.com -- for Objecting Party-Appellee. Devin Chase Reid -- stoomey@liskow.com -- for Requesting Party-Appellant. Martin R. Martos, II -- martin.martos@kirkland.com -- for Requesting Party-Appellant. Michael Eber -- meber@rh-law.com -- for Objecting Party-Appellee. R. Stanton Jones -- stanton.jones@arnoldporter.com -- for Requesting Party-Appellant. Christian D. Sheehan -- christian.sheehan@arnoldporter.com -- for Requesting Party-Appellant. Cameron B. Roberts -- croberts@rh-law.com -- for Objecting Party-Appellee. BPI SPORTS: Underfills Diet Supplement Containers, Garcia Claims ---------------------------------------------------------------- The case, DOREEN GARCIA, individually, and on behalf of a class of similarly situated individuals, Plaintiff, v. BPI SPORTS, LLC, a Florida limited liability company, Defendant, Case No. 3:20-cv-00620-WQH-AHG (S.D. Cal., March 31, 2020) arises from the Defendant's alleged misleading business practices with respect to the packaging and sale of BPI BCAA dietary supplement powders, and substantially similar BPI products. According to the complaint, the Defendant advertises and sells its BPI Supplement Powders in sealed, opaque plastic containers that contain much less product than the size of the containers indicates. In reality, the containers are filled with an unreasonable and unnecessary amount of non-functional empty space. This intentionally deceptive packaging prevents the consumers including the Plaintiff from directly seeing the product's contents, and it leads reasonable consumers to believe that the containers are filled with significantly more product than they are, much to consumers' surprise after purchase. BPI Sports, LLC is a Florida-based sports nutrition company offering supplements, free workouts, diets, and fitness advice. [BN] The Plaintiff is represented by: Steven R. Weinmann, Esq. Tarek H. Zohdy, Esq. Cody R. Padgett, Esq. Trisha K. Monesi, Esq. Capstone Law APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Email: Steven.Weinmann@capstonelawyers.com Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com CAJUN OPERATING: Website Inaccessible to Blind, Alcazar Claims -------------------------------------------------------------- JUAN ALCAZAR, individually and on behalf of all others similarly situated, Plaintiff v. CAJUN OPERATING COMPANY, a Delaware corporation; and DOES 1 to 10, inclusive, Defendants, Case No. 3:20-cv-02158-TSH (N.D. Cal., March 30, 2020) is a class action complaint brought against Defendants for their alleged violations of the Americans with Disabilities Act of 1990 and the Unruh Civil Rights Act. Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. Plaintiff alleges that Defendants failed to design, construct, maintain, and operate its website https://www.churchs.com/ to be fully and equally accessible to and independently usable by visually-impaired people. Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. Cajun Operating Company owns, operates, and maintains brick-and-mortar restaurant and its website provides consumers with online access to information about coupons, restaurant locations, delivery orders, club memberships, career and franchise opportunities, nutritional facts, and allergen information. [BN] The 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: bobby@wilshirelawfirm.com press@wilshirelawfirm.com CALIFORNIA: Court Dismisses Archer Prisoners Suit with Prejudice ---------------------------------------------------------------- Judge Dale S. Fischer of the U.S. District Court for the Central District of California, Western Division, dismissed the case, JOHN ARCHER, JOVAN NEALY, an MARCUS DIGGS, and 42 Absent Unamed Plaintiffs, Plaintiffs, v. STEPHEN RETTER, DOE's 1 thru 10, and CCHCS et al., Defendants, Case No. 2:20-cv-00759-DSF (JDE) (C.D. Cal.), with prejudice. On Jan. 24, 2020, Archer and Diggs, prisoners in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at California State Prison in Lancaster, California, proceeding pro se, presented for filing a "Civil Rights Complaint," citing 42 U.S.C. Section 1983, identifying themselves, Jovan Nealy and "42 Absent Unnamed" persons as the Plaintiffs, although only the Plaintiffs signed the Complaint, and Stephen Retter, Does 1-10, and "CCHCS" as the Defendants. The Plaintiffs filed the Complaint on their own behalf and purportedly on behalf of "500 similarly situated" and seek a declaration "that they have a right not to have their personal and families' private Doctor-patient privileged information of Health care randomly stored in one place of practice that can be easily sought after and stolen and/or hacked for fraudulent schemes in identity fraud used for criminal activities, and further enjoin the enforcement in cooperation of investigation, related to business activities and job procedures that need be 'Ceased' because security protocols had been and are a failure. The Plaintiffs seek to proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and others similarly situated who are incarcerated across the State of California's 34 prisons. They allege that Defendant Retter is CCHCS's "CEO Administrator," Doe #1 is a medical records director, Doe #2 is a health care records technician supervisor, and DOE #3 is a health care records technician. They assert that on or about May 20, 2016, CCHCS mailed a letter to members of the class stating that health care and other sensitive information may have been stolen from an unattended laptop. The Plaintiffs claim the Defendants' craftiness has been misleading by fraudulent explanations about how the whole situation came about in the seriousness of security breach in its carelessness to follow work policy and procedures causing the Plaintiffs to, although suffering no physical injury or illness, but instead "fear of fraud" and a "threat of fear by identity theft/fraud." The Plaintiffs allege three "causes of action": (1) the Defendants breached it's duty of security to protect health care information; (2) the Defendants with malice intent and careless disregard in that of foreseeability and certainty of the Plaintiffs and others in class similarly situated are in and uneasy position of future risk of identity fraud; and (3) Defendants Stephen Retter CEO and designee administrator of CCHCS" and Does 1-3 "caused injury" to the Plaintiffs by not properly monitoring employees and security. The Plaintiffs seek a restraining order, injunctive relief prohibiting the Defendants from harassment to become a nuisance for filing the lawsuit and damages, among other things. On Jan. 29, 2020, after being advised of the defects set forth, the Plaintiffs were ordered to, within 30 days, either file an amended complaint or file a notice of an intent to proceed with the Complaint as alleged. Although Plaintiff Archer requested and received additional time to pay the unpaid filing fee, the Plaintiffs did not seek additional time to otherwise comply with the Order and did not file an amended complaint or a notice of intent within 30 days of the Order. Under 28 U.S.C. Section 1915(A)(b), the Court must dismiss the Complaint if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Judge Fischer finds that the Complaint fails to state a claim upon which relief may be granted and seeks damages from a Defendant who is immune from such relief and therefore must be dismissed. According to the Court, the Complaint fails for several reasons. First, the three "causes of action" do not, in a non-conclusory fashion, allege what federal statutory or constitutional rights were violated. The allegations in the Complaint, other than labels and conclusions, do not raise a right to relief above the speculative level and do not provide "fair notice" of the claim being asserted or "the grounds upon which that claim rests" and thus fail to state a claim. Second, although the Complaint identifies five Defendants, one entity and four individuals, it repeatedly makes allegations against collective "Defendants" without specifying which defendants did what. In so doing, the Complaint does not provide notice to each defendant of what action or inaction by that defendant caused any alleged constitutional harm. Third, the California Correctional Health Care Services and its officials sued in their official capacities are not subject to claims for damages under Section 1983. Thus, to the extent the Complaint asserts claims for damages against CCHCS or official capacity claims for damages against CCHCS employees, those claims are barred. Fourth, although the Complaint is sometimes contradictory, the essence of the Plaintiffs' claims sound in negligence, with assertions of "carelessness," a "negligent act," a "breach of duty," "careless disregard." Such allegations are insufficient to show a constitutional violation under Section 1983. As the Complaint seeks damages from a party immune from such relief and fails to state a claim on which relief may be granted, it must be dismissed. Next, Judge Fischer finds that the purported class claims are improper, as is the Plaintiffs' effort to act on behalf of Jovan Nealy, who did not sign the Complaint or otherwise appear in the action. The dismissal is against Plaintiffs John Archer and Marcus Diggs only, as Jovan Nealy never became a party to the action. Finally, although leave to amend a deficient pleading should be granted if the defects could be corrected, especially if the plaintiff is pro se, where it is absolutely clear that further amendment cannot cure the defects, there is no need to prolong the litigation by permitting further amendment. In the case, the Judge finds that further leave is not warranted as it is absolutely clear that further leave to amend would not cure the defects. As he finds further amendment would be futile, dismissal will be without leave to amend and with prejudice. For the foregoing reasons, Judge Fischer dismissed the action with prejudice. Judgment be entered in accordance with the foregoing. A full-text copy of the Court's March 18, 2020 Memorandum & Order is available at https://is.gd/nqgRtg from Leagle.com. John Archer, Plaintiff, pro se. Jovan Nealy, Plaintiff, pro se. Marcus Diggs, Plaintiff, pro se. CELEBRITY CRUISES: Nedeltcheva Sues Over Exposure to COVID-19 ------------------------------------------------------------- Alexandra Nedeltcheva, on her own behalf and on behalf of all other similarly situated crewmembers working aboard CELEBRITY cruise vessels v. CELEBRITY CRUISES INC., Case No. 1:20-cv-21569-UU (S.D. Fla., April 14, 2020), arises from the Defendant's alleged careless and continuous failure to protect its crewmembers assigned to work aboard the vessels from COVID-19. The Plaintiff alleges that the Defendant fails to protect its crewmembers despite having prior notice pertaining to the dangerous conditions and/or explosive contagiousness associated with COVID-19 aboard its vessels from previous passengers, crewmembers and/or other invitees that the Defendant allowed aboard the vessels and/or actively granted access to same. Despite having notice that COVID-19 was and/or likely was present aboard the vessels, the Defendant glaringly failed to follow even the most basic safety precautions after acquiring such notice, such as timely quarantining crewmembers stationed aboard the vessels, timely providing crewmembers stationed aboard the vessels masks and/or timely requiring them to observe social distancing measures aboard the vessels, the Plaintiff avers. Instead, in an alarming lack of urgency, the Defendant has allowed its crewmembers to eat in buffet settings aboard the vessels, mandated their participation in shipboard drills, and even permitted crewmembers to attend crew parties aboard the vessels. The Plaintiff insists that the Defendant's egregious failure to protect its employees has already resulted in hundreds of positive COVID-19 cases and what is more likely thousands given that there is limited testing being done on its vessels. As a result of its careless conduct, the Defendant negligently exposed and is currently exposing thousands of its crewmembers to COVID-19, the Plaintiff argues. Such harm includes these crewmembers suffering from lung injuries caused by COVID-19 and/or permanently reduced lung capacity, complications and/or further injury/ies caused by contracting COVID-19 in conjunction with pre-existing illness and/or medical conditions and/or death. The Plaintiff was a crewmember, who worked for the Defendant aboard its vessels. CELEBRITY CRUISES INC., is a foreign entity, which conducts its business from its principal place of business in Miami, Florida.[BN] The Plaintiff is represented by: Jason R. Margulies, Esq. Michael A. Winkleman, Esq. Jacqueline Garcell, Esq. L. Alex Perez, Esq. LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A. One Biscayne Tower, Suite 1776 2 South Biscayne Boulevard Miami, FL 33131 Phone: (305) 373-3016 Facsimile: (305) 373-6204 Email: jmargulies@lipcon.com mwinkleman@lipcon.com jgarcell@lipcon.com aperez@lipcon.com COLLECTO INC: Faces Church FDCPA Suit in District of New Jersey --------------------------------------------------------------- A class action lawsuit has been filed against Collecto, Inc. The case is captioned as CLIFFORD J. CHURCH, individually and on behalf of those similarly situated v. COLLECTO, INC. doing business as: EOS CCA; US ASSET MANAGEMENT, INC.; and JOHN DOES 1 TO 10, Case No. 2:20-cv-03523-KM-ESK (D.N.J., April 1, 2020). The case is assigned to the Hon. Judge Kevin McNulty. The lawsuit alleges violation of Fair Debt Collection Practices Act. Collecto operates as a debt management and recovery resource company.[BN] The Plaintiff is represented by: Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hackensack Ave., Ste. 701 Hackensack, NJ 07601 Telephone: (201) 273-7117 Facsimile: (201) 273-7117 E-mail: ykim@kimlf.com CONAIR CORPORATION: Hergert Liability Suit Moved to N.D. Illinois ----------------------------------------------------------------- The class action lawsuit captioned as EMILY HERGERT and JULIE MCCLANAHAN, individually and on behalf of all others similarly situated v. CONAIR CORPORATION, a Delaware corporation authorized to do business in the State of Illinois, Case No. 2020-L-001943 (Filed Feb. 18, 2020), was removed from the Illinois Circuit Court, Cook County, to the U.S. District Court for the Northern District of Illinois on March 31, 2020. The Northern District of Illinois Court Clerk assigned Case No. 1:20-cv-02062 to the proceeding. The Plaintiffs bring this complaint against Conair for products liability claim alleging that they were seriously injured while using a hair dryer designed, manufactured, assembled, and sold by Conair. Conair is an American company based in Stamford, Connecticut which sells small appliances, personal care products, and health and beauty products for both professionals and consumers.[BN] The Defendant is represented by: Kevin G. Owens, Esq. JOHNSON & BELL, LTD. 33 West Monroe Street, Suite 2700 Chicago, IL 60603-5404 Telephone: (312) 372-0770 Facsimile: (312) 372-9818 E-mail: owensk@jbltd.com - and - Ryan D. Saba, Esq. ROSEN SABA, LLP 9350 Wilshire Boulevard, Suite 250 Beverly Hills, CA 90212 Telephone: (310) 285-1727 Facsimile: (310) 285-1728 E-mail: rsaba@rosensaba.com COVETRUS INC: Continues to Defend Cops Retirement System Suit ------------------------------------------------------------- Covertus, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 31, 2019, that the company continues to defend a class action suit initiated by the City of Hollywood (Florida) Police Officers' Retirement System. On September 30, 2019, the City of Hollywood (Florida) Police Officers' Retirement System filed a putative securities class action lawsuit in the United States District Court for the Eastern District of New York, purportedly on behalf of purchasers of Covetrus common stock from February 8, 2019 through August 12, 2019, against the Company, Henry Schein, Inc., its former Chief Executive Officer and President, and its former Chief Financial Officer. The complaint alleges that Defendants violated Sections 10(b) and 20(a) of the Exchange Act by making allegedly false and misleading statements and omissions, primarily regarding the Company's financial prospects and the integration costs relating to the business combination involving the Animal Health Business and Vets First Choice. The suit seeks unspecified damages, fees, interest, and costs. Covertus said, "We intend to defend the matter vigorously. Given the uncertainty of litigation, the preliminary stage of the case, and the legal standards that must be met for, among other things, class certification and success on the merits, we cannot estimate the reasonably possible loss or range of loss that may result from this action." Covertus, Inc. is a global animal-health technology and services company dedicated to supporting the companion, equine, and large-animal veterinary markets. Its mission is to provide the best products, services, and technology to veterinarians and animal-health practitioners ("Customers") across the globe, so they can deliver exceptional care to their patients ("Animal Owners") when and where it is needed. The company is based in Portland, Maine. CR ENGLAND: Clarke Labor Class Suit Removed to C.D. California -------------------------------------------------------------- The class action lawsuit captioned as JOHN CLARKE, an individual, and on behalf of others similarly situated v. C.R. ENGLAND, INC., a Utah Corporation; and DOES 1 through through 50, inclusive, Case No. 19STCV23568 (Filed Feb. 12, 2020), was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California on April 1, 2020. The Central District of California Court Clerk assigned Case No. 2:20-cv-01411 to the proceeding. The case is assigned to the Hon. Judge Percy Anderson. The Plaintiff alleges that the Defendants failed to provide required meal periods or to pay compensation in lieu, in violation of the California Labor Code. CR England provides transportation services. The Company offers truck driving training, satellite tracking, communication, fleet billing, load tracking, electronic commerce, order consolidation, route optimization, and transport modeling services.[BN] The Defendants are represented by: Drew Hansen, Esq. Seth Goldstein, Esq. J. Randall Boyer, Esq. NOSSAMAN LLP 18101 Von Karman Avenue, Suite 1800 Irvine, CA 92612 Telephone: 949 833 7800 Facsimile: 949 833 7878 E-mail: dhansen@nossaman.com sgoldstein@nossaman.com jboyer@nossaman.com CSX TRANS: Billingsley FMLA Suit Moved from Florida to Maryland --------------------------------------------------------------- The class action lawsuit captioned as Jason Billingsley, Jeremy Clifford, Mike Robbins, Bryan Stutz, and Kyle Wood, individually and on behalf of others similarly situated v. CSX Transportation, Inc., Case No. 3:19-cv-0085 (Filed July 23, 2019), was transferred from the U.S. District Court for Middle District of Florida to the U.S. District Court for the District of Maryland on April 1, 2020. The District of Maryland Court Clerk assigned Case No. 1:20-cv-00858-RDB to the proceeding. The case is assigned to the Hon. Judge Richard D. Bennett. The lawsuit alleges violation of the Family Medical Leave Act. The Plaintiff contends that CSX has engaged in a brazen pattern and practice of unlawfully discouraging FMLA leave and retaliating against workers, who rely on the FMLA's protections. CSX operates a 24-hour-a-day, 365-day-a-year business, meaning employees are needed for work on weekends and holidays. While CSX's employees understand that working on weekends and holidays comes with the territory, they did not anticipate having to work through serious illnesses, miss their children's births, or choose between caring for their sick loved ones and keeping their jobs, says the complaint. CSX is a Class I freight railroad operating in the eastern United States and the Canadian provinces of Ontario and Quebec.[BN] The Plaintiffs are represented by: Audrey Schechter, Esq. LAW OFFICES OF AUDREY HILDES SCHECHTER P.O. Box 445 Largo, FL 33779 E-mail: audreyschechterlaw@gmail.com - and - Nicholas D. Thompson, Esq. THE MOODY LAW FIRM 500 Crawford St., No. 200 Portsmouth, VA 23704 Telephone: (757) 399-8906 Facsimile: (757) 397-7257 E-mail: nthompson@moodyrrlaw.com DISTRICT OF COLUMBIA: Fails to Contain COVID-19, Banks et al Claim ------------------------------------------------------------------ EDWARD BANKS, D'ANGELO PHILLIPS, KEON JACKSON, and ERIC SMITH, Plaintiffs v. QUINCY BOOTH, in his official capacity as Director of the District of Columbia Dep't of Corrections, and LENNARD JOHNSON, in his official capacity as Warden, Defendants, Case No. 1:20-cv-00849-CKK (D.D.C., March 30, 2020) is a class action complaint brought against Defendants for their alleged violations of the rights under the Fifth Amendment's Due Process Clause and the Eight Amendment's protection against cruel and unusual punishment, and the COVID-19 Response Emergency Amendment Act of 2020. According to the complaint, because of the COVID-19 outbreak, the District of Columbia's Department of Corrections (DOC) has five confirmed cases of COVID-19. Allegedly, Defendants failed to implement many basic procedures such as distributing sufficient hygienic products and providing prompt medical attention and testing to those with COVID-19 symptoms, thereby gravely jeopardized the safety of Plaintiffs and all other approximately 1,600 individuals confined in the DOC. Plaintiffs seek class-wide relief requiring Defendants to join other jurisdictions in reducing the population in their facilities and to implement other basic policies and procedures that would mitigate the risk of Plaintiffs' health and safety. Plaintiffs are currently in Defendant's custody; include a pretrial detainee at CTF, a pretrial detainee at CDF, a post-conviction detainee at CTF, and a post-conviction detainee at CDF. Quincy Booth and Lennard Johnson are the leaders of the District of Columbia Dep't of Corrections, which operates two physically connected jail buildings, the Correctional Treatment Facility (CTF) and the Central Detention Facility (CDF). [BN] The Plaintiffs are presented by: Steven Marcus, Esq. Jonathan Anderson, Esq. Jenna Cobb, Esq. PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA 633 Indiana Avenue N.W. Washington, D.C. 20004 Tel: 202-824-2524 Fax: 202-824-2525 Email: smarcus@pdsdc.org - and – Scott Michelman, Esq. Arthur B. Spitzer, Esq. Michael Perloff, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel: 202-457-0800 Email: smichelman@acludc.org DO LAB INC: Jimenez Sues Over Failure to Refund Festival Tickets ---------------------------------------------------------------- Yesenia Jimenez, individually and on behalf of all others similarly situated v. DO LAB, INC., Case No. 2:20-cv-03462 (C.D. Cal., April 14, 2020), seeks relief on behalf of all ticket holders of the Defendant's Lightning in a Bottle Festival for breach of express warranties, negligent misrepresentation, fraud, unjust enrichment, money had and received, conversion, breach of contract, and for violations of the California Consumer Legal Remedies Act, Unfair Competition Law and False Advertising Law. According to the complaint, the Defendant has made the unconscionable decision to retain its customers ticket fees while cancelling its famous Lightning in a Bottle Festival, as the novel coronavirus, COVID-19, rages throughout the world and the United States economy has gone into a deep recession. The Defendant sold tickets to its Festival, promising to host the Festival from May 20th to May 25th, 2020. To attend the Defendant's Festival consumers could purchase four-day general admission passes that started at $319 plus fees and five day passes that started at $389 plus fees. Indeed, the Defendant even offered tickets for as high as $999 for this year's festival. Customers could pay for the tickets in full, or had the option to purchase the tickets on payment plans. On March 13, 2020, the Defendant announced that it was cancelling its Festival for 2020. The Defendant has not refunded any consumers despite cancelling its Festival, and has refused to do so in the future. Indeed, in an email to ticketholders, the Defendant anticipated that its decision to not refund customers "will not be received well," but tried to justify the egregious practice by claiming that Defendant is "a small family business" and does not have "deep pockets or outside investors." But Defendant is not some "mom and pop" operation, the Plaintiff contends. The Defendant reportedly sold over 27,000 tickets to the Lightning in a Bottle festival in 2018. Assuming that the Defendant sold approximately the same amount of tickets for the 2020 festival, with cheapest tickets that "start" at "$319 plus fees," it appears that the Defendant has collected at least $8 million worth of ticket sales that it now refuses to refund, and likely well over $10 million. Accordingly, the Defendant has unjustly enriched itself by retaining the ticket fees of thousands of consumers while simultaneously cancelling its Festival in its entirety, says the complaint. Plaintiff Jimenez purchased a ticket a four-day general admission pass to Lightning in a Bottle on a payment plan for $362.21. The Defendant is the operator of Lightning in a Bottle, an annual music festival located in the Central Valley region of California.[BN] The Plaintiff is represented by: Yeremey Krivoshey, Esq. Brittany S. Scott, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ykrivoshey@bursor.com bscott@bursor.com - and - Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 2665 S. Bayshore Dr., Ste. 220 Miami, FL 33133-5402 Phone: (305) 330-5512 Facsimile: (305) 676-9006 Email: scott@bursor.com ENSURETY VENTURES: Hirsch TCPA Suit Dismissal with Prejudice Upheld ------------------------------------------------------------------- In the case, AARON HIRSCH, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. ENSURETY VENTURES, LLC, d.b.a. Omega Autocare, LYNDON SOUTHERN INSURANCE COMPANY, et al., Defendants-Appellees, Case No. 19-13527 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal with prejudice of Hirsch's Revised Second Amended Complaint ("RSAC") as an impermissible shotgun pleading that fails to comply with the requirements of Federal Rule of Civil Procedure 8(a). On Oct. 30, 2017, Hirsch filed his first Complaint against Ensurety and Fortegra Financing Corp., alleging violations of the Telephone Consumer Protection Act ("TCPA"). The gist of his allegations was, and is, that Ensurety, under the trade name Omega Autocare, and Fortegra, which provides underwriting services to Omega, have been responsible for unlawful telemarketing calls that Hirsch has received which advertise Omega Autocare automobile warranty policies. Specifically, Hirsch alleged that the Defendants made unsolicited and unauthorized calls using an automated telephone dialing system or pre-recorded/artificial voice to residential and cellular telephones for the purpose of marketing their products and/or services. The Complaint contained six counts: Counts I and II allege violations by the defendants of 47 U.S.C. Section 227(b)(1)(A), Counts III and IV allege violations by the Defendants of Section 227(b)(1)(B), and Counts V and VI allege violations by the Defendants of Section 227(c). Hirsch requested that his Complaint be certified as a class action, and sought an injunction requiring the Defendants to cease all telemarketing calls, as well as an award of statutory damages under the TCPA for members of the class. The District Court struck the Complaint sua sponte, finding that it constituted an impermissible shotgun pleading because all six counts of the Complaint incorporated the allegations of each of the previous counts by reference. Hirsch then filed an Amended Complaint containing the same six counts and theories of liability, asserted against the same two Defendants. Both the Defendants independently moved to dismiss the Amended Complaint, and the motion was referred to a Magistrate Judge to prepare a Report and Recommendation ("R&R"). In evaluating Omega's motion to dismiss, the Magistrate Judge concluded that the Amended Complaint failed to state a claim under Counts I and II because Hirsch did not allege that his voice-over-Internet protocol ("VoIP") telephone service was a service for which the called party is charged for the call," as required by Section 227(b)(1)(A). Additionally, the Magistrate Judge recommended that Fortegra's motion to dismiss be granted because, while the Amended Complaint indicated that the telemarketing calls were advertising Omega automobile warranty policies, it did not sufficiently allege a relationship between Fortegra and Omega and did not indicate which the Defendant is responsible for which actions. Thus, the R&R recommended that the Amended Complaint be dismissed in its entirety without prejudice, and the recommendation was adopted by the District Court. Hirsch then filed a Second Amended Complaint and a Corrected Second Amended Complaint, which were both stricken by the District Court without prejudice because they sought to add new defendants without receiving leave of Court. Hirsch then filed the RSAC naming seven Defendants: Lyndon Southern Insurance Company, Insurance Company of the South, LOTSolutions, Inc., Auto Knight Motor Club, Inc., EGV Companies, Inc., Ensurety, Inc., and Ensurety Ventures, LLC, doing business as Omega Autocare. The RSAC contains various general factual allegations regarding the interrelationship between each of the Defendant parties, alleging that certain of the Defendants "directly or indirectly market" automotive policies on behalf of Omega, and that some insure Omega's vehicle warranty contracts or assist in the process of doing so. Three of the Defendants, Hirsch alleges, are "alter-egos of one another" and collectively form the Omega Autocare business. According to Hirsch, while the Defendants themselves do not make the unlawful telemarketing robocalls, they find and hire non-party call centers, and instruct those entities to make the calls to consumers. Hirsch alleges that all of the Defendants play a role in enlisting the services of call centers to send unlawful calls, and that all the Defendants "are vicariously liable for the illegal telemarketing practices." The RSAC contains nine counts, with the first six counts being identical to those alleged in the Amended Complaint, and the final three counts alleging violations of identical provisions of Maryland law. Like the Amended Complaint, the RSAC alleges under each count that all the Defendants, either directly or through their agents, made the unauthorized calls that violated three different provisions of the TCPA, and that the Defendants' violations were "knowing and/or willful." All the Defendants moved to dismiss the RSAC, making similar arguments that it fails to improve on the pleading deficiencies leading to dismissal of the first Amended Complaint by continuing to improperly lump various Defendants together, particularly because the RSAC now names seven Defendants instead of two. The Magistrate Judge entered a Report and Recommendation ("R&R") on the Defendants' motions to dismiss the RSAC. Similar to the first R&R, the Magistrate Judge concluded that Hirsch had not cured the defects in his pleading, and that dismissal continues to be appropriate. The R&R found that the RSAC is still "a shotgun pleading" that makes it unclear what theory of liability the Plaintiff is pursuing and/or which Defendants or non-parties are responsible for which actions. Similarly, the Magistrate Judge found that the RSAC does not qualify as a "short and plain statement" as required by Fed. R. Civ. P. 8. In sum, the R&R recommended that the RSAC be dismissed but also recommended that Hirsch be provided with one final opportunity to replead, though it recognized that "the Court could arguably dismiss the RSAC with prejudice for failing to cure the subject defects. The District Court overruled Hirsch's objections to the R&R and adopted it, agreeing that it was an impermissible shotgun pleading, but chose not to give Hirsch another opportunity to replead, instead dismissing the RSAC with prejudice. Hirsch appealed from the District Court's order. First, he contends that his RSAC was not a shotgun pleading and that dismissal was improper. The Eleventh Circuit holds that Hirsch's RSAC is a shotgun pleading. Each of the nine counts "re-alleges and incorporates" the allegations of the entire rest of the complaint and all previous counts. Like in Hirsch's Complaint and Amended Complaint, each count alleges that the TCPA was violated by the Defendants, either directly or through their agents, without explaining which the Defendant was responsible for the calls. Similarly, without any clarification provided, Hirsch alleges that the foregoing acts and omissions of the Defendants constitute numerous and multiple violations of the TCPA, but in no count or claim does he state which act or omission was committed by which Defendant. Hirsch's RSAC is a shotgun pleading under our precedent and is not a short and plain statement of the claim showing that Hirsch is entitled to relief. Thus, the District Court did not err in granting the Defendants' motion to dismiss, rules the Eleventh Circuit. The Eleventh Circuit now turns to Hirsch's argument that it was inappropriate for the District Court to dismiss the RSAC with prejudice. It finds that Hirsch cannot get around a dismissal with prejudice by merely adding new Defendants without altering his impermissible style of pleading. The fact remains that Hirsch's RSAC is still an impermissible shotgun pleading, whether against two Defendants or seven, and Hirsch had already been put on notice by the District Court that his pleadings were insufficient. And as the District Court lamented, Hirsch compounded the difficulty associated with reviewing the RSAC where the number of defendants grew from 2 to 7. The Eleventh Circuit finds that the District Court did not abuse its discretion in dismissing the RSAC with prejudice because the Court provided Hirsch with multiple warnings that his pleadings were inadequate, inappropriate shotgun pleadings, and those warnings went unheeded. Based on the foregoing, the Eleventh Circuit affirms the dismissal with prejudice of Hirsch's Revised Second Amended Complaint. A full-text copy of the Eleventh Circuit's March 18, 2020 Order is available at https://is.gd/wyElgK from Leagle.com. James F. Bogan, III -- jbogan@kilpatricktownsend.com -- for Defendant-Appellee. John H. Pelzer, for Defendant-Appellee. Lane Lanier Vines -- lvines@bm.net -- for Plaintiff-Appellant. Steven G. Wenzel -- swenzel@wfclaw.com -- for Plaintiff-Appellant. Michael Dell'Angelo -- mdellangelo@bm.net -- for Plaintiff-Appellant. Beth-Ann E. Krimsky -- beth-ann.krimsky@gmlaw.com -- for Defendant-Appellee. William L. Tucker, for Defendant-Appellee. Jonathan Zachary DeSantis -- jdesantis@cfjblaw.com -- for Plaintiff-Appellant. Jeffrey H. Fisher -- jfisher@kilpatricktownsend.com -- for Defendant-Appellee. Max F. Maccoby -- maccoby@washglobal-law.com -- for Plaintiff-Appellant. Kristin Mallatt Crall, for Plaintiff-Appellant. FITNESS INT'L: Barnett Seeks Refund of Unearned Membership Fees --------------------------------------------------------------- The case, KIP BARNETT, individually and on behalf of all others similarly situated, Plaintiff v. FITNESS INTERNATIONAL, LLC d/b/a LA FITNESS, Defendant, Case No. 0:20-cv-60658 (S.D. Fla., March 30, 2020) arises from Defendant's alleged unjust enrichment and unlawful conduct by failing to reimburse unearned membership fees to its members. According to the complaint, Defendant voluntarily closed its fitness facilities around the country on or about March 16, 2020 through April 1, 2020 due to COVID-19 outbreak. Allegedly, Defendant kept millions of dollars in unearned membership fees instead of providing a much-needed refund to its members. Plaintiff has been a member of Defendant's fitness facilities for over 14 years and has a month-to-month membership agreement with Defendant. Fitness International, LLC is a fitness facility. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd., Suite 1400 Ft. Lauderdale, FL 33301 Tel: 954-400-4713 Email: mhiraldo@hiraldolaw.com - and – Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Ft. Lauderdale, FL 33301 Tel: 954-628-5793 Email: jibrael@jibraellaw.com FLYWHEEL SPORTS: Ct. Orders Arbitration in Henricks TCPA Suit -------------------------------------------------------------- In the case, CHRISTINA HENRICKS, individually and on behalf of all others similarly situated, Plaintiff, v. FLYWHEEL SPORTS, INC., and DOES 1 through 10, inclusive, and each of them, Defendants, Case No. 19 Civ. 895 (PGG) (S.D. N.Y.), Judge Paul G. Gardephe of the U.S. District Court for the Southern District of New York granted Flywheel's motion to compel arbitration and to stay the action pending arbitration. On Jan. 29, 2019, Plaintiff Henricks commenced the putative class action alleging that Defendant Flywheel violated the Telephone Consumer Protection Act by sending unwanted text messages to her cellular phone. Flywheel offers indoor cycling workout classes at studios in more than a dozen geographic areas. To sign up for a Flywheel class, a customer must have a Flywheel user account. Henricks' account was created on Flywheel's website on Dec. 2, 2014 at 6:19 p.m. Flywheel's account registration webpage can be accessed either remotely (for example, at home) or by using a tablet at a Flywheel studio. Either way, the sign-up process is the same. Before an account is created, the user is required to click a box stating, "I agree with the Flywheel Sports Terms and Conditions of Service and Privacy Policy." The text associated with "Terms and Conditions of Service" is hyperlinked in blue lettering and, when clicked, directs the user to the Terms and Conditions. Flywheel's "Privacy Policy" is similarly hyperlinked. Henricks has registered for 55 Flywheel classes, but has never been a "direct customer" of Flywheel. Instead, she has always booked her Flywheel classes through ClassPass, a third-party entity. ClassPass users, however, are still required to create a Flywheel account in order to take Flywheel classes. In about November 2018, Henricks began to receive unsolicited spam advertisements and promotional offers from Flywheel on her cellular phone. She alleges that Flywheel sent these text messages from its "SMS blasting platform." She asserts that she never gave her phone number to Flywheel and never consented to receive text messages from the company. Documentary evidence provided by the Defendant shows that Flywheel obtained Henricks' phone number (and other personal information about her) when her account was created in December 2014. Henricks claims that Flywheel's transmission of text messages to her violated the TCPA. The Complaint was filed on Jan. 29, 2019, on behalf of Henricks and all persons within the United States who received any unsolicited text messages from Flywheel which text message was not made for emergency purposes or with the recipient's prior express consent within the four years prior to the filing of this Complaint. On May 30, 2019, Flywheel moved to compel arbitration and to stay the action pending arbitration. Henricks opposes Flywheel's motion. Judge Gardephe holds that the record before the Court demonstrates that Henricks created a Flywheel account in December 2014 and, in doing so, agreed to Flywheel's Terms and Conditions of Service, which include an arbitration agreement that encompasses her TCPA claims. That Henricks does not recall creating the Flywheel account -- and denies doing so -- does not create an issue of fact. For these reasons, Judge Gardephe granted Flywheel's motion to compel arbitration. The action is stayed pending the outcome of arbitration proceedings. A full-text copy of the Court's March 18, 2020 Order is available at https://is.gd/SlLKZ7 from Leagle.com. Christina Henricks, individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Hekmat -- jhekmat@hekmatlaw.com -- Hekmat Law Group, Thomas Edward Wheeler, Law Offices of Todd M. Friedman & Todd Friedman -- tfriedman@attorneysforconsumers.com -- Law Offices of Todd M. Friedman. Flywheel Sports, Inc., Defendant, represented by David Jay -- jayd@gtlaw.com -- Greenberg Traurig, LLP. GENERAL MOTORS: Court Dismisses First Amended Hall Suit ------------------------------------------------------- In the case, ELAINE HALL, et al., Plaintiffs, v. GENERAL MOTORS, LLC, Defendant, Case No. 19-cv-10186 (E.D. Mich.), Judge Matthew F. Leitman of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted GM's motion to dismiss all of Plaintiffs' claims in the First Amended Complaint. In the putative class action, the Plaintiffs bring a variety of statutory and common-law claims against Defendant GM arising out of an alleged safety defect in the StabiliTrak system of their GM vehicles. GM is one of the world's leading automakers. One of the vehicles that it designs and manufactures is the Chevrolet Impala. The Plaintiffs are consumers who purchased 2010 through 2016 Chevrolet Impala and 2014-2016 Chevrolet Impala Limited vehicles in the United States. They purchased their vehicles on the used-car market. The Class Vehicles are equipped with a "StabiliTrak electronic stability control system" that is designed to proactively help drivers maintain control of their vehicles in situations where the vehicle is beginning to lose directional stability. The Plaintiffs assert that the StabiliTrak system contains one or more design and/or manufacturing defects that can cause the vehicle to pull to one side (particularly while turning), hesitate, jerk, brake/lock wheels, lose power and/or stall. They refer to the defect as the "StabiliTrak Defect." They contend that the StabiliTrak Defect "is caused by a defective wheel speed sensor wiring harness which is subject to unintended wear, stress and abrasion from normal use that can cause various types of damage. The "damage," in turn, "can cause the signals from the wheel speed sensor to become erratic" and cause the "symptoms" described. Finally, the Plaintiffs claim that GM "concealed" and "failed to disclose" the StabiliTrak Defect to them and the public. The Plaintiffs filed their First Amended Class Action Complaint, the operative pleading in the action, on May 16, 2019. The named Plaintiffs are as follows: (i) Elaine Hall, a California resident who purchased a used 2016 Chevrolet Impala Limited from an authorized GM dealer in Los Angeles, California in July 2017; (ii) Herklee Carey, an Alabama resident who purchased a used 2014 Chevrolet Impala Limited from Nissan of Mobile in Mobile, Alabama in January 2015; (iii) Brandon Clark, an Illinois resident who purchased a used 2014 Chevrolet Impala from Tom Sparks Automotive in DeKalb, Illinois in July 2016; (iv) Duranda Jones, an Illinois resident who purchased a used 2013 Chevrolet Impala from an authorized GM dealer in Pekin, Illinois in November 2017; (iv) Rebecca Bittner, a Pennsylvania resident who purchased a used 2012 Chevrolet Impala from an authorized GM dealer in Cumberland, Maryland in July 2015; and (v) James Fagre, a Missouri resident who purchased a used 2012 Chevrolet Impala from Marshfield Chevrolet in Marshfield, Missouri in March 2015. The Plaintiffs bring claims against GM for fraud, violations of the consumer protection laws of various states, unjust enrichment, and breach of the Class Vehicles' implied warranties under state and federal law. GM moved to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on June 13, 2019. The Court held a hearing on the motion on Jan. 30, 2020. In Counts I-IV, VII-VIII, and XI of the First Amended Complaint, the Plaintiffs bring a common-law fraud claim and claims based upon the consumer protection laws of various states against GM. The essence of each of these claims is that GM "concealed" and "failed to disclose" the StabiliTrak Defect to the public. Thus, these claims are in the nature of fraudulent omissions. Judge Leitman finds that (i) the Plaintiffs' allegations about GM's unspecified pre-sale testing and analysis are not sufficient to support a plausible inference that GM had pre-sale knowledge of the StabiliTrak Defect; (ii) the Plaintiffs have not presented these complaints in a manner that can reasonably allow the Court to determine whether they tend to establish GM's pre-sale knowledge of the StabiliTrak Defect; (iii) the TSBs identified by the Plaintiffs did not identify or mention any of the core features of the StabiliTrak Defect as defined by the Plaintiffs, and thus those TSB's do not support a plausible inference that GM knew about the StabiliTrak Defect; and (iv) the differences between the knowledge allegations that were sufficient in GM Air Conditioning and the knowledge allegations the Plaintiffs make underscore why the allegations in the case do not support a plausible inference that GM had pre-sale knowledge of the StabiliTrak Defect. In Count XII of the First Amended Complaint, the Plaintiffs, on behalf of a nationwide class, or, in the alternative, on behalf of various state sub-classes, allege that GM has been unjustly enriched "through the sale and lease of the Class Vehicles." Judge Leitman holds that the claim fails for two reasons. First, the Plaintiffs' unjust enrichment claim is not cognizable because there is an express contract that covers the same subject matter -- namely, the express limited warranty that GM provided at the time the Class Vehicles were first purchased. Second, the Plaintiffs' unjust enrichment claim also fails because they have not sufficiently pleaded that they conferred a benefit on GM. For these reasons, the Plaintiffs have failed to state a viable unjust enrichment claim against GM. Finally, in Counts V-VI and IX-X of the First Amended Complaint, Plaintiffs Clark, Jones, and Fagre allege that GM breached the implied warranties of the vehicles that they purchased. The Plaintiffs bring their breach of implied warranty claims under the federal Magnuson-Moss Warranty Act (the "MMWA"), and the laws of Illinois and Missouri. Judge Leitman is not persuaded that the durational limits in the Plaintiffs' implied warranties are unconscionable. First, the duration of the express limited warranties for the Plaintiffs' vehicles was 3 years or 36,000 miles, whichever occurred first. Thus, the Plaintiffs' implied warranties were limited to that same time period. Second, the Plaintiffs have not pleaded that the StabiliTrak Defect manifested in their vehicles or that they suffered any injury before their implied warranties expired. That further supports the dismissal of the Plaintiffs' breach of warranty claims. Finally, the Plaintiffs have not sufficiently explained how they may properly attack the durational limits in the implied warranties as unconscionable where, as used car purchasers, they did not receive the warranties from GM. At this point, the Court would normally provide the Plaintiffs the opportunity to file an Amended Complaint to remedy the pleading deficiencies identified by GM and the Court. But while leave to amend should be freely given when justice so requires, justice does not require that the Plaintiffs be permitted to file a Second Amended Complaint. A careful review of the history of the action shows why. Judge Leitman holds that the procedure allowed the Plaintiffs a full opportunity to allege any and all facts in the First Amended Complaint that supported their claims and that could address GM's arguments for dismissal. The Court adopted the procedure because it did not want to undertake an exhaustive analysis of the Plaintiffs' claims until it had given Plaintiffs the opportunity to cure the claimed defects. Nor did the Court want the parties to spend time and resources on motion practice until the Plaintiffs had the chance to review GM's arguments in support of GM's motion to dismiss and to augment their claims with additional factual allegations if necessary. The parties and the Court have now spent significant time and resources analyzing the facts and claims in the First Amended Complaint, and it would not be just to require the parties and the Court to repeat this process. The Judge therefore declines to grant the Plaintiffs leave to amend. For all of the reasons stated, Judge Leitman granted GM's motion to dismiss, and the First Amended Complaint is dismissed with prejudice. A full-text copy of the Court's March 18, 2020 Opinion & Order is available at https://is.gd/Xij5Pj from Leagle.com. Elaine Hall, Plaintiff, represented by Danielle L. Manning , Glancy Prongay and Murray LLP, Dennis A. Lienhardt, The Miller Law Firm, P.C., Marc L. Godino -- mgodino@glancylaw.com -- Glancy Prongay and Murray LLP, Mark S. Greenstone -- mgreenstone@greenstonelaw.com -- Greenstone Law APC, Sharon S. Almonrode -- ssa@millerlawpc.com -- The Miller Law Firm, P.C., William Kalas, The Miller Law Firm, P.C. & E. Powell Miller -- epm@millerlawpc.com -- The Miller Law Firm. Herklee Carey, James Fagre, Rebecca Bittner, Brandon Clark & Duranda Jones, Plaintiffs, represented by Danielle L. Manning -- dmanning@glancylaw.com -- Glancy Prongay and Murray LLP, Dennis A. Lienhardt, The Miller Law Firm, P.C., Marc L. Godino, Glancy Prongay and Murray LLP, Mark S. Greenstone, Greenstone Law APC & E. Powell Miller, The Miller Law Firm. General Motors, LLC, Defendant, represented by Eric C. Tew -- etew@dykema.com -- Dykema Gossett PLLC, Michael P. Cooney -- mcooney@dykema.com -- Dykema Gossett & Terri Steinhaus Reiskin -- treiskin@dykema.com -- Dykema Gossett PLLC. H Z & J SERVICES: Mercedes Seeks Minimum and OT Pay for Drivers --------------------------------------------------------------- FRANKLIN R. MERCEDES, and other similarly-situated individuals, Plaintiff (s), v. H Z & J SERVICES LLC, and HELVER ZUNIGA, SR, individually, Defendants, Case No. 6:20-cv-00565-PGB-DCI (M.D. Fla., April 1, 2020) is an action brought by the Plaintiff to recover money damages for unpaid minimum and overtime wages, and retaliatory damages pursuant to the Fair Labor Standards Act. The Plaintiff was hired as a local driver to deliver empty construction debris containers and to pick up full debris containers. H Z & J SERVICES is a Florida-based company that operates a sanitation or trash and debris collection business. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 HERITAGE-CRYSTAL CLEAN: Settlement Reached in Adelphia Class Suit ----------------------------------------------------------------- Heritage-Crystal Clean, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 28, 2019, that the company has settled a putative class action lawsuit captioned as, Adelphia, Inc. d/b/a/ Village Auto and Dan's One Stop Shop, LLC v. Heritage-Crystal Clean, Inc. and Heritage-Crystal Clean, LLC, Case No. 15-L-386 In December 2019, the Company settled its putative class action lawsuit, Adelphia, Inc. d/b/a/ Village Auto and Dan's One Stop Shop, LLC v. Heritage-Crystal Clean, Inc. and Heritage-Crystal Clean, LLC, Case No. 15-L-386, filed in the Circuit Court for the Sixteenth Judicial Circuit in Kane County, Illinois, alleging that the Company charged fees in violation of both its contracts and applicable state laws. The case involved claims brought under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., as well as claims for breach of contract and unjust enrichment. The case was brought as a putative class action on behalf of all customers of HCC who entered into a written contract and have paid a fuel surcharge from 2005 to present. Under the settlement, the Company agreed to fund up to $11.0 million less deductions and payments for administration expenses, attorney's fees, and other expenses, for claims of class members. Heritage-Crystal said, "We expect that the final amounts owed pursuant to this settlement will be determined by the end of the second fiscal quarter of 2020." Heritage-Crystal Clean, Inc., through its subsidiary, Heritage-Crystal Clean, LLC, provides parts cleaning, and hazardous and non-hazardous containerized waste services to small and mid-sized customers in the vehicle maintenance and manufacturing services industries in North America. It operates in two segments, Environmental Services and Oil Business. Heritage-Crystal Clean, Inc. was incorporated in 2007 and is headquartered in Elgin, Illinois. HERSHA HOSPITALITY: Schaefer ADA Suit Removed to C.D. California ---------------------------------------------------------------- The class action lawsuit captioned as Barbara Schaefer, individually and on behalf of all others similarly situated v. Hersha Hospitality Management, L.P. and Does 1 through 10, inclusive, Case No. 20STCV07499, was removed from the California Superior Court, Los Angeles County, to the U.S. District Court for the Central District of California (Los Angeles) on March 30, 2020. The Central District of California Court Clerk assigned Case No. 2:20-cv-02980-JFW-AFM to the proceeding. The case is assigned to the Hon. Judge John F. Walter. The lawsuit demands $5 million in damages alleging violation of the Americans with Disabilities Act. Hersha Hospitality provides hotel management, investment, and development services. The Company offers asset management, operations, sales and marketing, centralized accounting and reporting, project management, facility, utilities support, and asset protection services.[BN] The Plaintiff is represented by: Laura Grace Van Note, Esq. Michelle Trevino, Esq. Scott Edward Cole, Esq. SCOTT COLE AND ASSOCIATES APC 555 12th Street, Suite 1725 Oakland, CA 94607 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 E-mail: lvannote@scalaw.com scole@scalaw.com The Defendants are represented by: Amy B. Alderfer, Esq. Brett Nicole Taylor, Esq. COZEN O'CONNOR 1299 Ocean Avenue, Suite 900 Santa Monica, CA 90401 Telephone: (213) 892-7941 Facsimile: (213) 784-9067 E-mail: aalderfer@cozen.com btaylor@cozen.com HOOTERS III: Scott and Seales Sue Over Abrupt Termination --------------------------------------------------------- ASTHON SCOTT and AMANDA SEALES, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs v. HOOTERS III, Inc., Defendant, Case No. 8:20-cv-00882 (M.D. Fla., April 16, 2020) is a class action complaint brought against Defendant for its alleged violation of the Worker Adjustment and Retraining Notification Act. Plaintiffs and about 679 other employees were employed by Defendants -- Scott since 2012 and Seales since 2006. According to the complaint, Plaintiffs and other Class members received written notice terminating their employment on March 25, 2020, without any cause on their part. The complaint asserts that Defendant failed to: -- provide Plaintiffs and the other Class members at least 60 days' advance notice of their termination; -- provide as much written notice as was practicable under the circumstance surrounding the COVID-19 pandemic; and -- evaluate the impact of COVID-19 upon its 679 employees 60 days prior to the March 25, 2020 mass layoff. Because Defendant failed to provide advance notice, Plaintiffs and the other Class members experienced a devastating economic impact. Thus, they are entitled to recover from Defendants their respective compensation and benefits for 60 days under the WARN Act. Hooters III, Inc. operates 25 Hooters restaurants. [BN] The Plaintiffs are represented by: Luis A. Cabassa, Esq. Brandon J. Hill, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Tel (Main): 813-224-0431 Tel (Direct): 813-379-2565 Fax: 813-229-8712 Emails: lcabassa@wfclaw.com bhill@wfclaw.com - and – Chad A. Justice, Esq. JUSTICE FOR JUSTICE LLC 1205 N Franklin St., Suite 326 Tampa, FL 33602 Tel: 813-566-0550 Fax: 813-566-0770 Email: chad@getjusticeforjustice.com HYUNDAI MOTOR: Michael Balks at Unsolicited Telemarketing Calls --------------------------------------------------------------- ALAIN MICHAEL, individually and on behalf of all others similarly situated, Plaintiff, vs. HYUNDAI MOTOR AMERICA, California Corporation, Defendant, Case No. 2:20-cv-03044 (C.D. Cal., April 1, 2020) is an action brought by the Plaintiff against the Defendant to secure redress for violations of the Telephone Consumer Protection Act, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. According to the complaint, the Defendant's prerecorded telemarketing call constitutes telemarketing because they encouraged the future purchase, sell, or investment in property, goods, and/or services, i.e., the purchase of Defendant's vehicles. These calls were made without regard to whether or not Defendant had first obtained express permission from the called party to make such calls. In fact, Defendant did not have prior express consent to call the cell phones of Plaintiff and the other members of the putative Class when its calls were made. Hyundai Motor American is a car manufacturer and wholly owned subsidiary of Hyundai Motor Company. [BN] The Plaintiff is represented by: Ignacio J. Hiraldo, Esq. IJH LAW 1200 Brickell Ave Suite 1950 Miami, FL 33131 Telephone: 786-496-4469 Email: ijhiraldo@ijhlaw.com – and – Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E Las Olas Blvd. Suite 120 Fort Lauderdale, FL 33301 Telephone: 954-533-4092 Email: MEisenband@Eisenbandlaw.com – and – Manuel Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Telephone: 954-400-4713 Email: MHiraldo@Hiraldolaw.com – and – Marshall Rosenbach, Esq. LAW OFFICES OF MARSHALL E. ROSENBACH 468 N. Camden Drive, Suite 200 Beverly Hills, CA 90210 Telephone: 310-860-4764 Email: marshall@marshallrosenbach.com IBERIABANK CORP: Suits Challenge First Horizon Merger ------------------------------------------------------ IBERIABANK Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 2, 2020, for the fiscal year ended December 31, 2019, that the company has been named as a defendant in at least four putative stockholder class action suits related to its merge with First Horizon. On November 3, 2019, IBERIABANK's Board of Directors caused the Company to enter into an agreement and plan of merger with First Horizon. Pursuant to the terms of the Merger Agreement, IBERIABANK's stockholders will receive 4.584 shares of First Horizon common stock for each share of IBERIABANK common stock they own. Four purported holders of IBERIABANK Corporation (IBKC) common stock have filed four putative stockholder class action complaints against IBKC and the members of IBKC's board of directors. The complaints are captioned as follows: Wang v. IBKC, et al., No. 20-0105-LAP (S.D.N.Y filed January 6, 2020); Parshall v. IBKC, et al., No.20-00027-LPS (D. Del. filed January 8, 2020, includes First Horizon as a Defendant); Hertz v. IBKC, et al., No. 20-00267-MKB-LB (E.D.N.Y filed January 16, 2020); and Cooksey v. IBKC, et al., No. 20-00431-FB-RER (E.D.N.Y. filed January 26, 2020). The complaints assert claims under Section 14(a) of the Exchange Act and Rule 14a-9 thereunder against IBKC and the members of IBKC's board of directors and under Section 20(a) of the Exchange Act against the members of IBKC's board of directors for allegedly disseminating a false and misleading registration statement on Form S-4, filed by First Horizon with the SEC on December 31, 2019. Among other remedies, the plaintiffs seeks to enjoin the Merger and any shareholder vote on the Merger and rescind the Merger or recover damages in the event the Merger is completed. The courts have not acted on the complaints, and no relief has been granted in any of the lawsuits as of this time. The defendants believe the claims and allegations are without merit. IBERIABANK Corporation offers commercial and retail banking products and services to customers in locations in six states through IBERIABANK. The company is based in Lafayette, Louisiana. INTERNATIONAL FLAVORS: Faces Securities Class Suits in Tel Aviv --------------------------------------------------------------- International Flavors & Fragrances, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 31, 2019, that the company has been named as a defendant in putative securities class action suits in Tel Aviv District Court, Israel. Two motions to approve securities class actions were filed in the Tel Aviv District Court, Israel in August 2019, similarly alleging, among other things, false and misleading statements largely in connection with IFF's acquisition of Frutarom and the above-mentioned improper payments. Both assert claims under the U.S. federal securities laws against IFF, its Chairman and CEO, and its former CFO. One also asserts claims under the Israeli Securities Act-1968 against IFF, as well as against Frutarom and certain former Frutarom officers and directors, and asserts claims under the Israeli Companies Act-1999 against certain former Frutarom officers and directors. New York-based International Flavors & Fragrances, Inc., together with its subsidiaries, engages in the creation and manufacture of flavor and fragrance products in the United States and internationally. JEI TRUCKING: Williams FLSA Suit Moved From Arkansas to Oklahoma ---------------------------------------------------------------- The class action lawsuit captioned as JUSTIN WILLIAMS, Individually and on Behalf of All Others Similarly Situated v. JEI TRUCKING, LLC, STEVEN NASON, and STARR OILFIELD SERVICES, LLC, Case No. 4:19-cv-00606 (Filed Aug. 29, 2019), was transferred from the U.S. District Court for the Eastern District of Arkansas to U.S. District Court for the Northern District of Oklahoma (Tulsa) on March 31, 2020. The Northern District of Oklahoma Court Clerk assigned Case No. 4:20-cv-00137-TCK-JFJ to the proceeding. The case is assigned to the Hon. Judge Terence Kern. The Plaintiff brings this action under the Fair Labor Standards Act for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of the Defendants' failure to pay the Plaintiff and all others similarly situated overtime compensation for all hours they worked in excess of 40 per workweek. Jei Trucking is a licensed and bonded freight shipping and trucking company running freight hauling business from Paterson, New Jersey. Starr Oilfield is a Tulsa based trucking company that specializes in the transportation of frac sand.[BN] The Plaintiff is represented by: Joshua Jon Sanford, Esq. SANFORD LAW FIRM PLLC 650 S. Shackleford, Ste. 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com - and - Stephen Rauls, Esq. SANFORD LAW FIRM One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 The Defendants are represented by: Richard C. Downing, Esq. JAMES HOUSE DOWNING & LUEKEN, P.A. Post Office Box 3585 Little Rock, AR 72203-3585 Telephone: (501) 372-6555 Facsimile: (501) 372-6333 JUUL LABS: Gabbard Consumer Class Suit Removed to E.D. Kentucky --------------------------------------------------------------- The class action lawsuit captioned as CONSTANCE GRACE GABBARD, on behalf of herself and all others similarly situated v. JUUL LABS, INC. and ALTRIA GROUP, INC., Case No. 20-CI-00710 (Filed Feb. 21, 2020), was removed from the Kentucky Circuit Court, Fayette County, to the U.S. District Court for the Eastern District of Kentucky on March 17, 2020. The Eastern District of Kentucky Court Clerk assigned Case No. 3:20-cv-02175-WHO to the proceeding. The Plaintiff contends that as a result of using Juul e-cigarette, she is addicted to nicotine, and that such addiction "caused a permanent brain injury to her developing brain" and respiratory problems leading to hospitalization. The Plaintiff asserts claims against Defendants for negligence, breach of implied warranty, and violation of Kentucky Consumer Protection, California Consumer Legal Remedies Act, California False Advertising Law, and California Unfair Competition law. Juul is an American electronic cigarette company, which spun off from Pax Labs in 2017. Juul makes the Juul e-cigarette, which packages nicotine salts from leaf tobacco into one-time use cartridges. Altria Group is an American corporation and one of the world's largest producers and marketers of tobacco, cigarettes and related products.[BN] Defendant JUUL Labs, Inc., is represented by: F. Maximilian Czernin, Esq. SQUIRE PATTON BOGGS (US) LLP 201 E. Fourth Street, Suite 1900 Cincinnati, OH 45202 Telephone: (513) 361-1206 E-mail: max.czernin@squirepb.com Defendant Altria Group, Inc., is represented by: Kirk Ogrosky, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001-3743 Telephone: (202) 942-5330 E-mail: Kirk.Ogrosky@arnoldporter.com KENNER, LA: La. App. Affirms Prelim Injunction Ruling in Drumm Suit ------------------------------------------------------------------- In the case, BRIAN DRUMM AND THE CLASS OF SIMILARLY SITUATED PERSONS, KENNER FIREFIGHTERS ASSOCIATION LOCAL 1427 IAFF, v. THE CITY OF KENNER, Case No. 19-CA-342 (La. App.), Judge Robert A. Chaisson of the Court of Appeal of Louisiana for the Fifth Circuit affirmed the judgment of the district court granting a preliminary injunction prohibiting Kenner from forcing firefighters to work "out of class" on temporary or substitute appointments under threat of disciplinary or other employment action. On May 9, 2019, Drumm, on his own behalf and on behalf of the class of all similarly situated employees of the Fire Department of the City of Kenner, and the Kenner Fire Fighters Association Local 1427 IAFF, an unincorporated labor organization, filed a petition for preliminary injunction, permanent injunction, and declaratory relief. In the petition, the Plaintiffs alleged that Kenner has ordered Mr. Drumm and other employees of the fire department to temporarily work "out of class" against their wills and under threat of disciplinary action. The Plaintiffs alleged further that Kenner is forcing lower ranking employees to temporarily work "out of class" instead of calling available employees who hold the higher positions on an overtime basis, or creating new permanent higher ranking positions, in an effort to reduce payroll costs to Kenner. The petition details specific instances in April of 2019 where Mr. Drumm, who is currently an operator, submitted a written request stating that he did not want to work out of class through his Captain, District Chief, and Assistant Chief to the interim Kenner Fire Chief. The request was denied by the interim Fire Chief via email the next day and Mr. Drumm was placed on the schedule to work out of class. Mr. Drumm filed a Request for Investigation/Hearing with the Kenner Municipal Fire and Police Civil Service Board; however, the board was forced to reschedule its meeting for some time after Mr. Drumm was scheduled to again work out of class, thus prompting the filing of the petition. The Plaintiffs requested that the district court declare they are entitled to accept or decline appointments to work out of class on a temporary, substitute, or emergency basis without threat of discipline or other employment action and that it is unlawful for Kenner to force them to work out of class on a temporary, substitute, or emergency basis under threat of disciplinary or other employment action. A hearing on the petition was held on May 28, 2019, at which time the district court heard testimony from Mr. Drumm, another fire department employee and president of the firefighters' association, Mr. Michael Giarrusso, and interim Fire Chief Terrence Morris. The court also received into evidence various exhibits including emails, letters, work schedules and requests. On June 12, 2019, the trial court issued a judgment granting the preliminary injunction and ordered that Kenner is preliminarily enjoined from forcing Petitioners to accept temporary or substitute appointments 'out of class' under threat of discipline or other employment action. On appeal, Kenner raises three assignments of error: 1) the trial court's granting of the preliminary injunction is in conflict with the statutory authority governing temporary appointments; 2) the trial court incorrectly granted the preliminary injunction, despite Plaintiffs' failure to show irreparable harm; and 3) the trial court's preliminary injunction is overly broad because the Plaintiffs have not been properly certified as a class. First, Judge Chaisson holds that Kenner, by its own admission, cites no case law or other legal authority in support of its interpretation of the statute governing temporary appointments. Statutory interpretation begins with the language of the statute itself -- temporary appointments may be made to positions in classified service without the appointees acquiring any permanent status therein. Thus, when read in the context of the Municipal Fire and Police Civil Service Law as a whole, "appointment" as used in La. R.S. 33:2496 means that an "appointment" is in the nature of an offer and acceptance of employment as that term is used in La. R.S. 33:2494. The Judge next looks at whether the interpretation proposed by Kenner may lead to absurd consequences. Kenner argues that the statute grants the appointing authority the substantive right to appoint persons against their will and that requiring competent and capable personnel to temporarily fulfill a position at the need of the department is not an absurd consequence. Recognizing that the Plaintiffs' employment with Kenner is a voluntary, contractual agreement, the Judge concludes that the "appointment" referenced in La. R.S. 33:2496 is in the nature of an offer and acceptance of employment. Forcing an employee to work out of class against his will under threat of discipline or other employment action is an unlawful act, and therefore the Plaintiffs were not required to show irreparable harm. Accordingly, the Judge finds Kenner's argument that the district court legally erred in granting the preliminary injunction is without merit. In its final assignment of error, Kenner argues that the trial court erred in granting the preliminary injunction prior to class certification. Again, it cites no legal authority in support of its position that a class action certification is required prior to granting injunctive relief. Upon review, the Judge does not find the language of the preliminary injunction to be overly broad. Kenner's unlawful actions equally affect Mr. Drumm and all members of the proposed class who are also forced to work out of class against their will, and the trial court correctly exercised its authority to grant preliminary injunctive relief prior to class certification. The Judge notes that the language of the injunction does not forbid the appointing authority from making any temporary appointments, only those against the will of the appointees under threat of discipline or other employment action. Those employees who wish to work out of class upon being offered the opportunity are free to do so. Having concluded that the district court did not abuse its discretion in granting a preliminary injunction prohibiting Kenner from forcing firefighters to work "out of class" on temporary or substitute appointments under threat of disciplinary or other employment action, Judge Chaisson therefore affirmed the judgment of the district court. A full-text copy of the Court's March 4, 2020 Order is available at https://is.gd/iOg9Iu from Leagle.com. Laura C. Rodrigue -- lcr@rodriguearcuri.com -- Blake J. Arcuri -- bja@rodriguearcuri.com -- COUNSEL FOR PLAINTIFF/APPELLEE, BRIAN DRUMM AND THE CLASS OF SIMILARLY SITUATED PERSONS, KENNER FIREFIGHTERS ASSOCIATION LOCAL 1427 IAFF. Guice A. Giambrone, III -- ggiambrone@bluewilliams.com -- Craig R. Watson -- cwatson@gmclaw.com -- Elicia D. Ford, COUNSEL FOR DEFENDANT/APPELLANT, THE CITY OF KENNER. KILOO A/S: McDonald Suit Seeks to Certify Classes & Subclasses -------------------------------------------------------------- In the class action lawsuit styled as MICHAEL MCDONALD, et al., v. KILOO A/S, et al., Case No. 3:17-cv-04344-JD (L) (N.D. Cal.), the Plaintiffs will move the Court on May 28, 2020 for an order on: 1. certifying privacy claims for a class action jury trial; 2. certifying these proposed classes and subclasses; Rule (b)(2) Multistate Class: "all parents and/or legal guardians of persons residing in the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont, Washington, and West Virginia (Intrusion States) who were younger than the age of 18 when they played Subway Surfers between May 24, 2012 and the present"; Rule (b)(2) New York Class: "all parents and/or legal guardians of persons residing in New York State who were younger than the age of 18 when they played Subway Surfers between May 24, 2012 and the present. Rule (b)(3) Multistate Subclass: "all parents and/or legal guardians of persons residing in the Intrusion States who were younger than the age of 18 when they played Subway Surfers between May 24, 2012 and June 21, 2017, from whom the Defendants collected and/or used Personal Data for purposes of behavioral advertising"; and Rule (b)(3) New York Subclass: "all parents and/or legal guardians of persons residing in New York State who were younger than the age of 18 when they played Subway Surfers between May 24, 2012 and June 21, 2017, from whom the Defendants collected and/or used Personal Data for purposes of behavioral advertising"; 3. appointing Michael McDonald, Tamarant Draut, and Dominique Murillo as class representatives; and 4. appointing Leiff Cabrasser Heimann & Bernstein and Carney Bates & Pulliam as class counsel. The Plaintiff contends that the Defendant has uniformly intruded upon parents' and children's privacy by exfiltrating personally identifying information from mobile devices while the children played Defendant's gaming app, without any effort to obtain parents' consent and without meaningful restrictions on the data's use. Kiloo is a Danish games development company.[CC] The Plaintiffs are represented by: Michael W. Sobol, Esq. Michael K. Sheen, Esq. Facundo Bouzat, Esq. Nicholas Diamand, Esq. Douglas I. Cuthbertson, Esq. Sean A. Petterson, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 Telephone: 415 956 1000 Facsimile: 415 956 1008 E-mail: msobol@lchb.com msheen@lchb.com fbouzat@lchb.com ndiamand@lchb.com dcuthbertson@lchb.com spetterson@lchb.com - and - Hank Bates, Esq. Allen Carney, Esq. David Slade, Esq. CARNEY BATES & PULLIAM, PLLC 519 West 7th St. Little Rock, AR 72201 Telephone: 501.312.8500 Facsimile: 501.312.8505 E-mail: hbates@cbplaw.com acarney@cbplaw.com dslade@cbplaw.com LIGHTHOUSE INSURANCE: Bond et al Sue over Unsolicited Phone Calls ----------------------------------------------------------------- JOSEPH BOND and NICOLE THOMPSON, individually and on behalf of all others similarly situated, Plaintiff v. LIGHTHOUSE INSURANCE GROUP, LLC, Defendant, Case No. 1:20-cv-00677 (N.D. Ohio, March 30, 2020) is a class action complaint brought against Defendant for its alleged violation of the Telephone Consumer Protection Act. According to the complaint, Defendant conducted a wide-scale telemarketing campaign by repeatedly making unsolicited phone calls to consumers' telephones and cellular phones without any prior express consent to make such calls and by utilizing an automatic telephone dialing system and/or an artificial or pre-recorded voice. Plaintiffs received numerous unsolicited autodialed calls from Defendant's number 252-388-8025 in their personal cellular telephones. The complaint asserts that because of Defendant's unlawful conduct, Plaintiffs and the members of the class suffered actual damages in the form of monies paid to receive the unsolicited telephone calls on their cellular telephones. Lighthouse Insurance Group, LLC is a licensed insurance agency that provides health insurance, Medicare, and supplemental insurance policies to tens of thousands of customers across several states. [BN] The Plaintiffs are represented by: William McAllum Harrelson II, Esq. HARRELSON & HARRELSON LLP 9 West Water Street Troy, OH 45373 Tel: (937)552-9400 Fax: (937)552-9361 Email: Will@HarrelsonLLP.com - and – Patrick H. Peluso, Esq. Stephen A. Klein, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Ave., Suite 300 Denver, CO 80210 Tel: (720)213-0675 Fax: (303)927-0809 Emails: ppeluso@woodrowpeluso.com sklein@woodrowpeluso.com LYFT INC: Keiner Named Lead Plaintiff in Securities Suit -------------------------------------------------------- In the case, In re LYFT SECURITIES LITIGATION, Case No. 19-cv-02690-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted Rick Keiner's motion for appointment as the Lead Plaintiff and approval of Block & Leviton as the lead counsel. On May 17, 2019, Plaintiff Matias Malig, as Trustee for the Malig Family Trust, filed the first of two securities class action lawsuits bringing claims individually and on behalf of others who acquired common stock of Lyft, traceable to Lyft's Initial Public Offering ("IPO") on March 28, 2019. The complaint asserts a claim under Section 11 of the Securities Act of 1933. The complaint names as the Defendants the Company, 11 Individual Defendants who served in executive positions for the Company or on the Company's Board, and 29 underwriters who were instrumental in soliciting and making the stock offered in the IPO available to the investing public. Lyft is a rideshare company that sought to sought to revolutionize transportation by launching its peer-to-peer marketplace for on-demand ridesharing. On March 28, 2019, Lyft offered 32.5 million shares to the public through an IPO at a price of $72 per share, generating total proceeds of $2.34 billion. In the Registration Statement and Prospectus filed in connection with the IPO, Lyft estimated that its ridesharing marketplace is available to over 95% of the U.S. population, as well as in select cities in Canada. The Company also represented that its U.S. ridesharing market share was 39% in December 2018, up from 22% in December 2016. The Defendants allegedly made materially false, misleading, or incomplete statements in these filings because they failed to disclose, among other things, that: (1) Lyft's claimed ridesharing position was overstated; (2) more than 1,000 of the bicycles in Lyft's rideshare program suffered from safety issues that would lead to their recall; (3) Lyft's drivers were becoming disincentivized from driving for Lyft; and (4) Lyft failed to warn investors that a labor disruption could affect its operations. When the purported truths were revealed, Lyft's stock price fell and the putative class members -- who purchased stock traceable to the IPO -- suffered financial losses. For example, after the market closed on April 11, 2019, Uber, Lyft's competitor, filed with the SEC its Form S-1, which claimed a market share of greater than 65% in the United States and Canada, a claim that further undermined Lyft's purported claim of 39% market share. Several days later, the New York Times reported that Citi Bike was taking 1,000 bicycles out of service in New York, and more in Washington, D.C. and San Francisco, in the wake of dozens of reported injuries and safety concerns. In response to these revelations, the Company's shares fell sharply to under $57. Four competing motions for appointment as the Lead Plaintiff, approval of the lead counsel, and consolidations of securities class action cases were filed: (1) a motion by Keiner seeking appointment as the Lead Plaintiff and approval of Block & Leviton as the lead counsel; (2) a motion filed by Harold Tholen, Danilo Nunez, and Rakesh Khanna ("Lyft Investor Group") seeking appointment as the Lead Plaintiffs and approval of Levi & Korsinky, LLP as the lead counsel; (3) a motion by Deep Dinesh Patel seeking appointment as the Lead Plaintiff and approval of The Rosen Law Firm, P.A. as the lead counsel; and (4) a motion by Terry S. Bradford seeking appointment as the Lead Plaintiff and approval of Pomerantz LLP as the lead counsel. Subsequently, Patel withdrew his motion. On July 30, 2019, Keiner and the Lyft Investor Group filed briefs in opposition to the competing motions for appointment of the Llead Plaintiff. On Aug. 6, 2019, Keiner filed a brief in further support of his initial motion. On the same day, the Lyft Investor Group also filed a brief in further support of their initial motion. The 'most capable' plaintiff -- and hence the lead plaintiff -- is the one who has the greatest financial stake in the outcome of the case, so long as he meets the requirements of Rule 23. The Ninth Circuit interprets the PSLRA as establishing a simple three-step process for identifying the lead plaintiff pursuant to these criteria: Notice Requirement, Largest Financial Stake in the Litigation, and Typicality and Adequacy. Judge Gilliam finds that a notice was published in Globe Newswire on the same day that the complaint was filed. It complied with the PSLRA's 20-day filing deadline, and Globe Newswire is a "widely circulated international business-oriented news reporting service, as required. The notice specifically announced the filing of the action against Lyft, described the asserted claim under the Securities Act, described the class as encompassing those who "purchased Lyft shares pursuant and/or traceable to Lyft's registration statement and prospectus," and notified putative class members that any motion to be appointed lead plaintiff must be filed no later than July 16, 2019. Accordingly, Step One's requirements are met. Applying the economic loss method, Judge Gilliam finds that Keiner is presumptively the most adequate Plaintiff. Applying the Lax-Olsten factors for the three movants results in the following calculations: Movant (1) Shares (2) Net Shares (3) Net Funds (4) Approximate Purchased Purchased Expended Loss: Keiner - 121,352 200, $331,6074 ($223,049); Lyft Investment - 9,244, 9,244, $687,168 ($163,796); Group Harold Tholen - 5,000, 5,000, $360,000 ($91,050); Rakesh Khanna - 2,800 2,800 $201,600 ($40,673); Danilo Nunez - 1,744, 1,744, $125,568 ($31,758); and Bradford - 533, 533, $37,005 ($8,335). Also, Keiner's approximate loss is nearly $60,000 more than Lyft Investor Group and over double that of the largest shareholder in Lyft Investment Group, Harold Tholen. The Judge accordingly finds that Keiner has the largest financial interest. Keiner represents that he is unaware of any conflicts between his claims and those asserted on behalf of the putative class, or of any unique defenses, that would render him atypical or unable to adequately protect the interest of the class. Judge Gilliam agrees that Keiner's injuries, stemming from the purchase of Lyft shares at artificially high prices after the Company's alleged misstatements in the offering documents, are typical of the Section 11 claims alleged in the complaints. Further, he does not find Keiner susceptible to unique defenses that would make him inadequate to represent the class in the action. Finally, Keiner has moved for approval of its selection of Block & Leviton LLP as the lead counsel. Judge Gilliam defers to Keiner's choice of the lead counsel because his choice is not so irrational, or so tainted by self-dealing or conflict of interest, as to cast genuine and serious doubt on his willingness or ability to perform the functions of Lead Plaintiff. He thus approves Keiner's selection of counsel. For the foregoing reasons, Judge Gilliam granted Keiner's motion. He denied all pending unwithdrawn motions. Keiner is appointed as the Lead Plaintiffs for the putative class. Block & Leviton LLP is further approved as the lead counsel for the putative class. The Judge set the initial case management conference in the case for March 31, 2020 at 2:00 p.m. He also directed the parties to meet and confer and submit a joint case management statement by March 24, 2020. A full-text copy of the Court's March 4, 2020 Order is available at https://is.gd/IqZgDq from Leagle.com. Matias Malig, as Trustee for the Malig Family Trust, Plaintiff, represented by Jacob Allen Walker -- jake@blockesq.com -- Block & Leviton LLP. Lyft, Inc., Defendant, represented by Andrew Brian Clubok -- andrew.clubok@lw.com -- Latham & Watkins LLP, pro hac vice, Colleen Carlton Smith -- colleen.smith@lw.com -- Latham and Watkins LLP, Elizabeth L. Deeley -- elizabeth.deeley@lw.com -- Latham & Watkins LLP &Matthew Rawlinson -- matt.rawlinson@lw.com -- Latham & Watkins LLP. Logan Green, John Zimmer, Brian Roberts, Prashant (Sean) Aggarwal, Jonathan Christodoro, Ben Horowitz, Valerie Jarrett, David Lawee, Ann Miura-Ko, Mary Agnes (Maggie) Wilderotter & Hiroshi Mikitani, Defendants, represented by Andrew Brian Clubok , Latham & Watkins LLP, Colleen Carlton Smith , Latham and Watkins LLP, Elizabeth L. Deeley , Latham & Watkins LLP, Matthew Rawlinson , Latham & Watkins LLP & Susan E. Engel , Latham & Watkins LLP. J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, Jefferies LLC, UBS Securities LLC, Stifel, Nicolaus & Company, Incorporated, RBC Capital Markets, LLC, KeyBanc Capital Markets Inc., Cowen and Company, LLC, Raymond James & Associates, Inc., Canaccord Genuity LLC, Evercore Group L.L.C., Piper Jaffray & Co., JMP Securities LLC, Wells Fargo Securities, LLC, KKR Capital Markets, LLC, Academy Securities, Inc., Blaylock Van, LLC, Penserra Securities LLC, Siebert Cisneros Shank & Co., L.L.C., The Williams Capital Group, L.P., Castleoak Securities, L.P., C.L. King & Associates, Inc., Drexel Hamilton, LLC, Great Pacific Securities, Loop Capital Markets, LLC, Mischler Financial Group, Inc., Samuel A Ramirez & Company, Inc., R. Seelaus & Co., LLC & Tigress Financial Partners LLC, Defendants, represented by Charlene Sachi Shimada , Morgan, Lewis & Bockius LLP, Frank Burke Kennamer , Morgan, Lewis & Bockius LLP & Kevin M. Papay , Morgan, Lewis & Bockius LLP. Rick Keiner, Movant, represented by Jacob Allen Walker -- jake@blockesq.com -- Block & Leviton LLP & Whitney E. Street , Block & Leviton LLP. Harold Tholen, Danilo Nunez & Rakesh Khanna, Movants, represented by Adam Christopher McCall, Levi & Korsinsky, LLP. Deep Dinesh Patel, Movant, represented by Laurence Matthew Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. & Stephen Michael Shepardson -- sshepardson@ongaropc.com -- Rosen Law Firm, P.A., pro hac vice. Terry S. Bradford, Movant, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP. MDL 2184: $13MM Google Electronic Comm. Suit Deal Gets Final Ct. OK ------------------------------------------------------------------- Judge Charles R. Breyer of the U.S. District Court for the Northern District of California granted final approval of the class action settlement, granted attorneys' fees, and entered final judgment in IN RE GOOGLE LLC STREET VIEW ELECTRONIC COMMUNICATIONS LITIGATION, Case No. 10-md-02184-CRB (N.D. Cal.). The case rises under the Electronic Communications Privacy Act of 1986 ("ECPA"), and the Plaintiffs allege that between 2007 and 2010, Google used its Street View vehicles to intentionally intercept and store electronic communications transmitted by class members over unencrypted wireless internet connections. After almost a decade of litigation, the parties reached a settlement. The settlement provides for injunctive relief and a $13 million Settlement Fund, which (after deducting attorneys' fees and expenses, service awards for the named Plaintiffs, and notice and settlement expenses) the parties have agreed will be used to fund Court-approved cy pres awards to organizations that address consumer privacy issues. The Court preliminarily approved the settlement in October 2019. The Class Counsel now moves for final approval of the settlement. Judge Breyer held a motion hearing on Feb. 28, 2020. He has considered the record, the Settlement Agreement, and the briefing on the motion, including the objections and comments it received, and the arguments at the hearing. Judge Breyer finds and concludes that the Class Representatives, who have alleged that Google intercepted the private communications transmitted in their payload data, have standing under Article III of the United States Constitution. The invasions of privacy involved here are concrete and particularized injuries-in-fact to rights defined and protected by statute, and they fall well within the Courts' traditional sphere of authority. The alleged injuries are fairly traceable to the challenged conduct of the Defendant and are redressable by the Court. The Plaintiffs seek to certify a single nationwide class under Federal Rule of Civil Procedure 23(a) and Rule 23(b)(3). Judge Breyer finds that the Plaintiffs have satisfied Rule 23(a)(4). Because the Plaintiffs' proposed class meets the requirements of Rule 23(a) and Rule 23(b)(3), the Judge certified the classes for settlement purposes under Rule 23(b)(3). Judge Breyer confirmed the Court's appointment of Spector Roseman & Kodroff, P.C. and Cohen Milstein Sellers & Toll PLLC as the Co-Lead Class Counsel for the class, and of Lieff Cabraser Heimann & Bernstein LLP as the Liaison Counsel for Class under Rule 23(g). The Plaintiffs move for attorneys' fees, litigation expenses, and service awards. They seek out of the Settlement Fund (A) attorneys' fees amounting to 25% of the $13 million Settlement Fund ($3.25 million), (B) $750,000 in litigation expenses, and (C) Service Awards totaling $91,500 for 21 Class Representatives. Judge Breyer has carefully considered the filings in connection with the motion, as well as the record in the matter, and he granted the motion, as modified. Judge Breyer calculates attorneys' fees based on a percentage of the net Settlement Fund. That represents the Settlement Fund of $13 million, minus expenses of $750,000, minus service awards of $91,500 -- a net of $12,158,500 -- to which the Class Counsel is entitled to 25%, or $3,039,625. The Judge therefore granted Fees to the Class Counsel in the amount of $3,039,625. He also granted the Plaintiffs' motion for litigation expenses in the amount of $750,000. Judge Breyer directed the Parties to consummate the Settlement according to its terms. Pursuant to the Settlement, Google will destroy, if it has not already done so, all Acquired Payload Data, including the disks containing such data, within 45 days of the Order, subject to any preservation obligations Google may have with respect to any Excluded Class Member. Google will report via counsel to Class Counsel upon the expiration of the 45 days whether it has destroyed the Acquired Payload Data. If Google does not destroy the Acquired Payload Data within the 45 days because of ongoing preservation obligations, it will report this to the Class Counsel. When the Acquired Payload Data are destroyed, Google will report via counsel the fact of destruction to the Class Counsel. Pursuant to the Settlement, Google will not collect and store for use in any product or service Payload Data via Street View Vehicles, except with notice and consent. Google will comply with all aspects of the Privacy Program described in Paragraph 16 of Section I of the AVC and with the prohibitive and affirmative conduct described in Paragraphs 1 through 5 of the AVC. Through the counsel, Google will confirm to the Class Counsel, in writing and on an annual basis, that it remains in compliance. Pursuant to the Settlement, Google will host and maintain educational webpages that instruct users on the configuration of wireless security modes and the value of encrypting a wireless network, including a how-to video demonstrating how users can encrypt their networks and instructions on how to remove a wireless network from inclusion in Google's location services. Google's Injunctive Relief obligations will terminate five years after the date of Final Approval of the Settlement. Pursuant to the Settlement, the Class Counsel will direct equal distributions from the Escrow Account to the cy pres recipients identified herein. The Judge approved and ordered such distributions. The Escrow Agent will arrange such distributions according to the Class Counsel's instructions. The Parties and the Class Members are bound by the terms and conditions of the Settlement. As of the date of Final Approval of the Settlement, Releasors will be deemed to have fully, finally, and forever released and discharged Releasees from the Released Claims, as those terms are defined in the Settlement Agreement. The full terms of the release are set forth in Paragraphs 46 through 48 of the Agreement. The Court expressly adopts and incorporates by reference Paragraphs 46 through 48 of the Agreement. The parties are to bear their own costs, except as awarded by this Court in the Final Order. The benefits are the only consideration Google will be obligated to give to the Class Members, with the exception of the service awards to be paid to the Class Representatives as directed by the Court. By operation of the Order, the Action is dismissed with prejudice. Under Rule 54(b) of the Federal Rules of Civil Procedure, no just reason exists for delay in entering final judgment. Judge Breyer accordingly directed the Clerk to enter final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. A full-text copy of the Court's March 18, 2020 Order is available at https://is.gd/Bg3gNq from Leagle.com. Benjamin Joffe, Plaintiff, represented by Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., Daniel A. Small -- dsmall@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, Douglas A. Millen, Freed Kanner London & Millen LLC, pro hac vice, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Robert White Cobbs -- rcobbs@cohenmilstein.com -- Cohen Milstein Sellers And Toll & Kathryn Elaine Barnett -- kbarnett@forthepeople.com -- Lieff, Cabraser, Heimann and Bernstein LLP. Lilla Marigza, Plaintiff, represented by Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and Bernstein LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Kenneth S. Byrd, Lieff, Cabraser, Heimann and Bernstein LLP, Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP & Robert White Cobbs, Cohen Milstein Sellers And Toll. Rick Benitti, Plaintiff, represented by Craig G. Harley, Chitwood Harley Harnes LLP, Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, J. Paul Gignac, Foley Bezek Behle & Curtis LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Robert White Cobbs, Cohen Milstein Sellers And Toll & Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and Bernstein LLP. Bertha Davis, Plaintiff, represented by Sharron Williams Gelobter, Attorney at Law, Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP, Robert White Cobbs, Cohen Milstein Sellers And Toll & Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and Bernstein LLP. Jason Taylor, Plaintiff, represented by Sharron Williams Gelobter, Attorney at Law, Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP & Robert White Cobbs, Cohen Milstein Sellers And Toll. Google, LLC, Defendant, represented by Brian M. Willen -- bwillen@wsgr.com -- Wilson Sonsini, pro hac vice, David H. Kramer -- dkramer@wsgr.com -- Wilson Sonsini Goodrich & Rosati & Peter Cornelius Holm, Wilson Sonsini Goodrich and Rosati. John E. Redstone, Karl H. Schulz & Dean M. Bastilla, Interested Partys, represented by Aaron Michael Zigler, Keller Lenkner LLC, Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, Stephen A. Swedlow, Quinn Emanuel Urquhart & Sullivan & Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and Bernstein LLP. Deepa Isac & Edward Fenn, Interested Partys, represented by Daniel A. Small, Cohen Milstein Sellers & Toll PLLC. Matthew Berlage, Interested Party, represented by Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, J. Paul Gignac, Foley Bezek Behle & Curtis LLP, Robert A. Curtis, Foley Bezek Behle & Curtis LLP & Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and Bernstein LLP. Patrick Keyes, Interested Party, represented by Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Elizabeth Joan Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, Harvey Jay Rosenfield, Consumer Watchdog & Kathryn Elaine Barnett, Lieff, Cabraser, Heimann and Bernstein LLP. MDL 2286: Court Denies Bid to Stay Midland TCPA Suit ---------------------------------------------------- Judge Michael M. Anello of the U.S. District Court for the Southern District of California denied the Defendants' motion to stay all proceedings in the case, IN RE: MIDLAND CREDIT MANAGEMENT, INC., TELEPHONE CONSUMER PROTECTION ACT LITIGATION, Case No. 11-md-2286-MMA (MDD) (S.D. Cal.). Originating in 2011, the MDL comprises a lead class action member case and several dozen individual member cases alleging that the Defendants violated the Telephone Consumer Protection Act ("TCPA"). Specifically, the Member Plaintiffs aver that the Defendants placed debt collection calls to the Member Plaintiffs cell phones using an automated system, but without the debtors' consent. On Dec. 16, 2019, the Magistrate Judge issued an order rescheduling discovery and pretrial motion deadlines. The Magistrate Judge's order required any motion for class certification and any motion for summary judgment to be filed no later than June 12, 2020. The Defendants move to stay the action pending resolution of Barr v. Am. Ass'n of Political Consultants, currently before the U.S. Supreme Court. On Jan. 10, 2020, the Supreme Court granted certiorari in that matter. The Defendants filed the motion on February 21 and based their motion on the briefing generated in the petition for writ of certiorari in Ass'n of Political Consultants. On February 24, the petitioners filed their merits brief. The respondents have not yet filed their merits brief. The case is set for argument on April 22, 2020. Accordingly, a decision is expected by the end of the Supreme Court's current term. The Defendants argue that if the Supreme Court invalidates the automated-call restriction, the ruling will dispose of all of the Paintiffs' TCPA claims in the MDL in one fell swoop. They note that the MDL's TCPA claims all allege violations of the automated-call restriction. Judge Anello holds that the Supreme Court's decision might have an impact on the merits of the Member Plaintiffs' claims if the Court both passes the threshold issue and then finds the government-debt exception is not severable. Regardless, the possibility remains that the Supreme Court could invalidate the automated-call restriction. The Judge now proceeds to weigh the competing interests to determine whether a stay is appropriate. The Defendants argue that a stay would benefit both parties because resources would be wasted if the motion to stay were denied and the Supreme Court were to invalidate the entire automated-call restriction. Based on the unique characteristics of the MDL, Judge Anello finds that the Defendants have not carried their burden to persuade the Court to grant a stay. If the Supreme Court decides Ass'n of Political Consultants after the motion for class certification and motion for summary judgment deadline, and to the extent, if any, its decision has bearing on this Court's proceedings, the Judge instructs the parties to file a joint status report detailing the Supreme Court's impact on the MDL within one week of the Supreme Court's decision. For the foregoing reasons, Judge Anello denied the Defendants' motion to stay on the proffered grounds. He vacated the hearing date on this motion previously set for March 23, 2020. A full-text copy of the Court's March 18, 2020 Order is available at https://is.gd/Bj1Qnf from Leagle.com. Christopher Robinson, Individually and on behalf of all others similarly situated, Plaintiff, represented by Douglas J. Campion -- doug@djcampion.com -- Law Offices of Douglas J Campion, Abbas Kazerounian, Kazerounian Law Group, APC & Joshua B. Swigart -- josh@westcoastlitigation.com -- Hyde & Swigart. Eduardo Tovar, on behalf of himself and all others similarly situated, Plaintiff, represented by Brian J. Trenz, Law Offices of David Schafer PLLC, pro hac vice & David P. Schafer, Law Offices of David Schafer PLLC, pro hac vice. Nicholas Martin, on behalf of himself and others similarly situated, Plaintiff, represented by Alexander H. Burk, Burke Law Offices, LLC, pro hac vice. Dave Scardina, individually and on behalf of a class, Plaintiff, represented by Daniel A. Edelman, Edelman Combs Latturner & Goodwin LLC, pro hac vice, James O. Latturner, Edelman, Combs, Latturner & Goodwin, LLC, pro hac vice, Cassandra P. Miller, Edelman, Combs, Latturner & Goodwin LLC, Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin, LLC, Curtis Charles Warner, Warner Law Firm, LLC & Francis Richard Greene, Edelman Combs Latturner & Goodwin LLC. Chad R. Goetz, Plaintiff, pro se. Midland Funding LLC, Defendant, represented by Aaron L. Vorce, Dykema Gossett, Amy M. Gallegos, Jenner & Block LLP, Andrew Michael Schwartz, Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Benjamin Michael Katz, Burr and Forman, Brett J Natarelli, Dykema Gossett PLLC, Bryan James Anderson, Dykema Gossett, PLLC, Daniel Andrew Brown, WILLIAMS KASTNER & GIBBS, Danielle M. Vugrinovich, Marshall, Dennehey, Warner, Coleman & Goggin, David J. Elkanich, Holland & Knight, LLP, David M. Schultz, Hinshaw & Culbertson, LLP, pro hac vice, Ethan A. Glickstein, Jenner & Block LLP, Heather L. Kramer -- hkramer@dykema.com -- Dykema Gossett PLLc, James Michael Golden, Dykema Gossett PLLC, John Anthony Love, King and Spalding, pro hac vice, Joshua C. Dickinson, SPENCER FANE, LLP, LATI WELLS SPENCE, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN PC, Lauren M. Burnette, Marshall Dennehey Warner Coleman & Goggin, Matthew B. Ames, Balch & Bingham LLP, Matthew Brady Johnson, Marshall Dennehey Warner Coleman & Goggin, Matthew W. McDade, BALCH & BINGHAM, LLP, Michael Ronald Ayers, Hinshaw & Culbertson LLP, Palak Naimesh Shah, Hinshaw & Culbertson LLP, Patrick Michael DeLong, Marshall, Dennehey, Warner, Coleman & Goggin, Patrick T. McLaughlin, SPENCER FANE LLP, Paul F. Labaki, Peltan Law, PLLC, Paul A. Wilhelm, Dykema Gossett, Renee Lynn Zipprich, Dykema Gossett PLLC, Stephen Michael Mahieu, Dykema Gossett, PLLC, Theodore W. Seitz -- tseitz@dykema.com -- Dykema Gossett PLLC, pro hac vice, Todd A Gale -- tgale@dykema.com -- Dykema Gossett PLLC, Todd Philip Stelter, Hinshaw & Culbertson, Amanda Catherine Fitzsimmons, DLA Piper LLP & Edward D Totino, DLA Piper LLP. Midland Credit Management, Inc., Defendant, represented by Aaron L. Vorce, Dykema Gossett, Aimee Guidry Szygenda, McGlinchey Stafford, Amanda E Wilson, Amy M. Gallegos, Jenner & Block LLP, Amy R. Jonker, DYKEMA GOSSETT PLLC, Andrew Michael Schwartz, Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Anthony J. Palermo, Holland & Knight, LLP, Benjamin Michael Katz, Burr and Forman, Brandon Stein, Hinshaw & Culbertson LLP, Brandon M. Wrazen, Peltan Law, PLLC, Brett J Natarelli, Dykema Gossett PLLC, Bryan James Anderson, Dykema Gossett, PLLC, Christopher David Johnsen, Holland & Knight, Christopher Spain, Simmonds & Narita LLP, Cory W. Eichhorn, Holland & Knight, LLP, pro hac vice, Daniel Andrew Brown, WILLIAMS KASTNER & GIBBS, Danielle M. Vugrinovich, Marshall, Dennehey, Warner, Coleman & Goggin, David J. Elkanich, Holland & Knight, LLP, David George Peltan, Peltan Law, PLLC, David M. Schultz, Hinshaw & Culbertson, LLP, pro hac vice, Erica Gooden Bartimmo, Holland & Knight, LLP, Ethan A. Glickstein, Jenner & Block LLP, Gennifer Lynn Bridges, Burr & Forman, LLP, Gregg D Stevens, McGlinchey Stafford, Heather L. Kramer, Dykema Gossett PLLc, James A. Byram, Jr., BALCH & BINGHAM, LLP, James Michael Golden, Dykema Gossett PLLC, James S. Kreamer, Baker, Sterchi, Cowden & Rice, LLC, James Lanter, James Lanter, P.C., Jared D. Kemper, Dykema Gossett, PLLC, Jason Brent Tompkins, Balch & Bingham LLP, pro hac vice, Jeffrey M. Sankey, Sankey Law Offices, Jennifer L. Braster, Naylor & Braster Attorneys at Law, PLLC, John Anthony Love, King and Spalding, pro hac vice, John M. Naylor, Naylor & Braster Attorneys at Law, John Christopher Suedekum, Burr and Forman, LLP, Jonathan Clayton Brown, Burr Forman LLP, Joseph L. Francoeur, Wilson Elser Moskowitz Edelman & Dicker LLP, Joseph W Letzer, Burr and Forman, Joshua C. Dickinson, SPENCER FANE, LLP, Keasha Ann Broussard, King & Spalding, LLP, pro hac vice, LATI WELLS SPENCER, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN PC, Laura Irene Hillerich, Marshall, Dennehey, Warner, Coleman & Goggin, Laura Westerman Tanner, Burr & Forman, LLP, Lauren M. Burnette, Marshall Dennehey Warner Coleman & Goggin, Lauren Lynn Millcarek, Holland & Knight, LLP, Lawrence J. Bartel, III, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, Leah Suzanne Strickland, Solomon Ward Seidenwurm & Smith LLP, M. Cory Nelson Lewis, Rice & Fingersh, pro hac vice, Matthew B. Ames, Balch & Bingham LLP, Matthew J. Devine, Burr & Forman, LLP, Matthew Brady Johnson, Marshall Dennehey Warner Coleman & Goggin, Mei-Ying M. Imanaka, Solomon Ward Seidenwurm & Smith, LLP, Melissa S. Gutierrez, McGlinchey Stafford, Michael Ronald Ayers, Hinshaw & Culbertson LLP, Nicole Strickler, Messer, Stilp & Strickler, Ltd., pro hac vice, Palak Naimesh Shah, Hinshaw & Culbertson LLP, Patrick Michael DeLong, Marshall, Dennehey, Warner, Coleman & Goggin, Patrick T. McLaughlin, SPENCER FANE LLP, Paul F. Labaki, Peltan Law, PLLC, Paul A. Wilhelm, Dykema Gossett, Peter J. Caltagirone, Solomon, Ward, Seidenwurm and Smith, Rachel R. Friedman, Burr & Forman LLP, Randy Jiro Aoyama, Hinshaw & Culbertson LLP, Reid Stephens Manley, Burr Forman LLP, Renee Lynn Zipprich, Dykema Gossett PLLC, Richard David Lane,, Marshall Dennehey Warner Coleman & Goggin, Robert Franklin Springfield, Burr & Forman, LLP, Ronald Michael Metcho, II, Marshall, Dennehey, Warner, Coleman & Goggin, P.C., pro hac vice, Russell S. Ponessa, Hinshaw & Culbertson LLP, Stephen Michael Mahieu Dykema Gossett, PLLC, Theodore J. Greeley, Dykema Gossett, PLLC, Theodore W. Seitz, Dykema Gossett PLLC, pro hac vice, Thomas Butler Alleman, Dykema Cox Smith, Thomas F. Landers, Solomon Ward Seidenwurm & Smith, LLP, Thomas A. Leghorn, Wilson, Elser Law Firm, Thomas M. Martin, Lewis Rice LLC, Todd A Gale, Dykema Gossett PLLC, Todd Philip Stelter, Hinshaw & Culbertson, Tomio B. Narita, Simmonds & Narita LLP, Amanda Catherine Fitzsimmons, DLA Piper LLP, Edward D Totino, DLA Piper LLP, Jacqueline A. Simms-Petredis,, Burr & Forman, LLP, Tatiana Alexander Waits, McGlinchey Stafford LLP & Thomas Richard DeBray, Jr.,, Balch & Bingham, LLP. Encore Capital Group, Inc., Defendant, represented by Amy M. Gallegos, Jenner & Block LLP, Brett J Natarelli, Dykema Gossett PLLC, Bryan James Anderson, Dykema Gossett, PLLC, Cory W. Eichhorn, Holland & Knight, LLP, pro hac vice, Danielle M. Vugrinovich, Marshall, Dennehey, Warner, Coleman & Goggin, Ethan A. Glickstein, Jenner & Block LLP, James Michael Golden, Dykema Gossett PLLC, Lauren Lynn Millcarek, Holland & Knight, LLP, Matthew B. Ames, Balch & Bingham LLP, Rachel R. Friedman, Burr & Forman LLP, Renee Lynn Zipprich, Dykema Gossett PLLC, Robert Franklin Springfield, Burr & Forman, LLP, Theodore W. Seitz, Dykema Gossett PLLC, pro hac vice, Amanda Catherine Fitzsimmons, DLA Piper LLP & Edward D Totino, DLA Piper LLP. Laura E. Hartman, an individual, Defendant, represented by Robert W. Murphy, Law Office of Robert W. Murphy. X, Y, Z Corporations, Defendant, represented by Lauren M. Burnette, Marshall Dennehey Warner Coleman & Goggin. Frederick J. Hanna & Associates, P. C., Defendant, represented by Scot W. Groghan, Frederick J. Hanna & Associates, P.C. MDL 2744: Ct Narrows Claims in Monostable Electronic Gearshift Suit ------------------------------------------------------------------- In the case, IN RE: FCA US LLC MONOSTABLE ELECTRONIC GEARSHIFT LITIGATION, MDL No. 2744. SARAH LALLI, Plaintiff, v. FCA US, LLC, Defendant, Case Nos. 16-md-02744, 19-10046 (E.D. Mich.), Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted in part and denied in part Chrysler's motion to dismiss all of the claims. Sarah Lalli, a citizen of Florida, filed the action in the district against FCA US, LLC (Chrysler) on Jan. 7, 2019, seeking damages for the diminished value of a 2014 Jeep Grand Cherokee equipped with a monostable shifter. She pleaded claims on behalf of herself and a proposed class of Florida buyers of the class vehicles for violations of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"), fraudulent concealment, breach of express warranty (under Florida law and the Magnuson-Moss Warranty Act), and unjust enrichment. The case has been joined in the MDL proceeding as a tag-along action by the Judicial Panel on Multidistrict Litigation. Lalli purchased her Grand Cherokee as a new vehicle from a Chrysler dealer in Vero Beach, Florida on Dec. 17, 2014. It was equipped with a monostable shifter. She does not contend that she suffered any injury caused by the vehicle's operation. She seeks only economic loss damages. Lalli is not the first Florida Plaintiff joined in these proceedings. The Court previously dismissed, by the consent of the parties, the claims of former Florida plaintiff Justine Andollo, which had been pleaded in Counts XVIII-XXI of the Plaintiffs' second amended consolidated master complaint. Andollo's claims were dismissed because she disappeared and did not participate in discovery. Andollo pleaded the same causes of action described on behalf of a class of Florida plaintiffs. Her claims were incorporated into a complaint that joined as plaintiffs numerous other individuals from various states. The multi-state action including Andollo was filed in the district on April 28, 2017 -- Andollo v. FCA US, LLC, No. 17-11376. The claims pleaded on behalf of the Florida plaintiff and absent class members in that case were materially identical to those brought by Lalli in her separate action in 2019. Chrysler responded with a motion to dismiss all of the claims, arguing several legal theories. It argues that the FDUTPA claim is untimely and not subject to any tolling rules, (2) the fraudulent concealment claim is barred by Florida's economic loss doctrine, (3) the breach of express warranty claim cannot be maintained because the Plaintiff does not allege that she conveyed any pre-suit notice of the warranty claim to the Defendant, and (4) under Florida law an unjust enrichment claim based on the same factual premises as a breach of contract (warranty) claim must be dismissed as defectively pleaded. Lalli disputes each of these arguments. Judge Lawson granted in part and denied in part the Defendant's motion to dismiss. The Plaintiff's putative class claims under the FDUTPA, and the warranty claims in Counts I and IV are dismissed in their entirety. The motion is denied in all other respects. Judge Lawson finds that Chrysler is correct that any putative class claims are time-barred and cannot be rescued by the principle of class tolling, but it has not cited any authority for the proposition that Lalli's individual claim cannot go forward now as permitted by American Pipe. Therefore, Lalli's putative class claims under the FDUTPA are dismissed. She may proceed with her individual claim under that statute. Next, Florida's intermediate appellate courts have applied that holding to conclude that the economic loss rule will not bar claims of fraudulent inducement such as are asserted here, where the defendant allegedly concealed facts to encourage a plaintiff to buy its product. For this reason, Judge Lawson denied the motion to dismiss the fraudulent concealment claim based on that doctrine. Judge Lawson cannot find a reason to believe that Florida's Supreme Court would not follow the more developed and persuasive reasoning stated by the Paramount court, rather than the conclusion reached in the Lazarra decision. Under the more persuasive authority of the line of decisions following Paramount, the express warranty claim must be dismissed for want of any pre-suit notice. The Judge dismissed Count IV of Lalli's complaint (breach of express warranty under Florida's U.C.C.), as well as Count I under the Magnuson-Moss Warranty Act (which is dependent on the state-law express warranty claim). There presently is a live dispute over whether the warranty covers the defect, and, if it does not, the unjust enrichment claim could proceed. The Defendant never has conceded that the warranty in question does cover the defect, and the pleading of the restitution claim in the alternative therefore is not foreclosed at this stage of the case. Moreover, because the express warranty claim must be dismissed for want of pre-suit notice, allowing the unjust enrichment count to proceed is appropriate since there no longer will be any live Florida warranty claim in Lalli's case. Finally, Lalli's individual claim under the FDUTPA is timely under the rule of American Pipe, but the tardy filing of the putative Florida class claims cannot be excused by that rule or any other recognized tolling principle. The express warranty claim must be dismissed because the Plaintiff does not allege that she provided any pre-suit notice of the claim, but the fraudulent concealment and unjust enrichment claims (on both individual and class bases) are sufficiently pleaded and may proceed, rules Judge Lawson. A full-text copy of the Court's March 18, 2020 Opinon & Order is available at https://is.gd/vIz3Cx from Leagle.com. In Re FCA US LLC Monostable Electronic Gearshift Litigation, represented by Larry J. Saylor -- saylor@millercanfield.com -- Miller, Canfield. Bruce Vosburgh, Plaintiff, represented by E. Powell Miller -- epm@miller.law.com -- The Miller Law Firm, Sharon S. Almonrode -- ssa@miller.law.com -- The Miller Law Firm, P.C. & Dennis A. Lienhardt -- dal@millerlawpc.com -- The Miller Law Firm, P.C.. Timothy Weber, Plaintiff, represented by E. Powell Miller, The Miller Law Firm, Joseph H. Meltzer -- jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Peter A. Muhic -- pmuhic@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Sharon S. Almonrode, The Miller Law Firm, P.C. & Tyler S. Graden, Kessler Topaz Meltzer & Check, LLP. Bernadine Hartt, Plaintiff, represented by David M. Honigman -- dhonigman@manteselaw.com -- Mantese Honigman, PC, Douglas Toering -- dtoering@manteselaw.com -- Mantese Honigman, P.C., Gerard V. Mantese -- gmantese@manteselaw.com -- Mantese Honigman, P.C., E. Powell Miller, The Miller Law Firm, James A. Buster, Mantese Honigman, P.C., Kevin A. Seely, Robbins Arroyo LLP, Krista M. Hosmer, Mantese Honigman, P.C., Leonid Kandinov, Robbins Arroyo LLP, Matthew Thomas Prewitt, Cuneo Gilbert & LaDuca, LLP & Robert K. Shelquist -- rkshelquist@locklaw.com -- Lockridge Grindal Nauen PLLP. Berardino D'Onofrio, Plaintiff, represented by David M. Honigman, Mantese Honigman, PC, Douglas Toering, Mantese Honigman, P.C., Gerard V. Mantese, Mantese Honigman, P.C., E. Powell Miller, The Miller Law Firm, James A. Buster, Mantese Honigman, P.C., Kevin A. Seely, Robbins Arroyo LLP, Krista M. Hosmer, Mantese Honigman, P.C., Leonid Kandinov, Robbins Arroyo LLP, Matthew Thomas Prewitt, Cuneo Gilbert & LaDuca, LLP & Robert K. Shelquist, Lockridge Grindal Nauen PLLP. Marc Hughes, Plaintiff, represented by Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC & E. Powell Miller, The Miller Law Firm. Andre Barfield, Plaintiff, represented by E. Powell Miller, The Miller Law Firm, Kevin F. O'Shea -- kfo@miller.law -- Miller Law Firm & Sharon S. Almonrode, The Miller Law Firm, P.C.. Nina Walker, Plaintiff, represented by Daniel E. Gustafson, Gustafson Gluek PLLC & E. Powell Miller, The Miller Law Firm. David Goldsmith, Plaintiff, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun -- christopherp@hbsslaw.com -- Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan -- beth@hbsslaw.com -- Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP. Michael Vincent Nathan, Jr, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun, Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Pascual Pietri, Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Christopher R. Pitoun, Hagens Berman, E. Powell Miller, The Miller Law Firm, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro, LLP & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP. FCA US LLC, Defendant, represented by Amanda J. Hettinger -- ahettinger@thompsoncoburn.com -- Thompson Coburn LLP, Kathy A. Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, Larry J. Saylor, Miller, Canfield, Sharon B. Rosenberg -- srosenberg@thompsoncoburn.com -- Thompson Coburn LLP, Stephen A. D'Aunoy, Thompson Coburn LLP, Cheryl A. Bush -- bush@bsplaw.com -- Bush, Seyferth & Paige, PLLC, Michael R. Williams -- williams@bsplaw.com -- Bush Seyferth & Paige PLLC & Thomas L. Azar, Jr. -- tazar@thompsoncoburn.com -- Thompson Coburn LLP. MENLO THERAPEUTICS: Faces Foamix Merger-Related Class Suits ----------------------------------------------------------- Menlo Therapeutics Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 31, 2019, that the company has been named as a defendant class several class action suits in several states pursuant to its merger with Foamix Pharmaceuticals Ltd. On November 10, 2019, the company and Foamix Pharmaceuticals Ltd., or Foamix, and Giants Merger Subsidiary Ltd., a wholly-owned subsidiary of Menlo, or Merger Sub, entered into an Agreement and Plan of Merger (as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated as of December 4, 2019, as may be further amended from time to time), or the Merger Agreement. Pursuant to the terms of the Merger Agreement, Merger Sub will merge with and into Foamix, with Foamix surviving as a wholly-owned subsidiary of Menlo, or the Merger. On December 11, 2019, a purported Foamix shareholder filed a putative class action lawsuit in the United States District Court for the District of Delaware against Foamix, the members of the Foamix Board, Menlo and Merger Sub, claiming generally that the joint proxy statement/prospectus issued in connection with the Merger omitted material information in violation of Sections 14(a) and 20(a) of the Exchange Act. The action, captioned Sabatini v. Foamix Pharmaceuticals Ltd., et al., Case No. 1:19-cv-02257 (D. Del.), or the Sabatini Action, purports to be brought on behalf of all public shareholders of Foamix, excluding defendants and certain affiliated persons or entities, and seeks, among other things, to enjoin consummation of the Merger, or alternatively rescission or rescissory damages; to compel the individual defendants to disseminate a joint proxy statement/prospectus that does not contain any untrue statements of material fact and that states all material facts required in it or necessary to make the statements contained therein not misleading; a declaration that defendants violated Sections 14(a) and/or 20(a) of the Exchange Act; and an award of costs, including attorneys' and experts' fees and expenses. On December 12 and 17, 2019, respectively, two purported Foamix shareholders filed lawsuits in the United States District Court for the District of New Jersey and the United States District Court for the Southern District of New York against Foamix and the members of the Foamix Board. The actions, captioned Wang v. Foamix Pharmaceuticals Ltd., et al., Case No. 19-21316 (D.N.J.), or the Wang Action, and Simms v. Foamix Pharmaceuticals Ltd., et al., Case No. 1:19-cv-11529 (S.D.N.Y.), or the Simms Action, each purport to be brought on behalf of the named plaintiff only and allege substantially similar claims and seek substantially similar relief as the Sabatini Action, as well as an accounting of damages allegedly suffered by the plaintiff. On December 18, 2019, a purported Foamix shareholder filed a putative class action lawsuit in the New Jersey District Court against Foamix, the members of the Foamix Board, Menlo and Merger Sub, alleging generally claims for breach of fiduciary duty, aiding and abetting breaches of fiduciary duty, and violations of Sections 14(a) and 20(a) of the Exchange Act. The action, captioned Wilson v. Foamix Pharmaceuticals Ltd., et al., Case No. 3:19-cv-21563 (D.N.J.), or the Wilson Action, purports to be brought on behalf of all public shareholders of Foamix, excluding defendants and certain affiliated persons or entities, and alleges, among other things, that certain members of the Foamix Board and management are conflicted because they will receive unique benefits in connection with the Merger, that the Merger Agreement contains preclusive deal protection provisions, that the disclosures issued in connection with the Merger are false and misleading, and that the Merger consideration is inadequate. The Wilson Action seeks, among other things, to enjoin the Merger, or alternatively rescission or rescissory damages; a declaration that the Merger Agreement was entered into in breach of fiduciary duty and is therefore invalid and unenforceable; an order directing the individual defendants to commence a sale process for Foamix and obtain a transaction; an accounting of damages allegedly suffered by plaintiff and the putative class; and an award of costs, including attorneys' and experts' fees and expenses. On December 20, 2019, a purported Foamix shareholder filed a lawsuit in the Southern District of New York District Court against Foamix and the members of the Foamix Board. The action, captioned Miller v. Foamix Pharmaceuticals Ltd., et al., Case No. 1:19-cv-1169 (S.D.N.Y.), or the Miller Action, purports to be brought on behalf of the named plaintiff only and alleges substantially similar claims and seeks substantially similar relief as the Sabatini, Wang, Simms and Wilson Actions. On January 7, 2020, a purported shareholder of Foamix filed a lawsuit against Foamix and the members of the Foamix Board in the United States District Court for the District of New Jersey, alleging that the joint proxy statement/prospectus issued in connection with the Merger omitted material information in violation of Section 14(a) and Section 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. The action, captioned Bushansky v. Foamix Pharmaceuticals Ltd., et al., Case No. 3:20-cv-00256 (D.N.J.), or the Bushansky Action, purports to be brought on behalf of the named plaintiff only and seeks, among other things, injunctive or other equitable relief, including to enjoin consummation of the Merger, or alternatively rescission or rescissory damages, a declaration that the defendants violated Sections 14(a) and/or 20(a) of the Exchange Act, and an award of costs, including attorneys' and experts' fees and expenses. On January 21, 2020, a purported shareholder of Foamix filed an individual action against Foamix and the Foamix Board in the United States District Court for the District of New Jersey under the caption Nam v. Foamix Pharmaceuticals Ltd., et al., Case No. 3:20-cv-00670 (D.N.J.), (the "Nam Action" and together with the Sabatini, Wang, Simms, Wilson, Miller and Bushansky Actions, the "Lawsuits"). The Nam Action generally claims that the joint proxy statement/prospectus issued in connection with the Merger omitted material information in violation of Sections 14(a) and 20(a) of the Exchange Act. The Nam Action seeks, among other things, injunctive relief to prevent consummation of the Merger, rescission or rescissory damages in the event the Merger is consummated, a declaration that defendants violated Sections 14(a) and/or 20(a) of the Exchange Act, costs, including attorneys' fees and such other and further relief as the court may deem just and proper. In addition, the Nam Action requests an order directing the individual defendants to disseminate a proxy statement that does not contain any untrue statements of material fact and that states all material facts necessary to make the statements contained therein not misleading. The Company believes that the lawsuits are without merit and intends to vigorously defend itself. Accordingly, the Company cannot reasonably estimate any range of potential future charges, and the Company has not recorded any accrual for a contingent liability associated with these legal proceedings. Menlo Therapeutics Inc., a late-stage biopharmaceutical company, focuses on the development and commercialization of serlopitant for the treatment of pruritus associated with dermatologic conditions in the United States. Menlo Therapeutics Inc. was founded in 2011 and is headquartered in Redwood City, California. MENLO THERAPEUTICS: Settlement Reached in Savelstrov Class Suit --------------------------------------------------------------- Menlo Therapeutics Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 31, 2019, that the parties in a securities class action have reached a deal to resolve the dispute. On November 8, 2018, a putative securities class action complaint captioned Pavel Savelstrov v. Menlo Therapeutics, Inc., et al., Case No.18-CIV-06049, was filed in state court in the Superior Court of the State of California, County of San Mateo, against the Company, certain of its current executive officers and its directors, and certain underwriters in the Company's initial public offering.. On January 28, 2019, a putative securities class action complaint captioned Hugh McKay v. Menlo Therapeutics, Inc., et al., Case No.19-CIV-00574, was filed in state court in the Superior Court of the State of California, County of San Mateo, against the Company, certain of its current executive officers and its directors, and certain underwriters in the Company's initial public offering.. The complaints alleged violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 due to allegedly false and misleading statements in connection with the Company's initial public offering. The McKay action has been consolidated with the Savelstrov action and the claim for violations of Section 12(a)(2) has been dismissed. The parties have mediated the consolidated lawsuit and reached a settlement, providing for payment to the class of plaintiffs in the amount of $9.5 million in return for a release of all claims against the defendants, including the Company and its current and former officers and directors. The settlement is subject to final documentation and Court approval. The Company's insurance carriers will pay the majority of the settlement amount. The Company accrued for the remaining settlement amount that is not covered by insurance carriers as of December 31, 2019, which does not have a material impact on its financial statements. Menlo Therapeutics Inc., a late-stage biopharmaceutical company, focuses on the development and commercialization of serlopitant for the treatment of pruritus associated with dermatologic conditions in the United States. Menlo Therapeutics Inc. was founded in 2011 and is headquartered in Redwood City, California. MESA AIR GROUP: Lowthorp Alleges Misleading IPO Docs ---------------------------------------------------- David G. Lowthorp, Individually And On Behalf Of All Others Similarly Situated, Plaintiff, V. Mesa Air Group, Inc.; Jonathan G. Ornstein; Michael J. Lotz; Daniel J. Altobello; Ellen N. Artist; Mitchell Gordon; Dana J. Lockhart; G. Grant Lyon; Giacomo Picco; Harvey Schiller; Don Skiados; Raymond James & Associates, Inc.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Cowen and Company, LLC; Stifel, Nicolaus & Company, Incorporated; and Imperial Capital, LLC, Defendants, Case No. 2:20-cv-00648-DLR (D. Ariz., April 1, 2020) is a securities class action brought by the Plaintiff, on behalf of persons who purchased or otherwise acquired Defendant Mesa Air Group's securities pursuant and/or traceable to the registration statement and related prospectus issued in connection with Mesa Air Group's August 2018 initial public offering compensable damages caused by Defendants' violations of the Securities Act of 1933. In August 2018, Defendants held the IPO, offering approximately 11 million shares of common stock to the investing public at $12.00 per share. According to the Registration Statement, Mesa Air Group touted its "competitive cost structure" and "track record of reliable performance," its ability to focus its efforts on safety and reliability, and touted itself as a low-cost operator with key efficiencies, including maintenance, such as its "responsible outsourcing of certain aircraft maintenance and other operating functions[,]" while also having its own maintenance team. The complaint consider statements to be materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operational and financial results, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) Mesa Air Group's operational performance was poor and below industry standards; (2) Mesa Air Group had a shortage of qualified mechanics and maintenance personnel; (3) Mesa Air Group had an inadequate number of spare aircraft and parts; (4) Mesa Air Group did not have a strong track record of reliable performance; (5) then-existing "risks" had already materialized; (6) Mesa Air Group knew of undisclosed adverse trends and uncertainties at the time of the IPO; and (7) as a result, Defendants' public statements were materially false and misleading at all relevant times. Since the IPO, and as a result of the disclosure of material adverse facts omitted from the Company’s Registration Statement, Mesa Air Group's stock price has significantly fallen below its IPO price, damaging Plaintiff and Class members. On March 30, 2020, the Company's stock closed at $3.11 per share, or 74% less than its IPO price. Mesa Air Group, Inc. operates as the holding company for Mesa Airlines, Inc., which provides regional air carrier services under capacity purchase agreements with American Airlines and United Airlines. Raymond James & Associates, Inc. is a St. Petersburg, Florida-based investment banking firm. Merrill Lynch, Pierce, Fenner & Smith Incorporated is a New York-based investment banking firm. Cowen and Company, LLC is an investment banking firm based in New York. Stifel, Nicolaus & Company, Incorporated is a St. Louis, Missouri-based investment banking firm. Imperial Capital, LLC is a New York-based investment banking firm. [BN] The Plaintiff is represented by: Richard G. Himelrick, Esq. TIFFANY & BOSCO, P.A. Seventh Floor Camelback Esplanade II 2525 E. Camelback Road Phoenix, AZ 85016 Telephone: (602) 255-6000 Email: rgh@tblaw.com – and – Phillip Kim, Esq. Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Email: pkim@rosenlegal.com lrosen@rosenlegal.com NCAA: Baker Seeks Damages Over Football-Related Head Injuries ------------------------------------------------------------- Thomas Baker, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendants, Case No. 20-cv-00846 (S.D. Ind., March 16, 2020), seeks economic, monetary, actual, consequential, compensatory, and punitive damages, past, present and future medical expenses, other out of pocket expenses, lost time and interest, lost future earnings, litigation and attorney fees, prejudgment and post-judgment interest, injunctive and/or declaratory relief and such other and further relief resulting from negligence, fraudulent concealment, breach of express contract, breach of implied contract, breach of third-party express contract and unjust enrichment. Thomas Baker played football in Alcorn from 1998 to 2000, as a wide receiver. He suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and gameplay. Baker is suffering from depression, headaches, memory loss, loss of concentration and emotional instability. NCAA is an unincorporated association with its principal office located at 700 West Washington Street, Indianapolis, Indiana 46206. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics. Baker alleges NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries and sub-concussive injuries that resulted from playing college football, but did nothing. Plaintiff is represented by: Jay Edelson, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, IL 60654 Tel: 312.589.6370 Fax: 312.589.6378 Email: jedelson@edelson.com brichman@edelson.com - and - Rafey S. Balabanian, Esq. 329 Bryant Street San Francisco, CA 94107 Tel: 415.212.9300 Fax: 415.373.9435 Email: rbalabanian@edelson.com - and - Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com NESTLE PURINA: Jacquin Consumer Suit Removed to E.D. Missouri ------------------------------------------------------------- The class action lawsuit captioned as KELLEN JACQUIN, KRISTEN SPARKS and GREGORY WATERS, on behalf of themselves and all others similarly situated v. NESTLE PURINA PETCARE COMPANY, Case No. 2022-CC-00473 (Filed March 2, 2020), was removed from the Missouri Circuit Court, City of St. Louis, to the U.S. District Court for the Eastern District of Missouri on April 1, 2020. The Eastern District of Missouri Court Clerk assigned Case No. 4:20-cv-00467 to the proceeding. The Plaintiffs bring this action to recover damages for allegedly unlawful practices under the Missouri Merchandising Practices Act. The Plaintiffs' petition alleges that Purina falsely and deceptively "marketed, advertised, and sold" certain of its pet food and vitamin products as "safe and without risk to animals. The Plaintiffs contend that those representations are false and deceptive because the products contained certain levels of glyphosate, an alleged cause of "serious disease in animals." Nestle Purina Petcare is an American subsidiary of Nestle. Nestle Purina Petcare produces and markets pet food, treats and cat litter.[BN] The Defendant is represented by: Booker T. Shaw, Esq. Amanda J. Hettinger, Esq. Kristen E. Sanocki, Esq. THOMPSON COBURN LLP One U.S. Bank Plaza, Suite 2700 St. Louis, MO 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000 E-mail: bshaw@thompsoncoburn.com ahettinger@thompsoncoburn.com ksanocki@thompsoncoburn.com - and - Keri E. Borders, Esq. Dale J. Giali, Esq. MAYER BROWN 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071 Telephone: (213) 229-9500 E-mail: kborders@mayerbrown.com dgiali@mayerbrown.com NEW YORK: App. Ct. Dismisses Counts I, II v. MTA & LIRR in Jacobs ----------------------------------------------------------------- In the case, MEREDITH JACOBS, ETC., ET AL., Respondents, v. METROPOLITAN TRANSPORTATION AUTHORITY, ETC., ET AL., Appellants, ET AL., Defendants, 2018-08928, Index No. 606977/17 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, reversed the order of Judge Antonio I. Brandveen of the Supreme Court, Nassau County, entered July 12, 2018, denying those branches of the motion of the Defendants Metropolitan Transportation Authority and Long Island Railroad which were pursuant to CPLR 3211(a) to dismiss the first and second causes of action insofar as asserted against them. The Plaintiffs are monthly Long Island Rail Road ticket holders who allegedly suffered damages arising from, among other things, train service disruptions, overcrowded platforms, and unsanitary and unsafe conditions in trains and stations between April 2017 and January 2018. They commenced the putative class action on behalf of themselves and those similarly situated against the Defendant MTA and its subsidiary, Defendant LIRR, among others, asserting causes of action to recover damages for breach of contract, negligence, and intentional infliction of emotional dismiss. The Defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint insofar as asserted against them. They argued that the tort causes of action were barred under the prior notice and pleading requirements of Public Authorities Law Section 1276(1) and (2), and under the doctrine of governmental immunity. They further argued that the Plaintiffs failed to state causes of action to recover damages for breach of contract, negligence, and intentional infliction of emotional distress insofar as asserted against them. The Plaintiffs opposed the motion. In an order entered July 12, 2018, the Supreme Court granted that branch of the Defendants' motion which was to dismiss the intentional infliction of emotional distress cause of action insofar as asserted against them and denied those branches of the motion which were to dismiss the breach of contract and negligence causes of action insofar as asserted against them. The Defendants appeal. The Appellate Division finds that service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of an action sounding in tort against the MTA. The plaintiffs failed to serve the MTA with a notice of claim. In addition, contrary to the Supreme Court's determination, the public interest exception to the notice of claim requirement does not apply in the case. Accordingly, the Supreme Court should have granted that branch of the Defendants' motion which was to dismiss the negligence cause of action insofar as asserted against the MTA, rules the Appellate Division. The complaint in an action against the LIRR must contain an allegation that at least 30 days have elapsed since it was presented with a demand or claim upon which the action is founded, and that the LIRR has neglected or refused to adjust or pay the claim. The requirement is distinct from and serves purposes different from the notice of claim requirement contained in Public Authorities Law Section 1276(2). In the case, the Appellate Division finds that the amended complaint does not allege that the Plaintiffs presented the LIRR with a demand upon which their action was founded, and that 30 days had elapsed without resolution. Accordingly, the Supreme Court should have granted that branch of the Defendants' motion which was to dismiss the negligence cause of action insofar as asserted against the LIRR. Assuming that the purchase of a monthly commutation ticket establishes a contractual relationship between the Defendants and the Plaintiffs, the documentary evidence submitted by the Defendants, in the form of sections of the passenger tariff in effect at all relevant times, conclusively established a defense as a matter of law to the allegations of breach of contract. The tariff set forth a detailed procedure for obtaining refunds, which the Plaintiffs do not allege to have followed. The tariff also prohibited refunds for service disruptions and only permitted refunds to the extent a commutation ticket has or could have been used for travel. Consequently, the Supreme Court should have granted that branch of the Defendants' motion which was to dismiss the breach of contract cause of action insofar as asserted against them. The Appellate Division need not reach the Defendants' remaining contentions in light of its determination. Based on the foregoing, the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of Defendants MTA and LIRR which were pursuant to CPLR 3211(a) to dismiss the first and second causes of action insofar as asserted against them are granted, rules the Appellate Division. A full-text copy of the Appellate Division's Feb. 5, 2020 Decision & Order is available at https://is.gd/a6zeKJ from Leagle.com. Mark D. Hoffer, Jamaica, NY (Kevin P. McCaffrey -- kpmccaf@lirr.org -- of counsel), for appellants. NEWLINK GENETICS: 2nd Cir. Appeal in Nguyen Action Still Pending ---------------------------------------------------------------- NewLink Genetics Corporation said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 31, 2019, that the appeal from a trial court ruling in the Nguyen class action lawsuit is still pending. On or about May 12, 2016, Trevor Abramson filed a putative securities class action lawsuit in the United States District Court for the Southern District of New York, captioned Abramson v. NewLink Genetics Corp., et al., Case 1:16-cv-3545 (the Securities Action). Subsequently, the Court appointed Michael and Kelly Nguyen as lead plaintiffs and approved their selection of Kahn, Swick & Foti, LLC as lead counsel in the Securities Action. On October 31, 2016, the lead plaintiffs filed an amended complaint asserting claims under the federal securities laws against the Company, the Company's Chief Executive Officer Charles J. Link, Jr., and the Company's Chief Medical Officer and President Nicholas Vahanian, (collectively, the Defendants). The amended complaint alleges the Defendants made material false and/or misleading statements that caused losses to the Company's investors. The Defendants filed a motion to dismiss the amended complaint on July 14, 2017. On March 29, 2018, the Court dismissed the amended complaint for failure to state a claim, without prejudice, and gave the lead plaintiffs until May 4, 2018 to file any amended complaint attempting to remedy the defects in their claims. On May 4, 2018, the lead plaintiffs filed a second amended complaint asserting claims under the federal securities laws against the Defendants. Like the first amended complaint, the second amended complaint alleges that the Defendants made material false and/or misleading statements or omissions relating to the Phase 2 and 3 trials and efficacy of the product candidate algenpantucel-L that caused losses to the Company's investors. The lead plaintiffs do not quantify any alleged damages in the second amended complaint but, in addition to attorneys' fees and costs, they sought to recover damages on behalf of themselves and other persons who purchased or otherwise acquired the Company's stock during the putative class period of September 17, 2013 through May 9, 2016, inclusive, at allegedly inflated prices and purportedly suffered financial harm as a result. The Defendants filed a motion to dismiss the second amended complaint on July 31, 2018. On February 13, 2019, the Court dismissed the second amended complaint for failure to state a claim, with prejudice, and closed the case. On March 14, 2019, lead plaintiffs filed a notice of appeal. The briefing on lead plaintiffs' appeal was completed in early July 2019 and oral argument before the Second Circuit Court of Appeals was held on October 21, 2019. The Company intends to continue defending the Securities Action vigorously. NewLink Genetics Corporation, a late clinical-stage immuno-oncology company, focuses on discovering and developing novel immunotherapeutic products for the treatment of patients with cancer. NewLink Genetics Corporation was founded in 1999 and is headquartered in Ames, Iowa. NORRISTOWN AREA SCHOOL: Spanish Teacher Alleges Discrimination -------------------------------------------------------------- STEPHANIE GOODMAN P.O. BOX 1158 DOYLESTOWN, PA 18901 Plaintiffs v. NORRISTOWN AREA SCHOOL DISTRICT 401 NORTH WHITE HALL ROAD NORRISTOWN, PA 19403 Defendant, Case No. 2:20-cv-01682-WB (E.D. Pa., March 31, 2020) is a civil action brought by the Plaintiff to seek compensatory, punitive and non-pecuniary damages based on discrimination on account of race, age and retaliation in violation of the Civil Rights Act of 1991, the Civil Rights Act of 1964 and 1991, and the Pennsylvania Human Relations Act (PHRA). According to the complaint, the Defendant intentionally deprived and retaliated against Plaintiff, a Black/African American citizen, of the same rights as are enjoyed by White citizens to the creation, performance, enjoyment, and all benefits and privileges, of their contractual employment relationship with Defendant. Goodman is a Spanish Teacher with a bachelor of arts degree, masters of education degree and completed an English as a Second Language Leadership Certification program as recently at 2015. The Plaintiff suffered adverse employment actions such as failure to hire, failure to promote and demotion on account of her race, age and retaliation. Norristown Area School District operates local public primary and secondary schools within Montgomery County, Pennsylvania. [BN] The Plaintiff is represented by: Zakia E. Moore, Esq. McCain Law, P.C. 1515 Market Street, Suite 1200 Philadelphia, PA 19102 Telephone: (215) 236-1086 Facsimile: (215) 543-3343 Email: zmoore@mccain-law.com NOVO NORDISK: FWK Holdings Alleges Price-Fixing of Insulin Drugs ---------------------------------------------------------------- FWK Holdings, LLC, individually and on behalf of all others similarly situated, Plaintiff, v. NOVO NORDISK INC., ELI LILLY AND COMPANY, SANOFI-AVENTIS U.S., LLC, CVS HEALTH CORPORATION, CAREMARK RX, LLC, EXPRESS SCRIPTS HOLDING COMPANY, EXPRESS SCRIPTS, INC., and OPTUM RX, INC., Defendants, Case No. 3:20-cv-03480 (D.N.J., March 31, 2020) alleged that the Defendants unlawfully colluded to restrain and/or eliminate competition by engaging in an anticompetitive conspiracy designed to foreclose competition in the market for analog insulin drugs in the United States, in violation of Section 1 of the Sherman Act. The Defendants' misconduct enabled them to overcharge direct purchasers for analog insulin drugs. The Defendants also engaged in an overarching scheme to fix the prices of analog insulin drugs for direct purchasers. Beginning in or about 2009, Defendants together made successive, lockstep price increases for analog insulin drugs without valid economic justification. Such price increases occurred despite the absence of any changes in the Defendants' analog insulins that would justify higher prices. Faced with impending expiration of patents covering their analog insulin products and looming generic entry to the market, Defendants entered anticompetitive agreements to artificially inflate prices and maximize profits. Defendants deprived Plaintiff and members of the Classes of a competitive market for analog insulin drugs. FWK Holdings, LLC is a limited liability company organized under the laws of the State of Illinois, with its principal place of business located in Glen Ellyn. Novo Nordisk Inc. is a Plainsboro, New Jersey-based pharmaceutical company. Eli Lilly and Company is an American pharmaceutical company headquartered in Indianapolis, Indiana. Sanofi-Aventis U.S., LLC is a New Jersey-based company that develops, manufactures, and markets pharmaceutical products. CVS Health Corporation is an American healthcare company headquartered in Woonsocket, Rhode Island. Caremark RX, LLC is the prescription benefit management subsidiary of CVS Health, headquartered in Woonsocket, Rhode Island. Express Scripts Holding Company is a pharmacy benefit management organization based in St. Louis, Missouri. Express Scripts Inc. is a St. Louis, Missouri-based company that offers pharmacy benefit management services. OptumRx, Inc. is a pharmacy care services company based in Irvine, California. [BN] The Plaintiff is represented by: Dianne M. Nast, Esq. Michael Tarringer, Esq. NastLaw LLC 1101 Market Street, Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 Email: dnast@nastlaw.com mtarringer@nastlaw.com – and – Michael L. Roberts, Esq. Karen S. Halbert, Esq. ROBERTS LAW FIRM, P.A. 20 Rahling Circle Little Rock, AR 72223 Telephone: (501) 821-5575 Facsimile: (501) 821-4474 Email: mikeroberts@robertslawfirm.us KarenHalbert@robertslawfirm.us – and – Don Barrett, Esq. David M. McMullan, Jr., Esq. BARRETT LAW GROUP, P.A. P.O. Box 927 404 Court Square North Lexington, MS 39095-0927 Telephone: (662) 834-9168 Facsimile: (662) 834-2628 Email: donbarrettpa@gmail.com dmcmullan@barrettlawgroup.com – and – Phil Elbert, Esq. Charles Barrett, Esq. NEAL & HARWELL, PLC 1201 Demonbreun St. Suite 1000 Nashville, TN 37203 Telephone: (615) 244-1713 Facsimile: (615) 726-0573 Email: pelbert@nealharwell.com cbarrett@nealharwell.com NUVANCE HEALTH: Fails to Defend PII From Data Breach, Gyscek Says ----------------------------------------------------------------- STEPHEN GYSCEK, individually and on behalf of all others similarly situated v. NUVANCE HEALTH and HEALTH QUEST SYSTEMS, INC. d/b/a "HEALTH QUEST", Case No. 7:20-cv-02719-VB (S.D.N.Y., April 1, 2020), alleges that the Defendants failed to implement security measures sufficient to protect personal identifiable information from disclosure to hackers or other unauthorized parties in a data breach, and to timely notify all affected individuals. The Plaintiff contends that the Defendants failed to store PII in a reasonably secure and adequately protected manner, contravening various laws as well as industry standards and Defendants' own policies. As a result, cybercriminals were able to harvest the personal information of at least 28,910 of the Defendants' patients, including their financial information, medical information, personal information, and/or other protected health information as defined by the Health Insurance Portability and Accountability Act of 1996. The Plaintiff is an individual residing in Staatsburg, New York, who has been a patient at the Heart Center of Poughkeepsie, New York, for about 10 years and a patient at Vassar Brothers Hospital for about 40 years. Both are owned and operated by the Defendants. The Defendants are healthcare providers and, as such, they are entrusted with some of the most sensitive and personal information imaginable.[BN] The Plaintiff is represented by: Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD LLP 412 H Street NE, Ste. 302 Washington, DC 20002 Telephone: (202) 470-3520 E-mail: nmigliaccio@classlawdc.com jrathod@classlawdc.com OHIO STATE UNIVERSITY: Does Sue Alleging Civil Rights Violations ---------------------------------------------------------------- A class action lawsuit has been filed against The Ohio State University. The case is captioned as John Does 85-88 individually and on behalf of all others similarly situated v. The Ohio State University, Case No. 2:20-cv-01649-MHW-EPD (S.D. Ohio, Mar 31, 2020). The case is assigned to the Hon. Judge Michael H. Watson. The lawsuit demands $10,000 in damages alleging violation of the Civil Rights Act of 1964. The Ohio State University is a public research university in Columbus, Ohio.[BN] The Plaintiffs are represented by: Simina Vourlis, Esq. THE LAW OFFICES OF SIMINA VOURLIS 1689 W. 3rd Ave. Columbus, OH 43212 Telephone: (614) 487-5900 Facsimile: (614) 487-5901 E-mail: svourlis@vourlislaw.com - and - Daniel Richard Karon, Esq. KARON LLC 700 W. St. Clair Avenue, Suite 200 Cleveland, OH 44113 Telephone: (216) 622-1851 Facsimile: (216) 241-8175 E-mail: dkaron@karonllc.com - and - Larkin E. Walsh, Esq. MIDWEST LAW 5301 West 75th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 901-0419 E-mail: lwalsh@midwest-law.com - and - Rex A. Sharp, Esq. Sarah T. Bradshaw, Esq. 5301 West 75th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com sbradshaw@midwest-law.com - and - Stephen J. Estey, Esq. ESTEY & BOMBERGER LLP 2869 India Street San Diego, CA 92103 Telephone: (619) 295-0035 Facsimile: (619) 295-0172 E-mail: steve@estey-bomberger.com ONE PLANET: Court Partly Denies Bid to Dismiss Schley TCPA Suit --------------------------------------------------------------- In the case, REEVE SCHLEY, Plaintiff, v. ONE PLANET OPS INC, et al., Defendants, Case No. 20-cv-00203-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California mooted in part and denied in part the Defendants' motion to dismiss. Mr. Schley has filed a class action against Defendants One Planet Ops Inc. and Buyerlink, LLC, doing business as contractors.com, asserting claims for violation of the Telephone Consumer Protection Act ("TCPA"). Mr. Schley alleges that the Defendants both texted him and called him in violation of the statute. Mr. Schley is the subscriber and/or sole user of a cell phone with the following number: (310) 435-****. Between Aug. 7 and 21, 2019, the Defendant sent him multiple text messages (at least five). The text messages were sent from numbers that are dedicated numbers used for mass texts, not hand delivered messages. Mr. Schley did not give consent to be contacted via text messages. Mr. Schley registered his cell phone with the National Do Not Call Registry several years before the events giving rise to the lawsuit. Based on these allegations, Mr. Schley asserted the following TCPA causes of action in his complaint: 1) Violation of 47 U.S.C. Section 227(b)(1)(A)(iii); 2) Violation of 47 U.S.C. Section 227(c) and 47 C.F.R. Section 64.1200(c); and 3) Violation of 47 U.S.C. Section 227(c) and 47 C.F.R. Section 64.1200(d). The Defendants have asked the Court to take judicial notice that the cell phone identified in the complaint is one associated with a business (Seed Furniture, Inc.) such that they cannot be held liable with respect to these causes of action. In his opposition brief, Mr. Schley states that he is voluntarily dismissing these claims for relief -- although not for the reasons articulated by the Defendants -- and asks that the Court dismiss the claims without prejudice. Federal Rule of Civil Procedure 41 provides that a plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. Unless the notice or stipulation states otherwise, the dismissal is without prejudice." Fed. R. Civ. P. 41(a)(1)(B). In light of Mr. Schley's statement in his opposition brief and Rule 41(a)(1), Judge Chen holds that the second and third causes of action will be dismissed without prejudice. As for the first cause of action, taking into account factors, Mr. Schley has alleged enough to support a plausible claim of use of an ATDS in conjunction with the sending of text messages. The fact that the text messages were sent with a long code, as opposed to a short code, is not dispositive. The bottom line is that it seems plausible that an ATDS could have been used to contact contractors in the Los Angeles area, of which Mr. Schley/Seed Furniture was one. To the extent Defendants argue that it is just as conceivable that the text messages were done by hand, or not using an ATDS, the Ninth Circuit has indicated that equal plausibility means a plaintiff survives a 12(b)(6) challenge. Finally, Mr. Schley has alleged more than one phone call from the Defendants -- about 30 total in a relatively short time span. Moreover, he has alleged that, in at least two instances (not just one), he encountered the dead air issue. To the extent the Defendants argue that the delay in only 6.67% of the calls received is more likely a result of an inattentive caller than an ATDS, that argument is speculative and does not negate the opposite inference. It is plausible that there was an inattentive caller but it is equally plausible that an ATDS was used -- when the "dead air" allegations are taken in conjunction with the allegations that Mr. Schley received about 30 phone calls in just a few months' time. For the foregoing reasons, Judge Chen denied the motion to dismiss with respect to the first TCPA cause of action. Because Mr. Schley has voluntarily dismissed the second and third causes of action (without prejudice), the motion to dismiss on these claims is moot. The Order disposes of Docket No. 19. A full-text copy of the Court's March 18, 2020 Order is available at https://is.gd/hkpmvs from Leagle.com. Reeve Schley, individually and on behalf of all others similarly situated, Plaintiff, represented by Jarrett Lee Ellzey -- firm@hughesellzey.com -- Hughes Ellzey, LLP, pro hac vice & John Peter Kristensen, Kristensen Weisberg, LLP. One Planet Ops Inc, a Delaware Corporation & Buyerlink LLC, a California limited liability company doing business as Contractors.com, Defendants, represented by Matthew D. Pearson -- mpearson@bakerlaw.com -- Baker & Hostetler LLP. OPKO HEALTH: Avraham Class Action Ongoing ----------------------------------------- OPKO Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 2, 2020, for the fiscal year ended December 31, 2019, that the company continues to defend a class action suit in Tel Aviv Israel District Court initiated by Dalia Avraham. On or about September 16, 2018, Dalia Avraham filed an Application for Approval of a Class Action in the Tel Aviv Israel District Court against the Company and Dr. Frost. This application was filed by a purported stockholder, both individually and on behalf of a putative class of the Company's stockholders. The Avraham Claim alleges a negligent and/or deliberate act related to the trade of the Company's shares on the Tel Aviv Stock Exchange ("TASE") which was intended to or which in fact caused damage to the Company's investors based on the Company's decision to delist from TASE in April 2018 and its subsequent decision to continue to be listed on TASE. The Avraham Claim seeks to declare the action to be a class action and an estimated NIS 20 million in damages. OPKO Health said, "We believe that this action is without merit and the Company intends to vigorously defend itself." No further updates were provided in the Company's SEC report. OPKO Health, Inc., a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States, Ireland, Chile, Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was incorporated in 1991 and is headquartered in Miami, Florida. OPKO HEALTH: Bid to Dismiss Consolidated Class Action Pending ------------------------------------------------------------- OPKO Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 2, 2020, for the fiscal year ended December 31, 2019, that the motion to dismiss filed in the consolidated Kerznowski and Steinberg class action suit remains pending. On September 7, 2018, the Securities and Exchange Commission ("SEC") filed a lawsuit in the Southern District of New York against a number of individuals and entities, including the Company and its CEO and Chairman, Phillip Frost. The SEC Complaint alleged, among other things, that the Company (i) aided and abetted an illegal "pump and dump" scheme perpetrated by a number of the Defendants, and (ii) failed to file required Schedules 13D or 13G with the SEC. On December 27, 2018, the Company announced that the Company and Dr. Frost entered into settlement agreements with the SEC, resolving the SEC Complaint. Pursuant to the settlement, and without admitting or denying any of the allegations of the Complaint, the Company is enjoined from violating Section 13(d) of the Exchange Act and paid a $100,000 penalty. Liability under Section 13(d) can be established without any showing of wrongful intent or negligence. The settlement was approved by the Court in January 2019. Under the terms of the settlement between the SEC and Dr. Frost, and without admitting or denying any of the allegations in the Complaint, Dr. Frost agreed to injunctions from violations of Sections 5(a) and (c) and 17(a)(2) of the Securities Act, claims which may be satisfied by strict liability and negligence, respectively, and Section 13(d) of the Exchange Act, also a strict liability claim; to pay approximately $5.5 million in penalty, disgorgement and pre-judgment interest, which has been paid; and to be prohibited, with certain exceptions, from trading in penny stocks. Following the SEC's announcement of the SEC Complaint, a number of class actions and derivative suits were filed concerning the allegations in the SEC Complaint and related matters. On or about September 12, 2018, Jason Kerznowski, a purported stockholder, filed a putative class action lawsuit in the United States District Court for the District of New Jersey against the Company and certain of its current and former executive officers. This lawsuit was brought by Kerznowski both individually and on behalf of a putative class of the Company's stockholders, claiming that in connection with the facts and circumstances underlying the allegations in the SEC Complaint, the Company engaged in fraudulent conduct and made false and misleading statements of material fact or omitted to state material facts necessary to make the statements made not misleading. The Kerznowski Lawsuit sought to declare the action to be a class action and certify Kerznowski as the class representative, monetary damages, including prejudgment and post judgment interest, an award of reasonable attorneys' fees, expert fees, and other costs, and such other relief as the Court may deem just and proper. On or about September 14, 2018, Charles Steinberg, a purported stockholder, filed a putative class action lawsuit in the United States District Court for the Southern District of Florida against the Company and certain of its current and former executive officers. This lawsuit was brought by Steinberg both individually and on behalf of a putative class of the Company's stockholders claiming that in connection with the facts and circumstances underlying the allegations in the SEC Complaint, the Company engaged in fraudulent conduct and made false and misleading statements of material fact or omitted to state material facts necessary to make the statements made not misleading. The Steinberg Lawsuit sought to declare the action to be a class action, monetary damages, including prejudgment and post judgment interest, an award of reasonable attorneys' fees and expert fees and other costs, and such additional or different relief as the interests of law or equity may require. On February 4, 2019, the United States District Court for the District of New Jersey appointed the Amitim Funds as lead plaintiff in the Kerznowski Lawsuit and subsequently transferred the matter to the United States District Court for the Southern District of Florida. Amitim Funds was also appointed as lead plaintiff in the Steinberg Lawsuit. On May 3, 2019, plaintiffs in each of the Kerznowski Lawsuit and Steinberg Lawsuit, filed an identical consolidated class action complaint, and the court consolidated these actions on May 8, 2019. The Company believes the action is without merit and has filed a motion to dismiss the consolidated complaint, which is fully briefed and remains pending. In addition to the Steinberg and Kerznowski Lawsuits, three other class action lawsuits relating to the allegations of the SEC Complaint were filed against the Company, but have been either administratively stayed and closed, or voluntarily dismissed without prejudice. OPKO Health, Inc., a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States, Ireland, Chile, Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was incorporated in 1991 and is headquartered in Miami, Florida. OPKO HEALTH: Data Security Breach Suits v. BioReference Ongoing --------------------------------------------------------------- OPKO Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 2, 2020, for the fiscal year ended December 31, 2019, that BioReference Laboratories, Inc. continues to defend two class action suits related to data security breach. On June 3, 2019, BioReference reported that Retrieval-Masters Creditors Bureau, Inc. d/b/a American Medical Collection Agency ("AMCA"), had notified BioReference about a data security incident involving AMCA (the "AMCA Incident"). AMCA informed BioReference that an unauthorized user had access to AMCA's system between August 1, 2018 and March 30, 2019. AMCA advised that AMCA’s affected system may have included patient name, date of birth, address, phone, date of service, provider, and balance information, as well as credit card information, bank account information (but no passwords or security questions) and email addresses that were provided by the consumer to AMCA. AMCA has advised BioReference that no Social Security Numbers were compromised, and BioReference provided no laboratory results or diagnostic information to AMCA. BioReference has notified patients and provided notice to the Office of Civil Rights of the AMCA Incident. To date, BioReference has been named in at least two class action lawsuits against AMCA and other defendants in connection with the AMCA Incident. In addition, the Office of Inspector General and Office for Civil Rights ("OCR") of the Department of Health and Human Services, as well as the attorney generals’ offices from certain states have contacted BioReference to request additional information relating to the AMCA Incident. OPKO Health said, "It is not possible at this time to estimate the amount of loss or range of loss, if any, that might result from adverse judgments, settlements, fines, penalties, or other resolution of these proceedings and investigations based on the stage of these proceedings and investigations, the absence of specific allegations as to alleged damages, the uncertainty as to the certification of a class or classes and the size of any certified class, if applicable, and/or the lack of resolution of significant factual and legal issues." OPKO Health, Inc., a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States, Ireland, Chile, Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was incorporated in 1991 and is headquartered in Miami, Florida. OPKO HEALTH: Sharon Suit in Tel Aviv Closed Temporarily ------------------------------------------------------- OPKO Health, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 2, 2020, for the fiscal year ended December 31, 2019, that the Tel Aviv Israel District Court closed the class action suit initiated by Idan Sharon, pending resolution of the U.S.-based class actions relating to allegations in litigation initiated by the U.S. Securities and Exchange Commission. On or about September 13, 2018, Idan Sharon filed an Application for Approval of a Class Action in the Tel Aviv Israel District Court against the Company and certain of its current and former executive officers, and certain members of its Board of Directors (the "Sharon Claim"). This application was filed by a purported stockholder, both individually and on behalf of a putative class of the Company's stockholders, claiming that in connection with the facts and circumstances underlying the allegations in the SEC Complaint, the Company engaged in fraudulent conduct and made false and misleading statements of material fact or omitted to state material facts necessary to make the statements made not misleading. The Sharon Claim seeks to declare the action to be a class action and monetary damages. The court closed this case pending resolution of the U.S.-based class actions relating to the allegations in the SEC Complaint. On September 7, 2018, the SEC filed a lawsuit in the Southern District of New York against a number of individuals and entities, including the Company and its CEO and Chairman, Phillip Frost. The SEC Complaint alleged, among other things, that the Company (i) aided and abetted an illegal "pump and dump" scheme perpetrated by a number of the Defendants, and (ii) failed to file required Schedules 13D or 13G with the SEC. On December 27, 2018, the Company announced that the Company and Dr. Frost entered into settlement agreements with the SEC, resolving the SEC Complaint. Pursuant to the settlement, and without admitting or denying any of the allegations of the Complaint, the Company is enjoined from violating Section 13(d) of the Exchange Act and paid a $100,000 penalty. Liability under Section 13(d) can be established without any showing of wrongful intent or negligence. The settlement was approved by the Court in January 2019. OPKO Health, Inc., a healthcare company, engages in the diagnostics and pharmaceuticals business in the United States, Ireland, Chile, Spain, Israel, Mexico, and internationally. OPKO Health, Inc. was incorporated in 1991 and is headquartered in Miami, Florida. OUTLAW LABORATORY: Certification of 3 Classes Sought ---------------------------------------------------- In the class action lawsuit styled as re: OUTLAW LABORATORY, LP LITIGATION, Case No. 3:18-cv-00840-GPC-BGS (S.D. Cal.), the Plaintiff will move the Court on May 15, 2020 for an order: 1. certifying these classes: The Threatened Stores Class: "all retail entities in the United States that received a demand letter sent on behalf of Outlaw Laboratory, LP, in which Outlaw Laboratory threatened litigation over the entity's sale of 'sexual enhancement products,' and where the recipient neither paid money to Outlaw Laboratory or its agents, nor was thereafter named as a defendant in state or federal litigation brought by Outlaw Laboratory"; The Sued Stores Class: "all retail entities in the United States that received a demand letter sent on behalf of Outlaw Laboratory, LP, in which Outlaw Laboratory threatened litigation over the entity's sale of 'sexual enhancement products,' and where the recipient was thereafter named as a defendant in state or federal litigation brought by Outlaw Laboratory, but has not paid money to Outlaw Laboratory or its agents to dismiss the claim"; and The Payment Class: "all retail entities in the United States that received a demand letter sent on behalf of Outlaw Laboratory, LP, in which Outlaw Laboratory threatened litigation over the entity's sale of 'sexual enhancement products,' and where the recipient thereafter paid money to Outlaw Laboratory, Tauler Smith LLP, or an agent of either to 'settle' the claim." Excluded from the proposed classes are Outlaw's officers, directors, managerial employees, and their immediate families, as well as this Court and the Court's immediate family members.; and 2. appointing Gaw | Poe LLP as class counsel. Outlaw is a manufacturer of male dietary supplements.[CC] Attorneys for Defendants, Counterclaimant, and Third-Party Plaintiffs are: Mark Poe, Esq. Randolph Gaw, Esq. Samuel Song, Esq. GAW | POE LLP 4 Embarcadero, Suite 1400 San Francisco, CA 94111 Telephone: (415) 766-7451 Facsimile: (415) 737-0642 E-mail: mpoe@gawpoe.com rgaw@gawpoe.com ssong@gawpoe.com vmeng@gawpoe.com PENNSYLVANIA: Faces C.Z. Class Suit in Pennsylvania Sup. Ct. ------------------------------------------------------------ A class action lawsuit has been filed against County Commissioners Association of Pennsylvania, et al. The case is captioned as C.Z., A.O., and Z.S.-W., on behalf of all similarly situated individuals v. County Commissioners Association of Pennsylvania; Pennsylvania District Attorney's Association; Pennsylvania Department of Human Services; Department of Corrections; Commonwealth of Pennsylvania; Pennsylvania Department of Human Services; Tom W. Wolf; Administrative Office of Pennsylvania Courts; and County Commissioners Association of Pennsylvania, Case No. 24 EM 2020 (Pa. Sup., April 1, 2020). The lawsuit alleges violation of juvenile-related laws. CCAP is a nonprofit organization that advocates policies it believes will support county governments across the state of Pennsylvania. The Pennsylvania District Attorneys Association was formed in 1912 for the purpose of providing uniformity and efficiency in the discharge of duties and functions of Pennsylvania's 67 District Attorneys and their assistants.[BN] The Petitioners are represented by: Alan R. Boynton, Jr., Esq. MCNEES WALLACE & NURICK LLC Po Box 1166 Harrisburg, PA 17108-1166 Telephone: (717) 237-5352 - and - Joanna L. Visser, Esq. Emily Robb, Esq. Lauren Andrea, Esq. YOUTH SENTENCING & REENTRY PROJECT 1528 Walnut St., Ste. 515 Philadelphia, PA 19102 Telephone: (267) 703-8047 - and - Courtney G. Saleski, Esq. Nathan Paul, Esq. DLA PIPER LLP (US) 1650 Market St., Ste. 5000 Philadelphia, PA 19103 Telephone: (215) 656-2431 - and - Karen Usselman Lindell, Esq. Marsha Levick, Esq. Jessica Rachel, Esq. JUVENILE LAW CENTER 1800 JFK Blvd., Ste. 1900b Philadelphia, PA 19103 Telephone: (215) 625-0551 The Respondents are represented by: Anne Elizabeth Zerbe, Esq. Claudia Nadine Shank, Esq. Matthew John McLees, Esq. MCNEES WALLACE & NURICK LLC 316 N George St. York, PA 17406 Telephone: (717) 714-6370 - and - Tracy Saylor Piatkowski, Esq. MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE P.O. Box 311 Norristown, PA 19404-0311 Telephone: (610) 278-3143 - and - Ronald Eisenberg, Esq. Joshua D. Shapiro, Esq. PENNSYLVANIA OFFICE OF ATTORNEY GENERAL 1600 Arch St. Philadelphia, PA 19103 Telephone: (267) 940-6676 - and - Serafin, Kenneth J., Esq. Gregory George Schwab, Esq. PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES BUREAU OF HEARINGS AND APPEALS OFFICE OF GENERAL COUNSEL 625 Forster St., 3rd Fl. West Harrisburg, PA 17120 Telephone: (717) 783-2800 - and - Theron Richard Perez, Esq. DEPARTMENT OF CORRECTIONS 1920 Technology Pkwy. Mechanicsburg, PA 17050-8507 Telephone: (717) 728-2574 - and - Jill Marie Graziano, Esq. PENNSYLVANIA DISTRICT ATTORNEYS ASSOCIATION 2929 N. Front Street Harrisburg, PA 17110 Telephone: (717) 231-5416 - and - Michael Daley, Esq. ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS 1515 Market St., Suite 1414 Philadelphia, PA 19102 Telephone: (215) 560-6300 PREFERRED CAREGIVERS: Misclassifies Employees, Badon Claims ----------------------------------------------------------- ANTHONY BADON, on behalf of himself and all others similarly situated, Plaintiff v. PREFERRED CAREGIVERS AND SITTERS, LLC D/B/A "PREFERRED CAREGIVERS & SITTERS, LLC", BARRY WRIGHT and MILLICENT WRIGHT, Defendants, Case No. 2:20-cv-01065 (E.D. La., March 31, 2020) is a collective action complaint brought against Defendants for their alleged violation of the Fair Labor Standards Act. Plaintiff was employed by Defendants to provide home health services to Defendants' clients in 2019. According to the complaint, Plaintiff and other similarly situated caregivers routinely worked more than 40 hours per week for Defendants. But because Defendants classified them as "contractors", Defendants did not pay them overtime for all hours in excess of 40 per week they worked for Defendants. Barry Wright and Millicent Wright are owners of Preferred Caregivers and Sitters, LLC and jointly exercised control over their employees' schedules, rate of pay, how they performed their jobs and the equipment they used to perform their jobs. Preferred Caregivers and Sitters, LLC provides home health care and related services to clients in the Greater New Orleans Area. [BN] The Plaintiff is represented by: Jody Forester Jackson, Esq. Mary Bubbett Jackson, Esq. JACKSON+JACKSON 201 St. Charles Ave., Ste. 2500 New Orleans, LA 70170 Tel: (504)599-5953 Fax: (888)988-6499 Emails: jjacksoon@jackson-law.net mjackson@jackson-law.net R&B CORP: Nixon Sues in E.D. Virginia Alleging Violation of FDCPA ----------------------------------------------------------------- A class action lawsuit has been filed against R & B Corporation of Virginia. The case is captioned as Rita Nixon also known as: Gardner individually and on behalf of all others similarly situated v. R & B Corporation of Virginia, doing business as Credit Control Corporation, and John Does 1-25, Case No. 2:20-cv-00171-RBS-LRL (E.D. Va., April 1, 2020). The case is assigned to the Hon. Judge Rebecca Beach Smith. The lawsuit alleges violation of the Fair Debt Collection Practices Act. R & B is a debt collection agency.[BN] The Plaintiff is represented by: Aryeh Eliezer Stein, Esq. MERIDIAN LAW, LLC 600 Reisterstown Road, Suite 700 Baltimore, MD 21208 Telephone: (443) 326-6011 Facsimile: (410) 653-1061 E-mail: astein@meridianlawfirm.com RALPHS GROCERY: Torres Seeks Civil Penalties for Unpaid Wages ------------------------------------------------------------- Carlos Daniel Torres, an individual, on behalf of herself and all aggrieved employees v. Ralphs Grocery Company, an Ohio corporation, Food 4 Less of California, Inc., a California Corporation; Food 4 Less of Southern California, Inc., a Delaware corporation, and The Kroger Co., an Ohio corporation, and DOES 1-50, inclusive, Case No. 20STCV12856 (Cal. Super., Los Angeles Cty., April 1, 2020), seeks to recover civil penalties under the Private Attorneys General Act, California Labor Code, over unpaid wages. The Plaintiff contends that the Defendants have had a consistent policy and/or practice of failing to pay for all hours worked, including overtime hours worked, at the lawful rate; to provide suitable seating; and to timely pay all wages owed, in violation of the California Labor Code. The Plaintiff was employed as an hourly, nonexempt employee of the Defendants where he worked as a meat clerk. Ralphs Grocery Company operates a supermarket chain in California.[BN] The Plaintiff is represented by: Nazo Koulloukian, Esq. KOUL LAW FIRM 3435 Wilshire Blvd., Suite 1710 Los Angeles, CA 90010 Telephone: (213) 761-5484 Facsimile: (818) 561-3938 E-mail: nazo@koullaw.com - and - Sahag Majarian, II, Esq. LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Blvd. Tarzana, CA 91356 Telephone: (818)609-0807 Facsimile: (818)609-0892 E-mail: Sahagii@aol.com RENT-A-CENTER INC: Agreement in Principle Reached in Russel Suit ---------------------------------------------------------------- Rent-A-Center, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 2, 2020, for the fiscal year ended December 31, 2019, that the company has reached an agreement in principle to settle the class action suit entitled, Velma Russell v. Acceptance Now. This purported class action arising out of calls made by Acceptance Now to customers' reference(s) was filed on January 29, 2019 in Massachusetts state court. Specifically, plaintiffs sought to certify a class representing any references of customers (within the state of Massachusetts) during the 4 years prior to the filing date that were contacted by Acceptance Now more frequently during a 12 month period than is permitted by Massachusetts state law. The plaintiffs were seeking injunctive relief and statutory damages of $25 per reference which may be tripled to $75 per reference. References are not parties to our consumer arbitration agreement. The company operates 12 Acceptance Now locations in Massachusetts. Mediation took place in September 2019. The company reached an agreement in principle in December 2019 to settle this matter. The settlement amount is immaterial and we recorded a pre-tax charge for such settlement in the fourth quarter of 2019. Rent-A-Center, Inc., together with its subsidiaries, leases household durable goods to customers on a rent-to-own basis. The company operates through four segments: Core U.S., Acceptance Now, Mexico, and Franchising. Rent-A-Center, Inc. was founded in 1986 and is headquartered in Plano, Texas. RESOLUTE ENERGY: Ct. Dismisses Mack Securities Suit --------------------------------------------------- In the case, STEVEN MACK, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. RESOLUTE ENERGY CORPORATION n/k/a CIMAREX RESOLUTE LLC, NICHOLAS J. SUTTON, JAMES E. DUFFY, WILLIAM K. WHITE, GARY L. HULTQUIST, TOD C. BENTON, THOMAS O. HICKS, JR., ROBERT J. RAYMOND, JANET W. PASQUE, RICHARD F. BETZ, JOSEPH CITARRELLA, AND WILKIE S. COLYER, JR., Defendants, Civil Action No. 19-77-RGA (D. Del.), Judge Richard G. Andrews of the U.S. District Court for the District of Delaware granted the Defendants' Motion to Dismiss Consolidated Class Action Complaint. Resolute was an oil and natural gas exploration company that operated in the southern and western regions of the United States. On Nov. 19, 2018, Resolute proposed a merger agreement with Cimarex, another energy company, according to which Resolute shareholders would have the right to receive a certain amount of consideration. Resolute filed a preliminary proxy statement on Jan. 10, 2019. The Plaintiffs and others filed suit on Jan. 14 and 15, 2019. In connection with the merger, the Resolute board filed a definitive proxy statement with the Securities and Exchange Commission oon Jan. 30, 2019. The board reviewed the proxy, which solicited Resolute's shareholders to vote in favor of the merger. The proxy contained fairness opinions from financial advisors Goldman Sachs and Petrie Partners. On Feb. 14, 2019, Resolute supplemented the proxy with more information and disclosures relating to the merger by filing a Form 8-K. Pursuant to the merger, Resolute shareholders had the right to receive 0.3943 shares of Cimarex common stock, $35 per share in cash, or a combination of $14 per share in cash and 0.2366 shares of common stock subject to proration. A majority of Resolute's shareholders voted to approve the merger, which closed on March 1, 2019. The class action complaint on behalf of Resolute shareholders, filed on June 14, 2019, alleges two violations of Section 14(a) of the Securities Exchange Act, violation of Section 20(a) of the Securities Exchange Act, and breach of fiduciary duty. The Plaintiffs allege that the Proxy violated Section 14(a) of the Securities Exchange Act because: (1) the Proxy contained material non-GAAP2 financial projections in support of the merger consideration without complying with Regulation G; (2) the reliance on and utilization of material unreconciled non-GAAP financial measures by the Defendants and Resolute's financial advisors and the omission of "certain Cimarex projections" rendered statements in the Proxy misleading in violation of SEC Rule 14a-9; and (3) the fairness opinions by Resolute's financial advisors were misleading due to, among other things, the inconsistent use of certain financial measures. The Plaintiffs also allege that the individual board directors breached their fiduciary duties of loyalty and care. The Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Andrews finds that the proxy statement and its supplemental disclosures show that (1) the financial measures were indeed included in forecasts provided to the financial advisor to render an opinion materially related to the merger transaction, and (2) the forecasts were disclosed to comply with Item 1015. See Section 101, Business Combination Transactions. Thus, he finds that the Defendants' statements in the proxy qualify under the business combination exemption and they are exempted from compliance with Regulation G. He will grant the motion to dismiss with respect to the Defendants' failure to comply with Regulation G. Even if the omitted information described would have been material to shareholders in deciding how to vote on the merger, the Plaintiffs do not meet their burden for pleading that the omissions rendered the proxy misleading, particularly in light of the other information that was presented in the proxy, rules Judge Andrews. Because the Plaintiffs have not shown that the complained-of figures are material or that the entire recommendation has been rendered materially misleading as a result of the identified omissions, the Judge does not find that the failure to include GAAP financial measures, GAAP reconciliations, the line-items used to calculate the financial projections, or the unlevered free cash flow information rendered the proxy materially misleading. Consequently, he will grant the Defendants' motion to dismiss with respect to the proxy statement. The Plaintiffs state in their complaint that the "importance of providing sufficient information to shareholders" is "axiomatic." While it may be true, Judge Andrews does not find that axioms help. The Plaintiffs have not pleaded with sufficient specificity that the Defendants' alleged failures to provide the information described rendered the proxy statement materially misleading in violation of Section 14(a) and Rule 14a-9. The proxy includes 18 pages summarizing the financial analyses provided by the financial advisors. The proxy also appends the fairness opinions of both advisors to the proxy, and the Form 8-K provides additional supplements to the disclosure concerning the valuation analyses. The Judge agrees with the Defendants that the proxy and its supplemental disclosures provide at least a "fair summary" of the financial analyses conducted by the advisors. Thus, he will grant the Defendants' motion to dismiss as to the fairness opinions. As for loss causation, the securities statutes, including Section 14(a) of the Exchange Act, do not exist to "provide investors with broad insurance against market losses," but seek to maintain public confidence in the marketplace through good corporate governance. Allowing a plaintiff to forgo giving any indication of the economic loss and proximate cause would bring about the very harm the securities statutes seek to avoid," namely, the abusive practice of filing lawsuits with only a "faint hope" that discovery might lead to some plausible cause of action. Inasmuch as the Plaintiffs have failed to demonstrate that the proxy contained materially misleading representations or omissions in violation of Rule 14a-9 and that these misrepresentations or omissions caused economic loss to the shareholders, Judge Andrews need not reach the issue of whether transaction causation has been sufficiently pleaded. A claim for controlling person liability under Section 20(a) must be based upon a primary violation of the securities law. Because the Plaintiffs do not adequately plead a Section 14(a) violation, the Judge holds that the Plaintiffs' Section 20(a) claim necessarily fails. Finally, as he has dismissed the Plaintiffs' federal claims, Judge Andrews will decline to exercise supplemental jurisdiction over the Plaintiffs' claim for breach of fiduciary duty under Delaware law. For the reasons he stated, Judge Andrews dismissed the Plaintiffs' Section 14(a) and Section 20(a) claims, with leave to amend. He dismissed their claim of breach of fiduciary duty. An accompanying order will be entered. A full-text copy of the Court's March 18, 2020 Memorandum Opinion is available at https://is.gd/VNjPT2 from Leagle.com. Steven Mack, Individually and on Behalf of All Others Similarly Situated & William A. Langdon, Jr., Lead Plaintiff, Plaintiffs, represented by Michael D. Van Gorder -- mvangorder@faruqilaw.com -- Faruqi & Faruqi, LLP. George Assad & Eddy Edge, Plaintiffs, represented by Brian D. Long, Rigrodsky & Long, P.A. & Gina M. Serra, Rigrodsky & Long, P.A. Resolute Energy Corporation, Nicholas J. Sutton, James E. Duffy, William K. White, Gary L. Hultquist, Tod C. Benton, Thomas O. Hicks, Jr., Robert J. Raymond, Janet W. Pasque, Richard F. Betz, Joseph Citarrella & Wilkie S. Colyer, Jr., Defendants, represented by David John Teklits -- dteklits@mnat.com -- Morris, Nichols, Arsht & Tunnell LLP & Thomas Parker Will -- twill@mnat.com -- Morris, Nichols, Arsht & Tunnell LLP. RUTTER'S INC: Johnson Sues Over Data Security Breach ---------------------------------------------------- KATHLEEN JOHNSON, on behalf of herself and all others similarly situated, Plaintiff, v. RUTTER'S, INC. Defendant, Case No. 1:20-cv-00516-YK (M.D. Pa., March 31, 2020) arises out of the data security breach of Defendant's point-of-sale ("POS") devices from August 30, 2018 through May 29, 2019, during which time, unauthorized third parties were able to access minimum payment card numbers, expiration dates, security codes, and customers' names of Defendant's customers, including Plaintiff and Class members. Plaintiff and Class members are Defendant's customers who purchased goods and services from Defendant with their payment cards and with the reasonable expectation that their payment card data would be safeguarded. Plaintiff and Class members have been exposed to a heightened and imminent risk of fraud and identity theft. Class members must now and in the future closely monitor their financial accounts to guard against fraud which is a burdensome and time-consuming process. Rutter's Inc. operates approximately 72 convenience stores in Pennsylvania, West Virginia, and Maryland, many of which also have gas pumps. [BN] The Plaintiff is represented by: Charles E. Schaffer, Esq. Frederick S. Longer, Esq. LEVIN SEDRAN & BERMAN LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 Email: cschaffer@lfsblaw.com flonger@lfsblaw.com – and - Troy N. Giatras, Esq. THE GIATRAS LAW FIRM, PLLC 118 Capitol Street, Suite 400 Charleston, WV 25301 Telephone: (304) 343-2900 Facsimile: (304) 343-2942 Email: troy@thewvlawfirm.com SAC WIRELESS: Smith Sues Over Failure to Pay Overtime Wages ----------------------------------------------------------- Donnell Smith, on Behalf of Himself and on Behalf of All Others Similarly Situated v. SAC WIRELESS, LLC, Case No. 5:20-cv-10932-LVP-RSW (E.D. Mich., April 14, 2020), alleges that the Defendant violated the Fair Labor Standards Act, which requires non-exempt employees to be compensated for all hours in excess of 40 in a workweek at one and one-half times their regular rates of pay. According to the complaint, the Defendant required the Plaintiff to work more than forty hours in a workweek without overtime compensation. The Defendant misclassified the Plaintiff as an independent contractor instead of as employees. By misclassifying them as independent contractors, the Defendant illegally denied the Plaintiff and the proposed Class Members compensation at time and one half their regular rates of pay for all hours worked over 40 in a workweek. The Plaintiff performed work for the Defendant as a field technician from August 2017 to July 2018 in Michigan. The Defendant is a telecommunications company that helps design, build, and upgrade cellular networks.[BN] The Plaintiff is represented by: Don J. Foty, Esq. HODGES & FOTY, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Phone: (713) 523-0001 Facsimile: (713) 523-1116 Email: Dfoty@hftrialfirm.com - and - Anthony J. Lazzaro, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Bldg., Suite 250 920 Rockefeller Building 614 W. Superior Avenue Cleveland, OH 44113 Phone: 216-696-5000 Facsimile: 216-696-7005 Email: anthony@lazzarolawfirm.com - and - Jennifer L. McManus, Esq. FAGAN MCMANUS, P.C. 25892 Woodward Avenue Royal Oak, MI 48067-0910 Phone: 248) 542-6300 Fax: (248) 542-6301 Email: jmcmanus@faganlawpc.com SAFEGUARD PROPERTIES: Misclassifies Employees, Lian Suit Claims --------------------------------------------------------------- James Lian, on Behalf of Himself and on Behalf of All Others Similarly Situated v. SAFEGUARD PROPERTIES MANAGEMENT, LLC, Case No. 8:20-cv-00736 (C.D. Cal., April 14, 2020), seeks to recover damages under the Fair Labor Standards Act and California Labor Code arising from the Defendant's misclassification of its employees. According to the complaint, the Defendant misclassified the Plaintiff as an independent contractor instead of as an employee. As a result of this misclassification, the Defendant has unlawfully required Plaintiff to pay business expenses (including but not limited to the cost of maintaining his vehicles, gas, insurance, phone and data expenses, and other costs). The Defendant has also failed to guarantee and pay the Plaintiff the minimum wage for all hours worked and has failed to pay overtime premiums for hours worked in excess of eight hours per day or forty hours per week, in violation of California Labor Code and the FLSA. The Plaintiff worked for the Defendant as a Field Inspector from June 2016 to July 2017. The Defendant is a company that provides various home and property inspections.[BN] The Plaintiff is represented by: Matthew S. Parmet, Esq. PARMET PC 340 S. Lemon Ave., #1228 Walnut, CA 91789 Phone: 713 999 5228 Fax: 713 999 1187 Email: matt@parmet.law - and – Jane M. Braugh, Esq. PARMET PC 490 S. Fair Oaks Ave. Pasadena, CA 91105 Phone: 713-999-5228 Fax: 713-999-1187 Email: jane@parmet.law - and - Don J. Foty, Esq. HODGES & FOTY, L.L.P. 4409 Montrose Blvd., Ste. 200 Houston, TX 77006 Phone: (713) 523-0001 Facsimile: (713) 523-1116 Email: Dfoty@hftrialfirm.com SALT & STRAW: Hayes Labor Class Suit Removed to C.D. California --------------------------------------------------------------- The class action lawsuit captioned as RASHON HAYES, individually, and on behalf of other members of the general public similarly situated v. SALT & STRAW, LLC, an unknown business entity; and DOES 1 through 100, inclusive, Case No. 20STCV06626 (Filed Feb. 20, 2020), was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California on April 1, 2020. The Central District of California Court Clerk assigned Case No. 2:20-cv-03063 to the proceeding. The complaint asserts claims against the Defendants for unpaid overtime, unpaid meal and rest period premiums, and unpaid minimum wages in violation of the California Labor Code. Salt & Straw is an ice cream company.[BN] The Defendant is represented by: John Haubrich, Jr., Esq. Vi N. Applen, Esq. Armine Antonyan, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 Telephone: 213 250 1800 Facsimile: 213 250 7900 E-Mail: John.Haubrich@lewisbrisbois.com Vi.Applen@lewisbrisbois.com Armine.Antonyan@lewisbrisbois.com SINCLAIR BROADCAST: Bid to Nix Illinois Consolidated Suit Pending ----------------------------------------------------------------- Sinclair Broadcast Group, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 2, 2020, for the fiscal year ended December 31, 2019, that the motion seeking dismissal of a consolidated class action suit before the Northern District of Illinois court remains is pending. The Company is aware of 22 putative class action lawsuits that were filed against the Company following published reports of the DOJ investigation into the exchange of pacing data within the industry. On October 3, 2018, these lawsuits were consolidated in the Northern District of Illinois. The consolidated action alleges that the Company and thirteen other broadcasters conspired to fix prices for commercials to be aired on broadcast television stations throughout the United States and engaged in unlawful information sharing, in violation of the Sherman Antitrust Act. The consolidated action seeks damages, attorneys' fees, costs and interest, as well as injunctions against adopting practices or plans that would restrain competition in the ways the plaintiffs have alleged. Defendants in this action filed a motion to dismiss the consolidated action, and that motion is now fully briefed. The Company believes the lawsuits are without merit and intends to vigorously defend itself against all such claims. Sinclair Broadcast Group, Inc. operates as a television broadcasting company in the United States. It owns or provides various programming, operating, sales, and other non-programming operating services to television stations. The company was founded in 1986 and is headquartered in Hunt Valley, Maryland. SITEL OPERATING: Court Grants Bid for Conditional Certification --------------------------------------------------------------- In the class action lawsuit styled as MARQUISE FOSTER, individually and on behalf of all others similarly situated v. SITEL OPERATING CORPORATION, Case No. 3:19-cv-00148 (M.D. Tenn.), the Hon. Judge Eli Richardson entered an order: 1. granting the Plaintiff's motion for conditional certification; 2. directing the Parties to meet and confer regarding the substance of the notice and the proposed notice and consent protocol; and 3. directing the parties to submit a joint report to the Court no later than 14 days after the date of this Order. The Court said, "If the parties cannot agree on a protocol, or the language of the notice, then by that same date (1) the Plaintiff shall file her proposed notice language and notice and consent protocol, and (2) the Defendant shall separately file specific objections as to points of disagreement. If this occurs, the Plaintiff may respond within five days. The Court will consider extending this time frame if requested, especially in light of the current COVID-19 pandemic. Additionally, the Court will defer the deadline by which Defendant is required to turn over information regarding the putative class members until all notice protocol issues are resolved." Sitel is a privately owned contact center company headquartered in Miami, Florida. It provides outsourced sales, technical support, customer service, and other business processes for large companies.[CC] STATE FARM: Court Certifies Rule 23 Class in Bally Suit ------------------------------------------------------- In the class action lawsuit styled as ELIZABETH A. BALLY v. STATE FARM LIFE INSURANCE COMPANY, Case No. 3:18-cv-04954-CRB (N.D. Cal.), the Hon. Judge Charles R. Breyer entered an order: 1. certifying a class under Fed.R.Civ.P. 23(b)(3) comprising of: "all persons who own or owned a universal life insurance policy issued by State Farm on Form 94030 in the State of California whose policy was in-force on or after January 1, 2002 and who were subject to at least one monthly deduction, excepting the Excluded Persons"; and 2. denying Defendant's motion to strike. State Farm operates as an insurance company.[CC] STELLAR COMMUNITIES: Greenberg Sues Over Unwanted Marketing Texts ----------------------------------------------------------------- CHARLES GREENBERG, individually and on behalf of all others similarly situated v. STELLAR COMMUNITIES LLC, Case No. CACE-20-005720 (Fla. Cir., Broward Cty., March 31, 2020), 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. The Plaintiff alleges that the Defendant engages in unsolicited marketing with no regard for privacy rights of the recipients of those messages. He adds that the Defendant caused thousands of unsolicited text messages to be sent to his and Class Members telephones, causing them injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. The Defendant is a Florida real estate development company.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SBAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: 305 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave., Suite 417 Aventura, FL 33 180 Telephone: 305 975-3320 E-mail: scott@edelsberglaw.com T.S. DUDLEY LAND: Fails to Pay Overtime to Agents, Penska Claims ---------------------------------------------------------------- JOE PENSKA, Individually and For Others Similarly Situated, Plaintiff, v. T.S. DUDLEY LAND COMPANY, INC., Defendant, Case No. 2:20-CV-435 (W.D. Pa., March 31, 2020) is an action brought by the Plaintiff to recover unpaid overtime wages and other damages from Defendant under the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act (PMWA). Penska worked for Dudley as a Senior Land Agent from approximately August 8, 2016 to January 15, 2018. T.S. Dudley Land Company, Inc. is an Oklahoma-based land service company. [BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Taylor A. Jones, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713-352-1100 Facsimile: 713-352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com tjones@mybackwages.com – and – Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713-877-8788 Facsimile: 713-877-8065 Email: rburch@brucknerburch.com – and – Joshua P. Geist, Esq. GOODRICH & GEIST PC 3634 California Ave. Pittsburgh, PA 15212 Telephone: 412-766-1455 Facsimile: 412-766-0300 Email: josh@goodrichandgeist.com TECHNIPFMC PLC: Continues to Defend Prause Securities Class Suit ---------------------------------------------------------------- TechnipFMC plc said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on March 3, 2020, for the fiscal year ended December 31, 2019, that the company continues to defend a class action suit entitled, Prause v. TechnipFMC, et al., No. 4:17-cv-02368 (S.D. Texas). A purported shareholder class action filed in 2017 and amended in January 2018 and captioned Prause v. TechnipFMC, et al., No. 4:17-cv-02368 (S.D. Texas) is pending in the U.S. District Court for the Southern District of Texas against the Company and certain current and former officers and employees of the Company. The suit alleged violations of the federal securities laws in connection with the Company's restatement of its first quarter 2017 financial results and a material weakness in its internal control over financial reporting announced on July 24, 2017. On January 18, 2019, the District Court dismissed claims under Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Section 15 of the Securities Act of 1933, as amended. A remaining claim for alleged violation of Section 11 of the Securities Act in connection with the reporting of certain financial results in the Company's Form S-4 Registration Statement filed in 2016 is pending and seeks unspecified damages. TechnipFMC said, "The Company is vigorously contesting the litigation and cannot predict its duration or outcome." No further updates were provided in the Company's SEC report. TechnipFMC plc engages in the oil and gas projects, technologies, and systems and services businesses. It operates through three segments: Subsea, Onshore/Offshore, and Surface Technologies. The company was formerly known as Technip SA and changed its name to TechnipFMC plc in January 2017. TechnipFMC plc was founded in 1958 and is headquartered in London, the United Kingdom. TEP ROCKY: 10th Cir. Affirms Sefcovic Suit Settlement Approval -------------------------------------------------------------- In the case, ELNA SEFCOVIC, LLC; WHITE RIVER ROYALTIES, LLC; JUHAN, LP; ROY ROYALTY, INC., individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. TEP ROCKY MOUNTAIN, LLC, Defendant-Appellee. CHARLES DEAN GONZALES; SUSANNAH GONZALES; TED L. VAUGHAN; HILDA VAUGHAN, Objectors-Appellants, IVO LINDAUER; SIDNEY LINDAUER; RUTH LINDAUER; DIAMOND MINERALS, Intervenors, and THE LAW OFFICES OF GEORGE A. BARTON, PC, Movant-Appellee, Case No. 19-1120 (10th Cir.), Judge Carolyn B. McHugh of the U.S. Court of Appeals for the Tenth Circuit affirmed the district court's approval of a class settlement agreement over the objections of four class members. Appellee-Defendant TEP operates wells that produce natural gas in Colorado. These wells are subject to various leases or royalty agreements under which the owners of such instruments receive a share of profits from the sale of natural gas. In 2006, a class of plaintiffs filed suit ("Lindauer litigation") in Colorado state court, alleging that TEP had underpaid royalties on various royalty instruments. In 2008, TEP and the Lindauer class entered into a settlement agreement ("Lindauer SA") purporting to resolve all class claims relating to past calculation of royalties and to establish certain rules to govern future royalty payments. The Lindauer SA categorized members of the class into 13 separate categories based on the specific terms of their royalty instruments, and set forth different royalty calculation methods for each category. Approximately eight years passed, seemingly free of incident. But on July 18, 2017, Elna Sefcovic, LLC, White River Royalties, LLC, Juhan, LP, and Roy Royalty, Inc., individually and on behalf of a subset of royalty owners who were party to the Lindauer SA ("Sefcovic class"), initiated the action against TEP in Colorado state court, alleging that TEP had calculated and paid royalties in a manner inconsistent with the Lindauer SA and contrary to the underlying royalty agreements. TEP removed the case to federal court on August 17, 2017, and subsequently asserted a counterclaim against the Sefcovic class for an offset of ad valorem taxes owing to any repayment of royalties by TEP. The parties engaged in discovery and ultimately reached a proposed class settlement ("Sefcovic SA"). The Sefcovic SA creates four subclasses composed of four of the 13 categories created by the Lindauer SA. These subclasses sort class members according to the rights their royalty instruments grant TEP with respect to deductions from royalty payments. The Lindauer categories that comprise the Sefcovic subclasses are categories two, three, five, and eleven. Category two agreements allow "deduction of transporting gas from the mouth of the well to the point of sale, or customary transportation costs, or all transportation charges." Category three agreements allow deduction of third party transportation costs from the mouth of the well to the point of sale. Category five agreements calculate royalty payments based on, for example, market value at the well, proceeds at the well, market value, or proceeds. And category eleven agreements calculate royalty payments based on gross proceeds. The Sefcovic subclasses, in turn, are composed as follows. Subclass 1 comprises owners of category two and category three agreements. Subclass 2 comprises owners of category five agreements. Su bclass 3 comprises owners of category eleven agreements. And Subclass 4 comprises owners with agreements that were categorized as either five or eleven at the time of the Lindauer SA, but were not currently identified by TEP as exclusively category five or category eleven agreements. The following table illustrates the relationship between the Sefcovic subclasses and the Lindauer categories. The Sefcovic SA allocates settlement payments by subclass: Subclass 1 receives $454,845; Subclass 2 receives $5,787,732; Subclass 3 receives $1,157,145; and Subclass 4 receives $2,625,587. The settlement payment for Subclass 1 is the equivalent of (a) 50% of all processing costs deducted from their payments since July 2016, and (b) over 40% of all fuel costs deducted from their payments since July 2011. On Aug. 16, 2018, the district court issued an order preliminarily approving the settlement and permitting notice to be mailed to the Sefcovic class members. On Nov. 6, 2018, appellants Charles Gonzales, Susannah Gonzales, Ted Vaughn, and Hilda Vaughn ("Objectors") filed various objections to approval of the proposed Sefcovic SA, including that the proposed settlement sacrificed the interests of certain class members, that the notice to class members was insufficient, and that the settlement's release of claims was overly broad. The Objectors each own royalty instruments falling in category two of the Lindauer SA and are therefore members of Subclass 1, as defined by the Sefcovic SA. The Lindauer SA treated category two royalty instruments differently than other categories. Although the Lindauer SA provided compensation to category two and category three owners for disputed past deductions, it did not clarify which deductions would be permitted prospectively under category two and category three leases. Instead, the Lindauer SA left the issue unresolved. The Sefcovic SA resolves the dispute in TEP's favor, declaring that TEP is entitled to deduct from Subclass 1 members a proportionate share of those members' gathering and fuel costs. On Feb. 20, 2019, the court held a final fairness hearing on the proposed Sefcovic settlement. It heard extensive testimony from the class members, the potential class members who opted out of the settlement, accounting experts, and the Objectors' counsel. Relevant in the case, the court also heard testimony from Susan Jerman, the owner of Subclass 1 representative White River Royalties, LLC. Ms. Jerman, who has worked in the oil and gas industry for forty years, testified that the deduction allowance provision in her category two agreement was weak as compared to the instruments in other subclasses, and thus, she believed the Sefcovic SA was "a fair settlement." Having read and considered all submissions in connection with the Sefcovic SA, the district court approved the settlement and incorporated its terms into the court's final order. The timely appeal followed. The Objectors assert on appeal that (1) the settlement is not fair; (2) Subclass 1 representatives did not adequately represent the rights of absent Subclass 1 members; (3) notice of the class settlement was inadequate; and (4) the settlement agreement's release of claims is too broad. The Tenth Circuit analyzes each matter in turn and concludes that (1) the district court did not exceed its discretion in deeming the settlement fair; (2) Objectors did not preserve their challenge to the adequacy of Subclass 1 representatives; (3) notice of the proposed settlement was adequate; and (4) the released claims share a factual predicate with the claims asserted in the complaint. As to the first factor, the district court found, and Objectors do not directly dispute, that the settlement agreement was the product of good faith arm's length negotiations between the Parties who are represented by very experienced and capable counsel. But the Objectors make no specific assertion on appeal that the settlement was not reached through a fair and honest negotiation process. The Tenth Circuit therefore sees no error in the district court's conclusion that it was. With respect to the second Tennille factor, the Tenth Circuit easily concludes that serious legal and factual questions placed in doubt the outcome of litigation about the deductions TEP could take from royalty payments made to Subclass 1. Setting aside the time, expense, and delayed recovery attendant to more litigation, Subclass 1 members faced a legitimate risk of recovering none of the fuel repayments they enjoy under the Sefcovic SA. And even if they secured those repayments, the victory could have been meaningless if it was combined with an adverse ruling on TEP's counterclaim seeking an offset of ad valorem tax liability allegedly triggered by such repayments. By agreement of the parties, TEP's counterclaim was dismissed by the district court's order approving the Sefcovic SA. The district court received conflicting testimony about an issue that was not then central to the proceeding. Mr. Simpson explained his methodology such that his calculations could be understood, verified, and replicated. In contrast, the Objectors offered a theory of Subclass 1 liability under paragraph 9.b based on speculation and containing gaps in analysis that make it impossible to assess the accuracy of the calculation. As a result, the Tenth Circuit cannot conclude the district court abused its discretion by approving a settlement agreement containing the recoupment provision. Finally, the fourth Tennille factor asks whether the parties "believed the settlement was fair and reasonable." As the district court observed, Subclass 1 members were aware of uncertainties in their royalty agreements under the Lindauer SA and believed the Sefcovic SA in their best interests. Indeed, the Appellees assert, and the Objectors do not dispute, that of 607 class members, only the four Objectors in the case challenged the reasonableness of the Sefcovic SA. The Objectors next assert a variety of arguments in support of their contention that Subclass 1 representatives did not adequately represent the interests of absent Subclass 1 members. Because Objectors failed to raise this issue in the district court despite ample opportunity to do so, the Tenth Circuit will not consider it on appeal. The Objectors may not use the district court's one-sentence finding that class representatives were adequate to assert arguments on appeal that were never presented to the district court. Nor can they rely on a fleeting reference to "and/or inadequate representation" in a portion of a brief challenging the scope of the settlement's release of claims. Nothing in the Objectors' written submissions or argument would have put the district court on notice that it was being presented with substantive arguments challenging the adequacy of representation. The Objectors arguments are therefore waived, rules the Tenth Circuit. Because the notice satisfied the requirements of Rule 23 and the constitutional demands of due process, the Tenth Circuit rejects the Objectors' contention that the class settlement notice was deficient. Finally, the Objectors argue the Sefcovic SA contains an overly broad release. In short, the Sefcovic complaint alleged an array of errors in the calculation and payment of royalties to the Sefcovic class based on the sale of natural gas and similar products, and this is precisely what the release purports to cover. The Objectors recite a "vast universe" of claims they believe would be covered by the subject release. It is doubtful that all such claims would be encompassed within the release, but to the extent they are, the Tenth Circuit concludes they share a factual predicate with the matters alleged in the complaint. She therefore sees no error in the district court's approval of the release. For the reasons she articulated, the Tenth Circuit affirms and holds that the district court did not abuse its discretion in approving the Sefcovic SA. A full-text copy of the Tenth Circuit's March 18, 2020 Order & Judgment is available at https://is.gd/GcgUGs from Leagle.com. TEP ROCKY: Dismissal of Bid to Intervene in Sefcovic Deal Upheld ---------------------------------------------------------------- In the case, ELNA SEFCOVIC, LLC; WHITE RIVER ROYALTIES, LLC; JUHAN, LP; ROY ROYALTY, INC., individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. TEP ROCKY MOUNTAIN, LLC, Defendant-Appellee. CHARLES DEAN GONZALES; SUSANNAH GONZALES; TED L. VAUGHAN; HILDA VAUGHAN, Objectors, IVO LINDAUER; SIDNEY LINDAUER; RUTH LINDAUER; DIAMOND MINERALS, Intervenors-Appellants, and THE LAW OFFICES OF GEORGE A. BARTON, PC, Movant-Appellee, Case No. 19-1120 (10th Cir.), Judge Carolyn B. McHugh of the U.S. Court of Appeals for the Tenth Circuit affirmed the district court's order dismissing the Lindauers' motion to intervene, approving the Sefcovic settlement agreement. The appeal arises out of a class action contract dispute. The Appellants intervened in the district court, seeking to dismiss the action for lack of federal subject matter jurisdiction. Through two separate motions to dismiss, the briefing from both parties confused the bounds of federal subject matter jurisdiction and conflated that concept with the doctrines of abstention and comity, and with matters of venue and forum. Despite the misdirection, the district court properly exercised jurisdiction and rebuffed the Appellants' attempts to unwind nearly 18 months of class action litigation. Appellee-Defendant TEP operates wells that produce natural gas in Colorado. These wells are subject to various leases or royalty agreements under which the owners of such instruments receive a share of profits from the sale of natural gas. Appellant-Intervenors Ivo Lindauer, Sidney Lindauer, Ruther Lindauer, and Diamond Minerals LLC ("Intervenors"), are the representatives for a class of royalty owners who filed suit in 2006 in Colorado state court, alleging that TEP had underpaid royalties on various leases and royalty agreements. In 2008, TEP and the Lindauer class entered into a settlement agreement purporting to "resolve all class claims relating to past calculation of royalties" and to "establish certain rules to govern future royalty" payments. The Lindauer SA declared that the state court would retain "continuing jurisdiction" to enforce provisions of the settlement related to "the description of past and future royalty methodologies." The state court also issued a judgment certifying the class and approving the Lindauer SA. Approximately eight years passed, seemingly free of incident. But on July 18, 2017, a subset of the Lindauer class ("Sefcovic class") initiated the action against TEP in Colorado state court, alleging that TEP had calculated and paid royalties in a manner inconsistent with the Lindauer SA and contrary to the underlying royalty agreements. TEP removed the case to federal court on August 17, 2017. The parties engaged in discovery and ultimately reached a proposed class settlement. One year later, on Aug. 16, 2018, the district court2 issued an order preliminarily approving the settlement and permitting the notice to be mailed to the Sefcovic class members. Less than a month later, on Sept. 14, 2018, the Lindauers filed a "Motion to Enforce Court Order and Settlement Agreement" in Garfield County District Court -- the Colorado state court that had entered the stipulated judgment in the Lindauer litigation. That motion made no mention of the federal action alleging breaches of the Lindauer SA -- initiated fourteen months prior and having reached preliminary approval of a class settlement agreement. The state court initially ordered TEP to show cause why it should not be held in contempt for breaching the terms of the Lindauer SA but subsequently stayed the proceedings to "await the federal district court's ruling on pending motions. On Sept. 28, 2018, the Lindauers filed a motion to intervene in the federal district court proceeding. Before the district court ruled on the motion to intervene, the Lindauers filed a motion to dismiss, arguing the court lacked subject matter jurisdiction based on the stipulated judgment's clause retaining "continuing jurisdiction" in the state court. The district court then dismissed the action without prejudice based on its independent assessment of subject matter jurisdiction and largely because of the state court's retention of jurisdiction over the Lindauer SA. It therefore dismissed the Lindauers' motion to intervene as moot and vacated the fairness hearing on the proposed Sefcovic SA. TEP filed a motion to reconsider, arguing the district court's jurisdiction was proper despite the state court's retention of jurisdiction. The Lindauers filed a renewed motion to intervene, which the district court granted, and a renewed motion to dismiss, arguing again that the district court lacked subject matter jurisdiction and/or should have abstained from presiding over the case under Younger or Colorado River abstention. The district court granted TEP's motion to reconsider and reinstated the case on Jan. 23, 2019. In doing so, it clarified that in its original order it believed dismissal would be appropriate here under principles of comity and wise judicial administration akin to the doctrine set forth in Colorado River. But because this doctrine is non-jurisdictional and thus "not an absolute obligation," the district court determined that dismissal was inappropriate for a variety of reasons, including that the Intervenors were aware of this litigation but opted to intervene only after preliminary approval of the settlement agreement. The district court subsequently approved the Sefcovic SA, and the Intervenors timely appealed the district court's determination that it possessed subject matter jurisdiction. In seeking dismissal of the action, the Intervenors relied primarily on two similar provisions appearing in the Lindauer SA and the stipulated judgment adopted by the state court. Those provisions declare that the state court retains "continuing jurisdiction" to enforce the Lindauer SA and the stipulated judgment. Intervenors argued below, and they maintain on appeal, that those provisions vest "exclusive jurisdiction over the parties and subject matter" in the state court. Because many of their arguments rest in whole or in part on the Intervenors' erroneous assertion that the district court was without subject matter jurisdiction, Judge McHugh begins with a discussion of subject matter jurisdiction. He then proceed to distinguish that concept from doctrines of abstention and matters of venue and forum, and concludes by applying these concepts to the appeal. The only inquiries remaining in the appeal are (1) whether the district court, pursuant to a doctrine of abstention or comity, should have stayed or dismissed this action in favor of the state court litigation; and (2) whether the district court abused its discretion in denying Intervenors' motion to dismiss based on forum non conveniens. Because Intervenors have not established that the district court's orders interfered with a civil proceeding "uniquely in furtherance of the state courts' ability to perform their judicial functions," Judge McHugh holds that the district court properly found that Younger abstention did not apply. In addition, because neither the forum selection clause in the Lindauer SA nor the related language in the stipulated judgment is mandatory, the district court did not abuse its discretion in declining to dismiss the case under the doctrine of forum non conveniens. For the reasons he articulated, Judge McHugh concluded that the district court properly determined that it possessed subject matter jurisdiction over the action, correctly declined to abstain under Younger, and rightly found "no indication that the parties contemplated the state court to be the exclusive forum" in which to litigate their contractual disputes. The judgment is affirmed. A full-text copy of the Court's March 18, 2020 Opinion is available at https://is.gd/hycJ1r from Leagle.com. David G. Seely -- dseely@fleeson.com -- Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, Kansas (Thomas D. Kitch, Gregory J. Stucky, Ryan K. Meyer, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, Kansas; George Robert Miller , G. R. Miller, P.C., Durango, Colorado; and Nathan A. Keever -- keever@dwmk.com -- Dufford, Waldeck, Milburn & Krohn, LLP, Grand Junction, Colorado, with him on the briefs) for Intervenors-Appellants. Christopher A. Chrisman -- cachrisman@hollandhart.com -- Holland & Hart LLP, Denver, Colorado (John F. Shepherd, P.C., Holland & Hart LLP, Denver, Colorado; George A. Barton -- gab@georgebartonlaw.com -- and Stacy A. Burrows -- stacy@georgebartonlaw.com -- Law Offices of George A. Barton, P.C., Overland Park, Kansas, with him on the brief), for Appellees. TITAN RESTAURANT: Bid to Certify Classes in Knoll FLSA Suit Denied ------------------------------------------------------------------ In the case, SHERRY A. KNOLL individually and on behalf of all others similarly situated, Plaintiff, v. TITAN RESTAURANT GROUP, LLC d/b/a DONATOS PIZZA, Defendant, Case No. 1:18-cv-02632-JRS-DML (S.D. Ind.), Judge James R. Sweeney, II of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, denied (i) the Plaintiff's Motion to Certify Combined Class Action and FLSA Collective Action; (ii) the Plaintiff's Motion for Approval of Class and Collective Action Notice and FLSA Opt In Form; and (ii) the Defendant's Motion to File Surreply to Plaintiff's Reply in Support of her Motion to Certify a Combined Class Action and FLSA collective Action. Titan is a franchisee of Donatos Pizza. It operates 41 restaurants in Ohio, Kentucky, and Indiana. Knoll worked as a part-time delivery driver at Titan's Greenwood, Indiana restaurant from May 1, 2018 to July 9, 2018. She was injured at work on July 9, 2018 and took medical leave. Except for two days that Knoll returned to work -- Dec. 12 and 13, 2018 -- she has not worked for Titan since July 9, 2018 and has since been collecting workers' compensation. Knoll brings claims against Defendant Titan for violations of the Fair Labor Standards Act of 1938 ("FLSA"), and the Indiana Wage Payment Statute. Knoll was a part-time delivery driver for Titan for approximately three months. Knoll alleges, on behalf of herself and similarly situated employees, that Titan illegally deducted from her wages, failed to ensure its employees received a minimum wage on a weekly basis, paid employees less than minimum wage during new employee orientation, did not compensate employees for tips paid on credit cards, cancelled credit card tips when refunding orders, required Knoll and other tip-credit employees to perform non-tipped activities, shared tipped employees' tips with non-tipped employees, and did not reimburse Knoll and other delivery drivers for their food deliveries. Knoll alleges that the following FLSA violations prevent Titan from claiming a tip-credit: (1) failing to ensure drivers were paid enough in tips to earn a minimum wage on a workweek basis, (2) retaining tips paid to drivers through credit cards, (3) refunding customer credit card transactions, which included tips intended for drivers, (4) failing to reimburse drivers for actual miles driven, and (5) requiring drivers to share their tips with non-tipped Titan employees. Knoll now seeks certification of a FLSA collective action and a Federal Rule of Civil Procedure 23(b)(3) class action. She seeks to conditionally certify the following collective action: Present and former Titan Delivery Drivers who worked at any time from Aug. 27, 2015 to the present and who were not timely paid a full minimum wage at the rate of at least $7.25 per hour in one or more work weeks. Knoll alleges that seven of Titan's pay practices violate the FLSA and entitle her to conditional certification of her collective action. Judge Sweeney holds that Titan's failure to calculate its employees' wages on a workweek basis will only violate the FLSA if an employee was actually paid less than the minimum wage during a workweek. Because Knoll was paid at or above minimum wage each week, she does not have standing to assert this claim on behalf of other employees. Put otherwise, Knoll is not "similarly situated" to any employees who might have been paid less than minimum wage as a result of Titan's biweekly calculation process. Next, while the checkout sheets do not represent that Titan was retaining its drivers credit card tips, Knoll testified, without offering any supporting evidence, that she was not paid her tips at the end of each night, and that whatever money she collected from customers during her delivery runs, she had to give back to the store. But Knoll can only identify one other Titan employee who alleged he "had to pay more back than what he earned" at the end of his shift. Knoll, in her deposition, but nowhere in her Amended Complaint or briefs, states that the other employee was named Steve, but did not know his last name. Without an accompanying affidavit or declaration from Steve, Judge Sweeney cannot certify a collective action based on anecdotal evidence and speculation. Knoll also submits her own testimony, in which she claims she saw the manager and assistant managers refund entire credit card transactions, including any tip. However, Knoll does not provide the court with testimony of any other Titan delivery drivers who had their tips cancelled during a refund, nor does she establish that Titan had a policy of returning tips to customers when they requested a refund. As stated, Judge Sweeney cannot certify a collective action based on anecdotal evidence and speculation. Lastly, Knoll argues that Titan is prohibited from claiming a tip credit because it required her to share her tips with managers and cooks who are non-tip-credit employees. The anecdotal evidence submitted by Knoll, that sometimes, non-tip-credit employees would receive more tips than her, is not sufficient to make even a threshold showing that she and other Titan employees were subject to a policy that mandated tip-sharing with back of the house employees or managers. Knoll asserts that Titan has a policy of paying its delivery driver employees below minimum wage when they undergo the onboarding process. Employees are paid at their hourly rate for orientation, so, for example, delivery drivers would be paid at $4.05 an hour. Knoll claims however, and Titan concedes, that she was not paid at all for the time she spent going through the orientation process on May 1, 2018. She is therefore not similarly situated to other Titan employees who were paid $4.05 an hour for orientation, and she offers no evidence of any other Titan employees who similarly were not paid during the orientation process. Thus, Knoll does not have standing to assert this claim on behalf of a collective action, rules the Court. Judge Sweeney makes no decision as to whether adjusting for an overpayment is a kickback at all, or whether this one-time adjustment to employees' paychecks otherwise violates the FLSA. However, he finds that the evidence before the Court does not demonstrate a common pay plan or policy that violated the FLSA. Knoll has not set forth any evidence that Titan has made negative adjustments to its employees' pay checks on more than one occasion or even that Titan has a policy of making such deductions when payroll errors are made. It is not even a "modest factual showing" of a common plan or policy. Because Knoll has not shown that she and similarly situated employees were victims of a common policy that allegedly violated the FLSA, conditional certification of her proposed collective action is not appropriate. Knoll seeks to certify the following class under the Indiana Wage Payment Statute: Present and former Titan Delivery Drivers who worked in the State of Indiana at any time from Aug. 27, 2016 to the present and who, as shown by Titan's own pay roll records, were not timely paid regular wages on one or more occasions based upon wage deductions taken by Titan in a category it called Adjustment. Knoll alleges that the negative adjustment on her paycheck was a "wage assignment" in violation of IND. CODE Section 22-2-6-2(a). Employers can only assign its employees' wages if "(1) the assignment is: (A) in writing; (B) signed by the employee personally; (C) by its terms revocable at any time by the employee upon written notice to the employer; and (D) agreed to in writing by the employer." Because Knoll has not met Rule 23's numerosity requirement, Judge Sweeney need not address Rule 23's other prongs. Knoll is not entitled to class certification of her Indiana Wage Payment Statute claim. Collective and class action certification is not warranted even excluding the declarations of Simon, Bowman, Rich and Mills, which the Judge did not consider, so she need not reach the issue. For the reasons explained, Judge Sweeney denied (i) the Plaintiff's Motion to Certify Combined Class Action and FLSA Collective Action; and (ii) their Motion for Approval of Class and Collective Action Notice and FLSA Opt In Form. The Plaintiff's objections to the declarations of Stacho and Thompson are overruled. Lastly, the Judge denied the Defendant's Motion to File Surreply to Plaintiff's Reply in Support of her Motion to Certify a Combined Class Action and FLSA Collective Action. A full-text copy of the Court's March 18, 2020 Order is available at https://is.gd/WlDFWU from Leagle.com. SHERRY A. KNOLL, individually and on behalf of all others similarly situated, Plaintiff, represented by Brian R. Drummy -- bdrummy@lawbr.com -- BUNGER & ROBERTSON & Robert Peter Kondras, Jr., HASSLER KONDRAS MILLER LLP. TITAN RESTAURANT GROUP, LLC, doing business as DONATOS PIZZA, Defendant, represented by Brendan P. Feheley -- bfeheley@keglerbrown.com -- KEGLER, BROWN, HILL RITTER, Christopher S. Stake -- cstake@delaneylaw.net -- DELANEY & DELANEY LLC, Kathleen Ann DeLaney -- kathleen@delaneylaw.net -- DELANEY & DELANEY LLC & Robert G. Cohen -- rcohen@keglerbrown.com -- KEGLER BROWN HILL RITTER. TODD TAYLOR CUSTOM: Morales Seeks to Recover Unpaid Back Wages -------------------------------------------------------------- Joaquin Morales, individually and on behalf of others similarly situated v. TODD TAYLOR CUSTOM TRIM, LLC, and TODD L. TAYLOR, Case No. 3:20-cv-00857-E (N.D. Tex., April 14, 2020), is brought against the Defendants to recover back wages, an equal amount of liquidated/double damages, attorney fees, interest, and costs under the Fair Labor Standards Act. The Plaintiff says he regularly worked more than 40 hours per workweek and, when he did, the Defendants did not pay him an overtime premium of at least one and one-half times his regular rate of pay for hours worked over 40 in a workweek. The Defendants intentionally misclassified the Plaintiff as an independent contractor in an effort to avoid paying the Plaintiff overtime compensation, says the complaint. The Plaintiff worked for the Defendants as hourly-paid construction employee. T&T is in the business of installing custom cabinets, trim, moldings, and finish out in new homes, commercial sites, medical facilities, specialized memory care and skilled nursing facilities, and more.[BN] The Plaintiff is represented by: Barry S. Hersh, Esq. HERSH LAW FIRM, PC 3626 N. Hall St., Suite 800 Dallas, TX 75219-5133 Phone: (214) 303-1022 Fax: (214) 550-8170 Email: barry@hersh-law.com TRANSAMERICA PREMIER: Alvarez EFTA Suit Moved to C.D. California ---------------------------------------------------------------- The class action lawsuit captioned as EMITERIO MARK ALVAREZ, individually and on behalf of all others similarly situated v. TRANSAMERICA PREMIER LIFE INSURANCE COMPANY, and DOES 1-10, Case No. CIV-DS-2000021 (Filed Jan. 10, 2020), was removed from the Superior Court of California for the County of San Bernardino to the U.S. District Court for the Central District of California on April 1, 2020. The Central District of California Court Clerk assigned Case No. 5:20-cv-00658 to the proceeding. The Plaintiff asserts a federal cause of action against TPLIC for purported violations of Electronic Funds Transfer Act. TPLIC operates as an insurance firm. The Company offers accidental and health insurance, annuity, and single premium insurance plans.[BN] The Defendants are represented by: Vivian I. Orlando, Esq. Justin M. Penn, Esq. Zina Yu, Esq. HINSHAW & CULBERTSON LLP 633 West 5th Street, 47th Floor Los Angeles, CA 90071-2043 Telephone: 213 680-2800 Facsimile: 213 614-7399 E-mail: vorlando@hinshawlaw.com jpenn@hinshawlaw.com zyu@hinshawlaw.com TRUEFIRE LLC: Faces Llamas Suit in M.D. Florida Over Data Breach ---------------------------------------------------------------- Emmanuel Llamas, an individual and on behalf of himself and all others similarly situated v. TRUEFIRE, LLC, and TRUEFIRE, INC., Case No. 8:20-cv-00857 (M.D. Fla., April 14, 2020), is brought on behalf of all persons whose personally identifiable information was compromised due to the Defendants' negligence and violations of several California and Florida statutes. The data breach is the result of the Defendants' failure to: adequately protect their users' PII; warn users of their inadequate information security practices; and effectively monitor TrueFire's websites, apps, and ecommerce platforms for security vulnerabilities and incidents, the Plaintiff alleges. On March 9, 2020, TrueFire began notifying customers and various state Attorneys General about a widespread data breach that occurred from August 3, 2019, to January 14, 2020. Hackers not only "scraped" many of TrueFire's customers' names from the website by infecting it with malware, they also stole customers' addresses, payment card numbers, CVV security codes, and credit card expiration dates ("PII"). The criminals obtained everything they needed to illegally use TrueFire's customers' credit cards to make fraudulent purchases, and to steal the customers' identities. According to the complaint, not only did hackers skim TrueFire's customers' PII, on information and belief the stolen names and card information are now for sale on the dark web. That means the Breach worked. Hackers accessed and then offered for sale the unencrypted, unredacted stolen PII to criminals. Because of Defendants' Breach, customers' PII is still available on the dark web for criminals to access and abuse. TrueFire's customers face a lifetime risk of identity theft. The Plaintiff contends that the PII was compromised due to TrueFire's negligent and/or careless acts and omissions and the failure to protect customers' data. In addition to TrueFire's failure to prevent the Breach, the Defendants failed to detect the Breach for over five months, and when they did discover the Breach on January 10, 2020, it took them almost two more months to report the Breach to the affected customers on March 9, 2020, says the complaint. Plaintiff Llamas purchased TrueFire classes in 2019 using his debit card, including on October 11, 2019. TrueFire specializes in selling online guitar lessons on TrueFire's mobile apps and popular websites, including http://www.truefire.com/,http://www.truefirestudios.com/,and http://www.jamplay.com/.[BN] The Plaintiff is represented by: John A. Yanchunis, Esq. Ryan J. McGee, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Phone: (813) 223-5505 Fax: (813) 223-5402 Email: jyanchunis@forthepeople.com rmcgee@forthepeople.com - and - M. Anderson Berry, Esq. Leslie Guillon, Esq. CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORPORATION 865 Howe Avenue Sacramento, CA 95825 Phone: (916) 777-7777 Fax: (916) 924-1829 Email: aberry@justice4you.com lguillon@justice4you.com UBER TECHNOLOGIES: Capriole Suit Moved From D. Mass. to N.D. Cal. ----------------------------------------------------------------- The class action lawsuit captioned as JOHN CAPRIOLE, individually and on behalf of all others similarly situated v. UBER TECHNOLOGIES, INC. and DARA KHOSROWSHAHI, Case No. 1:19-cv-11941 (Filed Sept. 12, 2019), was transferred from the U.S. District Court for the District of Massachusetts to the U.S. District Court for the Northern District of California (San Francisco) on April 1, 2020. The Northern District of California Court Clerk assigned Case No. 3:20-cv-02211-EMC to the proceeding. The case is assigned to the Hon. Judge Edward M. Chen. According to the complaint, Uber has misclassified its drivers, including the Plaintiff, as independent contractors when they should be classified under Massachusetts law as employees. Based on the drivers' misclassification as independent contractors, Uber has unlawfully required drivers to pay business expenses in violation of Mass Gen. Laws. Uber is a car service, which engages thousands of drivers in the Commonwealth of Massachusetts, who can be hailed and dispatched through a mobile phone application to transport riders. Uber is based in San Francisco, California, and it does business across the United States and extensively throughout Massachusetts.[BN] The Plaintiff is represented by: Shannon Liss-Riordan, Esq. Adelaide H. Pagano, Esq. Anne Kramer, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: sliss@llrlaw.com apagano@llrlaw.com akramer@llrlaw.com The Defendants are represented by: Blaine H. Evanson, Esq. Brandon Stoker, Esq. Heather Richardson, Esq. Joshua S. Lipshutz, Esq. Theane Evangelis, Esq. GIBSON DUNN AND CRUTCHER LLP 333 S Grand Ave. Los Angeles, CA 90071 Telephone: (213) 229-7228 Facsimile: (213) 229-7520 E-mail: bevanson@gibsondunn.com HRichardson@gibsondunn.com jlipshutz@gibsondunn.com tevangelis@gibsondunn.com UNION SECURITY: Licea Suit Seeks to Recover Unpaid Overtime Wages ----------------------------------------------------------------- Alexis Licea, and other similarly-situated individuals v. UNION SECURITY SAFETY, CORP, JOSE A. VEGA CAMPOS and REYNIER VEGA CONDE, individually, Case No. 1:20-cv-21566-UU (S.D. Fla., April 14, 2020), is brought to recover from the Defendants unpaid overtime compensation, retaliatory damages, liquidated damages, and the costs and reasonable attorney's fees under the Fair Labor Standards Act. According to the complaint, the Plaintiff was not paid minimum wages, or/and worked in excess of 40 hours during one or more weeks on or after February 2018, without being compensated pursuant to the FLSA. The Plaintiff is owed half-time overtime for hours in excess of 40, that were paid to him at his regular wage-rate, and he is owed time and one half his regular rate for a substantial number of hours that were not paid to him at any rate, not even the minimum wage rate. The Plaintiff worked as a security guard for the Defendants. Union Security is a Florida corporation that provides security services to businesses, residential communities, supermarkets, etc.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com UNITED STATES: Ninth Circuit Appeal Initiated in Sai Class Suit --------------------------------------------------------------- Plaintiff SAI filed an appeal from a Court ruling in the lawsuit titled Sai v. David Pekoske, et al., Case No. 4:16-cv-01024-JST, in the U.S. District Court for the Northern District of California, Oakland. As previously reported in the Class Action Reporter, a class action lawsuit has been filed against U.S. government departments on February 29, 2016, captioned Sai, on Plaintiff's own behalf, and on behalf of all those similarly situated v. David Smith, Jim Adams, Champagne Ellison, Covenant Aviation Security (CAS), Transportation Security Administration (TSA), Department of Homeland Security (DHS), United States of America, Kimberly Walton, William McKenney, Seena Foster, Zachary Bromer, Jeremy Buzzell, and Erika Lucas. Covenant Aviation Security (CAS) provides airport security services under the Transportation Security Administration's Screening Partnership Program (SPP). In 2002, CAS was awarded multiple contracts for providing commercial screening services to the TSA under the privatization pilot program initiated by the Aviation and Transportation Security Act. CAS mobilized and hired 1,200 screening personnel at San Francisco International Airport and the Tupelo Regional Airport within six weeks of contract award. The appellate case is captioned as Sai v. David Pekoske, et al., Case No. 20-15615, in the United States Court of Appeals for the Ninth Circuit. Plaintiff-Appellant SAI, on Plaintiff's own behalf, and on behalf of all those similarly situated, appears pro se.[BN] Defendants-Appellees, DAVID P. PEKOSKE, in his official capacity as Administrator of the Transportation Security Administration (TSA) and KEVIN K. MCALEENAN, in his official capacity as acting Secretary of the United States Department of Homeland Security (DHS), are represented by: Wendy Marie Garbers, Esq. DOJ-USAO 450 Golden Gate Avenue San Francisco, CA 94102 Telephone: (415) 436-6475 UNITED VALET: Denies Hourly Workers' Earned Wages, Afarinesh Says ----------------------------------------------------------------- ARAM AFARINESH, an individual, on behalf of herself, all other aggrieved employees, and the general public v. UNITED VALET PARKING, INC., a California corporation, and DOES 1 through 25, inclusive, Case No. 20STCV12714 (Cal. Super., Los Angeles Cty., April 1, 2020), challenges the Defendants' employment practices denying their non-exempt hourly workers earned wages, including overtime pay, under the California Labor Code Private Attorneys General Act of 2004. The Plaintiff contends that the Defendants require their employees to be present and perform work in excess of eight hours per day and/or 40 hours per work week, but fail to pay them overtime wages accordingly, and further fail to pay such non-exempt employees for all straight time hours they worked. United Valet was founded in 1985. The Company's line of business includes providing miscellaneous personal services.[BN] The Plaintiff is represented by: Michael H. Boyamian, Esq. Katrina Castillo Espina, Esq. Alfred Movsesyan, Esq. BOYAMIAN LAW, INC. 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203 Telephone: (818)547-5300 Facsimile: (818)547-5678 E-mail: michael@boyamianlaw.com katrina@boyamianlaw.com alfred@boyamianlaw.com - and - Edgar Manukyan, Esq. MANUKYAN LAW FIRM, APC 520 East Wilson Avenue, Suite 200 Glendale, CA 91206 Telephone: (818)559-4444 Facsimile: (888)746-4420 E-mail: edgar@manukyanlawfirm.com WHOLE FOODS: ShiKai CBD Lotion Can't Be Legally Sold, Figura Says ----------------------------------------------------------------- JENNIFER FIGURA v. WHOLE FOODS MARKET GROUP, INC., d/b/a WHOLE FOODS MARKET, Case No. CACE-20-005708 (Fla. Cir., Broward County, March 31, 2020), is brought on behalf of the Plaintiff and all others similarly situated in Florida arising from the Defendant's alleged deceptive, misleading and unfair practices relating to the sale of CBD Body Lotion Product. The Plaintiff alleges that the Defendant's ShiKai(TM) CBD Body Lotion Product cannot lawfully be sold because it is an unapproved new drug. The Plaintiff points out that the Product, according to its explicit advertising, marketing, labeling and packaging, is clearly intended to be applied topically for use in the cure, mitigation, treatment, and/or intended to affect the structure or any function of the body, thus, the Products are drugs under section 201 (g)(1) of the Food, Drug, and Cosmetic Act, 21 U.S.C. 321 (g)(1). On March 26, 2020, the Plaintiff purchased ShiKai(TM) CBD Body Lotion 750 MG, 6 FL OZ/175 ML bottle, from the Defendant located at 2000 N. Federal Highway, in Fort Lauderdale, Florida. Whole Foods was founded in 1990. The Company's line of business includes the retail sale of a range of canned foods and dry goods.[BN] The Plaintiff is represented by: Howard W. Rubinstein, Esq. THE LAW OFFICE OF HOWARD W. RUBINSTEIN 1281 N. Ocean Dr., Apt 198 Singer Island, FL 33404 Telephone: 832 715 2788 Facsimile: 561 688 0630 E-mail: howardr@pdq.net YKF FOODS: Vari Seeks Unpaid Minimum Wages for Delivery Drivers --------------------------------------------------------------- CHARLES A. VARI, on behalf of himself and others similarly situated v. YKF FOODS, INC. d/b/a HUNGRY HOWIE'S, K C & F S INC. d/b/a HUNGRY HOWIE'S, and YASSER KAZBOUR, individually, Case No. 105639314 (Fla. Cir., Hillsborough Cty., March 30, 2020), seeks to recover unpaid minimum wages for the Plaintiff and his fellow delivery drivers that have been systemically denied minimum wages to which they were entitled under the Florida Constitution. The Plaintiff worked for the Defendants as a pizza delivery driver from August 9, 2018, until September 29, 2018. The Defendants operate a franchise chain in the United States.[BN] The Plaintiff is represented by: Marc R. Edelman, Esq. George G. Triantis, Esq. MORGAN & MORGAN, P.A. 201 North Franklin Street, Suite 700 Tampa, FL 33602 Telephone: 813-223-5505 Facsimile: 813-257-0572 E-mail: MEdelman@forthepeople.com GTriantis@forthepeople.com ZOOM VIDEO: Lawton Sues Over Deceptive Advertising of Software -------------------------------------------------------------- Robert Lawton, as an individual, on behalf of himself, the general public and those similarly situated v. ZOOM VIDEO COMMUNICATIONS, INC., Case No. 3:20-cv-02592-SK (N.D. Cal., April 14, 2020), arises from the Defendant's: deceptive practices relating to its video and audio conferencing software, and false and misleading advertising that violates the Business and Professions Code and the Consumer Privacy Act. Zoom promises customers that its products allow them to "meet securely" though "end-to-end encryption for all meetings, role-based user security, password protection, waiting rooms, and place attendee on hold." Zoom's chief product is "Zoom Meetings." The Plaintiff alleges that Zoom consistently violates its duty to its over 200 million users to implement and maintain reasonable security practices, fails to disclose known security risks, and affirmatively misleads consumers about the security benefits of its product. In particular, the Plaintiff says, Zoom collects private information about its users and discloses this information to Facebook, LinkedIn, other users, and other third parties. The Plaintiff asserts that Zoom intentionally omits this fact from its privacy policy and misleads reasonable consumers to believe that the information they share in Zoom meetings is private. The Plaintiff notes that Zoom claims to offer users the privacy and protection of end-to-end encryption, the most secure form of internet communication. In reality, the Plaintiff adds, Zoom does not offer end-to-end encryption, and its software cannot even support such security measures. Instead, Zoom accesses private information that users share on the Zoom network, says the complaint. Zoom has also failed to disclose or remedy known vulnerabilities that allow hackers and other websites to forcibly access a user's webcam, join a user to a Zoom call without his or her permission, and access recordings of Zoom meetings. The Plaintiff used and/or purchased Zoom's product believing that the product was secure and that their information was safe. Zoom provides a popular online platform for video and audio conferencing, collaboration, chat, and webinars.[BN] The Plaintiff is represented by: Adam J. Gutride, Esq. Seth A. Safier, Esq. Marie A. McCrary, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Phone: (415) 789-6390 Facsimile: (415) 449-6469 ********* 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. 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