/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/161026.mbx C L A S S A C T I O N R E P O R T E R Wednesday, October 26, 2016, Vol. 18, No. 214 Headlines AAC HOLDINGS: Certification of Class Sought in "Kasper" Suit ABENDROTH & RUSSELL: 8th Circuit Appeal Filed in "Jackson" Suit ALL COAST: "Adams" Labor Lawsuit Transferred to W.D. Louisiana AMERICAN CAMPUS: Faces "Fellows" Suit in E.D. of Missouri ALTERNATIVE EARTHCARE: Faces "Ibarra" Suit in E.D. of New York ANSWER FINANCIAL: Parker Seeks Class Certification of 2 Classes APPLE HOSPITALITY: Court Partially Dismisses "Moses" Complaint ARIEL QUIROS: Asks Judge to Unfreeze Assets to Pay Legal Fees ARROWHEAD RESEARCH: Strogoff Appeals Ruling in Securities Suit ARTISAN PRESERVATION: Faces "Martinez" Suit Under FLSA, NY Laws BANK OF NEW YORK: Status Conference Held in "Henderson" BEACH ON DUVAL: "Monticello" Lawsuit Alleges Violation of FLSA BLISTEX: Faces Class Action Over Odor-Eaters Insoles BOIRON INC: Conrad Appeals N.D. Ill. Decision to Seventh Circuit BOZEMAN, MT: Breaks Impact Fee Spending Rules, Audit Says CALEF & ASSOCIATES: Faces "Meyerson" Suit in D.N.J. CALIBER HOME: Court Dismisses "Carbone" Debt Collection Suit CAPITAL ADVANCE: Faces "Hughson" Suit in District of Oregon CAPITAL ADVANCE: Class Certification Sought in "Redman" Suit CAVALRY STAFFING: Copper Seeks to Certify Class of Service Agents CHRYSLER CAPITAL: Garcia Usury Claims Dismissed with Prejudice CJ AMERICA: $1.5MM Settlement in "Petersen" Has Final Approval CJ AMERICA: Must Pay $338,270 for Petersen Counsel Fees and Costs CLERMONT YORK: "Gerard" Suit Can Proceed as Class COLD SPRING: "Avila" Suit Alleges Violation of Calif. Wage Laws COMCAST CORP: FCC Imposes $2.3MM Penalty Over Customer Charges COMENITY BANK: O'Boyle Seeks Certification of Class Under Damasco COOK COUNTY, IL: Poor Inmates File Class Action Over High Bail CVS PHARMACY: Guarnieri Dismissed as Plaintiff DELL INC: Grant & Eisenhofer's Fees in Appraisal Suit Approved DENOVUS CORPORATION: Faces "Milton" Suit in E.D. of Kentucky DENTAL EXPRESSIONS: Faces "Morante" Suit Alleging FLSA Violations DESIGNED RECEIVABLE: Goodson Appeals C.D. Cal. Ruling to 9th Cir. DITECH FINANCIAL: Faces "Greisman" Suit in Eastern Dist. of NY DOLCO FOOD: Faces "Hamdan" Suit in Eastern District of New York EAST CHICAGO, IN: Class Certification in "Gutierrez" Suit Granted ELTMAN LAW: Faces "Tabor" Suit in District of New Jersey ERIE ISLANDS RESORT: Class Certification of Gordon Suit Affirmed FABFITFUN INC: "Byerson" Suit Alleges Violation of Gift Card Laws FAMILY LIFE CARE: Seeks 11th Cir. Review of Ruling in "Hughes" FCA US: "Andollo" Suit Transferred from C.D. Cal. to E.D. Mich. FLINT, MI: ACLU to File New Class Action Over Water Crisis FORD MOTOR: Settles Explorer Owners' Class Action Over Fumes FREEPORT-MCMORAN OIL: Garcia Appeals C.D. Cal. Ruling to 9th Cir. GODADDY.COM: Bennett's Class Cert. Bid Denied as Premature GOGO INC: Salameno Seeks Review of E.D.N.Y. Ruling to 2nd Circuit GOOGLE INC: Fillekes Wins Certification of ADEA Class HERTZ CORPORATION: Faces "Schwartz" Suit in C.D. of California HIRERIGHT INC: Settlement in "Watkins" Suit Granted Final Okay HOSPITAL SISTERS: Faces "Holcomb" Suit Alleging ERISA Violation HP INC: Sued in California Over Printers' Software Update ILLINOIS: To Expand Children's Access to Mental Health Services ILLINOIS, USA: 7th Circuit Appeal Filed in "Kolton" Class Suit JAMES HARDIE: NZ Court Allows Cladding Class Action to Proceed JESSE CASARES: JT's Frames Files Placeholder Class Cert. Bid JP MORGAN: "Hall" RESPA Lawsuit Transferred to S.D. Florida KAYABA INDUSTRY: Accused of Fixing Auto Shock Absorber Prices KEEFE CORP: Keenan Cofield Must Pay $13.94 Initial Filing Fee KENTUCKY TEACHERS' RETIREMENT: Court Dismisses "Wieck" Claims LEAPFROG ENTEPRISES: Judge Extends Case Management Conference LEXINGTON-FAYETTE URBAN: Court Dismisses "Harris" Class Complaint LONG ISLAND BONE: Seeks 2nd Cir. Review of Order in "Pray" Suit LUMBER LIQUIDATORS: "Bolin" Suit Consolidated in MDL 2743 LUMBER LIQUIDATORS: "Coburn" Suit Consolidated in MDL 2743 LUMBER LIQUIDATORS: "Coleman" Suit Consolidated in MDL 2743 LUMBER LIQUIDATORS: "Florez" Suit Consolidated in MDL 2743 LUMBER LIQUIDATORS: "Gonzalez" Suit Consolidated in MDL 2743 LUMBER LIQUIDATORS: "Chestnut" Suit Consolidated in MDL 2743 LUMBER LIQUIDATORS: "Masters" Suit Consolidated in MDL 2743 LUMBER LIQUIDATORS: "Norris" Suit Consolidated in MDL 2743 LUXURY SHUTTLE: Faces "Johnson" Suit Under California Labor Code MACQUARIE: Seeks to Defeat U.S. Hedge Fund Class Action MACY'S: Shoplifting Class Action Pending in New York MAPLEBEAR INC: No Sanctions Imposed in "Cobarruviaz" Suit MARION COUNTY, IN: Driver Appeals S.D. Ind. Ruling to 7th Circuit MDL 1738: 2nd Cir. Dismisses Vitamin C Antitrust Suit MDL 2036: Arbitration Bid in Overdraft Litigation Denied MDL 2665: Court Narrows Claims in "Slack-Fill" Lawsuits MEMPHIS: Street-Sweeping Policy Unconstitutional, 6th Cir. Says NATIONAL COLLEGIATE: "Walker" Suit Included in MDL 2492 NBTY INC: Judge Wants First Amended Complaint Filed in "Tovar" NFL: Ex-Eagles Linebacker Files Suit Over Injury OCEAN SPRAY: "Colvin" Suit Alleges FLSA, Pa. Wage Law Violations OHIO: 6th Cir. Reverses Trial Court Ruling in Medicaid Suit ORTHOTOUCH: Appeal Aims to Delay Highveld Investor Class Action PDR NETWORK: Carlton Seeks 7th Circuit Review of S.D. W.Va. Ruling PERFORMANT RECOVERY: Faces "Cahill" Suit in S.D. of California POWER HOME: Settles TCPA Class Action for $5.2 Million PROFESSIONAL CLAIMS: Faces "Covino" Suit in E.D. of New York PVH CORP: Court Preliminarily Approves "Scott-George" Settlement RACKSPACE HOSTING: Faces "Luger" Suit Over Sale to Apollo SAMSUNG ELECTRONICS: "Coghlan" Lawsuit Alleges False Advertising SAMSUNG ELECTRONICS: Faces "Waudby" Suit Over Faulty Galaxy Note7 SCHNEIDER NATIONAL: Settles Truckers' Wage Suit for $28 Million SEDGWICK: Gender Discrimination Case May Head to Arbitration SIMONTON BUILDING: Faces "Kiefer" Suit in District of Minnesota SOCIAL SECURITY: Class Certification Bid in "Robertson" Denied SOUTH AFRICA: Unpaid Parole Board Members Launch Legal Action SOUTHERN RESPONSE: Hearing Set in Earthquake Class Action SPROUTS FARMERS: "Castellano" Suit Consolidated in MDL 2731 SPROUTS FARMERS: "Hernandez" Suit Consolidated in MDL 2731 SPROUTS FARMERS: "Porras" Suit Consolidated in MDL 2731 STEVE SHURHIN: Faces "Johnson" Suit Under FLSA, Col. Wage Laws SUNEDISON INC: "Horowitz" Suit Consolidated in MDL 2742 TEMPUR SEALY: Ninth Circuit Appeal Filed in "Todd" Class Suit TJX COMPANY: Court Approves $4,750,000 Settlement in "Roberts" TRANS UNION: Bid to Decertify Class in "Ramirez" Suit Denied TRUMP HOTELS: Casino Bankruptcies Hit Workers' Retirement Savings UNITED STATES: Judge Orders IRS to Clean Up Tea Party Backlog US PACK: "Faty" Suit Alleges Violation of FLSA, Md. Labor Laws VCA ANIMAL: Graham Appeals From C.D. Cal. Ruling to Ninth Circuit VICTOR'S CAFE: Faces "Espinal" Suit in Southern District of NY VISA INC: Bid to Stay Remand Order Pending Appeal Denied VOLKSWAGEN AG: Obtains Final Approval of 2.0L TDI Settlement VOLKSWAGEN AG: Agrees to Pay $175MM to Lawyers in Emissions Case WELLS FARGO: Class Certification Bid in "Martin" Suit Denied WYNDHAM VACATION: "Romero-Perez" Suit Moved to M.D. of Florida * Class Action Suits to Benefit Homebuyers in India * Epstein Becker Provides Update on Recent Employment Rulings * Reinstatement of Glass-Steagall Law May Pressure Banks More ********* AAC HOLDINGS: Certification of Class Sought in "Kasper" Suit ------------------------------------------------------------ Lead Plaintiffs Arkansas Teacher Retirement System and Dr. James P. Gills move the Court for an order certifying the matter titled DR. JOSEPH F. KASPER, Individually and on Behalf of All Others Similarly Situated v. AAC HOLDINGS, INC., JERROD N. MENZ, MICHAEL T. CARTWRIGHT, ANDREW W. MCWILLIAMS, and KIRK R. MANZ, Case No. 3:15-cv-00923 (M.D. Tenn.), as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. The Lead Plaintiffs also ask the Court to appoint them as Class Representatives and to approve their selection of Kaplan Fox & Kilsheimer LLP and Kahn Swick & Foti, LLC as Class Counsel, and Barrett Johnston Martin & Garrison, LLC, as Liaison Counsel for the Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Mt8afee1 The Lead Plaintiffs are represented by: David W. Garrison, Esq. Jerry E. Martin, Esq. Timothy L. Miles, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37214 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jmartin@barrettjohnston.com tmiles@barrettjohnston.com - and - Ramzi Abadou, Esq. KAHN SWICK & FOTI, LLP 912 Cole Street, # 251 San Francisco, CA 94117 Telephone: (504) 455-1400 Facsimile: (504) 455-1498 E-mail: ramzi.abadou@ksfcounsel.com - and - Lewis Kahn, Esq. Alexander L. Burns, Esq. Scott St. John, Esq. KAHN SWICK & FOTI, LLC 206 Covington Street Madisonville, LA 70447 Telephone: (504) 455-1400 Facsimile: (504) 455-1498 E-mail: lewis.kahn@ksfcounsel.com alexander.burns@ksfcounsel.com scott.stjohn@ksfcounsel.com - and - Frederic S. Fox, Esq. Donald R. Hall, Esq. Jeffrey P. Campisi, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 E-mail: ffox@kaplanfox.com dhall@kaplanfox.com jcampisi@kaplanfox.com The Defendants are represented by: Britt K. Latham, Esq. Joseph B. Crace, Jr., Esq. BASS, BERRY & SIMS, PLC 150 Third Avenue South, Suite 2800 Nashville, TN 37201 Telephone: (615) 742-7762 E-mail: blatham@bassberry.com jcrace@bassberry.com - and - John L. Latham, Esq. Jessica P. Corley, Esq. Lisa R. Bugni, Esq. David Gouzoules, Esq. ALSTON & BIRD LLP 1201 W. Peachtree St. Atlanta, GA 30309 Telephone: (404) 881-7000 E-mail: john.latham@alston.com jessica.corley@alston.com lisa.bugni@alston.com david.gouzoules@alston.com ABENDROTH & RUSSELL: 8th Circuit Appeal Filed in "Jackson" Suit --------------------------------------------------------------- Plaintiff Patrick L. Jackson filed an appeal from an order dated September 12, 2016, and judgment dated September 13, 2016, in the lawsuit titled Patrick Jackson v. Abendroth & Russell, PC, Case No. 4:16-cv-00113-RGE, in the U.S. District Court for the Southern District of Iowa - Des Moines. The appellate case is captioned as Patrick Jackson v. Abendroth & Russell, PC, Case No. 16-3914, in the United States Court of Appeals for the Eighth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appendix is due on November 22, 2016; -- Brief of Appellant Patrick L. Jackson is due on Nov. 22, 2016; -- Appellee brief is due 30 days from the date the Court issues the Notice of Docket Activity filing the brief of appellant; -- Appellant reply brief is due 14 days from the date the court issues the Notice of Docket Activity filing the appellee brief. Plaintiff-Appellant Patrick L. Jackson, on behalf of himself and others similarly situated, is represented by: J. D. Haas, Esq. J.D. HAAS and ASSOCIATES, PLLC 9801 Dupont Avenue, S., Suite 430 Bloomington, MN 55431 Telephone: (952) 345-1025 E-mail: jdhaas@jdhaas.com - and - Jesse Stine Johnson, Esq. GREENWALD & DAVIDSON 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: jjohnson@gdrlawfirm.com Defendant-Appellee Abendroth & Russell, PC, is represented by: Jeffrey A. Boehlert, Esq. Jason Wallace Miller, Esq. PATTERSON LAW FIRM 729 Insurance Exchange Building 505 Fifth Avenue Des Moines, IA 50309-2313 Telephone: (515) 283-2147 Facsimile: (515) 283-1002 E-mail: jboehlert@pattersonfirm.com mmiller@pattersonfirm.com ALL COAST: "Adams" Labor Lawsuit Transferred to W.D. Louisiana -------------------------------------------------------------- WILLIAM ADAMS, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. ALL COAST, LLC, Defendant, Case No. 6:16- cv-01426 (August 2, 2016) was transferred from the U.S. District Court for the Southern District of Texas to the U.S. District Court for the Western District of Louisiana. The suit seeks to recover alleged unpaid overtime wages under the Fair Labor Standards Act. An order was entered in the court docket on Oct. 11, 2016, cancelling an initial pretrial conference set for October 28, 2016. The Conference will be reset if appropriate once proof of service is filed. ALL COAST, LLC owns and operates liftboats for the offshore oil and gas market in the Gulf of Mexico. The Plaintiff is represented by: Melissa Moore, Esq. Curt Hesse, Esq. MOORE & ASSOCIATES Lyric Center 440 Louisiana Street, Suite 675 Houston, TX 77002 Phone: (713) 222-6775 Fax: (713) 222-6739 AMERICAN CAMPUS: Faces "Fellows" Suit in E.D. of Missouri --------------------------------------------------------- A class action lawsuit has been filed against American Campus Communities Services, Inc. The case is styled Brian Fellows, on his own behalf and on behalf of all others similarly situated, the Plaintiff, v. American Campus Communities Services, Inc., the Defendant, Case No. 4:16-cv-01611-PLC (E.D. Mo., Oct. 14, 2016). The case is assigned to Hon. Magistrate Judge Patricia L. Cohen. American Campus is a university housing development company with its headquarters in Bee Cave, Texas, near Austin. ACC is the nation's largest developer and manager of private student housing in the United States. The Plaintiff is represented by: Jeffrey J. Lowe, Esq. CAREY AND DANIS 8235 Forsyth Boulevard, Suite 1100 St. Louis, MO 63105 Telephone: (314) 678 3400 Facsimile: (314) 678 3401 E-mail: jlowe@careydanis.com The Defendant is represented by: Deborah J. Campbell, Esq. DENTONS US LLP - ST. LOUIS One Metropolitan Square, Suite 3000 St. Louis, MO 63102 Telephone: (314) 241 1800 Facsimile: (314) 259 5959 E-mail: deborah.campbell@dentons.com ALTERNATIVE EARTHCARE: Faces "Ibarra" Suit in E.D. of New York -------------------------------------------------------------- A class action lawsuit has been filed against Alternative Earthcare Tree & Lawn Service, Inc. The case is captioned Javier Almazan Ibarra, individually and on behalf of others similarly situated, the Plaintiff, v. Alternative Earthcare Tree & Lawn Service, Inc., doing business as Alternative Earthcare Tree & Lawn Care Service, the Defendant, Case No. 1:16-cv-05759 (E.D.N.Y., Oct. 14, 2016). Alternative Earthcare has been in business since 1996. The company serves residential and commercial clients. The Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317 1200 Facsimile: (212) 317 1620 E-mail: faillace@employmentcompliance.com ANSWER FINANCIAL: Parker Seeks Class Certification of 2 Classes --------------------------------------------------------------- In the lawsuit styled JESSE PARKER, individually and on behalf of all others similarly situated, the Plaintiff, v. ANSWER FINANCIAL, Inc., a California corporation, the Defendant, Case No. 2:16-cv- 05785-GHK-JC (C.D. Cal.), the Plaintiff moves the Court for class certification of two classes defined as: Autodialed No Consent Class: "all persons in the United States who from April 21, 2012 to the present: (1) received calls from or on behalf of Defendant Answer; (2) on the person's cellular telephone number; (3) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claim it obtained prior express consent to call the Plaintiff"; Do Not Call Registry Class: "all persons in the United States who (1) received calls from or on behalf of Defendant Answer more than one time on his/her cellphone; (2) within any 12-month period from April 21, 2012 to the present, (3) where the cellphone number had been listed on the National Do Not Call Registry for at least 30 days; (4) for the purpose of soliciting products or services; and (5) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claims it obtained prior express consent to call the Plaintiff". The Plaintiff also moves the Court to appoint Parker as Class representative, appoint Steven Woodrow and Patrick Peluso of Woodrow & Peluso, LLC as class counsel, and award such additional and further relief as this Court deems necessary and appropriate. According to the complaint, Answer Financial and its agents not only harassed each member of the putative Class but also repeatedly violated the Telephone Consumer Protection (TCPA), thereby entitling the recipients of the unauthorized calls to statutory damages and injunctive relief. Answer Financial and its agents made all of the calls in the same manner and without the prior express oral or written consent of Plaintiff or the other members of the Class. Likewise, the injuries suffered by Plaintiff and the members of the putative classes, as a result of Defendant's conduct, are nearly identical. That is, each member of the alleged Classes was subjected to the aggravation and nuisance that necessarily accompanies the receipt of unsolicited cell phone calls, thus entitling them to a nearly identical calculation of actual and statutory damages under the TCPA. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=RJQXI6Qa The Plaintiff is represented by: Peter J Gimino, III, Esq. THE GIMINO LAW OFFICE, APC 18101 Von Karman Avenue Suite 300 Irvine, CA 92612 Telephone: (949) 225 4446 Facsimile: (949) 225 4447 E-mail: pgimino@giminolaw.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 - Steven L. Woodrow, Esq. Patrick H. Peluso, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Ave., Suite 300 Denver, Colorado 80210 Telephone: (720) 213 0675 Facsimile: (303) 927 0809 E-mail: swoodrow@woodrowpeluso.com ppeluso@woodrowpeluso.com APPLE HOSPITALITY: Court Partially Dismisses "Moses" Complaint -------------------------------------------------------------- Chief District Judge Dora L. Irizarry of the United States District Court for the Eastern District of New York denied in part Defendant's motion to dismiss the Second Amended Class Action Complaint in the case captioned, SUSAN MOSES, on behalf of herself and all others similarly situated, Plaintiff, v. APPLE HOSPITALITY REIT INC., Defendant, Case No. 14-CV-3131 (DLI)(SMG) (E.D.N.Y.). Plaintiff alleged that Defendant breached its "contract with Plaintiff and the Class by mispricing shares sold through the Defendant's Dividend Reinvestment Program (DRIP). The DRIPs were created through S-3 public filings (Forms S-3). The Forms S-3 determined the pricing of the shares and stated that shares of A7 and A8 would be priced by one of two methods: "(a) the most recent price at which an unrelated person has purchased our units represents the fair market value of our units or, if the price is not indicative of fair value then; (b) in its good faith judgment, our board determines that there are other factors relevant to such fair market value." Plaintiff alleges that Defendant did not price the shares according to these methods, but instead kept the share price under the DRIP at a constant $11.00 per share. On March 9, 2015, the Court issued the Decision granting Defendants' motion to dismiss the First Amended Complaint (FAC). In the Decision, the Court dismissed all of Plaintiff's claims, but allowed Plaintiff to amend only her breach of contract claim. On April 6, 2015, Plaintiff filed the SAC on behalf of herself and all then-existing and former shareholders of Apple Hospitality's REITs Seven (A7) and Eight (A8) who purchased shares or "units" of A7 and A8 under DRIP between July 17, 2007, and February 12, 2014. While the FAC asserted claims against multiple defendants, the SAC includes a breach of contract claim against only Apple Hospitality REIT Inc. In the motion, Defendant argues that Plaintiff lacks Article III standing to bring the claim on behalf of A7 investors because she never purchased A7 shares. Plaintiff asserts that she has Article III standing, and that Defendant's argument instead goes to the question of whether she has class standing, which should be addressed at the class certification stage. Plaintiff contends that the Court should defer its decision as to whether Plaintiff has class standing, i.e., standing to represent both A7 and A8 shareholders, until the class certification stage of the litigation. In her Memorandum and Order dated September 30, 2016 available at https://is.gd/hZ3s8d from Leagle.com, Judge Irizarry denied Defendant's motion to dismiss for lack of standing concluding that Plaintiff's Article III standing is not extinguished or jeopardized simply because her claim contains allegations regarding A7 shares she did not purchase. Plaintiff's claim that Defendant breached the implied covenant of good faith and fair dealing because Defendant did not comply with the Forms S-3 should be dismissed because Plaintiff alleges this claim in her brief, but not in the SAC. Susan Moses is represented by Christopher J. Gray, Esq. -- christopher.j.gray@hud.gov -- LAW OFFICES OF CHRISTOPHER J. GRAY, P.C. -- James J. Eccleston, Esq. -- JEccleston@ecclestonlaw.com -- ECCLESTON LAW OFFICES, P.C. -- Jeffrey M. Salas, Esq. -- jsalas@salaswang.com -- SALAS WANG LLC -- Christine Elizabeth Goodrich, Esq. -- cgoodrich@faruqilaw.com -- FARUQI & FARUQI, LLP Apple Hospitality REIT, Inc., et al. are represented by Elizabeth F. Edwards, Esq. -- eedwards@mcguirewoods.com -- Jeffrey D. McMahan, Jr., Esq. -- jmcmahan@glvlawfirm.com -- Michelle M. Christian, Esq. -- mchristian@seyfarth.com -- Marshall Beil, Esq. -- mbeil@mcguirewoods.com -- and Richard L. Jarashow, Esq. -- rjarashow@mcguirewoods.com -- MCGUIRE WOODS LLP ARIEL QUIROS: Asks Judge to Unfreeze Assets to Pay Legal Fees ------------------------------------------------------------- Alan Keays, writing for VTDigger, reports that federal regulators suing Ariel Quiros say he is "quickly squandering" funds from investors he allegedly defrauded by asking a judge to allow him to unfreeze assets to pay "outlandishly high" legal fees in the civil fraud case brought against him. "Quiros is requesting more than $1.5 million to pay his attorneys' fees and costs from April through August 2016," Christopher Martin, Esq., a lawyer representing the U.S. Securities and Exchange Commission, wrote in a motion filed in federal court in Miami. "At that rate, Quiros will be seeking $3.6 million annually for attorneys' fees and costs, plus an additional $180,000 for living expenses," Mr. Martin wrote. "Not only is this burn rate excessive, it also greatly exceeds the amount Quiros received for mortgaging the Setai Condominium." The SEC filed its lawsuit in April against Mr. Quiros, a Miami businessman, and William Stenger of Newport, alleging the two developers headed the largest fraud case in the state's history through a "Ponzi-like" investment scheme. The regulators accuse the two men of misusing more than $200 million in investor money raised through the EB-5 visa program to fund development projects in northern Vermont, including hotels and a proposed biomedical center in Newport they termed "nearly a complete fraud." Attorneys for Mr. Quiros have filed three motions since the cases against him began in April seeking attorneys' fees totaling more than $1.5 million, including the latest one earlier this month asking for more than $560,000 in legal bills racked up between July 1 and Aug. 31. His attorneys have asked the judge to allow him to use proceeds from a mortgage on his Setai condominium in New York City to help cover his legal expenses. Mr. Martin countered in his filing that Mr. Quiros purchased the condo using $3.86 million in investor funds, and those investors would receive no benefits if a mortgage on the property went to pay "exorbitant" legal bills for Mr. Quiros. "(T)he amount Quiros is seeking is greatly excessive and he is quickly squandering investor funds," Mr. Martin wrote, adding, "Notably, the total amount Quiros has requested for just five months of his attorneys' work significantly exceeds the $1.194 million the Receiver has received from Quiros for mortgaging" the Setia luxury condo. In May, federal Judge Darrin Gayles approved $15,000 in monthly expenses for Mr. Quiros, paid by the Jay Peak receivership. Michael Goldberg, the federal court-appointed receiver, is now overseeing the properties at the center of the alleged fraud case. Also, the judge allowed Mr. Quiros to sell or mortgage the Setai condo to cover "reasonable" legal fees and living expenses. Mr. Martin disputes whether Mr. Quiros is paying "reasonable" rates for representation. "Rather, he is attempting to bill investors -- and any money Quiros receives from frozen assets for attorneys' fees will come straight out of assets that could be used for the benefit of defrauded investors -- for a Cadillac defense team," Mr. Martin wrote, "that is billing fees equivalent to representing a multi-millionaire with untainted funds who could pay for such services. According to the filings from attorneys for Mr. Quiros, the firm serving as his lead counsel has billing rates for its partners ranging from $600 an hour to $805 an hour, averaging $708 an hour. Also, the firm's billing rates for its associates have ranged from $340 an hour to $600 an hour. Those rates, the filings state, are comparable to "competitor" firms, both nationally and in the Miami area. The filings also stated that Mr. Goldberg, the court-appointed receiver, had been awarded comparable attorney fees of $638 an hour in the past, another point Martin said is not relevant in the pending matter. In this case, Martin wrote "Goldberg is significantly discounting his rate and the rates of other partners at his firm to no more than $395 an hour to conserve scarce resources for investors." Mr. Martin added, "Goldberg has further testified that partners working for him are billing at rates of $260 an hour to $395 an hour, again in an effort to take as little as possible from the Receivership estate and leave more for investors." The SEC lawyer also says attorneys' fees should not be awarded to Mr. Quiros for legal work done on other cases pending against him, including a class-action federal action brought by investors and a lawsuit filed by the Vermont attorney general's office. If the judge does agree to grant any motions for Mr. Quiros for attorneys' fees, Mr. Martin wrote, he should do so at significantly lower rates, and for work done solely on the federal case. "(T)he Court should limit the rates Quiros' lawyers can charge to a maximum of $395 an hour, and a maximum of $260 an hour for associates, as the Receiver and other partners and associates working for him, are billing in this action," Martin wrote. Mr. Quiros is the owner of Q Resorts, a holding company that includes Jay Peak. Mr. Stenger is the former president and CEO at Jay Peak. Mr. Stenger settled his case with the SEC in September, agreeing to cooperate with investigators. He still faces the possibility of a monetary penalty, depending on his level of cooperation and ability to pay. ARROWHEAD RESEARCH: Strogoff Appeals Ruling in Securities Suit -------------------------------------------------------------- Plaintiffs Noelle M. Strogoff, Christian Stout and Julia Stout filed an appeal from a court ruling in the consolidated litigation styled In re: Arrowhead Research Corporation Securities Litigation, Case No. 2:14-cv-07890-CBM-AS, in the U.S. District Court for Central California, Los Angeles. The appellate case is captioned as In re Arrowhead Research Corp. v. Noelle M. Strogoff, et al., Case No. 16-56499, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter on Oct. 21, 2016, District Judge Consuelo Marshall dismissed with prejudice the litigation and entered judgment in favor of the Defendants. The briefing schedule in the Appellate Case is set as follows: -- Mediation Questionnaire is due on October 19, 2016; -- Transcript must be ordered by November 9, 2016; -- Transcript is due on February 7, 2017; -- Appellants' opening brief is due on March 20, 2017; -- Answering brief of Appellees Christopher R. Anzalone, Arrowhead Research Corporation, Bruce D. Given, David L. Lewis, Charles P. McKenney and Kenneth A. Myszkowski is due on April 19, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellants NOELLE M. STROGOFF, Lead Plaintiff, individually and on behalf of all other persons similarly situated and on behalf of Strogoff Family Trust U/D/T, CHRISTIAN STOUT and JULIA STOUT are represented by: Patrick M. Dahlstrom, Esq. Louis Carey Ludwig, Esq. POMERANTZ LLP 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com lcludwig@pomlaw.com - and - Jeremy Alan Lieberman, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com - and - Lionel Z. Glancy, Esq. Robert Vincent Prongay, Esq. GLANCY BINKOW & GOLDBERG, LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com rprongay@glancylaw.com - and - Joseph R. Seidman, Jr., Esq. BERNSTEIN LIEBHARD LLP 10 East 40th Street New York, NY 10016 Telephone: (212) 779-1414 Facsimile: (212) 779-3218 E-mail: Seidman@bernlieb.com Defendants-Appellees ARROWHEAD RESEARCH CORPORATION, CHRISTOPHER R. ANZALONE, BRUCE D. GIVEN, KENNETH A. MYSZKOWSKI, CHARLES P. MCKENNEY and DAVID L. LEWIS are represented by: Dean Joel Kitchens, Esq. Alexander Kosta Mircheff, Esq. Audrey Karen Tan, Esq. GIBSON DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7416 Facsimile: (213) 229-7520 E-mail: dkitchens@gibsondunn.com amircheff@gibsondunn.com atan@gibsondunn.com ARTISAN PRESERVATION: Faces "Martinez" Suit Under FLSA, NY Laws --------------------------------------------------------------- SILVINO FELIX MARTINEZ, on behalf of himself, FLSA Collective Plaintiffs and the Class, v. ARTISAN PRESERVATION LLC, CHRIS YACONO, and IGNACIO [LNU], Case No. 1:16-cv-07943 (S.D.N.Y., October 11, 2016), seeks to recover alleged unpaid overtime and damages under the Fair Labor Standards Act, and the New York Labor Law. It further alleges that, pursuant to the New York State Human Rights Law, the Plaintiff is entitled to recover from Defendants for discrimination based on gender: (1) compensatory damages and (2) attorney's fees and costs. Defendants operate a business offering scaffolding erection and dismantling services to clients in Manhattan, and elsewhere in New York City, under the trade name "Artisan Preservation". The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Phone: 212-465-1188 Fax: 212-465-1181 BANK OF NEW YORK: Status Conference Held in "Henderson" ------------------------------------------------------- A status conference was set for Oct. 13 in the case, ASHBY HENDERSON, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. THE BANK OF NEW YORK MELLON CORPORATION, et al., Defendants, Civil Action No. 15-10599-PBS (D. Mass.). Chief District Judge Patti B. Saris presides over the case. The status conference for the related action, Hershenson v. BNY Mellon, N.A., No. 16-cv-11480-PBS (D. Mass. filed July 15, 2016), was also scheduled for Oct. 13. After a review of the supplemental briefings and after hearing, the Court ordered that the: (a) objections of Howard Law Firm, Minami Tamaki, and Bailey & Glasser to the magistrate judge's order on the firms' termination are denied; (b) Plaintiff Henderson's Motion for Consolidation of Related Motions, Appointment of Lead Plaintiff, and Appointment of Interim Lead Class Counsel is denied as to the request to appoint interim lead class counsel; and, (c) motion of Bailey & Glasser and the Howard Law Firm to be appointed as interim co-lead counsel Court is denied on the ground that Plaintiff has not consented to serve as a class representative unless Mr. McTigue, her lawyer, is appointed to serve at least as a co-lead counsel. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/1x8lDL from Leagle.com. Thomas J. Hershenson, Plaintiff, represented by John J. Roddy -- jroddy@baileyglasser.com -- Bailey & Glasser LLP. Thomas J. Hershenson, Plaintiff, represented by Derek G. Howard -- derek@dhowlaw.com -- Derek G. Howard Law Firm, Inc., pro hac vice, Elizabeth A. Ryan -- eryan@baileyglasser.com -- Bailey & Glasser LLP & Gregory Y. Porter -- gporter@baileyglasser.com -- Bailey & Glasser LLP, pro hac vice. BNY Mellon, N.A., et al., Defendants, represented by K. Issac deVyver -- kdevyver@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Mary J. Hackett -- mhackett@mcguirewoods.com -- McGuireWoods LLP, pro hac vice & Nellie E. Hestin -- nhestin@mcguirewoods.com -- McGuireWoods LLP. BEACH ON DUVAL: "Monticello" Lawsuit Alleges Violation of FLSA -------------------------------------------------------------- FRANK MONTICELLO, v. BEACH ON DUVAL LLC, a Florida limited liability corporation, and BLAKE FELDMAN, individually, Case No. 4:16-cv-10082-JLK (S.D. Fla., October 11, 2016), seeks on behalf of all those similarly situated, alleged unpaid overtime wages, liquidated damages, and reasonable attorney's fee and costs from Defendants under the Fair Labor Standards Act. Beach On Duval LLC is as a Florida limited liability and is approximately two years old, as recorded in documents filed with Florida Department of State. The Plaintiff is represented by: BRIAN J. MILITZOK, Esq. MILITZOK LAW, P.A. Wells Fargo Building 4600 Sheridan Street, Suite 402 Hollywood, FL 33021 Phone: (954) 780-8228 Fax: (954) 719-4016 E-mail: bjm@militzoklaw.com BLISTEX: Faces Class Action Over Odor-Eaters Insoles ---------------------------------------------------- Richard Binder, writing for The National Law Journal, reports that something is rotten in the advertising of Odor-Eaters, or so says a new lawsuit. Jose Izquierdo of Bronx, New York, is suing Blistex, the company that makes Odor-Eaters products, over the claims made on the label of Odor-Eaters insoles. The label says the insoles are "odor-destroying," and Mr. Izquierdo took Odor- Eaters at their word. What he discovered, according to the suit, was that the insoles weren't nearly as powerful. C.K. Lee, Mr. Izquierdo's lawyer, went to the classic dictionary definition of "destroy" to argue that his client had been deceived. According to the Daily News of New York, the suit claims that the ad does not disclose "the fact that the (insoles) could not eliminate odor or kill the bacteria and fungi that cause odor, and that they incompletely reduce future odor and have little effect on existing odor." Mr. Izquierdo wants all consumers of Odor-Eaters products to join him in the proposed class action to make the company change its allegedly misleading claims about odor destruction and recover monetary damages. Mr. Izquierdo paid $12.99 for his insoles. A spokesman for Blistex did not comment at press time. BOIRON INC: Conrad Appeals N.D. Ill. Decision to Seventh Circuit ---------------------------------------------------------------- Plaintiff Chad Conrad filed an appeal from a court ruling in the lawsuit titled Chad Conrad v. Boiron, Inc., et al., Case No. 1:13- cv-07903, in the U.S. District Court for the Northern District of Illinois, Eastern Division. As previously reported in the Class Action Reporter, Chad Conrad sued Boiron because of alleged dissatisfaction in Boiron's product, Oscillo. Boiron manufactures homeopathic remedy called Oscillococcinum, sold under the name Oscillo. According to the lawsuit, Boiron claimed the remedy would relieve flu-like symptoms. The appellate case is captioned as Chad Conrad v. Boiron, Inc., et al., Case No. 16-3656, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript information sheet is due by October 27, 2016; and -- Appellant's brief is due on or before November 22, 2016, for Chad Conrad. Plaintiff-Appellant CHAD CONRAD, on behalf of himself and all others similarly situated, is represented by: Joseph Siprut, Esq. SIPRUT PC 17 N. State Street Chicago, IL 60602 Telephone: (312) 236-0000 E-mail: jsiprut@siprut.com Defendants-Appellees BOIRON, INC., and BOIRON USA, INC., are represented by: Gregory D. Beaman, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 1152 15th Street N.W. Columbia Center Washington, DC 20005-1706 Telephone: (202) 339-8441 E-mail: gbeaman@orrick.com BOZEMAN, MT: Breaks Impact Fee Spending Rules, Audit Says --------------------------------------------------------- Eric Dietrich, writing for Bozeman Daily Chronicle, reports that the Southwest Montana Building Industry Association, long a critic of Bozeman's impact fee program, says a third-party audit it commissioned this year shows the city is breaking state rules governing how impact fee money is used. City leaders, however, vehemently dispute that claim, saying the builders are "quibbling" over allowed practices that give Bozeman necessary flexibility as it tries to keep up with infrastructure demands in the face of rapid growth. "We are fully and completely in compliance with state law," said City Commissioner Chris Mehl. "Even with those fees," he said, "we are struggling, struggling to make things work." "Impact fees are governed by state law," said David Graham, a building association board member. "It's part of our job at SWMBIA to make sure the municipality is doing what they're supposed to." "We'd like to see them do it the right way," he said. Impact fees -- which the city charges for roads, water, sewer and fire services, are levied on new development to account for growth-related infrastructure costs like building additional fire stations and expanding streets and water treatment plants. At the city's current rates, they total just more than $10,000 for a 2,400-square-foot house on a quarter-acre lot. Bringing in about $5 million a year, the fees are a major revenue source for the city, raising infrastructure dollars that would otherwise have to come from sources like higher property taxes. They're also a controversial one. Back in the early 2000s, SWMBIA and its then-attorney Art Wittich brought a class-action lawsuit against the city over the fees, arguing they were unconstitutional and that the city was over- charging developers and builders. A 2005 settlement let the city continue charging the fees, but required it to return $5 million to payees and temporarily reduce its charges. Under current law, each type of impact fee assessed by the city must be based on a detailed study estimating the cost of growth- related infrastructure and laying out how that cost will be divided between new development. Each of Bozeman's four impact fee categories -- roads, water, sewer and fire -- must also see its revenues stored in designated accounts separate from the city's general fund. Additionally, state statute specifies that fee money can't be used to catch up on pre-existing "deficiencies," build facilities to a uniquely high level of service, or cover operational costs. Those latter provisions are at the heart of the builders' audit, which boils down to four primary claims: 1. That the city shouldn't have used $925,000 in impact fees to build its third fire station on Bozeman's west side. Because the city's fire insurance rating was downgraded for lack of a third station in 2000, builders argue that opening the new station in 2009 actually corrected a deficiency, making it an ineligible use of impact fee funding. City officials respond that a third fire station wouldn't have been necessary without west side growth, making it a textbook use of impact fees. 2. That the city has spent too much water and sewer impact fee money on upgrading drinking water and sewage treatment plants -- together the subject of more than $90 million of work in recent years. Water and sewer impact fees are calculated based both on plant upgrade costs and pipe costs like larger sewer mains, so builders say the city should keep its plant spending proportional to its pipe spending. The city responds that it needs flexibility to focus on different water and sewer projects at different times. Builders, city leaders say, also seem to have only looked at a five-year period while longer-run spending is more balanced. 3. That the city shouldn't have used $763,000 in street impact fees to build the roundabout at 11th Avenue and College Street. Because that was the city's first roundabout, builders say, it should have been considered an impact-fee-ineligible service level upgrade instead of an eligible capacity expansion project. City officials respond by saying its commission has spent a considerable amount of time debating what portion of intersection projects like roundabouts should be impact fee eligible, given that intersection upgrades both improve service and allow for higher traffic volumes. It's now using an 80-20 cost split, with 20 percent of intersection project funding coming from other funding sources like the city's new arterial street assessment. 4. That the city shouldn't have used $187,000 in water impact fee funds to pay for its Integrated Water Resource Plan. State statute limits impact fee spending to "improvements, land and equipment," which builders say makes planning efforts ineligible for impact fee spending. City officials point to a portion of their own impact fee code, on the books since 1996, which specifically defines "improvement" to encompass among other things "planning, land acquisition, (and) engineering design." In a more practical sense, the city also says, investing in planning allows the city to stave off major infrastructure costs down the road -- for example, by figuring out how to promote water conservation so it can avoid massively expensive projects like a new reservoir at Mystic Lake. In all, SWMBIA takes issue with roughly $7 million in city impact fee spending, calling it a "misappropriation." "(T)his independent study illuminates troubling questions that must be answered," SWMBIA Executive Officer Linda Revenaugh wrote in a letter to City Manager Chris Kukulski Sept. 29. City officials brush aside that accusation, saying they're confident in their accounting and that Bozeman's ongoing building boom wouldn't be possible without impact-fees to fuel city infrastructure spending. "Every dollar has been spent just fine," Mr. Kukulski said. "It's just this quibbling over pipes and water plants." "The irony here is that all of these fees benefit their members," Mr. Mehl said. "We can't say, 'Sure, build another hundred houses,' if the sewer plant is above its discharge limits." CALEF & ASSOCIATES: Faces "Meyerson" Suit in D.N.J. --------------------------------------------------- A class action lawsuit has been filed against The Law Firm of Ryan E. Calef & Associates, LLC. The case is captioned JEFFREY MEYERSON, on behalf of himself and all others similarly situated, the Plaintiff, v. THE LAW FIRM OF RYAN E. CALEF & ASSOCIATES, LLC; CACH, LLC; and JOHN DOES 1-25, the Defendants, Case No. 2:16-cv- 07417-CCC-MF (D.N.J., Oct. 17, 2016). The case is assigned to Hon. Judge Claire C. Cecchi. Calef and Associates is a multi-office Creditor's Rights firm with a Mid Atlantic footprint. The Plaintiff is represented by: Glen H. Chulsky, Esq. 375 Passaic Avenue Fairfield, NJ 07004 E-mail: g.chulsky@att.net - and - Joseph K. Jones, Esq. Jones, Wolf & Kapasi, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227 5900 Facsimile: (973) 244 0019 E-mail: jkj@legaljones.com CALIBER HOME: Court Dismisses "Carbone" Debt Collection Suit ------------------------------------------------------------ District Judge Joanna of the United States District Court for the Eastern District of New York granted Defendant's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) in the case captioned, JANINE CARBONE, on behalf of plaintiff and a class, Plaintiff, v. CALIBER HOME LOANS, INC., Defendants, Case No. 14-CV-5628 (PGS) (E.D.N.Y.). Caliber acquires and services mortgage loans that are delinquent or in default. Plaintiff Janine Carbone (Plaintiff), a New York resident, has a residential mortgage loan that is serviced by Caliber (the Loan). Her husband, Michael Carbone, signed the promissory note for the Loan, and both Plaintiff and her husband executed a mortgage on their real property as security. When Caliber began servicing the Loan in 2014, payments were delinquent. In December 2014, Caliber notified Plaintiff of a potential foreclosure on the Mortgage. The Pre-Foreclosure Notice also stated that Plaintiff could "cure this default by making a payment." Plaintiff filed the putative class action against Caliber for alleged violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Section 1692 et seq. She asserts two claims under the FDCPA: (1) Caliber failed to send a Notice of Debt as required by Section 1692g; and (2) the June 2015 Letter "misstated the disclosures required by 15 U.S.C. Section 1692g and is misleading in violation of 15 U.S.C. Section 1692e and 1692e(10). Defendant moves to dismiss the Complaint. As for the Section 1692g claim, Defendant principally argues that Plaintiff is not a "consumer" within the meaning of the FDCPA and thus is not entitled to a Notice of Debt. As for the Section 1692e claim, Defendant asserts that the claim also hinges on Plaintiff being a "consumer" and must be dismissed. In his Memorandum and Order dated September 30, 2016 available at https://is.gd/8zs7Eh from Leagle.com, Judge Seybert concluded that Plaintiff is not a "consumer" within the meaning of the FDCPA and under Section 1692g(a), only consumers are required to receive a Notice of Debt so even if the letter received by the Plaintiff in 2015 was a Notice of Debt that altered the statutory requirements to obtain verification, these obligations are irrelevant because Plaintiff is not a consumer. The Plaintiff was given 30 days to file an Amended Complaint. Janine Carbone is represented by: Abraham Kleinman, Esq. KLEINMAN, LLC 626 RXR Plaza Uniondale, NY 11556-0626 Tel:(516)522-2621 -- and -- Tiffany N. Hardy, Esq. EDELMAN COMBS LATTURNER & GOODWIN LLC 20 South Clark Street Suite 1500 Chicago, IL 60603 Tel:(312)739-4200 Caliber Home Loans, Inc. is represented by: David T. Biderman, Esq. Frederick Rivera, Esq. Manny Joseph Caixeiro, Esq. PERKINS COIE LLP 505 Howard St San Francisco, CA 94105 Tel: (415) 344-7003 CAPITAL ADVANCE: Faces "Hughson" Suit in District of Oregon ----------------------------------------------------------- A class action lawsuit has been filed against Capital Advance Solutions LLC. The case is titled Christopher Hughson, individually and on behalf of all others similarly situated, the Plaintiff, v. Capital Advance Solutions LLC, a New Jersey Corporation; Pilothouse Solutions LLC, a New York Corporation; Geoffrey Horn, individually; and Charles Betta, individually, the Defendants, Case No. (S.D. Fla., Oct. 17, 2016). The case is assigned to Hon. Magistrate Judge Youlee Yim You. Capital Advance provides small to mid-sized businesses with another working capital funding option known as a credit card receipt advance. The Plaintiff is represented by: Stephen Joseph Voorhees, Esq. FORUM LAW GROUP 811 SW Naito Parkway, Suite 420 Portland, OR 97204 Telephone: (503) 445 2100 Facsimile: (503) 445 2120 E-mail: stephen@forumlawgroup.com CAPITAL ADVANCE: Class Certification Sought in "Redman" Suit ------------------------------------------------------------ In the lawsuit captioned SCOTT D.H. REDMAN, individually and on behalf of others similarly situated, the Plaintiff, v. CAPITAL ADVANCE SOLUTIONS, LLC, a New Jersey limited liability company, the Defendant, Case No. 1:16-cv-04380 (N.D. Ill.), the Plaintiff asks the Court for an order certifying a class of: "all persons within the United States to whom one or more telephone calls were made, since April 18, 2012, by, on behalf, or for the benefit of Capital Advance Solutions, LLC (Defendant), which calls were made using an automatic telephone dialing system and/or an artificial or prerecorded voice, and for which (a) the called telephone numbers appear in Defendant's records of such calls and/or the records of Defendant's third party telephone carriers or the third party telephone carriers of Defendant's call centers or (b) for which the called persons' own records prove that they received such calls". The Plaintiff further asks the Court to appoint himself as class representative and appoint Markoff Leinberger LLC as class counsel. The lawsuit says the Defendant has made millions of illegal calls to putative class members. Though the exact number is within the exclusive possession of Defendant, the Defendant admits to making at least 5,000,000 illegal calls. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=k5nfAlcH The Plaintiff is represented by: Paul F. Markoff, Esq. Karl G. Leinberger, Esq. MARKOFF LEINBERGER LLC 134 N LaSalle St Ste 1050 Chicago IL 60602 Telephone: (312) 726 4162 Facsimile: (312) 674 7272 E-mail: paul@markleinlaw.com CAVALRY STAFFING: Copper Seeks to Certify Class of Service Agents ----------------------------------------------------------------- The Plaintiffs in the lawsuit entitled DEREK COPPER and LESLIE MINTO, on behalf of themselves and all others similarly-situated v. CAVALRY STAFFING, LLC, and ENTERPRISE HOLDINGS, INC., and TRACY LEE HESTER, in his individual and professional capacities, Case No. 1:14-cv-03676-FB-RLM (E.D.N.Y.), move the Court for preliminary approval of the parties' settlement, certification of settlement class, appointment of the Plaintiffs' counsel as class counsel, and approval of proposed notice of settlement and class action settlement procedure. For settlement purposes only, the Plaintiffs ask the Court to certify the settlement class, which is defined as: a. under Fed. R. Civ. P. 23(a) and (b)(3), all Service Agents and Supervisors employed by Cavalry Staffing at an Enterprise Rent-A-Car location in New York between June 11, 2008 and October 18, 2016; and b. under 29 U.S.C. Section 216(b), all Service Agents and Supervisors employed by Cavalry Staffing at an Enterprise Rent-A-Car location in New York between June 11, 2011 and October 18, 2016. The Plaintiffs further ask the court to appoint Borrelli & Associates, P.L.L.C., as Class Counsel, appoint Simpluris Inc. as the Claims Administrator for the settlement, and approve the Parties' proposed schedule for the filing of a motion for final approval, for class members to opt out or file objections to the proposed settlement, and scheduling a fairness hearing. Defendants Cavalry Staffing, LLC and Enterprise Holdings, Inc., do not oppose the Motion. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=pQWEzs5t The Plaintiffs are represented by: Jeffrey R. Maguire, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 655 Third Avenue, Suite 1821 New York, NY 10017 Telephone: (212) 679-5000 Facsimile: (212) 679-5005 E-mail: jrm@employmentlawyernewyork.com atc@employmentlawyernewyork.com mjb@employmentlawyernewyork.com CHRYSLER CAPITAL: Garcia Usury Claims Dismissed with Prejudice -------------------------------------------------------------- District Judge Edgardo Ramos of the United States District Court for the Southern District of New York granted with prejudice Defendant's motion to dismiss the complaint in the case captioned, FRANKLIN CABRERA GARCIA, individually and on behalf of all others similarly situated, Plaintiff, v. CHRYSLER CAPITAL LLC and B&Z AUTO ENTERPRISES, L.L.C., d/b/a EASTCHESTER CHRYSLER JEEP DODGE, Defendants, Case No. 15 Civ. 5949 (ER) (S.D.N.Y.). On March 18, 2014, Franklin Cabrera Garcia (Plaintiff) purchased a 2011 Dodge Durango (Durango) from B&Z Auto Enterprises, L.L.C. d/b/a Eastchester Chrysler Jeep Dodge (B&Z Auto) and Santander Consumer USA, Inc. d/b/a Chrysler Capital (Santander or Defendant),a car dealership located in New York. The purchase price for the Durango was approximately $26,000. Plaintiff paid $7,500 as a down payment. B&Z Auto made an offer allowing Plaintiff to finance the balance over a 75-month period if he agreed to pay a credit charge equivalent to interest calculated at a 23.67% annual rate. Plaintiff made four monthly payments of $628.49 out of the 75 required under the Contract. On September 5, 2014, the Durango caught fire and was destroyed beyond repair. At that point, Plaintiff stopped making any payments owed under the Contract. Plaintiff brings the action individually, and on behalf of all others similarly situated, against B&Z Auto Enterprises, L.L.C., asserting that Santander extended Plaintiff a loan in violation of New York usury laws, deceptive acts or practices, and unjust enrichment. Additionally, Plaintiff brings several related state law claims against both B&Z Auto and Santander. Plaintiff alleges that Santander indirectly extended a loan to Plaintiff, and that therefore the 26.37%[sic] credit charge was in violation of New York usury laws. On December 11, 2015, Santander filed the motion to dismiss the Complaint arguing that Santander cannot be held liable for usury, because the Motor Vehicle Retail Installment Sales Act (MVRISA) authorizes dealers to charge whatever credit charge rate the parties agree to in the retail installment sale contract (RISC), and to subsequently assign the RISC to third-party financing agencies like Santander. Plaintiff asserts that because the RISC in the case was immediately assigned to Santander upon execution, and because Santander participated in the transaction by, inter alia, setting the credit charge buy rate and maximum mark-up rate, Santander, as opposed to B&Z Auto, was the true party in interest to the credit sale. Plaintiff argues that the MVRISA does not shield Santander from liability under New York usury laws. In his Opinion and Order dated September 30, 2016 available at https://is.gd/eWyrSo from Leagle.com, Judge Ramos found that in spite of Santander and B&Z Auto's alleged conduct, Plaintiff entered into a legitimate credit transaction pursuant to the MVRISA. Consequently the 26.32%[sic] credit charge that Plaintiff agreed to is not subject to New York usury laws. The Court declined to exercise supplemental jurisdiction over all of Plaintiff's class-action claims which are founded upon his allegations of usury. Franklyn Cabrera Garcia, et al. are represented by Christopher Barton Dalbey, Esq. Robin Greenwald, Esq. Christopher Barton Dalbey, Esq. -- CDALBEY@WEITZLUX.COM -- and Robin Greenwald, Esq. -- RGREEBWALD@WEITZLUX.COM -- WEITZ & LUXENBERG, P.C. -- Karla Ann Gilbride, Esq. -- kgilbride@publicjustice.net. -- PUBLIC JUSTICE P.C. Chrysler Capital LLC is represented by Robert John Brener, Esq. -- robert.brener@leclairryan.com -- LECLAIRRYAN B&Z Auto Enterprises, L.L.C. is represented by Steven H. Blatt, Esq. -- sblatt@dealerlaw.com -- BELLAVIA GENTILE & ASSOCIATES, LLP CJ AMERICA: $1.5MM Settlement in "Petersen" Has Final Approval -------------------------------------------------------------- In the case, DENNIS PETERSEN, on behalf of himself and all others similarly situated, Plaintiff, v. CJ AMERICA, INC., Defendant, Case No. 3:14-cv-02570-DMS-JLB (S.D. Cal.), District Judge Dana M. Sabraw granted final approval of the parties' Class Action Settlement. For purposes of the Settlement, the Class shall consist of all persons in the United States and United States Territories who purchased at retail one or more of the Subject Products during the Class Period. Based on the Settlement Agreement, the Defendant will pay $1,500,000.00 to create the Settlement Fund for the benefit of the eligible Class Members. Likewise, the Defendant will implement the following changes in connection with the Subject Products: the Defendant shall not order and/or print labels or package the Subject Products bearing the phrase "NO MSG ADDED," and will otherwise not market and/or advertise Subject Products shipped to distributors and/or retail customers after the effective date as "NO MSG ADDED". Moreover, the Court issued a separate Order with respect to Attorneys' Fees and Expenses and the Incentive Award to the representative Plaintiff, entitled Final Order Approving Attorneys' Fees and Expenses and Incentive Award. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/245Pgr from Leagle.com. Dennis Peterson, Plaintiff, represented by Marc L. Godino -- mgodino@glancylaw.com -- Glancy Prongay & Murray LLP. Dennis Peterson, Plaintiff, represented by Rosemary M. Rivas -- rrivas@finkelsteinthompson.com -- Finkelstein Thompson, LLP. CJ America, Inc., Defendant, represented by Carlos M. Lazatin -- clazatin@omm.com -- O'Melveny & Myers & Daniel James Faria -- dfaria@omm.com -- O'Melveny & Myers LLP. CJ AMERICA: Must Pay $338,270 for Petersen Counsel Fees and Costs ----------------------------------------------------------------- In the case, DENNIS PETERSEN, on behalf of himself and all others similarly situated, Plaintiff, v. CJ AMERICA, INC., Defendants, Case No. 14-CV-2570 DMS JLB (S.D. Cal.), District Judge Dana M. Sabraw ordered the Defendants to pay the Class Counsel, Finkelstein Thompson LLP and Glancy Prongay & Murray LLP, through the Settlement Fund, a total of $338,270.36 for attorneys' fees and costs. The Class Counsels are also entitled to a fee award in the amount of $375,000.00. Moreover, the Court also finds that the Plaintiff's request for reimbursement of expenses in the amount of $3,836.61 is reasonable and should be awarded as mandatory and discretionary costs pursuant to Cal. Civ. Proc. Code Sec. 1033.5. Furthermore, the Court finds that Plaintiff's request for an Incentive Award of $5,000 is appropriate. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/IVhWbZ from Leagle.com. Dennis Peterson, Plaintiff, represented by Marc L. Godino -- mgodino@glancylaw.com -- Glancy Prongay & Murray LLP. Dennis Peterson, Plaintiff, represented by Rosemary M. Rivas -- rrivas@finkelsteinthompson.com -- Finkelstein Thompson, LLP. CJ America, Inc., Defendant, represented by Carlos M. Lazatin -- clazatin@omm.com -- O'Melveny & Myers & Daniel James Faria -- dfaria@omm.com -- O'Melveny & Myers LLP. CLERMONT YORK: "Gerard" Suit Can Proceed as Class ------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, granted the Plaintiffs' motion for class certification in the case styled, PAULA GERARD, ET AL., Plaintiffs-Respondents, v. CLERMONT YORK ASSOCIATES LLC, Defendant-Appellant, Case No. 3:15-cv-01431-WHA (N.D. Cal.). The Plaintiffs seek to certify a class of current, former, and future tenants whose formerly rent-stabilized apartments were deregulated even though the building owner was receiving J-51 tax abatement benefits. The motion for class certification was filed 17 days after the stipulated deadline and the Appellate Division ruled that the impact of a very brief delay was minimal, which the defendant, likewise, cannot claim that time was of the essence, given its history of both seeking and granting extensions. A copy of the Court's Order dated October 6, 2016 is available at https://goo.gl/7o1bzv from Leagle.com. Horing Welikson & Rosen, P.C., Williston Park (Niles C. Welikson of counsel), for appellant -- nwelikson@hwrpc.com Emery Celli Brinckerhoff & Abady LLP, New York (Matthew D. Brinckerhoff of counsel), for respondents -- mbrinckerhoff@ecbalaw.com Before: Renwick, J.P., Richter, Manzanet-Daniels, Feinman, Kapnick, JJ. COLD SPRING: "Avila" Suit Alleges Violation of Calif. Wage Laws --------------------------------------------------------------- JOSEPH AVILA, on behalf of himself and all others similarly situated, v. COLD SPRING GRANITE CORPORATION, a Minnesota Corporation, Case No. 2:16-at-01267 (E.D. Cal., October 11, 2016), seeks to recoup alleged unpaid overtime, missed and/or non- compliant meal and rest periods in violation of the California Labor Code, applicable Industrial Welfare Commission Wage Order, and the Business and Professions Code. COLD SPRING GRANITE CORPORATION is a quarrier and fabricator of granite and other natural stone and a bronze manufacturing company. The Plaintiff is represented by: Richard A. Hoyer, Esq. Ryan L. Hicks, Esq. HOYER & HICKS 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 Phone: (415) 766-3539 Fax: (415) 276-1738 E-mail: rhoyer@hoyerlaw.com rhicks@hoyerlaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP, PC 5500 Bolsa Avenue, Suite 201 Huntington Beach, CA 92649 Phone: (562) 256-1047 Fax: (562) 256-1006 E-mail: walter@whaines.com COMCAST CORP: FCC Imposes $2.3MM Penalty Over Customer Charges -------------------------------------------------------------- The National Law Journal reports that Comcast Corp. has been hit with a $2.3 million civil penalty by the Federal Communications Commission, closing an investigation into whether the company wrongfully charged customers for services and equipment they didn't want. The cable giant on Oct. 11 entered into a consent decree with the FCC in which it will pay the largest civil fine ever assessed to a cable operator and implement a five-year compliance plan including practices to obtain affirmative consent from customers, the commission said. "It is basic that a cable bill should include charges only for services and equipment ordered by the customer -- nothing more and nothing less," said Travis LeBlanc, chief of the FCC's enforcement bureau, in a statement. COMENITY BANK: O'Boyle Seeks Certification of Class Under Damasco ----------------------------------------------------------------- Barbara O'Boyle moves the Court to certify the class described in the complaint of the lawsuit captioned BARBARA O'BOYLE, Individually and on Behalf of All Others Similarly Situated v. COMENITY BANK, Case No. 2:16-cv-01401-DEJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, the Plaintiff states. The Plaintiff asserts that the Plaintiff is obligated to move for class certification to protect the interests of the putative class. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative and further asks the Court to appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=HxZneDpN The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com COOK COUNTY, IL: Poor Inmates File Class Action Over High Bail -------------------------------------------------------------- The Associated Press reports that a newly filed lawsuit says thousands of poor, largely African-American inmates are being held improperly at the Cook County jail because they cannot afford to post cash bail. The lawsuit, filed in Cook County Circuit Court on Oct. 14 by attorneys for two inmates, Zachary Robinson and Michael Lewis, seeks class-action status on behalf of others in jail custody. It names several Cook County judges and Sheriff Tom Dart as defendants. The plaintiffs say the practice under Illinois law of setting bail amounts in excess of what inmates can pay violates their constitutional rights. Dart spokeswoman Cara Smith says the sheriff "has worked tirelessly to change" a bail system she calls "unconscionable." Smith says naming Dart in the lawsuit was "puzzling and defies logic." The lawsuit was first reported by Injustice Watch, a not-for- profit journalism organization. CVS PHARMACY: Guarnieri Dismissed as Plaintiff ---------------------------------------------- District Judge Yvonne Gonzalez Rogers granted the parties' stipulation voluntarily dismissing Plaintiff Robert Guarnieri in the case styled, Christopher Corcoran, et al., Plaintiffs, v. CVS Pharmacy, Inc., Defendant, Case No. 15-cv-03504-YGR (N.D. Cal.). As conditions of the stipulation: (1) Mr. Guarnieri reserves the right to proceed in the matter as an absent class member; (2) CVS Pharmacy, Inc. reserves the right to argue that Mr. Guarnieri does not qualify as a member of any class that may be certified in this matter; and, (3) Mr. Guarnieri shall not bring any new action against CVS Pharmacy, Inc. or its affiliates concerning the subject matter of the above-captioned matter. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/9dofe3 from Leagle.com. CVS Health, Defendant, represented by August P. Gugelmann -- august@smllp.law -- Swanson & McNamara LLP, David Michael Horniak -- dhorniak@wc.com -- Williams & Connolly, LLP, Edward W. Swanson -- ed@smllp.law -- Swanson & McNamara LLP, Enu A. Mainigi -- emainigi@wc.com -- Williams and Connolly LLP, pro hac vice, Frank Lane Heard, III -- lheard@wc.com -- Williams and Connolly LLP, Grant A. Geyerman -- ggeyerman@wc.com -- Williams Connolly, LLP, pro hac vice & Luba Shur -- lshur@wc.com -- Williams and Connolly LLP, pro hac vice. CVS Pharmacy, Inc., Defendant, represented by Ashley Wall Hardin -- ahardin@wc.com -- Williams and Connolly LLP, August P. Gugelmann -- august@smllp.law -- Swanson & McNamara LLP, Colleen Marie McNamara -- cmcnamara@wc.com -- Williams and Connolly LLP, Edward W. Swanson -- ed@smllp.law -- Swanson & McNamara LLP, Enu A. Mainigi -- emainigi@wc.com -- Williams and Connolly LLP, pro hac vice, Frank Lane Heard, III -- lheard@wc.com -- Williams and Connolly LLP, Grant A. Geyerman -- ggeyerman@wc.com -- Williams Connolly, LLP, Luba Shur -- lshur@wc.com -- Williams and Connolly LLP & Sarah Lochner O'Connor -- soconnor@wc.com -- Wiliams & Connolly LLP. DELL INC: Grant & Eisenhofer's Fees in Appraisal Suit Approved -------------------------------------------------------------- In the case captioned IN RE: APPRAISAL OF DELL INC., Consol. C.A. No. 9322-VCL (Del. Ch.), the Court of Chancery of Delaware granted the law firm Grant & Eisenhofer P.A.'s (G&E) application for fees and expenses. In 2013, Dell Inc. completed a going-private merger in which each publicly held share of Dell common stock was converted into the right to receive $13.75 per share in cash, subject to the owner's right to seek appraisal. Holders of 38,765,130 shares demanded appraisal. Holders of 36,704,337 of those shares filed a total of 13 different appraisal petitions. G&E represented the claimants in 10 of 13 different petitions for appraisal of publicly held shares of Dell common stock. G&E's clients included a group of entities affiliated with T. Rowe Price & Associates, Inc., which together sought appraisal for the largest single block of shares. G&E represented its clients pursuant to a written contingency fee agreement. After the court granted G&E's motion to consolidate the 13 appraisal proceedings and to be appointed lead counsel, G&E litigated the case through trial. In a post-trial decision, the court held that the fair value of Dell common stock at the effective time of the merger was $3.87 per share more than the merger price. In a separate post-trial decision, the court held that T. Rowe lacked standing to seek appraisal. Morgan Stanley Defined Contribution Trust, a G&E client whose shares remain part of the appraisal class, moved to have G&E's expenses reimbursed from the aggregate appraisal award. Morgan Stanley also sought an award of attorneys' fees for G&E equal to the percentage of the aggregate appraisal award that G&E would receive under the terms of its contingency fee agreement. The court treated G&E as the movant because it was the real party in interest. Two groups of appraisal claimants opposed the motion, arguing that G&E must have incurred significant expenses defending T. Rowe's entitlement to seek appraisal, and they believed those amounts should be excluded from any award. They also argued T. Rowe was a member of the appraisal class until after trial, so T. Rowe should bear a portion of the expenses incurred litigating the valuation issues. They further contended that G&E's fees should be reduced because, after T. Rowe was dismissed from the case, G&E secured a settlement for T. Rowe and earned a fee for its efforts. Finally, they asserted that any award is premature because a final order has not yet been entered. The Court of Chancery of Delaware granted G&E's fee application, finding that the amounts are reasonable and will be allocated pro- rata among the appraisal class. The Court found that G&E's efforts benefitted the appraisal class to the tune of $25,225,145.08, plus any additional interest accruing at the legal rate of interest since September 30, 2016. The Court thus held that G&E is entitled to be reimbursed for up to $4,007,462.08 in expenses. The Court also held that a further reduction, by shifting a portion of the expenses to T. Rowe, is not warranted because the amount of G&E's expenses is reasonable and proportionate to the outcome achieved for the appraisal class. The Court also concluded that the appraisal class will be entitled to costs because the petitioners were the prevailing parties. "Petitioners obtained an award of fair value that was higher than the merger consideration. This case was not brought in bad faith. Nor is there any indication that petitioners racked up excessive costs. Therefore, any costs to which the petitioners are entitled as the prevailing parties will be paid by Dell," said the Court. Lastly, the Court held that, after the deduction of G&E's net expenses, up to a maximum of $4,007,462.08, G&E is entitled to an award of attorneys' fees equal to 19.06% of the remaining amount that otherwise would go to the appraisal class. A full-text copy of the Court's October 17, 2016 memorandum opinion is available at https://is.gd/lsgtx2 from Leagle.com. Stuart Grant -- sgrant@gelaw.com -- Michael J. Barry -- mbarry@gelaw.com -- Christine Mackintosh -- cmackintosh@gelaw.com -- GRANT & EISENHOFER P.A., Wilmington, Delaware; Lead Counsel for the Appraisal Class and Counsel for Petitioner Morgan Stanley Defined Contribution Trust. Samuel T. Hirzel, II -- shirzel@proctorheyman.com -- Melissa N. Donimirski -- mdonimirski@proctorheyman.com -- PROCTOR HEYMAN ENERIO LLP, Wilmington, Delaware; Lawrence M. Rolnick -- lrolnick@lowenstein.com -- Steven M. Hecht -- shecht@lowenstein.com -- LOWENSTEIN SANDLER LLP, New York, New York; Counsel for Petitioners Magnetar Capital Master Fund Ltd., Magnetar Global Event Driven Master Fund Ltd., Spectrum Opportunities Master Fund Ltd., and Blackwell Partners LLC. Samuel T. Hirzel, II, PROCTOR HEYMAN ENERIO LLP, Wilmington, Delaware; Counsel for Petitioners Global Continuum Fund, Ltd. and Wakefield Partners LP. Gregory P. Williams -- williams@rlf.com -- John D. Hendershot -- hendershot@rlf.com -- Susan M. Hannigan -- hannigan@rlf.com -- Andrew J. Peach -- peach@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; John L. Latham -- john.latham@alston.com -- Susan E. Hurd -- susan.hurd@alston.com -- ALSTON & BIRD LLP, Atlanta, Georgia; Gidon M. Caine -- gidon.caine@alston.com -- ALSTON & BIRD LLP, East Palo Alto, California; Charles W. Cox -- charles.cox@alston.com -- ALSTON & BIRD LLP, Los Angeles, California; Counsel for Respondent Dell Inc. DENOVUS CORPORATION: Faces "Milton" Suit in E.D. of Kentucky ------------------------------------------------------------ A class action lawsuit has been filed against Denovus Corporation, Ltd. The case is titled Jamie Milton, on behalf of herself and others similarly situated, the Plaintiff, v. Denovus Corporation, Ltd., the Defendant, Case No. 5:16-cv-00389-DCR (E.D. Ky., Oct. 14, 2016). The case is assigned to Hon. Judge Danny C. Reeves. Denovus is engaged in business management consultancy. The Plaintiff is represented by: Michael L. Greenwald, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826 5477 Facsimile: (561) 961 5684 - and - Shireen Hormozdi, Esq. HORMOZDI LAW FIRM, LLC 1770 Indian Trail Law Lilburn Road, Suite 175 Norcross, GA 30093 Telephone: (678) 395 7795 Facsimile: (866) 929 2434 E-mail: shireen@hormozdilaw.com DENTAL EXPRESSIONS: Faces "Morante" Suit Alleging FLSA Violations ----------------------------------------------------------------- Joan K. Morante, On behalf of herself and others similarly situated, and Liliana Matos, On behalf of herself and others similarly situated v. Dental Expressions P.C. and Gary Bram, In his individual and professional capacity, Case No. 1:16-cv-05766 (E.D.N.Y., October 16, 2016), arises from alleged violations of the Fair Labor Standards Act. Dental Expressions P.C., with a location in Bayside, New York, is a dental business offering a range of dental services. Dr. Gary Bram owns the Company. DESIGNED RECEIVABLE: Goodson Appeals C.D. Cal. Ruling to 9th Cir. ----------------------------------------------------------------- Plaintiff Seana Goodson filed an appeal from a court ruling in the lawsuit entitled Seana Goodson v. Designed Receivable Solutions, Inc., Case No. 2:15-cv-03308-JVS-JPR, in the U.S. District Court for the Central District of California, Los Angeles. As reported by the Class Action Reporter on Sept. 27, 2016, the Hon. James V. Selna entered an order granting Designed Receivable's motion for summary judgment. The Court declined to adjudicate Goodson's class certification motion. A copy of the Court's Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=58nj9hEb The appellate case is captioned as Seana Goodson v. Designed Receivable Solutions, Inc., Case No. 16-56507, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 14, 2016; -- Transcript is due on February 13, 2017; -- Appellant Seana Goodson's opening brief is due on March 27, 2017; -- Appellee Designed Receivable Solutions, Inc.'s answering brief is due on April 26, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant SEANA GOODSON, individually and on behalf of all others similarly situated, is represented by: Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 South Beverly Drive, Suite 725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@AttorneysForConsumers.com Defendant-Appellee DESIGNED RECEIVABLE SOLUTIONS, INC., is represented by: Amanda Nicole Griffith, Esq. ELLIS LAW GROUP, LLP 740 University Avenue Sacramento, CA 95825 Telephone: (916) 283-8820 Facsimile: (916) 283-8821 E-mail: agriffith@ellislawgrp.com - and - Andrew M. Steinheimer, Esq. ELLIS LAW GROUP LLP 740 University Ave., Suite 100 Sacramento, CA 95825 Telephone: (916) 283-8820 Facsimile: (916) 283-8821 E-mail: ASteinheimer@Ellislawgrp.com DITECH FINANCIAL: Faces "Greisman" Suit in Eastern Dist. of NY -------------------------------------------------------------- A class action lawsuit has been filed against Ditech Financial LLC. The case is entitled Samuel Greisman, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. Ditech Financial LLC, formerly known as: Greentree & Associates, Inc., the Defendant, Case No. 1:16-cv-05754 (E.D.N.Y., Oct. 14, 2016). Ditech Financial, a mortgage company, lends and services residential mortgages. It offers a range of purchase loan options. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, P.C. 735 Central Avenue Woodmere, NY 11598 Telephone: (516) 668 6945 E-mail: fishbeinadamj@gmail.com DOLCO FOOD: Faces "Hamdan" Suit in Eastern District of New York --------------------------------------------------------------- A class action lawsuit has been filed against Dolco Food Corp. The case is captioned Omar A. Hamdan, individually and in behalf of all other persons similarly situated, the Plaintiff, v. Dolco Food Corp., doing business as Key Food Supermarket, jointly and severally; Doleh 919 Food Corp., doing business as Key Food Supermarket, jointly and severally; Grand Meat Corp., doing business as Key Food Supermarket, jointly and severally; Kingdom Castle Food Corp., doing business as Key Food Supermarket, jointly and severally; and Yunes Dolehm, jointly and severally; the Defendants, Case No. 1:16-cv-05739 (E.D.N.Y., Oct. 14, 2016). Dolco Food Corporation is a grocery store located in Ozone Park, New York. The Plaintiff appears pro se. EAST CHICAGO, IN: Class Certification in "Gutierrez" Suit Granted ----------------------------------------------------------------- In the lawsuit titled MARY GUTIERREZ and SHAWN POLK, on behalf of themselves and a class of those similarly situated, the Plaintiffs, v. CITY OF EAST CHICAGO, et al., the Defendants, Case No. 2:16-cv-00111-JVB-PRC (N.D. Ind.), the Hon. Judge Joseph S. Van Bokkelen entered an order certifying a class of: "all current and future tenants of properties owned and managed by the East Chicago Housing Authority (ECHA)". The Court also appoints Jan P. Mensz, Kenneth J. Falk, and Gavin M. Rose, all of the ACLU of Indiana, as class counsel. For the reasons set out in the Magistrate Judge's Paul R. Cherry Report and Recommendation, the Court grants Plaintiff's motion for preliminary injunction. The Plaintiffs claim that ECHA and the City of East Chicago have a policy and practice of conducting warrantless non-consensual criminal searches without exigent circumstances that violate the Fourth Amendment to the United States Constitution. The Court issues a preliminary injunction prohibiting ECHA from conducting warrantless, non-consensual searches of tenant apartments when there are no exigent circumstances and requiring ECHA to obtain consent from the tenant or, if consent is not given or cannot be obtained, to obtain a warrant for all administrative searches that are not based on exigent circumstances, including but not limited to routine HUD inspections, housekeeping inspections, housing quality inspections, exterminations, bedbug inspections, suspected lease violations, and inspections for tenants on probation due to housekeeping violations. This injunction does not apply to tenant-requested maintenance visits and does not prohibit police from accompanying an administrative search or maintenance for security purposes only. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=fv4mFHiB ELTMAN LAW: Faces "Tabor" Suit in District of New Jersey -------------------------------------------------------- A class action lawsuit has been filed against Eltman Law, P.C. The case is styled WENDY TABOR, on behalf of herself and all others similarly situated, the Plaintiff, v. ELTMAN LAW, P.C., MERRIMAN INVESTMENTS, LLC, and JOHN DOES 1-25, he Defendants, Case No. 2:16-cv-07391-JMV-MF (D.N.J., Oct. 17, 2016). The case is assigned to Hon. Judge John Michael Vazquez. Eltman is a debt collection law firm. The Plaintiff is represented by: Joseph K. Jones, Esq. JONES, WOLF & KAPASI, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227 5900 Facsimile: (973) 244 0019 E-mail: jkj@legaljones.com ERIE ISLANDS RESORT: Class Certification of Gordon Suit Affirmed ---------------------------------------------------------------- Presiding Judge Rhonda Jensen of the Ohio Court of Appeals affirmed the judgment of the Ottawa County Court of Common Pleas certifying under Civ. R. 23 the case captioned, Carl R. Gordon, et al., Appellees, v. Erie Islands Resort & Marina, et al. Appellants. Karen Walderzak, Appellee, v. Erie Islands Resort & Marina, et al., Appellants, Case No. OT-15-035 (Ohio App.). Plaintiffs-appellees are Carl and Geri Gordon and Karen Walderzak. The Gordons and Ms. Walderzak separately purchased ownership interests in a resort, known as Erie Islands Resort & Marina, located in Port Clinton, Ohio, in Ottawa County. Defendants- appellants are Erie Islands Resort & Marina, Erie Islands Resort & Marina, Inc., and Erie Islands Holding Company. In the case appellees allege, generally, that appellants breached the terms of the purchase agreements, committed fraud, violated their fiduciary duty to appellees and violated two consumer protection statutes. On April 9, 2010, the Gordons filed a 19-count complaint. On November 21, 2011, Walderzak filed a nine-count complaint, alleging similar, but not identical, facts and legal theories against the same defendants. Gordons' Counts 1 through 9 and Walderzak's first claim allege that appellants violated the Ohio Consumer Sales Practices Act (CSPA), R.C. Chapter 1345. Gordons' Counts 10-15, and Walderzak's Counts 2-4 and 6-7, allege fraud and fraudulent misrepresentations by appellants. Gordons' Counts 16 and 17, and Walderzak's Counts 5 and 9, allege breach of contract. Gordons' Count 18 alleges violation of the Ohio Retail Installment Sales Act (RISA), R.C. Chapter 1317. Finally, Gordons' Count 19 alleges a claim for breach of appellants' fiduciary duty. The Gordons sought class certification under Civ. R. 23 and sought to serve as class representatives. They ultimately argued that six classes should be certified. On January 4, 2013, the trial court conducted a hearing on the Gordons' request for class certification. On November 21, 2013, in a two-paragraph decision, the court certified the case. On appeal, appellants argue that the trial court abused its discretion in making the following six findings: (1) that an identifiable class exists and that the proposed class is unambiguous; (2) that appellees are members of that class; (3) that there are sufficient questions of law and fact that are common to the class and there is commonality between appellees and the class; (4) that appellees' claims are typical of the claims of the class; (5) that appellees fairly and adequately protect the interests of the proposed class; and (6) that appellees met the requirements of Civ.R. 23(B). In her Decision and Judgment dated September 30, 2016 available at https://is.gd/jP8SvP from Leagle.com, Judge Jensen concluded that the trial court elaborated sufficiently as to its rationale for reaching its decision certifying the case under Civ. R. 23 as a class action, addressing each Civ. R. 23 prerequisite and addressing appellants' objections. The action is remanded for a trial on the merits. Carl R. Gordon, et al. are represented by: D. Jeffery Rengel, Esq. Thomas R. Lucas, Esq. RENGEL LAW OFFICE 421 Jackson Street Sandusky, OH 44870 Tel:(419)627-0400 Erie Islands Resort & Marina, et al. are represented by: John A. Coppeler, Esq. Bryan M. Ridder, Esq. FLYNN, PY & KRUSE 115 West Perry Street Port Clinton, OH 43452 Tel:(419)734-3174 FABFITFUN INC: "Byerson" Suit Alleges Violation of Gift Card Laws ----------------------------------------------------------------- JULIA BYERSON, individually and on behalf of all others similarly situated, v. FABFITFUN, INC., a Delaware corporation, MERRITHEW INTERNATIONAL INC., a Canadian corporation, PHYSIQUE 57 INTERNATIONAL INC., a New York corporation, REEDS JEWELERS, INC., a North Carolina corporation d/b/a THE JEWELER'S WIFE, and ZUMBA FITNESS, LLC, a Florida corporation, Case No. 2016-CH-13306 (Ill. Circ., Cook Country, October 11, 2016), alleges that the Defendant sold and issued gift cards with expiration dates that are deceptive and illegal under the gift card laws of Illinois and many other states. FabFitFun, Inc. creates subscription boxes in partnership with retail businesses and merchants. The Plaintiff is represented by: Klint L. Bruno, Esq. Michael L. Silverman, Esq. THE BRUNO FIRM 900 West Jackson Boulevard, Suite 4E Chicago, IL 60607 Phone: 773.969.6160 E-mail: kbruno@brunolawus.com msilverman@brunolawus.com FAMILY LIFE CARE: Seeks 11th Cir. Review of Ruling in "Hughes" -------------------------------------------------------------- Defendant Family Life Care Inc. filed an appeal from a court ruling in the lawsuit entitled Darlene Hughes v. Family Life Care Inc., Case No. 1:15-cv-00007-MW-GRJ, in the U.S. District Court for the Northern District of Florida. As previously reported in the Class Action Reporter, Darlene Hughes sued the Defendant to recover overtime compensation, liquidated damages, and reasonable attorneys' fees and costs under the Fair Labor Standard Act. The appellate case is captioned as Darlene Hughes v. Family Life Care Inc., Case No. 16-16501, in the United States Court of Appeals for the Eleventh Circuit. According to the briefing schedule, the Appellate Court is awaiting the Appellant's CIP, which is due on or before Oct. 31, 2016, as to Appellant Family Life Care Inc. Plaintiff-Appellee DARLENE HUGHES, on her own behalf and others similarly situated, is represented by: Michael Owen Massey, Esq. MASSEY & DUFFY PLLC 855 E University Ave Gainesville, FL 32601 Telephone: (352) 575-0529 Facsimile: (352) 414-5488 E-mail: masseylaw@gmail.com Defendant-Appellant FAMILY LIFE CARE INC., A Florida Corporation, is represented by: Robert Aguilar, Esq. SMITH AGUILAR & SIERON, PA 1045 N Orange Ave., Suite 3 Green Cove Springs, FL 32043-2529 Telephone: (904) 264-6000 FCA US: "Andollo" Suit Transferred from C.D. Cal. to E.D. Mich. --------------------------------------------------------------- The class action lawsuit titled Justine Andollo, Joby Hackett, Jeffrey Guy, Casey E Perkins, David Goldsmith, Michael Vincent Nathan, Jr., Pascual Pietri, Kean McDonald, Lindsey Wells, Todd Matchlev, Scott Michael Youngstrom, Jr., Melvin Scott, Eliam Marrero Bernal, Clare Colrick, Jacob Gunnells, Todd Fisher, John Metzger, Mary Metzger, Cameron Phelps, Robert F Hyatt, IV, Karen Stedman, Danielle Hackett, and Cameron Webster, on behalf of themselves and persons similarly situated, the Plaintiffs, v. FCA US LLC, a Delaware Limited Liability Company, the Defendant, Case No. 5:16-cv-01341, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Eastern District of Michigan (Detroit). The Michigan Eastern District Court Clerk assigned Case No. 2:16-cv-13681-DML- DRG to the proceeding. The case is assigned to Hon. District Judge David M. Lawson. FCA US LLC, also known as Fiat Chrysler or simply Chrysler, is the American subsidiary of Fiat Chrysler Automobiles N.V., an Italian controlled automobile manufacturer registered in the Netherlands with headquarters in London, U.K. for tax purposes. The Plaintiff is represented by Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623 7292 Facsimile: (206) 623 0594 E-mail: steve@hbsslaw.com The Defendant is represented by: Amanda J. Hettinger, Esq. Kathy A. Wisniewski, Esq. Sharon B. Rosenberg, Esq. Stephen A. D'Aunoy, Esq. THOMPSON COBURN LLP One US Bank Plaza Saint Louis, MO 63101 Telephone: (314) 552 6415 Facsimile: (314) 552 7000 E-mail: kwisniewski@thompsoncoburn.com FLINT, MI: ACLU to File New Class Action Over Water Crisis ---------------------------------------------------------- Steve Carmody, writing for Michigan Radio, reports that the American Civil Liberties Union of Michigan will announce plans for a new class action lawsuit related to the Flint water crisis. The ACLU's new lawsuit will focus on the education rights of Flint area school-age children and what is needed to ensure their right to free and quality education. Mistakes in treating water taken from the Flint River resulted in corrosive water damaging pipes which leeched lead into the city's drinking water. Lead can cause neurological damage, especially in children under the age of six years old. Children may suffer from developmental and behavioral issues. The ACLU has previous sued on violations of the federal Safe Water Drinking Act, focusing on the state's responsibility to provide safe water going forward. There are currently several other class action lawsuits and numerous individual lawsuits related to the Flint water crisis making their way through the courts. FORD MOTOR: Settles Explorer Owners' Class Action Over Fumes ------------------------------------------------------------ The National Law Journal reports that Ford Motor Co. agreed to a nationwide class action settlement with up to 1 million Ford Explorer owners who claimed exhaust fumes leaked into their passenger compartments. The proposed settlement, filed Oct. 11 in Fort Lauderdale federal court, provides repairs for owners of 2011 to 2015 Explorers. "A fix was more important than a monetary payment," said John Uustal of Kelley/Uustal, who represented the plaintiffs. FREEPORT-MCMORAN OIL: Garcia Appeals C.D. Cal. Ruling to 9th Cir. ----------------------------------------------------------------- Plaintiff David A. Garcia filed an appeal from a court ruling in his lawsuit titled David Garcia v. Freeport-McMoran Oil and Gas LLC, et al., Case No. 2:16-cv-04320-R-AJW, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, Mr. Garcia sought certification of a putative class of all hourly and otherwise non-exempt employees of Defendants, who, at any time within four years from the date of filing of the lawsuit, worked on oil platforms off of the California coast for periods of 24 hours or more. In September, District Judge Manuel Real entered an order granting defendant's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), without leave to amend, and terminated the case. The appellate case is captioned as David Garcia v. Freeport- McMoran Oil and Gas LLC, et al., Case No. 16-56521, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 14, 2016; -- Transcript is due on February 13, 2017; -- Appellant David A. Garcia's opening brief is due on March 27, 2017; -- Appellees Does and Freeport-McMoran Oil and Gas LLC's answering brief is due on April 27, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiff-Appellant DAVID A. GARCIA, an individual, for himself and those similarly situated, is represented by: Aris Edmund Karakalos, Esq. Anthony Strauss, Esq. STRAUSS LAW GROUP, APC 121 N. Fir Street, Suite F Ventura, CA 93001 Telephone: (805) 641-9992 Facsimile: (805) 641-9993 E-mail: ars@strausslawgroup.com aek@strausslawgroup.com Defendant-Appellee FREEPORT-MCMORAN OIL AND GAS LLC, a Delaware limited liability corporation, is represented by: Baldwin J. Lee, Esq. Alexander Nestor, Esq. ALLEN MATKINS Three Embarcadero Center San Francisco, CA 94111 Telephone: (415) 837-1515 Facsimile: (415) 837-1516 E-mail: blee@allenmatkins.com anestor@allenmatkins.com GODADDY.COM: Bennett's Class Cert. Bid Denied as Premature ---------------------------------------------------------- In the lawsuit entitled JASON BENNETT, on behalf of himself and all others similarly situated, the Plaintiff, v. GODADDY.COM, LLC, the Defendant, Case No. 1:16-cv-00291-N (S.D. Ala.), the Hon. Judge Katherine P. Nelson entered an order on Oct. 13, 2016, denying Plaintiff's motion to stay consideration for class certification. Further, because the Motion to stay is denied, the Plaintiff's motion for class certification is, likewise, denied as premature. However, the plaintiff is authorized to renew such motion at an appropriate time. In accordance with the Court's previous opinion on the issue in Church v. Accretive Health, Inc., 299 F.R.D. 676, 678 (S.D. Ala. 2014), the Judge, does not find Plaintiff's argument persuasive. First, the case on which Plaintiff relies has now been overruled. See Chapman v. First Index, Inc., 796 F.3d 783, 786 (7th Cir. 2015)(holding offer of full compensation does not moot litigation). Second, the Court has previously opined, in a similar situation, that Plaintiff's Motion for Class Certification is nothing more than "a mere placeholder, an empty vessel into which plaintiff might pour substance and content (assuming the evidence gathered in discovery supports it) many months from now after appropriate class discovery has taken place." Church, 299 F.R.D at 677. The granting of such a "placeholder" motion would only burden the Court resulting in "administrative costs", and "inefficiency and waste", when the currently filed Rule 23 Motion "may prove unnecessary because plaintiff may think better of pursuing such a motion based on the results of discovery." Id. Lastly, the Eleventh Circuit and the Supreme Court have both recently held that that an unaccepted offer of judgment does not moot a class action. See Stein v. Buccaneers Ltd. P'ship, 772 F.3d 698, 702 (11th Cir. 2014); Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 670 (2016), as revised (Feb. 9, 2016). As a result, there is no need to proceed in this action in the manner that Plaintiff has requested. The Plaintiff filed his complaint on June 20, 2016, asserting that Defendant violated the Telephone Consumer Protection Act (TCPA). Specifically, Plaintiff asserts that Defendant used an automatic telephone dialing system to call Plaintiff on more than five occasions, which were telemarketing or solicitation calls, made without Plaintiff's express written consent or for emergency purposes. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=qi2laPOM GOGO INC: Salameno Seeks Review of E.D.N.Y. Ruling to 2nd Circuit ----------------------------------------------------------------- Plaintiffs John Jensen, Charles Salameno and Maria-Angela Sanzone filed an appeal from court rulings in their lawsuit styled Salameno v. Gogo Inc., Case No. 16-cv-487, in the U.S. District Court for the Eastern District of New York (Brooklyn). The rulings include the District Court's memorandum & order, dated September 13, 2016, amended memorandum & order, dated July 25, 2016, and memorandum, order & judgment, dated July 7, 2016. The appellate case is captioned as Salameno v. Gogo Inc., Case No. 16-3489, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter, Judge Jack B. Weinstein has granted the Defendants' motion to compel arbitration. Judge Weinstein held that Gogo's terms of use bind the Plaintiffs, and sophisticated business travelers who repeatedly purchased and used Gogo's product can be assumed to have been aware of the arbitration clause where they repeatedly ordered the service. The Defendants provide Internet access on airplanes. The Plaintiffs are dissatisfied customers, who repeatedly used Gogo's product over a period of months or years. The Plaintiffs commenced the action, on behalf of themselves and all others similarly situated, alleging violations of consumer protection statutes and making claims for breach of contract, fraud, promissory estoppel, and unjust enrichment. Plaintiffs-Appellants Charles Salameno, Maria-Angela Sanzone and John Jensen, on behalf of themselves and all others similarly situated, are represented by: Clifford Tucker, Esq. BRYAN D. FISHER LLC 6715 Perkins Road Baton Rouge, LA 70808 Telephone: (718) 803-1234 Facsimile: (225) 612-6813 E-mail: Clifford@fisherinjurylawyers.com Defendants-Appellees Gogo Inc. and Gogo LLC are represented by: Anthony J. Laura, Esq. EPSTEIN BECKER & GREEN, P.C. 1 Gateway Center Newark, NJ 07102 Telephone: (973) 639-8267 Facsimile: (973) 639-8920 E-mail: alaura@ebglaw.com GOOGLE INC: Fillekes Wins Certification of ADEA Class ----------------------------------------------------- The Hon. District Judge Beth Labson Freeman entered an order in the lawsuit entitled ROBERT HEATH, et al., the Plaintiffs, v. GOOGLE INC., the Defendant, Case No. 5:15-cv-01824-BLF (N.D. Cal.), granting Plaintiff Cheryl Fillekes' motion for conditional certification under the federal Age Discrimination in Employment Act (ADEA), and denying Plaintiff Robert Heath's partial joinder. The class Fillekes' proposes for her collective action consists of: "all individuals who interviewed in-person for any Software Engineer (SWE), Site Reliability Engineer (SRE), or Systems Engineer (SYSEng) position with Google in the United States during the time period from August 13, 2010 through the present; were age 40 or older at the time of the interview; and were refused employment by Google". Heath seeks to join in Fillekes' motion "in all parts except the proposed scope of the class and the identification of the collective action counsel". Heath objects to Fillekes' class definition because it would exclude him. Instead, he proposes the following class definition: "[a]ll applicants for any Software Engineer (SWE), Site Reliability Engineer (SRE), or Systems Engineer (SysEng) positions with Google in the United States during the time since Google began its pattern or practice of discriminating against applicants over the age of 40 (which Plaintiff is informed and believes was no later than August 13, 2010 through the present, and possibly earlier); who were 40 years of age or older at the time of their application; and who were rejected for the position". Recognizing that the Court was not inclined to conditionally certify Heath's proposed class, he asked the Court to either narrow the scope itself or allow him to file a renewed motion for conditional certification. The Court declined, however, to narrow the scope of the proposed class on its own motion. To do so would improperly prevent Google from identifying infirmities in such an alternative definition and deprive the Court of sufficient evidence and argument on which to base such a determination, the judge said. Further, the Court denies Heath's request to file a second motion for conditional certification. Not only is trial set for June 2017, thus preventing sufficient time to brief, hear, and decide such a motion, but also this request comes on the heels of Heath's tardy first motion. Prejudice to Google would thus be substantial, according to the judge, and there is no good explanation why Heath reached so far in his initial class definition if he recognized that it was ambiguous and overbroad as his attorney acknowledged at the hearing. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=EPAwsfiu HERTZ CORPORATION: Faces "Schwartz" Suit in C.D. of California -------------------------------------------------------------- A class action lawsuit has been filed against The Hertz Corporation. The case is captioned Edward Schwartz, ORG Holdings, and ORG Portfolio Management LLC, individually and on behalf of all others similarly situated, the Plaintiff, v. The Hertz Corporation, the Defendant, Case No. 2:16-cv-07713 (C.D. Cal., Oct. 17, 2016). Hertz Corporation, a subsidiary of Hertz Global Holdings Inc., is an American car rental company with international locations in 150 countries worldwide. Hertz is the largest U.S. car rental company by sales. The Plaintiffs are represented by: Alfredo Torrijos, Esq. ARIAS SANGUINETTI STAHLE AND TORRIJOS LLP 6701 Center Drive West 14th Floor Los Angeles, CA 90045 Telephone: (310) 844 9696 Facsimile: (310) 861 0168 E-mail: alfredo@asstlawyers.com HIRERIGHT INC: Settlement in "Watkins" Suit Granted Final Okay -------------------------------------------------------------- In the case, BLANCA WATKINS, SPENCER HOYT, individually, on behalf of other similarly situated individuals, and on behalf of the general public, Plaintiffs, v. HIRERIGHT, INC., Defendant, Case No. 13-cv-1432-BAS-BLM (S.D. Cal.), District Judge Cynthia Bashant granted the parties' motion for final approval of class action settlement. The case involves the Plaintiffs alleging that the Defendant, a consumer reporting agency, violated the Fair Credit Reporting Act by failing to provide consumers with full-file disclosures despite written requests to do so The proposed Settlement Agreement applies to class members composed of all individuals for whom the Defendant's records indicate that the individual made a request for information from the consumer's file from May 23, 2008 through the date of preliminary approval. In the case, the Defendant has established a common fund of $460,000, exclusive of attorneys' fees and costs of administration. The fund will be distributed pro rata to all Class Members. Although individual payouts are capped at $200.00, given the high number of claimants, the settlement amount per individual claim will be $25.02. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/mYQHSa from Leagle.com. Spencer Hoyt, Plaintiff, represented by Anna P. Prakash -- aprakash@nka.com -- Nichols Kaster PLLP. Hireright, Inc., Defendant, represented by Jennifer L. Mora -- jmora@littler.com -- Littler & Mendelson PC, Rod M. Fliegel -- rfliegel@littler.com -- Littler Mendelson, Amanda N. Fu, Littler Mendelson P.C. & William J. Simmons -- wsimmons@littler.com -- Littler Mendelson, P.C., pro hac vice. HOSPITAL SISTERS: Faces "Holcomb" Suit Alleging ERISA Violation --------------------------------------------------------------- Mary Holcomb and Mary Grovogel, on behalf of themselves, individually, and on behalf of all others similarly situated, and on behalf of the Hospital Sisters Health System Plans, v. Hospital Sisters Health System; Hospital Sisters Health System Retirement Committee; John and Jane Does 1-20, Members of the Hospital Sisters Health System Retirement Committee; and John and Jane Does 21-40, Case No. 3:16-cv-03282-SEM-TSH (C.D. Ill., October 11, 2016), concerns whether HSHS properly maintains its pension plans under the Employee Retirement Income Security Act. Defendant Hospital Sisters Health System, by and through its subsidiaries and/or affiliates, operates a hospital corporation that provides healthcare and healthcare-related services in Illinois and Wisconsin. The Plaintiffs are represented by: Matthew H. Armstrong, Esq. ARMSTRONG LAW FIRM LLC 8816 Manchester Road, No. 109 St. Louis, MO 63144 Phone: (314) 258-0212 E-mail: matt@mattarmstronglaw.com - and - Lynn Lincoln Sarko, Esq. Laura R. Gerber, Esq. Alison S. Gaffney, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Phone: (206) 623-1900 Fax: (206) 623-3384 E-mail: lsarko@kellerrohrback.com lgerber@kellerrohrback.com agaffney@kellerrohrback.com - and - Ron Kilgard, Esq. KELLER ROHRBACK L.L.P. 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012 Phone: (602) 248-0088 Fax: (602) 248-2822 E-mail: rkilgard@kellerrohrback.com - and - Karen L. Handorf, Esq. Michelle Yau, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 Phone: (202) 408-4600 Fax: (202) 408-4699 E-mail: khandorf@cohenmilstein.com myau@cohenmilstein.com HP INC: Sued in California Over Printers' Software Update --------------------------------------------------------- The National Law Journal reports that lawyers at Girard Gibbs sued HP Inc. in the Northern District of California on Oct. 7 alleging that a software update the company installed in customers' internet-connected printers in September disabled machines loaded with ink cartridges made by competing companies. The suit claims that on Sept. 13 thousands of HP printers displayed an error message saying that the non-HP ink cartridges appear to be "damaged or missing" and needed to be replaced. ILLINOIS: To Expand Children's Access to Mental Health Services --------------------------------------------------------------- Open Minds reports that the Illinois Medicaid program is preparing to comply with a settlement agreement that will expand children's access to mental and behavioral health services. The expansion will take place through the Medicaid Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit. Medicaid-eligible children under age 21 diagnosed with behavioral health disorders will be able to receive a continuum of behavioral health home- and community-based services (HCBS) and inpatient care through EPSDT. The state's plans will be finalized by December 2017. The service expansion is the result of a settlement agreement in the class action filed against the state. ILLINOIS, USA: 7th Circuit Appeal Filed in "Kolton" Class Suit -------------------------------------------------------------- Plaintiffs Anthony D. Kolton and S. David Goldberg filed an appeal from a court ruling in their lawsuit entitled Anthony Kolton, et al. v. Michael Frerichs, Case No. 1:16-cv-03792, in the U.S. District Court for the Northern District of Illinois, Eastern Division. As previously reported in the Class Action Reporter on October 7, 2016, District Judge Charles P. Korocas granted the Defendant's motion to dismiss the case for lack of subject matter jurisdiction. The case arises from the Illinois Uniform Disposition of Unclaimed Property Act, 765 ILCS Section 1025/1, et seq., (the Act), which pertains to personal property held by a third party (the holder). Holders include, but are not limited to, banks, corporations, or public utilities. Defendant Michael W. Frerichs is the Treasurer of the state of Illinois. The appellate case is captioned as Anthony Kolton, et al. v. Michael Frerichs, Case No. 16-3658, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript information sheet is due by October 27, 2016; and -- Appellant's brief is due on or before November 22, 2016, for S. David Goldberg and Anthony D. Kolton. Plaintiffs-Appellants ANTHONY D. KOLTON and S. DAVID GOLDBERG, individually and on behalf of classes of all others similarly situated, are represented by: Thomas Arthur Doyle, Esq. THOMAS A. DOYLE, LTD. 55 W. Monroe Street Chicago, IL 60603-0000 Telephone: (312) 346-2222 E-mail: tad@wexlerwallace.com Defendant-Appellee MICHAEL W. FRERICHS, Treasurer of the State of Illinois, is represented by: Nadine J. Wichern, Esq. OFFICE OF THE ATTORNEY GENERAL 100 W. Randolph Street State of Illinois Center Chicago, IL 60601-0000 Telephone: (312) 814-5659 E-mail: nwichern@atg.state.il.us JAMES HARDIE: NZ Court Allows Cladding Class Action to Proceed -------------------------------------------------------------- The Australian Associated Press reports that the New Zealand High Court has given permission for a leaky building class action to proceed against cladding maker James Hardie. The action claims James Hardie was negligent in its design, manufacture and supply of the Harditex and Titanboard cladding systems. The first Harditex claim was brought by Tracey Cridge and Mark Unwin, who claim their Wellington home suffered widespread internal water damage -- estimated to cost more than $300,000 to fix. Another Wellington couple, Katrina Fowler and Scott Woodhead, have also claimed over their 2000 duplex. James Hardie denies the claims and has said it stands by the integrity and quality of its building products. It would vigorously defend any allegations made against its products, it said when the class action was revealed last year. Lawyer Dan Parker said 19 commercial owners had signed up for the Titanboard claim, and more than 60 for the Harditex claim. Last year Mr Parker said more than 500 people had contacted them about potential claims. James Hardie was founded in Melbourne in 1888 by Scottish immigrant James Hardie. It is now listed on the Australian and New York stock exchanges and has its headquarters in Dublin. In the 2016 financial year it generated net sales of $US1.73 billion. JESSE CASARES: JT's Frames Files Placeholder Class Cert. Bid ------------------------------------------------------------ In the lawsuit styled JT'S FRAMES, INC., an Illinois corporation, individually and as the representative of a class of similarly- situated persons, the Plaintiff, v. JESSE CASARES, JOE CASARES, PATRICIA BEZABALETA a/k/a PATRICIA ZABELETA, DAVID A. OZUNA, JOHN MEDINA and JOHN DOES 1-10, the Defendants, Case No. 1:16-cv-02504 (N.D, Ill.), the Plaintiff asks the Court to certify its first amended "Damasco" motion for class certification and requests for status conference. The Plaintiff proposes the following class definition: "all persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) which Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice". The Plaintiff further asks to appoint Plaintiff as the class representative, and appoint Plaintiff's attorneys as class counsel. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=KZxvy4oZ The Plaintiff is represented by: Brian J. Wanca, Esq. Ross M. Good, Esq. Ryan M. Kelly, Esq. ANDERSON & WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368 1500 Facsimile: (847) 368 1501 E-mail: bwanca@andersonwanca.com rgood@andersonwanca.com rkelly@andersonwanca.com JP MORGAN: "Hall" RESPA Lawsuit Transferred to S.D. Florida ----------------------------------------------------------- Michael A. Hall, on behalf of himself and all similarly-situated individuals, v. JP MORGAN CHASE BANK, N.A., Case No. 2:16-cv- 14435-RLR (September 15, 2016) was transferred from the U.S. District Court for the Middle District of Florida to the U.S. District Court for the Southern District of Florida. The case alleges that Chase filed a foreclosure action against Plaintiff despite the submission of a completed loss mitigation application, which is in violation of the Real Estate Settlement Procedures Act. JP MORGAN CHASE BANK, N.A. is a servicer on home loan and mortgage properties. The Plaintiff is represented by: Luis A. Cabassa, Esq. Brandon J. Hill, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Phone: 813-224-0431 Fax: 813-229-8712 E-mail: lcabassa@wfclaw.com bhill@wfclaw.com twells@wfclaw.com jriley@wfclaw.com KAYABA INDUSTRY: Accused of Fixing Auto Shock Absorber Prices ------------------------------------------------------------- V.I.P., INC. and PERFORMANCE INTERNET PARTS, LLC, on behalf of themselves and all others similarly situated, v. KAYABA INDUSTRY CO. LTD., d/b/a KYB CORPORATION, et al., Case No. 2:16-cv-13616- VAR-RSW (E.D. Mich., October 11, 2016), alleges that the Defendants and their co-conspirators violated the antitrust laws by entering into a continuing conspiracy to rig bids and fix, raise, maintain, and/or stabilize prices of Automotive Shock Absorbers sold in the United States and elsewhere at supra- competitive levels. Defendant Kayaba Industry Co. Ltd., d/b/a KYB Corporation, is a Japanese corporation with its principal place of business in Tokyo. It is a manufacturer of Automotive Shock Absorbers. The Plaintiff is represented by: David H. Fink, Esq. Darryl Bressack, Esq. FINK + ASSOCIATES LAW 38500 Woodward Avenue; Suite 350 Bloomfield Hills, MI 48304 Phone: (248) 971-2500 E-mail: dfink@finkandassociateslaw.com dbressack@finkandassociateslaw.com - and - Gregory P. Hansel, Esq. Randall B. Weill, Esq. Jonathan G. Mermin, Esq. Michael S. Smith, Esq. PRETI, FLAHERTY, BELIVEAU & PACHIOS LLP One City Center P.O. Box 9546 Portland, ME 04112-9546 Phone: (207) 791-3000 E-mail: ghansel@preti.com rweill@preti.com jmermin@preti.com msmith@preti.com - and - Joseph C. Kohn, Esq. William E. Hoese, Esq. Douglas A. Abrahams, Esq. KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Phone: (215) 238-1700 E-mail: jkohn@kohnswift.com whoese@kohnswift.com dabrahams@kohnswift.com - and - Steven A. Kanner, Esq. William H. London, Esq. Michael E. Moskovitz, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Phone: (224) 632-4500 E-mail: skanner@fklmlaw.com wlondon@fklmlaw.com mmoskovitz@fklmlaw.com - and - Eugene A. Spector, Esq. William G. Caldes, Esq. Jonathan M. Jagher, Esq. Jeffrey L. Spector, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Phone: (215) 496-0300 E-mail: espector@srkw-law.com bcaldes@srkw-law.com jjagher@srkw-law.com jspector@srkw-law.com - and - Solomon B. Cera, Esq. CERA LLP 595 Market Street Suite 2300 San Francisco, CA 94105 Phone: (415) 977-223 E-mail: scera@cerallp.com - and - M. John Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 204 Palm Beach Gardens, FL 33410 Phone: (561) 833-6575 E-mail: jdominguez@cohenmilstein.com - and - David A. Young, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW, Suite 500 Washington, DC 20005 Phone: (202) 408-4600 E-mail: dyoung@cohenmilstein.com - and - Irwin B. Levin, Esq. Scott Gilchrist, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Phone: (317) 636-6481 E-mail: ilevin@cohenandmalad.com sgilchrist@cohenandmalad.com KEEFE CORP: Keenan Cofield Must Pay $13.94 Initial Filing Fee ------------------------------------------------------------- District Judge Rodney W. Sippel denied the Plaintiff's motion for leave to proceed in forma pauperis and ordered that, within 30 days from the date of the order dated September 30, 2016, the Plaintiff must pay an initial filing fee of $13.94 in the case styled, KEENAN K. COFIELD, Plaintiff, v. KEEFE CORP., et al., Defendants, No. 4:16CV1390 RWS (E.D. Miss.). The case involves claims against the Defendants' over-pricing of prison commissary items. The Court held that the action as legally frivolous as commissary prices implicate no constitutional right. Moreover, a review on the Plaintiff's account indicates an average monthly balance of $69.68. Accordingly, a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. However, the Plaintiff has insufficient funds to pay the entire filing fee. Thus, the Court will assess an initial partial filing fee of $13.94, which is 20% of Plaintiff's average monthly balance pursuant to 28 U.S.C. Sec. 1915(b). A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/VZUZTq from Leagle.com. Keenan K. Cofield, Plaintiff, Pro Se. KENTUCKY TEACHERS' RETIREMENT: Court Dismisses "Wieck" Claims ------------------------------------------------------------- Senior District Judge Charles R. Simpson, III of the United States District Court for the Western District of Kentucky granted with prejudice Defendant's motion to dismiss the case captioned, RANDOLPH WIECK, et al., Plaintiffs, v. BOARD OF TRUSTEES OF THE KENTUCKY TEACHERS' RETIREMENT SYSTEM, et al., Defendants, Case No. 3:15-CV-692-CRS (W.D. Ky.). The pro se plaintiffs, current and retired teachers Randolph Wieck, Betsey Bell, and Jane Norman, filed the putative class action on behalf of similarly situated members of the Kentucky Teachers' Retirement System (KTRS). The complaint asserts many causes of action, including violations of the Contract Clause, Takings Clause, and Due Process Clause of the Fifth Amendment of the United States Constitution, the Fair Labor Standards Act (FLSA), the Securities Act, the Investment Advisers Act of 1940, various state statutes, and common law breach of fiduciary duty. The foundation of Plaintiffs' claims rest in alleged mismanagement of KTRS, resulting in an underfunding of the system. The defendants include the Board of Trustees of KTRS (the Board), the Attorney General (AG), the Auditor of Public Accounts (Auditor), the Kentucky Educational Association, and multiple investment companies. Defendants move to dismiss Plaintiffs' claims under Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), 12(b)(4), 12(b)(5), 12(b)(6), and the doctrine of sovereign immunity. Defendants asserting this basis for dismissal are the AG and Auditor, the Board, KKR and Rockwood, Rockwood, Blackstone, and Highbridge. Additionally, two motions to dismiss by the AG and Auditor and the Board simultaneously assert lack of standing, further warranting dismissal for lack of subject-matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1). In his Memorandum Opinion dated September 30, 2016 available at https://is.gd/38bUMJ from Leagle.com, Judge Simpson, III dismissed all state law claims against the AG, Auditor, and the Board without prejudice based upon the doctrine of sovereign immunity; dismissed all other claims against those Defendants without prejudice for improper venue; dismissed all claims against Highbridge without prejudice for insufficient service of process; and dismissed all claims against KKR, Rockwood, and Blackstone with prejudice for failure to state a claim upon which relief may be granted. Board of Trustees of the Kentucky Teachers' Retirement System (KTRS), et al. are represented by Robert W. Kellerman, Esq. -- robert.kellerman@skofirm.com -- STOLL KEENON OGDEN PLLC KKR & Company, et al. are represented by Cassandra J. Wiemken, Esq. -- cwiemken@stites.com -- and Michael T. Leigh, Esq. -- mleigh@stites.com -- STITES & HARBISON, PLLC Highbridge- JP Morgan is represented by: Rebecca F. Schupbach, Esq. NAPIER GAULT SCHUPACH & STEVENS PLC 730 W Main St #400 Louisville, KY 40202 Tel: (502)855-3800 LEAPFROG ENTEPRISES: Judge Extends Case Management Conference ------------------------------------------------------------- In the case, In re LEAPFROG ENTERPRISES, INC., Master File No. 3:15-cv-00347-EMC (N.D. Cal.), District Judge Edward M. Chen extended the October 18, 2016 Initial Case Management Conference until 30 days after the Court issues an order resolving the Defendants' anticipated motion to dismiss the complaint. Pursuant to the parties' stipulation: (a) the Defendants' anticipated motion to dismiss the complaint is due on November 4, 2016; (b) the Lead Plaintiff's opposition to the Defendants' motion to dismiss the Complaint is due on December 19, 2016; (c) the Defendants' reply in support of their motion to dismiss is due January 19, 2017; and, (d) the hearing on the Defendants' motion to dismiss is set for February 2, 2017. The parties have conferred and agreed that conducting the Initial Case Management Conference before resolution of the Defendants' anticipated motion to dismiss the Complaint would unnecessarily burden the Court and the parties. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/7E8dzl from Leagle.com. Abere Newett, Plaintiff, represented by Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP. Mary L Tumlin, Plaintiff, represented by Ramzi Abadou -- rabadou@gmail.com -- Kahn Swick Foti LLP. Richard Farias, Plaintiff, represented by Jeremy A. Lieberman, Pomerantz LLP. KBC Asset Management NV, Plaintiff, represented by James Michael Hughes -- jhughes@motleyrice.com -- Motley Rice LLC, pro hac vice, Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Matthew Seth Melamed -- mmelamed@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Willow E. Radcliffe -- willowr@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Leapfrog Enterprises, Inc., et al., Defendants, represented by Jordan Eth -- jeth@mofo.com -- Morrison & Foerster LLP & Mark R.S. Foster -- mfoster@mofo.com -- Morrison & Foerster LLP. LEXINGTON-FAYETTE URBAN: Court Dismisses "Harris" Class Complaint ----------------------------------------------------------------- Senior District Judge Joseph M. Hood denied the Plaintiff's Motion to Amend Complaint, and likewise, denied in part the Defendants' Motion to Dismiss the putative class action complaint in the case styled, CHARMEAIRRIA HARRIS, Plaintiff, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, et al., Defendants, Action No. 5:15-cv-367-JMH (E.D. Ky.). The putative class action involves the Plaintiff's claims that she was injured when the Lexington-Fayette Urban County Government (LFUCG) jail retained funds held for her by the jail while she was detained to cover the cost of her confinement under KRS 441.265, which does not require entry of a court order before assessing such charges. Thus, the Plaintiff avers in Count I of her Complaint that the collection of the fees in the absence of a court order is a deprivation of property without due process of law and violates the due process guarantees of the Fourteenth Amendment and the Fourth Amendment's provision against unreasonable searches and seizures, all in violation of 42 U.S.C. Sec. 1983. The Court held that the correct reading of KRS 441.265 is that the fees may be imposed as soon as the prisoner is booked into the jail and may be periodically deducted from the prisoner's account as provided by local regulation. Citing the case of Sickles v. Campbell Cty. (E.D. Ky. 2006), the Court further concluded that since the statute is valid, the inmate owes fees that begin to accrue immediately upon his or her being booked into the jail. Moreover, since the Plaintiff has not adequately pleaded her substantive claim in Count I, the Court has no basis upon which to issue declaratory relief, and therefore, the Plaintiff's claim seeking a declaratory judgment is dismissed. Finally, the Court declines to exercise supplemental jurisdiction over her remaining state law claims in Counts II through IX. The Court dismissed the remaining claims without prejudice. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/OuCYx0 from Leagle.com. Plaintiff-Appellant CHARMEAIRRIA HARRIS, Individually and on behalf of all persons similarly situated, is represented by: Camille Bathurst, Esq. Gregory A. Belzley, Esq. BELZLEY BATHURST ATTORNEYS P.O. Box 278 Prospect, KY 40059 Telephone: (502) 292-2452 E-mail: camillebathurst@aol.com gbelzley@aol.com - and - Matthew W. Boyd, Esq. BOYD LAW OFFICE 155 East Main Street, Suite 220 Lexington, KY 40507 Telephone: (859) 252-0222 E-mail: mattboydlaw@aol.com Defendants-Appellees LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT and RODNEY BALLARD, Individually, are represented by: Keith Moorman, Esq. FROST BROWN TODD 250 W. Main Street, Suite 2800 Lexington, KY 40507 Telephone: (859) 231-0000 Facsimile: (859) 231-0011 E-mail: kmoorman@fbtlaw.com LONG ISLAND BONE: Seeks 2nd Cir. Review of Order in "Pray" Suit --------------------------------------------------------------- Defendants Long Island Bone & Joint, LLP, and Michael Fracchia, M.D., filed an appeal from a District Court order dated Sept. 14, 2016, in the lawsuit entitled Pray v. Long Island Bone & Joint, LLP, Case No. 14-cv-5386, in the U.S. District Court for the Eastern District of New York (Central Islip). The lawsuit is brought over alleged violations of the Fair Labor Standards Act. The appellate case is captioned as Pray v. Long Island Bone & Joint, LLP, Case No. 16-3485, in the United States Court of Appeals for the Second Circuit. Plaintiff-Appellee Dorothea B. Pray, on behalf of herself and all others similarly-situated, is represented by: Alexander Todd Coleman, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 1010 Northern Boulevard Great Neck, NY 11021 Telephone: (516) 248-5550 E-mail: atc@employmentlawyernewyork.com Defendants-Appellants Long Island Bone & Joint, LLP, and Michael Fracchia, M.D., in his individual and professional capacities Jessica M. Seyer, Esq. GABRIELE & MARANO, LLP 100 Quentin Roosevelt Boulevard Merrick, NY 11566 Telephone: (516) 542-1000 E-mail: jseyer@gabrielemarano.com LUMBER LIQUIDATORS: "Bolin" Suit Consolidated in MDL 2743 --------------------------------------------------------- The class action lawsuit titled Billy Bolin, individually and on behalf of all others similarly situated, the Plaintiffs, v. Lumber Liquidators, Inc., Case No. 3:16-cv-00590, was transferred from the U.S. District Court for the Southern District of Mississippi, to the U.S. District Court for the District of Eastern District of Virginia - (Alexandria). The District Court Clerk assigned Case No. 1:16-cv-05019-AJT-TRJ to the proceeding. The Bolin case is being consolidated with MDL 2743 in re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 4, 2016. These cases concern the sale and marketing of Chinese-manufactured laminate flooring sold by defendant Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. In its October 4, 2016 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the durability of Chinese-manufactured laminate flooring sold by Lumber Liquidators under the "Dream Home" label, particularly the issue of whether the laminates comply with the allegedly warranted industry standard for use in residential settings. Presiding Judge in the MDL is Hon. Anthony J. Trenga, United States District Judge. The lead case is 1:16-md-02743-AJT-TRJ. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiff is represented by: James R. Reeves, Jr. REEVES & MESTAYER, PLLC P.O. Drawer 1388 Biloxi, MS 39533 Telephone: (228) 374 5151 Facsimile: (228) 374 6630 E-mail: jrr@rmlawcall.com The Defendant is represented by: Donna Marie Meehan, Esq. COSMICH, SIMMONS & BROWN, PLLC - JACKSON P. O. Box 22626 One Eastover Center 100 Vision Drive, Suite 200 (39211) Jackson, MS 39225-2626 Telephone: (601) 519 0324 Facsimile: (601) 863 0078 E-mail: donna@cs-law.com LUMBER LIQUIDATORS: "Coburn" Suit Consolidated in MDL 2743 ---------------------------------------------------------- The class action lawsuit titled Patricia Coburn, Jim Moylen, and Diana Sirois, individually and on behalf of all others similarly situated, the Plaintiffs, v. Lumber Liquidators, Inc., Case No. 3:16-cv-01931, was transferred from the U.S. District Court for the Southern District of California, to the U.S. District Court for the District of Eastern District of Virginia - (Alexandria). The District Court Clerk assigned Case No. 1:16-cv-05018-AJT-TRJ to the proceeding. The Coburn case is being consolidated with MDL 2743 in re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 4, 2016. These cases concern the sale and marketing of Chinese-manufactured laminate flooring sold by defendant Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. In its October 4, 2016 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the durability of Chinese-manufactured laminate flooring sold by Lumber Liquidators under the "Dream Home" label, particularly the issue of whether the laminates comply with the allegedly warranted industry standard for use in residential settings. Presiding Judge in the MDL is Hon. Anthony J. Trenga, United States District Judge. The lead case is 1:16-md-02743-AJT-TRJ. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiffs are represented by: Alexander Robertson, IV, Esq. ROBERTSON & ASSOCIATES, LLP 32121 Lindero Canyon Road, Suite 200 Westlake Village, CA 91361 Telephone: (818) 851 3850 Facsimile: (818) 851 3850 E-mail: arobertson@arobertsonlaw.com The Defendant is represented by: William L Stern, Esq. MORRISON AND FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268 7000 Facsimile: (415) 268 7522 E-mail: wstern@mofo.com LUMBER LIQUIDATORS: "Coleman" Suit Consolidated in MDL 2743 ----------------------------------------------------------- The class action lawsuit titled Clara Coleman, individually and on behalf of all others similarly situated, the Plaintiffs, v. Lumber Liquidators, Inc., Case No. 1:16-cv-09095, was transferred from the U.S. District Court for the Northern District of Illinois, to the U.S. District Court for the District of Eastern District of Virginia - (Alexandria). The District Court Clerk assigned Case No. 1:16-cv-05022-AJT-TRJ to the proceeding. The Coleman case is being consolidated with MDL 2743 in re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 4, 2016. These cases concern the sale and marketing of Chinese-manufactured laminate flooring sold by defendant Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. In its October 4, 2016 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the durability of Chinese-manufactured laminate flooring sold by Lumber Liquidators under the "Dream Home" label, particularly the issue of whether the laminates comply with the allegedly warranted industry standard for use in residential settings. Presiding Judge in the MDL is Hon. Anthony J. Trenga, United States District Judge. The lead case is 1:16-md-02743-AJT-TRJ. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiff is represented by: Mark J. Uyeno, Esq. Alexander Robertson, IV, Esq. ROBERTSON AND ASSOCIATES LLP 32121 Lindero Canyon Road Suite 200 Westlake Village, CA 91361 Telephone: (818) 851 3850 Facsimile: (818) 851 3851 E-mail: muyeno@arobertsonlaw.com arobertson@arobertsonlaw.com - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Avenue West Hollywood, CA 90069 Telephone: 474 9111 Facsimile (310) 474 8585 E-mail: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com The Defendant is represented by: David B. Sudzus, Esq. DRINKER BIDDLE & REATH LLP 191 North Wacker Drive, Suite 3700 Chicago, IL 60606 Telephone: (312) 569 1000 Facsimile: (312) 569 3498 E-mail: david.sudzus@dbr.com - and - Elizabeth Camille Christen, Esq. DONOHUE BROWN MATHEWSON & SMYTH 140 S. Dearborn, Suite 800 Chicago, IL 60603 Telephone: (312) 422 4908 E-mail: christen@dbmslaw.com LUMBER LIQUIDATORS: "Florez" Suit Consolidated in MDL 2743 ---------------------------------------------------------- The class action lawsuit titled Erin Florez, individually and on behalf of all others similarly situated, the Plaintiffs, v. Lumber Liquidators, Inc., Case No. 2:16-cv-01418, was transferred from the U.S. District Court for the Northern District of Alabama, to the U.S. District Court for the District of Eastern District of Virginia - (Alexandria). The District Court Clerk assigned Case No. 1:16-cv-05020-AJT-TRJ to the proceeding. The Florez case is being consolidated with MDL 2743 in re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 4, 2016. These cases concern the sale and marketing of Chinese-manufactured laminate flooring sold by defendant Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. In its October 4, 2016 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the durability of Chinese-manufactured laminate flooring sold by Lumber Liquidators under the "Dream Home" label, particularly the issue of whether the laminates comply with the allegedly warranted industry standard for use in residential settings. Presiding Judge in the MDL is Hon. Anthony J. Trenga, United States District Judge. The lead case is 1:16-md-02743-AJT-TRJ. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiff is represented by: Eric D Hoaglund, Esq. MCCALLUM HOAGLUND COOK & IRBY LLP 905 Montgomery Highway, Suite 201 Vestavia Hills, AL 35216 Telephone: (205) 824 7767 Facsimile: (205) 824 7768 E-mail: ehoaglund@mhcilaw.com LUMBER LIQUIDATORS: "Gonzalez" Suit Consolidated in MDL 2743 ------------------------------------------------------------ The class action lawsuit titled Jason Gonzalez, Katie Gonzalez, individually and on behalf of all others similarly situated, the Plaintiffs, v. Lumber Liquidators, Inc., Case No. 3:16-cv-01552, was transferred from the U.S. District Court for the District of Connecticut, to the U.S. District Court for the District of Eastern District of Virginia - (Alexandria). The District Court Clerk assigned Case No. 1:16-cv-05025-AJT-TRJ to the proceeding. The Gonzalez case is being consolidated with MDL 2743 in re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 4, 2016. These cases concern the sale and marketing of Chinese-manufactured laminate flooring sold by defendant Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. In its October 4, 2016 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the durability of Chinese-manufactured laminate flooring sold by Lumber Liquidators under the "Dream Home" label, particularly the issue of whether the laminates comply with the allegedly warranted industry standard for use in residential settings. Presiding Judge in the MDL is Hon. Anthony J. Trenga, United States District Judge. The lead case is 1:16-md-02743-AJT- TRJ. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiffs are represented by: Mark J. Uyeno, Esq. Alexander Robertson, IV, Esq. ROBERTSON AND ASSOCIATES LLP 32121 Lindero Canyon Road Suite 200 Westlake Village, CA 91361 Telephone: (818) 851 3850 Facsimile: (818) 851 3851 E-mail: muyeno@arobertsonlaw.com arobertson@arobertsonlaw.com - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Avenue West Hollywood, CA 90069 Telephone: 474 9111 Facsimile (310) 474 8585 E-mail: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com LUMBER LIQUIDATORS: "Chestnut" Suit Consolidated in MDL 2743 ------------------------------------------------------------ The class action lawsuit titled James Chestnut, individually and on behalf of all others similarly situated, the Plaintiffs, v. Lumber Liquidators, Inc., Case No. 8:16-cv-03116, was transferred from the U.S. District Court for the District of Maryland, to the U.S. District Court for the District of Eastern District of Virginia - (Alexandria). The District Court Clerk assigned Case No. 1:16-cv-05024-AJT-TRJ to the proceeding. The Chestnut case is being consolidated with MDL 2743 in re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 4, 2016. These cases concern the sale and marketing of Chinese-manufactured laminate flooring sold by defendant Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. In its October 4, 2016 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the durability of Chinese-manufactured laminate flooring sold by Lumber Liquidators under the "Dream Home" label, particularly the issue of whether the laminates comply with the allegedly warranted industry standard for use in residential settings. Presiding Judge in the MDL is Hon. Anthony J. Trenga, United States District Judge. The lead case is 1:16-md-02743-AJT- TRJ. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiff is represented by: Alexander Robertson, IV, Esq. ROBERTSON AND ASSOCIATES LLP 32121 Lindero Canyon Road Suite 200 Westlake Village, CA 91361 Telephone: (818) 851 3850 Facsimile: (818) 851 3851 E-mail: arobertson@arobertsonlaw.com LUMBER LIQUIDATORS: "Masters" Suit Consolidated in MDL 2743 ----------------------------------------------------------- The class action lawsuit titled Doreen Masters, individually and on behalf of all others similarly situated, the Plaintiffs, v. Lumber Liquidators, Inc., Case No. 2:16-cv-01529, was transferred from the U.S. District Court for the Northern District of Alabama, to the U.S. District Court for the District of Eastern District of Virginia - (Alexandria). The District Court Clerk assigned Case No. 1:16-cv-05021-AJT-TRJ to the proceeding. The Masters case is being consolidated with MDL 2743 in re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 4, 2016. These cases concern the sale and marketing of Chinese-manufactured laminate flooring sold by defendant Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. In its October 4, 2016 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Virginia will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the durability of Chinese-manufactured laminate flooring sold by Lumber Liquidators under the "Dream Home" label, particularly the issue of whether the laminates comply with the allegedly warranted industry standard for use in residential settings. Presiding Judge in the MDL is Hon. Anthony J. Trenga, United States District Judge. The lead case is 1:16-md-02743-AJT-TRJ. Lumber Liquidators is a specialty retailer of hardwood flooring. The Plaintiff is represented by: Mark J. Uyeno, Esq. Alexander Robertson, IV, Esq. ROBERTSON AND ASSOCIATES LLP 32121 Lindero Canyon Road Suite 200 Westlake Village, CA 91361 Telephone: (818) 851 3850 Facsimile: (818) 851 3851 E-mail: muyeno@arobertsonlaw.com arobertson@arobertsonlaw.com - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Avenue West Hollywood, CA 90069 Telephone: 474 9111 Facsimile (310) 474 8585 E-mail: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com - and - Patrick M Wallace Daniel K. Bryson Whitfield Bryson and Mason LLP 900 West Morgan Street Raleigh, NC 27603 (900) 600-5000 Fax: (900) 600-5035 E-mail: pat@wbmllp.com dan@wbmllp.com The Defendant is represented by: Kimberly W Geisler SCOTT DUKES & GEISLER PC 211 22nd Street North Birmingham, AL 35203 Telephone: (205) 251 2300 Facsimile: (205) 251 6773 E-mail: kgeisler@scottdukeslaw.com LUMBER LIQUIDATORS: "Norris" Suit Consolidated in MDL 2743 ---------------------------------------------------------- The lawsuit entitled Richard Norris v. Lumber Liquidators Inc., Case No. 2:16-cv-00144, was transferred from the U.S. District Court for the Southern District of Mississippi to the U.S. District Court for the Eastern District of Virginia (Alexandria). The Virginia District Court Clerk assigned Case No. 1:16-cv-05023- AJT-TRJ to the proceeding. The lawsuit is consolidated in the multidistrict litigation captioned In re: Lumber Liquidators Chinese-Manufactured Flooring Durability Marketing and Sales Practices Litigation, MDL No. 1:16- md-02743-AJT-TRJ. The cases in the litigation concern the sale and marketing of Chinese-manufactured laminate flooring sold by Lumber Liquidators. Despite being marketed as sufficiently durable for residential use, the Plaintiffs allege that their laminate flooring scratches too easily and fails to meet the advertised industry standard. Plaintiff Richard Norris, an individual, on behalf of himself and all others similarly situated, is represented by: Mark J. Uyeno, Esq. Alexander Robertson, IV, Esq. ROBERTSON AND ASSOCIATES LLP 32121 Lindero Canyon Road, Suite 200 Westlake Village, CA 91361 Telephone: (818) 851-3850 Facsimile: (818) 851-3851 E-mail: muyeno@arobertsonlaw.com arobertson@arobertsonlaw.com - and - Robert Ahdoot, Esq. Tina Wolfson, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com Defendant Lumber Liquidators, Inc., a Delaware corporation, is represented by: Donna Marie Meehan, Esq. COSMICH, SIMMONS & BROWN, PLLC P. O. Box 22626 One Eastover Center 100 Vision Drive, Suite 200 (39211) Jackson, MS 39225-2626 Telephone: (601) 519-0324 Facsimile: (601) 863-0078 E-mail: donna@cs-law.com LUXURY SHUTTLE: Faces "Johnson" Suit Under California Labor Code ---------------------------------------------------------------- LAQUISHA JOHNSON, as an individual and on behalf of all others similarly situated, v. LUXURY SHUTTLE GROUP LLC, a California limited liability company; ADP TOTALSOURCE, INC., a Florida corporation; and DOES 1 through 50, inclusive, Case No. BC-636 903 (Cal. Super., County of Los Angeles, October 11, 2016), alleges failure of Defendants to provide off-duty meal periods and duty- free rest breaks, failure to reimburse all business-related expenses, failure to keep accurate records, and penalties under the California Labor Code. LUXURY SHUTTLE GROUP LLC -- http://luxuryshuttlegroup.com-- is a transportation company. The Plaintiff is represented by: Larry W. Lee, Esq. Kristen M. Agnew, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Phone: (213)488-6555 Fax: (213) 488-6554 - and - Kenechi R. Agu, Esq. LAW OFFICES OF KENECHI R. AGU 3655 Torrance Blvd., Suite 300 Torrance, CA 90503 Phone: (310)431-9875 Fax: (855) 372-5792 MACQUARIE: Seeks to Defeat U.S. Hedge Fund Class Action ------------------------------------------------------- The Australian Financial Review reports that Australian banks being sued by American hedge funds for allegedly manipulating financial market interest rates will try to knock out the US court case by advocating a legal precedent set by the Palestine Liberation Organisation. Legendary American commodity speculator Richard Dennis, and a hedge fund firm depicted in the The Big Short movie for earning billions betting against toxic home loans, are plaintiffs pushing a US class action against the big four banks, Macquarie and global banks. Lawyers close to some of the defendant banks said they would argue the New York court doesn't have legal jurisdiction over the banks and the local bank bill swap rate (BBSW), the wholesale interbank lending rate that helps set a benchmark for trillions of dollars of securities traded in financial markets. Some of the 19 accused financial institutions will cite a US Court of Appeals ruling that Americans injured by terrorist attacks in Israel were not legally able to sue the PLO in the US. The ruling confirmed that in order for a US court to take on a case with offshore elements, the plaintiff must establish that any injuries suffered were a direct result of the defendant intentionally targeting the US. Even though Americans were injured in the terrorist attacks, they failed to establish that US citizens were the express targets of the PLO, beyond being random and unfortunate victims. In the context of the BBSW case, banks will argue that their securities trading from Sydney and Melbourne was not aimed at the US and any BBSW-connected derivative trades by hedge funds in the US was tangential at best, a source close to the banks said. 'Illicit' profits US-based investment funds Sonterra Capital Master Fund and FrontPoint Financial Services, and Florida-based derivatives trader Mr Dennis, allege banks "generated hundreds of millions of dollars in illicit profits by artificially fixing BBSW-based derivatives prices at levels that benefited their trading books", according to the claim filed in the US District Court for the Southern District of New York on August 16. The US investors allege the prices of various derivatives -- including swaps, forward rate agreements, Australian dollar futures contracts, Australian dollar foreign exchange swaps and forwards, and 90-day bank accepted bill futures contracts -- were affected because they were linked to BBSW. The statement of claim argues New York has jurisdiction because the banks have offices in Manhattan and transact BBSW-based derivatives through the US and with US counter parties. It says more than $US100 trillion ($131 trillion) in Australian dollar foreign exchange and interest rate derivatives were traded over the counter in the US since 2003 and as much as $US15 trillion a year. The plaintiffs' New York law firm, Lowey Dannenberg Cohen & Hart, has acted as counsel in several US civil rate-rigging cases involving other major interest rate benchmarks set in other countries, including the London-set Libor, Yen Libor, Sterling Libor, Swiss Franc Libor and the Singapore overnight rate. In the same New York court district last year, the lawyers achieved a $US58 million settlement for US investors against HSBC, Citigroup and brokerage firm RP Martin Holdings in an anti-trust suit accusing large financial institutions of fixing yen- denominated Libor rates. Barclays last November agreed to pay $US94 million to settle US anti-trust litigation by investors who accused 11 banks of conspiring to manipulate the benchmark European Interbank Offered Rate (Euribor) and related derivatives, in a case Lowey Dannenberg Cohen & Hart acted in. ASIC The US investors' claim relies almost exclusively on court evidence such as trader emails, phone calls and electronic chats submitted by the Australian Securities and Investments Commission in its local legal claim on alleged BBSW manipulation. ASIC is suing ANZ, National Australia Bank and Westpac in three separate cases for unconscionable conduct and market manipulation. Sources close to the American plaintiffs were pleasantly surprised at how detailed ASIC's allegations are in public court filings. "The Australian regulator did their homework," a US source said. The US lawsuit also notes ASIC's settlements over BBSW transgressions with UBS, Royal Bank of Scotland and BNP Paribas in 2013 and 2014. The US plaintiffs allege the banks colluded to violate several US anti-trust laws and also engaged in market manipulation that breached the US Commodities Exchange Act. These legal issues are only likely to be fought later if the court determines New York has jurisdiction. Unlike the US claim, ASIC is not pursuing the banks on collusion or anti-competitive violations. Though US anti-trust laws differ to local competition rules, some banks believe ASIC's decision not to pursue them on collusion aids their argument against anti-trust claims in the US. Australian Competition and Consumer Commission chairman Rod Sims revealed to Parliament on Oct. 14 that he was at a "very advanced" stage in an investigation into possible bank cartel behavior. He did not say what banking issues the inquiry related to, nor whether it was BBSW connected. ANZ chief executive Shayne Elliott told a parliamentary hearing this month that five suspended traders who were reinstated by the bank after an internal investigation into BBSW trades "have done nothing wrong". The banks will enter a motion to dismiss the US case, chiefly on jurisdictional grounds, in the next few months. Complicated litigation Columbia Law School professor John Coffee said: "This is going to be a long, complicated litigation in which the defendants will be attacking whether the class action can be certified." If the class action proceeds, he said it would be very complicated for the investors to prove and quantify any losses suffered. The plaintiffs argue that given the bilateral, zero-sum game of derivatives trades, every time BBSW moved in the favor of banks, there was a corresponding loss to US traders. The claims contain records of conversations involving ANZ, Commonwealth Bank, National Australia Bank and Westpac traders, cited by ASIC. FrontPoint says it engaged in more than $US100 million in US-based transactions with Macquarie. The other global institutions named as defendants are JPMorgan, Citigroup, BNP Paribas, Royal Bank of Scotland, UBS, Deutsche Bank, HSBC, Lloyds, Royal Bank of Canada, Morgan Stanley, Credit Suisse and brokers ICAP and Tullett Prebon. The defendants were members of the BBSW setting panel administered by the Australian Financial Markets Association. Lower ranked New York courts have a record of taking on cross- border cases. However, as the Appeals Court decision in the PLO case shows, higher courts often take a narrower view of their jurisdictional reach. Unlike in Australia, US plaintiffs are not liable for the legal expenses of defendants if they lose the case. Don Coker, a banking standards consultant and self-described expert witness, said the case was "not black and white". "To prove damages you have to show what happened compared to what should have happened," he said. "It's difficult to do that and not a slam dunk." MACY'S: Shoplifting Class Action Pending in New York ---------------------------------------------------- Joel Jacobsen, writing for Albuquerque Journal, reports that a class-action lawsuit pending in New York alleges that Cinthia Reyes Orellana decided to buy a couple of shirts at Macy's flagship store. You'd think Macy's would be happy about that, right? She headed for a register on the next floor down. A security guard intercepted her at the bottom of the escalator, took her purse and escorted her to a cell in the store's basement. After three hours, she was supposedly told she would be released into the custody of the New York Police Department only if she forked over $100 and signed papers admitting her guilt. She was charged with shoplifting, but the charges were quickly dropped. That's all according to her lawsuit, which was joined by another woman telling a similar story. Samya Moftah brought some clothes back to Macy's for exchange. When a security guard confronted her, she was unworried since she had the original receipts in the bag. But that was before the guard took her downstairs, confiscated her purse and phone, patted her down and put her in the holding cell. According to the lawsuit, Macy's employees first demanded $100 and, when she refused, raised the price of freedom to $500. When she continued to refuse, they charged the higher amount to her Macy's credit card, anyway. After five hours, police arrived and arrested her for shoplifting, but charges against her were quickly dropped, too. Allegations in a lawsuit should always be viewed with skepticism. Maybe it happened that way, maybe it didn't. Anyone can allege anything. But Reyes Orellana and Moftah presented sufficient evidence to convince a New York judge to issue an injunction barring Macy's from demanding and collecting money from customers detained under suspicion of shoplifting. For its part, Macy's says it had already voluntarily discontinued the practice of what it euphemistically called "in-store civil recovery." In the ongoing litigation, Macy's can point to a New York statute that gives retailers a privilege to detain suspected shoplifters "in a reasonable manner" while investigating the suspected theft. That's called the shopkeeper's privilege. It means that, in certain circumstances, a merchant can lawfully commit an act that, if committed by anyone else but a cop, would constitute the crime of false imprisonment. New Mexico has a similar statute on its books. Our law says that, when a merchant "has probable cause for believing that a person has willfully taken possession of any merchandise with the intention of converting it without paying for it," the merchant can lawfully "take the person into custody and detain him in a reasonable manner for a reasonable time." That's a long string of legal terms. Each technical term or phrase is another potential booby trap for merchants, providing one more potential ground for litigation. In the most recent New Mexico case construing the statute, Holguin v. Sally Beauty Supply, a customer took a can of mousse from a store shelf and put it into her reusable canvas bag. A store manager detained her. Eventually, police were called. The woman emphatically denied she was shoplifting. Instead, she said, she was merely using her tote as a shopping basket. She sued the store for false imprisonment (which is a tort, as well as a crime). The store's defense, naturally enough, was that it had probable cause to believe she was shoplifting, giving it the privilege to detain her for a reasonable time. But what is "probable cause"? The phrase comes from the Fourth Amendment of the federal Constitution. In the criminal law, it describes the standard of proof necessary to support an arrest, the issuance of a warrant or the filing of formal charges. A grand jury indictment is based on probable cause. But the phrase's meaning is imprecise. All that can be said with complete confidence is that it means more than suspicion, but less than proof, which is a little like saying room temperature is more than freezing, but less than boiling. In the shopping tote case, our Court of Appeals ruled that a merchant has probable cause to detain a suspected shoplifter when the facts would "warrant a merchant of reasonable caution to believe that the person is willfully concealing merchandise." Like many legal definitions, this merely substitutes a longer vague formulation for a shorter one. The key word "believe" has many shades of meaning, from the emphatic "I firmly believe" to the trailing-off of "Well, I believe so . . .", which imply almost opposite degrees of conviction. Another part of the formulation, "willfully concealing," might at first seem clearer, but the Court of Appeals took care of that. It held that more is required than deliberately hiding the object from view, such as by putting it into a canvas bag. Rather, the act must "reflect that (its) purpose . . . is adverse to the store owner's right to be paid for the merchandise." Translated: the purpose must be to steal. But how is the merchant to divine the customer's purpose? The Court of Appeals didn't explain. Rather, it held that questions of belief and purpose are for a jury to decide, making your guess as good as theirs. As a practical matter, an intent to steal can pretty reliably be inferred if a person slips merchandise into an opaque container, and then walks past the register and out the door. But a merchant who detains a suspected shoplifter before that physical point is taking the chance of being sued. Bottom of the escalator? That's just asking for it. As a postscript, it should always be kept in mind that if a store encourages its employees to confront shoplifters, the store can be held responsible if the thief turns around and attacks the employee. There are many good reasons for leaving security to professionals, preferably independent contractors. MAPLEBEAR INC: No Sanctions Imposed in "Cobarruviaz" Suit --------------------------------------------------------- In the case, DOMINIC COBARRUVIAZ, et al., Plaintiffs, v. MAPLEBEAR, INC., Defendant, Case No. 15-cv-00697-EMC (N.D. Cal.), District Judge Edward M. Chen denied the Plaintiffs' motion for sanctions despite the Defendant's violation of Rule 3-13 of the District's Civil Local Rules. Rule 3-13 of the District's Civil Local Rules requires parties to promptly file with the Court in the action pending before the Court and serve all opposing parties in the action pending before the Court with a Notice of Pendency of Other Action or Proceeding. In the case, the Defendant failed to notify the Court and the opposing counsel about its involvement in the other similar class action styled, Sumerlin v. Maplebear, Inc. dba Instacart, Case No. BC603030. The Court held that the existence of multiple overlapping class actions raises the risk of reverse auctions where the defendants pick the most vulnerable or compliant plaintiff with which to settle and bind all other suits. The Court further held that it has the inherent authority to sanction the Defendant in the form of attorneys' fee if the Defendant's violation is in bad faith or in willful disobedience of the Court's rules or orders. However, the Court does not reach the question of bad faith or willful disobedience because the Plaintiffs failed to show in the hearing that the requested attorneys' fees and costs were proximately caused by the Defendant's violation. A copy of the Court's Order dated September 30, 2016 is available at https://goo.gl/JMLr5E from Leagle.com. Dominic Cobarruviaz, Plaintiff, represented by Robert Stephen Arns -- rsa@arnslaw.com -- The Arns Law Firm. Dominic Cobarruviaz, et al., Plaintiffs, represented by Jahan C. Sagafi -- jahan@post.harvard.edu -- OUTTEN & GOLDEN LLP, Jonathan Ellsworth Davis -- jed@arnslaw.com -- The Arns Law Firm, Julie C. Erickson -- jce@arnslaw.com -- The Arns Law Firm, Kevin M. Osborne -- kmo@arnslaw.com -- The Arns Law Firm & Michael Scimone, Outten and Golden LLP. Maplebear, Inc., Defendant, represented by Benjamin Berkowitz -- bberkowitz@kvn.com -- Keker & Van Nest LLP, Nikki Khanh Vo -- nvo@kvn.com -- Keker & Van Nest, LLP, Rachael Elizabeth Meny -- rmeny@kvn.com -- Keker & Van Nest LLP & Ryan K.M. Wong -- rwong@kvn.com -- Keker & Van Nest LLP. MARION COUNTY, IN: Driver Appeals S.D. Ind. Ruling to 7th Circuit ----------------------------------------------------------------- Plaintiffs Michael Driver, Terry Clayton, Michael Boyd, Nicholas Swords and Roy Shofner filed an appeal from a court ruling in their lawsuit styled Michael Driver, et al. v. Marion County Sheriff's Department, et al., Case No. 1:14-cv-02076-RLY-MJD, in the U.S. District Court for the Southern District of Indiana, Indianapolis Division. As previously reported in the Class Action Reporter on Oct. 20, 2016, the Hon. Richard L. Young granted in part and denied in part the Plaintiffs' motion for class certification. The Plaintiffs brought their claim under 42 U.S.C. Section 1983, asserting that the policies and practices of the Marion County Sheriff caused them to be detained in the Marion County Jail awaiting release for an unreasonably long period of time, in violation of the Fourth Amendment. A copy of Judge Young's order is available at no charge at https://goo.gl/evvS1X from Leagle.com. The appellate case is captioned as Michael Driver, et al. v. Marion County Sheriff's Department, et al., Case No. 16-8024, in the U.S. Court of Appeals for the Seventh Circuit. Plaintiffs-Petitioners Michael Driver, Terry Clayton, Michael Boyd, Nicholas Swords and Roy Shofner are represented by: Richard A. Waples, Esq. WAPLES & HANGER 410 N. Audubon Road Indianapolis, IN 46219 Telephone: (317) 357-0903 Facsimile: (317) 357-0275 E-mail: rwaples@wapleshanger.com Defendants-Respondents MARION COUNTY SHERIFF'S DEPARTMENT and CONSOLIDATED CITY OF INDIANAPOLIS AND MARION COUNTY are represented by: Anthony W. Overholt, Esq. FROST BROWN TODD LLC 201 N. Illinois Street P.O. Box 44961 Indianapolis, IN 46204-4236 Telephone: (317) 237-3936 Facsimile: (317) 237-3900 E-mail: aoverholt@fbtlaw.com MDL 1738: 2nd Cir. Dismisses Vitamin C Antitrust Suit ----------------------------------------------------- Circuit Judge Peter W. Hall of the Court of Appeals, Second Circuit, reversed the district court's order denying Defendants' motion to dismiss in the case captioned, IN RE: VITAMIN C ANTITRUST LITIGATION. ANIMAL SCIENCE PRODUCTS, INC., THE RANIS COMPANY, INC., Plaintiffs-Appellees, v. HEBEI WELCOME PHARMACEUTICAL CO. LTD., NORTH CHINA PHARMACEUTICAL GROUP CORPORATION, Defendants-Appellants, Case No. 13-4791-CV (2nd Cir.). In 2005, various vitamin C purchasers in the United States, including Plaintiffs Animal Science Products, Inc. and The Ranis Company, filed numerous suits against Defendants, Chinese vitamin C manufacturer Hebei Welcome Pharmaceutical Co. and its holding company, North China Pharmaceutical Group Corporation. These cases were transferred to the Eastern District of New York by the Judicial Panel on Multidistrict Litigation for coordinated or consolidated pretrial proceedings. The Plaintiffs allege, inter alia, that in December 2001 Defendants and their co-conspirators established an illegal cartel with the "purpose and effect of fixing prices, controlling the support of vitamin C to be exported to the United States and worldwide, and committing unlawful practices designed to inflate the prices of vitamin C sold to plaintiffs and other purchasers in the United States and elsewhere." Rather than deny the Plaintiffs' allegations, Defendants instead moved to dismiss on the basis that they acted pursuant to Chinese regulations regarding vitamin C export pricing and were, in essence, required by the Chinese Government, specifically the Ministry of Commerce of the People's Republic of China (the Ministry), to coordinate prices and create a supply shortage. Defendants argued that the district court should dismiss the complaint pursuant to the act of state doctrine, the doctrine of foreign sovereign compulsion, and/or principles of international comity. District Judge David D. Trager denied the motion to dismiss in order to allow for further discovery with respect to whether Defendants' assertion that the actions constituting the basis of the antitrust violations were compelled by the Chinese Government. In the district court's view, the factual record was "simply too ambiguous to foreclose further inquiry into the voluntariness of defendants' actions." District Judge Brian M. Cogan, who was reassigned to the case after Judge Trager passed away in January 2011. The case ultimately went to trial. In March 2013, a jury found Defendants liable for violations of Section 1 of the Sherman Act. The district court awarded Plaintiffs approximately $147 million in damages and issued a permanent injunction barring Defendants from further violating the Sherman Act. The appeal followed. Defendants argue that the district court erred by not dismissing Plaintiffs' complaint on international comity grounds. In his Decision dated September 30, 2016 available at https://is.gd/mrDGhF from Leagle.com, Judge Hall held that the district court abused its discretion by not abstaining, on international comity grounds, from asserting jurisdiction because the court erred by concluding that Chinese law did not require Defendants to violate U.S. antitrust law and further erred by not extending adequate deference to the Chinese Government's proffer of the interpretation of its own laws. Additional information on the case is available at: http://www.vitamincantitrust.com/ Animal Science Products, Inc., et al. are represented by William A. Isaacson, Esq. -- wisaacson@bsfllp.com -- BOIES, SCHILLER & FLEXNER, LLP -- James T. Southwick, Esq. -- jsouthwick@susmangodfrey.com -- and Shawn L. Raymond, Esq. -- sraymond@susmangodfrey.com -- KATHERINE KUNZ, SUSMAN GODFREY LLP - - Michael D. Hausfeld, Esq. -- mhausfeld@hausfeld.com -- Brian A. Ratner, Esq. -- bratner@hausfeld.com -- Melinda Coolidge, Esq. -- mcoolidge@hausfeld.com -- and Brent W. Landau, Esq. -- blandau@hausfeld.com -- HAUSFELD LLP Hebei Welcome Pharmaceutical Co. Ltd., et al. are represented by Jonathan M. Jacobson, Esq. -- jjacobson@wsgr.com -- Daniel P. Weick, Esq. -- dweick@wsgr.com -- Justin A. Cohen, Esq. -- jcohen@wsgr.com -- Scott A. Sher, Esq. -- ssher@wsgr.com -- and Bradley T. Tennis, Esq. -- btennis@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI P.C. MDL 2036: Arbitration Bid in Overdraft Litigation Denied -------------------------------------------------------- In the case captioned IN RE: CHECKING ACCOUNT OVERDRAFT LITIGATION MDL No. 2036. THIS DOCUMENT RELATES TO: FIRST TRANCHE ACTIONS Dolores Gutierrez v. Wells Fargo Bank, N.A. S.D. Fla. Case No. 1:09-cv-23685-JLK D. Or. Case No. 3:09-cv-01239-ST Martinez v. Wells Fargo Bank, N.A. S.D. Fla. Case No. 1:09-cv-23834 D.N.M. Case No. 6:09-cv-01072-GBW-ACT Zankich v. Wells Fargo Bank, N.A. S.D. Fla. Case No. 1:09-cv-23186-JLK W.D. Wash. Case No. C-08- 1476-RSM, Case No. 09-MD-02036-JLK (S.D. Fla.), Judge James Lawrence King denied defendant Wells Fargo Bank, N.A.'s Motion to Dismiss All Claims of Unnamed Class Members in Favor of Arbitration. On November 6, 2009, the Court directed Wells Fargo to file, by no later than December 8, 2009, all "merits and non-merits motions directed to" the complaints, including motions to compel arbitration. In response, Wells Fargo did not invoke arbitration as to the plaintiffs, nor did it do anything to notify the parties and Court that it intended to move for arbitration as to the class if and when the class was certified. Instead, Wells Fargo joined several other banks to file an Omnibus Motion to Dismiss, which not only sought adjudication of the claims on their merits, but also specifically noted that these banks were not among those seeking arbitration. The Court mostly denied the banks' motion to dismiss on March 11, 2010. Even though it gave clear direction in its November 6, 2009 Order that any arbitration demands were to be made by December 8, 2009, the Court afforded Wells Fargo a second formal opportunity to demand arbitration after ruling on dismissal. In response, Wells Fargo specifically informed the Court that it would not pursue arbitration. On June 4, 2010, Wells Fargo filed its answer and affirmative defenses. On April 29, 2011, Wells Fargo changed course and filed a motion to compel arbitration as to the named plaintiffs. This was the first time Wells Fargo invoked arbitration as to any plaintiff in these cases, which was: (a) after both deadlines set by the Court for Wells Fargo to file any arbitration motions; and (b) after the parties and the Court had expended enormous amounts of time and resources on litigation and discovery and preparing the case for trial. Nevertheless, Wells Fargo argued its motion was timely because, previously, an arbitration motion would have been futile. This Court (and subsequently the Eleventh Circuit) rejected this argument and found that Wells Fargo, because of its own strategic litigation decisions and conduct, waived any right it may have had to compel arbitration as to the plaintiffs. In March 2013, Wells Fargo filed an opposition to the plaintiffs' class certification motion along with what the Bank characterized as a "conditional motion" to compel arbitration as to the unnamed class members. On April 5, 2013, the Court denied Wells Fargo's conditional motion to compel arbitration. Adjudication of the plaintiffs' class certification motion was stayed pending Wells Fargo's appeal regarding its conditional motion. On February 10, 2015, the Eleventh Circuit vacated on limited grounds the Court's ruling on Wells Fargo's conditional motion, without resolving whether Wells Fargo waived its arbitration rights as to the unnamed class members. On remand, the Court granted the plaintiffs' pending class certification motion. Wells Fargo then moved to compel arbitration on June 10, 2015. Judge King found that Wells Fargo acted inconsistently with its arbitration rights in multiple respects. The judge pointed out that Wells Fargo extensively and deliberately invoked the litigation machinery prior to making any arbitration demand in these cases, requiring the parties and the Court to expend enormous amounts of time and resources. The judge also noted that Wells Fargo likewise acted inconsistently with its arbitration rights by twice declining to demand arbitration by clear deadlines set by the Court. Moreover, Judge King found that significant prejudice would result if Wells Fargo were permitted to change course and invoke arbitration at this late stage. As an additional basis for denying Wells Fargo's current motion, Judge King also held that Wells Fargo's motion is untimely, considering that Wells Fargo's invocation of its arbitration rights unquestionably came well after the 2009 and 2010 deadlines set by the Court for filing any arbitration motions. The judge also found that Wells Fargo's motion is also untimely under the terms of its own permissive arbitration clause. A full-text copy of Judge King's October 17, 2016 order is available at https://is.gd/SwXLyk from Leagle.com. Checking Account Overdraft Litigation, In Re, represented by David Buckner -- david@bucknermiles.com -- Buckner+Miles, Peter Prieto -- pprieto@podhurst.com -- Podhurst Orseck, P.A., Robert Cecil Gilbert & Stephen Frederick Rosenthal -- srosenthal@podhurst.com -- Podhurst Orseck Josefsberg et al. All Plaintiffs, Plaintiff, represented by David M. Given -- dmg@phillaw.com -- Phillips, Erlewine, Given & Carlin, LLP. Celia Spears-Haymond, Consol Plaintiff, represented by Barry R. Himmelstein, Lieff Cabraser Heimann & Bernstein, Jae Kook Kim, McCune Wright LLP, Jordan Elias -- je@girardgibbs.com -- Lieff Cabraser Heimann & Bernstein, Michael W. Sobol, Lieff Cabraser Heimann & Bernstein -- msobol@lchb.com -- Mikaela Bernstein, Lieff Cabraser Heimann & Bernstein, Richard D. McCune, Jr. -- rdm@mccunewright.com -- McCune Wright LLP, Robert Cecil Gilbert -- gilbert@kolawyers.com -- Jeffrey F. Keller -- jfkeller@kellergrover.com -- Keller Grover LLP & Kenneth J. Grunfeld -- kgrunfeld@golombhonik.com -- Golomb & Honik, PC. April Speers, Consol Plaintiff, represented by Bruce S. Rogow, Bruce S. Rogow PA, Kenneth J. Grunfeld, Golomb & Honik, PC & Robert Cecil Gilbert. Alex Zankich, Consol Plaintiff, represented by Robert Cecil Gilbert, Ari Y. Brown, Hagens Berman SobolShpiro LLP, Genessa A. Stout, Hagens Berman SobolShapiro LLP, John Matthew Geyman, Phillips Law Group PLLC, John Wentworth Phillips, Phillips Law Group PLLC & Kenneth J. Grunfeld, Golomb & Honik, PC. William Rucker, Consol Plaintiff, represented by Ari Y. Brown, Hagens Berman SobolShpiro LLP, John Matthew Geyman, John Wentworth Phillips, Phillips Law Group PLLC, Kenneth J. Grunfeld, Golomb & Honik, PC & Robert Cecil Gilbert. Dolores Gutierrez, Consol Plaintiff, represented by Robert Cecil Gilbert,Joshua L. Ross, Stoll Stoll Berne Lokting & Shlachter, Kenneth J. Grunfeld, Golomb & Honik, PC & Steve D. Larson, Stoll Stoll Berne Lokting & Shlachter. Marc Martinez, Consol Plaintiff, represented by Ari Y. Brown, Hagens Berman SobolShpiro LLP, Genessa A. Stout, Hagens Berman SobolShapiro LLP, Kenneth J. Grunfeld, Golomb & Honik, PC, Michael R. Comeau, Comeau, Maldegen, Templeman & Indall, LLP & Robert Cecil Gilbert. David M. Johnson, Consol Plaintiff, represented by Robert Cecil Gilbert,Karin Bornstein Swope, Keller Rohrback, Kenneth J. Grunfeld, Golomb & Honik, PC & Mark Adam Griffin, Keller Rohrback. Leanne Steen, Consol Plaintiff, represented by Bruce S. Rogow, Bruce S. Rogow PA, John Gravante, III, Podhurst Orseck, P.A., Matthew Weinshall, Podhurst Orseck, Peter Prieto, Podhurst Orseck, P.A., Stephen Frederick Rosenthal, Podhurst Orseck Josefsberg et al, Aaron Samuel Podhurst, Podhurst Orseck, P.A., Allan Kanner, Kanner & Whiteley LLC, pro hac vice,Conlee S. Whiteley, Kanner & Whiteley LLC, pro hac vice, David Buckner, Buckner+Miles & Robert Cecil Gilbert. Michael Dasher, Consol Plaintiff, represented by Robert Cecil Gilbert &Jeffrey Miles Ostrow, The Kopelowitz & Ostrow Firm PA. Jeremy Childs, Consol Plaintiff, represented by Edward Adam Webb, Webb Law Group LLC, pro hac vice & Robert Cecil Gilbert. Natalie Childs, Consol Plaintiff, represented by Edward Adam Webb, Webb Law Group LLC, pro hac vice & Robert Cecil Gilbert. Stephanie Avery, Consol Plaintiff, represented by Inez de Ondarza Simmons,Richard Croutharmel, Richard Croutharmel, Attorney at Law & Robert Cecil Gilbert. Heather Stillion, on behalf of themselves and all others similarly situated, Consol Plaintiff, represented by James G. Bordas, III, Bordas & Bordas. Christopher Stillion, Consol Plaintiff, represented by James G. Bordas, III, Bordas & Bordas & Robert Cecil Gilbert. Bryan J Mello, Consol Plaintiff, represented by Andrew Ira Alperstein, Alperstin and Diener, PA & Robert Cecil Gilbert. Denise E Mello, Consol Plaintiff, represented by Andrew Ira Alperstein, Alperstin and Diener, PA & Robert Cecil Gilbert. McCuneWright LLP, Petitioner, represented by Debra Jill Albin- Riley, Arent Fox, LLP, Stephen James Binhak, The Law Office of Stephen James Binhak, PLLC & Stephen G. Larson, Arent, Fox, LLP. George Burke, Intervenor Plaintiff, represented by Jeffrey F. Keller, Keller Grover LLP. Robert Lowe, Intervenor Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP. Lori Aldana, Intervenor Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP. Shane Parins, Intervenor Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP. Kara Parins, Intervenor Plaintiff, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP. Wells Fargo Bank, N.A., Defendant, represented by Ashley Simonsen, Covington & Burling LLP, Michael P. Beder, Covington & Burling, LLP,Barbara J. Dawson, Snell & Wilmer, LLP, Brian J. Meenaghan, Lane Powell PC, Cortlin H. Lannin, Covington & Burling LLP, David M. Jolley, Covington & Burling LLP, Elizabeth S. Pehrson, Covington & Burling LLP, Emily Johnson Henn, Covington & Burling, pro hac vice, Eric C. Bosset, Covington & Burling, LLP, Jamie Zysk Isani, Hunton & Williams LLP, Laurence J. Hutt, Arnold & Porter LLP, Robert Matthew Kort, Snell & Wilmer LLP, Ronald E. Beard, Lane Powell PC, Rudy Albert Englund, Lane Powell PC, Sonya Diane Winner, Covington & Burling LLP, pro hac vice, Tara N. Gillespie, Lane Powell PC & Tracy L. Ashmore, Holme Roberts & Owen LLP. KeyBank National Association, Defendant, represented by Susan Eileen Trench, Arnstein & Lehr, LLP, Alan Gary Kipnis, Arnstein & Lehr, Brian J. Meenaghan, John Martin Cooney, Arnstein & Lehr, Mary Schug Young, Lane Powell PC, Ronald E. Beard, Lane Powell PC & Rudy Albert Englund, Lane Powell PC. Comerica Bank, Defendant, represented by Eliot Walker, Kane Russell Coleman & Logan, PC, Kenneth C. Johnston, Kane Russell Coleman & Logan PC, David M. Jolley, Covington & Burling LLP & Julie K. Biermacher, Kane Russell Coleman & Logan PC. Capital One, N.A., Defendant, represented by David G. Radlauer, Jones Walker Waechter Poitevent Carrere & Denegre LLP, James F. McCabe, Morrison & Forester, LLP, James R. McGuire, Morrison & Foerster, Pauline F. Hardin, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP,Thomas A. Casey, Jr., Jones Walker Waechter Poitevent Carrere & Denegre LLP, David M. Jolley, Covington & Burling LLP & Rita F. Lin, Morrison & Foerster. Wachovia Bank, N.A., Consol Defendant, represented by Tracy Thomas Cottingham, III, Hunton & Williams, Cortlin H. Lannin, Covington & Burling LLP, David M. Jolley, Covington & Burling LLP, Elizabeth S. Pehrson, Covington & Burling LLP, Emily Johnson Henn, Covington & Burling, Jamie Zysk Isani, Hunton & Williams LLP, Laurence J. Hutt, Arnold & Porter LLP &Sonya Diane Winner, Covington & Burling LLP. Bank of America Bank, N.A., Consol Defendant, represented by Aaron Schur, Arnold & Porter LLP, Christopher Scott Tarbell, Arnold & Porter LLP, pro hac vice, James Randolph Liebler, Liebler Gonzalez & Portuondo PA, Laurence J. Hutt, Arnold & Porter LLP, pro hac vice, Sharon D. Mayo, Arnold & Porter LLP, Sonya Diane Winner, Covington & Burling LLP. Wachovia Corporation, Consol Defendant, represented by Ann Marie Mortimer, Hunton & Williams, James R. McGuire, Morrison & Foerster,Tracy Thomas Cottingham, III, Hunton & Williams. Bank of America Corporation, Consol Defendant, represented by Aaron Schur, Arnold & Porter LLP, Christopher Scott Tarbell, Arnold & Porter LLP, pro hac vice, Laurence J. Hutt, Arnold & Porter LLP, pro hac vice & Sharon D. Mayo, Arnold & Porter LLP. Bank of America, California, Consol Defendant, represented by Aaron Schur, Arnold & Porter LLP, Christopher Scott Tarbell, Arnold & Porter LLP, pro hac vice, Laurence J. Hutt, Arnold & Porter LLP, pro hac vice, Sharon D. Mayo, Arnold & Porter LLP. Bank of America, N.A., Consol Defendant, represented by Laurence J. Hutt, Arnold & Porter LLP, Christopher Scott Tarbell, Arnold & Porter LLP, James Blackburn, Arnold & Porter, LLP, pro hac vice, Jill Crawley Griset, McGuire Woods LLP & Sharon D. Mayo, Arnold & Porter LLP. Wells Fargo & Company, Consol Defendant, represented by Barbara J. Dawson, Snell & Wilmer, LLP, Cortlin H. Lannin, Covington & Burling LLP,David M. Jolley, Covington & Burling LLP, Robert Matthew Kort, Snell & Wilmer LLP & Sonya Diane Winner, Covington & Burling LLP. Huntington National Bank, Consol Defendant, represented by Alan S. Kaplinsky, Ballard Spahr Andrews & Ingersoll, Laurence J. Hutt, Arnold & Porter LLP & Martin C. Bryce, Jr., Ballard Spahr Andrews & Ingersoll. TD Bank N.A., Consol Defendant, represented by Joshua D. Dunlap, Pierce Atwood, LLP & Lucus A. Ritchie, Pierce Atwood, LLP, pro hac vice. Wells Fargo Bank & Company, Consol Defendant, represented by David M. Jolley, Covington & Burling LLP, Marvin I. Bartel, Bartel and Evans & Sonya Diane Winner, Covington & Burling LLP. Manufacturers and Traders Trust Company, Consol Defendant, represented by Heather Mitchell, Venable LLP, James A. Dunbar, Venable LLP, pro hac vice, John T. Prisbe, Venable LLP, pro hac vice & Matthew R. Alsip, Venable LLP, pro hac vice. Capital One Bank (USA), N.A., Consol Defendant, represented by James R. McGuire, Morrison & Foerster. RBC Bank (USA), Consol Defendant, represented by Mark J. Levin, Ballard Spahr Andrews, LLP, Stacy Jaye Rodriguez, Akerman Senterfitt, Carrie Ann Wozniak, Akerman Senterfitt, Christopher Stephen Carver, Akerman Senterfitt & Virginia B. Townes, Akerman Senterfitt. Synovus Bank, Consol Defendant, represented by C. Neal Pope, Pope, McGlamry, Kilpartick, Morrison & Norwood, P.C., David C. Rayfield, Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C., George W. Walker, III, The Finley Firm, P.C., Wade H. Tomlinson, III, Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C., Brian D. Boone, Alston & Bird, LLP, Christopher Allen Riley, Alston and Bird LLP, David M. Jolley, Covington & Burling LLP,Stephen M. Colangelo, Morrison & Foerster LLP, Steven M. Collins, Alston & Bird, LLP & William L. Tucker, Page, Scrantom, Sprouse, Tucker & Ford, P.C.. Synovus Financial Corp., Consol Defendant, represented by C. Neal Pope, Pope, McGlamry, Kilpartick, Morrison & Norwood, P.C., David C. Rayfield, Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C., George W. Walker, III, The Finley Firm, P.C., Wade H. Tomlinson, III, Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C., Christopher Allen Riley, Alston and Bird LLP, David M. Jolley, Covington & Burling LLP, Stephen M. Colangelo, Morrison & Foerster LLP, Steven M. Collins, Alston & Bird, LLP & William L. Tucker, Page, Scrantom, Sprouse, Tucker & Ford, P.C.. RBC Bank, Consol Defendant, represented by Christopher Stephen Carver, Akerman Senterfitt & Virginia B. Townes, Akerman Senterfitt. United Bank, Inc., Consol Defendant, represented by Edward D. McDevitt, Bowles Rice McDavid Graff & Love, LLP & Floyd E. Boone, Jr., Bowles Rice McDavid Graff & Love, LLP. United Bankshares, Inc., Consol Defendant, represented by Edward D. McDevitt, Bowles Rice McDavid Graff & Love, LLP & Floyd E. Boone, Jr., Bowles Rice McDavid Graff & Love, LLP. Bank of America, Consol Defendant, represented by Laurence J. Hutt, Arnold & Porter LLP. Susquehanna Bank, Consol Defendant, represented by James A. Dunbar, Venable LLP, pro hac vice, John T. Prisbe, Venable LLP, pro hac vice &Matthew R. Alsip, Venable LLP. Jeff Horwitz, Intervenor, Pro Se. MDL 2665: Court Narrows Claims in "Slack-Fill" Lawsuits ------------------------------------------------------- In the case captioned IN RE: McCORMICK & COMPANY, INC., PEPPER PRODUCTS MARKETING AND SALES PRACTICES LITIGATION. This Document Relates To: Watkins Incorporated v. McCormick & Company, Inc. No. 1:15-cv-2188 (ESH), MDL Docket No. 2665, Misc. No. 15-1825 (ESH) (D.C.), Judge Ellen Segal Huvelle granted in part and denied, in part, the McCormick & Company, Inc.'s motion to dismiss Watkins Incorporated's amended complaint. Plaintiff Watkins, which produces black pepper, alleges that its largest competitor, defendant McCormick, deceptively "slack- filled" its black pepper containers, thereby confusing consumers and proximately causing a loss in Watkins' pepper sales. Watkins asserted five causes of action: violation of the Lanham Act (Count One), violations of three state statutes punishing unfair trade practices (Counts Two, Three, and Four); and the common law tort of unfair competition (Count Five). Watkins sought both monetary and injunctive relief. After several consumer class actions against McCormick followed -- each alleging deception by the same "slack-filled" pepper containers -- the Judicial Panel on Multi-District Litigation consolidated all of the "slack-fill" lawsuits against McCormick and transferred them to the United States District Court for the District of Columbia. The consumer class actions and Watson's lawsuit all relied upon the allegation that consumers were deceived by McCormick's pepper packaging and believed they were buying more pepper than they ended up receiving. Watkins claimed that the fraudulently induced choices of these duped consumers inflated McCormick's sales to the detriment of Watkins' sales. McCormick filed its motion to dismiss on March 30, 2016, arguing that: (1) Watkins enjoys neither constitutional standing under Article III nor statutory standing under the Lanham Act; (2) Watkins fails to state a claim under either the Lanham Act, the state statutes, or common law; and (3) Minnesota choice-of-law rules preclude Watkins' claims under the California and Florida statutes; and (4) unfair competition is not an independently existing tort under Minnesota law. Judge Huvelle held that Watkins enjoys Article III standing. Given that the Court must assume at this stage that Watkins' allegations of consumer confusion are true, the judge found that Watkins' inference that some of the deceived customers would have purchased Watkins' pepper products instead of McCormick's (had they been aware of the slack-fill) is an adequate allegation of injury. In the judge's view, Watkins has plainly alleged injuries that are fairly traceable to McCormick's conduct. Judge Huvelle also held that Watkins has statutory standing to pursue claims under the Lanham Act. The judge noted that Watkins' pepper was available on store shelves beside McCormick's pepper and therefore, there is no reason to infer that all confused consumers would have -- if enlightened -- chosen a different pepper alternative instead of Watkins'. Judge Huvelle thus found that Watkins has alleged a logical causal connection between its lost sales and McCormick's slack-filling, and that consumer confusion proximately caused Watson to lose sales. McCormick alternatively argued that Watkins has not adequately stated a claim for false advertising under the Lanham Act. McCormick argued that size of its pepper tins is not commercial speech. However, Judge Huvelle held that Watkins has properly alleged falsity under the Lanham Act, stating that it is difficult to understand how the size of a package or container could possibly not be considered a form of "advertising or promotion." Because the judge found that Watkins has adequately stated a claim under the Lanham Act, Judge Huvelle also rejected McCormick's argument that the state law claims should fail for the same reasons as the Lanham Act. McCormick also made other arguments about why Watkins has failed to state claims under the state statutes, but the judge found that none of those other arguments has merit. Finally, Judge Huvelle declined to dismiss any of the state statutory claims on the basis of choice-of-law analysis at this stage, because the Court does not have a complete factual record or adequate briefing. As to McCormick's motion to dismiss Watkins' common law claim of unfair competition, Watkins failed to contest the motion and was deemed to have conceded to McCormick's arguments. A full-text copy of Judge Huvelle's October 17, 2016 memorandum opinion is available at https://is.gd/XmyLS9 from Leagle.com. RHONDA DUPLER, Plaintiffs, represented by Andrew N. Friedman -- afriedman@cohenmilstein.com -- COHEN MILSTEIN SELLERS & TOLL PLLC, Elizabeth A. Fegan -- beth@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO, LLP & Jeffrey I. Carton -- jcarton@denleacarton.com -- DENLEA & CARTON LLP. HOLLY MARSH, Plaintiff, represented by Michael T. Fraser -- mfraser@saxongilmore.com -- FRASER LAW FIRM, P.C. & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. RYAN SCOTT BUNTING, BRANDON GRADY, TYLER UNDERWOOD, SABA GANJINEH, BERNARD ORTIZ, HUBERT L. GERSTNECKER, CATHERINE GRINDEL, Plaintiffs, represented by Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. DEBBIE ESPARZA, Plaintiff, represented by David M. Cialkowski -- david.cialkowski@zimmreed.com -- ZIMMERMAN REED, LLP & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. WATKINS INCORPORATED, Plaintiff, represented by Geoffrey P. Jarpe -- geoffrey.jarpe@maslon.com -- MASLON LLP. BRENDA THEIS, Plaintiff, represented by David C. Nelson, NELSON & NELSON, ATTORNEYS AT LAW, P.C. & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. JULIA VLADIMIRSKY, Plaintiff, represented by Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP & Jennifer Fountain Connolly -- jennifer@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP. TINA THORNTON, Plaintiff, represented by Daniel C. Girard -- dcg@girardgibbs.com -- GIRARD GIBBS LLP, pro hac vice & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. KATRINA LINKER, Plaintiff, represented by Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP & Ryan A. Keane -- ryan@keanelawllc.com -- KEANE LAW LLC. CARMEN PELLITTERI, PATRICIA FUSCO COYNE, Plaintiffs, represented by Stuart A. Davidson -- sdavidson@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. SEUNG-HO JUNG, Plaintiff, represented by Deborah Kravitz, KAMBERLAW LLP & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. ANGELA BARNES, Plaintiff, represented by Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP & Matthew H. Armstrong, Armstrong Law Firm LLC. SCOTT ALLAN BITTLE, Plaintiff, represented by Scott Adam Kamber, KAMBERLAW, LLC & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. CYNTHIA FERNANDEZ, Plaintiff, represented by Michael Glenn McLellan, FINKELSTEIN THOMPSON LLP & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. PAULA COLE JONES, SANDRA ROBINSON, Plaintiffs, represented by Scott Adam Kamber, KAMBERLAW, LLC & Elizabeth A. Fegan, HAGENS BERMAN SOBOL SHAPIRO, LLP. MCCORMICK & COMPANY, INC., Defendant, represented by David H. Bamberger, DLA PIPER LLP (US) & Edward S. Scheideman, DLA PIPER LLP (US). WAL-MART STORES, INC., Defendant, represented by Andrew G. Klevorn, KATTEN MUCHIN ROSENMAN LLP. PUBLIX SUPER MARKETS, INC., Defendant, represented by David H. Bamberger, DLA PIPER LLP (US). MEMPHIS: Street-Sweeping Policy Unconstitutional, 6th Cir. Says --------------------------------------------------------------- In the case captioned LAKENDUS COLE; LEON EDMOND, individually and as representatives of all others similarly situated, Plaintiffs- Appellees, v. CITY OF MEMPHIS, Defendant-Appellant, Nos. 15-5725, 15-5999 (6th Cir.), the United States Court of Appeals, Sixth Circuit affirmed the ruling of the district court which found the City of Memphis' street-sweeping policy unconstitutional. Lakendus Cole, a Memphis police officer, was arrested in the early morning hours of August 26, 2012, shortly after leaving a night club on Beale Street in downtown Memphis, Tennessee. After his arrest, he brought claims individually and on behalf of those similarly situated, alleging that the City's routine practice of sweeping Beale Street at 3 a.m. on weekend nights violated his constitutional right to intra state travel. Cole and the class won at trial. The jury found that the City implemented its street-sweeping policy without consideration of whether conditions throughout the Beale Street area posed an existing, imminent, or immediate threat to public safety. Based on the jury's findings, the district court found the policy unconstitutional under strict scrutiny, entered an injunction, and ordered other equitable relief on behalf of the class. The City appealed. The City first argued that the district court erred in finding that the Beale Street Sweep infringed the fundamental right to intrastate travel and in subjecting the policy to strict scrutiny. In the City's view, the policy does not implicate the right to intrastate travel, and even if it does, the infringement is slight and, therefore, it should be reviewed for a rational basis. The Sixth Circuit found that the primary purpose of the Beale Street Sweep was to impede travel, and it resulted in the broad denial of access to a popular, two-block area of a public roadway and sidewalk. The appellate court held that this is much more than an incidental or negligible inconvenience; it clearly implicates the right to travel and should be subject to heightened scrutiny. Further, the Sixth Circuit found that the Sweep was not tied to public safety concerns but rather to a specific, arbitrary time on certain nights. The appellate court noted that the City pointed to no evidence in the record showing that the decision to sweep Beale Street at or around 3 a.m. was in any way related to conditions or potential conditions on the ground, and the testimony of Arley Knight, a deputy chief with the MPD, precludes a presumption that the timing and execution of the sweeps was related to public safety. The appellate court thus concluded that, without the requisite connection to public safety, the policy fails under intermediate scrutiny. The City also argued on appeal that ascertainability is an implicit requirement for class certification, even classes certified pursuant to Fed. R. Civ. P. 23(b)(2). It argued further that the inclusion of the word "unlawfully" in the class definition means that the probable membership of the class cannot be ascertained without case-by-case determinations. The Sixth Circuit pointed out that the plaintiffs sought a single remedy: an injunction prohibiting the City from reenacting the Beale Street Sweep. As the district court observed, the appellate court also held that this injunction provides the sole remedy necessary to protect the affected class. The appellate court explained that precise identity of each class member need not be ascertained, particularly given that notice is not required as it would be in a (b)(3) class. The City's final claim of error wass that there was insufficient evidence that the Beale Street Sweep was the "moving force" behind Cole's arrest. The City, however, acknowledged that it failed to preserve this issue by failing to renew its Rule 50(a) motion for judgment as a matter of law as required by Rule 50(b). Accordingly, this issue was forfeited. A full-text copy of the Sixth Circuit's October 17, 2016 opinion is available at https://is.gd/4xVP7B from Leagle.com. ARGUED: J. Michael Fletcher, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees. ON BRIEF: J. Michael Fletcher, Zayid A. Saleem, Barbaralette G. Davis, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., Bryan M. Meredith, E. Lee Whitwell, THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees. NATIONAL COLLEGIATE: "Walker" Suit Included in MDL 2492 ------------------------------------------------------- The lawsuit styled WALKER v. THE MID-AMERICA INTERCOLLEGIATE ATHLETICS ASSOCIATION, et al., Case No. 1:16-cv-02595, was transferred from the U.S. District Court for the Southern District of Indiana to the U.S. District Court for the Northern District of Illinois (Chicago). The Illinois District Court Clerk assigned Case No. 1:16-cv-09727 to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation, MDL No. 2492. The actions in the litigation seek medical monitoring for putative classes of former student-athletes at NCAA-member schools, who allege they suffered concussions. The Plaintiffs allege that the NCAA concealed information about the risks of the long-term effects of concussion injuries. Plaintiff Richard Walker, individually and on behalf of all others similarly situated, is represented by: Robert T. Dassow, Esq. HOVDE DASSOW & DEETS LLC 201 W 103rd Street Suite 500 Indianapolis, IN 46290 Telephone: (317) 818-3100 Facsimile: (317) 818-3111 E-mail: rdassow@hovdelaw.com NBTY INC: Judge Wants First Amended Complaint Filed in "Tovar" -------------------------------------------------------------- District Judge David R. Herndon directed the Plaintiffs in the case styled, GHERSON TOVAR and LARRY WIEGAND, Individually and on behalf of all others similarly situated, Plaintiffs, v. NBTY, INC., and UNITED STATES NUTRITION INC., Defendants, No. 16-cv- 1037-DRH (S.D. Ill.), to file a first amended complaint properly alleging citizenship, so as to invoke minimal diversity of citizenship under the Class Action Fairness Act (CAFA). The filing of the amended complaint was due on October 13, 2016. The Court noted that failure to file the amended complaint will result in the dismissal of the case for lack of federal subject matter jurisdiction. Based on the case, the Court noted that a natural person must be alleged to be a citizen, not a resident, of a state, in order to invoke a federal diversity jurisdiction. Thus, Plaintiffs were ordered to amend their complaint to allege the citizenship of Tovar, Wiegand, or a member of the proposed class not the residence of the proposed class members. A copy of the Court's Order dated October 6, 2016 is available at https://goo.gl/NqhO75 from Leagle.com. Gherson Tovar, Plaintiff, represented by Nick Suciu, III -- nicksuciu@bmslawyers.com -- Barbat Mansour & Suciu PLLC. Gherson Tovar, et al., Plaintiffs, represented by Stuart L. Cochran, Cochran Law PLLC & Matthew H. Armstrong, Armstrong Law Firm LLC. NFL: Ex-Eagles Linebacker Files Suit Over Injury ------------------------------------------------ Rob Tornoe, writing for Philly.com, reports that former Eagles linebacker DeMeco Ryans isn't on an NFL team this season, but he still seems to know how to pressure his opponents. According lawsuit documents seen by Philly.com, Mr. Ryans is suing both the Houston Texans and the NFL over the grass field at NRG Stadium that the linebacker says caused him to suffer a torn Achilles tendon during a game on Nov. 2, 2014. Mr. Ryans claims that injury "prematurely ended his noteworthy NFL career," and that if the linebacker hadn't been hurt, he would have "in reasonable probability, remained in the league for another five years." Filed on Oct. 14, the lawsuit also names the Harris County Convention Sports Corp. and stadium management company SMG as defendants. NBC Sports was first to report on the lawsuit. Neither Mr. Ryans nor the Texans could be immediately reached for comment. The injury Mr. Ryans suffered as an Eagle in 2014 wasn't the first time he hurt himself playing on that field. According to the Inquirer's Jeff McLane, Mr. Ryans ruptured his left Achilles four years earlier in the same way (non-contact) and at the same spot (near the 10-yard line in the north end) at NRG Stadium. Mr. Ryans played with Houston from 2006 to 2011 and with the Eagles from 2012 to 2015. After missing the remainder of the 2014 season, Mr. Ryans returned to play 14 games for the Eagles in 2015 before being released back in February, despite the fact he still had a year left on his contract. He was not re-signed by another team. In 2014, Texans former No. 1 draft choice Jadeveon Clowney suffered a knee injury on the field, after landing in what safety D.J. Swearinger said was a "hole" in the turf at NRG Stadium. At the time, the stadium grew natural grass outside the stadium in trays, which were then brought in and pieced together to create the playing surface. That system was eliminated in 2015, in favor of the field-turf surface now in place. Mr. Ryans' lawsuit alleges that it took Mr. Clowney's injury for the team to finally address the problem. "Then, and only then, was it time for Defendants to fix the problem," the lawsuit states. This isn't the first time there has been a lawsuit over the field. In 2012, former Texans punter Brett Hartmann sued SMG and the Harris County Convention and Sports Corporation after suffering a career-ending ACL injury. The case was settled out of court. Former Patriots wide receiver Wes Welker also tore his ACL during a game at NRG Stadium during the 2010 season, leading head coach Bill Belichick to blast the playing conditions on Boston radio. "The turf down there is terrible," Mr. Belichick told WEEI. "It's terrible. It's just inconsistent. It's all the little trays of grass and some of them are soft and some of them are firm and they don't all fit well together, those seams. . . . Some of it feels like a sponge; some of it feels real firm and hard like the Miami surface. One step, you're on one; the other step, you're on another. I really think it's one of the worst fields I've seen." OCEAN SPRAY: "Colvin" Suit Alleges FLSA, Pa. Wage Law Violations ---------------------------------------------------------------- STEVEN COLVIN, on behalf of himself and those similarly situated, 4899 Liberty Lane Apt 2B Allentown PA 18106 v. OCEAN SPRAY 151 Boulder Dr. Breinigsville PA 18031 and JOHN DOES 1-10, Case No. 5:16-cv-05324-EGS (E.D. Pa., October 11, 2016), alleges violations by Defendants of the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act, and Pennsylvania Wage Payment and Collection Law for non-payment to Plaintiffs of proper overtime compensation. OCEAN SPRAY -- http://www.oceanspray.com/-- offers branded cranberry and grapefruit juice from a grower-owned cooperative. The Plaintiff is represented by: Joshua S. Boyette, Esq. SWARTZ SWIDLER, LLC 1101 Kings Hwy N. Suite 402 Cherry Hill, NJ 08034 Phone: (856) 685-7420 Fax: (856) 685-7417 OHIO: 6th Cir. Reverses Trial Court Ruling in Medicaid Suit ----------------------------------------------------------- Circuit Judge Raymond M. Kethledge of the Court of Appeals, Sixth Circuit reversed the district courts' grant of summary judgment to the plaintiffs in the case captioned, KATHRYN A. PRICE, et al., Plaintiffs-Appellees, v. MEDICAID DIRECTOR, Office of Medical Assistance, et al., Defendants-Appellants, Case No. 15-4066 (6th Cir.) In 2006, the State of Ohio applied for and received a Medicaid waiver to provide assisted-living services to low-income seniors. In 2008, Betty Hilleger -- then suffering from dementia, heart problems, and arthritis -- moved into The Lodge Care Center, an assisted-living facility in Cincinnati. In April 2012, Geraldine Saunders checked into a hospital and then a rehabilitation facility after suffering a fall. Her stress fractures and worsening dementia prevented her from returning home. The plaintiffs, a class of Ohio Medicaid beneficiaries, sued Ohio's Medicaid administrators on the claim that federal law requires Ohio to cover certain assisted-living services retrospectively. The plaintiffs alleged that Ohio's omissions of Medicaid coverage for the first 18 days of Saunders's assisted- living costs, and for the first three months of Hilleger's assisted-living costs, were in violation of federal law. The plaintiffs sought declaratory and injunctive relief under 42 U.S.C. Section 1983 on behalf of themselves and others similarly situated. They specifically alleged that, per 42 U.S.C. Section 1396a(a)(34), Ohio must retroactively cover the assisted-living services for a waiver-program beneficiary for up to three months before the beneficiary applies for coverage under the program. In November 2014, the plaintiffs amended their complaint and added two more claims under Section 1983: that the defendants failed to comply with the notice requirements of 42 U.S.C. Sec. 1396a(a)(3); and that the defendants failed to provide Medicaid assistance with reasonable promptness, in violation of 42 U.S.C. Section 1396a(a)(8). In September 2015, the district court certified the plaintiffs' proposed class of Medicaid beneficiaries and granted summary judgment to the plaintiffs. The court held that federal law required Ohio to "assess whether, at any time up to three months prior to an application for assisted living waiver benefits, the applicant met the financial eligibility benefits; whether the applicant had a need for intermediate or skilled level of care; and whether the applicant received supportive services consistent with the plan of care. On appeal, the defendants argue that (1) the plaintiffs lack standing to sue and that the district court thus should have dismissed their complaint; (2) the Eleventh Amendment bars the plaintiffs' remaining claim for relief; and (3) the district court misconstrued 42 U.S.C. Section 1396a(a)(34), which they contend does not require Ohio to pay benefits for assisted-living services rendered before a beneficiary obtains approval of his service plan. In his Opinion dated September 30, 2016 available at https://is.gd/jhYveL from Leagle.com, Judge Kethledge held that the district court erred when it concluded that the plaintiffs have standing to sue on their other claims because the plaintiffs have standing to pursue only their February 2013 claim that the defendants failed to comply with federal law by refusing to award retroactive assisted-living benefits under 42 U.S.C. Section 1396a(a)(34; that the Eleventh Amendment does not bar the plaintiff; and the United States has long recognized, Sec. 1396n(c)(1) permits Medicaid funding only for assisted-living services that are authorized by a preceding service plan. Kathryn A. Price, et al. are represented by Eric M. Carlson, Esq. -- ecarlson@justiceinaging.org -- JUSTICE IN AGING Medicaid Director is represented by: Jeffrey P. Jarosch, Esq. Cheryl R. Hawkinson, Esq. Amy R. Goldstein, Esq. OFFICE OF THE OHIO ATTORNEY GENERAL 30 East Broad Street 17th Floor Columbus, OH 43215 Tel: (614)466-8980 ORTHOTOUCH: Appeal Aims to Delay Highveld Investor Class Action --------------------------------------------------------------- Ryk van Niekerk, writing for Moneyweb, reports that the application for leave to appeal to the Supreme Court of Appeal (SCA) by the business rescue practitioner of the failed Highveld Syndication (HS) companies, Hans Klopper, is not in the interest of historic HS investors. The application, as well as a similar application by Orthotouch itself, is only aimed to delay and frustrate investors who are bringing a class action against property tycoon Nic Georgiou. Mr. Klopper is also less than truthful in his answers to several Moneyweb questions regarding his application to the SCA, as they do not mirror the arguments he set out under oath in his affidavit in support of the application. These are the views of attorney Jacques Theron, head of the legal team acting for the management committee of the Highveld Syndication Action Group (HSAG), the group that wants to have the scheme of arrangement approved in 2014 set aside and to institute the class action to recover their investments from Orthotouch and Mr. Georgiou. The HSAG is in the process of challenging the legality of the controversial scheme of arrangement and instituting a class action suit against Georgiou and Orthotouch. They will also be defending the applications of Orthotouch and Mr. Klopper. Mr. Klopper said that there seems to be "a misconception" that his role as the business rescue practitioner is to protect only the interests of investors in the various companies and more particularly those who support the so-called class action. "I am of the view that this perception is incorrect as a business rescue practitioner's duty is to balance the interests of all relevant stakeholders, which include the company itself, employees, organized labor, creditors and shareholders." Mr. Klopper added that "whilst we have been told that there are many investors who support the class action and who identify themselves with the Highveld Syndication Action Group, there are also thousands of investors who do not support the class action and whose interests I need to acknowledge as equally important. I therefore repeat that as my duty remains to balance all of these groups of interests it need not be specifically spelled out in an affidavit. I was in (any) event advised at the time that the issue of the protection of investors' information was already contained in Mr. Kleovoulou's affidavit." Mr. Klopper refers to an affidavit of Panagiotis Kleovoulou, a director of Orthotouch, which forms part of Orhtotouch's SCA application for leave to appeal. Mr. Theron was also unhappy with Mr. Klopper's answer to a previous Moneyweb question as to why he brought the application. Mr. Klopper said to Moneyweb he launched the application to, in essence, protect the private information of investors. Mr. Theron said this is "absolute nonsense". "Protection of private information was never an issue, and still is not an issue -- even in his current (16-page) affidavit to the SCA." In reaction, Mr. Klopper said he did not deal with this issue in his affidavit, as Kleovoulou referred to this in his affidavit. "There was therefore no need for me to also deal in my affidavit with my obvious duty to balance the interest of affected persons as opposed to only act in the interest of one group". Mr. Theron also said that Mr. Klopper only offers technical or procedural reasons as to why the order should not have been granted. "Nowhere does he deal with the merits of the granting of the order. He does not even try to give one reason why this order is not in the interest of the investors, or even not in his own interest. Klopper is clearly out to delay matters and to frustrate the investors who are bringing the class action." PDR NETWORK: Carlton Seeks 7th Circuit Review of S.D. W.Va. Ruling ------------------------------------------------------------------ Plaintiff Carlton & Harris Chiropractic, Inc., filed an appeal from a court ruling in its lawsuit styled Carlton & Harris Chiropractic v. PDR Network, LLC, Case No. 3:15-cv-14887, in the United States District Court for the Southern District of West Virginia at Huntington. As previously reported in the Class Action Reporter, Carlton seeks to stop the Defendants' alleged practice of sending unsolicited facsimiles. Chief District Judge Robert C. Chambers granted defendants' motion to dismiss the case. The appellate case is captioned as Carlton & Harris Chiropractic v. PDR Network, LLC, Case No. 16-2185, in the United States Court of Appeals for the Fourth Circuit. Plaintiff-Appellant CARLTON & HARRIS CHIROPRACTIC, INC., a West Virginia Corporation, individually and as the representative of a class of similarly-situated persons, is represented by: William Stuart Calwell, Jr., Esq. David Harley Carriger, Esq. D. Christopher Hedges, Esq. CALWELL PRACTICE, LC 500 Randolph Street Charleston, WV 25302-0000 Telephone: (304) 343-4323 Telephone: (304) 304-4323 Facsimile: (304) 344-3684 E-mail: scalwell@calwelllaw.com dcarriger@calwelllaw.com chedges@calwelllaw.com - and - Glenn L. Hara, Esq. Ryan Michael Kelly, Esq. Brian J. Wanca, Esq. ANDERSON & WANCA 3701 Algonquin Road Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: GHara@andersonwanca.com rkelly@andersonwanca.com bwanca@andersonwanca.com Defendants-Appellees PDR NETWORK, LLC, PDR DISTRIBUTION, LLC, and PDR EQUITY, LLC, are represented by: Jeffrey N. Rosenthal, Esq. BLANK ROME, LLP 1 Logan Square 130 North 18th Street Philadelphia, PA 19103 Telephone: (215) 569-5553 E-mail: Rosenthal-J@BlankRome.com - and - Anahit Tagvoryan, Esq. BLANK ROME LLC 2029 Century Park East Los Angeles, CA 90067 Telephone: (424) 239-3400 E-mail: atagvoryan@blankrome.com - and - Alexander L. Turner, Esq. Marc Ellis Williams, Esq. NELSON MULLINS RILEY & SCARBOROUGH, LLP 949 3rd Avenue Huntington, WV 25701 Telephone: (304) 526-3500 E-mail: alex.turner@nelsonmullins.com marc.williams@nelsonmullins.com PERFORMANT RECOVERY: Faces "Cahill" Suit in S.D. of California -------------------------------------------------------------- A class action lawsuit has been filed against Performant Recovery, Inc. The case is styled Tiffany Ann Cahill, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. Performant Recovery, Inc., the Defendant, Case No. 3:16-cv-02587- DMS-MDD (S.D. Cal., Oct. 17, 2016). The case is assigned to Hon. Judge Dana M. Sabraw. Performant Recovery is an aggressive collection agency located in Livermore, California. The Plaintiff is represented by: Joshua Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233 7770 Facsimile: (619) 297 1022 E-mail: josh@westcoastlitigation.com POWER HOME: Settles TCPA Class Action for $5.2 Million ------------------------------------------------------ The National Law Journal reports that Power Home Remodeling Group LLC will pay $5.2 million to settle a class action for making numerous unsolicited phone calls to more than 1 million people. U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania approved the deal Oct. 12. The judge's decision notes that the company already changed its business practices regarding calls to cellphones. "We approve the negotiated settlement as fair, reasonable and adequate after finding immediate changes in the sales-lead company's business practices on cellphone sales calls and an opportunity to file a claim to recover damages," Judge Kearney wrote in his opinion. Teofilo Vasco filed the lawsuit under the Telephone Consumer Protection Act after the company allegedly called him 21 times. PROFESSIONAL CLAIMS: Faces "Covino" Suit in E.D. of New York ------------------------------------------------------------ A class action lawsuit has been filed against Professional Claims Bureau, Inc. The case is captioned Robert Covino, on behalf of himself and all others similarly situated, the Plaintiff, v. Professional Claims Bureau, Inc., the Defendant, Case No. 2:16-cv- 05779 (E.D.N.Y., Oct. 17, 2016). Professional Claims is a debt collection agency. The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 50 Garden City, NY 11530 Telephone: (516) 203 7600 Facsimile: (516) 281 7601 E-mail: csanders@sanderslawpllc.com PVH CORP: Court Preliminarily Approves "Scott-George" Settlement ---------------------------------------------------------------- District Judge Troy L. Nunley granted preliminary approval of the proposed class action settlement in the case, JODI SCOTT-GEORGE, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. PVH CORPORATION, a Delaware corporation, and DOES 1 through 100, inclusive, Defendants, Case No. 2:13-cv-00441-TLN-AC (E.D. Cal.). The Court conditionally certifies a Settlement Class as: All current and former non-exempt employees who were employed in California by PVH Corp. or PVH Retail Stores LLC during January 29, 2009 through the date of preliminary approval of the settlement. The Court preliminarily approves Plaintiffs Jodi Scott-George and Melissa Wiggs to serve as the Class Representatives while Aequitas Legal Group, A Professional Law Corporation shall serve as Class Counsel. The hearing to consider final approval of the Settlement is set for February 23, 2017, at 2:00 p.m. A copy of the Court's Order dated October 6, 2016 is available at https://goo.gl/V01C9h from Leagle.com. Jodi Scott-George, Plaintiff, represented by Ronald H. Bae -- rbae@aequitaslegalgroup.com -- Aequitas Legal Group. Jodi Scott-George, Plaintiff, represented by Olivia D. Scharrer -- oscharrer@aequitaslegalgroup.com -- Aequitas Legal Group. PVH Corporation, Defendant, represented by Robin J. Samuel -- robin.samuel@hoganlovells.com -- Hogan Lovells USA LLP, Samantha Michele Kantor -- skantor@alumni.law.upenn.edu -- Hogan Lovells LLP & Tao Leung -- tao.leung@hoganlovells.com -- Hogan Lovells US LLP. RACKSPACE HOSTING: Faces "Luger" Suit Over Sale to Apollo --------------------------------------------------------- SHAWN LUGER, Individually and On Behalf of All Others Similarly Situated, v. RACKSPACE HOSTING, INC., GRAHAM WESTON, WILLIAM TAYLOR RHODES, LEWIS J. MOORMAN, FRED REICHHELD, OSSA FISHER, LILA TRETIKOV, KEVIN COSTELLO, JOHN HARPER, APOLLO GLOBAL MANAGEMENT, LLC, INCEPTION PARENT, INC., and INCEPTION MERGER SUB, INC., Case No. 12819 (Del. Ch., October 11, 2016), is a stockholder lawsuit arising from a transaction pursuant to which Rackspace will be acquired by affiliates of Apollo Global Management, LLC. RACKSPACE HOSTING, INC. -- http://www.rackspace.com/en-ph-- is a managed cloud computing company. The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. Jeremy J. Riley, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Phone: (302) 295-5310 - and - Joseph M. Profy, Esq. David M. Promisloff, Esq. Jeffrey J. Ciarlanto, Esq. PROFY PROMISLOFF & CIARLANTO, P.C. 100 N. 22nd Street, Unit 105 Philadelphia, PA 19103 Phone: (215) 259-5156 SAMSUNG ELECTRONICS: "Coghlan" Lawsuit Alleges False Advertising ---------------------------------------------------------------- TIMOTHY COGHLAN, individually and on behalf of all others similarly situated, v. SAMSUNG ELECTRONICS AMERICA, INC., Case No. 1:16-cv-09658 (N.D. Ill., October 11, 2016), alleges that Defendant falsely and misleadingly concealed the fact that its televisions use significantly more energy than the Energy Guide labelling and advertising, thereby increasing purchasers' electricity costs. SAMSUNG ELECTRONICS AMERICA, INC. is a wholly-owned subsidiary of Samsung Electronics Co. Ltd., which is a Korean company headquartered in Suwon, South Korea. Defendant has been and still is engaged in the business of distributing, marketing, and selling televisions throughout the United States and this District. The Plaintiff is represented by: Theodore B. Bell, Esq. Carl Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC One Dearborn Street, Suite 2122 Chicago, IL 60603 Phone: (312) 984-0000 Fax: (312) 212-4401 E-mail: tbell@whafh.com malmstrom@whafh.com - and - Thomas H. Burt, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Phone: (212) 545-4600 Fax: (212) 545-4653 E-mail: burt@whafh.com SAMSUNG ELECTRONICS: Faces "Waudby" Suit Over Faulty Galaxy Note7 ----------------------------------------------------------------- JOHN WAUDBY, ROBERT SPUNTAK and MOHAMAD IBRAHIM individually, and on behalf of others similarly situated v. SAMSUNG ELECTRONICS AMERICA, INC., Case No. 2:16-cv-07334-CCC-JBC (D.N.J., Oct. 16, 2016), is a proposed class action lawsuit brought by the Plaintiffs on behalf of themselves and a class of persons and entities, who purchased or financed a Samsung Galaxy Note7 smartphone. According to the complaint, Samsung recalled the defective Note7 devices and notified consumers that they should immediately discontinue using the smartphones and exchange them for replacements. However, the Plaintiffs allege, Samsung did not have replacement smartphones available, and instead, the Company informed consumers that they would have to wait several days, and even weeks in many cases, before receiving a replacement smartphone. As a result of this failure, consumers continued to incur monthly device and plan charges from their cellular carriers for phones they could not safely use, the Plaintiffs contend. Samsung Electronics America, Inc., is a New York corporation with its principal place of business in Ridgefield Park, New Jersey. Samsung is a wholly-owned subsidiary of Samsung Electronics Co., Ltd., which is a Korean company headquartered in Suwon, South Korea. The Defendant distributes, markets, and sells smart phones and other products throughout United States. The Plaintiffs are represented by: Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. MCCUNEWRIGHT, LLP 555 Lancaster Avenue Berwyn, PA 19312 Telephone: (610) 200-0580 E-mail: jgs@mccunewright.com mds@mccunewright.com jbk@mccunewright.com - and - Richard D. McCune, Esq. David C. Wright, Esq. Emily J. Kirk, Esq. MCCUNEWRIGHT, LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: rdm@mccunewright.com dcw@mccunewright.com ejk@mccunewright.com SCHNEIDER NATIONAL: Settles Truckers' Wage Suit for $28 Million --------------------------------------------------------------- Clarissa Hawes, writing for Trucks, reports that Schneider National Carriers Inc. will pay $28 million to settle a long- standing dispute over wages for meal and rest breaks for drivers in California. The settlement ends a class-action lawsuit filed in 2008 by drivers who said they were not paid for breaks or for waiting at docks for their cargo to be loaded or unloaded. Judge Jeffrey White of the U.S. District Court in Oakland issued his final approval of the class-action settlement on Oct. 13 after granting preliminary approval of the proposed settlement in May. The lawsuit affects about 7,700 current or former Schneider drivers in California. In a 2014 ruling, the U.S. Ninth Circuit Court of Appeals affirmed that California could enforce its own meal and rest break requirements for the trucking industry. The trucking industry has fought to reverse that decision. In his first major speech since becoming president of the American Trucking Associations this month, Chris Spear said the trade group would continue to push back against jurisdictions that are imposing extra meal and rest break requirements on interstate drivers already limited by federal hours-of-service regulations The trucking industry is supporting legislation working its way through Congress that would block states from enforcing their own rules on interstate truck drivers who are employees. In California, the legislation would still allow the state to enforce meal and rest break requirements on a driver who, for example, travels only between Bakersfield and Oakland hauling goods manufactured within the state. That is a purely intrastate movement. But drivers headed out of state or are shuttling goods from ports most likely would be not fall under the California rules. The class-action lawsuit, Bickley v. Schneider National Carriers Inc., said the carrier, which is headquartered Green Bay, Wis., engaged in other improper pay practices. The lawsuit claimed that Schneider failed to pay California drivers minimum wage, a violation of the California Labor Code, and failed to pay employees wages for vacation time, personal days off and other paid leave owed when they left the company. Drivers also alleged in the suit that the company failed to keep accurate pay records of wages that drivers earned while working in California. The settlement came just a day after Schneider announced plans to pursue an initial public offering next year. Schneider is the nation's seventh-largest trucking company and is the largest privately held trucking company in the U.S. by revenue. It garnered revenue of $3.4 billion in 2015. The company has more than 10,000 trucks and 33,800 trailers. Al Schneider founded the firm in 1935, and it has been family- owned ever since. In a statement, executives said they are seeking the IPO "to facilitate continuity of controlling ownership of Schneider by the future generations of the Schneider family, while continuing forward with its long-standing independent and professional corporate governance structure." SEDGWICK: Gender Discrimination Case May Head to Arbitration ------------------------------------------------------------ The National Law Journal reports that a female Sedgwick partner who sued the firm earlier this year for gender discrimination will likely have to make her case to an arbitrator. U.S. District Judge William Alsup of the Northern District of California said Oct. 13 that he's inclined to agree with the firm's lawyers at Seyfarth Shaw that partnership agreements signed by nonequity partner Traci Ribeiro require the dispute to be routed to arbitration. Ms. Ribeiro's lawyer, J. Bryan Wood of The Wood Law Office in Chicago, had argued the firm's arbitration provision with partners doesn't apply to statutory employment discrimination and retaliation claims like those in her lawsuit. SIMONTON BUILDING: Faces "Kiefer" Suit in District of Minnesota --------------------------------------------------------------- A class action lawsuit has been filed against Simonton Building Products, LLC. The case is titled Lisa Kiefer, an individual; Adam Arvig, an individual; Lynette Andersen, an individual; Sheri Squillace, an individual; Justin Smith, an individual; Joan Corby, an individual; Koch Family Trust, on their own behalves and on behalf of all others similarly situated, the Plaintiffs, v. Simonton Building Products, LLC, formerly known as Simonton Building Products, Inc., an Ohio limited liability company; Simonton Windows, Inc., a West Virginia for-profit corporation; Simonton Industries, Inc., a for-profit corporation; and Simonton Windows & Doors, Inc., a for-profit corporation, the Defendants, Case No. 0:16-cv-03540-RHK-SER (D. Minn., Oct. 17, 2016). The case is assigned to Hon. Judge Richard H. Kyle. Simonton Building manufactures replacement and new construction windows. The Plaintiff is represented by: Alex M Nelson, Esq. Michael J Lowder, Esq. BENSON, KERRANE, STORZ & NELSON, PC 7760 France Avenue South, Suite 1350 Bloomington, MN 55435 Telephone: (952) 466 7574 E-mail: anelson@bensonpc.com mlowder@bensonpc.com SOCIAL SECURITY: Class Certification Bid in "Robertson" Denied -------------------------------------------------------------- In the lawsuit captioned KEVIN ROBERTSON, JENNY ROSE, and KATHY COLLINS, individually and on behalf of all others similarly situated, Plaintiffs, v. CAROLYN W. COLVIN, in her official Capacity as Acting Commissioner of the Social Security Administration, the Defendant, Case No. 3:16-cv-02113 (S.D.W.Va.), the Hon. Chief Judge Robert C. Chambers entered an order denying as moot Plaintiffs' motion for class certification, pursuant to the Court's simultaneously filed order granting dismissal in the case in favor of the Defendant. The Court directs the Clerk to send a copy of the Order to counsel of record and any unrepresented parties. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Ylz4uQkL SOUTH AFRICA: Unpaid Parole Board Members Launch Legal Action ------------------------------------------------------------- Paddy Harper, writing for City Press, reports that parole board members, who are owed millions of rands in unpaid allowances, have taken the department of justice and correctional services to court after battling for five years -- without success -- to get their money. At issue is an allowance amounting to 37% of their salary, which - - in terms of a Public Service Sector Bargaining Council resolution, adopted in 2007 -- is to be paid to board members employed by the department. At least four separate applications by parole board members in Gauteng, Mpumalanga, the Eastern Cape and the Western Cape are being lobbied to join the Labour Court action. A member of the Johannesburg management area parole board, who asked not to be named for fear of being victimized, said: "There are a lot of such cases throughout the country. The largest group of more than 40 officials is in Johannesburg. "One official has already been paid more than R1 million, while a chairperson is owed more than R2 million in unpaid benefits." He said officials in the Gauteng region did not want to go to court, but were forced to do so after their pleas fell on deaf ears. "These matters were raised as far back as 2005, when we were first appointed. In 2011, then minister of correctional services Nosiviwe Mapisa-Nqakula appointed a task team to resolve these matters. "We were never invited to any of the team's meetings, despite the fact that it was supposed to be a joint task team. "Several letters were written to the minister and the national commission, but we received no response . . . They did not even have the decency to acknowledge receipt of these letters." Another parole board member said the group wrote to the portfolio committee on justice and correctional services, as well as the standing committee on public accounts, requesting their intervention. But, he alleges, the correctional services department bullied them into remaining silent. The parole boards are still functional, but some members have told City Press the situation has hit "crisis point" and that it is a matter of time before they stop doing their work. "The precedents have been set; people have been paid out after winning in previous cases. Yet, the department continues to waste money in defending the [new] cases on a matter already decided on, with similar merits. "On July 3 last year, we met with Minister of Justice and Correctional Services Michael Masutha and were promised that all human resources matters were being attended to. He gave us a timeframe of two months, ending in September last year. This was not honored, so class actions were intensified." Meanwhile, Western Cape parole board chairperson Zalisile Mkhontwana and 14 others were scheduled to appear before the Labour Court in Cape Town on Oct. 19 for their application to get the court to order the department to pay the allowance. However, Mr. Mkhontwana's attorney Riyaaz Parker said he understood that the state attorney in the Western Cape would apply to court to have the cases consolidated with a Johannesburg Labour Court application -- brought by the Johannesburg board members and led by former board member Solomon Lekgetho. Mr. Parker cautioned that, should their application be successful, this would come at a "significant" cost to the department and Treasury as some payments being claimed dated back five years or more. Correctional services spokesperson Manelisi Wolela confirmed that there were several court disputes. "The correctional services department can confirm that a number of parole boards around the country have taken the department to court on various matters. Owing to the ongoing court cases, the department cannot comment further," he said. Vincent Jones, chairperson of the Johannesburg management area parole board, confirmed that they were drafting papers for a class action on behalf of members. SOUTHERN RESPONSE: Hearing Set in Earthquake Class Action --------------------------------------------------------- GCA Lawyers on Oct. 17 disclosed that Southern Response Class Action (SRCA) was set to be back in court on Oct. 19 seeking an order that their class action may proceed. The group of 40 accuses Southern Response (which is owned by the Government) of consistently delaying earthquake house repairs, and of under- estimating claims. On December 16, 2015 the group applied for a 'representative order' but earlier this year Judge Mander rejected that application, suggesting more evidence of a commonality of interest was needed. The group's new claim highlights the allegation that the insurer's strategy is to minimize its liability by using the following tactics: -- misrepresenting the nature of Southern Response's obligations and the claimants' rights; -- understating the extent of the work required, and the cost of undertaking that work; -- offering cash settlements significantly below the actual assessed cost of undertaking the work in question; -- assuming control of the rebuilding and repair work, so it could minimize the cost to it of the required work; -- unreasonably delaying in responding to and meeting the claims of the claimants; -- adopting various other stances designed to reduce its liabilities; -- inducing "settlements" of the claims for significantly reduced amounts; and -- undertaking sub-standard repair work. SRCA lawyer Grant Cameron says the group has strong expectations the court will grant their application and a class action will proceed in 2017. "To date policyholders have not been able to get court assistance as, individually, they don't have the money to engage experts or lawyers, or to engage in lengthy litigation. Therefore, the court has not been an option. However, with the support of a litigation funder we think policyholders may for the first time, get access to justice and effective remedies." SPROUTS FARMERS: "Castellano" Suit Consolidated in MDL 2731 ----------------------------------------------------------- The class action lawsuit titled Nancy Castellano, an individual, on behalf of herself and all others similarly-situated employees of Defendants, the Plaintiff, v. Sprouts Farmers Market Incorporated; SFM LLC; and Unknown Parties Named as Does 1-5, Inclusive, the Defendants, Case No. 3:16-cv-01184, was transferred from the U.S. District Court for the Southern District of California, to the U.S. District Court for the District of Arizona. The District Court Clerk assigned Case No. 2:16-cv-03513- DLR to the proceeding. The Castellano case is being consolidated with MDL 2731 in re: Sprouts Farmers Market, Inc., Employee Data Security Breach Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 6, 2016. These actions -- three of which are putative nationwide class actions -- share factual issues concerning an incident in which the 2015 W-2 forms of Sprouts employees were released, unencrypted, to an unknown party as the result of a phishing scam. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on class certification and other issues; and conserve the resources of the parties, their counsel, and the judiciary. In its October 6, 2016 Order, the MDL Panel found that centralization under Section 1407 in the District of Arizona will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Presiding Judge in the MDL is Hon. Sarah S. Vance, United States District Judge. The lead case is 2:16-md-02731-DLR. Sprouts Farmers is an American health food supermarket offering fresh, natural and organic foods at low prices. The Plaintiff is represented by: Nicole R Roysdon, Esq. GRAHAM HOLLIS APC 3555 5th Ave., Ste. 200 San Diego, CA 92103 Telephone: (619) 692 0800 Facsimile: (619) 692 0822 The Defendants are represented by: Paul Gregory Karlsgodt, Esq. Tanya Lee Forsheit, Esq. Teresa Carey Chow, Esq. Daniel Marc Goldberg, Esq. BAKER & HOSTETLER LLP - DENVER, CO 1801 California St., Ste. 4400 Denver, CO 80202 Telephone: (303) 861 0600 Facsimile: (303) 861 7805 E-mail: pkarlsgodt@bakerlaw.com tforsheit@bakerlaw.com SPROUTS FARMERS: "Hernandez" Suit Consolidated in MDL 2731 ---------------------------------------------------------- The class action lawsuit titled Julio Hernandez, Cynthia Byrne, and Danielle Butler, on behalf of herself and all others similarly-situated employees of Defendants, the Plaintiff, v. Sprouts Farmers Market Incorporated and SFM LLC, the Defendants, Case No. 3:16-cv-00958, was transferred from the U.S. District Court for the Southern District of California, , to the U.S. District Court for the District of Arizona. The District Court Clerk assigned Case No. 2:16-cv-03512-DLR to the proceeding. The Hernandez case is being consolidated with MDL 2731 in re: Sprouts Farmers Market, Inc., Employee Data Security Breach Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 6, 2016. These actions -- three of which are putative nationwide class actions -- share factual issues concerning an incident in which the 2015 W-2 forms of Sprouts employees were released, unencrypted, to an unknown party as the result of a phishing scam. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on class certification and other issues; and conserve the resources of the parties, their counsel, and the judiciary. In its October 6, 2016 Order, the MDL Panel found that centralization under Section 1407 in the District of Arizona will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Presiding Judge in the MDL is Hon. Sarah S. Vance, United States District Judge. The lead case is 2:16-md-02731-DLR. Sprouts Farmers is an American health food supermarket offering fresh, natural and organic foods at low prices. The Plaintiffs are represented by: Marc Phelps, Esq. PHELPS LAW GROUP 23 Corporate Plaza Dr., Ste. 150 Newport Beach, CA 92660 Telephone: (949) 629 2533 Facsimile: (949) 629 2501 - and - Roger R Carter, Esq. CARTER LAW FIRM 23 Corporate Plaza Dr., Ste. 150 Newport Beach, CA 92660 Telephone: (949) 629 2565 Facsimile: (949) 629 2501 - and - Samantha Alane Smith, Esq. Scott B Cooper, Esq. COOPER LAW FIRM PC 4000 Barranca Pkwy., Ste. 250 Irvine, CA 92604 Telephone: (949) 724 9200 Facsimile (949) 724 9255 The Defendants are represented by: Casie Dell Collignon, Esq. Tanya Lee Forsheit, Esq. Teresa Carey Chow, Esq. BAKER & HOSTETLER LLP - DENVER, CO 1801 California St., Ste. 4400 Denver, CO 80202 Telephone: (303) 764 4037 Facsimile: (303) 861 7805 E-mail: ccollignon@bakerlaw.com tforsheit@bakerlaw.com SPROUTS FARMERS: "Porras" Suit Consolidated in MDL 2731 ------------------------------------------------------- The purported class action lawsuit styled Porras, et al. v. Sprouts Farmers Market Incorporated, et al., Case No. 5:16-cv- 01005, was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the District of Arizona (Phoenix Division) and is assigned to the Honorable Douglas L. Rayes. The Arizona District Court Clerk assigned Case No. 2:16-cv-03540-DLR to the proceeding. The lawsuit is consolidated in the multidistrict litigation titled In re: Sprouts Farmers Market, Inc., Employee Data Security Breach Litigation, MDL No. 2:16-md-02731-DLR. The actions in the litigation share factual issues concerning an incident in which the 2015 W-2 forms of Sprouts employees were released, unencrypted, to an unknown party as the result of a phishing scam. Plaintiffs Beverly Porras and Leticia Stocks, individually and on behalf of all others similarly situated, are represented by: Jessica L. Campbell, Esq. Kashif Haque, Esq. Samuel A. Wong, Esq. AEGIS LAW FIRM PC 9811 Irvine Center Dr., Suite 100 Irvine, CA 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 E-mail: khaque@aegislawfirm.com swong@aegislawfirm.com Defendants Sprouts Farmers Market Incorporated and SFM LLC, Erroneously Sued as FM, LLC, are represented by: Daniel Marc Goldberg, Esq. Tanya Lee Forsheit, Esq. BAKER & HOSTETLER LLP 11601 Wilshire Blvd., Suite 1400 Los Angeles, CA 90025-0509 Telephone: (310) 820-8800 Facsimile: (310) 820-8859 E-mail: dgoldberg@bakerlaw.com tforsheit@bakerlaw.com - and - Teresa Carey Chow, Esq. BAKER & HOSTETLER LLP 12100 Wilshire Blvd., Suite 1400 Los Angeles, CA 90025 Telephone: (310) 979-8458 Facsimile: (310) 820-8859 E-mail: tchow@bakerlaw.com - and - Casie Dell Collignon, Esq. Paul Gregory Karlsgodt, Esq. BAKER & HOSTETLER LLP 1801 California St., Suite 4400 Denver, CO 80202 Telephone: (303) 764-4037 Facsimile: (303) 861-7805 E-mail: ccollignon@bakerlaw.com pkarlsgodt@bakerlaw.com STEVE SHURHIN: Faces "Johnson" Suit Under FLSA, Col. Wage Laws -------------------------------------------------------------- FAMATTA JOHNSON, on behalf of herself and all similarly situated persons, v. STEVE SHURHIN, an individual; and ATLAS HOME HEALTH, INC., a Colorado corporation, Case No. 1:16-cv-02535 (D. Col., October 11, 2016), alleges that Defendants violated the federal Fair Labor Standards Act, the Colorado Wage Claim Act, and the Colorado Minimum Wage Act, as implemented by the Colorado Minimum Wage Order by failing to pay premium pay for all overtime hours worked. Defendants provide in-home nursing and care services to clients throughout the Denver metropolitan area. The Plaintiff is represented by: Brian D. Gonzales, Esq. THE LAW OFFICES OF BRIAN D. GONZALES, PLLC 242 Linden Street Fort Collins, CO 80524 Phone: (970) 214-0562 Fax: (303) 539-9812 E-mail: BGonzales@ColoradoWageLaw.com SUNEDISON INC: "Horowitz" Suit Consolidated in MDL 2742 ------------------------------------------------------- DINA HOROWITZ, on behalf of herself and all others similarly situated, v. SUNEDISON, INC., AHMAD CHATILA, and BRIAN WUEBBELS, Case No. 1:16-cv-07917-PKC (November30, 2015) was transferred from the United States District Court for the Eastern District of Missouri to the U.S. District Court for the Southern District of New York as related to Multi-District Litigation 1:16-md-02742-PKC The case alleges that Defendants misled investors by creating the picture that the Company had the financial wherewithal to sustain continued growth. Further it states: "However, as the Company continued its acquisition binge, it was revealed that the entire scheme was nothing more than a house of cards." The case claims violations of the U.S. Securities Exchange Act. SUNEDISON, INC. is a diversified developer of wind and solar energy projects, having developed over 1,300 solar and wind projects in 20 countries. The Plaintiff is represented by: James J. Rosemergy, Esq. CAREY DANIS & LOWE 8235 Forsyth, Suite 1100 Saint Louis, MO 63105 Phone: 314-725-7700 Fax: 314-721-0905 E-mail: jrosemergy@careydanis.com - and - Mark C. Gardy, Esq. James S. Notis, Esq. Jennifer Sarnelli, Esq. GARDY & NOTIS, LLP Tower 56 126 East 56th Street, 8th Floor New York, NY 10024 Phone: 212-905-0509 Fax: 212-905-0508 TEMPUR SEALY: Ninth Circuit Appeal Filed in "Todd" Class Suit ------------------------------------------------------------- The Plaintiffs filed an appeal from a court ruling in the lawsuit styled Alvin Todd, et al. v. Tempur-Sealy International, Inc., et al., Case No. 3:13-cv-04984-JST, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, the lawsuit was filed against Tempur Sealy International and one of its domestic subsidiaries, purportedly on behalf of a proposed class of "consumers" as defined by Cal. Civ. Code Sec. 1761(d) who purchased, not for resale, a Tempur-Pedic mattress or pillow in the state of California. The complaint alleges that the Company engaged in unfair business practices, false advertising, and misrepresentations or omissions related to the sale of certain products. District Judge Jon S. Tigar denied the Plaintiffs' motion for class certification. Judge Tigar concluded that the proposed class is ascertainable and that a class action would not be a superior mechanism for resolving this dispute. A copy of Judge Tigar's Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=7W8ZwCoR The appellate case is captioned as Alvin Todd, et al. v. Tempur- Sealy International, Inc., et al., Case No. 16-80155, in the United States Court of Appeals for the Ninth Circuit. Plaintiffs-Petitioners ALVIN TODD, BRIAN STONE, ROBBIE SIMMONS, THOMAS COMISKEY, TONI KIBBEE, TINA WHITE, JOHNNY MARTINEZ, KEITH HAWKINS, PATRICIA KAUFMAN, ALAN KAUFMAN, SARA STONE, JERRY KUCHARSKI, JULIE DAVIDOFF, ERICKA ANDERSON, KURT ANDERSON, MELODY TODD, DIANE KUCHARSKI and TRACEY PALMER, Individually and on behalf of all others similarly situated, are represented by: Sean Clinton Woods, Esq. AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102 Telephone: (415) 568-2555 E-mail: cwoods@audetlaw.com Defendants-Respondents TEMPUR-SEALY INTERNATIONAL, INC., FDBA Tempur-Pedic International, Inc., and TEMPUR-PEDIC NORTH AMERICA, LLC, are represented by: Samuel G. Brooks, Esq. Mark Eisenhut, Esq. Matthew R. Orr, Esq. CALL & JENSEN, APC 610 Newport Center Drive Newport Beach, CA 92660 Telephone: (949) 717-3000 E-mail: sbrooks@calljensen.com meisenhut@calljensen.com morr@calljensen.com TJX COMPANY: Court Approves $4,750,000 Settlement in "Roberts" -------------------------------------------------------------- District Judge Allison D. Burroughs of the United States District Court for the District of Massachusetts granted final approval to the class and collective action settlement in the case captioned, CELINA ROBERTS, ANTHONY SCIOTTO, ERIC BURNS, KERI DICKEY, ANGELA RAMIREZ, DIANA SANTILLAN, CAMILLE GHANEM, ARNOLD WILLIAMS, OLUWATOSIN BABALOLA, TOMMY ZAHTILA, TODD JUSTICE, GIANFRANCO PIROLO, MICHAEL O'GRADY, AND JASON FOSTER, individually, and on behalf of other persons similarly situated, Plaintiffs, v. THE TJX COMPANIES, INC., a Delaware Corporation; MARSHALLS OF MA, INC., a Massachusetts Corporation; MARMAXX OPERATING CORP., a Delaware Corporation, d/b/a MARSHALLS HOMEGOODS, d/b/a MARSHALLS, d/b/a T.J. MAXX HOMEGOODS; HOMEGOODS, INC., a Delaware Corporation; Defendants, Case No. 13-CV-13142-ADB (D. Mass.). In the putative class and collective action, the named Plaintiffs allege that their employers, The TJX Companies, Inc.; Marshalls of MA, Inc.; Marmaxx Operating Corp.; and HomeGoods, Inc. (together, Defendants) misclassified them as exempt from the overtime requirements of the federal Fair Labor Standards Act "FLSA) and the New York Labor Law (NYLL), and then failed to pay them overtime as required by the FLSA and the NYLL. Plaintiffs, who worked as Assistant Store Managers (ASMs) at Marshalls, HomeGoods, and T.J. Maxx stores in various states (excluding California), allege that the Defendants misclassified them as exempt from the overtime requirements of the FLSA and the NYLL (1) during the period when Plaintiffs participated in a formal "ASM Training Program" sponsored by their employer (the ASM Training Claims); and (2) during their subsequent employment as ASMs (the ASM Misclassification Claims). The case stems from three separate putative class and collective actions filed between December 2013 and May 2014 which were consolidated on August 8, 2014 when Plaintiffs filed their Second Amended Complaint. After consolidation, theBurns and Ghanem actions were dismissed, and the parties began to discuss settlement of the ASM Training Claims. On or about October 28, 2014, the parties entered into a Confidential Mediation Agreement to facilitate negotiations. On November 10, 2014, the parties engaged in an all-day mediation session under the direction of Hunter R. Hughes, Esq., who is an experienced class and collective action mediator. Mr. Hughes also has experience mediating wage and hour cases. The Settlement provides that the Defendants shall pay a "Maximum Gross Settlement Amount" of $4,750,000 into a qualified settlement fund to resolve the ASM Training Claims. The Maximum Gross Settlement Amount includes four components, to be paid in the following order: (1) attorneys' fees, expenses, and costs to be awarded to Class Counsel, in an amount up to one-third of the Maximum Gross Settlement Amount (here, $1,583,333.33); (2) the expenses of administering the settlement (which is being handled by an agreed- upon third party claims administrator); (3) "service payments" to each of the eleven named ASM Training Plaintiffs, in an amount not to exceed $3,250 per named Plaintiff; and (4) settlement payments to individual class members who file Claim Forms. On May 6, 2015, the Court granted Plaintiffs' unopposed motion for preliminary approval of the proposed Settlement. Presently before the Court is Plaintiffs' Unopposed Motion for Final Approval of a Class and Collective Action Settlement which pertains only to the ASM Training Claims. Plaintiffs Anthony Sciotto, Angela Ramirez, Arnold Williams, Camille Ghanem, Oluwatosin Babaloa, Eric Burns, Tommy Zahtila, Gianfranco Pirolo, Michael O'Grady, Jason Foster, and Todd Justice (together, the ASM Training Plaintiffs) move for an order granting final approval of the parties' proposed Stipulation and Settlement Agreement (Settlement) pursuant to Fed. R. Civ. P. 23(e). In addition, Plaintiffs' counsel (Class Counsel) have applied for an award of attorneys' fees pursuant to Fed. R. Civ. P. 23(h), in the amount of $1,583,333.33. In the Memorandum and Order dated September 30, 2016 available at https://is.gd/6zrr8i from Leagle.com, Judge Burroughs found the Settlement fair, reasonable, and adequate and that the Class Counsel's requested fee of 33 and 1/3% of the fund total, reflecting a lodestar multiplier of nearly 2, to be reasonable in light of the counsel's efforts and the significant risk they assumed in taking the case on a wholly contingent basis, to be reasonable. Eric Burns is represented by: Charles Gershbaum, Esq. HEPWORTH, GERSHBAUM & ROTH, PPLC 192 Lexington Ave, Suite 802 New York, NY 100166 Tel: (212)545-1199 Eric Burns, et al. are represented by David A. Roth, Esq. -- harry1953ny@yahoo.com -- and Mathew A. Parker, Esq. -- mparker@fisherphillips.com -- HEPWORTH, GERSHBAUM & ROTH, PPLC -- Sara Wyn Kane, Esq. -- skane@vkvlawyers.com -- VALLI KANE & VAGNINI LLP -- and -- Fran L. Rudich, Esq. Seth R. Lesser, Esq. KLAFTER OLSEN & LESSER LLP Two International Drive Suite 350 Rye Brook, NY 10573 Tel:(914)934-9200 -- and -- Loren B. Donnell, Esq. Sam J. Smith, Esq. BURR & SMITH, LLP 111 2nd Avenue N.E. Suite 1100 St. Petersburg, FL 33701 Tel:(813)253-2010 Celina Roberts, et al. are represented by James Aldo Vagnini, Esq. -- jvagnini@vkvlawyers.com -- Robert J. Valli, Jr., Esq. -- rvalli@vkvlawyers.com -- and Sara Wyn Kane, Esq. -- skane@vkvlawyers.com -- VALLI KANE & VAGNINI LLP -- Emily E. Smith-Lee, Esq. -- esmith-lee@mwe.com -- SMITH-LEE LLC Adam G. Price, Esq. Jay D. Ellwanger, Esq. William M. Parrish, Esq. DINOVO PRICE ELLWANGER & HARDY, LLP 7000 North MoPac Expressway Suite 350 Austin, TX 78731 Tel:(512)539-2626 -- and -- Loren B. Donnell, Esq. Sam J. Smith, Esq. BURR & SMITH, LLP 111 2nd Avenue N.E. Suite 1100 St. Petersburg, FL 33701 Tel:(813)253-2010 Tommy Zahtila is represented by Hillary A. Schwab, Esq. -- Hillary@fairworklaw.com -- FAIR WORK, P.C. -- Sara Wyn Kane, Esq. -- skane@vkvlawyers.com -- VALLI KANE & VAGNINI LLP -- and -- Loren B. Donnell, Esq. Sam J. Smith, Esq. BURR & SMITH, LLP 111 2nd Avenue N.E. Suite 1100 St. Petersburg, FL 33701 Tel:(813)253-2010 The TJX Companies Inc., et al. are represented by Andrew Voss, Esq. -- avoss@littler.com -- Justin R. Marino, Esq. -- jmarino@littler.com -- and Lisa A. Schreter, Esq. -- lschreter@littler.com -- LITTLER MENDELSON, PC -- Gregory C. Keating, Esq. -- gkeating@choate.com -- CHOATE, HALL & STEWART LLP TRANS UNION: Bid to Decertify Class in "Ramirez" Suit Denied ------------------------------------------------------------ Judge Jacqueline Scott Corley denied the motion filed by the defendant to decertify the class in the case captioned SERGIO L. RAMIREZ, Plaintiff, v. TRANS UNION, LLC, Defendant, Case No. 12-cv-00632-JSC (N.D. Cal.). The lawsuit arose out of Defendant Trans Union, LLC's identification of Plaintiff Sergio Ramirez as potentially being a person on the United States government's list of terrorists, drug traffickers, and others with whom Americans are prohibited from doing business. The Court previously certified a class action alleging three causes of action under the Fair Credit Reporting Act, and three under its state counterpart, the California Consumer Credit Reporting Agencies Act. Following the United States Supreme Court's decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), Trans Union argued for decertification on two related grounds: (1) that Ramirez did not suffer a concrete injury and thus does not have standing; therefore the action must be dismissed for lack of subject matter jurisdiction; and (2) that each class member must have suffered a "concrete injury" and that such inquiry is an individual question that renders certification improper for a variety of reasons. Judge Corley found that Ramirez suffered a concrete injury and therefore has standing to pursue all of his claims. Further, the judge held that under binding Ninth Circuit precedent his standing is adequate for purposes of the class, and, in any event, in light of the specific circumstances alleged, the absent class members also suffered a concrete injury. A full-text copy of Judge Corley's October 17, 2016 order is available at https://is.gd/IRkdLD from Leagle.com. Sergio L. Ramirez, Plaintiff, represented by Andrew J. Ogilvie -- andy@aoblawyers.com -- Anderson, Ogilvie & Brewer, Carol McLean Brewer -- carol@aoblawyers.com -- Anderson, Ogilvie & Brewer LLP, David A. Searles -- dsearles@consumerlawfirm.com -- Francis & Mailman, James A. Francis -- jfrancis@consumerlawfirm.com -- Francis and Mailman, P.C., John Soumilas -- jsoumilas@consumerlawfirm.com -- Francis and Mailman, P.C. & Gregory Joseph Gorski -- ggorski@consumerlawfirm.com -- Francis and Mailman PC. Trans Union, LLC, Defendant, represented by Bruce Steven Luckman -- bluckman@shermansilverstein.com -- Sherman Silverstein Kohl Rose and Podolsky, Julia B. Strickland, Stroock & Stroock & Lavan LLP, Stephen Julian Newman, Stroock & Stroock & Lavan LLP, Brian C. Frontino, Stroock & Stroock & Lavan LLP & Jason S. Yoo, Stroock & Stroock & Lavan LLP. TRUMP HOTELS: Casino Bankruptcies Hit Workers' Retirement Savings ----------------------------------------------------------------- Patrick Caldwell, writing for Mother Jones, reports that when pressed about the multiple bankruptcies at his Atlantic City casinos, Donald Trump routinely says the episodes highlight his business acumen. He made out well, he claims, at the expense only of his greedy Wall Street financiers. "These lenders aren't babies," he said during a Republican primary debate last fall. "These are total killers. These are not the nice, sweet little people that you think, okay?" Yet among those who suffered as a result of Trump's bankruptcies were his own casino employees, who collectively lost millions of dollars in retirement savings when the company's value plummeted. Trump's company encouraged its employees to invest their retirement savings in company stock, according to a class-action lawsuit filed by employees against Trump Hotels & Casino Resorts following its 2004 bankruptcy. Then, when the stock price was near its nadir as bankruptcy loomed, the company forced the employees to sell their stock at a huge loss. More than 400 employees lost a total of more than $2 million from their retirement accounts, the lawsuit states. The lawsuit was ultimately dismissed when a judge found no illegal actions on the part of Trump's company. But the conflict shows how Trump's exploitation of bankruptcy laws for his personal gain did end up hurting his employees. "I didn't realize he was as stupid as he is," says a former casino worker at Trump Plaza who asked not to be named. "Honestly. I thought, way back when, the guy was way brighter than we were. He was running the company and we were working for him. We thought he was brilliant. When we invested in it, we thought, how could this stock go so low?" Trump has never had to declare personal bankruptcy, but the company he set up to operate his Atlantic City casinos went through numerous corporate restructurings to reduce its debt load. As the New York Times recounted last year, Trump used his company as a means of transferring his personal debt load onto shareholders, issuing rounds of junk bonds to build up cash that would erase his own debts. "Even as his companies did poorly, Mr. Trump did well," the Times wrote. "He put up little of his own money, shifted personal debts to the casinos and collected millions of dollars in salary, bonuses and other payments. The burden of his failures fell on investors and others who had bet on his business acumen." Starting in 1996, workers at Trump's casinos were allowed to invest their 401(k) savings directly into Trump stock. (It was the only individual stock offered; the other options were mutual funds.) But that same year, THCR sold $1.1 billion in junk bonds to offset some of Trump's personal debt and buy two more ill-fated casino properties in Atlantic City. As the company floundered in the years leading up to its second bankruptcy in 2004, the stock price plummeted. According to the class-action complaint, "Between 1996 and August, 2004, employees were encouraged to invest in THCR shares as the price fell from $30/share to $2/share." By the end of 1997, employees had used more than $2 million in retirement funds to purchase 218,394 shares. The number of shares in employees' retirement accounts rose steadily even as the price dropped. By late 2003, the pool of employee retirement accounts held 1.1 million shares of Trump stock. But Trump's casinos were in near-fatal trouble. On August 10, 2004, the New York Stock Exchange removed the company from its listings as THCR announced a plan to restructure the company's debt and enter bankruptcy. Shares had been valued at $1.85 the previous day, but tanked to $0.36 in over-the-counter trades after the de-listing. The committee that managed the Trump employee retirement accounts -- with which Trump had no personal involvement--made the decision at that time to prevent workers from buying additional shares in the company because it had become an overly risky investment. "This prevented Plan participants from using an 'averaging down' strategy of buying additional shares at the current much lower price, to recoup some of their losses," the class-action complaint alleged. Employees could still sell shares, but with the $0.10- per-share transaction fee the company charged whenever an employee liquidated stock from his or her retirement account, there was little incentive to do so. The company's initial bankruptcy plan fell through a month later, but in late October 2004 a new restructuring plan was approved. With the company soon slated to enter bankruptcy, the retirement fund committee voted on October 25 that any remaining shares of THCR held in the retirement accounts would be sold in bulk by Merrill Lynch on November 15 and sent a letter to workers at the casinos on October 28 informing them of the plan. As the class-action lawsuit noted, that announcement didn't help the share price. "Announcing a planned sale of a huge block of stock in a letter to thousands of employees meant that market participants would learn of the forced sale, and adjust their trading strategies to take advantage of the anticipated increase in supply of THCR shares," the complaint stated. "This would have the unfortunate effect of depressing the stock immediately before the sale of Plan stock." Employees rushed to dump their stock before the forced sale, with 117,966 shares from the retirement plan unloaded in the two weeks between the announcement and the date of the forced sale. More than 400 employees still held Trump stock when the forced sale arrived. The stock had been trading at $0.80 on the day of the announcement but had dropped by more than a quarter, to an average of $0.57, when the employees were forced to sell their 924,698 shares the next month. For an employee who'd put $1,000 into her retirement account in 1997 when shares averaged $9.65 apiece, those savings had now withered to just $59. Less than a week after the forced sale, the company filed for bankruptcy. The markets seemed to approve of the restructuring plan. Three weeks after the forced sale, the share price was up to $2.04. None of the employees were able to profit from that gain. Five longtime Trump employees -- four from the Trump Plaza and one from Trump Marina -- filed the lawsuit against the company the next year. They each held between 8,300 and 21,110 shares at the time the forced sale was announced. The lawsuit alleged that the committee in charge of the retirement plan had breached its fiduciary duty by mandating the complete liquidation of employee- held stock when its value was at a low, resulting in more than $2.3 million in losses for employees. In the end, a federal judge in New Jersey dismissed the class- action lawsuit. "At its core," the judge wrote, "Plaintiffs' assertion that Defendants breached their fiduciary duties amounts to nothing more than a claim based on perfect hindsight." The Trump executives on the retirement fund committee couldn't necessarily know that the restructuring would boost share prices, the judge found, given the "tenuous" position of the company at the time. Still, the ruling didn't dispute the extent of the losses suffered by employees. Trump himself fared well through the bankruptcy. He kept a $2 million annual salary after the company emerged from bankruptcy and took in more than $44 million in compensation over the course of the 14 years he served as chairman of THCR. "I don't think it's a failure," he said of the bankruptcy in 2004. "It's a success." UNITED STATES: Judge Orders IRS to Clean Up Tea Party Backlog ------------------------------------------------------------- Stephen Dinan, writing for The Washington Times, reports that a federal judge has ordered the IRS to finally clean up the tea party targeting mess, giving the tax agency less than a month to decide on a handful of applications that are still pending more than three years after officials first admitted they were targeting the conservative groups and subjecting them to intrusive scrutiny. The IRS also must file a brief detailing the steps it has taken to prevent further targeting and to make sure the tea party groups don't face any more fallout from the stigma of having been singled out in the first place, U.S. District Judge Reggie B. Walton said in an order issued late on Oct. 14. Judge Walton ordered final decisions on two applications that have been pending for years and said four other groups that had withdrawn their applications amid the unconstitutional targeting can resubmit and the IRS must decide on those, too, by Nov. 11. The Albuquerque Tea Party, which filed its application in December 2009, has been waiting nearly seven years. Unite in Action, a Michigan-based group, applied in 2010. Judge Walton called that "an exorbitant period of time" and said the IRS should have been able to act once it admitted it was targeting the groups. "These determinations should have been made by now," he said at a hearing. Joseph Sergi, the Justice Department lawyer handling the case for the IRS, initially seemed to object, saying the IRS needed to let its own process play out. "We can't rush, or not rush, the process," he said. But as it became clear that the judge was fed up with the delay, Mr. Sergi changed his tone and said the wait had grown too long. "I agree, your honor," he told Judge Walton. The order doesn't mean the groups have to be approved. The IRS can go through its regular process to decide whether the organizations meet the criteria for nonprofits -- and in particular whether they limit their political activities in accordance with the rules. But the judge's order is yet another black eye on the tax agency, which for years has resisted calls to halt the targeting. The IRS admitted in 2013 that it singled out conservative and tea party groups for special scrutiny. The agency created "be on lookout," or BOLO lists that flagged the groups and shunted them into a more intrusive screening process. Groups were forced to answer probing -- and the agency now admits inappropriate -- questions about members and their associations. IRS officials insist the targeting ended in 2013 after they suspended use of the BOLO lists and agreed not to ask inappropriate questions. But they have refused to concede that they violated the groups' constitutional rights and have said some probing questions are necessary. A federal appeals court this summer ruled that as long as some groups are still blocked from tax-exempt status, the IRS is still targeting. Groups that went through the process have also sued, arguing that they are more likely to face audits or other adverse consequences because they were targeted in the beginning. Judge Walton said that in addition to processing the outstanding applications, the IRS must prove that it has ceased any ill behavior toward the tea party groups. He said they must certify that in a filing next month -- along with proof. Three groups that applied years ago are still awaiting approval. Two of them are in cases pending before Judge Walton, while another, the Texas Patriots Tea Party, is part of a class-action lawsuit in federal court in Ohio. Earlier this month, the IRS sent the Texas Patriots Tea Party yet another round of probing questions -- the fourth since the group applied for nonprofit status in 2012. In documents filed in court, IRS agent Jerry Fierro demanded that the group explain its involvement with "educational workshops, speaking events, voter registration drives, fund raisers and straw polls." The IRS, which has held up the application for 41 months, gave the tea party group 30 days to respond or have its application rejected as incomplete. US PACK: "Faty" Suit Alleges Violation of FLSA, Md. Labor Laws -------------------------------------------------------------- MARIAM AMAN FATY, 1380 Monroe Street, N.W. Apartment 607 Washington, DC 20010, Individually and On Behalf of Other Similarly Situated Employees, v. US PACK LOGISTICS, LLC 405 Lexington Avenue Suite 4901, New York, NY 10174 Serve: The Corporation Trust Incorporated, 351 W. Camden Street Baltimore, MD 21201, And PETER GLAZMAN 66 Takolusa Drive Holmdel, NJ 07733 And MARK S. GLAZMAN 462 W. 58th Street, Apt. 2A New York, NY 10019 Case No. 1:16-cv-03411-ELH (D. Md.), October 11, 2016), seeks to recover alleged unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Federal Fair Labor Standards Act; unpaid wages, interest, liquidated damages, reasonable attorneys' fees and costs under the Maryland Wage and Hour Law, Maryland Code Annotated, Labor and Employment; and unpaid wages, treble damages, interest, reasonable attorneys' fees and costs under the Maryland Wage Payment and Collection Law. US Pack Logistics, LLC is a national organization operating in the mail courier service industry with its principal office located in New York, New York. The Plaintiff is represented by: George E. Swegman, Esq. Benjamin L. Davis, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Phone No: (410) 244-7005 Fax No: (410) 244-8454 E-mail: gswegman@nicholllaw.com bdavis@nicholllaw.com VCA ANIMAL: Graham Appeals From C.D. Cal. Ruling to Ninth Circuit ----------------------------------------------------------------- Plaintiffs Tony M. Graham and Elizabeth P. Brockwell filed an appeal from a court ruling in their lawsuit titled Tony Graham, et al. v. VCA Animal Hospitals, Inc., et al., Case No. 2:14-cv-08614- CAS-JC, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the lawsuit seeks to assert claims on behalf of the plaintiff and other individuals, who purchased similar goods and services from the Company's animal hospitals and alleges, among other allegations, that the Company improperly charged such individuals for "biohazard waste management" in connection with the services performed. District Judge Christina A. Snyder granted the Defendants' motion for summary judgment, and denied as moot Plaintiffs' motion for class certification. The appellate case is captioned as Tony Graham, et al. v. VCA Animal Hospitals, Inc., et al., Case No. 16-56510, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 14, 2016; -- Transcript due on February 13, 2017; -- Opening brief of Appellants Elizabeth P. Brockwell and Tony M. Graham is due on March 27, 2017; -- Answering brief of Appellees VCA Animal Hospitals, Inc. and VCA, Inc., is due on April 26, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief. Plaintiffs-Appellants TONY M. GRAHAM, on behalf of himself and all others similarly situated, and ELIZABETH P. BROCKWELL, on behalf of herself and all others similarly situated, are represented by: James M. Terrell, Esq. MCCALLUM, METHVIN & TERRELL, P.C. 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 E-mail: jterrell@mmlaw.net - and - Gary A. Waldron, Esq. WALDRON & BRAGG LLP 23 Corporate Plaza Drive Newport Beach, CA 92660-7901 Telephone: (949) 760-0204 E-mail: gwaldron@weintraub.com Defendants-Appellees VCA ANIMAL HOSPITALS, INC., and VCA, INC., are represented by: John A. Karaczynski, Esq. Hyongsoon Kim, Esq. Garrett Scott Llewellyn, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067-6022 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 E-mail: jkaraczynski@akingump.com kimh@akingump.com gllewellyn@akingump.com VICTOR'S CAFE: Faces "Espinal" Suit in Southern District of NY -------------------------------------------------------------- A class action lawsuit has been filed against Victor's Cafe 52nd Street, Inc. The case is styled Dionny Espinal, on behalf of himself, individually, and on behalf of all others similarly- situated, the Plaintiff, v. Victor's Cafe 52nd Street, Inc.; Sonia Zaldivar, individually; and Christian Betere, individually, the Defendants, Case No. 1:16-cv-08057 (S.D.N.Y., Oct. 14, 2016). Victor's Cafe offers Cuban cooking and live Cuban music. The Plaintiff appears pro se. VISA INC: Bid to Stay Remand Order Pending Appeal Denied -------------------------------------------------------- In the case captioned BROADWAY GRILL, INC., Plaintiff, v. VISA INC., et al., Defendants, Case No. 16-cv-04040-PJH (N.D. Cal.), Judge Phyllis J. Hamilton denied the motion filed by the defendants Visa Inc., Visa International Service Association, and Visa U.S.A. Inc. to stay the court's order remanding the case pending appeal. On September 27, 2016, the court granted plaintiff Broadway Grill Inc.'s motion for leave to file an amended complaint, and remanded the case to state court on that basis. In particular, the court found that the original putative class definition -- "[a]ll California individuals, businesses, and other entities who accepted Visa-Branded Cases in California" -- was "ambiguous" as to whether it was limited to California citizens or reached any merchant based in California. The court thus permitted Broadway Grill to amend its complaint "after removal to clarify issues pertaining to federal jurisdiction under CAFA." Because the amended complaint made clear that the putative class was limited to California citizens, the court found that there was no minimal diversity among the parties, and the case must be remanded for lack of subject matter jurisdiction. Later that same day, Visa filed a petition to appeal the remand order pursuant to 28 U.S.C. section 1453(c)(1), and a motion to stay the court's remand order pending resolution of its appeal. Judge Hamilton found that Visa has not shown either of the two most critical factors -- a likelihood of success on the merits and irreparable harm -- necessary to justify a stay pending appeal. At least as it is currently pled, Judge Hamilton held that the court lacks jurisdiction over the case, and that Broadway Grill should be able pursue its claims in state court without any further delay. The case was remanded back to the Superior Court of California, San Mateo County. A full-text copy of Judge Hamilton's October 17, 2016 order is available at https://is.gd/2eV9FI from Leagle.com. Broadway Grill, Inc., Plaintiff, represented by Anne Marie Murphy -- amurphy@cpmlegal.com -- Cotchett, Pitre & McCarthy, LLP, Nancy L. Fineman -- nfineman@cpmlegal.com -- Cotchett, Pitre & McCarthy LLP, Gwendolyn R. Giblin -- ggiblin@cpmlegal.com -- Cotchett Pitre & McCarthy LLP, Joseph W. Cotchett -- jcotchett@cpmlegal.com -- Cotchett Pitre & McCarthy LLP & Mark Cotton Molumphy -- mmolumphy@cpmlegal.com -- Cotchett, Pitre & McCarthy LLP. Visa Inc., Visa International Association, VISA U.S.A. Inc., Defendants, represented by Robert John Vizas -- bob.vizas@aporter.com -- Arnold and Porter LLP & Sharon D. Mayo -- sharon.mayo@aporter.com -- Arnold & Porter LLP. VOLKSWAGEN AG: Obtains Final Approval of 2.0L TDI Settlement ------------------------------------------------------------ Volkswagen Group of America, Inc. and certain affiliates announced Oct. 25 that Judge Charles R. Breyer of the United States District Court for the Northern District of California has granted final approval to the settlement agreement between Volkswagen and private plaintiffs represented by a Court-appointed Plaintiffs' Steering Committee (PSC) to resolve civil claims regarding eligible Volkswagen and Audi 2.0L TDI vehicles in the United States. Concurrently, Judge Breyer also approved a Consent Decree between Volkswagen and the U.S. Department of Justice on behalf of the Environmental Protection Agency (EPA) and the State of California by and through the California Air Resources Board (CARB) and the California Attorney General; and a Consent Order between Volkswagen and the U.S. Federal Trade Commission. All three agreements were previously announced. A copy of the ORDER GRANTING FINAL APPROVAL OF THE 2.0-LITER TDI CONSUMER AND RESELLER DEALERSHIP CLASS ACTION SETTLEMENT dated Oct. 25 is available at: http://d.classactionreporternewsletter.com/u?f=zaJ288tV "Final approval of the 2.0L TDI settlement is an important milestone in our journey to making things right in the United States, and we appreciate the efforts of all parties involved in this process. Volkswagen is committed to ensuring that the program is now carried out as seamlessly as possible for our affected customers and has devoted significant resources and personnel to making their experience a positive one," said Hinrich J. Woebcken, President and CEO of Volkswagen Group of America, Inc. Volkswagen remains focused on resolving other outstanding issues in the United States and continues to work towards an agreed resolution for customers with affected 3.0L TDI V6 diesel engines. The implementation of the 2.0L TDI settlement program will begin immediately. Customers with eligible vehicles may submit claims using a paper claim form (available at http://www.VWCourtSettlement.com/ or by calling +1-844-98-CLAIM) or via an online portal at www.VWCourtSettlement.com. Once a customer's claim is approved, a customer can schedule appointments with dedicated settlement specialists who have been assigned to dealership locations. Under the terms of the 2.0L TDI settlement agreements, affected owners and lessees will be able to choose whether to accept a buyback or lease termination, or receive an approved emissions modification for their vehicle (if and when it becomes available). Volkswagen will also make cash payments to affected current and certain former owners and lessees. Volkswagen has also agreed to pay $2.7 billion over three years into an environmental trust, managed by a trustee appointed by the Court, to remediate excess nitrogen oxide (NOx) emissions from 2.0L TDI vehicles in the United States and invest $2.0 billion over 10 years in zero emissions vehicle (ZEV) infrastructure, access and awareness initiatives. The following 2.0L TDI engine vehicles are included in the 2.0L TDI settlement program: VW Beetle VW Golf VW Jetta VW Passat Audi A3 2013-2015 2010-2015 2009-2015 2012-2015 2010- 2013; 2015 By their terms, these agreements are not intended to apply to or affect Volkswagen's obligations under the laws or regulations of any jurisdiction outside the United States. Regulations governing nitrogen oxide (NOx) emissions limits for vehicles in the United States are much stricter than those in other parts of the world and the engine variants also differ significantly. This makes the development of technical solutions in the United States more challenging than in Europe and other parts of the world, where implementation of an approved program to modify TDI vehicles to comply fully with UN/ECE and European emissions standards has already begun by agreement with the relevant authorities. * * * The case is captioned, In re: Volkswagen "Clean Diesel" Marketing, Sales Practices, And Products Liability Litigation, Case No: MDL No. 2672 CRB (JSC)(N.D. Cal.). As reported by the Class Action Reporter on July 1, 2016, under the deal, Volkswagen would be required to pay about $14.7 billion: $10,033,000,000 to compensate owners of Volkswagen vehicles; $2,000,000,000 in the form of investments over a 10-year period to support increased use of technology for Zero Emission Vehicles ("ZEV") in California and the United States; and $2,700,000,000 to fund Eligible Mitigation Actions that will reduce emissions of NOx where Volkswagen's vehicles were, are, or will be operated. On June 28, 2016, the United States and California entered into a Partial Consent Decree with Volkswagen AG, Audi AG, Volkswagen Group of America, Inc., and Volkswagen Group of America Chattanooga Operations, LLC -- Settling Defendants -- to address the 2.0 Liter Subject Vehicles on the road and the associated environmental consequences resulting from the past and future excess emissions from the 2.0 Liter Subject Vehicles. A copy of the Partial Consent Decree is available at: http://d.classactionreporternewsletter.com/u?f=yocKilAU As reported by the Class Action Reporter on July 6, Alan Katz and John Lippert, writing for Bloomberg News, said Volkswagen AG's price tag to settle the U.S. lawsuits over its rigging of diesel emissions tests jumped to more than $15 billion -- $5 billion more than previously reported -- on the eve of a settlement to be filed on June 28 in a San Francisco court. Under the deal, VW will set aside up to $10.03 billion to cover costs including buying back vehicles at pre-scandal values and compensating drivers as much as $10,000 per car for their troubles, two people familiar with the negotiations said. Those figures could rise if VW misses certain deadlines. In addition, Volkswagen will pay $2.7 billion in fines that will go to the U.S. Environmental Protection Agency and the California Air Resources Board and invest $2 billion in clean-emissions technology, one of the people said. The carmaker is also expected to announce a settlement with states, including New York, for about $400 million, another person said. The Settlement requires Volkswagen to pay reasonable attorneys' fees and costs. Class Counsel has agreed to seek no more than $324 million, plus no more than $8.5 million in actual and reasonable out-of-pocket costs, for expenses incurred through October 18, 2016. The Court appointed Kinsella Media LLC as Notice Administrator. Rust Consulting, Inc. is the claims administrator. VOLKSWAGEN AG: Agrees to Pay $175MM to Lawyers in Emissions Case ---------------------------------------------------------------- citimonline reports that Volkswagen AG, in another step to move past its costly diesel emissions cheating scandal, has agreed to pay $175 million to U.S. lawyers suing the German automaker on behalf of the owners of 475,000 polluting vehicles, two people briefed on the agreement said on Oct. 14. In August, the lawyers in the class action litigation sought up to $332.5 million in fees and costs for their work in a $10 billion settlement that gives U.S. owners of 2.0 liter polluting cars the ability to sell back their vehicles to Volkswagen (VW). The latest deal with the lawyers means VW now has agreed to spend up to $16.7 billion to compensate U.S. owners and address claims from states, federal regulators and dealers arising from the "Dieselgate" scandal. The amount to be paid out to lawyers was first reported by Reuters on Oct. 14. The resolution of legal fees clears another hurdle as the world's No. 2 automaker looks to resolve all of the outstanding aspects of a scandal that disrupted its global business, hurt its reputation and led to the ouster of its chief executive officer last year. VW in September 2015 admitted using sophisticated secret software in its cars to cheat exhaust emissions tests, with millions of vehicles worldwide affected. The cheating allowed VW's U.S. vehicles sold since 2009 to emit up to 40 times legally allowable pollution levels. The $175 million includes attorneys' fees and other costs, according to the sources, who spoke on condition of anonymity. Lawyers for the owners of polluting vehicles and a spokeswoman for Volkswagen declined to comment. Lead plaintiff lawyer Elizabeth Cabraser, who is part of a committee of 22 lawyers overseeing the owner suits, said in August the amount sought in attorneys fees was far less than the "judicially established benchmark" for class actions of approximately 25 percent of the settlement amount. U.S. District Judge Charles Breyer on Oct. 18 was set to hold a hearing in San Francisco on whether to grant final approval of the vehicle owners' settlement announced in June, which would be the largest-ever automotive buy-back offer in the United States. Breyer must also decide whether to approve the legal fee agreement. VW has agreed to spend up to $10.033 billion to buy back the vehicles and compensate owners. It may also offer vehicle fixes if regulators approve. Under a timetable announced this summer, regulators could approve a fix for some 2015 VW diesel vehicles as early as next month. In addition, VW has agreed to pay up to $1.21 billion to compensate U.S. VW brand dealers, pay more than $600 million to 44 U.S. states, spend $2 billion on zero-emission vehicle promotion and infrastructure, and another $2.7 billion to offset diesel pollution. It still faces billions of dollars in potential fines from the U.S. Justice Department in its criminal probe into VW's cheating scandal, and must resolve the fate of larger vehicles that were not part of the initial $10 billion settlement. VW and U.S. regulators are in continuing discussions over whether the automaker should agree to buy back 85,000 larger 3.0-liter Porsche, Audi and VW vehicles that also exceeded U.S. emission standards, and whether it should offer additional compensation to those owners. VW may have to pay additional owner attorneys' fees as part of a separate potential 3.0-liter settlement, the sources said. WELLS FARGO: Class Certification Bid in "Martin" Suit Denied ------------------------------------------------------------ In the lawsuit styled Nicholas M Martin, the Plaintiff, v. Wells Fargo Bank, NA, Case No. 1:16-cv-09483 (N.D. Ill.), the Hon. John J. Tharp Jr., entered an order denying without prejudice Plaintiff's motion for class certification, according to the docket entry made by the Clerk on October 5, 2016. No appearance on the motion is required. The motion acknowledges that it is being filed at this time only to prevent the Plaintiff from being "picked off" by an attractive settlement offer. The Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), obviates the need for such prophylactic motions. See also Chapman v. First Index, Inc., 796 F.3d 783, 786-87 (7th Cir. 2015). The pending motion for class certification is therefore dismissed without prejudice to its refiling when the Plaintiff is prepared to substantively brief the motion or in accordance with a future scheduling order entered by the Court. A copy of the docket entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=oh3HeLIM WYNDHAM VACATION: "Romero-Perez" Suit Moved to M.D. of Florida -------------------------------------------------------------- The class action lawsuit titled Ismael-Ernesto Romero-Perez on behalf of himself and on behalf of all others similarly situated Plaintiff, the Plaintiff, v. Wyndham Vacation Ownership, Inc., Case No. 2016-CA-8037, was removed from the Orange County Circuit Court, to the U.S. District Court for the Middle District of Florida (Orlando). The District Court Clerk assigned Case No. 6:16-cv-01795-GAP-TBS to the proceeding. The case is assigned to Hon. Judge Gregory A. Presnell. Wyndham Vacation develops, markets and sells vacation ownership interests. The Plaintiff is represented by: Brandon J. Hill, Esq. WENZEL FENTON CABASSA, PA 1110 N Florida Ave Ste 300 Tampa, FL 33602-3343 Telephone: (813) 224 0431 Facsimile: (813) 229 8712 E-mail: bhill@wfclaw.com The Defendant is represented by: Amanda Simpson, Esq. Stephanie Leigh Adler-Paindiris, Esq. JACKSON LEWIS, PC 390 N Orange Ave., Suite 1285 Orlando, FL 32801 Telephone: (407) 425 7010 Facsimile: (407) 425 2747 E-mail: amanda.simpson@jacksonlewis.com adlers@jacksonlewis.com * Class Action Suits to Benefit Homebuyers in India --------------------------------------------------- Vandana Ramnani, writing for Hindustan Times, reports that the National Consumer Disputes Redressal Commission (NCRDC) Bench interpreting Section 12 (1) ( c) of the Consumer Protection Act conforms to certain provisions of the Real Estate (Regulation and Development) Act 2016. Experts are of the opinion that the order could not have come at a better time. With consumer activism going up immensely, this order was necessary to deal with the sheer quantum of cases. It is also important to note that the penalty provision is available only under RERA and not vested with the consumer courts. "RERA specifies that if the buyer is expected to pay a penalty of 18% in case he defaults, the builder too will be liable to pay the same amount and not a meagre Rs 5 per sq ft or a Rs 10 per sq ft. "The principle and ratio set out in the RERA Act qua the builder and the allottees can now be cited before consumer courts whenever they are applicable for the judgment to confirm to RERA," says SK Pal, a Supreme Court lawyer. The court order also clarifies that cases related to properties worth below Rs 20 lakh can be heard in district courts. NCRDC can be approached for cases of properties in the range of Rs 20 lakh to a crore; and the state commission for cases dealing with properties valued at more than a crore. "The court has emphasized on the book value of the apartment as specified in the registered document rather than the value of the amount claimed by the buyer. The court has clarified that even if the claim is a meagre Rs 5 lakh but the cost of the apartment at the time of purchase was Rs 1 crore, homebuyers can directly approach the NCRDC rather than going through the lower courts. It is not the amount of the claim but the value of the apartment which is important," says Pal, adding the judgment has opened the doors to consumer law to a large number of people. According to Amit Chauhan of Logical Buyer, a real estate blog for homebuyers, such class action suits will benefit homebuyers and will prove to be a deterrent for builders who delay projects. But the only challenge here is that there may be a possibility of sabotage from the developer as a proxy group can join in and derail the case altogether. This is unfounded, says Pal as it is up to the court in its wisdom to decide who is a collusive perpetrator. Impact on developers Legal experts say that the burden on the developer will now increase as he will now have to compensate all homebuyers (even 3,000) as against 50 earlier who went ahead and filed cases. "If all 5,000 buyers were to give their assent to the public notice, all would automatically be made a party to the case and the developer will have to compensate all of them instead of the 50 who would have filed a case earlier," says Mr. Sethi. Investors to benefit too The automatic application of compensation on all buyers will now apply to investors as well, who might actually exploit the situation, says Sahil Sethi, senior associate at law firm Saikrishna and Associates. The investor will benefit as he will automatically be made party to the case and can claim compensation which he could not earlier. "Earlier, if he filed a case in the high court, the maximum the high court did was to ensure that the agreement or the contract he signed with the builder was executed as per law. There were few chances of him getting a penalty. Now like all homebuyers, investors too will be eligible for penalty," says Mr. Sethi. Will it apply to old cases? The order will apply to all old and new cases filed under Section 12 (1) (c) of the Act, according to Mr. Sethi. This will make life tough for defaulting real estate developers. * Epstein Becker Provides Update on Recent Employment Rulings ------------------------------------------------------------- John M. O'Connor, Esq. -- joconnor@ebglaw.com -- and George Carroll Whipple, III, Esq. -- gwhipple@ebglaw.com -- of Epstein Becker Green, in an article for Lexology, provided a weekly rundown of the latest news in the field. The law firm look sat the latest trends, important court decisions, and new developments that could impact your work. Recent developments include . . . (1) Third Circuit Finds That Break Pay Does Not Offset Unpaid Overtime Our top story: Compensation for breaks does not offset unpaid overtime, says the U.S. Court of Appeals for the Third Circuit. Three manufacturing workers sued their employer for requiring unpaid work outside of their regular shifts. The employer argued that the workers were paid for breaks during their shifts, which offsets any overtime pay that they might be entitled to for time spent changing into and out of their work attire. In a case of first impression, the Third Circuit reversed a lower court's decision and found that the company could not use compensation that was included in an employee's regular rate as a credit against unpaid overtime. John O'Connor, from Epstein Becker Green, has more. "The Third Circuit looked at the language of the statute, saw that the statute provided three narrow exceptions when an offset would be permitted, and because neither of the three expressly permitted offsets applied to this situation, the court concluded the offset could not be taken. . . . I think the implication of this decision is that the courts are going to narrowly interpret the FLSA, and they're not going to permit employers to take offsets that the statute doesn't expressly provide for. I think the courts are looking to protect the employees and make sure they're paid for all time worked." (2) Two Lawsuits Allege Misclassification of Franchisees Joint employment remains a key focus for private plaintiffs and government agencies, and franchise arrangements are drawing special scrutiny. In September, the Third Circuit upheld the certification of a class action in one such case. The action claims that 300 Jani-King franchisees in the Philadelphia area are actually employees who can bring wage claims against the company. And the Department of Labor (DOL) joined in, filing its own suit, claiming that Jani-King assigns cleaning contracts, sets rates, and collects payments for Oklahoma franchisees--making them economically dependent on the company. The DOL suit argues that the cleaning personnel should be classified as employees and that Jani-King should be required to keep records of their wages and hours in compliance with the Fair Labor Standards Act. (3) Minimum Salary for Exempt California Computer Professionals Increases The compensation threshold for California's computer professional exemption will rise. Starting January 1, California employers must pay computer professionals $42.39 an hour or a salary of $88,318 per year to utilize the computer professional exemption. This reflects an increase of 1.3% above current rates. Employees must also continue to satisfy the duties test required for the exemption. The new federal white-collar salary thresholds that go into effect on December 1 of this year will not impact the computer professional exemption. (4) Employer Must Abide by Non-Compete Payment An employer cannot waive its own non-compete agreement to avoid payment, unless the agreement specifically grants it the right to do so. An employee of a financial services firm in Illinois signed an agreement that required a six-month post-employment non- competition period in exchange for $1 million from his employer. When the worker resigned, the employer sent a notice waiving the agreement and telling the employee that it would not pay him the $1 million. After waiting out the six months, the employee filed suit against his former employer. The Illinois Court of Appeals found that there was no provision in the agreement that allowed the employer to change the terms without consent from the worker, and because the employee upheld his end of the contract, the employer must pay him what is due. * Reinstatement of Glass-Steagall Law May Pressure Banks More ------------------------------------------------------------- Ryan Wibberley, writing for Forbes, reports that in September, regulators fined Wells Fargo $185 million for creating approximately two million bank and credit-card accounts without customers' consent. Soon after, eight former employees filed class-action lawsuits claiming workers faced termination if they refused to meet sales goals by creating those fraudulent accounts. The story rocked the financial world and the consumers who rely on banks to make ethical choices when handling their hard-earned money. Even more frightening: Wells Fargo may not be the only bank conducting unethical sales practices to make a buck. "I would be amazed if this practice was just limited to Wells Fargo," said Rep. Stephen Lynch (D., Mass.) during a hearing on bank regulation before the House Financial Services Committee. Big banks are under increasing pressure to generate earnings, pushing them to look for new avenues to make money in any way possible. What's causing this pressure? First, interest rates remain very low, so banks aren't making the money they used to. The Fed has talked about raising them for over a year now but has taken little action so far. Secondly, technology has disrupted the financial landscape dramatically over the last several years. The pressure of new and emerging payment systems has big banks scrambling to catch up. Consumers want ways to move money faster and technology is making it possible to do so. It's also making it possible to conduct a broad range of business activities without involving banks at all. For example, consumers can now direct deposit paychecks onto pre- paid debit cards from companies like American Express and bypass the bank altogether. And the bad PR created by the Wells Fargo case and other banking scandals are making such options increasingly appealing to consumers. Banks are also under pressure from the Federal Reserve, which has committed to keeping a closer eye on banks following the Wells Fargo scandal, though Fed Chairwoman Janet Yellen said the Fed only oversees Wells Fargo's holding company and therefore wasn't directly responsible for regulating that aspect of Wells Fargo's business. America's largest banking institutions are even larger now than they were before the 2008 financial crisis. Several lawmakers say the Wells Fargo scandal is a sign that big banks are too big to manage and changes must be made. But few agree on a solution. Some Democrats favor reinstating the Glass-Steagall law that separated investment banking from traditional lending, and that presents an interesting idea. Congress passed the Glass-Steagall Act in 1933. But over time, banks complained that the law imposed too many limits on what businesses they could enter. Some also said the law put them at a competitive disadvantage with European banks that didn't have such limitations. In 1999, Congress caved to pressure and passed the Gramm-Leach-Bliley Act, overturning Glass-Steagall. The action allowed the rise of several very large banks in the United States with business lines that include both commercial lending and securities business. Some blame the repeal of Glass-Steagall for sparking the recession. Given that fact, should a modern version of the law be an idea worth considering? Or would that hurt banks even more? Glass- Steagall is a complicated issue. In Mr. Wibberley's opinion, the federal government and taxpayers should not be backing an institution that engages in risky investments. Banks should have the option to be FDIC insured or be allowed to perform investment banking activities. If they are FDIC insured, then they should be subject to the rules of Glass-Steagall. However, when interest rates eventually rise, this issue will be resolved, because net interest margin percentages will be higher, thereby allowing banks to be more profitable. Until then, however, the reinstatement of Glass-Steagall would make it more difficult for banks to make money, especially in this low- interest-rate environment. That would put more pressure on the likes of Wells Fargo, and possibly push more banks to resort to unethical business practices. ********* 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. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. 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. 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