/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170116.mbx C L A S S A C T I O N R E P O R T E R Monday, January 16, 2017, Vol. 19, No. 11 Headlines AARON'S INC: "Aguirre" Suit Seeks Unpaid Wages and Damages ADEPTUS HEALTH: "Adkinson" Suit to Recover Facilities Fees ADVIA CREDIT UNION: Must Defend Against "Pinkston-Poling" Case AFFILIATED COMPUTER: Buttaro Due Process, State Law Claims Nixed ALDI INC: Griffin's Unjust Enrichment Claim Tossed as Duplicative ALL HOMECARING: "Allen" Labor Case to Recover Overtime Pay ANAVEX LIFE: Judge Tosses "Cortina" Securities Fraud Complaint AP ACCOUNT: "Ramirez" FDCPA Suit Survives Dismissal Bid APPLIED MICRO: Sued in Cal. Over Misleading Financial Reports AQUA TRANSFER: "Carr" Labor Suit to Recover Overtime Pay, Damages ARCHON INC: "Saiyed" Class Suit Transferred to D.N.J. ASSET RECOVERY: Faces "Gans" Suit in S.D. of New York ASSET RECOVERY: Faces "Shirley" Suit in Eastern Dist. of New York BAYER CORP: "Jones" Action Remanded to Missouri State Court BB&T CORPORATION: Sheffield Seeks Certification of CSRs Class BENCHMARK SENIOR: Sued in Mass. Over Inception of Lease Fees BENMOUSSA ENTERPRISES: "Montoya" Suit Moved to S.D. Fla. BEST BUY: Faces "Harris" Suit Over Failure to Pay Overtime Wages BMW NA: Must Defend Against "Bang" Suit Over Engine Defects BRIGHT HOUSE: Fails in Bid to Stay "Bowden" Suit BUREAUS INC.: Faces "Cimmino" Suit in Eastern Dist. of New York CHEMTURA CORPORATION: Patterson Seeks to Block Lanxess Merger CMG DEVELOPMENT: "Cabrera" Suit to Recover Overtime Pay CONVERGENT OUTSOURCING: Faces "Zapata" Suit in S.D. of Florida CREDIT ACCEPTANCE: W.Va. Judge Trims Claims in "Adkins" Suit CREDIT CONTROL: Faces "Rincon-Marin" Suit in Connecticut DENTAL EQUITIES: Suit by Scoma Chiropractic et al. Stayed DR. REDDY'S: Cesar Castillo Sues Over Overpriced Divalproex EKF DIAGNOSTICS: Must Face "Sartin" Junk Fax Class Action ELECTRONIC DOCUMENT: Faces "Diaz" Suit in California Super. Ct. ENCORE RECEIVABLE: Faces "Innace" Suit in Eastern Dist. of N.Y. EPIC SECURITY: "Batiste" Suit to Recover Overtime, Minimum Pay EVERCORE TRUST: D.C. Appeals Court Won't Revive "Coburn" Suit FAMILY DOLLARS: Gunn's PAGA Claims Dismissed FEMALE HEALTH CO: "Schartz" Suit Remanded, Sanctions Bid Denied FIELDTURF USA: Newark School District Suit Moved to D.N.J. FIRST NIAGARA BANK: Deal Has Final OK, Fee Bid Partially Granted FLORIDA BIRTH-RELATED NICA: Lamperts Entitled to Fees & Costs FORSTER GARBUS: Final Hearing on "Feliciano" Suit Deal on Mar. 30 FOUGERA PHARMACEUTICALS: Castillo Sues Over Overpriced Clobetasol GARDEN DEPT.: Faces "Gomez" Suit in Eastern Dist. of New York GARFIELD BEACH: Faces "Morales" Suit Over Failure to Pay Overtime GENERAL CABLE: Shareholders Sue Over Share Price Drop GRACEKENNEDY FOODS: "Saiz" Suit Moved from Cir. Ct. to S.D. Fla. GUARDIAN LIVING: "Williams" Suit Seeks to Recover Unpaid OT Wages HAILEY DEVELOPMENT: Faces Windham Contracting Suit in N.Y. Ct. HARRIS COUNTY, TX: Lomas Seeks Certification of Arrestees Class HERTZ CORP: "Lee" FCRA Class Suit Goes Back to State Court HILTON WORLDWIDE: "Solomon" Class Suit Removed to N.D. California HUMANA INC: Faces "Mazzarella" Suit in Western Dist. of Kentucky ICELL HOLDINGS: "Castillo" Sues Over Unpaid Min. and OT Wages IDEAL TAX: Class Certification Under TCPA Sought in "Meyer" Suit IDENTIV INC: "Cunningham" Amended Securities Class Suit Dismissed INTERCOAST CAREER: Misrepresented Accreditation Status, Suit Says JENNINGS ROAD: Doesn't Properly Pay Employees, "Cerulo" Suit Says JM HOLM: Class of Painters/Laborers Certified in "Arredondo" Suit JS LOVEMOTORS: Sued in California Over Misleading Advertisement KEYNETICS INC: "Silverstein" Second Amended Suit Dismissed KMART CORPORATION: Fails to Pay Employees OT, "Roselan" Suit Says L'OREAL USA: "Manier" False Advertising Action Goes to S.D.N.Y. LAS VEGAS SANDS: Court Dismisses Claims Against Adelson LATTICE SEMICONDUCTOR: Shareholders Challenge Canyon Merger LCC INT'L: Kansas Court Won't Reconsider Arbitration Order LLOYDS TSB: Offer of Compromise in "Willcox" Suit Approved LYFT INC: Sued in N.D. Cal. Over Credit Reporting Violations LYTX INC: "Levy" Suit Seeks Back Pay & Damages Under FLSA MARRIOTT OWNERSHIP: Fails Bid to Disqualify Finerman as Class Rep MASTER SERVICES: "McClary" Suit Seeks Damages Under FLSA MCDONALD'S CORP: Court Denies Class Cert. in "Salazar" Suit MEDTRONIC INC: Securities Fraud Suit Not Barred, 8th Cir. Says MINACS GROUP: CSRs Class Certification Sought in "Anderson" Suit MITCHELL RUBENSTEIN: Court Awards $35,000 in Attorneys' Fees NECA/IBEW FAMILY: Refuses to Cover Autism Therapy, Suit Says NEW CENTURY: Cohn Seeks Prelim. Approval of $50,445 Settlement NISSAN NORTH AMERICA: Sunroofs Spontaneously Shatter, Suit Says NORTH CAROLINA: Faces "Smith" Suit in E.D.N.C. NORTHLAND GROUP: Faces "Yablonsky" Suit in E.D.N.Y. NYC WHEELS: "Nazarov" Suit Seeks Unpaid Overtime Under FLSA OTTER PRODUCTS: Sued Over Illegal Shipping and Handling Fees OVERFLOW ENERGY: Fails to Pay Employees OT, "Sober" Suit Claims PARK UNIVERSITY: "Champagne" Suit Removed to W.D. Mo. Ct. PENNSYLVANIA HIGHER EDUCATION: Teachers Sue over Federal Grants PEP BOYS-MANNY: "Silver" Suit Moved from Super. Ct. to D.N.J. PINNACLE FOODS: Court Stays "Clardy" Product Mislabeling Action POULSEN PIZZA: "Hoffman" Class Action Settlement, Fees Okayed PRESSLER AND PRESSLER: "Zambrana" Class Suit Goes to Arbitration PRONAI THERAPEUTICS: "Book" Securities Case Removed to N.D. Cal. ROYAL CARE: Doesn't Properly Pay Employees, "Rakhimova" Suit Says ROYAL OAK: Certification of Class Sought in "Bystry" Suit ROYAL WINDOWS: $290,000 Damages Award Flipped in Ketch Inc. Suit SHELBY COUNTY, TN: Arrestees File Suit over Court Software SOLARCITY CORP: Arbitration Agreement Unenforceable, Court Says SOLAZYME INC: Securities Action Dismissed with Leave to Amend SOUTHERN CALIFORNIA GAS: Faces "Jalbuena" Suit Over Gas Leak SOUTHERN INDUSTRIAL: Rule Moves for Certification of FLSA Class STAFFWORKS LLC: "Armenta" Labor Suit Seeks OT Pay Recovery STERICYCLE INC: Faces "Martinez" Suit in California Super. Ct. SZECHUAN RESTAURANT: "Galeana" Labor Case to Recover Overtime Pay TCC WIRELESS: Faces "Wolfe" Suit Over Failure to Pay Overtime TERRAVIA HOLDINGS: Faces "Daniil" Securities Suit in N.D. Cal. TEVA PHARMACEUTICAL: Faces Leone Securities Class Action in Cal. TILE SHOP: Excessive Deduction Class Certified in "Osorio" Suit UBER TECHNOLOGY: Riders' Attorneys to Appeal Ruling US BANK: Snyder Seeks Certification of Four Classes Under TCPA US LIMO: "O'Sullivan" Suit Seeks to Recover Unpaid Overtime Wages UTILITY TREE: Removal of "Torres" Suit Untimely, Court Says VEOLIA WATER: Village Shores Suit Removed to East. Dist. Michigan VOLKSWAGEN AG: Securities Class Action Stays in US Court VOLKSWAGEN AG: Court Lifts Stay as to State Remand Motions WALDEN UNIVERSITY: Faces "Bleess" Class Suit in Minn. WELLS FARGO: Slaughter Seeks Prelim. OK of $35.5-Mil. Settlement WELLS FARGO: Faces "Hogan" Suit in Northern Dist. of California WESTERN REFINING: Shareholders Challenge Tesoro Merger Deal WESTPORT LINEN: Cavin Moves to Certify FLSA Collective Class WHOLE FOODS MARKET: Brand Has Active Ingredient, Suit Says WILMINGTON TRUST: Faces "Shore" Suit in Southern Dist. of Florida ZALE CORP: Court Stays Emcon Associates Suit Pending Arbitration ********* AARON'S INC: "Aguirre" Suit Seeks Unpaid Wages and Damages ---------------------------------------------------------- Carlos Aguirre, on behalf of himself, all others similarly situated, Plaintiff, v. Aaron's, Inc. a Georgia corporation and Does 1-50, inclusive, Defendants, Case No. 3:16-cv-07384 (N.D. Cal., December 29, 2016), seeks unpaid wages, actual damages, liquidated damages, restitution, declaratory relief, pre-judgment interest, statutory penalties, civil penalties, costs of suit, reasonable attorneys' fees and such other relief pursuant to the Fair Labor Standards Act, California Labor Code and the California Business and Professional Code. Plaintiff alleges that Defendants have failed to provide them with meal and rest periods and/or premium wages and overtime wages, unlawfully forfeited vested vacation pay, failed to provide accurate written wage statements and failed to timely pay final wages following separation of employment. Aaron's, Inc. operates Aaron's Sales & Lease Ownership where Plaintiff worked as a store manager. The Plaintiff is represented by: Shaun Setareh, Esq. Thomas Segal, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 Email: shaun@setarehlaw.com thomas@setarehlaw.com ADEPTUS HEALTH: "Adkinson" Suit to Recover Facilities Fees ---------------------------------------------------------- David Adkinson, Individually and on behalf of all others similarly situated, Plaintiff v. Adeptus Health Inc., Adeptus Health LLC, Adeptus Health Colorado Holdings LLC and Adeptus Health Management LLC, Defendants, Case No. 4:17-cv-00006, (E.D. Tex., January 3, 2017), seeks (i) recovery of all facilities fees, compensatory damages, (ii) disgorgement of its ill-gotten gains, (iii) an injunction preventing Defendants from continuing their fraudulent and deceptive practices, (iv) an award of pre- and post-judgment interest, reasonable and necessary attorneys' fees and costs, punitive damages and all such other and further relief resulting from fraud. Defendants are freestanding emergency medical care facilities staffed by emergency physicians and have laboratory and radiology equipment and are equipped to handle most types of medical emergencies. Adeptus owns and operates emergency rooms in Texas and Colorado. They often do not accept Medicaid and are most often located in or adjacent to affluent neighborhoods where the potential patient pool has quality insurance. Because of their similar appearance to traditional urgent care centers, including their signage and retail positioning and their mass marketing via radio, billboards and direct mail, consumers have become confused as to what, exactly, is the facility they are visiting, and which is appropriate for what kind of care. Plaintiffs allege that Adeptus's business model is to trick patients into believing that its centers are appropriate for non- emergent care for the purpose of extracting extravagant fees. Then, after the patients are treated, they are sent a bill that includes a Facilities Fee, which can be as much as $6,000 or more. Plaintiff is represented by: Stuart L. Cochran, Esq. L. Kirstine Rogers, Esq. Bruce W. Steckler, Esq. R. Dean Gresham, Esq. STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Rd., Ste. 1045 Dallas, TX 75230 Tel: (972) 387-4040 Fax: (972) 387-4041 Email: dean@stecklerlaw.com stuart@stecklerlaw.com krogers@stecklerlaw.com bruce@stecklerlaw.com ADVIA CREDIT UNION: Must Defend Against "Pinkston-Poling" Case -------------------------------------------------------------- District Judge Gordon J. Quist of the United States District Court for the Western District of Michigan denied Advia's motion to dismiss and allowed Plaintiff's breach of contract and EFTA claims to proceed in the case captioned, BECKY PINKSTON-POLING, individually and on behalf of all others similarly situated, Plaintiff, v. ADVIA CREDIT UNION, Defendant, Case No. 1:15-CV-1208 (W.D. Mich.). Plaintiff, Becky Pinkston-Poling, filed an amended class-action complaint against Defendant, Advia Credit Union (Advia), alleging claims of breach of contract and violation of the Electronic Fund Transfer Act (EFTA), 15 U.S.C. Section 1693. Both claims are based on Pinkston-Poling's allegation that Advia applies its overdraft fee program in a different manner than Advia describes in its agreements with, and disclosures to, its members. Pinkston-Poling alleges that Advia's use of the available balance to assess overdraft fees breaches both the Member Account Agreement and the Opt-in Agreement and violates the EFTA because the Opt-in Agreement fails to accurately describe Advia's overdraft program for ATM and non-recurring debit card transactions. Pinkston-Poling claims that she was harmed by this practice on June 27, 2015, when she had an actual balance of $30.48 in her account before a $7.00 debit card transaction was posted, leaving her with an actual balance of $23.48. Advia has filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Pinkston-Poling's amended complaint for failure to state a claim. Advia argues that the Opt-in Agreement is substantially similar to Model Form A-9, and thus, it cannot be liable for violating the EFTA. In his Opinion dated December 29, 2016 available at https://is.gd/mg1hc2 from Leagle.com, Judge Quist concluded that Advia failed to show that Pinkston-Poling's claim is refuted by an express provision of the Member Account Agreement; and allowed the breach of contract and EFTA claims to proceed because Pinkston- Poling states a claim for violation of the EFTA and the language of the Opt-in Agreement is at least ambiguous. Becky Pinkston-Poling is represented by Richard Dale McCune, Jr., Esq. -- rdm@mccunewright.com -- MCCUNE WRIGHT LLP -- Eric B. Abramson, Esq. -- eabramson@serlinglaw.com -- MICHAEL B. SERLING, P.C. Advia Credit Union is represented by Brandon John Wilson, Esq. -- BWilson@howardandhoward.com -- HOWARD & HOWARD ATTORNEYS PLLC AFFILIATED COMPUTER: Buttaro Due Process, State Law Claims Nixed ---------------------------------------------------------------- In the case captioned, THOMAS A. BUTTARO, SEYMOUR ROSENBERG, and ALICIA FERRARO, on behalf of themselves and all others similarly situated, Plaintiffs, v. AFFILIATED COMPUTER SERVICES, INC. and SUFFOLK COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY, Defendants, Case No. CV 14-353 (LDW) (SIL) (E.D.N.Y.), District Judge Leonard D. Wexler of the United States District Court for the Eastern District of New York dismissed with prejudice plaintiffs' substantive due process claim and state law claims for violation of New York Civil Rights Law Section 11 and for unjust enrichment. Plaintiffs Thomas A. Buttaro, Seymour Rosenberg, and Alicia Ferraro, on behalf of themselves and all others similarly situated, bring the action against defendants Affiliated Computer Services, Inc. (ACS) and Suffolk County Traffic and Parking Violations Agency (TPVA), an agency of Suffolk County, New York (Suffolk County). Plaintiffs claim that defendants, motivated to increase revenue, shortened yellow-light times below legally required levels resulting in an increase in the number of tickets and rear-end collisions. By their Amended Class Action Complaint, plaintiffs assert a federal claim under 42 U.S.C. Section 1983 for violation of substantive due process under the United States Constitution, as well as supplemental state law claims for violation of New York Civil Rights Law Section 11 and for unjust enrichment. Plaintiffs also assert federal subject matter jurisdiction under the Class Action Fairness Act (CAFA), 28 U.S.C. Section 1332(d). Plaintiffs seek monetary, declaratory, and injunctive relief. Both defendants moved to dismiss the Amended Complaint. Plaintiffs opposed the motions. After the motions were submitted, the Court stayed the action pending resolution of an appeal in Leder v. American Traffic Solutions, Inc., 81. F. Supp. 3d 211 (E.D.N.Y.), a case involving a red-light camera program in Nassau County, New York. Upon determination of that appeal, defendants renewed their motions to dismiss. In the motion, Defendants argue that plaintiffs fail to state a claim for violation of substantive due process. In his Memorandum and Order dated December 2, 2016 available at https://is.gd/uN8IJq from Leagle.com, Judge Wexler held that plaintiffs' claim of shorter yellow-light times than required by state law does not assert conduct so "arbitrary, conscience- shocking, or oppressive" as to support a viable substantive due process claim. As for the Court's jurisdiction under CAFA, the Court found that CAFA's mandatory "local controversy" exception to this Court's exercise of subject matter jurisdiction is applicable. In light of the dismissal of the substantive due process claim and the Court's lack of jurisdiction under CAFA, the Court declines to exercise supplemental jurisdiction over the state law claims for violation of New York Civil Rights Law Section 11 and for unjust enrichment. Seymour Rosenberg, et al. are represented by Joseph Ralph Santoli, Esq. -- joseph@sfclasslaw.com -- and Lee Squitieri, Esq. -- lee@sfclasslaw.com -- SQUITIERI & FEARON, LLP Affiliated Computer Services, Inc. is represented by Jessica Mastrogiovanni, Esq. -- jmastrogiovanni@meltzerlippe.com -- and Thomas J. McGowan, Esq. -- tmcgowan@meltzerlippe.com -- MELTZER, LIPPE, GOLDSTEIN & BREITSTONE LLP -- Chris Bator, Esq. -- cbator@bakerlaw.com -- Daniel M. McClain, Esq. -- dmcclain@bakerlaw.com -- and Gregory Valentin Mersol, Esq. -- gmersol@bakerlaw.com -- BAKER HOSTETLER LLP Suffolk County Traffic and Parking Violations Agency is represented by: Leonard G. Kapsalis, Esq. Richard H. Weinschenk, Esq. SUFFOLK COUNTY ATTORNEY'S OFFICE 100 Veterans Memorial Hwy #6 Hauppauge, NY 11788 Tel: (631)853-4049 ALDI INC: Griffin's Unjust Enrichment Claim Tossed as Duplicative ----------------------------------------------------------------- District Judge Lawrence E. Kahn of the United States District Court for the Southern District of New York granted Defendant's motion to dismiss an unjust enrichment claim in the case captioned, ANTHONY GRIFFIN, et al., Plaintiffs, v. ALDI, INC., et al., Defendants, Case No. 5:16-CV-00354 (LEK/ATB)(S.D.N.Y.). Plaintiffs Anthony Griffin, Mark McIndoo, and Susan DeTomaso commenced the class and collective action against defendant Aldi, Inc. and Doe Defendants 1-10 pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. Sections 201-19, and New York state law. Plaintiffs are all former store managers at various Aldi locations in upstate New York. Aldi is a worldwide discount supermarket chain. The gravamen of Plaintiffs' Complaint is that Aldi has been mistakenly classifying store managers as "exempt" employees under the FLSA, thereby depriving them of overtime pay to which they are entitled under that statute and New York state law. On March 29, 2016, Plaintiffs initiated the lawsuit against Defendants. Plaintiffs bring this case as a nationwide collective action under the FLSA, and as a statewide class action under Federal Rule of Civil Procedure 23. On behalf of the nationwide class, Plaintiffs assert that Defendants have been violating the FLSA by "misclassifying Plaintiffs and similarly situated Store Managers as 'exempt' in order to avoid paying them for all hours worked or appropriate overtime compensation for all hours worked in excess of 40 hours per workweek. On behalf of the state-wide class, Plaintiffs similarly claim that Defendants have been violating the New York Labor Law (NYLL) by failing to pay overtime compensation to Plaintiffs and similarly situated store managers. Also on behalf of the state-wide class, Plaintiffs argue that Defendants have been violating the NYLL by refusing to pay Plaintiffs and similarly situated store managers "spread of hours compensation for each day they worked in excess of 10 hours." Finally, on behalf of the state-wide class, Plaintiffs plead, in the alternative to the NYLL claims, an unjust enrichment claim against Defendants, who "required Plaintiffs to work for hours for which they were not compensated." Aldi moved to dismiss the unjust enrichment claim on June 24, 2016. Aldi argues that the unjust enrichment claim must be dismissed because it is preempted by Plaintiff's FLSA overtime claim. Plaintiffs counter that dismissal is inappropriate because they are entitled to plead causes of action in the alternative, and in any event the unjust enrichment claim is separate from the FLSA claim since it is premised on Aldi's failure to pay "straight-time compensation rather than overtime compensation." In his Memorandum-Decision and Order dated December 14, 2016 available at https://is.gd/lrvgNF from Leagle.com, Judge Kahn held that Plaintiffs' claim that they are entitled to a retroactive raise when they assert their unjust enrichment claim has no viability independent of the alleged FLSA violations relating to overtime compensation. Mark McIndoo, et al. are represented by Adam R. Gonnelli, Esq. -- gonnellia@thesultzerlawgroup.com -- THE SULTZER LAW GROUP -- Dennis G. O'Hara, Esq. -- DGO@OHARALAW.COM -- and Frank S. Gattuso, Esq. -- FSG@OHARALAW.COM -- O'HARA, O'CONNELL LAW FIRM -- Innessa S. Melamed, Esq. -- imelamed@faruqilaw.com -- FARUQI, FARUQI LAW FIRM Aldi, Inc. is represented by Cheryl A. Luce, Esq. -- cluce@seyfarth.com -- Howard M. Wexler, Esq. -- hwexler@seyfarth.com -- Louisa J. Johnson, Esq. -- ljohnson@seyfarth.com -- Lucas E. Deloach, Esq. -- ldeloach@seyfarth.com -- and Noah Finkel, Esq. -- nfinkel@seyfarth.com -- SEYFARTH, SHAW LAW FIRM ALL HOMECARING: "Allen" Labor Case to Recover Overtime Pay ---------------------------------------------------------- Carmen Allen, individually and on behalf of all others similarly situated, Plaintiff, v. All Homecaring and At Home With Care, Inc., Defendants, Case No. 0:16-cv-04409, (D. Minn., December 30, 2016), seeks to recover unpaid overtime compensation, damages and other relief relating to violations of the Fair Labor Standards Act and the Minnesota Fair Labor Standards Act. Defendants are home health care agencies that provides in home health care services including personal care, nursing care, physical therapy, homemaking, companionship and respite care services and operates out of Minneapolis, Minnesota. Plaintiff has been employed as a Personal Care Assistant since 2014. Plaintiff is represented by: Michele R. Fisher, Esq. Jason D. Friedman, Esq. NICHOLS KASTER, PLLP 4600 IDS Center, 80 S. 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 215-6870 Email: fisher@nka.com jfriedman@nka.com - and - Philip Bohrer, Esq. Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 Email: phil@bohrerbrady.com scott@bohrerbrady.com ANAVEX LIFE: Judge Tosses "Cortina" Securities Fraud Complaint -------------------------------------------------------------- District Judge Jesse M. Furman of the United States District Court for the Southern District of New York granted Defendants' motion Plaintiffs' claims in the case captioned, KEVIN CORTINA, et al., Plaintiffs, v. ANAVEX LIFE SCIENCES CORP., et al., Defendants, Case No. 15-CV-10162 (JMF)(S.D.N.Y.). In the putative class action, Plaintiffs bring securities fraud claims against Anavex Life Sciences Corp., Inc. and three of its executives, Christopher Missling, Sandra Boenisch, and Athanasios Skarpelos. Plaintiffs allege that, by orchestrating a paid promotional scheme, Defendants committed securities fraud in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78(b), 78(t)(a), and Securities Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. Section 240. In the Amended Complaint, Plaintiffs allege that, between May 17, 2013, and December 30, 2015 (the Class Period), Defendants engaged in "an extreme stock promotion and market manipulation scheme" to inflate the price of Anavex's stock. Specifically, Defendants "caused, directed, and authorized" a paid-promotional campaign to increase the price of the company's stock and thus enable the company to receive equity financing. In the motion, Defendants argue that Plaintiffs' market manipulation claims fail because Plaintiffs do not adequately plead a manipulative act and that their material misrepresentation or omission claim fails because they do not adequately plead a material misrepresentation or omission. In the alternative, Defendants contend that all claims should be dismissed because Plaintiffs do not adequately allege scienter under the PSLRA's heightened pleading standards. In his Opinion and Order dated December 29, 2016 available at https://is.gd/V4Lasl from Leagle.com, Judge Furman found that Plaintiffs provided only bare assertions and conclusory statements and failed to plausibly allege that Defendants perpetrated a fraudulent stock promotion scheme and Plaintiffs failed to allege that Defendants received a "concrete and personal" benefit from the alleged scheme, and certainly do not alleged that each Defendant received such a benefit, they failed to demonstrate a motive to commit fraud. Kevin Cortina is represented by Jeremy Alan Lieberman, Esq. -- jalieberman@pomlaw.com -- POMERANTZ LLP Arina Davliatshina, et al. are represented by Adam M. Apton, Esq. -- aapton@zlk.com -- LEVI & KORSINSKY LLP Anavex Life Sciences Corp, et al. are represented by David H. Kistenbroker, Esq. -- david.kistenbroker@dechert.com -- Carl E. Volz, Esq. -- carl.volz@dechert.com -- and Melanie C. MacKay, Esq. -- melanie.mackay@dechert.com -- DECHERT LLP AP ACCOUNT: "Ramirez" FDCPA Suit Survives Dismissal Bid ------------------------------------------------------- District Judge Robert M. Dow, Jr. of the United States District Court for the Northern District of Illinois denied Defendants' motion to dismiss and set a status hearing for January 24, 2017, at 9:00 a.m. in the case captioned, JEREMY RAMIREZ, on behalf of himself and all others similarly situated, Plaintiff, v. AP ACCOUNT SERVICES, LLC, Defendant, Case No. 16-CV-2772 (N.D. Ill.). Plaintiff Jeremy Ramirez filed a putative class action lawsuit against Defendant AP Account Services, LLC on March 2, 2016, alleging violation of the Fair Debt Collection Practices Act. On June 30, 2016, Plaintiff filed his Second Amended Complaint (SAC), which is the operative complaint before the Court. Plaintiff alleges that Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et seq. (FDCPA) by attempting to collect a debt that was barred by a five-year statute of limitations pursuant to 735 ILCS 5/13-205. According to Plaintiff, the debt is a balance owed on a checking account. Plaintiff contends that Defendant sent him a letter on January 7, 2016 attempting to collect the debt, despite the fact that more than five years had elapsed since the last payment or activity on the account. Plaintiff also filed a motion for class certification, arguing that it is Defendant's policy and practice to send letters seeking to collect time-barred debts that do not disclose that the debt is time-barred and that this creates a common factual link and gives rise to the common legal question of whether Defendant's letters violate the FDCPA. Defendant filed a motion to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). According to Defendant, Plaintiff applied the incorrect statute of limitations and under the correct statute of limitations the debt in question was not time-barred. Plaintiff submits that the five-year statute of limitations set forth in 735 ILCS 5/13-205 applies. In his Memorandum Opinion and Order dated January 3, 2017 available at https://is.gd/rs5QDq from Leagle.com, Judge Dow, Jr. held that Defendant has not demonstrated that there is a written contract or other written evidence of indebtedness sufficient to invoke section 13-206 and since the essential terms are not set forth in the Member Handbook, Plaintiff has stated a plausible claim that the contract is an oral contract to which the five-year statute of limitations in Section 13-205 applies. Jeremy Ramirez is represented by: Cathleen M. Combs, Esq. Emiliya Gumin Farbstein, Esq. James O. Latturner, Esq. Daniel A. Edelman, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 AP Account Services, LLC is represented by Michael R. Grimm, Esq. -- mgrimm@clausen.com -- and Harvey R. Herman, Esq. -- hherman@clausen.com -- CLAUSEN MILLER P.C. APPLIED MICRO: Sued in Cal. Over Misleading Financial Reports ------------------------------------------------------------- Kevin Nygren, on behalf of himself and all others similarly situated v. Applied Micro Circuits Corporation, Cesar Cesaratto, Paul R. Gray, Fred Shlapak, Robert F. Sproull, Duston Williams, Paramesh Gopi, and Christopher Zepf, Case No. 3:16-cv-07400-VC (N.D. Cal., December 29, 2016), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Applied Micro Circuits Corporation develops and produces computing and connectivity solutions for cloud infrastructure and data centers, including an array of connectivity and embedded computing products. The Plaintiff is represented by: Rosemary M. Rivas, Esq. FINKELSTEIN THOMPSON LLP One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 E-mail: rrivas@finkelsteinthompson.com - and - Donald J. Enright, Esq. LEVI & KORSINSKY LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 337-1567 E-mail: denright@zlk.com AQUA TRANSFER: "Carr" Labor Suit to Recover Overtime Pay, Damages ----------------------------------------------------------------- Trevor Carr, Dustin Sanders, Jeramee Strain, Jerome Tennison and Tyler Young, individually and on behalf of all others similarly situated, Plaintiffs, v. Aqua Transfer & Energy Services, LLC, Premier Flow Control, LLC, K&S Services, LLC, and Chadwick Kindle, individually and in his official capacity, Defendants, Case No. 5:16-cv-01319, (W.D. Tex., December 30, 2016), seeks to recover unpaid overtime wages, monetary damages, liquidated damages, punitive damages, pre and post-judgment interest, civil penalties and costs and reasonable attorneys' fees under the Fair Labor Standards Act. Aqua Transfer & Energy Services, LLC, Premier Flow Control, LLC, K&S Services, LLC are oilfield service companies that are owned and operated by Kindle. They provide equipment, rentals, and service repairs to various oil and gas companies throughout the South Texas Area. Plaintiffs worked for Defendants as a W-2 laborers, performing anchor services and service repairs on equipment that Aqua would rent out to different oil and gas companies. They all claim to have been denied overtime pay. Plaintiffs are represented by: Glenn D. Levy, Esq. LAW OFFICE OF GLENN D. LEVY 906 Basse Road, Suite 100 San Antonio, TX 78212 Telephone: (210) 822-5666 Facsimile: (210) 822-5650 Email: Glenn@GlennLevyLaw.com ARCHON INC: "Saiyed" Class Suit Transferred to D.N.J. ----------------------------------------------------- The class action lawsuit captioned Amjad Saiyed, individually and on behalf of all others similarly situated v. Archon, Inc., Archon Distribution, Inc., Rashid Patel, Mohammed Ashif "Mike" Gajra, and John/Jane Does 1-10, Case No. 2:14-cv-06862, was transferred from the U.S. District Court for the Eastern District of New York to the U.S. District Court for the District of New Jersey. The District Court Clerk assigned Case No. 2:16-cv-09530 to the proceeding. The case asserts labor-related claims. The Defendants offer engineering, commercial construction, and residential building services. The Plaintiff is represented by: Micheal J. Romano, Esq. ROMANO & ASSOCIATES 220 Old County Road Mineola, NY 11501 Telephone: (516) 248-8880 Rashid Patel and Mohammed Ashif Gajra are pro se defendants. ASSET RECOVERY: Faces "Gans" Suit in S.D. of New York ----------------------------------------------------- A class action lawsuit has been filed against Asset Recovery Solutions, LLC. The case is captioned as Carolyn Gans, individually and on behalf of all others similarly situated, the Plaintiff, v. Asset Recovery Solutions, LLC, and Steven Fishbein, the Defendants, Case No. 1:17-cv-00015 (S.D.N.Y., Jan. 03, 2017, 2016). Asset Recovery is a full service asset recovery management company. The Plaintiff appears pro se. ASSET RECOVERY: Faces "Shirley" Suit in Eastern Dist. of New York ----------------------------------------------------------------- A class action lawsuit has been filed against Asset Recovery Solutions, LLC. The case is captioned as Edward Shirley, on behalf of himself and all others similarly situated, the Plaintiff, v. Asset Recovery Solutions, LLC, the Defendant, Case No. 2:16-cv- 07154-SJF-AKT (E.D.N.Y., Dec. 29, 2016). The case is assigned to Hon. Judge Sandra J. Feuerstein. Asset Recovery offers full service asset recovery management. The Plaintiff is represented by: Joseph Mauro, Esq. THE LAW OFFICE OF JOSEPH MAURO, LLC 306 McCall Avenue West Islip, NY 11795 Telephone: (631) 669 0921 Facsimile: (631) 669 5071 E-mail: JoeMauroesq@hotmail.com BAYER CORP: "Jones" Action Remanded to Missouri State Court ----------------------------------------------------------- District Judge Jean C. Hamilton of the United States District Court for the Eastern District of Missouri granted Plaintiffs' Motion to Remand in the case captioned, TRACI JONES, et al., Plaintiffs, v. BAYER CORPORATION, et al., Defendants, Case No. 4:16CV1192 JCH (E.D. Mo.). On June 20, 2016, Plaintiffs filed their Petition for Damages in the Circuit Court of the City of St. Louis, Missouri. In total, there are 99 Plaintiffs joined to the action. Each Plaintiff claims that she was prescribed and implanted with the Essure system of permanent birth control manufactured by Defendants, and that as a result she "suffered and will continue to suffer from severe injuries and damages, including but not limited to irregular heavy menstrual cycle bleeding, organ perforation, and severe chronic pain which required surgical intervention to remove the Essure coils or will require surgical intervention to remove the Essure coils in the future." Based on these allegations, Plaintiffs bring claims for negligence, negligence per se, negligence-misrepresentation, strict liability-failure to warn, manufacturing defect, common law fraud, constructive fraud, fraudulent concealment, breach of express warranty, breach of implied warranty, violation of consumer protection laws, Missouri Products liability, violation of the Missouri Merchandising Practices Acts, and gross negligence/punitive damages. These claims are alleged to be the result of Defendants' illegal conduct, including their "failure to warn of the risks, dangers, and adverse events associated with Essure as manufactured, promoted, sold and supplied by both companies, and as a result of the negligence, callousness, and other wrongdoing and misconduct of Defendants as described herein." Defendants removed the action to the Court on July 20, 2016, on the basis of diversity jurisdiction under 28 U.S.C. Section 1332(a), federal question jurisdiction under 28 U.S.C. Section 1331, and diversity jurisdiction under the Class Action Fairness Act (CAFA), 28 U.S.C. Section 1332(d). In the motion, Plaintiffs claim that their joinder in one action was proper, thus destroying diversity jurisdiction, and no federal question arises from their Complaint. In her Memorandum and Order dated December 14, 2016 available at https://is.gd/gFWGGK from Leagle.com, Judge Hamilton found that removal on the basis of diversity jurisdiction was inappropriate, as complete diversity between the parties does not exist and that the Court lacks CAFA jurisdiction as a basis for removal. The matter is remanded to the Circuit Court of the City of St. Louis, State of Missouri. Dinora Vargas, et al. are represented by Eric D. Holland, Esq. -- eholland@allfela.com -- and Randall S. Crompton, Esq. -- scrompton@allfela.com -- HOLLAND LAW FIRM LLC Bayer Corporation, et al. are represented by Gerard T. Noce, Esq. -- gnoce@heplerbroom.com -- and W. Jason Rankin, Esq. -- jrankin@heplerbroom.com -- HEPLER BROOM BB&T CORPORATION: Sheffield Seeks Certification of CSRs Class ------------------------------------------------------------- The Plaintiff in the lawsuit captioned RUBY SHEFFIELD, individually and on behalf of all others similarly situated v. BB&T Corporation, Branch Banking and Trust Company, BB&T Financial, FSB, and DOES 1-10, Case No. 7:16-cv-00332-BO (E.D.N.C.), pursuant to the Fair Labor Standards Act, moves the Court of an order: (1) conditionally certifying the proposed collective FLSA class; (2) authorizing a procedure whereby Court-approved Notice of Plaintiff's FLSA claim is sent (via US Mail and e-mail) to: All call center Customer Service Representatives, Collection Clerks or similar job titles, employed by BB&T Corporation, Branch Banking and Trust Company, BB&T Financial, its subsidiaries, or other related entities at its Lumberton, Ohio call center, who worked off-the-clock and were not paid for the overtime hours they worked from September 27, 2013, through the completion of its litigation. (3) requiring Defendants to provide Plaintiff with name, job titles, last know addresses, e-mail addresses, and dates of employment in an electronic and importable format within 14 days of the entry of the order; and (4) approving a 60-day opt-in period for collective class member to opt into this litigation. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=oHhtqtjy The Plaintiff is represented by: David H. Grounds, Esq. Molly E. Nephew, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 St. Paul, MN 55101 Telephone: (612) 436-1800 Facsimile: (612) 436-1801 E-mail: dgrounds@johnsonbecker.com mnephew@johnsonbecker.com - and - William F. Cash III, Esq. Brandon L. Bogle, Esq. LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A. 316 South Baylen Street, Suite 600 Pensacola, FL 32502 Telephone: (850) 435-7059 E-mail: bcash@levinlaw.com bbogle@levinlaw.com BENCHMARK SENIOR: Sued in Mass. Over Inception of Lease Fees ------------------------------------------------------------ Adrienne Gowen, through her legal guardian Scott Gowen and on behalf of herself and all others similarly situated v. Benchmark Senior Living, LLC, Case No. 16-3972 (Mass. Cmmw., December 28, 2016), seeks to put an end to the Defendant's practice of charging for, and collecting, impermissible amounts of monies at the inception of leases for Benchmark's senior living residence units. Benchmark Senior Living, LLC owns, operates and manages assisted living facilities throughout the Commonwealth of Massachusetts. The Plaintiff is represented by: John R. Yasi, Esq. Michael C. Forrest, Esq. FORREST, LAMOTHE, MAZOW, MCCULLOUGH, YASI & YASI, P.C. Salem Green, Suite 2 Salem, MA 01970 Telephone: (617)231-7829 Facsimile: (877) 599-8890 E-mail: jyasi@forrestlamothe.com mforrest@forrestlamothe.com - and - Jason Carter, Esq. LAW OFFICE OF JASON CARTER 21 McGrath Flighway, Suite 501 Quincy, MA 02169 Telephone: (617)942-0892 E-mail: jason@jasoncarterlaw.com BENMOUSSA ENTERPRISES: "Montoya" Suit Moved to S.D. Fla. -------------------------------------------------------- The class action lawsuit titled Carlos Montoya, and other similarly-situated Non-exempt cook, the Plaintiff, v. Benmoussa Enterprises, Inc., doing business as PICCOLO PIZZA, a Florida Profit corporation, and HUBERT R. MUSSAT, individually, Case No. 16-030647 CA (01), was removed from the Eleventh Judicial Circuit, to the U.S. District Court for the Southern District of Florida (Miami). The case is assigned to Hon. Judge Darrin P. Gayles. The District Court Clerk assigned Case No. 1:16-cv-25332-DPG to the proceeding. Benmoussa is in the hotel and restaurant business. The Plaintiff is represented by: Jason Saul Remer, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: jremer@rgpattorneys.com The Defendants are represented by: Michael David Nicoleau, Esq. COHEN NICOLEAU PLLC 11900 Biscayne Blvd., Suite 806 North Miami, FL 33181 Telephone: (305) 722 5698 Facsimile: (305) 770 6411 E-mail: mnicoleau@cohen-nicoleau.com BEST BUY: Faces "Harris" Suit Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Starvona Harris and Jonathan Strickland, individually and on behalf of all others similarly situated v. Best Buy Stores, L.P., Case No. 16-556206 (Cal. Super. Ct., December 29, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. Best Buy Stores, L.P. sells merchandise to consumers throughout California and the United States, such as televisions, appliances, computers, and other items. The Plaintiff is represented by: Kevin F. Woodall, Esq. WOODALL LAW OFFICES 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 413-4629 Facsimile: (866) 937-4109 E-mail: kevin@kwoodalllaw.com BMW NA: Must Defend Against "Bang" Suit Over Engine Defects ----------------------------------------------------------- District Judge Madeline Cox Arleo of the United States District Court for the District of New Jersey denied Defendant BMW of North America, LLC's (BMW NA) motion to dismiss Plaintiffs Joon Bang, et al.'s (Plaintiffs) Second Amended Complaint in the case captioned, JOON BANG, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. BMW OF NORTH AMERICA, LLC and BAVARIAN MOTOR WORKS, Defendants, Case No. 15-6945 (D.N.J.). Plaintiffs seek damages against BMW NA and Bavarian Motor Works (BMW-GER) for fraudulently concealing defects in the engines of certain BMW motor vehicle models that shorten the vehicle's battery life and cause increased oil consumption. Upon consent, Plaintiff filed an Amended Complaint in December 2015, and a consolidated Second Amended Complaint in March 2016. The SAC alleges 14 causes of action, including: consumer fraud under the anti-fraud statutes of six states; false advertising under California and New York law; breach of express warranty; breach of implied warranty; and violations of the Magnusson-Moss Warranty Act. Defendants are engaged in the business of importing, assembling, marketing, distributing, and warranting BMW automobiles in the United States. Plaintiffs are individuals who purchased new or used BMW vehicles containing an "N63" engine (Class Vehicles) between September 2011 and February 2015. The eight named Plaintiffs include two residents of California who purchased their vehicles in the state. Plaintiffs seek to certify a nationwide class of all persons and entities who have purchased or leased a Class Vehicle in the United States. Alternatively, they seek to certify seven different state classes. In the motion, Defendant argues that (1) all claims should be dismissed because Plaintiffs lack Article III standing; (2) Plaintiffs "cannot pursue claims on behalf of a nationwide class" under the New Jersey Consumer Fraud Act because the suit's sole connection to the forum is that BMW NA is located in New Jersey; (3) Plaintiffs statutory consumer fraud allegations are deficient on the merits because they fail to allege loss; (4) Plaintiffs' breach of warranty claims must be "dismissed" because they "cannot pursue be a nationwide breach of warranty class action under New Jersey law or, indeed, the law of any one particular state" since "the UCC is not uniform"; (5) Plaintiffs' breach of express warranty claims must be dismissed because Defendant fulfilled its obligations under the warranty program "by replacing batteries and putting oil in Plaintiffs vehicles;" and (6) the implied warranty claims must be dismissed because the Class Vehicles were still merchantable despite the alleged defects because they continued to perform "their ordinary function of providing transportation." In her Opinion dated December 1, 2016 available at https://is.gd/ZSLNcV from Leagle.com, Judge Arleo concluded that (1) Plaintiffs have alleged injuries that have already occurred, as well as imminent future injury; (2)dismissal of the nationwide class allegations is premature; (3) Plaintiffs have adequately alleged damages; (4) dismissal of the nationwide class allegations is premature at the stage; (5) dismissal of breach of express warranty is still premature; and (6) as to breach of implied warranty, Plaintiffs have stated a claim for breach of implied warranty. Joon Bang, et al. are represented by Matthew D. Schelkopf, Esq. -- mds@mccunewright.com -- MCCUNEWRIGHT LLP BMW of North America, LLC is represented by Christopher J. Dalton, Esq. -- christopher.dalton@bipc.com -- Daniel Zev Rivlin, Esq. -- daniel.rivlin@bipc.com -- and Rosemary Joan Bruno, Esq. -- rosemary.bruno@bipc.com -- BUCHANAN, INGERSOLL & ROONEY, PC BRIGHT HOUSE: Fails in Bid to Stay "Bowden" Suit ------------------------------------------------ District Judge Virginia Emerson Hopkins of the United States District Court for the Northern District of Alabama denied Defendant's Opposed Motion to Stay Proceedings in the case captioned, REBECCA BOWDEN, Plaintiff, v. BRIGHT HOUSE NETWORKS, LLC, Defendant, Case No. 2:16-CV-1237-VEH (N.D. Ala.). Defendant premised its Stay Motion on the D.C. Circuit's anticipated decision in ACA International v. FCC, No. 15-1211 and suggested that it "is likely to be outcome-determinative of this dispute and therefore merits a stay of all pending proceedings, including discovery, until it has been issued." Defendant states that the "requested stay will be brief as ACA International is fully briefed and has already been argued before the D.C. Circuit." Defendant initially argued that the traditional stay factors weighed in its favor: (1) A Stay Poses No Risk of Harm to Plaintiff; (2) [Defendant] BHN Will Suffer Hardship and Inequity if this Action Proceeds Before ACA is Decided; (3) A Stay Will Promote Judicial Efficiency by Simplifying this Case; and (4) A Stay Will Further the Public Interest and the Interests of Persons Not Parties to the Action. Plaintiff disputed the significance of what the ACA International opinion will mean to the merits of its action. In her Memorandum Opinion and Order dated January 5, 2017 available at https://is.gd/UQNQ7E from Leagle.com, Judge Hopkins concluded that Defendant has failed to meet its burden to show that the harm to it from the litigation's proceeding outweighs the Plaintiff's (and the public's) right to a prompt resolution of the matter. Rebecca Bowden is represented by Aaron D. Radbil, Esq. -- aradbil@gdrlawfirm.com -- and Gina DeRosier Greenwald, Esq. -- mgreenwald@gdrlawfirm.com -- GREENWALD DAVIDSON RADBIL PLLC Bright House Networks LLC is represented by Abigail S. Romero, Esq. -- aromero@kcozlaw.com -- and Ryan D. Watstein, Esq. -- rwatstein@kcozlaw.com -- KABAT CHAPMAN & OZMER LLP -- Andrew Phillip Campbell, Esq. -- andy.campbell@campbellguin.com -- CAMPBELL GUIN WILLIAMS GUY AND GIDIERE LLC BUREAUS INC.: Faces "Cimmino" Suit in Eastern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against The Bureaus Inc. The case is styled as Robert Cimmino, individually and on behalf of all others similarly situated, the Plaintiff, v. The Bureaus Inc., Bureaus Investment Group Portfolio No. 15, LLC, Bureaus Investment Group, III, LLC, Asset Recovery Solutions, LLC, and Sentry Credit, Inc., the Defendants, Case No. 2:16-cv-07153-SJF-GRB (E.D.N.Y., Dec. 29, 2016). The case is assigned to Hon. Judge Sandra J. Feuerstein. Bureaus, Inc. is a master servicer for delinquent charged off receivables, providing clients with the analytical tools and resources to recover debt. The Plaintiff is represented by: Joseph Mauro, Esq. THE LAW OFFICE OF JOSEPH MAURO, LLC 306 McCall Avenue West Islip, NY 11795 Telephone: (631) 669 0921 Facsimile: (631) 669 5071 E-mail: JoeMauroesq@hotmail.com CHEMTURA CORPORATION: Patterson Seeks to Block Lanxess Merger ------------------------------------------------------------- DARCY J. PATERSON, individually and on behalf of all others similarly situated, the Plaintiff, v. CHEMTURA CORPORATION, INC, CRAIG A. ROGERSON, JEFFREY D. BENJAMIN, TIMOTHY J. BERNLOHR, ANNA C. CATALANO, JAMES W. CROWNOVER, ROBERT A. DOVER, JONATHAN F. FOSTER, and JOHN K. WULFF, the Defendants, Case No. 2:16-cv-06626- ER (E.D. Pa, Dec. 27, 2016), seeks to enjoin Defendants from conducting a stockholder vote on a proposed sale transaction unless and until material information is disclosed to stockholders or, in the event the Proposed Transaction is consummated, to recover damages resulting from the Defendants' violations of the Securities and Exchange Act. The Plaintiff brought the case against the members of Chemtura Corporation's Board of Directors as a result of their violations of the Securities Exchange Act of 1934 arising out of their attempt to sell the Company to Lanxess Deutschland GmbH for an inadequate consideration. On September 25, 2016, Lanxess and the Company announced they have entered into an Agreement and Plan of Merger dated September 16, 2016 by which Lanxess, through its wholly owned, indirect subsidiary Lanxess Additives Inc., will acquire all of the outstanding shares of Chemtura in an all-cash transaction for $35.50 per share in cash (Proposed Transaction). The Proposed Transaction is valued at approximately $2.1 billion and is expected to close in mid-2017. On December 23, 2016, Chemtura filed a definitive proxy statement on a Schedule 14A with the SEC, which set the stockholder vote date on the Proposed Transaction for February 1, 2017. The Proxy is materially deficient and misleading because it fails to disclose material information regarding (i) the background of the Proposed Transaction; (ii) the financial analyses performed by Morgan Stanley & Co. LLC, the Company's financial advisor; and (iii) the projections prepared by Company management and relied upon by Morgan Stanley. Without additional information, the Proxy is materially misleading in violation of federal securities law, says the complaint. The Plaintiff is represented by: Kenneth I. Trujillo, Esq. Matthew S. Olesh, Esq. 300 Conshocken State Road, Suite 570 West Conshocken, PA 19428 Telephone: (610) 772 2300 Facsimile: (610) 772 2305 - and - Donald E. Enright, Esq. LEVI & KORSINKY LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Telephone: (202) 524 4290 Facsimile: (202) 337 1567 E-mail: denright@zlk.com CMG DEVELOPMENT: "Cabrera" Suit to Recover Overtime Pay ------------------------------------------------------- Rogelio Aroldo Cabrera and all others similarly situated, Plaintiff, vs. CMG Development LLC, Carlos M. Gonzalez, Alex Granados, Defendants, Case No. 1:17-cv-20017, (S.D. Fla., January 3, 2017), requests overtime wages, double damages and reasonable attorney fees from Defendants, jointly and severally, pursuant to the Fair Labor Standards Act. CMG Development is a general contractor owned/managed by Carlos M. Gonzalez and Alex Granados, based out of North Fort Lauderdale, Floridam where Plaintiff worked. Cabrera claims to have been denied overtime pay. Plaintiff is represented by: J.H. Zidell, Esq. J.H. Zidell, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 CONVERGENT OUTSOURCING: Faces "Zapata" Suit in S.D. of Florida -------------------------------------------------------------- A class action lawsuit has been filed against Convergent Outsourcing, Inc. The case is titled as Damian Zapata, individually and on behalf of all others similarly situated, the Plaintiff, v. Convergent Outsourcing, Inc., the Defendant, Case No. 1:16-cv-25367-JEM (S.D. Fla., Dec. 29, 2016). The case is assigned to Hon. Judge Jose E. Martinez. Convergent Outsourcing offers business process outsourcing, revenue cycle, and receivables management services. It also provides receivables collection services to credit grantors in retail, telecommunications, and utilities industries. The Plaintiff is represented by: Ari Hillel Marcus, Esq. MARCUS ZELMAN, LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (732) 695 3282 Facsimile: (732) 298 6256 E-mail: ari@marcuszelman.com - and - Michael Paul Bennett, Esq. Jeremy Robert Kreines, Esq. Bennett Aiello 25 SE 2nd Avenue Eighth Floor Miami, FL 33131 Telephone: (305) 358 9011 Facsimile: (305) 358 9012 E-mail: mbennett@bennettaiello.com jkreines@bennettaiello.com CREDIT ACCEPTANCE: W.Va. Judge Trims Claims in "Adkins" Suit ------------------------------------------------------------ District Judge Thomas E. Johnston of the United States District Court for the Southern District of West Virginia granted a partial motion to dismiss in the case captioned, COURTNEY ADKINS, Plaintiff, v. CREDIT ACCEPTANCE CORPORATION, Defendant, Case No. 2:16-CV-03343 (S.D. W.Va.). Plaintiff Courtney Adkins alleges that around May 2013, Defendant Credit Acceptance Corporation began making debt collection calls to her personal cellular telephone number. Plaintiff claims that she did not owe a debt to Credit Acceptance, nor had she provided her cell phone number "during a transaction that created a debt." Nevertheless, Credit Acceptance allegedly used an automatic telephone dialing system to make hundreds of calls to Plaintiff's cell phone under the pretense that Plaintiff was obligated to make payment on a debt owed to it. Plaintiff brings the civil action on her own behalf and on behalf of a putative class of individuals who received harassing debt collection calls in similar circumstances. The Court has jurisdiction under the Class Action Fairness Act. 28 U.S.C. Sec. 1332(d)(2). The three-count First Amended Complaint alleges violations of the Telephone Consumer Protection Act ("TCPA"), (Count I), and the West Virginia Consumer Credit and Protection Act (WVCCPA), (Counts II and III). With regard to the WVCCPA claims, Count II alleges misrepresentation of the amount of a claim in violation of West Virginia Code Section 46A-2-127 and is brought as an individual claim and on behalf of the putative class. Count III, an individual claim only, alleges oppressive and abusive debt collection in violation of West Virginia Code Section 46A-2-125. Credit Acceptance moves to dismiss both WVCCPA claims. Simply put, Credit Acceptance alleges that Plaintiff is not a "consumer" under the WVCCPA and the relief afforded under that statute is thus out of reach. Credit Acceptance next argues that even if Plaintiff has standing on Counts II and III, she fails to allege that any debt she allegedly owed was incurred primarily for "personal, family, or household purposes," a necessary element of both causes of action. Credit Acceptance argues that Counts II and III must be dismissed because Plaintiff fails to allege that the debt at issue was incurred "primarily for personal, family or household purposes. In his Memorandum Opinion and Order dated December 28, 2016 available at https://is.gd/8YLpXT from Leagle.com, Judge Johnston found sufficient allegations that Credit Acceptance represented to Plaintiff that she was personally liable on a debt and that Plaintiff has plausibly pled the existence of an alleged obligation to pay a debt. The Court also finds that because discovery proceedings in this action are temporarily stayed at Credit Acceptance's request, any prejudice caused by an amendment will be minimal. Plaintiff may file an amended pleading within fourteen days of the issuance of this opinion clarifying whether the debt "allegedly owed" was primarily for personal, family, or household purposes. Courtney Adkins is represented by Jonathan R. Marshall, Esq. -- jmarshall@baileyglasser.com -- Maigreade Bridget Burrus, Esq. -- mburrus@baileyglasser.com -- and Sandra Henson Kinney, Esq. -- skinney@baileyglasser.com -- BAILEY & GLASSER Credit Acceptance Corporation, et al. are represented by Carrie Goodwin Fenwick, Esq. -- cgf@goodwingoodwin.com -- GOODWIN & GOODWIN -- Jason E. Manning, Esq. -- jason.manning@troutmansanders.com -- John C. Lynch, Esq. -- john.lynch@troutmansanders.com -- and Jonathan M. Kenney, Esq. -- jonathan.kenney@troutmansanders.com -- TROUTMAN SANDERS -- Stephen W. King, Esq. -- sking@kingandmurray.com -- KING & MURRAY CREDIT CONTROL: Faces "Rincon-Marin" Suit in Connecticut -------------------------------------------------------- A class action lawsuit has been filed against Credit Control LLC. The case is styled as Pablo Rincon-Marin, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. Credit Control LLC, the Defendant, Case No. 3:17-cv-00007 (D. Conn., Jan. 03, 2017, 2016). Credit Control is a St. Louis credit collection service that offers debt collections and accounts receivables management. The Plaintiff is represented by: Peter M. Van Dyke, Esq. EAGAN, DONOHUE, VAN DYKE & FALSEY, LLP 24 Arapahoe Road West Hartford, CT 06107 Telephone: (860) 232 7200 Facsimile: (860) 232 0214 E-mail: pvd@eddf-law.com DENTAL EQUITIES: Suit by Scoma Chiropractic et al. Stayed --------------------------------------------------------- District Judge John E. Steele of the United States District Court for the Middle District of Florida granted First Arkansas Bank & Trust's motion to stay proceedings in the case captioned, SCOMA CHIROPRACTIC, P.A., a Florida corporation, WILLIAM P. GRESS, an Illinois resident, and FLORENCE MUSSAT, M.D., S.C., an Illinois service corporation, individually and as the representative of a class of similarly-situated persons, Plaintiffs, v. DENTAL EQUITIES, LLC, JOHN DOES (1-10), FIRST ARKANSAS BANK & TRUST, and MASTERCARD INTERNATIONAL INCORPORATED, a Delaware corporation, Defendants, Case No. 2:16-CV-41-FTM-99MRM (M.D. Fla.). On September 26, 2016, plaintiffs filed a Third Amended Class Action Complaint against Dental Equities, First Arkansas, MasterCard International Inc., and John Does 1-10. The one-count Complaint alleges that defendants violated the Telephone Consumer Protection Act of 1991 (TCPA), as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. Section 227, by sending plaintiffs (and others) unsolicited commercial advertisements by facsimile machine. The junk fax plaintiffs received invites recipients to apply for a DoctorsClub MasterCard, and did not include certain opt-out language that plaintiffs argue is required by the TCPA. Plaintiffs allege that, by sending these junk faxes, defendants: i) caused plaintiffs and others to lose paper and toner; ii) occupied their telephone lines and fax machines; iii) wasted their time; and iv) violated their privacy interests. The court in the Davis action preliminarily approved the proposed class settlement and conditionally certified a class for settlement purposes on November 18, 2016. In that order, the court set a final approval hearing for April 3, 2017, and set the objection and opt-out/exclusion deadline for February 1, 2017. The order stated that persons in the settlement class may not both object and opt-out/exclude themselves from the proposed settlement. First Arkansas and Dental Equities are Released Parties to the Settlement Agreement. MasterCard is not a defendant, nor a released party in a parallel action pending in the Eastern District of Arkansas, Davis Neurology, P.A. v. Dental Equities, LLC, et al., Case No. 4:16-CV-371-BSM (E.D. Ark.). Defendant First Arkansas seeks a stay of the proceedings in the case pending the final approval of a class action settlement reached between First Arkansas and Dental Equities in the Davis action. Both this case and the Davis action arise out of and concern the same fax transmissions alleged to have been sent by or on behalf of defendants in violation of the TCPA in this case, and plaintiffs in this case are within the settlement class definition. In opposition to the Motion to Stay, plaintiffs argue that they would be unfairly prejudiced if a stay is entered because the proposed underlying settlement is grossly unfair, the release is overbroad, the Settlement Agreement is a "reverse auction" and First Arkansas has failed to establish a clear case of hardship or inequity if this case went forward. In his Opinion and Order dated December 28, 2016 available at https://is.gd/l2Z1mG from Leagle.com, Judge Steele found that a stay as to First Arkansas and Dental Equities is not unduly prejudicial for plaintiffs as the case will proceed against defendant MasterCard who is not a released party to the underlying settlement. The stay shall remain in effect until February 1, 2017, or such time as plaintiffs opt-out of the underlying settlement. If plaintiffs opt-out of the underlying settlement, they are directed to file a notice with the Court, requesting that the stay be lifted. Scoma Chiropractic, P.A., et al. are represented by Brian J. Wanca, Esq. -- BWanca@andersonwanca.com -- and Ryan M. Kelly, Esq. -- RKelly@andersonwanca.com -- ANDERSON & WANCA First Arkansas Bank & Trust is represented by Patricia A. Gorham, Esq. -- patricia.gorham@sutherland.com -- and Lewis S. Wiener, Esq. -- lewis.wiener@sutherland.com -- SUTHERLAND, ASBILL & BRENNAN, LLP Mastercard International Incorporated is represented by Carla M. Barrow, Esq. -- carla.barrow@qpwblaw.com -- Lissette Eusebio, Esq. -- lissette.eusebio@qpwblaw.com -- and Reginald John Clyne, Esq. -- reginald.clyne@qpwblaw.com -- QUINTAIROS, PRIETO, WOOD & BOYER, PA DR. REDDY'S: Cesar Castillo Sues Over Overpriced Divalproex ----------------------------------------------------------- Cesar Castillo, Inc., individually and on behalf of itself and all others similarly situated, v. Dr. Reddy's Laboratories, Inc., Impax Laboratories, Inc., Mylan Inc., Mylan Pharmaceuticals Inc., Par Pharmaceutical, Inc., Par Pharmaceutical Companies, Inc. and Zydus Pharmaceuticals (USA) Inc., Defendants, Case No. 2:16-cv- 06685, (E.D. Pa., December 29, 2016), brings this class action for claims under federal and state antitrust laws to recover damages and obtain injunctive and equitable relief for the substantial injuries it and others similarly situated have sustained against Defendants, arising from the Defendants' conspiracy to raise the prices of Divalproex sodium extended-release tablets and to allocate markets and customers for this product in the United States, in violation of Sections 1 and 3 of the Sherman Act. Cesar Castillo, Inc. is a corporation organized under the laws of the Commonwealth of Puerto Rico, with its principal place of business and headquarters located at Bo. Quebradas Arena, Rd. #1 Km. 26.0, Rio Piedras, Puerto Rico, 00926. Plaintiff purchased overpriced Divalproex ER directly from one or more Defendants. Divalproex ER is a commonly prescribed anticonvulsant indicated for the treatment of seizures and migraines. Dr. Reddy's Laboratories, Inc. is a New Jersey corporation, with its principal place of business at 107 College Road East, Princeton, New Jersey, 08540. Dr. Reddy's is a wholly-owned subsidiary of Dr. Reddy's Laboratories, Ltd., an Indian corporation, with its principal place of business at 7-1-27, Ameerpet, Hyderabad 500 016, Andhra Pradesh, India. During the Class Period, Dr. Reddy's sold Divalproex ER to customers in this District and throughout the United States. Impax Laboratories, Inc. is a Delaware corporation, with its principal place of business located at 30831 Huntwood Avenue, Hayward, California. Mylan Inc. is a Pennsylvania corporation with its principal place of business at 1000 Mylan Blvd., Canonsburg, Pennsylvania 15317. Mylan Pharmaceuticals Inc. is a West Virginia corporation with its principal place of business at TSl Chestnut Ridge Road, Morgantown, West Virginia 26505. Par Pharmaceutical, Inc. is a New York corporation with its principal place of business at One Ram Ridge Road, Chestnut Ridge, New York, 10977. Par Pharmaceutical Companies, Inc. is a Delaware corporation with its principal place of business at One Ram Ridge Road, Chestnut Ridge, New York 10977. Wockhardt Ltd. an international pharmaceutical and biotechnology company headquartered in Mumbai, India. Wockhardt maintains manufacturing plants and substantial operations in the United States, including its wholly-owned subsidiary Morton Grove Pharmaceuticals, Inc. Aurobindo Pharma USA, Inc., is a Delaware corporation with its principal place of business located at 6 Wheeling Road, Dayton, New Jersey 08810. Aurobindo is a subsidiary of Aurobindo Pharma Limited, a corporation based in Hyderbad, India. Plaintiff is represented by: Linda P. Nussbaum, Esq. NUSSBAUM LAW GROUP, P.C. 570 Lexington Avenue, 19 Fl. New York, NY 10022 Tel: (212) 722-7053 Email: lnussbaum@nussbaumpc.com - and - Juan R. Rivera Font, Esq. JUAN R. RIVERA FONT LLC Ave. Gonzalez Giusti #27, Suite 602 Guaynabo, PR 00968 Tel: (787) 751-5290 Email: juan@riverafont.com EKF DIAGNOSTICS: Must Face "Sartin" Junk Fax Class Action --------------------------------------------------------- District Judge Sarah S. Vance of the United States District Court for the Eastern District of Louisiana denied defendants' motion to dismiss for lack of Article III standing, as well as defendants' motion to strike plaintiff's class allegations in the case captioned, DR. BARRY SARTIN, v. EKF DIAGNOSTICS, INC. & STANBIO LABORATORY, L.P. SECTION "R"(2), Case No. 16-1816 (E.D. La.). Dr. Sartin alleges that defendants Stanbio Laboratory and its parent company, EKF Diagnostics, violated the Telephone Consumer Protection Act of 1991 (TCPA) by sending unsolicited faxes advertising their products and services. Dr. Sartin alleges that he "was the recipient of a fax advertisement sent by Defendants on September 24, 2014." The fax, which Dr. Sartin submits as an exhibit to his complaint, discusses a "Glycated Serum Protein LiquiColor Assay," which the fax describes as "a 2-3 week glycemic marker that could benefit patients" with certain medical conditions. On March 3, 2016, Dr. Sartin filed the lawsuit against defendants, seeking statutory damages and injunctive relief. Dr. Sartin brings his TCPA claims on behalf of himself and a proposed class consisting of similarly situated fax recipients. On May 3, 2016, defendants filed their first motion to dismiss Dr. Sartin's complaint for lack of Article III standing. Because Dr. Sartin's complaint failed to allege any facts indicating that the defendants' fax caused Dr. Sartin a concrete injury in fact, the Court granted defendants' motion on July 5, 2016. The dismissal was without prejudice, and Dr. Sartin was granted leave to file an amended complaint. Dr. Sartin filed an amended complaint alleging that the unsolicited fax caused Dr. Sartin and the class members to suffer statutory damages, and caused Dr. Sartin to "waste valuable time reviewing the fax, time that was taken away from his medical practice, and time that he could have otherwise spent performing billable medical procedures." Additionally, Dr. Sartin alleges that the fax tied up his fax line that he relies on for his business. Plaintiffs move to dismiss plaintiff's complaint for lack of Article III standing, or, in the alternative, to strike the complaint's class action allegations as insufficient to establish an ascertainable class. In her Order and Reasons dated December 28, 2016 available at https://is.gd/yyX0ZE from Leagle.com, Judge Vance held that Dr. Sartin's amended complaint plausibly alleges a judicially cognizable injury, and membership in the proposed class can be feasibly determined by using objective data in defendants' fax logs. Barry Sartin is represented by: Barry William Sartin, Jr., Esq. Matthew Arthur Sherman, Esq. Patrick R. Follette, Esq. Preston Lee Hayes, Esq. Ryan Paul Monsour, Esq. CHEHARDY, SHERMAN, ELLIS, MURRAY, RECILE, STAKELUM&HAYES One Galleria Blvd., Suite 1100 Metairie, LA 70001 Tel: (504) 217-2006 EKF Diagnostics, Inc., et al. are represented by Isaac H. Ryan, Esq. -- iryan@deutschkerrigan.com -- and Robert Emmett Kerrigan, Jr., Esq. -- rkerrigan@deutschkerrigan.com -- DEUTSCH KERRIGAN LLP -- Lewis S. Wiener, Esq. -- lewis.wiener@sutherland.com -- SUTHERLAND, ASBILL & BRENNAN, LLP ELECTRONIC DOCUMENT: Faces "Diaz" Suit in California Super. Ct. --------------------------------------------------------------- A class action lawsuit has been filed against Electronic Document Processing Inc. The case is entitled as Diego Diaz an individual for himself and on behalf of all others similarly situated, the Plaintiff, v. EDP and Electronic Document Processing Inc., the Defendants, Case No. 56-2016-00490620-CU-OE-VTA (Cal. Super. Ct., Dec. 29, 2016). Electronic Document Processing is a small data processing & preparation company in La Mirada, California. The Plaintiff is represented by: Louis H. Kreuzer, II, Esq. LAW OFFICE OF LOUIS H. KREUZER II 601 Daily Drive, Suite 221 Camarillo, CA 930101 Telephone: (805) 383 4131 Facsimile: (805) 383 4135 E-mail: lou@louiskreuzerlaw.com ENCORE RECEIVABLE: Faces "Innace" Suit in Eastern Dist. of N.Y. --------------------------------------------------------------- A class action lawsuit has been filed against Encore Receivable Management, Inc. The case is captioned as Anthony Innace and Joseph Morreale, individually and on behalf of all others similarly situated, the Plaintiffs, v. Encore Receivable Management, Inc., the Defendant, Case No. 2:16-cv-07168 (E.D.N.Y., Dec. 29, 2016). Encore Receivable Management, Inc. provides collections management solutions. The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203 7600 Facsimile: (516) 281 7601 E-mail: csanders@sanderslawpllc.com EPIC SECURITY: "Batiste" Suit to Recover Overtime, Minimum Pay -------------------------------------------------------------- Timothy Batiste, on behalf of himself and those similarly situated, Plaintiff, v. Epic Security Corp., Mark Lerner, in his individual capacity, Henry Cullen, in his individual capacity, and Hector Hernandez, in his individual capacity, all jointly and severally, Defendants, Case No. 1:17-cv-00029, (S.D. N.Y., December 30, 2016), seeks to recover unpaid wages pursuant to the Fair Labor Standards Act and New York Labor Law. Epic Security Corp. is a corporation that provides security services with principal executive office located at 2067 Broadway, New York, New York, 10023, where Batiste worked as a security officer. Defendants failed to provide Batiste with wage statements that accurately listed the hours he worked, failed to pay the minimum wage rate and failed to pay Batiste any wages for the time he spent travelling between Epic Security's main office and his respective job sites. During Plaintiff's employment, Batiste worked for Defendants in excess of forty hours some weeks without overtime. Plaintiffs are represented by: Nathaniel K. Charny, Esq. CHARNY & ASSOCIATES 9 West Market Street Rhinebeck, NY 12572 Tel. (845) 876-7500 Fax. (845) 876-7501 - and - Thomas Lamadrid, Esq. EISNER & DICTOR, PC 39 Broadway, Suite 1540 New York, NY 10006 Tel. (212) 473-8700 Fax. (212) 473-8705 EVERCORE TRUST: D.C. Appeals Court Won't Revive "Coburn" Suit ------------------------------------------------------------- Chief Judge Karen Lecraft Henderson of the District of Columbia Court of Appeals affirmed the district court's judgment dismissing complaint in the case captioned, DONNA MARIE COBURN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Appellant, v. EVERCORE TRUST COMPANY, N.A., Appellee, Case No. 16-7029 (D.C. App.). Donna M. Coburn, on behalf of herself and all others similarly situated, sued Evercore Trust Company, N.A. pursuant to the Employee Retirement Income Security Act of 1974 (ERISA) Sections 409, 502(a)(2)-(3), 29 U.S.C. Sections 1109(a), 1132(a)(2)-(3). Coburn, a former J.C. Penney employee and investor in a J.C. Penney employee stock ownership plan (ESOP) managed by Evercore, claims that Evercore breached its fiduciary duties of prudence and loyalty when it failed to take preventative action as the value of J.C. Penney common stock tumbled between 2012 and 2013, thereby causing significant losses. In her complaint, Plaintiff alleged that Evercore was liable for $300 million in losses to the Plan for having breached its fiduciary duty. On February 17, 2016, the district court granted Evercore's motion to dismiss the complaint for failure to state a claim. Because Coburn failed to plead special circumstances -- indeed, Coburn expressly disclaimed any need to plead them -- the district court held that Coburn's complaint could not survive Evercore's Rule 12(b)(6) challenge. On appeal, Coburn argues that the pleading requirements outlined in Fifth Third Bancorp v. Dudenhoeffer, U.S., 134 S.Ct. 2459 (2014), are inapplicable to her allegations because she challenges Evercore's failure to appreciate the riskiness of J.C. Penney stock rather than Evercore's valuation of its price. In Dudenhoeffer, the Supreme Court further refined pleading requirements regarding "allegations that a fiduciary should have recognized from publicly available information alone that the market was over- or undervaluing the stock." In her Opinion dated December 29, 2016 available at https://is.gd/RNtxS7 from Leagle.com, Judge Henderson held that Coburn's complaint was properly dismissed because Coburn's claim falls far short -- she did not allege the market on which J.C. Penney stock traded was inefficient. Donna Marie Coburn is represented by Peter W. Overs, Jr., Esq. -- povers@hfesq.com -- and Robert I. Harwood, Esq. -- rharwood@hfesq.com -- HARWOOD FEFFER LLP Evercore Trust Company, N.A. is represented by Jonathan D. Hacker, Esq. -- jhacker@omm.com -- Meaghan VerGow, Esq. -- mvergow@omm.com -- Jeffrey W. Kilduff, Esq. -- jkilduff@omm.com -- O'MELVENY & MYERS FAMILY DOLLARS: Gunn's PAGA Claims Dismissed -------------------------------------------- District Judge Gonzalo P. Curiel of the United States District Court for the Southern District of California granted Defendant's motion to dismiss Plaintiff's PAGA claim and denied leave to amend in the case captioned, KEVIN GUNN, individually and on behalf of all others similarly situated, Plaintiffs, v. FAMILY DOLLAR STORES, INC. et al, Defendant, Case No. 3:14-CV-1916-GPC-BGS (S.D. Cal.). The class action complaint, filed on May 21, 2014, asserts that Defendant violated California Labor Code Section 1198 and Wage Order 7-2001 Section 14 by failing to provide suitable seats to Plaintiff and other current and former employees of Family Dollar. On September 30, 2016, Defendant filed a motion for judgment on the pleadings to dismiss Plaintiff Kevin Gunn's class action suit brought under the California Labor Code and the Private Attorneys General Act of 2004, Cal. Lab. Code Section 2699(a) (PAGA or the Act). Defendant now seeks to dismiss Plaintiff's PAGA claim for failure to exhaust, arguing that Plaintiff failed to provide adequate notice of his cause of action to the California Labor and Workforce Development Agency (LWDA). Defendant contends that it is entitled to judgment because Plaintiff's April 7, 2014 notice letter failed to include "facts and theories to support the alleged violation." In other words, Defendant is arguing that the notice provided to the LWDA was deficient. In opposition, Plaintiff's main contention is that the facts included in the notice letter were sufficient because they implied other details and requests "leave to amend to provide the LWDA with a more detailed letter to be attached to an amended complaint." In his Order dated December 2, 2016 available at https://is.gd/4Ds61D from Leagle.com, Judge Curiel said Plaintiff failed to meet the minimal notice threshold required under PAGA because he included no factual detail whatsoever in his notice letter. As to leave to amend, Plaintiff fails to cite to any legal authority in support of his contention that amendment is appropriate under Rule 15(a)(2). Kevin Gunn is represented by Geniene B. Stillwell, Esq. -- gstillwell@stillwelllawoffice.com -- STILLWELL LAW OFFICE, P.C. -- Marc Phelps, Esq. -- marc@phelpslawgroup.com -- PHELPS LAW GROUP -- Roger R. Carter, Esq. -- rcarter@carterlawfirm.net -- THE CARTER LAW FIRM; Samantha Alane Smith, Esq. -- samantha@cooper-firm.com -- and Scott B. Cooper, Esq. -- scott@cooper-firm.com -- THE COOPER LAW FIRM, P.C. Family Dollar Stores, Inc. is represented by Betsey A. Boutelle, Esq. -- betseyboutelle@paulhastings.com -- Blake Bertagna, Esq. -- blakebertagna@paulhastings.com -- Jeffrey D. Wohl, Esq. -- jeffwohl@paulhastings.com -- and Taylor H. Wemmer, Esq. -- taylorwemmer@paulhastings.com -- PAUL HASTINGS LLP FEMALE HEALTH CO: "Schartz" Suit Remanded, Sanctions Bid Denied --------------------------------------------------------------- District Judge Samuel Der-Yeghiayan of the United States District Court for the Northern District of Illinois granted Plaintiff Brian Schartz's motion to remand and denied a motion for sanctions in the case captioned, BRIAN C. SCHARTZ, Plaintiff, v. O.B. PARRISH, et al., Defendants, Case No. 16 C 10736 (N.D. Ill.). Schartz alleges that on November 4, 2016, he filed a stockholder class action and derivative complaint in State court against Defendants O.B. Parrish, William R. Gargiulo, Jr., Donna Felch, David R. Bethune, Andrew S. Love, Mary Margaret Frank, Sharon Meckes, Elgar Peerschke, Mitchell S. Steiner (Steiner), Harry Fisch (Fisch), Georges Makhoul, Mario Eisenberger, and Lucy Lu and Defendant Female Health Company, a Wisconsin corporation that is headquartered in Chicago, Illinois. Schartz alleges that the Board and Female Health violated Wisconsin Business and Corporation Law (WBCL), Sections 180.1101 et seq, by merging Aspen Park Pharmaceuticals, Inc., a Delaware corporation, (Aspen Park) into Female Health without the affirmative vote of at least two thirds of the shareholders. Schartz filed the case in State court and included in his complaint breach of fiduciary duty claims brought against Female Health's pre-merger directors, aiding and abetting breach of fiduciary duty claims brought against Female Health's post-merger directors, and unjust enrichment claims brought against Steiner and Fisch. On November 7, 2016, Schartz filed a motion for preliminary injunction and a hearing was scheduled in State court for November 22, 2016. On November 18, 2016, Defendants filed their notice of removal to the court pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. Section 1332(d). Defendants contend that they have met the threshold elements for removal under CAFA. The court finds that Defendants have satisfied their burden of establishing the general requirements of CAFA for federal jurisdiction. In the motion, Schartz argues that the case should be remanded to State court because Schartz's claims are expressly excluded from CAFA jurisdiction. He argues that he solely asserts claims relating to the internal affairs of Female Health because the violations arose under Wisconsin law, which is where Female Health is incorporated. Schartz also moves for sanctions against Defendants contending that they intended to interfere with Schartz's ability to obtain a preliminary injunction in a timely fashion by filing this frivolous removal. In his Memorandum Opinion dated December 14, 2016 available at https://is.gd/usvZTE from Leagle.com, Judge Der-Yeghiayan held that Wisconsin law and the exception under the the Class Action Fairness Act apply to Plaintiff's claims, saying (1) the breach of fiduciary duty claim is governed solely by Female Health's state of incorporation; (2) the aiding and abetting breach of fiduciary duty claim falls within the internal affairs doctrine; (3) Schartz's allegations fall within the scope of the internal affairs doctrine. As to sanctions, the Court found that Plaintiff has not provided sufficient evidence to show that Defendants engaged in any intentional delay, harassment, or frivolous argument by exercising their right to remove the matter to federal court. Brian C. Schartz is represented by Thomas A. Zimmerman, Jr., Esq. -- tom@attorneyzim.com -- and Amelia Susan Newton, Esq. -- amy@attorneyzim.com -- ZIMMERMAN LAW OFFICES, P.C. -- Eric L. Zagar, Esq. -- ezagar@ktmc.com -- and Michael C. Wagner, Esq. -- mwagner@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP O.B. Parrish, et al. are represented by Daniel G. Hildebrand, Esq. -- hildrebrabdd@gtlaw.com -- David Stephen Repking, Esq. -- repkingd@gtlaw.com -- and Steven Marc Malina, Esq. -- malinas@gtlaw.com -- GREENBERG TRAURIG, LLP FIELDTURF USA: Newark School District Suit Moved to D.N.J. ---------------------------------------------------------- The class action lawsuit titled STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK on behalf of itself and all those similarly situated, the Plaintiff, v. FIELDTURF USA, INC., f/k/a FIELDTURF INTERNATIONAL, INC.; FIELDTURF TARKETT, INC.; FIELDTURF, INC.; and ABC CORP. I-X, the Defendants, Case No. ESX L 8386 16, was removed from the Superior Court of New Jersey, Essex County, to the U.S. District Court for the District of New Jersey (Newark). The District Court Clerk assigned Case No. 2:16-cv -09578 to the proceeding. Fieldturf USA engages in manufacturing and installation of infield artificial turf systems. The Plaintiff appears pro se. The Defendants are represented by: Theodore V. Wells, Jr. PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP 1285 Avenue of The Americas New York, NY 10019-6064 Telephone: (212) 373 3000 E-mail: twells@paulweiss.com FIRST NIAGARA BANK: Deal Has Final OK, Fee Bid Partially Granted ---------------------------------------------------------------- Magistrate Judge Jeremiah J. McCarthy of the United States District Court for the Western District of New York granted Plaintiff's motion for final approval of a class action settlement and granted in part motion attorneys' fees, expenses and service award payment in the case captioned, JEFFREY ZINK, on behalf of himself and all others similarly situated, Plaintiff, v. FIRST NIAGARA BANK, N.A., Defendant, Case No. 13-CV-01076-JJM (W.D.N.Y.). Plaintiff Jeffrey Zink commenced the action on July 19, 2013, seeking to recover class remedies from defendant First Niagara Bank, N.A. pursuant to New York's Real Property Law (RPL) Section 275(1) and Real Property Actions and Proceedings Law (RPAPL) Section 1921(1), for its allegedly "systematic failure to timely present to the county clerks of New York State proof that mortgages have been satisfied". On July 15, 2015, Plaintiffs filed a Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. Magistrate Judge Puglisi issued his Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs' Motion for Class Certification (F&R) on November 12, 2015 recommending that (1) certifying the instant case as a class action; (2) appointing Dr. Willcox (but not the Dominicks) as class representative; (3) appointing Alston Hunt Floyd & Ing and Steptoe & Johnson LLP as class counsel; (4) directing the parties to meet and confer regarding notice to class members; (5) denying any remaining relief requested in Plaintiffs' class certification motion; and (6) defining the certified class as "All persons and entities who entered prior to August 2009 into an IMS loan with Lloyds that contained a Hong Kong choice-of-law provision and an interest rate provision based upon Cost of Funds and who are, or were at any time during entering into such an IMS loan, residents or citizens of the State of Hawaii, or owners of property in Hawaii that was mortgaged to secure any such IMS loan." District Judge Richard J. Arcara on January 12, 2016 adopted the court's October 20, 2015 Report and Recommendation recommending denial of plaintiff's previous motion for class certification and settlement approval and July 1, 2016 Decision and Order preliminarily certifying the class and approving the pending proposed settlement. Before the Court is plaintiff's Uncontested Motion for Final Approval of Class Action Settlement pursuant to Rule 23, and his Uncontested Motion for Attorneys' Fees, Expenses, and Service Award Payment. Under the proposed settlement, First Niagara has made available the sum of $2.2 million to pay class claims (Settlement Agreement and Release representing approximately 50% of the full value of those claims. In addition, it has agreed not to contest an application for court approval for payment of a service award to plaintiff in an amount not to exceed to $5,000, and payment of attorney's fees and expenses to counsel in an amount not to exceed one-third of the $2.2 million made available to claimants, both amounts to be paid by First Niagara in addition to the $2.2 million made available to claimants. In his Decision and Order dated December 29, 2016 available at https://is.gd/JcQ25V from Leagle.com, Judge McCarthy found that the class action settlement is procedurally fair. The Court granted the fee motion but reduced the amount by 5%. Specifically, plaintiff requested a $733,000 award for fees and expenses, but the Court approved $696,350.00 as fees and expenses, and reduced the requested $5,000 service award to $2,500 because the plaintiffs did not incur significant personal risk in the way a plaintiff bringing employment-related claims does. Jeffrey Zink is represented by: Jeremiah Frei-Pearson, Esq. Todd S. Garber, Esq. Shin Young Hahn, Esq. FINKELSTEIN BLANKINSHIP FREI-PEARSON & GARBER LLP 445 Hamilton Ave #605, White Plains, NY 10601 Tel: (844)431-0695 First Niagara Bank N.A. is represented by Cynthia Giganti Ludwig, Esq. -- cludwig@hodgsonruss.com -- and Jodyann Galvin, Esq. -- jgalvin@hodgsonruss.com -- HODGSON RUSS LLP FLORIDA BIRTH-RELATED NICA: Lamperts Entitled to Fees & Costs ------------------------------------------------------------- Judges James R. Wolf, Joseph Lewis and Timothy D. Osterhaus of the Florida Court of Appeals reversed an opinion filed on November 14, 2016, and remanded the action for the entry of an order granting fees and costs in the case captioned, CELIA LAMPERT AND CURT LAMPERT, AS PARENTS AND NATURAL GUARDIANS OF T.L., Appellants, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Appellee, Case No. 1D15-4815 (Fla. App.). Appellants Celia Lampert and Curt Lampert are the parents of a son born with a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes, who was admitted into the Florida Birth-Related Neurological Injury Compensation Association (NICA) program on November 10, 1997. In 2006, over 100 families (including Appellants) filed a class action law suit against NICA, alleging that NICA was unlawfully underpaying or refusing to pay parents and guardians for custodial care. The lawsuit resulted in a settlement agreement and release, approved in 2012, that established a process for class members to file claims with NICA to receive payment for providing medically necessary and reasonable custodial care benefits. On January 4, 2013, Appellants submitted a claim to NICA for residential and custodial care benefits. NICA agreed to pay Appellants for future custodial benefits in the amount of 12 hours per day, whereas Appellants sought pay for 16 hours per day and reasonable attorneys' fees and costs, and such other relief that the Administrative Law Judge deems just and proper. Administrative Law Judge (ALJ) issued a final order in 2015 awarding custodial care benefits of 12 hours per day from December 17, 2012, forward, which was what NICA initially agreed to pay but denied Appellants' motion for attorneys' fees and costs. NICA argues that the Court should affirm the ALJ's denial of Appellants' fees and costs because Appellants "were clearly not the prevailing party and NICA prevailed by any measure." Pending before the Court is the issue de novo involving the interpretation of the NICA-related attorneys' fee statute Section 766.31(1)(c) of the Florida Statute as the means of resolving claims for custodial care benefits which provides that "Should there be a final determination of compensability, and the claimants accept an award under the section, the claimants shall not be liable for any expenses, including attorney's fees, incurred in connection with the filing of a claim under ss. 766.301-766.316 other than those expenses awarded under the section." In the Per Curiam dated December 30, 2016 available at https://is.gd/KA9xs5 from Leagle.com, Judges Wolf, Lewis and Osterhaus concluded that Appellants are entitled to their expenses as required by the settlement agreement because the ALJ made the final determination and award under the statute that "Petitioners are awarded custodial care benefits of 12 hours per day, seven days per week, for the time period since December 17, 2012, and forward." The action is remanded with instructions to grant Appellants' attorneys' fees and costs. Celia Lampert and Curt Lampert are represented by David M. Caldevilla, Esq. -- dcaldevilla@dgfirm.com -- DE LA PARTE & GILBERT, P.A. Florida Birth-Related Neurological Injury Compensation is represented by David W. Black, Esq. -- dblack@fwblaw.net -- and Marc A. Silverman, Esq. -- msilverman@fwblaw.net -- WEINBERG & BLACK, P.L. FORSTER GARBUS: Final Hearing on "Feliciano" Suit Deal on Mar. 30 ----------------------------------------------------------------- The Hon. Cathy L. Waldor entered an order in the lawsuit entitled GINGER I. FELICIANO, on behalf of herself and those similarly situated, and LYNN ANTISTA, Consolidated Plaintiff Case No. 2:15- cv-04338-CLW v. FORSTER, GARBUS & GARBUS, Case No. 2:15-cv-02496- CLW (D.N.J.), granting preliminary approval to the class settlement agreement between the Plaintiffs and the Defendant. The "Settlement Class" is defined as: All Consumers who reside in the State of New Jersey to whom Forster, Garbus & Garbus mailed a written communication during the period beginning April 7, 2014, and ending June 24, 2015, in an attempt to collect a debt on behalf of either Sallie Mae or LVNV Funding LLC, which were mailed in a windowed envelope such that the file number or QR Code containing the file number associated with the Debt was visible from the outside of the envelope. Judge Waldor appoints the Plaintiffs as the Class Representatives, their counsel as Class Counsel and Heffler Claims Group as the Settlement Administrator to administer notice to the Class and the Settlement. The Court also approves the Parties' proposed Class Notice and directs that it be mailed to the last known address of each member of the Settlement Class by January 29, 2017. Class Members will have until March 15, 2017, to exclude themselves from, or object to, the proposed settlement. Any lawyer, who intends to appear at the Final Fairness Hearing also, must enter a written Notice of Appearance with the Clerk of the Court no later than March 15, 2017. A final hearing on the fairness and reasonableness of the Agreement and whether final approval will be given to it and the requests for fees and expenses by Class Counsel will be held on March 30, 2017, at 1:00 p.m. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=bdDFnsgB FOUGERA PHARMACEUTICALS: Castillo Sues Over Overpriced Clobetasol ----------------------------------------------------------------- Cesar Castillo, Inc., individually and on behalf of all those similarly situated, Plaintiff, v. Fougera Pharmaceuticals, Inc., Sun Pharmaceutical Industries, Inc., Teva Pharmaceuticals USA Inc., Sandoz, Inc., Taro Pharmaceutical Industries, Ltd., Taro Pharmaceuticals USA, Inc. and Novartis AG, Defendants, Case No. 1:16-cv-10063, (S.D. N.Y., December 31, 2016), was filed against the Defendants for overcharging clobetasol propionate topical ointment in violation of the Sherman Act and Clayton Act. The suit seeks to recover treble damages, costs of suit and reasonable attorneys' fees. Clobetasol is a high-potency prescription corticosteroid used in the treatment of various skin disorders including eczema, psoriasis, dermatitis and vitiligo. It is reportedly one of the most prescribed dermatological drugs in the United States. Cesar Castillo, Inc. is a corporation organized under the laws of the Commonwealth of Puerto Rico, with its principal place of business and headquarters located at Bo. Quebradas Arena, Rd. #1 Km. 26.0, Rio Piedras, Puerto Rico, 00926. Plaintiff purchased clobetasol propionate topical ointment directly from one or more Defendants at excessive prices. Fougera Pharmaceuticals Inc. is a New York corporation with its principal place of business in Melville, New York. Fougera is a specialty dermatology generic pharmaceutical company that markets and sells generic fluocinonide throughout the United States. Fougera is a wholly owned subsidiary of Defendant Sandoz, Inc., a Colorado corporation with its principal place of business in Princeton, New Jersey. It deals in generic pharmaceuticals and bio-similars and is a subsidiary of Defendant Novartis AG. Teva Pharmaceuticals Curacao N.V. develops, manufactures and distribute generic pharmaceutical products. Taro Pharmaceuticals USA, Inc. is a New York corporation with its principal place of business in Hawthorne, New York. It is an owned subsidiary of Taro Pharmaceutical Industries, Ltd. Plaintiff is represented by: Linda P. Nussbaum, Esq. NUSSBAUM LAW GROUP, P.C. 570 Lexington Avenue, 19 Fl. New York, NY 10022 Tel: (212) 722-7053 Email: lnussbaum@nussbaumpc.com - and - Juan R. Rivera Font, Esq. JUAN R. RIVERA FONT LLC Ave. Gonzalez Giusti #27, Suite 602 Guaynabo, PR 00968 Tel: (787) 751-5290 Email: juan@riverafont.com GARDEN DEPT.: Faces "Gomez" Suit in Eastern Dist. of New York ------------------------------------------------------------- A class action lawsuit has been filed against The Garden Dept. Corp. The case is titled as Walter Gomez, on behalf of himself and others similarly situated, the Plaintiff, v. The Garden Dept. Corp., Victor Caroleo, and Domenic Caroleo, the Defendants, Case No. 1:17-cv-00017 (E.D.N.Y., Jan. 03, 2017, 2016). The Defendant is engaged in the nurseries & gardening business. The Plaintiff is represented by: Ariadne Anna Panagopoulou Alexandrou, Esq. PARDALIS & NOHAVICKA, LLP 3510 Broadway, Suite 201 Astoria, NY 11106 Telephone: (718) 777 0400 Facsimile: (718) 777 0599 E-mail: ari@pnlawyers.com GARFIELD BEACH: Faces "Morales" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Christopher Morales and Eric Morales, individually and on behalf of himself and all others similarly situated v. Garfield Beach CVS, L.L.C., Longs Drug Stores California, L.L.C., and Does 1 through 100, inclusive, Case No. BC645205 (Cal. Super. Ct., December 28, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. The Defendants own and operate a medical retail store in Los Angeles, California. The Plaintiff is represented by: Mike Arias, Esq. Mikael H. Stahle, Esq. ARIAS SANGUINETTI STAHLE & TORRIJOS LLP 6701 Center Drive West, Suite 1400 Los Angeles, CA 90045 Telephone: (310) 844-9696 Facsimile: (310) 861-0168 E-mail: mike@asstlawyers.com mikael@asstlawyers.com GENERAL CABLE: Shareholders Sue Over Share Price Drop ----------------------------------------------------- Barbara Leonard, writing for Courthouse News Service, reported that investors claim in federal class action in Manhattan that General Cable shares dropped 31 percent overnight on Feb. 11, 2016, after reaching a $33 million settlement with the Justice Department for bribing foreign government officials. The case is captioned, SATISH DOSHI, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, v. GENERAL CABLE CORPORATION, GREGORY B. KENNY, and BRIAN J. ROBINSON, Defendants., Case 1:17-cv-00092 (S.D.N.Y., January 5, 2017). Attorneys for Plaintiff: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Hui M. Chang, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com hchang@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com GRACEKENNEDY FOODS: "Saiz" Suit Moved from Cir. Ct. to S.D. Fla. ---------------------------------------------------------------- The class action lawsuit titled Daniel Saiz, individually and on behalf of all others similarly situated, the Plaintiff, v. GRACEKENNEDY FOODS (USA) LLC, doing business as La Fe a Delaware limited liability corporation, and Alfonso Garcia Lopez, S.A., doing business as Conservas Pescamar a Foreign Corporation, Case No. 16-030142-CA-01, was removed from the 11th Judicial Circuit Court, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:17- cv-20022-JAL to the proceeding. The case is assigned to Hon. Judge Joan A. Lenard. GraceKennedy Foods is a full service distributor of a range of over 1,400 products in the categories of grocery, frozen, and dairy products. The Plaintiff is represented by: James Paul Gitkin, Esq. Salpeter Gitkin, LLP One East Broward Blvd., Suite 1500 Fort Lauderdale, FL 33301 Telephone: (954) 467 8622 Facsimile: (954) 467 8623 E-mail: jim@salpetergitkin.com Gracekennedy Foods (USA) LLC is represented by: Jeffrey B Goldberg, Esq. Aviva L. Wernick, Esq. HUGHES HUBBARD AND REED 201 S. Biscayne Blvd., 25th Floor Miami, FL 33131 Telephone: (305) 379 5573 E-mail: aviva.wernick@hugheshubbard.com GUARDIAN LIVING: "Williams" Suit Seeks to Recover Unpaid OT Wages ----------------------------------------------------------------- Tiffery Williams, individually and on behalf of similarly situated individuals v. Guardian Living Services, Inc. and Christina E. Kizzee, Case No. 4:16-cv-03758 (S.D. Tex., December 29, 2016), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standards Act. The Defendants are in the business of providing individuals or patients, assistance with their daily living, including but not limited to, bathing, dressing, grooming, and eating. The Plaintiff is represented by: Trang Q. Tran, Esq. TRAN LAW FIRM 2537 South Gessner Road, Suite 104 Houston, TX 77063 Telephone: (713) 223-8855 Facsimile: (713) 623-6399 E-mail: ttran@tranlawllp.com HAILEY DEVELOPMENT: Faces Windham Contracting Suit in N.Y. Ct. -------------------------------------------------------------- Windham Contracting Corp., on behalf of itself and on behalf of all others entitled to share in the funds received by Hailey Development Group, LLC, as Trustee, in connection with the improvement of the real property known as 800 Union Street, Brooklyn, New York Block: 957; Lot: 29 v. Hailey Development Group, LLC, Richard Petrosa, Mary Filocamo, 222 Union Associates II, L.P., State Farm Realty Mortgage, L.L.C., and "John Doe No. 1" through "John Doe No., 100," Case No. 523180/2016 (N.Y. Sup. Ct, December 29, 2016), arises from the failure and refusal of Hailey to pay for certain labor and materials provided, as well as other construction materials, equipment and labor supplied by the Trust Fund Beneficiaries in connection with the improvement of the real property known as 800 Union Street, Brooklyn, New York, Block: 957; Lot: 29, and the unlawful diversion of said trust fund monies for non-trust purposes. Hailey Development Group, LLC operates a construction company located at 236 Fifth Avenue, 11th Floor, New York, New York 10001. The Plaintiff is represented by: Constantine T. Tzifas, Esq. ARTHUR J. SEMETIS, P.C. 286 Madison Avenue - Suite 1801 New York, NY 10017 Telephone: (212) 557-5055 HARRIS COUNTY, TX: Lomas Seeks Certification of Arrestees Class --------------------------------------------------------------- The Plaintiffs in the lawsuit captioned LUCAS LOMAS, CARLOS EAGLIN, On behalf of themselves and all others similarly situated v. HARRIS COUNTY, TEXAS, Case No. 4:16-cv-03745 (S.D. Tex.), ask the Court to certify this Class and Subclass: A Class seeking injunctive and declaratory relief: All warrantless arrestees who are currently detained, or will be detained, by Harris County and who have not been provided, or will not be provided, a prompt, neutral determination of probable cause supported by oath or affirmation. A Subclass seeking injunctive and declaratory relief: All warrantless misdemeanor arrestees who are currently detained, or will be detained, by Harris County and who have not been provided, or will not be provided, a neutral determination of probable cause supported by oath or affirmation within 24 hours of arrest. The case is about Harris County jailing some of its poorest people without a finding of probable cause "supported by oath or affirmation," the Plaintiffs allege. The Plaintiffs contend that they are arrestees currently imprisoned by the County without a warrant and without a finding of probable cause supported by oath or affirmation. On behalf of the many other individuals subjected to the Defendant's illegal post-arrest practices, the Plaintiffs ask that the Court certify the case as a class action. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=hhaUdpoO The Plaintiffs are represented by: Rebecca Bernhardt, Esq. Susanne Pringle, Esq. Texas Fair Defense Project 314 E Highland Mall Blvd., Suite 108 Austin, TX 78752 Telephone: (512) 637-5220 E-mail: rbernhardt@fairdefense.org springle@fairdefense.org - and - Elizabeth Rossi, Esq. Charlie Gerstein, Esq. Alec Karakatsanis, Esq. CIVIL RIGHTS CORPS 910 17th Street NW, Fifth Floor Washington, DC 20001 Telephone: (202) 681-2409 E-mail: elizabeth@civilrightscorps.org charlie@civilrightscorps.org alec@civilrightscorps.org HERTZ CORP: "Lee" FCRA Class Suit Goes Back to State Court ---------------------------------------------------------- District Judge Beth Labson Freeman of the United States District Court for the Northern District of California granted Defendant's motion to dismiss the case in its entirety for lack of subject matter jurisdiction and remanded the case to the San Francisco County Superior Court in the case captioned, PETER LEE, et al., Plaintiffs, v. THE HERTZ CORPORATION, et al., Defendants, Case No. 15-CV-04562-BLF (N.D. Cal.). Plaintiffs Peter Lee and Latonya Campbell initially filed the putative class action in California Superior Court, County of San Francisco, which Defendants then removed. Thereafter, Hertz filed a motion to stay the action pending the Supreme Court's issuance of its decision in Spokeo. The Court granted Hertz's motion to stay over Plaintiffs' objections. Plaintiffs filed a First Amended Complaint (FAC) on behalf of themselves and similarly situated persons against Defendants The Hertz Corporation and Dollar Thrifty Automotive Group, Inc., alleging that Hertz violated two procedural requirements of the Fair Credit Reporting Act (FCRA) with respect to their applications for employment. First, Plaintiffs allege that the employment application forms Hertz used in the course of its hiring process violated the "stand-alone requirement" of the FCRA, 15 U.S.C. Section 1681b(b)(2)(A)(i). Second, Plaintiffs allege that by withdrawing their conditional offers of employment without first providing them with a copy of their consumer reports and a summary of their rights to contest its accuracy, Hertz failed to comply with sections 1681b(b)(3)(A)(i) and (ii) of the FCRA. In the motion, Hertz moves under Fed. R. Civ. P. 12(b)(1) and 12(h)(3) to dismiss the case in its entirety for lack of subject matter jurisdiction, based on the U.S. Supreme Court's recent decision in Spokeo v. Robins, 136 S.Ct. 1540 (2016) affirming that to have Article III standing, a plaintiff must have "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." In her Order dated December 2, 2016 available at https://is.gd/EvdXXm from Leagle.com, Judge Freeman concluded that under Spokeo and the facts of the case, Plaintiffs have failed to establish that they meet Article III's injury-in-fact requirement. The case is remanded to the San Francisco Superior Court. Latonya Campbell, et al. are represented by Jahan C. Sagafi, Esq., and Katrina Leigh Eiland, Esq., at OUTTEN & GOLDEN LLP; E. Michelle Drake, Esq. -- emdrake@bm.net -- and Joseph C. Hashmall, Esq. -- jhashmall@bm.net -- BERGER & MONTAGUE, P.C. The Hertz Corporation, et al. are represented by Robert A. Dolinko, Esq. -- rdolinko@nixonpeabody.com -- Charles M. Dyke, Esq. -- cdyke@nixonpeabody.com -- and Matthew J. Frankel, Esq. -- mfrankel@nixonpeabody.com -- NIXON PEABODY LLP HILTON WORLDWIDE: "Solomon" Class Suit Removed to N.D. California ----------------------------------------------------------------- The class action lawsuit captioned Alex Solomon, on behalf of all others similarly situated v. Hilton Worldwide, Inc. and Does 1100, inclusive, Case No. RG16839453, was removed from the Superior Court of the State of California in and for the County of Alameda to the U.S. District Court for the Northern District of California. The District Court Clerk assigned Case No. 3:16-cv- 07378 to the proceeding. The suit asserts labor-related claims. Hilton Worldwide, Inc. operates a hospitality company that manages and franchises a broad portfolio of hotels and resorts. The Defendant is represented by: Fraser A. McAlpine, Esq. Scott P. Jang, Esq. JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, CA 94111 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 E-mail: fraser.mcalpine@jacksonlewis.com scott.janga@jacksonlewis.com HUMANA INC: Faces "Mazzarella" Suit in Western Dist. of Kentucky ---------------------------------------------------------------- A class action lawsuit has been filed against Humana, Inc. The case is captioned as Louis Mazzarella, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. Humana, Inc., Humana Insurance Company, and Humana Pharmacy Solutions, Inc., Case No. 3:16-cv-00837-DJH (W.D. Ken., Dec. 29, 2016). The case is assigned to Hon. Judge David J. Hale. Humana Inc. is a for-profit American health insurance company based in Louisville, Kentucky. The Plaintiff is represented by: Christopher M. Barrett, Esq. Craig A. Raabe, Esq. IZARD KINDALL & RAABE, LLP 29 S. Main Street, Suite 305 West Hartford, CT 06107 Telephone: (860) 493 6292 Facsimile: (860) 493 6290 - and - Jacob E. Levy, Esq. Mark K. Gray, Esq. GRAY & WHITE 713 E. Market Street, Suite 200 Louisville, KY 40202 Telephone: (502) 805 1800 Facsimile: (502) 618 4059 E-mail: jlevy@grayandwhitelaw.com mgray@grayandwhitelaw.com - and - Joseph Gentile, Esq. Robert A. Izard, Esq. Ronen Sarraf, Esq. SARRAF GENTILE LLP 14 Bond Street, Suite 212 Great Neck, NY 11021 Telephone: (516) 699 8890 Facsimile: (516) 699 8968 - and - Matthew Jasinski, Esq. William H. Narwold, Esq. Motley Rice, LLC - Hartford One Corporate Center 20 Church Street, 17th Floor Hartford, CT 06103 Telephone: (860) 882 1676 Facsimile: (860) 882 1682 ICELL HOLDINGS: "Castillo" Sues Over Unpaid Min. and OT Wages ------------------------------------------------------------- Cesar Castillo, individually and on behalf of all other persons similarly situated, Plaintiffs, v. Arpreet Sahni a/k/a Sunny Singh, individually and Icell Holdings Inc. d/b/a Cricket Wireless and/or any other related or affiliated entities, Defendants, Case No. 1:16-cv-07187, (N.D. Cal., December 30, 2016), seeks unpaid minimum wages, overtime compensation, spread of hours compensation, plus liquidated damages, interest, attorneys' fees, and costs under the Fair Labor Standards Act and New York Labor Laws. Defendants operate 77 Cricket Wireless stores throughout the United States, including but not limited to stores in New York, New Jersey, Pennsylvania and Maryland. Castillo performed customer service work for Defendants from approximately May 2016 through November 2016 at Defendants' store located at 5658 Myrtle Ave, Ridgewood, New York 11385. He claims to be denied overtime pay as well as accurate wage statements. Plaintiff is represented by: Lloyd Ambinder, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, NY 10004 Phone: (212) 943-9080 Fax: (212) 943-9082 Email: llambinder@vandallp.com IDEAL TAX: Class Certification Under TCPA Sought in "Meyer" Suit ---------------------------------------------------------------- The Plaintiff in the lawsuit styled MELISSA MEYER v. IDEAL TAX SOLUTIONS, Case No. 8:16-cv-01617-JLS-DFM (C.D. Cal.), asks the Court for an order granting her motion for class certification, for her appointment as Class Representative and the appointment of her counsel as class counsel. The proposed class consists of: All persons within the United States who received any unsolicited text messages and/or any other unsolicited text messages from Defendant without prior express consent. The lawsuit alleges violations of the Telephone Consumer Protection Act. The Plaintiff asserts that the Motion is filed to procedurally preserve her rights pursuant to the decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (U.S. 2013), although the Plaintiff disagrees that the Genesis decision applies to class actions pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Court will commence a hearing on July 14, 2017, at 2:30 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=SRQ2ck5h The Plaintiff is represented by: Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S. Beverly Dr., #725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com IDENTIV INC: "Cunningham" Amended Securities Class Suit Dismissed ----------------------------------------------------------------- District Judge Charles R. Breyer of the United States District Court for the Northern District of California granted Defendants' motions in the case captioned, LIKAR ROK, Plaintiff, v. IDENTIV, INC., JASON HART, and BRIAN NELSON Defendants, Case No. 15-CV- 5775-CRB (N.D. Cal.). The case is a putative securities fraud class action based on alleged corporate excess at Identiv, Inc. pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Court appointed Thomas Cunningham as lead plaintiff. See Order of 3/8/16. In May 2016, Cunningham filed the FAC on behalf of "himself and all other similarly situated purchasers" of Identiv securities during the Class Period. Defendants Identiv, Hart, and Nelson separately moved to dismiss the FAC. The Court dismissed with leave to amend, finding that Cunningham failed to adequately plead a material misrepresentation as to internal controls statements, failed to plead a strong inference of scienter as to all misrepresentations, and failed to plead loss causation. Cunningham's Second Amended Complaint brings claims for (A) violations of Section 10(b) of the Exchange Act and SEC Rule 10b-5, i.e., securities fraud, against all defendants; and (B) violation of Section 20(a) of the Exchange Act, i.e., controlling person liability for securities fraud, against Hart and Nelson. In their motion to dismiss, Defendants contest three of these elements: (1) material misrepresentations; (2) scienter; and (3) loss causation. In his Order and Reasons dated January 4, 2017 available at https://is.gd/G1gqZ5 from Leagle.com, Judge Breyer held that the SAC fails to adequately allege a material misrepresentation, scienter, or loss causation, and therefore fails to state a claim under Section 10(b) of the Exchange Act and SEC Rule 10b-5. Cunningham failed to correct the deficiencies identified in the FAC suggests that he has "no additional facts to plead." Likar Rok is represented by Charles Henry Linehan, Esq. -- clinehan@glancylaw.com -- Lionel Z. Glancy, Esq. -- lglancy@glancylaw.com -- and Robert Vincent Prongay, Esq. -- GLANCY PRONGAY & MURRAY LLP -- Phong L. Tran, Esq. -- PhongT@johnsonandweaver.com -- JOHNSON & WEAVER LLP -- Mark Punzalan, Esq. -- markp@punzalanlaw.com -- PUNZALAN LAW, P.C. Identiv, Inc. is represented by Christopher Harold McGrath, Esq. -- haroldmcgrath@paulhastings.com -- Edward Han, Esq. -- edwardhan@paulhastings.com -- Ryan Matthew Fawaz, Esq. -- ryanfawaz@paulhastings.com -- PAUL HASTINGS LLP -- James M. Lindfelt, Esq. -- james.lindfelt@gmail.com -- PILLSBURY WINTHROP SHAW PITTMAN LLP INTERCOAST CAREER: Misrepresented Accreditation Status, Suit Says ----------------------------------------------------------------- Zack Huffman, writing for Courthouse News Service, reported that four women claim in a federal class action in Portland, Maine, that the for-profit college Intercoast Career Institute misrepresented the accreditation status of its nursing school in Kittery, Maine. Bringing their suit on Dec. 30 in U.S. District Court for the District of Maine, lead plaintiffs Stephanie Kourembanas, Caridad Jean Baptiste, Cathy Mande and Catherine Valley say the school's false promises that its program would prepare them to become professional nurses left them saddled with huge student loans. "The InterCoast LPN program was a sham," the complaint states, abbreviating licensed practical nursing. "It existed to make money without regard for the quality of education its students received in exchange. InterCoast provided little, if any, educational value to its students and failed to enhance their occupational qualifications or career prospects." Though it primarily operates campuses in California, the for- profit vocational school Intercoast Colleges also runs the Intercoast Career Institute in Maine. Intercoast opened its LPN program in Kittery in 2010. The former students allege that InterCoast's nursing program failed to provide adequate faculty, adequate clinical experience and adequate preparation for the National Council Licensing Examination for Practical Nurses, passage of which is required to work as a nurse. Students could expect to pay about $36,000 for the full program, which was most often financed through federal student loans. The Maine Board of Nursing originally licensed the school, according to the complaint, but opened an investigation of it in July 2012 amid claims that the school's clinical sites were of poor quality. What the investigation uncovered, the complaint continues, is a "naãve faculty" that would change students' grades without notification while blocking students' access to their own exam results. As part of a March 2013 consent agreement between the school and the state, the students note that the school was supposed to improve its program to the point where it was eligible to receive accreditation through the National League for Nursing Accrediting Commission. The school allegedly had to obtain accreditation within 18 months of the agreement. After the school failed to meets that accreditation deadline, and missed its extension as well, the complaint says InterCoast agreed to surrender its state certificate of approval and to cease operations in Maine by April 2016. All four plaintiffs say they were students of the school and were made to take out massive student loans that they were are still repaying. Only two of them completed their LPN programs, but were unable to continue their education in pursuit of a RN degree because no other schools would accept credits earned from InterCoast. Another plaintiff says she was forced out of the program by a false plagiarism accusation after a semester of harassment for speaking English as a second language. The final plaintiff left the school after one semester, saying the school refused to let her know whether she passed her final exam. A representative for InterCoast has not returned an email seeking comment. The plaintiffs are represented by Andrew Cotter and James Clifford of Clifford & Clifford in Kennebunk and Richard O'Meara from Murray Plumb & Murray in Portland. The case is captioned, STEPHANIE KOUREMBANAS, CARIDAD JEAN BAPTISTE, CATHY MANDE, and CATHARINE VALLEY, on behalf of themselves and all others similarly situated, Plaintiffs, v. INTERCOAST COLLEGES, d/b/a INTERCOAST CAREER INSTITUTE, Defendants, Case 2:16-cv-00639-JAW (D. Maine, December 30, 2016). Counsel for Plaintiffs: James Clifford, Esq. Andrew P. Cotter, Esq. CLIFFORD & CLIFFORD Post Road Center 62 Portland Rd. Suite 37 Kennebunk, ME 04043 Tel: (207) 985-3200 E-mail: james@cliffordclifford.com andrew@cliffordclifford.com - and - Richard L. O'Meara, Esq. MURRAY, PLUMB & MURRAY 75 Pearl Street, P.O. Box 9785 Portland, ME 04104-5085 Tel: (207) 773-5651 E-mail: romeara@mpmlaw.com JENNINGS ROAD: Doesn't Properly Pay Employees, "Cerulo" Suit Says ----------------------------------------------------------------- Cooper Cerulo and Jordon Tetreault, on behalf of themselves and all others similarly situated v. Herbert G.Chambers, James Duchesneau, Alan McLaren, Jennings Road Management Corp, d/b/a "The Herb Chambers Companies," Herb Chambers of Natick, Inc., and Herb Chambers of Auburn, Inc., Case No. 16-3749 (Mass. Cmmw., December 29, 2016), is brought against the Defendants for failure to pay employees an hourly rate equal to one and one half times their regular hourly rate for all of the hours that they worked in excess of 40 during a pay period. The Defendants manage, control, and operate a chain of over 50 car dealerships in Massachusetts. The Plaintiff is represented by: Brook S. Lane, Esq. John P. Regan Jr., Esq. REGAN LANE LLP 43 Bowdoin Street, Ste. A Boston, MA 02114 Telephone: (857) 277-0902 E-mail: blane@reganlane.com jregan@reganlane.com JM HOLM: Class of Painters/Laborers Certified in "Arredondo" Suit ----------------------------------------------------------------- The Hon. Alfred H. Bennett granted the agreed motion for conditional certification of representative class and approval of notice filed in the lawsuit captioned JOSE ARREDONDO v. J.M. HOLM & CO., INC., and TODD NELMS, INDIVIDUALLY, Case No. 4:16-cv-01317 (S.D. Tex.). The Court certifies this as a conditional class: All current and former painters and laborers employed by Defendant J.M. Holm & CO., Inc. who worked more than forty (40) hours per week from May 10, 2013 to present. Judge Bennett also ordered the Defendants to produce the names, physical addresses, e-mail addresses and telephone numbers of all putative class members to the Plaintiffs within 30 days of the date of the Order. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZjFZYL0X JS LOVEMOTORS: Sued in California Over Misleading Advertisement --------------------------------------------------------------- Steven Hernandez, individually and, on behalf of all others similarly situated v. JS Lovemotors, Inc., d/b/a Santander Consumer USA, Inc., d/b/a Chrysler Credit, and Does 1 through 500, inclusive, Case No. BC645260 (Cal. Super. Ct., December 29, 2016), arises out of the Defendant's illegal pattern and practice of advertising vehicles and failing to include disclosure of frame damage and bank fees in the advertisement. JS Lovemotors, Inc. is engaged in the business of buying and selling automobiles to the general public. The Plaintiff is represented by: David E. Olsen, Esq. LAW OFFICE OF OLSEN 3013 Wolsey Place Fremont, CA 94555 Telephone: (510) 371-9648 Facsimile: (510) 404-5302 E-mail: lawofficeofolsen@gmail.com KEYNETICS INC: "Silverstein" Second Amended Suit Dismissed ---------------------------------------------------------- Magistrate Judge Donna M. Ryu of the United States District Court for the Northern District of California dismissed Plaintiff's Second Amended Complaint (SAC) in the case captioned, WILLIAM SILVERSTEIN, Plaintiff, v. KEYNETICS INC., et al., Defendants, Case No. 16-CV-00684-DMR (N.D. Cal.). Plaintiff William Silverstein brings the putative class action alleging violations of California's restrictions on unsolicited commercial email. Plaintiff is a member of the group "C, Linux and Networking Group" on LinkedIn, a professional networking website. Through his membership in that group, he received unlawful commercial emails (spam emails) that came from fictitiously named senders through the LinkedIn group email system. The emails originated from the domain "linkedin.com," even though non-party LinkedIn did not authorize the use of its domain and was not the actual initiator of the emails. The court previously dismissed Plaintiff's first amended complaint (FAC) on the ground that Plaintiff's claims were preempted by federal law. In its Seconds Amended Complaint, Plaintiff asserts one claim for relief for violation of California Business and Professions Code section 17529.5, which prohibits certain unlawful activities related to commercial email advertisements. Defendants again argue that Plaintiff's claims are preempted by the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), 15 U.S.C. Sections 7701- 7713. Additionally, Defendants 418 Media and Howes move pursuant to Rule 12(b)(6) to dismiss the Seconds Amended Complaint on the grounds that it is not pled with the requisite specificity and Plaintiff does not plead specific facts regarding Howes's liability. Defendants Keynetics and Click Sales move pursuant to Rule 12(b)(6) for failure to state a claim against Keynetics, and pursuant to Rule 12(b)(2) to dismiss Plaintiff's amended complaint for lack of personal jurisdiction. In her Order dated December 29, 2016 available at https://is.gd/h6MU5B from Leagle.com, Judge Ryu held that Plaintiff's new allegations in the Seconds Amended Complaint do not amount to material falsity or deception that is sufficient to avoid preemption. Plaintiff's claims "relate to, at most, non- deceptive statements or omissions and a heightened content or labeling requirement" are accordingly preempted by the CAN-SPAM Act. William Silverstein is represented by Jimmie Chin Twu, Esq. -- twu@waltontwu.com -- and Timothy James Walton, Esq. -- walton@waltontwu.com -- WALTON TWU LLP Silverstein is also represented by: Mark Etheredge Burton, Jr., Esq. William M. Audet, Esq. Adel A. Nadji, Esq. AUDET & PARTNERS, LLP 711 Van Ness Ave #500, San Francisco, CA 94102 Tel: (415)568-2555 Keynetics Inc., et al. are represented by Rodger R. Cole, Esq. -- rcole@fenwick.com -- Sapna S. Mehta, Esq. -- smehta@fenwick.com -- and Tyler Griffin Newby, Esq. -- tnewby@fenwick.com -- FENWICK & WEST LLP KMART CORPORATION: Fails to Pay Employees OT, "Roselan" Suit Says ----------------------------------------------------------------- Kelliann M. Roselan, individually and on behalf of all other persons similarly situated v. Kmart Corporation, Kmart Corporation of Illinois, Inc., Kmart Holding Corporation, and Sears Holdings Corporation, Case No. 1:16-cv-11667 (N.D. Ill., December 28, 2016), is brought against the Defendants for failure to pay overtime wages for hours worked above 40 in a workweek. The Defendants own and operate retail stores throughout Illinois. The Plaintiff is represented by: Douglas M. Werman, Esq. WERMAN SALAS P.C. 77 West Washington Street, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 Facsimile: (312) 419-1025 E-mail dwerman@flsalaw.com - and - Jeffrey A. Klafter, Esq. Seth R. Lesser, Esq. Fran L. Rudich, Esq. Michael H. Reed, Esq. KLAFTER, OLSEN & LESSER, LLP Two International Drive, Suite 350 Rye Brook, NY 10573 Telephone: (914) 934-9200 Facsimile: (914) 934-9220 - and - Marc S. Hepworth, Esq. David A. Roth, Esq. Charlie Gershbaum, Esq. Rebecca S. Predovan,Esq. HEPWORTH GERSHBAUM & ROTH, PLLC 192 Lexington Avenue Suite 802 New York, NY 10016 Telephone: (212)545-1199 Facsimile: (212)532-3801 - and - Gary E. Mason, Esq. WHITFIELD BRYSON & MASON LLP 1625 Massachusetts Ave., N.W., Suite 605 Washington, DC 20036 Telephone: (202) 429-2294 Facsimile: (202) 429-2294 E-mail: gmason@wbmllp.com - and - Peter Winebrake, Esq. R. Andrew Santillo, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 L'OREAL USA: "Manier" False Advertising Action Goes to S.D.N.Y. --------------------------------------------------------------- District Judge Otis D. Wright, II of the United States District Court for the Central District of California granted proposed Intervenors' motion to intervene and to transfer the action in the case captioned, SHARON MANIER; DOROTHY RILES; Plaintiffs, v. L'OREAL USA, INC; SOFT SHEEN-CARSON, LLC, Defendants, Case No. 2:16-CV-06886-ODW-KS (C.D. Cal.). Plaintiffs Sharon Manier and Dorothy Riles filed the action on September 14, 2016, bringing claims pursuant to California's Consumer Legal Remedies Act, California's False Advertising Law, California's Unfair Competition Law, Illinois's Consumer Fraud and Deceptive Business Practices Act, Breach of Express Warranty, Breach of Implied Warranty and Merchantability, Unjust Enrichment, Fraud, and Negligence. Plaintiffs Manier and Riles's case (the Manier action) is a putative class action alleging that Defendants' product, the SoftSheen Carson Optimum Amla Legend No- Mix, No-Lye Relaxer (the Amla product), is defective and causes injuries including hair loss, scalp irritation, blisters, and burns. Proposed Intervenors Raines, Turnipseed, and Oravillo are named plaintiffs in a Southern District of New York putative class action styled as Jacobs, Raines and Turnipseed v. L'Oreal USA, Inc. and Soft Sheen-Carson, LLC, Case No. 1:16-6593 (S.D.N.Y. 2016) (the Jacobs action). The proposed Intervenors filed the Jacobs action on August 19, 2016. In their complaint, they allege that the Amla product is defective and causes significant hair loss and scalp irritation. The Jacobs action asserts several of the same causes of action as the Manier action in addition to causes of action under New York, Florida, and Kentucky law. Based on the fact that their action is highly similar to the Manier action and was first filed, the proposed Intervenors ask the Court to dismiss, stay, or transfer the case pursuant to the first-to-file rule. In his Order dated January 4, 2017 available at https://is.gd/t5CpVr from Leagle.com, Judge Wright, II found that the Rule 24(b) requirements are met and permits intervention for the limited purpose of filing the motion to dismiss, stay, or transfer the action pursuant to the first-to-file rule. The Court concludes that transfer to the Southern District of New York is most appropriate and will serve the purpose of the first- to-file rule in promoting judicial efficiency. Dorothy Riles, Plaintiff, represented by Benjamin Jared Meiselas, Esq. -- ben@geragos.com -- and Mark John Geragos, Esq. -- mark@geragos.com -- GERAGOS AND GERAGOS APC -- Andrea Clisura, Esq. -- aclisura@zlk.com -- Courtney E. Maccarone, Esq. -- cmaccarone@zlk.com -- and Lori G. Feldman, Esq. -- lfeldman@zlk.com -- LEVI AND KORSINSKY LLP L Oreal USA Inc, et al. are represented by Justin D. Lewis, Esq. -- jlewis@gordonrees.com -- GORDON AND REES LAS VEGAS SANDS: Court Dismisses Claims Against Adelson ------------------------------------------------------- Mike Heuer, writing for Courthouse News Service, reported that there is no evidence Las Vegas Sands owner Sheldon Adelson misled investors about the casinos' fiscal health during the Great Recession, a federal judge in Las Vegas ruled in a securities class action. U.S. District Judge Andrew P. Gordon on January 3, dismissed class claims against Adelson, Las Vegas Sands and former Sands COO William P. Wiedener, and the court closed the case on January 4. Filed in 2010 by lead plaintiff Frank J. Fosbre Jr., the class cited an Aug. 29, 2008, Bloomberg article that reported "Adelson and other Las Vegas Sands executives dismissed concerns that a slowing economy or restrictions on visitors to Macau would impact Macau's result" on Las Vegas Sands share prices. Fosbre said the article showed Adelson misled investors so that Las Vegas Sands would not have to file for bankruptcy during the Great Recession. He said Adelson and other Sands executives made investors think the company was in better financial shape from Aug. 2, 2007, through Nov. 5, 2008, when Las Vegas Sands was developing its Macau gaming operations. The article, however, does not say what Fosbre claims, Gordon wrote in his ruling. Gordon said "it is unclear" why Fosbre cited the Bloomberg article "when simply reading it would show it did not contain the alleged misrepresentation." Fosbre filed an amended class action in 2010, and only cited the Bloomberg article as evidence of Adelson misleading investors, Gordon wrote. Adelson filed a motion for summary judgment and to dismiss all claims based on the Bloomberg article. In Fosbre's reply to the motion, he referenced a Las Vegas Review Journal article in which Adelson is quoted saying "our entire strategy avoids the possibility of an economic slowdown, recession," Gordon wrote. Gordon said discovery in the matter closed long ago, and it's too late for Fosbre to try to enter new evidence into the case through motions. Fosbre "led both this court and defendants to believe the alleged misrepresentation was in the Bloomberg article," Gordon wrote. He said if he let Fosbre suddenly enter new evidence, Adelson would be prejudiced because discovery closed years ago. Fosbre "was not diligent" in amending the complaint when he had "ample opportunity" to do so, Gordon wrote, and said there are no remaining claims in the matter. The Bloomberg article cited by Fosbre does not contain the alleged misrepresentation, and Adelson and the others are entitled to summary judgment, Gordon wrote. Gordon notified both parties of the rules for appeal, and closed the case on January 4. The case is captioned, FRANK J. FOSBRE, JR., individually and on behalf of all others similarly situated, Plaintiffs, v. LAS VEGAS SANDS CORPORATION, SHELDON G. ADELSON, and WILLIAM P. WEIDNER, Defendants, Case 2:10-cv-00765-APG-GWF (D. Nevada, January 3, 2017). LATTICE SEMICONDUCTOR: Shareholders Challenge Canyon Merger ----------------------------------------------------------- Robert Khan, writing for Courthouse News Service, reported that directors are selling Lattice Semiconductor too cheaply through an unfair process to Canyon Bridge Capital Partners, for $8.30 a share or $1 billion, shareholders say in a federal class action in Portland, Ore. The case is captioned, PAUL PARSHALL, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. LATTICE SEMICONDUCTOR CORPORATION; DARIN G. BILLERBECK; JOHN BOURGOIN; ROBIN ABRAMS; BRIAN BEATTIE; ROBERT HERB; MARK JENSEN; JEFF RICHARDSON; FRED WEBER; CANYON BRIDGE CAPITAL PARTNERS, INC.; CANYON BRIDGE ACQUISITION COMPANY, INC.; and CANYON BRIDGE MERGER SUB, INC., Defendants. Case 3:17-cv-00035-SI (D. Or., January 9, 2017). Attorneys for Plaintiff Paul Parshall: Timothy S. DeJong, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. Oak Street, Suite 500 Portland, Oregon 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840 Email: tdejong@stollberne.com - and - Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Telephone: (302) 295-5310 Email: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 995 Old Eagle School Road, Suite 311 Wayne, PA 19087 Tel: (484) 588-5516 LCC INT'L: Kansas Court Won't Reconsider Arbitration Order ---------------------------------------------------------- District Judge Daniel D. Crabtree of the United States District Court for the District of Kansas denied Plaintiffs' motion for reconsideration in the case captioned, RICHARD TORGERSON, et al., Plaintiffs, v. LCC INTERNATIONAL, INC., et al., Defendants, Case No. 16-CV-2495-DDC-TJJ (D. Kan.). Plaintiffs bring the action alleging that defendants LCC International, Inc. (LCC), Kenny Young, Brian Dunn, Rebecca Stahl, and Dan Moss violated the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201 et seq. Specifically, plaintiffs claim that defendants improperly classified all LCC employees working in a Migration Analyst position as employees exempt from the FLSA's overtime requirements. Plaintiffs, on behalf of themselves and other, similarly situated Migration Analysts, seek to recover unpaid overtime compensation under the FLSA. On August 10, 2016, the court granted in part and denied in part defendants' Cross Motion to Dismiss or, in the Alternative, to Stay Proceedings and Compel Arbitration. The court concluded that each plaintiff signed an employment agreement that requires them to arbitrate their FLSA claims. The court granted defendants' request to stay the case and compelled the parties to proceed to arbitration. Also, the court denied the portion of defendants' motion asking the court to decide whether the employment agreement permits class arbitration because it determined that the arbitrator must decide that issue. And, for the same reasons, the court declined to decide plaintiffs' Motion for Conditional Certification of Class Claims Under Section 216(b) of the FLSA without prejudice to their right to present the request to an arbitrator. Plaintiffs seek reconsideration on two bases. First, plaintiffs ask the court to reconsider its decision to compel arbitration because, plaintiffs contend, a recent Tenth Circuit case presents a change in the controlling law that renders the parties' arbitration agreement unenforceable. Second, even if the court declines to reconsider its decision to compel arbitration, plaintiffs ask the court to grant conditional certification of a collective action because, plaintiffs contend, the court must decide the issue -- not the arbitrator -- and, if the court refrains from deciding the issue, plaintiffs and the putative plaintiffs will suffer manifest injustice. In his Memorandum and Order dated January 3, 2017 available at https://is.gd/wjd69p from Leagle.com, Judge Crabtree found that plaintiffs have failed altogether to satisfy their burden to show that the effective vindication exception applies here and the parties must submit their dispute to arbitration. Plaintiffs also provide no basis for the court to reconsider its decision denying without prejudice plaintiffs' Motion for Conditional Class Certification. Robert Hall, et al. are represented by Gregory P. Goheen, Esq. -- ggoheen@mvplaw.com -- and Robert L. Turner, IV, Esq. -- rturner@mvplaw.com -- MCANANY, VAN CLEAVE & PHILLIPS, PAK LCC International, Inc. is represented by Adam R. Roseman, Esq. -- rosemana@gtlaw.com -- James N. Boudreau, Esq. -- boudreauj@gtlaw.com -- and Robert H. Bernstein, Esq. -- bernsteinr@gtlaw.com -- GREENBERG TRAURIG LLP LLOYDS TSB: Offer of Compromise in "Willcox" Suit Approved ---------------------------------------------------------- In the case captioned, BRADLEY WILLCOX, FRANK DOMINICK, and MICHELE SHERIE DOMINICK, Plaintiffs, v. LLOYDS TSB BANK, PLC and DOES 1-15, Defendants, Case No. 13-00508 ACK-RLP (D. Haw.), District Judge Alan C. Kay of the United States District Court for the District of Hawaii granted preliminary approval to Defendant's Offer of Compromise, Plaintiffs' Motion to Approve and Enter Judgment and request for award of attorneys' fees and costs and award for Dr. Bradley Willcox for his role as class representative in the action. The case involves the issuance by Defendant Lloyds TSB Bank PLC, now known as Lloyds Bank PLC (Lloyds), of certain dual currency loans, also referred to as International Mortgage System (IMS) loans. On March 27, 2015, Plaintiffs filed the operative Third Amended Complaint (TAC). The TAC names Frank Dominick, Michele Sherie Dominick, and Bradley Willcox (collectively, Plaintiffs) as class representatives and brings claims against Lloyds for Breach of Contract (Count I) and Breach of an Implied Term Limiting Lloyds' Discretion to Change the Interest Rate (Count II). On July 15, 2015, Plaintiffs filed a Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. Magistrate Judge Puglisi issued his Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs' Motion for Class Certification (F&R) on November 12, 2015 recommending that (1) certifying the case as a class action; (2) appointing Dr. Willcox (but not the Dominicks) as class representative; (3) appointing Alston Hunt Floyd & Ing and Steptoe & Johnson LLP as class counsel; (4) directing the parties to meet and confer regarding notice to class members; (5) denying any remaining relief requested in Plaintiffs' class certification motion; and (6) defining the certified class as "All persons and entities who entered prior to August 2009 into an IMS loan with Lloyds that contained a Hong Kong choice-of-law provision and an interest rate provision based upon Cost of Funds and who are, or were at any time during entering into such an IMS loan, residents or citizens of the State of Hawaii, or owners of property in Hawaii that was mortgaged to secure any such IMS loan." On October 16, 2015, Plaintiffs and Lloyds filed cross-motions for summary judgment. Lloyds moved for summary judgment as to both of Plaintiffs' Counts I and II. Plaintiffs moved for summary judgment only as to their Count I and requested "immediate declaratory relief" as to that claim. On February 11, 2016, the Court issued an Order Denying Plaintiffs' Motion for Partial Summary Judgment on Their and the Putative Class's Claim for Breach of Contract on Count I, Denying Plaintiffs' Request for Declaratory Relief, Granting in Part and Denying in Part Defendant's Motion for Summary Judgment, and Sua Sponte Granting Partial Summary Judgment to Plaintiffs on Count II. Lloyds filed Objections to the F&R on November 25, 2015 to which Plaintiffs filed a Response on December 9, 2015 and on January 8, 2016, the Court issued an Order Adopting in Part, Rejecting in Part, and Modifying in Part the Findings and Recommendations to Grant in Part and Deny in Part Plaintiffs' Motion for Class Certification. On September 11, 2016, Lloyds signed and delivered to Plaintiffs' counsel the Offer of Judgment. Plaintiffs' counsel signed the Offer of Judgment and delivered it upon the Court on September 22, 2016. Pursuant to the Offer of Judgment, Plaintiffs and Lloyds agree as follows: (1) judgment shall be entered in favor of Plaintiffs and each borrower that has not opted out of the certified class as of September 25, 2016; (2) Lloyds shall pay $2,000,000.00 in full and final satisfaction of all relief sought in the TAC; (3) Plaintiffs submitted a Petition in Support of Distribution of Fees and Expenses (Petition), requesting that $800,000.00 of the Judgment amount be apportioned to class counsel as an award for attorneys' fees and costs; and (4) Plaintiffs filed a Supplemental Brief in Support of a Compensation Award for Class Representative (Supplemental Brief), requesting that Dr. Willcox be granted a compensation award of $10,000.00 for his role as class representative. In his Order dated December 14, 2016 available at https://is.gd/d9WOFf from Leagle.com, Judge Kay found that the Notice of the Offer of Judgment was proper and complied with Rule 23(c)(2) and Rule 23(e)(1) and that the terms of the Offer of Judgment provide Plaintiffs with a fair and meaningful resolution of their claims, and the factor therefore weighs in favor of approving the Offer of Judgment. As to the Offer of Judgment the Court found that it provides certainty to class members that they will recover some amount of money, a benefit that cannot be overstated in such a complex case. Lloyds shall then have two weeks from the entry of the final order and judgment to issue payments to class members, Plaintiffs' counsel, and the class representative in accordance with Plaintiffs' proposed distribution, after which Lloyds must file with the Court a notice certifying that such payments have been made and a final class list setting forth (by name and city) the class members bound by the Judgment. Michele Sherie Dominick, et al. are represented by Gary Lombardo, Esq. -- glombardo@steptoe.com -- Morgan Hector, Esq. -- mhector@steptoe.com -- and Steven J. Barber, Esq. -- sbarber@steptoe.com -- STEPTOE & JOHNSON LLP -- Glenn T. Melchinger, Esq. -- GMelchinger@ahfi.com -- and Paul Alston, Esq. -- PAlston@ahfi.com -- ALSTON HUNT FLOYD & ING Lloyds TSB Bank, PLC is represented by Martha S. Sullivan, Esq. -- Martha.sullivan@squirepb.com -- Rebecca W. Haverstick, Esq. -- Rebecca.haverstick@squirepb.com -- and Sean L. McGrane, Esq. -- sean.mcgrane@squirepb.com -- SQUIRE PATTON BOGGS LLP LYFT INC: Sued in N.D. Cal. Over Credit Reporting Violations ------------------------------------------------------------ PETE PETERSON, on behalf of himself and all others similarly situated, the Plaintiff, v. LYFT, INC., the Defendant, Case No. 3:16-cv-07343-LB (N.D. Cal., Dec. 27, 2016), seeks monetary relief from Defendant for failing to comply with the Fair Credit Reporting Act (FCRA). The case is about a consumer class action under the (FCRA), brought on behalf of applicants for employment with Defendant Lyft, a transportation network company. The Plaintiff contends that Lyft systematically violates section 1681b(b)(3) of the FCRA by using consumer reports to make adverse employment decisions without, beforehand, providing the person who is the subject of the report sufficient and timely notification and a copy of the report and a summary of rights under the FCRA, effectively leaving the person who is the subject of the report without any opportunity to correct any errors on the report or to even know in a timely manner who prepared the background report about him or her which formed a basis for the adverse action. Lyft is an American transportation network company based in San Francisco, California. The Plaintiff is represented by: Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643 0500 Facsimile: (212) 253 4272 E-mail: mreese@reesellp.com - and - Melissa Wolchansky, Esq. HALUNEN LAW 1650 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: 612 605 4098 Facsimile: 612 605 4099 E-mail: wolchansky@halunenlaw.com - and - James A. Francis, Esq. John Soumilas, Esq. FRANCIS & MAILMAN, P.C. 100 South Broad Street, Suite 1902 Philadelphia, PA 19110 Telephone: (215) 735 8600 E-mail: jfrancis@consumerlawfirm.som jsoumilas@#consumerlawfirm.com LYTX INC: "Levy" Suit Seeks Back Pay & Damages Under FLSA --------------------------------------------------------- DANIEL LEVY, individually and on behalf of others similarly situated, the Plaintiff, v. LYTX, INC, a Delaware Corporation, the Defendants, Case No. 3:16-cv-03090-BAS-BGS (S.D. Cal., Dec. 27, 2016), seeks to recover back pay, actual damages, and consequential damages pursuant to the Fair Labor Standards Act and the California Labor Code. The complaint says Defendant Lytx failed to compensate its non- exempt employees as required by federal and California law. To cut down on administrative burdens, Lytx, in 2015, required Plaintiff and his colleagues to enter their timekeeping in advance of actually having worked the hours. That is, Lytx instructed employees to input the estimated hours that they believed they would work during the pay period. Lytx then paid Plaintiff and the Class based on these pre-entered hours, rather than for the hours actually worked. Lytx would then, in the following pay period, reconcile by either adding money to employees' checks (to catch up for hours worked in the prior period but never paid) or by subtracting money from what was earned in the next period (to credit Lytx if it had previously over-paid). By these practices, Lytx allegedly violated a whole host of federal and California labor laws that require, for example, the full and timely payment of wages when rightfully earned, the keeping and distribution of accurate payroll and timekeeping records, and laws that prohibit shifting the costs of overhead or doing business over to employees. Lytx, formerly DriveCam, Inc., is a global driver risk management company located in San Diego, California. It specializes in designing, manufacturing and selling video driver safety programs used by commercial fleets. The Plaintiff is represented by: Craig M. Nicholas, Esq. Alex M. Tomasevic, Esq. David G. Greco, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325 0492 Facsimile: (619) 325 0496 E-mail: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org dgreco@nicholaslaw.org MARRIOTT OWNERSHIP: Fails Bid to Disqualify Finerman as Class Rep ----------------------------------------------------------------- In the case, DANIEL FINERMAN, etc., et al., Plaintiffs, v. MARRIOTT OWNERSHIP RESORTS, INC., etc., et al., Defendants, Case No. 3:14-cv-1154-J-32MCR (M.D. Fla.), District Judge Timothy J. Corrigan ruled that: 1. Plaintiffs' Motion for Leave to File a Second Amended Class Action Complaint is granted. No later than January 19, 2017 plaintiffs shall file their Second Amended Class Action Complaint. Defendants shall respond no later than February 10, 2017. 2. Defendants' Motion for Partial Summary Judgment or, in the alternative, to Disqualify Daniel Finerman as Class Representative, and Motion to Dismiss Unjust Enrichment Claim of Plaintiff Donna Devino is denied. 3. Plaintiffs' Motion to Defer Consideration of Defendants' Motion for Partial Summary Judgment, etc. is moot. 4. Plaintiffs' Motion to Compel Answers to Plaintiffs' Request for Admissions is granted. MORI shall serve answers to Plaintiffs' Requests for Admission no later than February 13, 2017. 5. Although MORI has not yet had an opportunity to respond to Plaintiffs' Motion to Compel Document Discovery, the Court will terminate the motion and direct the parties to confer one more time to try to resolve the outstanding discovery. Documents that MORI has agreed to produce should be produced no later than January 23, 2017; by that same date MORI shall state whether it is withholding any responsive materials. If the parties cannot work this out, plaintiffs may renew their motion by February 6, 2017 and MORI shall respond by February 21, 2017. 6. In light of the new deadlines, and to put this case on a realistic schedule, the Court sets the remaining case deadlines and settings as follows: February 15, 2017 -- Disclosure of expert reports March 15, 2017 -- Responses to expert reports April 28, 2017 -- Close of discovery April 28, 2017 -- Parties to file joint notice advising whether they wish to re-engage with their Mediator May 31, 2017 -- Filing of dispositive, Daubert and motions for class certification June 21, 2017 -- Responses to dispositive, Daubert, and class certification motions July 10, 2017 -- Replies on dispositive, Daubert, and class certification motions (limited to 12 pages each) October 17, 2017 -- Argument on dispositive, Daubert, 2:00 p.m. and class certification motions (Courtroom 10D) The Court will set the final pretrial and trial settings as necessary once it rules on the pending motions. In all other respects, the parties shall continue to be governed by the May 5, 2016 Case Management and Scheduling Order. Plaintiffs' Motion to Stay Unexpired Deadlines is moot. In seeking to disqualify Finerman, defendants argue that Finerman could have avoided any damages by cancelling his cruise. The Court, however, held that Finerman has presented evidence that his other vacation options (including not taking one at all) would not have served to mitigate his damages, thus creating at least a genuine issue of disputed fact on this point. The Court also rejects the argument that Finerman's alleged knowledge of any overcharge vitiates his claims, especially where he has presented evidence that his other options left him in a worse position. Defendants also contend that neither Finerman nor Donna Devino can prevail on a claim for unjust enrichment because they do not have evidence to show that either defendant kept any portion of the disputed fee. But discovery is not yet over and, in any event, if plaintiffs paid an amount the defendants should have paid instead, then the defendants might have been unjustly enriched even if they did not themselves retain the sums plaintiffs paid, the Court said, citing Aceto Corp. v. TherapeuticsMD, Inc., 953 F.Supp.2d 1269, 1288-89 (S.D. Fla. 2013). The Court also held that N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672 (Fla. 3d DCA 2000) does not hold otherwise. Whether Finerman is an appropriate class representative should await a determination on plaintiffs' forthcoming motion for class certification. The Court also called out plaintiffs' practice of using footnotes for citations to legal authorities that should be in the text. "The small font is too hard to read and it results in evading the Court's page limitations. See, for example, Doc. 96. Future filings that follow this practice will be stricken. Last, the Court is concerned about the sniping going on in the parties' papers. It is not helpful to the Court and reflects poorly on counsel," Judge Corrigan said. A copy of the Court's order is available at https://goo.gl/F70t2H from Leagle.com. Finerman and Devino are represented by Joel R. Rhine, at Rhine Law Firm, P.C.; John Allen Yanchunis, Sr., Marcio William Valladares, and Patrick A. Barthle, at Morgan & Morgan, PA; and Steven William Teppler, and Brittany R. Ford, at Abbott Law Group, PA. Marriott Ownership Resorts, Inc., a foreign corporation, is represented by David E. Sellinger, Dawn Ivy Giebler-Millner, and Philip R. Sellinger, at Greenberg Traurig LLP. International Cruise & Excursion Gallery, Inc., a foreign corporation, is represented by Brian R. Cummings, Dawn Ivy Giebler-Millner, Jeffrey Aaron Backman, and Richard W. Epstein, Greenspoon Marder, PA. Movants NCL (Bahamas) Ltd., and Oceania Cruises, Inc., are represented by Alex M. Gonzalez, and Eleni S. Kastrenakes, Holland & Knight, LLP. MASTER SERVICES: "McClary" Suit Seeks Damages Under FLSA -------------------------------------------------------- MICHAEL MCCLARY, on behalf of himself and others similarly- situated, the Plaintiff, v. MASTER SERVICES, INC., the Defendants, Case No. 3:16-cv-03501-B (N.D. Tex., Dec. 27, 2016), seeks to recover legal and equitable relief, liquidated damages, and other fees and expenses including, without limitation, costs of court, expenses, and attorneys' fees pursuant to the Fair Labor Standards Act (FLSA). Plaintiff McClary is one of a number of service technicians and manufacturers who are or were formerly employed by Defendant and whose compensation was improper under the FLSA because Defendant failed and refused to compensate Plaintiffs for their overtime hours worked. As their employer, the Defendant required and/or permitted Plaintiff and the other service technicians and manufacturers to routinely work in excess of 40 hours per week, but failed or refused to compensate them for such overtime hours worked in accordance with the FLSA. Specifically, Plaintiff and other service technicians and manufacturers were misclassified as exempt employees although they did not meet the duties test for any FLSA exemption and further did not meet the salary basis test for FLSA exemption, as evidenced by Defendant's payroll deductions, but Defendant failed to compensate them at a rate of at least one-and-one-half times their regular hourly rate for hours worked in excess of 40 hours per week. Such conduct by Defendant was a violation of the FLSA which requires non-exempt employees to be compensated for their overtime work at a rate of at least one-and-one-half times their regular hourly rate. Master Services is a residential heating, cooling and plumbing company. The Plaintiff is represented by: Corinna Chandler, Esq. CHANDLER LAW, P.C. 3419 Westminster Ave No. 343G Dallas, TX 75205 Telephone: (972) 342 8793 Facsimile: (972) 692-5220 E-mail: chandler@chandlerlawpc.com MCDONALD'S CORP: Court Denies Class Cert. in "Salazar" Suit ----------------------------------------------------------- Maria Denzio, writing for Courthouse News Service, reported that a federal judge in San Francisco, on January 5, ruled workers at eight McDonald's franchises cannot prove enough of them knew they were working for the fast-food corporation rather than franchisees to proceed with a wage theft class action. U.S. District Judge Richard Seeborg denied the 1,200 workers class certification under the theory of ostensible agency, where a franchisor can be believed to be acting on behalf of the parent company. Cashiers Guadalupe Salazar, Genoveva Lopez and Judith Zarate, sued McDonald's and franchise owner Bobby Haynes in March 2014, claiming they were denied meal and rest breaks and that McDonald's miscalculated their wages. The Haynes Partnership has owned eight franchises in Oakland and San Leandro since 2010. Ruling on McDonald's motion for summary judgment back in August, Seeborg observed that Haynes controlled hiring, firing, discipline, wage-setting and the employees' general working conditions. Seeborg dismissed the workers' claims against McDonald's based on actual agency because McDonald's didn't make direct personnel decisions. The Haynes Partnership settled with the workers in 2015, allowing the class to go forward on the ostensible agency claim against McDonald's, but Seeborg ruled there isn't enough evidence to show a common set of circumstances classwide. "Even interpreting broadly the rule that ostensible agency may be inferred from circumstances, plaintiffs' factual showing falls short," he said. Though their attorneys argued that the workers wore McDonald's branded uniforms, received paychecks bearing the McDonald's logo, received McDonald's orientation packets and watched McDonald's training videos, Seeborg said some workers received different information that led them to believe Haynes was their employer. "These differences preclude an inference of common belief among class members. Indeed, the record shows that some class members understand that McDonald's does not employ them, while others do not," Seeborg wrote. "Here, the information that any crew member knew or should have known varies. For example, some crew members are told at or near the time of their hire that they were employees of Haynes and/or that they were not employees of McDonald's," he added. "Some of Haynes' family members tell new hires that Haynes is their employer during new-hire orientation conducted at Haynes' offices. Likewise, some shift managers and general managers tell crew members that the Haynes family owns their restaurant." Attorney Michael Rubin with Altshuler Berzon, who represents the workers, said Seeborg's ruling may have a silver lining, as the workers will be able to present their joint-employer theory to the Ninth Circuit. "We're disappointed, but in the long run it may be for the best," Rubin said in an interview on January 5. "The key issue in this case has always been McDonald's liability as a joint employer. Ostensible agency was never our principal legal theory, but it gave us two bites at the liability apple. The consequence of Seeborg's ruling is undoubtedly that we will get the principal joint-employer issue adjudicated much more quickly with far less expenditure of time and money than if we first went through a classwide ostensible agency trial." McDonald's attorney, Lawrence Di Nardo with Jones Day, did not respond to a phone request for comment. The case is captioned, GUADALUPE SALAZAR, et al., Plaintiffs, v. MCDONALD'S CORP., et al., Defendants, Case 3:14-cv-02096-RS (N.D. Cal., January 5, 2017). MEDTRONIC INC: Securities Fraud Suit Not Barred, 8th Cir. Says -------------------------------------------------------------- Circuit Judge Raymond W. Gruender of the Court of Appeals, Eighth Circuit, vacated a summary judgment order and remanded for further proceedings the action captioned, West Virginia Pipe Trades Health & Welfare Fund; Employees' Retirement System of the State of Hawaii; Union Asset Management Holding AG, Plaintiffs-Appellants, v. Medtronic, Inc.; William A. Hawkins; Gary L. Ellis; Richard E, Kuntz; Julie Bearcroft; Richard W. Treharne; Martin Yahiro, Defendants-Appellees, Thomas A. Zdeblick; J. Kenneth Burkus; Scott D. Boden, Defendants, Case No. 15-3468 (8th Cir.). West Virginia Pipe Trades Health and Welfare Fund, Employees' Retirement System of the State of Hawaii, and Union Asset Management Holding AG are retirement and investment funds who brought a consolidated class action for securities fraud against Medtronic, Inc. and several of its officers and senior managers for actions related to Medtronic's INFUSE product. INFUSE is the trade name of rhBMP-2, a bone morphogenetic protein that causes the body to develop new bone tissue. Appellants filed suit on June 27, 2013 against Medtronic, its officers and senior managers, and the doctors who authored the Medtronic-sponsored clinical studies. Appellants alleged a number of securities laws violations, including making false statements and employing a scheme to defraud the market. The district court initially dismissed Appellants' scheme liability claims against the physician-authors and dismissed some of the false statement claims against Medtronic. However, the district court did not dismiss one false statement claim, the scheme liability claim, or the control liability claim against Medtronic. The litigation proceeded, and Medtronic eventually moved for summary judgment on all claims. The district court granted the motion, holding that the two-year statute of limitations barred all claims. Appellants appeal in their securities fraud class action alleging that conduct beyond mere misrepresentations or omissions actionable under Rule 10b-5(b). Appellants' scheme liability claim alleges that Medtronic shaped the content of medical journals by "paying physicians to induce their complicity in concealing adverse events and side effects associated with the use of INFUSE and overstating the disadvantages of alternative bone graft procedures." In her Opinion dated December 1, 2016 available at https://is.gd/ZSLNcV from Leagle.com, Judge Gruender concluded that Appellants' scheme liability claim is not barred because Medtronic's alleged deceptive conduct goes beyond mere misrepresentations or omissions and that the causal connection between the suppliers and the falsified financial statements was too attenuated to support a finding of market reliance where the suppliers' conduct did not satisfy any presumption of reliance and the investing public did not have knowledge of the suppliers' deceptive acts. Medtronic, et al. are represented by James Kevin Langdon, II, Esq. -- langdon.jim@dorsey.com -- Peter William Carter, Esq. -- carter.pete@dorsey.com -- Theresa Marie Bevilacqua, Esq. -- bevilacqua.theresa@dorsey.com -- DORSEY West Virginia Pipe Trades Health & Welfare Fund, et al. are represented by Andrew Love, Esq. -- love@wrightclose.com -- WRIGHT & CLOSE LLP -- Carolyn Glass Anderson, Esq. -- carolyn.anderson@zimmreed.com -- ZIMMERMAN REED MINACS GROUP: CSRs Class Certification Sought in "Anderson" Suit ---------------------------------------------------------------- The Plaintiff in the lawsuit titled BRENDA ANDERSON, individually, and on behalf of others similarly situated v. THE MINACS GROUP (USA) INC., A Delaware Corporation, Case No. 2:16-cv-13942-NGE-SDD (E.D. Mich.), pursuant to the Fair Labor Standards Act, moves for entry of an order: (1) conditionally certifying the proposed FLSA collective; (2) approving the Plaintiff's proposed "Notice of Right to Join Lawsuit" and "Consent to Join Lawsuit" forms and authorizing Plaintiff's counsel to circulate the Proposed Notice via first-class mail and e-mail to the proposed FLSA collective, defined as: All current and former hourly customer service representatives who worked for Defendant in its Farmington Hills, Michigan call center at any time during the last three years; In addition, Plaintiff's counsel requests permission to send each member of the proposed FLSA collective a text message notifying them of their right to opt in to the case; (3) requiring the Defendant to identify all potential opt-in plaintiffs by providing their names, last known addresses, dates of employment, job titles, phone numbers, and e-mail addresses in an electronic and importable format within 10 days of the entry of the order; and (4) allowing putative FLSA collective members 60 days from circulation of the notice to file written consent forms. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=aZdgNpSe The Plaintiff is represented by: Nicholas Conlon, Esq. Jason T. Brown, Esq. JTB LAW GROUP, LLC 155 2nd Street, Suite 4 Jersey City, NJ 07302 Telephone: (201) 630-0000 E-mail: nicholasconlon@jtblawgroup.com jtb@jtblawgroup.com - and - Jesse L. Young, Esq. Charles R. Ash, IV, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MI 48076 Telephone: (248) 355-0300 E-mail: jyoung@sommerspc.com crash@sommerspc.com MITCHELL RUBENSTEIN: Court Awards $35,000 in Attorneys' Fees ------------------------------------------------------------ District Judge George J. Hazel of the United States District Court for the District of Maryland granted the request of Christopher Garza and George Easton Jr. for attorneys' fees, arising out of their successful class action lawsuit against Mitchell Rubenstein & Associates, P.C. for violations of the Fair Debt Collection Practice Act. The case is, CHRISTOPHER GARZA et al., Plaintiffs, v. MITCHELL RUBENSTEIN & ASSOCIATES, P.C., Defendant, Case No. GJH-15-1572 (D. Md.). The case began as a class action lawsuit against Defendant for violating Section 1692g(a)(4) of the Fair Debt Collection Practice Act (FDCPA), by failing to provide proper disclosures for how consumers could verify and dispute the legitimacy of the debts they owed. Plaintiffs filed a Consent Motion for Settlement. Following a settlement hearing on April 25, 2016, the Court entered an Order of Final Approval of Class Action Settlement. The settlement agreement included, in relevant part, that Defendant would pay the two named Plaintiffs, Garza and Easton, $1,000.00 each, and that it would create a common fund in the amount of $12,425.00 to be distributed on a pro rata basis to each of the 884 class members. In addition, as highlighted in Plaintiffs' Consent Motion for Settlement, Defendant agreed to change the language in its debt collection letters going forward, to address Plaintiffs' concerns. Plaintiffs also moved for an award of attorneys' fees and costs. In their motion, Plaintiffs noted that, pursuant to the settlement agreement. Defendant would not oppose the first $20,000.00 in requested fees and expenses, and that Plaintiffs would not seek more than $35,000.00 in fees and expenses. Defendant submitted a Response to Plaintiff's Motion on April 25, 2016, amended on April 26, 2016, arguing that the Court should award Plaintiff only $20,000.00 in fees and expenses. Plaintiffs filed a Reply in support of their Motion on May 12, 2016, reiterating their request for $35,000.00 in fees and expenses. They noted that GDR attorneys had dedicated an additional 32.2 hours on the case, bringing the total compensable hours to 131.4 hours, and submitted a final bill of expenses totaling $1,166.52, a slight downward departure from their previous estimate. In his Memorandum Opinion dated December 27, 2016 available at https://is.gd/0Ho3yW from Leagle.com, Judge Hazel held that the record justifies a total award of $35,098.75 in attorney's fees; and costs totaling $1,166.52. The Defendant does not challenge those amounts. The parties, however, have agreed to limit the total award for attorney's fees and costs to $35,000 and the Court, therefore, awards that amount. George E. Eason, Jr., et al. are represented by Jesse S. Johnson, Esq. -- jjohnson@gdrlawfirm.com -- GREENWALD DAVIDSON RADBIL PLLC -- Eric N. Stravitz, Esq. -- eric@stravitzlawfirm.com -- STRAVITZ LAW FIRM, PC Mitchell Rubenstein & Associates, P.C. is represented by Ronald S. Canter, Esq. -- rcanter@roncanterllc.com -- THE LAW OFFICES OF RONALD S CANTER LLC NECA/IBEW FAMILY: Refuses to Cover Autism Therapy, Suit Says ------------------------------------------------------------ Robert Khan, writing for Courthouse News Service, reported that the 82,000-member NECA/IBEW Family Medical Plan unfairly refuses to cover medically necessary applied behavior analysis and neurodevelopmental therapies for autism spectrum disorders, parents claim in a federal class action in Seattle. The case is captioned, D.T., by and through his parents and guardians, K.T. and W.T., individually, on behalf of similarly situated individuals, and on behalf of the NECA/IBEW Family Medical Care Plan, Plaintiff, v. NECA/IBEW FAMILY MEDICAL CARE PLAN, THE BOARD OF TRUSTEES OF THE NECA/IBEW FAMILY MEDICAL CARE PLAN, SALVATORE J. CHILIA, ROBERT P. KLEIN, DARRELL L. MCCUBBINS, GEARY HIGGINS, LAWRENCE J. MOTER, JR., KEVIN TIGHE, JERRY SIMMS, AND ANY OTHER INDIVIDUAL MEMBER OF THE BOARD OF TRUSTEES OF NECA/IBEW FAMILY MEDICAL CARE PLAN, Defendants. Case 2:17-cv-00004 (W.D. Wash., January 4, 2017). Attorneys for Plaintiff: Eleanor Hamburger, Esq. Richard E. Spoonemore, Esq. SIRIANNI YOUTZ SPOONEMORE HAMBURGER 701 Fifth Avenue, Suite 2560 Seattle, WA 98104 Tel: (206) 223-0303 Fax: (206) 223-0246 E-mail: rspoonemore@sylaw.com ehamburger@sylaw.com NEW CENTURY: Cohn Seeks Prelim. Approval of $50,445 Settlement -------------------------------------------------------------- The Plaintiff in the lawsuit styled HENDY COHN, on behalf of herself and the class defined herein v. NEW CENTURY FINANCIAL SERVICES, INC., and PRESSLER & PRESSLER, LLP, Case No. 1:14-cv- 02855-RER (E.D.N.Y.), asks the Court to enter an order which: (i) preliminarily approves the proposed class settlement agreement; (ii) certifies for settlement purposes the Settlement Class as defined in Paragraph 8 of the Agreement; (iii) appoints Shimshon Wexler, Esq., and Jacob Scheiner, Esq., as Class Counsel; (iv) appoints the Plaintiff as representative of the Settlement Class; (v) sets dates for Settlement Class members to return a claim form, opt-out of, or object to, the Agreement; (vi) schedules a hearing for final approval of the Agreement; (vii) approves the mailing of proposed notice to Settlement Class members; and (viii) finds that the mailing of such notice satisfies the requirements of due process. In her memorandum of law in support of the Motion, Ms. Cohn alleges that the Defendant engaged in false and misleading collection practices and, thereby, violated the Fair Debt Collection Practices Act by sending consumers collection letters, which allegedly seek unauthorized, unwarranted, excessive, and unlawful charges to the alleged debts of the Plaintiff and the Class members. The Parties have stipulated to certification of this class for settlement purposes only: All persons to whom Defendant, Pressler & Pressler, LLP, from May 6, 2013 through July 15, 2016, sent to a New York address a collection letter with respect to a consumer debt where the collection letter included language stating that there was an "Amount Sought: $[amount] which includes filing and service costs of $[amount]" and the letter was not returned undeliverable to Pressler & Pressler, LLP. The Defendants have produced business records which indicate that there are 13,452 people in the Settlement Class. The Defendants will create a class settlement fund of $50,445, which the Plaintiff's counsel will distribute pro rata among those Settlement Class Members, who do not exclude themselves and who timely return a claim form. Claimants will receive a pro rata share of the Class Recovery by check. The Defendants will pay $1,000 to Ms. Cohn for her statutory damages, plus an additional $1,000 in recognition for her services to the Settlement Class. The Defendants agree that she is the successful party and further agrees to pay reasonable attorneys' fees and costs as the Court may award for prosecution of a "successful action." A copy of the Memorandum is available at no charge at http://d.classactionreporternewsletter.com/u?f=mpmktCZe The Plaintiff is represented by: Shimshon Wexler, Esq. THE LAW OFFICES OF SHIMSHON WEXLER, P.C. 216 W 104th St., Suite #129 New York, NY 10025 Telephone: (212) 760-2400 Facsimile: (917) 512-6132 E-mail: shimshonwexler@yahooo.com - and - Jacob Scheiner, Esq. LAW OFFICES OF JACOB J. SCHEINER, PC 568 Church Avenue Woodmere, NY 11598 Telephone: (516) 284-6282 E-mail: Jacob@scheineresq.com NISSAN NORTH AMERICA: Sunroofs Spontaneously Shatter, Suit Says --------------------------------------------------------------- Robert Khan, writing for Courthouse News Service, reported that Nissan/Infiniti panoramic sunroofs spontaneously shatter, and Nissan has not recalled them, as other automakers have, a class action claims in Fairfield, Calif., Solano County Court. The case is captioned Janelle Horne, individually and on behalf of all others similarly situated, Plaintiff, v. Nissan North America, Inc., a Delaware corporation and Nissan Motor Co., Ltd., a Delaware corporation, Defendants, Case No. FCS048206 (Cal. Super. Ct., January 4, 2017). Attorneys for Plaintiff and the Putative Class: Jeffrey R. Krinsk, Esq. A. Trent Ruark, Esq. FINKELSTEIN & KRINSK LLP 550 West C. St., Suite 1760 San Diego, CA 92101 Tel: 619-238-1333 Fax: 619-238-5425 E-mail: jrk@classactionlaw.com atr@classactionlaw.com NORTH CAROLINA: Faces "Smith" Suit in E.D.N.C. ------------------------------------------------- A class action lawsuit has been filed against the US District Court in North Carolina. The case is captioned as David L. Smith and others similarly situated, the Plaintiff, v. US District Court, Bryan K. Wells Superintendent, Officer Pridgen, and Officer Murphy, and the Defendants, Case No. 5:16-ct-03345-FL (E.D.N.C., Dec. 27, 2016). The case is assigned to Hon. District Judge Louise Wood Flanagan. The US District Courts are the general trial courts of the United States federal court system. The Plaintiff appears pro se. NORTHLAND GROUP: Faces "Yablonsky" Suit in E.D.N.Y. --------------------------------------------------- A class action lawsuit has been filed against Northland Group Inc. The case is styled as Judah Yablonsky on behalf of himself and all other similarly situated consumers, the Plaintiff, v. Northland Group Inc., the Defendant, Case No. 1:16-cv-07123 (E.D.N.Y., Dec. 27, 2016). Northland Group provides business process outsourcing services focused on accounts. The Plaintiff is represented by: Maxim Maximov, Esq. MAXIM MAXIMOV, LLP 1701 Avenue P Brooklyn, NY 11229 Telephone: (718) 395 3459 Facsimile: (718) 408 9570 E-mail: m@maximovlaw.com NYC WHEELS: "Nazarov" Suit Seeks Unpaid Overtime Under FLSA ----------------------------------------------------------- BATIR NAZAROV, individually and on behalf of all others similarly situated, the Plaintiff, v. NYC Wheels Car Service, INC., and Arsen Avakyan, the Defendants, Case No. 1:16-cv-07117 (E.D.N.Y., Dec. 27, 2016), seeks to recover unpaid overtime wages, liquidated damages, reasonable attorneys' fees and costs pursuant to the New York Labor Law (NYLL) and the Fair Labor Standards Act (FLSA). The Defendants paid Plaintiff $14 per hour for some but not all hours worked, which is far below the overtime rate of one and one- half times the regular hourly rate as required by law for all hours worked in excess of 40 hours per week. NYC Wheels Car Service, Inc., based in Brooklyn, New York, offers limousine services. The Plaintiff is represented by: Gennadiy Naydenskiy, Esq. 1517 Voorhies Ave., 2nd Fl. Brooklyn, NY 11235 Telephone: (718) 808 2224 E-mail: naydenskilaw@gmail.com OTTER PRODUCTS: Sued Over Illegal Shipping and Handling Fees ------------------------------------------------------------ Maria Williams, on her own behalf and on behalf of all other similarly situated persons v. Otter Products, LLC and Does 1 through 50, inclusive, Case No. BC645165 (Cal. Super. Ct., December 29, 2016), seeks to end Otter's unlawful business practice of charging a shipping and handling fee in connection with warranty repairs. Otter Products, LLC designs and manufactures protective solutions for handheld manufacturers, wireless carriers, and distributors. The Plaintiff is represented by: Eugene E. Siegel, Esq. LAW OFFICE OF EUGENE E. SIEGEL P.O. Box 363 Littlerock, CA, 93543 Telephone: (661) 944-3676 Facsimile: (661) 944-2201 E-mail: siegel@qnet.com - and - James S. Kostas, Esq. KOSTAS LAW FIRM 1008 West Avenue M-14, Suite A Palmdale, CA, 93551 Telephone: (661) 202-2444 Facsimile: (661) 267-6066 E-mail: jkostas@kostaslaw.com OVERFLOW ENERGY: Fails to Pay Employees OT, "Sober" Suit Claims --------------------------------------------------------------- Jennifer Sober, individually and on behalf of all others similarly situated v. Overflow Energy, LLC, and Duwane Skipper, Case No. 2:16-cv-00277-J (N.D. Tex., December 29, 2016), is brought against the Defendants for failure to pay overtime compensation for hours worked in excess of 40 hours in a single week. Overflow Energy, LLC provides products and services in the oil and gas industry, throughout the United States. The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com PARK UNIVERSITY: "Champagne" Suit Removed to W.D. Mo. Ct. --------------------------------------------------------- The class action lawsuit titled D.J. Champagne, Joy Piazza, and Matthew LaRose, Individually & on behalf of all others similarly situated, the Plaintiffs, v. Park University, Jerry Jorgensen, and Roger Dusing, Case No. 16-AE-CV03542, was removed from the Circuit Court of Platte County, Missouri, to the U.S. District Court for Western District of Missouri (St. Joseph). The District Court Clerk assigned Case No. 5:16-cv-06172-BCW to the proceeding. The case is assigned to Hon. District Judge Brian C. Wimes. Park University is a private institution that was founded in 1875. The Plaintiffs are represented by: Michael Anthony Williams, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 876 2600 Facsimile: (816) 221 8763 E-mail: mwilliams@williamsdirks.com The Defendants are represented by: Adam Jameson Hoskins, Esq. Hayley Elizabeth Hanson, Esq. Sean Tassi, Esq. HUSCH BLACKWELL LLP - KCMO 4801 Main Street, Suite 1000 Kansas City, MO 64112 Telephone: (816) 983 8349 Facsimile: (816) 983 8080 E-mail: adam.hoskins@huschblackwell.com hayley.hanson@huschblackwell.com sean.tassi@huschblackwell.com PENNSYLVANIA HIGHER EDUCATION: Teachers Sue over Federal Grants --------------------------------------------------------------- Brian Grosh, writing for Courthouse News Service, reported that two teachers filed a class-action lawsuit in Akron, Ohio accusing the student-aid organization that services their federal grants of converting the grants into interest-bearing loans based on a technicality. According to the complaint filed on January 6, in Akron federal court, Ashley Ford and David West were awarded thousands of dollars in federal grants through a student-aid program known as Teacher Education Assistance for College and Higher Education, or TEACH. Ford is a special education teacher at Stanton Middle School in Kent, Ohio, while West teaches art at White Knoll High School in Lexington, S.C. Those who receive grants under the TEACH program agree to complete specific service obligations to receive up to $4,000 per year toward the cost of college courses necessary to begin a career in teaching. The service obligations, which are laid out on the Federal Student Aid website, require that grant recipients teach at least four years in a high-need field at an elementary school, secondary school, or educational service agency that serves students from low-income families. The government's website explains that TEACH grants do not need to be repaid unless a recipient fails to complete their service obligation, at which point the grant is converted into a direct unsubsidized loan that accrues interest from the date the grant was disbursed. Grant recipients are also required to submit annual paperwork certified by the chief administrative officer of their school to prove they are fulfilling their service obligations. Ford and West claim defendant Pennsylvania Higher Education Assistance Agency, or PHEAA, and its subsidiary, FedLoan Servicing, hastily converted their grants into interest-bearing loans after they submitted annual certification paperwork that contained minor mistakes or omissions. The teachers say they quickly corrected their respective mistakes and informed PHEAA they were in fact fulfilling their obligations, but the organization refused to convert the loans back to grants and saddled them with debt based on a technicality. "This action seeks to protect teachers," the class-action lawsuit states. "Teachers are a vital centerpiece to the success and growth of this country. The strength of every profession grows out of the knowledge and skills that teachers instill in our country's youth. Yet, teachers are too often underappreciated, undercompensated, and undervalued. Worse, teachers are being taken advantage of and cheated by PHEAA." Attorney Troy Doucet of Dublin, Ohio represents Ford and West in their lawsuit. He claims PHEAA, which was hired by the federal government to be the exclusive servicer of TEACH grants in 2013, is knowingly converting grants to unsubsidized, interest-bearing loans without justification as part of a scheme to defraud grant recipients and increase its profits. Doucet cites a 2015 report prepared by the U.S. Government Accountability Office, which found that at least 2,252 grants were erroneously converted to loans in 2014. The same report also found that the U.S. Department of Education and loan servicers do not give grant recipients enough information about disputing grant-to-loan conversions. Ford and West's lawsuit accuses PHEAA of violating the Racketeer Influenced and Corrupt Organizations, or RICO, Act. They also seek damages for claims of breach of contract and unjust enrichment. Keith New, director of public and media relations for PHEAA, said the agency declines to comment on pending litigation, but that it administers the TEACH grant program according to the rules and procedures established by the U.S. Department of Education, which owns all of the assets in the program. The case is captioned, Ashley Ford 137 Lincoln Ave. Cuyahoga Falls, OH 44221. and David West 1001 Elm Avenue Columbia, SC 29205. On behalf of Themselves and all Others similarly situated, Plaintiffs, v. Pennsylvania Higher Education Assistance Agency d/b/a FedLoan Servicing C/O CT Corporation System Dauphin 116 Pine Street, Suite 320 Harrisburg, PA 17101 Defendant, Case: 5:17-cv- 00049-SL (N.D. Ohio, January 6, 2017). Attorney for Plaintiff: Troy J. Doucet, Esq. DOUCET & ASSOCIATES CO., LPA 700 Stonehenge Parkway, 2B Dublin, OH 43017 Tel: (614) 944-5219 Fax: (818) 638-5548 E-mail: Troy@TroyDoucet.com PEP BOYS-MANNY: "Silver" Suit Moved from Super. Ct. to D.N.J. ------------------------------------------------------------- The class action lawsuit titled DEBRA A. SILVER, on behalf of herself and those similarly situated, the Plaintiff, v. PEP BOYS- MANNY, MOE, & JACK OF DELAWARE, INC., JANE AND JOHN DOES 1-10, individually and as owners, officers, directors, founders, managers, agents, employees and/or representatives of PEP BOYS- MANNY, MOE & JACK OF DELAWARE, INC., and XYZ CORPORATIONS 1-10, Case No. MER-L2305-16, was removed from the Superior Court of New Jersey, Mercer County, to the U.S. District Court for the District of New Jersey (Trenton). The District Court Clerk assigned Case No. 3:17-cv-00018-FLW-LHG to the proceeding. The case is assigned to Hon. Judge Freda L. Wolfson. Pep Boys-Manny offers automobile repair services. The Plaintiff is represented by: Sean F. Forlenza, Esq. THE LAW OFFICE OF SEAN F. FORLENZA 1043 Hughes Drive Hamilton, NJ 08690 Pep Boys-Manny, Moe, & Jack of Delaware, Inc. is represented by: DAVID R. KOTT, Esq. MCCARTER & ENGLISH, LLP Four Gateway Center 100 Mulberry Street PO Box 652 Newark, NJ 07101-0652 Telephone: (973) 622 4444 E-mail: dkott@mccarter.com PINNACLE FOODS: Court Stays "Clardy" Product Mislabeling Action --------------------------------------------------------------- District Judge Jon S. Tigar of the United States District Court for the Northern District of California granted Defendant Pinnacle Foods Group, LLC's Motion to Transfer the Action or, in the Alternative, to Stay Proceedings as well as Pinnacle's Motion to Dismiss in the case captioned, GAIL CLARDY, et al., Plaintiffs, v. PINNACLE FOODS GROUP, LLC, Defendant, Case No. 16-CV-04385-JST (N.D. Cal.). In his Order dated January 5, 2017 available at https://is.gd/66Lehh from Leagle.com, Judge Tigar found that transfer is not appropriate on these facts, a stay is. Plaintiffs will not be prejudiced by a stay, but Defendant will suffer hardship and inequity if the action is not stayed. On August 2, 2016, Diane Biffar filed a class action against Defendant in the Southern District of Illinois. The Biffar action alleges that Defendant engaged in "deceptive, unfair, and false practices regarding its Duncan Hines Simple Mornings Blueberry Streusel Premium Muffin Mix." Specifically, Biffar alleges "Defendant prominently represents that the Product contains 'Nothing Artificial,'" when, in fact, the product "contains synthetic, artificial, and/or genetically modified ingredients." Consequently, Biffar argues "Defendant is able to entice consumers like Biffar to pay a premium for the Product" because "neither Biffar nor any reasonable consumer would expect to find artificial, synthetic, and/or GMO ingredients in a product labeled as containing 'Nothing Artificial.'" The Biffar action is brought on behalf of two classes: (1) the Illinois Class and (2) the Nationwide Class. The Nationwide Class consists of "all citizens of all states other than Missouri who purchased the Product for personal, household, or family purposes and not for resale in the five years preceding the filing of the Petition." Plaintiffs Gail Clardy and Jennifer Rose filed their lawsuit on August 3, 2016, one day after the Biffar action was filed. The Clardy action alleges "Defendant has unlawfully, negligently, unfairly, misleadingly, and deceptively represented that its Duncan Hines Simple Mornings Blueberry Streusel Premium Muffin Mix and other products contain 'Real Ingredients' and 'Nothing Artificial,' despite containing unnatural ingredients that are synthetic, artificial, and/or genetically modified." The Clardy action is brought on behalf of three classes: (1) a California Class; (2) a Florida Class; and (3) a Nationwide Class. The Nationwide Class consists of "all United States residents who purchased the Product, for personal use and not resale, during the four-year period preceding to the date of the filing of the Complaint, through and to the date Notice is provided to the Class." Defendant moves to transfer the action under the first-to-file rule or, in the alternative, to stay the action under either the first-to-file rule or the primary jurisdiction doctrine. Defendant has also filed a separate Motion to Dismiss. Within 10 court days of any of the foregoing events, the parties are ordered to file an Updated Joint Case Management Statement and a written request that the Court set a Case Management Conference. Jennifer Rose, et al. are represented by Benjamin Michael Lopatin, Esq. -- BLopatin@ELPLawyers.com -- and Maximillian D. Casillas, Esq. -- Mcasillas@ELPLawyers.com -- EGGNATZ LOPATIN & PASCUCCI, LLP Pinnacle Foods Group, LLC is represented by Paul B. LaScala, Esq. -- plascala@shb.com -- and Mayela C. Montenegro, Esq. -- mmontenegro@shb.com -- SHOOK, HARDY & BACON L.L.P POULSEN PIZZA: "Hoffman" Class Action Settlement, Fees Okayed ------------------------------------------------------------- District Judge Daniel D. Crabtree of the United States District Court for the District of Kansas granted a renewed motion to approve collective action settlement and amended application for fees and costs in the case captioned, KENNETH HOFFMAN, et al., Plaintiffs, v. POULSEN PIZZA LLC, et al., Defendants, Case No. 15- 2640-DDC-KGG (D. Kan.). Plaintiff Kenneth Hoffman, on behalf of himself and others similarly situated, filed this lawsuit under the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201 et seq. Plaintiff alleges that defendants -- who operate some 33 Domino's franchise restaurants -- use a flawed method to reimburse pizza delivery drivers for the "reasonably approximate costs" of using their personal vehicles for business purposes. Plaintiff asserts that this flawed method causes delivery drivers to incur unreimbursed expenses and reduces their wages below the federal minimum wage during some or all workweeks. Plaintiff seeks to recover unpaid minimum wages under the FLSA that defendants allegedly owe plaintiff and similarly situated delivery drivers who have worked at defendants' Domino's restaurants. On June 9, 2015, the parties filed a Joint Motion to Approve Stipulated Form of Notice of Collective Action. The parties reported that they had agreed on an proposed order conditionally certifying the case as an FLSA collective action. They also asked the court to approve a Notice of Collective Action and order the parties to send the Notice to a putative class consisting of all current and former delivery drivers employed by defendants since they purchased their Domino's restaurants to the present. On June 17, 2015, the court granted the parties' Joint Motion. The court conditionally certified the putative class and approved all stipulations contained in the parties' joint motion, including the agreed-upon Notice of Collective Action. On November 10, 2015, the parties advised the court that they had reached a settlement and were finalizing a settlement agreement. The parties eventually signed a "Confidential Settlement and Release Agreement." The parties have agreed to allocate the $132,000 common fund as follows: (1) $2,000 service award to the named plaintiff; (2) $44,000 (representing one-third of the common fund) to plaintiff's counsel as payment for all attorney's fees, costs, and expenses; (3) An amount not to exceed $3,000 to plaintiff's counsel for out- of-pocket costs incurred in the litigation; and (4) The amount remaining (after the deductions recited above) to the 137 collective action members distributed on a pro rata basis using an equitable formula based on the number of delivery miles driven by each opt-in plaintiff On December 18, 2015, plaintiff filed an Unopposed Motion to Approve Collective Action Settlement and Application for Fees and Costs. Plaintiff asked the court to approve the "Confidential Settlement and Release Agreement" and award plaintiff's counsel their attorney's fees and costs. The court denied those motions without prejudice. The court explained that it could not approve the settlement for three reasons: (1) plaintiff had not sought final collective action certification; (2) the settlement agreement was not fair and reasonable because it included a confidentiality provision; and (3) the court could not approve the proposed service award because plaintiff had not submitted information sufficient for the court to assess the award's reasonableness. The court also denied plaintiff's request for attorney's fees and costs. It concluded that the request was premature because the court could not approve the settlement agreement. Plaintiff filed a Renewed Motion to Approve Collective Action Settlement and an Amended Application for Fees and Costs. In his two Motions, plaintiff asks the court to certify a final collective action, approve the settlement as fair and reasonable, and award the proposed attorney's fees and costs in an amount equal to one-third of the settlement plus recovery of out-of- pocket expenses. In his Memorandum and Order dated January 3, 2017 available at https://is.gd/mpldfF from Leagle.com, Judge Crabtree concluded that final collective action certification is appropriate and certified a final collective action consisting of employees who worked as pizza delivery drivers for defendants' Domino's restaurants since defendants purchased their stores to the present. The court approved the proposed FLSA collective action settlement finding the Amended Agreement is fair and reasonable. Victoria Plunkett, et al. are represented by Jack D. McInnes, V, Esq. -- mcinnes@paulmcinnes.com -- and Richard M. Paul, III, Esq. -- paul@paulmcinnes.com -- PAUL MCINNES, LLP -- Mark A. Potashnick, Esq. -- markp@wp-attorneys.com -- WEINHAUS & POTASHNICK Poulsen Pizza LLC, et al. are represented by Gregory D. Ballew, Esq. -- gballew@fisherphillips.com -- John Hagood Tighe, Esq. -- htighe@fisherphillips.com -- and Karen Luchka Wingo, Esq. -- lwingo@fisherphillips.com -- FISHER & PHILLIPS, LLP PRESSLER AND PRESSLER: "Zambrana" Class Suit Goes to Arbitration ---------------------------------------------------------------- In the case captioned, ALICIA ZAMBRANA, on behalf of herself and others similarly situated, Plaintiff, v. PRESSLER AND PRESSLER, LLP; SHELDON H. PRESSLER, GERARD J. FELT; LAWRENCE J. MCDERMOTT, JR.; DAVID B. WARSHAW; ARISTOTLE SANGALANG; ABSOLUTE RESOLUTIONS VI, LLC; BUREAUS INVESTMENT GROUP PORTFOLIO NO. 15 LLC; THE BUREAUS, INC.; and BUREAUS INVESTMENT GROUP III, LLC; Defendants, Case No. 16-CV-2907 (VEC) (S.D.N.Y.), District Judge Valerie Caproni of the United States District Court for the Southern District of New York granted Defendants' motion to compel arbitration based on the arbitration provision in Plaintiff's cardholder agreement. Plaintiff Alicia Zambrana brings the putative class action against various assignee creditors of a credit card account originated by Household Bank N.A. and the assignee creditors' agents, alleging violations of the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. Sec. 1692, and New York General Business Law Section 349. Plaintiff applied for and received a Best Buy-branded credit card from Household Bank N.A. The account's activation date is unclear, but Plaintiff entered into a cardholder agreement as of at least 2003. The 2003 Agreement includes an arbitration provision. In May 2010, HSBC allegedly sent an amended cardholder agreement (2010 Agreement) in response, at least in part, to new requirements imposed by the Credit Card Accountability Responsibility Disclosure Act (CARD Act). The 2010 Agreement has a revised arbitration provision that includes the ability to opt out of arbitration if notice was given within thirty days of receipt of the new agreement. Plaintiff did not opt out of arbitration and continued to use the credit card until 2011. In mid-2012, Plaintiff defaulted on her credit card debt, and Capital One charged off the account. Id. After various assignments, Defendant assignee Absolute filed suit in New York State court through its attorneys, Pressler & Pressler, LLP, in order to collect Plaintiff's debt; that suit is currently pending. In response to that state court action, Plaintiff filed a suit against Pressler & Pressler, individual lawyers at Pressler & Pressler, the Bureaus Inc., Aristotle Sangalang, who is president of the Bureaus Inc. and various creditor assignees alleging violation of the FDCPA and New York General Business Law Section 349. Plaintiff claims that the state court action is an abusive debt collection practice in violation of the FDCPA because there are false and misleading statements and omissions in Absolute's complaint against Plaintiff. Defendants move to stay the action and to compel arbitration. Plaintiff opposes asserting that because Defendants have not proven that HSBC sent the 2010 Agreement to her specifically, although they did send it to other cardholders, not only is the 2003 Agreement superseded and of no effect, but the 2010 Agreement is also inoperative. Further, because Defendants have not shown that she was sent the 2010 Agreement, her failure to opt out of arbitration, she asserts, is of no moment. In her Memorandum Opinion and Order dated December 2, 2016 available at https://is.gd/keWsKX from Leagle.com, the Court found that a valid arbitration agreement exists, it covers the dispute, and Defendants have standing to compel arbitration pursuant to the agreement. Alicia Zambrana is represented by: Mitchell L. Pashkin, Esq. MITCHELL L. PASHKIN 775 Park Ave, Ste 555 Huntington, NY 11743 Tel: (631)388-6466 - and - David Michael Barshay, Esq. BAKER SANDERS, LLC 100 Garden City Plaza Suite 500 (5th Floor) Garden City, NY 11530 Tel: (516)741-4799 Absolute Resolutions VI, LLC, et al. are represented by Dara Chevlin Tarkowski, Esq. -- dara.tarkowski@akerman.com -- Alyx Siobhan Pattison, Esq. -- alyx.pattison@akerman.com -- Julian Dayal, Esq. -- julian.dayal@akerman.com -- and Mark Stuart Lafayette, Esq. -- mark.lafayette@akerman.com -- AKERMAN LLP Pressler and Pressler, LLP, et al. are represented by: Michael Jon Peters, Esq. PRESSLER AND PRESSLER Counsellors at Law 7 Entin Rd. Parsippany, NJ 07054-9944 Tel: (973)753-5100 PRONAI THERAPEUTICS: "Book" Securities Case Removed to N.D. Cal. ---------------------------------------------------------------- Christopher Book, individually and on behalf of all others similarly situated, Plaintiff, v. ProNAi Therapeutics, Inc., Nick Glover, Sukhi Jagpal, Donald Parfet, Albert Cha, Nicole Onetto, Robert Pelzer, Peter Thompson, James Topper, Alvin Vitangcol, Jefferies LLC, Meryll Lynch, Pierce, Fenner and Smith, Inc., Wedbush Securities, Inc. and Suntrust Robinson Humphrey, Inc., Defendants, Case No. 5:16-cv-07408, (Cal. Super., November 18, 2016), has been removed to the U.S. District Court for the Northern District of California on December 30. 2016. ProNAi Therapeutics is a drug development company focused on advancing targeted therapeutics for the treatment of patients with cancer. Plaintiff is represented by: Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 Defendants are represented by Joshua D. Lichtman, Esq. John C. Gray, Esq. NORTON ROSE FULBRIGHT US LLP 555 South Flower Street, Forty-First Floor Los Angeles, CA 90071 Telephone: (213) 892-9200 Facsimile: (213) 892-9494 Email: Joshua.Lichtman@nortonrosefuIbright.com John.Gra1@nortonrosefulbright.com - and - Robin D. Adelstein, Esq. NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas New York, NY 10019-6022 Telephone: (212) 3] 8-3000 Facsimile: (212) 31 8-3400 Email: robin.adelsteinfalnortonrosefulbrightcom - and - Peter A. Stokes, Esq. NORTON ROSE FULBRIGHT US LLP 98 San Jacinto Boulevard, Suite 1100 Austin, TX 78701-4255 Telephone: (512) 474-5201 Facsimile: (512) 536-4598 Email: peter.stokes@nortonrosefulbright.com ROYAL CARE: Doesn't Properly Pay Employees, "Rakhimova" Suit Says ----------------------------------------------------------------- Feruza Rakhimova, individually and on behalf of all others similarly situated v. The Royal Care Inc., and Royal Care Certified Home Health Care, LLC, Case No. 523060/2016 (N.Y. Sup. Ct., December 28, 2016), is brought against the Defendants for failure to pay time and one half the minimum wage rate for hours worked in excess of 40 in a work week and to provide pay stubs and other wage notices that conform with the requirements of the New York Labor Law. The Defendants own and operate a home health care facility located at 6323 14th Avenue, Brooklyn, NY, 11219. The Plaintiff is represented by: Gennadiy Naydenskiy, Esq. NAYDENSKIY LAW GROUP, P.C. 1517 Voorhies Ave, 2nd Fl. Brooklyn, NY 11235 Telephone: (718)808-2224 Facsimile: (866) 261-5478 E-mail: naydenskiylaw@gmail.com ROYAL OAK: Certification of Class Sought in "Bystry" Suit --------------------------------------------------------- The Plaintiff in the lawsuit captioned DUSTY A. BYSTRY, on behalf of himself and all others similarly situated v. ROYAL OAK INDUSTRIES, INC., d/b/a ROYAL OAK BORING, INC. and BRONSON PRECISION PRODUCTS, INC., Case No. 1:16-cv-00210-JTN-ESC (W.D. Mich.), moves for class certification under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=I0IxzKAt The Plaintiff is represented by: Rene S. Roupinian, Esq. Jack A. Raisner, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-mail: jar@outtengolden.com rsr@outtengolden.com ROYAL WINDOWS: $290,000 Damages Award Flipped in Ketch Inc. Suit ---------------------------------------------------------------- Chief Judge Jerry L. Goodman of the Oklahoma Court of Civil Appeals affirmed an order granting summary judgment on liability and reversed the grant of $290,000 in damages in the case captioned, KETCH, INC., an Oklahoma Corporation on Behalf of Itself and All Others Similarly Situated, Plaintiff/Appellee, v. ROYAL WINDOWS, INC., a Texas Corporation, Defendant/Appellant, Case No. 113986 (Okla. Civ. App.). Ketch, Inc., et al. was a customer of Royal Windows, Inc. from 2001. On March 20, 2008, Ketch requested a 2008 catalogue from Royal. On March 26, 2008, Royal sent Ketch a facsimile advertisement. The advertisement included Royal's contact information, address, and facsimile number. On July 17, 2008, Ketch filed a class action petition against Royal under the TCPA, 47 U.S.C. Section 227 et seq., asserting the facsimile did not include required opt-out language, i.e., if you had received the facsimile in error, please call to be removed. On December 18, 2009, the trial court granted Ketch's motion for class certification. On April 12, 2013, Ketch filed its first amended motion for summary judgment, asserting it was entitled to relief under the TCPA. Ketch asserted, inter alia, that all facsimile advertisements, whether solicited or unsolicited, must contain the opt-out language or liability attached. Ketch maintained Royal's facsimiles did not contain the required opt-out notice and were therefore in violation of the TCPA. Royal responded, disputing Ketch's assertions. Although Royal acknowledged its facsimile advertisements did not contain any opt-out notice, it asserted the TCPA only requires the opt-out language for unsolicited facsimile advertisements. The trial court, by order entered on October 4, 2013, granted Ketch's motion for summary judgment, finding "all faxes, including faxes sent where the advertiser and recipient have an established business relationship, must contain a notice allowing the recipient to 'opt-out' of receiving additional faxes." Ketch subsequently filed a motion for summary judgment on damages, asserting Royal sent a facsimile to the 103 Class Members between three and seven times from August 1, 2006, to July 17, 2008, for total damages in the amount of $303,500.00. Ketch further requested treble damages, asserting Royal willfully and knowingly violated the TCPA. Royal disagreed, asserting material disputed factual questions existed regarding the number of TCPA violations allegedly committed and the entities that comprise the class. By order entered on May 1, 2015, the trial court granted Ketch's motion for summary judgment, finding 580 facsimile advertisement violations. The court awarded $290,000.00 in damages. The court denied Ketch's request for treble damages. On appeal, (1) Royal asserts a question of fact exists as to whether the facsimile advertisements sent to Ketch and other Class Members were solicited or unsolicited, precluding summary judgment. Royal contends only unsolicited facsimile advertisements are subject to the TCPA, i.e., must contain opt-out language; (2) Royal contends there are material disputed factual questions regarding the number of TCPA violations it allegedly committed as well as the entities that comprise the actual class. In his Order dated December 14, 2016 available at https://is.gd/UmrwCB from Leagle.com, Judge Goodman affirmed the trial court's October 4, 2013 order granting Ketch summary judgment because Royal has violated the TCPA, as amended by the JFPA; but reversed the trial court's May 1, 2015, order granting Ketch damages in the amount of $290,000.00 finding that summary judgment was erroneously granted on the issue of damages. "The evidentiary material offered by Ketch in support of its motion reveals material questions of fact as to the number of TCPA violations. Thus, we conclude summary judgment was erroneously granted on the issue of damages. The trial court's May 1, 2015, order granting Ketch damages in the amount of $290,000.00 is therefore reversed and the matter is remanded for further proceedings consistent with this opinion," the Court said. Ketch, Inc. is represented by Matthew J.G. McDevitt, Esq. -- mcdevitt@lytlesoule.com -- and Shawn E. Arnold, Esq. -- arnold@lytlesoule.com -- LYTLE, SOULE & CURLEE Royal Windows, Inc. is represented by: Jeffrey J. Box, Esq. JEFFREY J. BOX, P.C. 2621 S Western Ave Oklahoma City, OK 73109 Tel: (405)600-9918 SHELBY COUNTY, TN: Arrestees File Suit over Court Software ---------------------------------------------------------- Kevin Lessmiller, writing for Courthouse News Service, reported that a class of arrestees claims a new computer system implemented in Memphis kept them detained longer than they should have been, echoing complaints in Texas and California about the same software. Cortez D. Brown, Deontae Tate and Jeremy S. Melton say they were jailed in Shelby County, Tenn., in November 2016 and were detained for days after they should have been released because of an October 2016 software switch. The trio sued Shelby County, Tyler Technologies Inc., Sheriff Bill Oldham and three other county employees in Memphis federal court on January 9, claiming the county ignored "dire warnings" about its new Odyssey computer software, a platform developed by Tyler. "The county's unreasonably inefficient implementation of the Odyssey system constituted deliberate indifference with respect to plaintiffs and the class members thereafter by causing inmates to linger for days and weeks in the jail in direct violation of their constitutional rights," the complaint states. According to the class-action lawsuit, Brown was arrested on Nov. 6 on a petition for revocation of his suspended sentence and was taken into custody. A judge dismissed the charges the next day, but Brown says he was not released until a week later. Tate claims he was jailed the same day as Brown for failure to appear for a court date for a suspended license charge. "At the time of his arrest, plaintiff possessed $255 in cash and, therefore, plaintiff Tate instructed officers at the jail to deducted $100 from his property so as to post bond and secure his release," the lawsuit states. "Plaintiff Tate was repeatedly told that he was not in the computer system and thus that he could not post bond. Plaintiff Tate lingered in the jail until November 11, 2016, at which time defendants finally allowed him to post bond and released him." Melton was arrested Nov. 10 on a misdemeanor charge of possession of a controlled substance, according to the complaint. He says his charges were dismissed four days later but he was held another four days because his dismissal order was not in the computer system. Brown, Tate and Melton say Shelby County's use of Odyssey has deprived hundreds of arrestees of their constitutional rights. "Defendants, with deliberate indifference, failed and refused to process and arraign arrestees so that their bonds could even be set, causing them to be detained for days and even weeks without a bond setting. The county further failed to release prisoners whose cases had been dismissed, detaining them for days and weeks before determining that there were court orders dismissing the charges against them," the complaint states. "The county's deliberate inaction caused many persons who had been arrested and released to be re-arrested on the same warrant, again in violation of their constitutional rights." The proposed class seeks at least $5.4 million in compensatory damages for each class members for claims of negligence and civil rights violations. The arrestees are represented by Frank Watson III of Watson Burns, Joseph Ozment and Lorna McClusky of Massey McClusky, all based in Memphis. The Shelby County Sheriff's Office did not immediately respond on January 10, to an emailed request for comment. The Odyssey system has reportedly caused problems in other states as well. Robert Oyung, director of information technology for the California Judicial Council Technology Committee, said in November that courts already have reported 52 major issues with the new platform. The issues lie mostly with general functionality, interfacing with the Department of Motor Vehicles or implementing specific case types. For example, Alameda County Superior Court has reported problems with clerks trying to enter data into the new system, which it attributes to an unwieldy interface. On January 9, Tennessee lawsuit also notes alleged problems with Odyssey in Ector County and Cameron County, Texas. In 2011, Ector County experienced data loss and other problems so significant that it refused to pay Tyler Technologies, according to the complaint. Three years later, Cameron County reportedly had problems tracking its inmates because of Odyssey. Despite the reported issues, San Diego announced a $6.8 million deal in 2014 to implement Tyler's Odyssey software. The contract breaks down to a one-time license fee of just over $3 million plus $3.7 million for data conversion and training, according to a court spokesperson. The agreement also calls for a yearly maintenance fee of $640,000. The case is captioned, CORTEZ D. BROWN, DEONTAE TATE, and JEREMY S. MELTON on behalf of themselves and all similarly situated persons, PLAINTIFFS, v. BILL OLDHAM, in his individual capacity and in his official capacity as the Sheriff of Shelby County, Tennessee; ROBERT MOORE, in his individual capacity and in his official capacity as the Jail Director of the Shelby County, Tennessee; CHARLENE McGHEE, in her individual capacity and in her official capacity as the of Assistant Chief Jail Security of Shelby County, Tennessee; DEBRA HAMMONS, in her individual capacity and in her official capacity as the Assistant Chief of Jail Programs of Shelby County, Tennessee; SHELBY COUNTY, TENNESSEE, a Tennessee municipality; and TYLER TECHNOLOGIES, INC., a foreign corporation DEFENDANTS. Case 2:17-cv-02015 (W.D. Tenn., January 9, 2017). Counsel for Plaintiffs and the putative Class Members: Frank L. Watson, III, Esq. William F. Burns, Esq. WATSON BURNS, PLLC 253 Adams Avenue Memphis, TN 38104 Tel; (901) 529-7996 Fax: (901) 529-7998 E-mail: fwatson@watsonburns.com bburns@watsonburns.com - and - Joseph S. Ozment, Esq. THE LAW OFFICE OF JOSEPH S. OZMENT, PLLC 1448 Madison Ave. Memphis, TN 38104 Tel: (901) 525-4357 Email: jozment@oz-law.net - and - Lorna S. McClusky, Esq. MASSEY, MCCLUSKY, MCCLUSKY & FUCHS 3074 East Road Memphis, TN 38128 Tel: (901) 384-4004 E-mail: lsmcclusky@gmail.com SOLARCITY CORP: Arbitration Agreement Unenforceable, Court Says --------------------------------------------------------------- Justice Patricia Bamattre-Manoukian of the California Court of Appeals affirmed the denial of the defendant's motion to compel arbitration in the case captioned, WAYNE JENN-WEI WAN, Plaintiff and Respondent, v. SOLARCITY CORPORATION, Defendant and Appellant, Case No. H042103 (Cal. App.). Plaintiff Wayne Jenn-Wei Wan filed a civil action against his former employer, defendant SolarCity Corporation, alleging a representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA). Plaintiff alleges, among other matters, that defendant failed to pay all wages owed, and he seeks to recover civil penalties on behalf of himself and other current and former employees. Defendant moved to compel arbitration of whether plaintiff was an "aggrieved employee" under PAGA (Section 2699, subd. (a)), pursuant to an arbitration agreement that the parties had entered when plaintiff was hired. Defendant also initially sought to dismiss plaintiff's PAGA claim on behalf of others based on the contention that the parties' arbitration agreement contained a waiver of such a claim, but it later requested that arbitration of the "aggrieved employee" issue proceed first and that judicial proceedings be stayed. The trial court denied the motion to compel arbitration. The court determined that a waiver of plaintiff's right to bring a PAGA claim was unenforceable, and that defendant could not compel plaintiff to arbitrate the aggrieved employee issue before pursuing his PAGA claim in court. On appeal, defendant contends that the trial court erred by refusing to order arbitration of the issue of plaintiff's "aggrieved employee status" and by failing to stay judicial proceedings pending arbitration of that issue. In her Order dated January 3, 2017 available at https://is.gd/e0Xdlg from Leagle.com, Judge Bamattre-Manoukian held that the trial court therefore properly denied defendant's motion to compel arbitration because the provision in the parties' arbitration agreement requiring arbitration of the "aggrieved person" issue is not enforceable and the court erroneously failed to stay judicial proceedings pending arbitration. SOLAZYME INC: Securities Action Dismissed with Leave to Amend ------------------------------------------------------------- District Judge Haywood S. Gilliam, Jr. of the United States District Court for the Northern District of California granted both motions to dismiss with leave to amend in the case captioned, NORFOLK COUNTY RETIREMENT SYSTEM, et al., Plaintiffs, v. SOLAZYME, INC., et al., Defendants, Case No. 15-CV-02938-HSG (N.D. Cal.). The case is a consolidated putative securities class action brought against Defendant Solazyme, Inc. and other defendants pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. Sections 78j(b), 78t(a), and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (Securities Act), 15 U.S.C. Sections 77k, 77o. Before the Court are two motions to dismiss brought by two sets of defendants pursuant to Federal Rule of Civil Procedure 12(b)(6): Goldman, Sachs & Company and Morgan Stanley & Company, LLC, and Solazyme. Additionally, the Underwriter Defendants join Solazyme's motion to dismiss. Plaintiffs argue that the heightened pleading requirement does not apply to Counts III-V, arguing these claims sound in negligence, not fraud, and thus are subject only to Rule 8's pleading standards. In his Order dated December 29, 2016 available at https://is.gd/YRpTrb from Leagle.com, Judge Gilliam, Jr. held that Plaintiffs have failed to plead with particularity the requisite false or misleading statement. The Court directed the plaintiffs to file any amended complaint within 28 days of the date of the order. Norfolk County Retirement System is represented by Joel H. Bernstein, Esq. -- jbernstein@labaton.com -- Mark S. Arisohn, Esq. -- marisohn@labaton.com -- Michael Walter Stocker, Esq. -- mstocker@labaton.com -- and Corban S. Rhodes, Esq. -- crhodes@labaton.com -- LABATON SUCHAROW LLP -- Matthew Seth Melamed, Esq. -- mmelamed@rgrdlaw.com -- Willow E. Radcliffe, Esq. -- willowr@rgrdlaw.com -- and Shawn A. Williams, Esq. -- shawnw@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP James Ackels, et al. are represented by Joel H. Bernstein, Esq. -- jbernstein@labaton.com -- LABATON SUCHAROW LLP Solazyme, Inc., et al. are represented by Mark R.S. Foster, Esq. -- mfoster@mofo.com -- MORRISON & FOERSTER LLP Goldman, Sachs & Co., et al. are represented by Simona Gurevich Strauss, Esq. -- gstrauss@stblaw.com -- SIMPSON THACHER & BARTLETT LLP SOUTHERN CALIFORNIA GAS: Faces "Jalbuena" Suit Over Gas Leak ------------------------------------------------------------ Amel B. Jalbuena, Mildred A. Jalbuena, Arnica A. Jalbuena, Amel A. Jalbuena II, Alexander A. Jalbuena, Aaron A. Jalbuena, Alyanna A. Jalbuena, a minor by and through her guardian ad litem Amel B. Jalbuena, Cleofe B. Jalbuena, Angelo Jalbuena, a minor by and through his guardian ad litem Cleofe B. Jalbuena, Peter B. Jalbuena, Antonette D. Jalbuena, Jakob D. Jalbuena a minor by and through his guardian ad litem Antonette B. Jalbuena, Isabel D. Jalbuena, a minor by and through her guardian ad litem Antonette B. Jalbuena, Corazon Albano, Gilbert Albano, Marc Guico Albano, Marco Gil Albano, Marian Albano Eulalia Badar, and Philipp Fresolone, individually and on behalf of all others similarly situated v. Southern California Gas Company ("SoCal Gas"), Sempra Energy ("Sempra"), State of California, Division of Oil, Gas & Geothermal Resources ("Doggr") and Does 1-100, Case No. BC645099 (Cal. Super. Ct., December 29, 2016), is an action for damages arising from ongoing uncontrolled natural gas leak at the Defendants' Aliso Canyon natural gas storage facility, causing the release of dangerous gases, chemicals, and noxious odors into the environment and, specifically, into the community of Porter Ranch immediately adjacent to the Aliso Canyon facility, wherein Plaintiffs and the putative Class members reside. Southern California Gas Company and Sempra Energy operate a gas distribution utility, providing natural gas to consumers throughout Central and Southern California. The State of California, Department of Conservation, Division of Oil, Gas & Geothermal Resources is the state agency that oversees the drilling, operation, maintenance of SoCal Gas. The Plaintiff is represented by: Amel B. Jalbuena, Esq. LAW OFFICES OF ARNEL B. JALBUENA 3250 Wilshire Boulevard, Suite 2003 Los Angeles, CA 90010 Telephone: (213) 487-8600 Facsimile: (213) 487-8608 E-mail: jalbuenalaw@gmail.com SOUTHERN INDUSTRIAL: Rule Moves for Certification of FLSA Class --------------------------------------------------------------- The Plaintiffs in the lawsuit titled SHANNON RULE and KARINA ESQUIVEL, on behalf of themselves and all others similarly situated v. SOUTHERN INDUSTRIAL MECHANICAL MAINTENANCE COMPANY, LLC, Case No. 5:16-cv-01408-EEF-KLH (W.D. La.), ask the Court to conditionally certify and authorize the issuance of notices to this proposed class of persons: All individuals employed within the last three years by the Defendant, who were paid a regular hourly rate and per diem without receiving overtime compensation at one-and-a-half times their regular rate, including per diems, for hours worked in excess of forty during a workweek. According to the memorandum filed in support of the motion for conditional certification, the Plaintiffs have brought the lawsuit as a representative action pursuant to the Fair Labor Standards Act, on behalf of themselves and all other similarly-situated current and former employees of the Defendant for, inter alia, unpaid wages and overtime, liquidated damages, and attorney's fees and costs. A copy of the Memorandum is available at no charge at http://d.classactionreporternewsletter.com/u?f=Cq9Lxdl3 The Plaintiffs are represented by: Christopher L. Williams, Esq. WILLIAMS LITIGATION, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 Telephone: (504) 308-1438 Facsimile: (504) 308-1446 E-mail: chris@williamslitigation.com - and - Jody Forester Jackson, Esq. Mary Bubbett Jackson, Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Telephone: (504) 599-5953 Facsimile: (888) 988-6499 E-mail: jjackson@jackson-law.net mjackson@jackson-law.net STAFFWORKS LLC: "Armenta" Labor Suit Seeks OT Pay Recovery ---------------------------------------------------------- Flora Armenta, individually and on behalf of others similarly situated, Plaintiff, v. Staffworks, LLC, a California limited liability company, Defendants, Wedbush Securities, Inc. and Suntrust Robinson Humphrey, Inc., Defendants, Case No. 3:17-cv- 00011, (S.D. Cal., January 3, 2017), seeks minimum wages, overtime, expense reimbursement, restitution of all funds unlawfully acquired, injunction to prohibit StaffWorks to engage in its unfair business practices, actual damages or statutory penalties according to proof as set forth in California Labor Code, pre-judgment interest as allowed by California Labor Code and California Industrial Wage Commission Wage Orders, reasonable attorneys' fees, expenses and costs as provided by California Labor Code and the federal Fair Labor Standards Act. StaffWorks owns an employment or staffing agency where it recruited, solicited, hired and employed temporary service employees performing services for its clients in numerous different industries. Plaintiff is represented by: Craig M. Nicholas, Esq. Alex Tomasevic, Esq. David G. Greco, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 Email: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org dgreco@nicholaslaw.org - and - Noam Glick, Esq. GLICK LAW GROUP, P.C. 225 Broadway, Suite 2100 San Diego, CA 92101 Telephone: (619) 382-3400 Facsimile: (619) 615-2193 Email: noam@glicklawgroup.com STERICYCLE INC: Faces "Martinez" Suit in California Super. Ct. -------------------------------------------------------------- A class action lawsuit has been filed against Stericycle Inc. The case is captioned as Jose Martinez, individually and on behalf of the general public, the Plaintiff, v. Does 1-100 and Stericycle Inc., the Defendants, Case No. 34-2016-00205563-CU-OE-GDS (Cal. Super. Ct., Dec. 29, 2016). Stericycle is a compliance company that specializes in collecting and disposing regulated substances, such as medical waste and sharps, pharmaceuticals, hazardous waste, and providing services for recalled and expired goods. The Plaintiff is represented by: William Turley, Esq. THE TURLEY LAW FIRM 7428 Trade St. San Diego, CA 92121 Telephone: (619) 234 2833 SZECHUAN RESTAURANT: "Galeana" Labor Case to Recover Overtime Pay ----------------------------------------------------------------- Manuel Alberto Galeana, individually and on behalf of others similarly situated, Plaintiff, v. Szechuan Restaurant of Columbus, Inc., Ah-Fong Chang and Mary Doe, Case No. 1:17-cv-00008, (S.D.N.Y., January 1, 2017), seeks unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and for violations of New York Labor Laws for denying spread of hours and overtime wages, including applicable liquidated damages, interest, attorneys' fees and costs. Empire Szechuan is a restaurant owned by Ah-Fong Chang and Mary Doe located at 193 Columbus Avenue, New York, New York 10023 where Galeana has worked as a dishwasher and cook in excess of 40 hours per week, without appropriate minimum wage and overtime compensation as well as the required "spread of hours" pay for any day in which he has had to work over 10 hours a day. Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Tel: (212) 317-1200 TCC WIRELESS: Faces "Wolfe" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Jonathan Wolfe, on behalf of himself and similarly situated employees v. TCC Wireless, LLC, Case No. 1:16-cv-11663 (N.D. Ill., December 28, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. TCC Wireless, LLC operates over 30 stores in Illinois. The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. WERMAN SALAS P.C. 77 West Washington Street, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com - and - Peter Winebrake, Esq. R. Andrew Santillo, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 E-mail: pwinebrake@winebrakelaw.com asantillo@winebrakelaw.com TERRAVIA HOLDINGS: Faces "Daniil" Securities Suit in N.D. Cal. -------------------------------------------------------------- Dimitrios Daniil, individually and on behalf of all others similarly situated, Plaintiff, v. Terravia Holdings, Inc., Jonathan S. Wolfson, Apurva S. Mody and Tyler W. Painter, Defendants, Case No. 3:16-cv-07388, (N.D. Cal., December 29, 2016), seeks to recover compensable damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. TerraVia creates and sells food, nutrition, and specialty ingredients from algae. Its platform uses microalgae to produce high-value triglyceride oils, proteins, fibers, micronutrients, and other ingredients, including algal flour. Defendants failed to disclose that the ingestion of its algal flour caused gastrointestinal distress, including nausea and vomiting and that algal flour is not a likely competitive product in the market for nutrition foods. On this news, TerraVia's share price fell $0.15, or 8.11%, to close at $1.70 on November 7, 2016, damaging investors, such as the Plaintiff. Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ, LLP 468 North Camden Drive Beverly Hills, CA 90210 Telephone: (818) 532-6499 E-mail: jpafiti@pomlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com TEVA PHARMACEUTICAL: Faces Leone Securities Class Action in Cal. ---------------------------------------------------------------- ANTHONY LEONE, Individually and on behalf of all others similarly situated, the Plaintiffs, v. TEVA PHARMACEUTICAL INDUSTRIES LIMITED, EREZ VIGODMAN, EYAL DESHEH, and KOBI ALTMAN, the Defendants, Case No. 2:16-cv-09545 (C.D. Cal., Dec. 27, 2016), seeks to recover compensable damages caused by Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934 (Exchange Act). On August 4, 2016, Teva filed a report on Form 6-K with the SEC, reporting the Company's financial and operating results for the quarter ended June 30, 2016. For the quarter, Teva reported net income of $254 million, or $0.20 per diluted share, on revenue of $5.04 billion, compared to net income of $539 million, or $0.63 per diluted share, on revenue of $4.97 billion for the same period in the prior year. During the Class Period, the Company and the Individual Defendants, individually and in concert, directly or indirectly, disseminated or approved the false statements specified above, which they knew or deliberately disregarded were misleading in that they contained misrepresentations and failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. Teva primarily develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines. The Plaintiffs are represented by: Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201 9150 Facsimile: (310) 201 9160 E-mail: info@glancylaw.com TILE SHOP: Excessive Deduction Class Certified in "Osorio" Suit --------------------------------------------------------------- The Hon. Matthew F. Kennelly grants the Plaintiff's motion for class certification in part and denies it in part in the lawsuit styled ADRIEL OSORIO, on behalf of himself and all similarly situated persons v. THE TILE SHOP, LLC, Case No. 1:15-cv-00015 (N.D. Ill.). In his memorandum opinion and order, Judge Kennelly declines to certify the proposed unpaid overtime class proposed by the Plaintiff but certifies the proposed excessive deduction class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, defined as: All persons employed in a Tile Shop retail store in the State of Illinois, except store managers, who had a deduction made to a paycheck received at any time from January 2, 2005 up to and including the date of trial, in order to recoup a cash advance where the deduction was in excess of 15% of the gross pay received in that paycheck. Judge Kennelly appoints Mark Bulgarelli, Esq., and Ilan Chorowsky, Esq., as counsel for the plaintiff class. Adriel Osorio, who worked as a sales associate in the Company's Skokie, Illinois retail store, alleges that Tile Shop failed to pay overtime wages in violation of the Fair Labor Standards Act and the Illinois Minimum Wage Law. He also alleges that Tile Shop made excessive deductions from its employees' wages in violation of the Illinois Wage Payment and Collection Act. In his Motion, the Plaintiff seeks to certify two classes -- one for each of his state law claims -- pursuant to Rule 23(b)(3). Judge Kennelly, however, opined that certification of the proposed unpaid overtime class under Rule 23(b)(3) would be inappropriate. A copy of the Memorandum Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=EjhXz3zt UBER TECHNOLOGY: Riders' Attorneys to Appeal Ruling --------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that attorneys for a proposed class of Uber riders on January 5, vowed to fight to stop Uber from forcing claims over bogus cancellation fees into arbitration and denying their clients the right to a jury trial. The attorneys said they would appeal a ruling U.S. District Judge Richard Seeborg issued shortly after a hearing on January 5, granting Uber's motion to compel arbitration. Seeborg found Uber's process for getting users to waive their right to sue is sufficient. Class attorney Kristopher Badame disagreed. "It would be a historic case for California if by simply downloading an app you've agreed to terms and conditions whether you acknowledge them or not," Badame said shortly after the hearing. Seeborg rejected arguments that lead plaintiff Michael Cordas never saw a link to the terms and conditions when he signed up for Uber, or that the sign-up process did not adequately warn users they were agreeing to waive their right to seek justice through the courts. Class co-counsel Joseph Hunter said his client and other Uber users were unlikely to see "tiny little words" in gray type at the bottom of the final sign-up page that link to Uber's terms and conditions. Hunter called Uber's sign-up process, which required users to click "Done" as the last step to consent to terms and conditions, a "browsewrap" agreement, which is unenforceable under California law. He said it does not meet the requirements of a legal "clickwrap" agreement, which must unambiguously inform a user of the terms to which he or she is consenting. But Seeborg disagreed, saying browsewrap agreements are deemed unenforceable because they lack interactive components, which is not the case here. "They're interacting with the process," Seeborg said. "That's fundamentally different. You're clicking a button. That's a big deal." Hunter pushed back, saying the only thing the user agreed to in this case was that he or she had completed filling out the payment information. He cited Uber's decision to revamp its sign-up process as evidence that its prior method was inadequate. But Seeborg didn't buy it. "The question is not whether they could have done it a better way," Seeborg said. "The fact that they found a better way to do it now is irrelevant." The judge said his job is to decide whether the old sign-up process was adequate, "not to be a business consultant on whether Uber could do things better." Seeborg's statements differed sharply from opinions expressed by a federal judge in the Southern District of New York, who issued a scathing opinion last August deeming Uber's arbitration provisions for users unenforceable. U.S. District Judge Jed Rakoff wrote: "In this brave new world, consumers are routinely forced to waive their constitutional right to a jury and their very access to courts, and to submit instead to arbitration, on the theory that they have voluntarily agreed to do so in response to endless, turgid, often impenetrable sets of terms and conditions, to which, by pressing a button, they have indicated their agreement." Notwithstanding the debate over the ubiquitous use of arbitration clauses to force consumers to waive their rights to sue, Seeborg identified the lead plaintiff's failure to state precisely what he saw when signing with Uber as a major problem with the case. Hunter told Seeborg that Cordas never saw a link to terms and conditions because his iPhone 6 was turned horizontally when he signed up. But in reviewing the lead plaintiff's deposition, Seeborg said Cordas failed to articulate exactly what he saw or how his phone was oriented when he moved through the sign-up steps. "The plaintiff is the plaintiff," Seeborg said. "He has to say what he saw or didn't see." Cordas sued Uber in July 2016, claiming that he and other users had their rides automatically canceled and were charged phony cancellation fees. After the hearing, Hunter said a ruling for Uber would force riders to pursue their claims through individual arbitration, effectively denying them the ability to recover those losses. "No one's going to litigate $5 or $10 claims, so Uber will win," Hunter said. After the hearing, Seeborg issued a 9-page ruling granting Uber's motion to compel arbitration. Badame and Hunter, both of Badame & Associates in Lake Forest, vowed to appeal. The case is captioned, MICHAEL CORDAS, Plaintiff, v. UBER TECHNOLOGIES, INC., Defendant., Case 3:16-cv-04065-RS (N.D. Cal.). US BANK: Snyder Seeks Certification of Four Classes Under TCPA -------------------------------------------------------------- The Plaintiffs ask the Court to certify the Telephone Consumer Protection Act case titled KEITH SNYDER, SUSAN MANSANAREZ, and TRACEE A. BEECROFT, individually and on behalf of all others similarly situated v. U.S. BANK N.A., WILMINGTON TRUST, N.A., CITIBANK, N.A., and DEUTSCHE BANK NATIONAL TRUST COMPANY, individually and in their Capacities as Trustees, Case No. 1:16- cv-11675 (N.D. Ill.), as a class action for these classes of similarly-situated persons: * U.S. Bank Class (Snyder is the proposed class representative): All persons whose cellular telephones Ocwen called using its Aspect dialer in relation to a loan for which U.S. Bank was serving as trustee. * Wilmington Class (Mansanarez is the proposed class representative): All persons whose cellular telephones Ocwen called using its Aspect dialer in relation to a loan for which Wilmington was serving as trustee. * Citibank Class (Mansanarez is the proposed class representative): All persons whose cellular telephones Ocwen called using its Aspect dialer in relation to a loan for which Citibank was serving as trustee. * Deutsche Class (Beecroft is the proposed class representative): All persons whose cellular telephones Ocwen called using its Aspect dialer in relation to a loan for which Deutsche Bank was serving as trustee. The Plaintiffs further ask that the Court appoint them as class representatives, and their attorneys as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=0INyHkea The Plaintiffs are represented by: Alexander H. Burke, Esq. Daniel J. Marovitch, Esq. BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 Facsimile: (312) 729-5289 E-mail: aburke@burkelawllc.com dmarovitch@burkelawllc.com - and - Mark Ankcorn, Esq. ANKCORN LAW FIRM, PC 11622 El Camino Real, Suite 100 San Diego, CA 92130 Telephone: (619) 870-0600 Facsimile: (619) 684-3541 E-mail: mark@ankcorn.com - and - Guillermo Cabrera, Esq. Jared Quient, Esq. THE CABRERA FIRM, APC 600 West Broadway, Suite 700 San Diego, CA 92101 Telephone: (619) 500-4880 Facsimile: (619) 785-3380 E-mail: gil@cabrerafirm.com jared@cabrerafirm.com - and - Beth E. Terrell, Esq. Adrienne D. McEntee, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 N. 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: bterrell@terrellmarshall.com amcentee@terrellmarshall.com US LIMO: "O'Sullivan" Suit Seeks to Recover Unpaid Overtime Wages ----------------------------------------------------------------- John O'Sullivan, individually and on behalf of those similarly situated v. US Limo System, Inc., Imran Haider, Narisha Alli, and any other related entities, Case No. 610258/2016 (N.Y. Sup. Ct., December 29, 2016), seeks to recover unpaid overtime wages and illegally retained gratuities pursuant to the New York Labor Law. The Defendants own and operate a limousine service company located at 35 N. Tyson Ave. Suite #103, Floral Park, New York 11001. The Plaintiff is represented by: Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 UTILITY TREE: Removal of "Torres" Suit Untimely, Court Says ----------------------------------------------------------- District Judge Beth Labson Freeman of the United States District Court for the Northern District of California granted Plaintiffs' motion to remand in the case captioned, ENRIQUE TORRES, et al., Plaintiffs, v. UTILITY TREE SERVICE, INC., Defendant, Case No. 16- CV-03424-BLF (N.D. Cal.). On September 30, 2015, Plaintiffs Enrique Torres and Ruben Hermosillo filed a complaint on behalf of themselves and others similarly situated in the Superior Court of the State of California, alleging that Defendant, Utility Tree Service, Inc. violated California wage and hour laws, among other claims. Plaintiffs later filed an amended complaint on November 12, 2015. On January 26, 2016, the state trial court continued a case management conference to allow Defendant to conduct limited discovery regarding removability. Defendant then served Plaintiffs Torres and Hermosillo various discovery requests on February 3, 2016. On March 23, 2016, Plaintiffs requested an extension of time to respond to the discovery requests but having received no agreement from Defendant, they served unverified responses on the same day. Later, on two separate occasions, Defendant demanded Plaintiffs produce verified responses. On May 18, 2016, Plaintiff Torres provided his verifications but to date, Plaintiff Hermosillo has not provided verifications for his responses. On June 17, 2016, Defendant filed its notice of removal, within 30 days of receiving Plaintiff Torres' verification on May 18, 2016. According to Defendant, the notice of removal was filed pursuant to 28 U.S.C. sections 1332(d) (the Class Action Fairness Act (CAFA)), 1441, 1446, and 1453 on the grounds that: (1) Plaintiffs Enrique Torres and Ruben S. Hermosillo are "citizen[s] of a State different from any defendant," (2) "the number of members of all proposed plaintiff classes in the aggregate is" more than 100 members and (3) "the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs." In the notice of removal, Defendant also states that "Plaintiff Torres' Verified Responses to Defendant's Special Interrogatory Request Set One provides sufficient information to determine the amount in controversy." Plaintiffs move to remand, arguing that Defendant's removal was untimely. In opposing the motion, Defendant argues that Plaintiffs' unverified responses cannot trigger the clock for time to file a notice of removal. Specifically, Defendant contends that the time limit "is triggered only when the information supporting removal is unequivocally clear and certain." In her Order dated December 3, 2017 available at https://is.gd/F6bFrh from Leagle.com, Judge Freeman found that the 30-day time limit started when Plaintiff Torres' unverified responses were served on March 23, 2016, and that Defendant did not timely remove the case. Ruben S. Hermosillo, et al. are represented by Jordan Domingo Bello, Esq. -- jbello@lelawfirm.com -- and Joseph Lavi, Esq. -- jlavi@lelawfirm.com -- LAVI AND EBRAHIMIAN LLP Plaintiffs are also represented by: Sahag Majarian, II, Esq. LAW OFFICE OF SAHAG MAJARIAN II 18250 Ventura Blvd Tarzana, CA 91356 Tel: (818)609-0807 Utility Tree Service, Inc. is represented by Michael D. Thomas, Esq. -- michael.thomas@ogletreedeakins.com -- Jared Lee Palmer, Esq. -- jared.palmer@ogletreedeakins.com -- and Kevin Durrell Reese, Esq. -- kevin.reese@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. VEOLIA WATER: Village Shores Suit Removed to East. Dist. Michigan ----------------------------------------------------------------- The class action lawsuit styled Village Shores LLC, individually and on behalf of all others similarly situated v. Veolia Water North America Operating Services, LLC, Veolia North America, LLC, and Veolia North America, Inc., Case No. 16-107731-CZ, was removed from the Genesee County Circuit Court, State of Michigan, to the United States District Court for the Eastern District of Michigan. The District Court Clerk assigned Case No. 2:16-cv-14498-JEL-APP to the proceeding. The Plaintiff brings a putative class action seeking damages for harms allegedly stemming from lead in the drinking water supply of the City of Flint, Michigan. The Defendants are engaged in designing, building, and operating water and wastewater treatment facilities for municipalities and industries in the United States. The Plaintiff is represented by: Andrew P. Abood, Esq. David Wolkinson, Esq. Jeffrey Lance Abood, Esq. Erica A. DeAngelis, Esq. THE ABOOD LAW FIRM 470 N. Old Woodward Ave., Ste. 250 Birmingham, MI 48009 Telephone: (248) 549-0000 E-mail: Andrew@AboodLaw.com jeff@aboodlaw.com erica@aboodlaw.com VOLKSWAGEN AG: Securities Class Action Stays in US Court -------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that Volkswagen must fight class action claims it defrauded American investors due to its emissions cheating scandal in a U.S. court rather than in Germany, a federal judge in San Francisco, ruled. The German automaker had asked U.S. District Judge Charles Breyer to dismiss a shareholder class action seeking hundreds of millions of dollars for damage to its stock price following the emissions cheating scandal. In a ruling issued on January 4, Breyer rejected Volkswagen's claims that because it sold a certain type of stock to American investors, it was exempt from U.S. securities laws. The U.S. investors say Volkswagen's failure to disclose its use of defeat devices and billions of dollars it faced in liability over the scandal artificially inflated its stock price from November 2010 to January 2016. The company has lost an estimated $63 billion in market value since its use of emissions test-cheating software in some 11 million vehicles worldwide was revealed in September 2015. In fending off the class action, Volkswagen argued the type of shares it sold in the United States -- level 1 American Depository Receipts, or ADRs -- are exempt from U.S. securities reporting requirements and subject only to German laws and standards. But Breyer found the shares are subject to U.S. jurisdiction because they were sold through domestic transactions, and Volkswagen was required to make disclosures in English available on its website for American investors. "Regardless of the level of the ADRs, Volkswagen took affirmative steps to make its securities available to investors here in the United States," Breyer wrote in his 41-page ruling. Breyer weighed a host of factors to test Volkswagen's theory that the United States is an inconvenient forum and should be dismissed for forum non conveniens. Breyer found that although Germany would be an adequate alternative forum to litigate the claims, other factors did not weigh in favor of dismissal. The judge also refused to dismiss claims against Volkswagen's former top executives, including former Volkswagen CEO and board chairman Martin Winterkorn. Breyer found allegations that Winterkorn knew of and concealed the scandal were sufficient to pursue claims that he defrauded American investors. The plaintiffs said Winterkorn was a micromanager heavily involved in details of the company's operations, that he helped create the "Strategy 2018" which emphasized clean diesel vehicles, and that he was warned about the automaker's illegal use of defeat devices as early as 2011. The judge also denied a motion to dismiss claims that former Volkswagen board member and brand strategist Herbert Diess made false statements in a third-quarter report in 2015. The plaintiffs claimed Diess understated Volkswagen's total liabilities and overstated its operating profits, assets and shareholder equity. Michael Horn, former president and CEO of Volkswagen Group of America, must also face claims that he hid the scandal from American investors, Breyer ruled. Horn reportedly received an email on May 15, 2014, warning him that clean-diesel vehicles did not meet U.S. emission standards and that the company could face fines from U.S. regulators. Horn told Congress on Oct. 8, 2015, that he was informed of "possible emissions noncompliance" in May 2014. Breyer tossed claims against Horn's predecessor, former Volkswagen Group of America CEO Jonathan Browning, finding allegations that he was merely involved in the U.S. regulatory approval process were not strong enough to survive a motion to dismiss. The judge also dismissed claims under Section 20(a) of the Securities Exchange Act against Diess and Horn, finding the plaintiffs failed to adequately show the two executives were "control persons" that wielded power over the firms in the same manner as Winterkorn. Statements touting the company's environmental friendliness and car stickers certifying vehicles as compliant with emission standards are fair game as evidence in the suit, Breyer said. "The court cannot declare as a matter of law that a reasonable investor would not have considered the emissions stickers on Volkswagen vehicles to be material investing information," Breyer wrote. Court-appointed lead plaintiff Arkansas State Highway Employees' Retirement System filed a 155-page securities class action against Volkswagen, its subsidiaries and chief executives in May last year. The plaintiffs say the automaker's deceit caused them to lose money when the price of Volkswagen ADRs dropped from $38.03 on Sept. 17, 2015, before the scandal was revealed, to $26.16 on Jan. 5, 2016. Volkswagen struck two settlements last year totaling $15 billion over its use of defeat devices in some 580,000 diesel-engine vehicles sold in the United States. In an emailed statement, Volkswagen spokeswoman Jeannine Ginivan called the claims of U.S. ADR purchasers "without merit" and said the company plans to demonstrate that as the case moves forward. The case is captioned, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION Case 3:15-md- 02672-CRB (N.D. Cal.). VOLKSWAGEN AG: Court Lifts Stay as to State Remand Motions ---------------------------------------------------------- In the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION Case 3:15-md-02672- CRB (N.D. Cal.), the Court, in its Pretrial Order No. 22, ordered a stay of all remand motions pending further order of the Court. Prior to the issuance of that order, one State, New Mexico, by and through its Attorney General, had filed a motion to remand. After the order, various States -- New York, Pennsylvania, Massachusetts, Maryland, Vermont, Oklahoma, Tennessee, New Hampshire, Alabama, Ohio, and Missouri -- by and through their respective Attorneys General filed notices and motions indicating that they also intend to move to remand their cases back to their respective State courts. As to these and any other State remand motions brought by the Attorney General of their respective State, District Judge Charles R. Breyer held that the stay is lifted as to any State remand motions brought by State Attorneys General, including those identified. The opening briefs shall be filed on or before January 31, 2017. Absent further order from the Court, the briefing and hearing schedule shall be set in accordance with Civil Local Rules 7-2 and 7-3. This order does not affect the stay as to any other remand motions as set forth in Pretrial Order No. 22. A copy of the Court's January 5 Order is available at https://goo.gl/FSk60O from Leagle.com. WALDEN UNIVERSITY: Faces "Bleess" Class Suit in Minn. ----------------------------------------------------- Aaron Bleess, individually and on behalf of all others similarly situated, Plaintiffs, v. Walden University, LLC and Laureate International Universities, d/b/a Laureate Education Inc., Defendants, Case No. 0:16-cv-04402, (D. Minn., December 29, 2016), seeks damages and all other relief, prejudgment and post-judgment interest, costs and expenses in this litigation, including reasonable attorneys' fees and other costs of litigation, trebling of damages, disgorgement of all the revenue earned through the excessive doctoral-dissertation coursework, restitution and such other relief resulting from unjust enrichment, fraudulent inducement, breach of contract, breach of implied covenant of good faith and fair dealing and for violation of the Minnesota Consumer Fraud Act, and Minnesota Uniform Deceptive Trade Practices Act. Walden is an online university that enabled working adults to obtain graduate-level degrees in school administration. Walden currently offers bachelor's, master's and doctoral degrees to online students. Bleess attended Walden as a PhD student continuously from 2009 until the present. Walden's marketing materials, recruiters, and admissions officers misled prospective and new students by promising that their doctoral degrees -- mostly financed by student loans -- would cost less and take a shorter time to complete than its doctoral programs were actually designed to take. Plaintiff is represented by: Robert K. Shelquist, Esq. Eric N. Linsk, Esq. Rebecca A. Peterson, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue S., Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 - and - Bill Sieben, Esq. Alicia N. Sieben, Esq. SCHWEBEL GOETZ & SIEBEN 80 South Eighth Street, Suite 5120 Minneapolis, MN 55402 Telephone: (612) 377-7777 Facsimile: (612) 333-6311 WELLS FARGO: Slaughter Seeks Prelim. OK of $35.5-Mil. Settlement ---------------------------------------------------------------- The Plaintiffs in the lawsuit entitled LANCE W. SLAUGHTER, MICHAEL SMITH, ERIKA WILLIAMS, LUCIEN PHILIPPE, KATRINA EVERETT, and KEITH SPELMON, on behalf of themselves and all others similarly situated v. WELLS FARGO ADVISORS, LLC, Case No. 1:13-cv-06368 (N.D. Ill.), submit to the Court the parties' proposed class settlement, which provides meaningful programmatic relief to increase opportunities for African American Financial Advisors ("FAs") and FA Trainees at Wells Fargo and a $35.5 million common fund for claims of monetary losses. The parties ask that the Court issue an order: (1) certifying the Settlement Class; (2) preliminarily approving the proposed class action settlement; (3) appointing Class Counsel and the Class Representatives; (4) approving and directing distribution to the class of notices of settlement; and (5) setting a schedule for the final approval process. In addition to the comprehensive programmatic relief, Wells Fargo will establish a Settlement Fund of $35.5 million, plus interest from the date of Preliminary Approval. The Settlement Fund will compensate Settlement Class Members, including the class representatives; provide for all attorneys' fees, costs, and service awards to class representatives awarded by the Court; and provide for all costs of administering the Settlement. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=h8I4HxCU The Plaintiffs are represented by: Linda D. Friedman, Esq. Suzanne E. Bish, Esq. George S. Robot, Esq. STOWELL & FRIEDMAN, LTD. 303 W. Madison, 26th floor Chicago, IL 60606 Telephone: (312) 431-0888 Facsimile: (312) 431-0228 E-mail: lfriedman@sfltd.com sbish@sfltd.com Grobot@sfltd.com WELLS FARGO: Faces "Hogan" Suit in Northern Dist. of California --------------------------------------------------------------- A class action lawsuit has been filed against Wells Fargo & Company. The case is entitled as Kevin Hogan, Shannon Currell, Dennis Russell, Ngoc Ly, Justin Harris, Alexander Polonsky, Brian Zaghi Cheryl Stratemeyer, Jeremy Kahn, Mark Huddleston, and Brent Levinson, individually, and on behalf of all others similarly situated, the Plaintiffs, v. Wells Fargo & Company, Wells Fargo Bank, N.A., and Wells Fargo Securities, LLC, the Defendants, Case No. 3:16-cv-07360 (N.D. Cal., Dec. 27, 2016). Wells Fargo is an American international banking and financial services holding company headquartered in San Francisco, California, with "hubquarters" throughout the country. The Plaintiffs appear pro se. WESTERN REFINING: Shareholders Challenge Tesoro Merger Deal ----------------------------------------------------------- Robert Khan, writing for Courthouse News Service, reported that shareholders sued directors of Western Refining to stop the $6.4 billion merger with Tesoro Corp., in a complicated cash and stock- swap deal, in a class action in El Paso, Texas Federal Court. The case is captioned, BRIAN MILLER, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. JURY TRIAL DEMAND PAUL L. FOSTER, SIGMUND L. CORNELIUS, L. FREDERICK FRANCIS, ROBERT J. HASSLER, BRIAN J. HOGAN, JEFF A. STEVENS, SCOTT D. EAVER, and WESTERN REFINING, INC., Defendants, Case 3:17-cv-00004-DB (W.D. Tex., January 5, 2017). Counsel for Plaintiff: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Tel: (713) 227-7720 E-mail: tbilek@bileklaw.com Of Counsel: Nadeem Faruqi, Esq. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Fl. New York, NY 10017 Tel: (212) 983-9330 WESTPORT LINEN: Cavin Moves to Certify FLSA Collective Class ------------------------------------------------------------ The Plaintiff in the lawsuit styled BRANDON CAVIN v. WESTPORT LINEN SERVICES, INC., Case No. 3:16-cv-00705-JWD-EWD (M.D. La.), submits his motion to conditionally certify a collective action and facilitate notice under the Fair Labor Standards Act. Mr. Cavin has asserted claims on behalf of a collective class for overtime wages wrongfully not paid to them by the Defendant. He now specifically asks that the Court enter an order conditionally certifying this class of similarly situated individuals: All persons employed by Defendant as an hourly employee operating and maintaining the large commercial laundry machines since October 2013 who worked more than 40 hours per week in any work week, but who did not get paid all overtime they were owed due to Defendant's practices of shaving time off of their clocked-in and out hours and automatically deducting a meal break from each shift they worked in violation of the Fair Labor Standards Act, 29 U.S.C. 201, et seq. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=2AVwBxWU The Plaintiff is represented by: Jody Forester Jackson, Esq. Mary Bubbett Jackson, Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Telephone: (504) 599-5953 Facsimile: (888) 988-6499 E-mail: jjackson@jackson-law.net mjackson@jackson-law.net WHOLE FOODS MARKET: Brand Has Active Ingredient, Suit Says ---------------------------------------------------------- Courthouse News Service reported that a class claims in Chicago federal court that Whole Foods says its brand of St. John's Wort has more of the active ingredient than it actually contains. The case is captioned, KATIE KLINGBERG, individually and on behalf of all others similarly situated, Plaintiff, v. WHOLE FOODS MARKET, INC., a Texas corporation, Defendant, Case: 1:17-cv-00138 (N.D. Ill. Filed: 01/09/17). Counsel For Plaintiff And The Proposed Putative Classes: Klint L. Bruno, Esq. Michael L. Silverman, Esq. THE BRUNO FIRM 900 West Jackson Boulevard, Suite 4E Chicago, IL 60607 Tel: 773-969-6160 E-mail: kb@brunolawus.com msilverman@brunolawus.com - and - Nick Suciu III, Esq. BARBAT, MANSOUR & SUCIU PLLC 1644 Bracken Road Bloomfield Hills, Michigan 48302 Tel: 313-303-3472 E-mail: nicksuciu@bmslawyers.com WILMINGTON TRUST: Faces "Shore" Suit in Southern Dist. of Florida ----------------------------------------------------------------- A class action lawsuit has been filed against Wilmington Trust, N.A. The case is entitled as Michael Shore, on behalf of himself and all others similarly situated, the Plaintiff, v. Wilmington Trust, N.A., as trustee for MFRA TRUST 2015-1, and Fay Servicing LLC, the Defendants, Case No. 1:16-cv-25373-PCH (S.D. Fla., Dec. 29, 2016). The case is assigned to Hon. Senior Judge Paul C. Huck. Wilmington Trust offers personal and commercial banking services. The Plaintiff is represented by: Christopher W. Legg, Esq. CHRISTOPHER LEGG, P.A. 3837 Hollywood Blvd., Ste. B Hollywood, FL 33021 Telephone: (954) 962 2333 Facsimile: (954) 927 2451 E-mail: chris@theconsumerlawyers.com - and - Jack Dennis Card, Jr., Esq. CONSUMER LAW ORGANIZATION, P.A. 721 US Highway 1 North Palm Beach, FL 33408, Suite 201 Telephone: (561) 822 3446 Facsimile: (305) 574 0132 E-mail: Dcard@Consumerlaworg.com - and - James Lawrence Kauffman, Esq. BAILEY & GLASSER, LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463 2101 Facsimile: (202) 463 2103 E-mail: jkauffman@baileyglasser.com ZALE CORP: Court Stays Emcon Associates Suit Pending Arbitration ---------------------------------------------------------------- District Judge Freda L. Wolfson of the United States District Court for the District of New Jersey granted Defendants' motion to stay the proceedings and compel arbitration in the case captioned, EMCON ASSOCIATES, INC., Plaintiff, v. ZALE CORPORATION, STERLING JEWELERS INC., and JOSEPH ALBANESE, Defendants, Case No. Action No. 16-1985 (FLW) (D.N.J.). Emcon filed the action against Defendants Sterling Jewelers, Inc. (Sterling), Zale Corporation (Zales), and Joseph Albanese (Albanese) for breach of a written contract (the Vendor Agreement), as well as violations of the New Jersey Consumer Fraud Act (CFA) and the New Jersey Racketeer Influenced and Corrupt Organization Act (RICO). The first four counts of the Complaint are claims for payment with regard to services that Emcon provided to Sterling and while the final two counts of the Complaint assert statutory and tort claims against Defendants, averring that "Zale and Sterling, through and/or including Albanese, engaged in unconscionable commercial practices, deceptions, fraud and misrepresentations in violation of common law, and statutory law including, but not limited to N.J.S.A. 56:8-1, et seq. (NJ CFA)and N.J.S.A. 2C:41-1, et seq. (NJ RICO)." During the relevant period of time to the dispute, Joseph Albanese was the Director of Facility Maintenance for Sterling and Zales. His job duties included directing and managing the repair and maintenance activity for the Sterling and Zales' facilities located throughout the United States. Defendant moves to dismiss the complaint and compel arbitration, arguing that Plaintiff's claims arise under the Vendor Agreement. However, in an attempt to circumvent the Vendor Agreement's arbitration clause, Plaintiff argues that the arbitration clause is unenforceable, would result in an impermissible waiver of Plaintiff's right to litigate its statutory and common law claims, and that neither Zales nor Albanese can compel arbitration because they are not signatories to the Vendor Agreement. In his Opinion dated December 14, 2016 available at https://is.gd/HXCXH2 from Leagle.com, Judge Wolfson found that a valid arbitration agreement between the parties exists. Emcon Associates, Inc. is represented by Bruce Meller, Esq. -- bmeller@pecklaw.com -- PECKAR & ABRAMSON PC Zale Corporation, et al. are represented by John J. Sullivan, Esq. -- jsullivan@cozen.com -- COZEN O'CONNOR ********* 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. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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