/raid1/www/Hosts/bankrupt/CAR_Public/170629.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, June 29, 2017, Vol. 19, No. 127
Headlines
ALERE INC: Still Faces Consolidated Securities Class Lawsuit
ALERE INC: Still Faces Andren INRatio Class Lawsuit in Calif.
ALERE INC: Reaches Pact to Dismiss INRatio Suit in Massachusetts
ALLIANZ ASSET: Court Certifies Two Classes in "Urakhchin" Suit
ALLSCRIPTS HEALTH: Klein Moynihan Comments on Class Cert. Denial
ASHLEY SERVICES: August 8 Case Management Hearing Set
ASSET RECOVERY: Guthrie Seeks Class Certification Under FDCPA
AUSTRALIA: Settles Manus Island Detainees' Class Action for $70MM
AUSTRALIA: Refugee Advocates Furious Over Manus Island Settlement
AVIS BUDGET: Bid to Exclude Morwitz Opinion in "Mendez" Denied
BARNES & NOBLE: Judge Tosses Data Breach Class Action
BEST BUY: 2 Class Suits Still Stayed Pending IBEW Discovery
BRISTOL-MYERS: Nonresidents Can't Pursue Claims in California
BRISTOL-MYERS: Ruling to Impact Mass Torts in Three States
BRISTOL-MYERS: SCOTUS Ruling Game Changer, Defense Bar Says
BROCADE COMMUNICATIONS: Seeks Dismissal of "Hussey" Complaint
BROCADE COMMUNICATIONS: Court Combines 6 Merger Suits
BROOKS BROTHERS: "Ables" Hits Data Breach, Lack of Data Security
BRP US INC: "Feldman" Sues Over Denied Warranty Claim
CABELA'S INC: "Garcarz" Sues Over Shadowy Merger Deal
CALIFORNIA CHECK: Ninth Circuit Appeal Filed in "Gilberg" Suit
CALIFORNIA PHYSICIANS' SERVICE: Ct. Certifies Class in Des Roches
CAMEL CARPENTRY: "Contreras" Seeks Unpaid Minimum Wages
CANADA: Mud Lake Flooding Victims Mull Class Action
CANADA: Gov't Fights Blanket Deal for Sixties Scoop Survivors
CARIBOU COFFEE: Settles Suit Over Unsolicited Text Messages
CASHCALL INC: "De La Torre" Settlement Has Prelim Approval
CHICAGO, IL: Class Action Calls for Oversight of Police Reforms
CHINA AGRITECH: Carlton Fields Comments on 9th Cir. Ruling
CHINA MOBILE: September 14 Settlement Fairness Hearing Set
CITIZENS BANK: Excessive Bank Charges Hit in "Fawcett" Suit
CONSUMER CELLULAR: Settlement in "Bell" Gets Final Approval
COOPER COMPANIES: Class Cert. Bid in Contact Lens Suit Pending
COSTCO WHOLESALE: "Canela" Class Action in Calif. Still Pending
CUMBERLAND CO: "Honovich" Claims Non-Fogging Mirror Fogged Up
DAVIS VISION: Independent Providers File Antitrust Class Action
DISCOVERY METALS: Disgruntled Shareholders Mull Class Action
DONALD TRUMP: Washington Court Certifies Class in "Wagafe"
EL GALLEGO: "Baluja" Suit Seeks Unpaid Minimum Wages
EQUITY RESIDENTIAL: Discovery Requests Too Expansive, Court Says
FIELD & TECHNICAL: Close Moves for Class Certification Under FLSA
FIELDTURF USA: Sued Over Massive Fraud in Duraspine Products
FLEETCOR TECHNOLOGIES: Rosen Law Files Class Action Lawsuit
FOX NEWS: Different Outcomes in Two Mandatory Arbitration Cases
FRANCHISE CONTRACTORS: Sunbelt Claims Unpaid Service Fees
GANLEY INC: Certification Order in "Konarzewski" Reversed
GEICO GENERAL: Seeks Dismissal of Windshield Replacement Case
GEICO GENERAL: Faces Class Action Over Glass Pricing
GENERAL ELECTRIC: Wins Judgment Bid, "Kauffman" Suit Dismissal
GENERAL MOTORS: Corvette Z06 Owners File Class Action
GERDAU AMERISTEEL: Wins OK of "Comer" Suit Deal; Hearing Sept. 11
GIUMARRA VINEYARDS: $6.1MM Settlement in "Munoz" Has Final OK
GOPRO INC: California Court Dismisses "Bodri" Suit
HASTIE GROUP: Faces Shareholder Action
HIGHBURY CONCRETE: "Zamora" Suit Seeks Damages
HILTON WORLDWIDE: Bid to Expedite Hearing on "Elder" Deal Denied
HITACHI CHEMICAL: Indirect Purchasers Move to Certify Classes
HOME CAPITAL: Settles Class Action Over Misleading Disclosure
HOME DEPOT: Seeks Dismissal of Class Action Over Lumber Sizing
HOME LOAN: Securities Suit Deal Gets OK; Hearing on Nov. 17
HONDA MOTOR: Says Soy-Based Wiring Class Actions Without Merit
HP INC: Continues to Defend "Forsyth, et al." Lawsuit in Calif.
HP INC: July Hearing on Bid to Drop Supplies Authentication Suit
HP INC: Appeal from Dismissal of ERISA Lawsuit Remains Pending
J CREW GROUP: "Coladonato" Alleges Promotional Discount a Farce
JAGGED PEAK: Faces Securities Class Action Over IPO
JOHNSON & JOHNSON: Missouri Talc Case Ends in Mistrial
JOSROS ENTERPRISES: "Rodriguez" Suit Seeks Unpaid Overtime Wages
JP MORGAN: Faces Class Action Over Employees' Parental Leave
KEMET CORP: Court Approved Accord in Antitrust Suit vs. TOKIN
KROGER CO: "Doporcyk" Balks at Retaliation, Biometrics Disclosure
LARRY PORTER: "Harris" Labor Suit to Recover Overtime Pay
LIFELOCK INC: Can Pay Settlement Fund Residuals Directly to FTC
LULULEMON ATHLETICA: "Gathmann-Landini" Suit Still Ongoing
MAN TRUCK: RHA Urges Hauliers to Join Truck Sales Cartel Suit
MANITOBA: Prelim Terms of Settlement Reached in 2011 Flood Suit
MARION COUNTY, IN: 7th Cir. Vacates Certification in "Driver"
MARVELL TECHNOLOGY: March 2018 Trial Set in Consolidated Suit
MARVELL TECHNOLOGY: Court Grants Protective Order in "Luna"
MARY HEALTH: Settles Class Action Over Drug Prescribing Practices
MDL 1840: Costco's Appeal in Hot Fuel Sales Case Remains Pending
MERCHANTS & PROFESSIONAL: July 13 Discovery Plan Filing Deadline
MICROSOFT CORP: 9th Circuit Upsets Rule 23(f)'s Balance
MIDCITY FINANCIAL: Tenants Seek Class Status in Housing Case
MONSANTO COMPANY: Arkansas Farmers File Class Action Over Dicamba
NATURAL HEALTH: Court Grants Protective Order in "Ford"
NEINSTEIN & ASSOCIATES: Court Allows Class Action Suit to Proceed
NYCTL 1996-1: 2d Cir. Affirms Judgment in "Boyd" Suit
OCWEN FINANCIAL: Securities Class Action Period Expanded
PENNSYLVANIA: Wait Time for Treatment of Defendants Cut to 7 Days
PHILADELPHIA, PA: Faces Class Action Over Center City Taxes
PLAINS ALL AMERICAN: "Sherman" Suit Seeks Unpaid Overtime Pay
PORTFOLIO RECOVERY: "Cote" Disputes Vague Collection Letter
PREMIER LEGAL: Court Denies Voluntary Dismissal of "Murray"
PROCTER & GAMBLE: Court Denies Protective Order in "Perry"
RECEIVABLE SOLUTIONS: Sued Over Debt Collection Practices
REEL GROUP: "Cruz" Labor Suit Seeks Unpaid Overtime Wages
RH INC: Consolidated Securities Class Action in Calif. Underway
ROYAL SEAS: "DeForest" Sues Over Illegal Telemarketing Calls
RUSS BASSETT: Faces Class Action Over Labor Code Violations
SANOFI-AVENTIS: Asks Court to Reject Cert for Taxotere Suit
SCHLUMBERGER TECH: Sanchez Seeks Cert. of Oilfield Workers Class
SECURE ONE: Faces Class Action Over Solicitation Calls
SEECO INC: Wins Summary Dismissal of "Lipsey"
SHREVEPORT, LA: Judge Allows Sewer Bill Class Action to Proceed
SHILOH INDUSTRIES: Review on Securities Suit Dismissal Ongoing
SIGNET JEWELERS: Collective Action to Start in March 2018
SIGNET JEWELERS: Court Okays Consent Decree Resolving EEOC Suit
SIGNET JEWELERS: July 14 Hearing Set for Employment Class Accord
SIGNET JEWELERS: July 5 Deadline for Lead Plaintiff & Counsel Bid
SOMATDARY INC: Denied McCormick Rest Periods, Wage Statements
SOUTH LAMAR: Accused of Excessive Rent and Charges by "Merril"
STATE FARM: Bid to Dismiss "Cuadros" Suit Partly Granted
TATA SONS: Seeks to Revoke Premission Granted on Class Action
THURSTON COUNTY, WA: Sex Offenders Can Proceed Under Pseudonyms
THINK SIMPLICITY: Settlement in Lot Owners' Suit Gets Final OK
TOTAL CARD: Court Dismisses FDCPA Class Action
TRISTAR PRODUCTS: Court Denies Bid to Decertify "Chapman"
U.S. AVIATION: Directed to Produce Class List in "Haralson"
UNITED AIRLINES: Judge Allows Flight Attendant to Amend Complaint
UNITED STATES: Bagnall's Bid to Certify Taken Under Advisement
UNITED STATES: ACLU Sues to Stop Deportation of Iraqi Nationals
UNIVERSITY OF DENVER: Faces Pay Discrimination Lawsuit
UTAH: Settles Offenders' Mental Health Care Class Action
VOYA FINANCIAL: Court Dismisses "Patrico" Class Suit
WAL-MART STORES: Pontiac General Employees Suit Still Ongoing
WELLS FARGO: Guarantees Sham Accounts Class Action Settlement
WELLS FARGO: Faces Class Action Over Changes to Mortgages
WEST AMERICAN: Insurers Sue Over False Ad Suit Coverage
WESTERN HOCKEY: Alberta Judge Certifies Class Action Lawsuit
YEXT INC: Settlement of Tropical Sails Suit Reached
ZENEFITS: Pays $3.4 Million to Former Misclassified Employees
* Big-Business Wants Ban on Employee Class Actions Upheld
* Class Action Waiver Battle Kicks Off at Supreme Court
* Court Approves $6.255MM Settlement in Wage-and-Hour Suit
* Slovenian Government Adopts Class Action Bill
* Wolf Haldenstein Attorney Comments on Pending HR985 Bill
*********
ALERE INC: Still Faces Consolidated Securities Class Lawsuit
------------------------------------------------------------
Alere Inc. continues to defend itself against a consolidated
securities class action in Massachusetts, according to the
Company's Form 10-K filed on June 5, 2017 with the U.S. Securities
and Exchange Commission for the fiscal year ended December 31,
2016.
On April 21, 2016 and May 4, 2016 two class action lawsuits
captioned Godinez v. Alere Inc. and Breton v. Alere Inc.,
respectively, were filed against the Company in the United States
District Court for the District of Massachusetts. Both actions
purport to assert claims against the Company and certain current
and former officers for alleged violations of Section 10(b) and
Section 20(a) of the Exchange Act and Rule 10b-5 under the
Exchange Act.
On July 11, 2016, the court entered an order consolidating the two
actions and appointing lead plaintiffs and lead counsel. Lead
plaintiffs filed a supplemental and amended consolidated class
action complaint on January 4, 2017, seeking to represent a
proposed class of all persons who purchased or otherwise acquired
the Company's common stock during the period May 28, 2015 through
December 7, 2016. The complaint seeks damages allegedly caused by
alleged materially misleading statements and/or material omissions
by the Company and the officers regarding the Company's and its
subsidiaries' business, prospects and operations, which allegedly
operated to inflate artificially the price paid for the Company's
common stock during the class period. The complaint seeks
unspecified compensatory damages, including interest thereon,
attorneys' fees and costs.
The Company filed its motion to dismiss the amended complaint on
February 6, 2017 and the court has scheduled oral argument on that
motion for June 27, 2017.
Alere Inc. manufactures and markets diagnostic products for
consumer and professional markets in Canada. It was formerly
known as Inverness Medical Canada, Inc. and changed its name to
Alere Inc. on January 1, 2011. The Company was founded in 1971
and is based in Ottawa, Canada.
ALERE INC: Still Faces Andren INRatio Class Lawsuit in Calif.
-------------------------------------------------------------
Alere Inc. continues to defend itself against a class action
lawsuit in California related to its INRatio products, according
to the Company's Form 10-K filed on June 5, 2017 with the U.S.
Securities and Exchange Commission for the fiscal year ended
December 31, 2016.
On May 26, 2016, a class action lawsuit captioned Dina Andren and
Sidney Bludman v. Alere Inc., et al., was filed against the
Company in the United States District Court for the Southern
District of California. This class action purports to assert
claims against the Company under several legal theories, including
fraud, breach of warranty, unjust enrichment and violation of
applicable unfair competition/business practice statutes in
connection with the manufacturing, marketing and sale of the
Company's INRatio products.
The plaintiffs seek to represent a proposed class of all persons
who purchased, rented or otherwise paid for the INRatio system
during the period January 1, 2009 to May 26, 2016 in the United
States, or alternatively, California, Maryland, New York,
Colorado, Florida, Georgia and Pennsylvania. The plaintiffs seek
restitution and damages allegedly resulting from inaccurate PT/INR
readings and from the purchase of devices that claimants say they
would not have purchased had they known of the alleged propensity
of these devices to yield inaccurate PT/INR results. Among other
things the plaintiffs seek a refund of money spent on INRatio
products and unspecified compensatory damages, injunctive relief,
attorneys' fees and costs.
Several of the state classes also seek statutory penalties.
Plaintiffs state they do not seek recovery for personal injury.
Alere Inc. manufactures and markets diagnostic products for
consumer and professional markets in Canada. It was formerly
known as Inverness Medical Canada, Inc. and changed its name to
Alere Inc. on January 1, 2011. The Company was founded in 1971
and is based in Ottawa, Canada.
ALERE INC: Reaches Pact to Dismiss INRatio Suit in Massachusetts
----------------------------------------------------------------
Alere Inc. disclosed in its Form 10-K filed on June 5, 2017 with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2016 that it has reached an agreement with the
plaintiffs to dismiss a class action lawsuit in Massachusetts
related to its INRatio products.
A class action lawsuit captioned J.E, J.D., and all others
similarly situated v. Alere Inc., Alere San Diego, Inc. and Alere
Home Monitoring, Inc., was filed against the Company in the United
States District Court for the District of Massachusetts on July
22, 2016.
In May 2017, prior to class certification proceedings, the parties
agreed to dismiss this lawsuit. The Company has agreed to pay the
plaintiffs and counsel for the plaintiffs an immaterial amount in
connection with this dismissal.
Alere Inc. manufactures and markets diagnostic products for
consumer and professional markets in Canada. It was formerly
known as Inverness Medical Canada, Inc. and changed its name to
Alere Inc. on January 1, 2011. The Company was founded in 1971
and is based in Ottawa, Canada.
ALLIANZ ASSET: Court Certifies Two Classes in "Urakhchin" Suit
--------------------------------------------------------------
The Hon. Josephine L. Staton conditionally grants the Plaintiffs'
motion for class certification in the lawsuit entitled ALEKSANDR
URAKHCHIN and NATHAN MARFICE, individually, as representatives of
the class, and on behalf of the ALLIANZ ASSET MANAGEMENT OF
AMERICA, L.P. 401(K) SAVINGS AND RETIREMENT PLAN v. ALLIANZ ASSET
MANAGEMENT OF AMERICA, L.P., ALLIANZ ASSET MANAGEMENT OF AMERICA,
LLC, COMMITTEE OF THE ALLIANZ ASSET MANAGEMENT OF AMERICA, L.P.
401(K) SAVINGS AND RETIREMENT PLAN, and JOHN MANEY, Case No. 8:15-
cv-01614-JLS-JCG (C.D. Cal.).
These Rule 23(b)(1) classes are certified under 29 U.S.C. Sections
1109(a), 1132(a)(2), and 1132(a)(3):
Monetary Relief Class: All participants and beneficiaries of
the Allianz Asset Management of America, L.P. 401(k) Savings
and Retirement Plan ("Plan") at any time on or after
October 7, 2009, excluding Defendants, their directors, and
any employees with responsibility for the Plan's investment
or administrative functions.
Injunctive Relief Class: All current participants and
beneficiaries of the Allianz Asset Management of America,
L.P. 401(k) Savings and Retirement Plan ("Plan"), excluding
Defendants, their directors, and any employees with
responsibility for the Plan's investment or administrative
functions.
The Plaintiffs are participants of the Allianz Asset Management of
America, L.P. 401(k) Savings and Retirement Plan. The Plan is a
401(k) plan that covers eligible employees of Allianz Asset
Management of America, L.P. ("AAM-LP") and its affiliates.
Plaintiffs Aleksandr Urakhchin and Nathan Marfice are appointed as
class representatives. The Court reserves its ruling on
appointing class counsel pending supplemental declarations from
the Plaintiffs identifying the individual attorneys, who are to
serve as class counsel in this case.
The Court directs the parties to meet and confer, and to submit an
agreed-upon form of class notice that will advise class members
of, among other things, the relief sought and their rights to
intervene, submit comments, and contact class counsel. The
parties shall also jointly submit a plan for dissemination of the
proposed notice. The parties shall work together to generate a
class list to be used in disseminating class notice.
The parties are advised to review the Federal Judicial Center's
checklist for class action notices, available at
http://www.fjc.gov/,before drafting the proposed notice and plan
of dissemination. The proposed notice and plan of dissemination,
along with a proposed order approving or denying the parties'
proposal, shall be filed with the Court on or before July 14,
2017.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=oDvu77Mj
ALLSCRIPTS HEALTH: Klein Moynihan Comments on Class Cert. Denial
----------------------------------------------------------------
David O. Klein, Esq., of Klein Moynihan Turco LLP, in an article
for Lexology, wrote that on June 2, 2017, the United States
District Court for the Northern District of Illinois denied class
certification in a Telephone Consumer Protection Act ("TCPA")
putative class action. In doing so, the district judge chided the
"professional class action plaintiff" due to its demonstrable
dishonesty in responding to discovery demands. In addition, with
respect to the class plaintiff's TCPA fax attorneys, the court
further noted that "it is disconcerting that two of the Firms in
this case have been singled out by courts for their behavior."
Why Was Class Certification Denied in this TCPA Fax Case?
In its decision to deny class certification in the TCPA fax case,
the court pointed to numerous factual instances where the class
plaintiff's principals submitted false statements in responding to
discovery and made false statements during deposition testimony.
For example, the plaintiff claimed in discovery that it was not a
customer of the defendant -- this statement was false.
Plaintiff's principal also falsely stated that the plaintiff did
not sell a particular product, which it did. When questioned on
this, the plaintiff's principals blamed their attorneys, claiming
that "the false answers were fashioned by lawyers." Two other
principals designated as Rule 30(b)(6) witnesses claimed that the
plaintiff's attorneys answered discovery and never consulted with
the plaintiffs. In addition, the Court noted that it was unclear
as to whether or not the plaintiff's attorneys ever communicated a
settlement and offer of judgment to the class plaintiff. The
attorneys claimed that they did submit the offer to the plaintiff,
although they did not provide any documentary evidence of this
fact to the Court. The plaintiff claimed to have never received
the offer. The Court concluded that "the fact that counsel, both
corporate and class, has had to repeatedly contradict the
testimony of their client serves to underscore the plaintiff's
inadequacies as a representative." [GN]
ASHLEY SERVICES: August 8 Case Management Hearing Set
-----------------------------------------------------
Bill Petrovski, Esq. -- bill.petrovski@williamroberts.com.au --
and Biljana Caceska, Esq. -- biljana.caceska@williamroberts.com.au
--of William Roberts Lawyers, in an article for Lexology, report
that on December 1, 2016, William Roberts Lawyers instituted an
investor class action in the Federal Court of Australia against
Ashley Services Group Limited (ACN: 094 747 510) ("Ashley"), on
behalf of current and former shareholders backed by litigation
funder, IMF Bentham Limited.
Ashley is an ASX listed provider of vocational training services.
Ashley listed on the ASX on August 21, 2014, after raising $98.7m
in an initial public offering of 59.5m shares at $1.66 per share
(IPO). Simultaneously, with funds raised in the IPO, Ashley
acquired the registered training organisation 'Integracom' which
provides vocational training to trainee apprentices in the
telecommunications sector.
The claim alleges misleading or deceptive conduct and
misstatements made in Ashley's prospectus issued on August 7,
2014, concerning Ashley's expected profitability in breach of the
Corporations Act 2001 (Cth), Australian Securities and Investment
Commission Act 2001 (Cth) and the Australian Consumer Law.
It is alleged that as a result of the contraventions, Ashley
investors who purchased shares under the prospectus suffered loss
and damage.
The proceeding is next listed for an administrative case
management hearing before the Federal Court on August 8, 2017.
The case is managed by a team at William Roberts led by principal,
Bill Petrovski. [GN]
ASSET RECOVERY: Guthrie Seeks Class Certification Under FDCPA
-------------------------------------------------------------
The Plaintiff in the lawsuit titled Stephen Guthrie, individually
and on behalf of all others similarly situated v. Asset Recovery
Solutions, LLC, an Illinois limited liability company, and
Velocity Investments, LLC, a New Jersey limited liability company,
Case No. 1:16-cv-10689 (N.D. Ill.), files an amended motion for
class certification and asks the Court to allow him to represent a
class of:
all persons similarly situated in the State of Alabama from
whom Defendants attempted to collect a delinquent,
time-barred and/or dismissed CitiFinancial/Santander
Consumer vehicle loan debt, via the same form collection
letter (Dkt. 1-3), that Defendants sent to Plaintiff, where
the date of last payment is more than 4 years from the date
of the collection letter, from one year before the date of
this Complaint to the present.
Mr. Guthrie's complaint, filed on November 16, 2016, sets forth
that, by sending a form collection letter to collect a delinquent,
time-barred consumer debt, Defendants Asset Recovery Solutions,
LLC and Velocity Investments, LLC, made false, deceptive or
misleading statements, in violation of the Fair Debt Collection
Practices Act, and used unfair or unconscionable means to collect
a debt, in violation of the FDCPA.
A copy of the Amended Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=yztR8iRE
The Plaintiff is represented by:
David J. Philipps, Esq.
Mary E. Philipps, Esq.
Angie K. Robertson, Esq.
PHILIPPS & PHILIPPS, LTD.
9760 S. Roberts Road, Suite One
Palos Hills, IL 60465
Telephone: (708) 974-2900
Facsimile: (708) 974-2907
E-mail: davephilipps@aol.com
mephilipps@aol.com
angiekrobertson@aol.com
- and -
Ronald C. Sykstus, Esq.
BOND, BOTES, SYKSTUS, TANNER & EZZELL, P.C.
225 Pratt Avenue
Huntsville, AL 35801
Telephone: (256) 539-9899
Facsimile: (256) 713-0237
E-mail: Rsykstus@bondnbotes.com
http://www.bondnbotes.com
The Defendants are represented by:
Justin M. Penn, Esq.
HINSHAW & CULBERTSON, LLP
222 N. LaSalle Street, Suite 300
Chicago, IL 60601
Telephone: (312) 704-3000
E-mail: jpenn@hinshawlaw.com
AUSTRALIA: Settles Manus Island Detainees' Class Action for $70MM
-----------------------------------------------------------------
The Australian Associated Press reports that detainees who say
they have endured hell on Manus Island will share $70 million in
compensation but the government maintains none will find homes in
Australia.
The 1905 current and former Manus Island detainees say their
voices are finally being heard after they secured what is believed
to be the largest human rights class action settlement in
Australia.
The government and operators of the Manus Island Regional
Processing Centre settled the class action for $70 million plus
costs estimated at more than $20 million, without any admission of
liability.
Slater and Gordon principal lawyer Andrew Baker --
andrew.baker@slatergordon.com.au -- said the settlement was an
important step towards recognising the extremely hostile
conditions the detainees endured on Manus Island.
"For many of the detainees the only options they faced were to
return home where they faced persecution, jail or even death, or
to stay at Manus Island," Mr Baker told reporters on June 14.
"While no amount of money could fully recognise the terrible
conditions the detainees endured, we hope the settlement can begin
to provide them with an opportunity to help put this dark chapter
of their lives behind them."
The case was settled on the day a six-month trial was due to begin
in the Victorian Supreme Court, which Immigration Minister Peter
Dutton said would have cost tens of millions of dollars in legal
fees alone with an unknown outcome.
"In such circumstances a settlement was considered a prudent
outcome for Australian taxpayers," Mr Dutton said.
He said the settlement was not an admission of liability in any
regard, and the Commonwealth strongly refuted and denied the
claims in the proceeding.
It will also not change the government's stance on the
approximately 860 men who remain on Manus Island and others in
immigration detention on Nauru.
"None of the illegal maritime arrivals on Manus Island or in Nauru
will ever be settled in Australia," Mr Dutton said.
Up to 1250 of the refugees on Manus Island and Nauru are expected
to be offered resettlement under Australia's deal with the United
States.
Amnesty International and others called for the 2000 people held
in offshore detention to be brought to Australia.
"Financial compensation alone is not enough," Amnesty's Pacific
researcher Kate Schuetze said.
"The reality is this deal does not change the immediate situation
for the people trapped on Manus and Nauru."
Slater and Gordon practice group manager Rory Walsh said the class
action settlement would have no effect on the Manus detainees'
applications for asylum.
The Refugee Council of Australia is among those who believe the
government settled the case to avoid public evidence coming out
during the trial.
"The Australian government have folded as they know an independent
judicial examination of the practice of offshore detention would
shine a light on how brutal, damaging and inhumane these practices
are," the council's Tim O'Connor said.
Lead plaintiff Majid Kamasaee, a 35-year-old Iranian asylum
seeker, said the detainees were treated in a degrading and cruel
way on Manus.
"I came to Australia seeking peace but I was sent to Manus, which
was hell," he said.
The group members, who represent the majority of people held on
Manus Island since 2012, claimed damages for false imprisonment
and for alleged physical and psychological injuries they argue
they suffered as a result of the conditions in which they were
held. [GN]
AUSTRALIA: Refugee Advocates Furious Over Manus Island Settlement
-----------------------------------------------------------------
Pia Akerman, writing for The Australian, reports that embattled
law firm Slater & Gordon will take the lion's share of a $20
million costs order after agreeing to settle a landmark lawsuit
with the federal government and its Manus Island contractors for
$70m -- a fraction of the sum initially sought by the firm.
Taxpayers and security firms G4S, Broadspectrum (formerly known as
Transfield) and Wilson Security will split the bill between them
as part of a deal revealed on June 14, aborting a lengthy trial
that would have tested allegations detainees were falsely
imprisoned and suffered horrendous injuries due to the conditions
at the detention centre.
While Slater & Gordon and the government endorsed the settlement
as a means of avoiding a more expensive legal battle, refugee
activists were furious the settlement was not larger and that
evidence that had been collected for the hearing would not be
publicly aired.
Immigration Minister Peter Dutton said the settlement was a
"prudent outcome" for taxpayers when weighed against a legal bill
of tens of millions of dollars for a six-month trial. "Settlement
is not an admission of liability in any regard," he said.
"The commonwealth strongly refutes and denies the claims made in
these proceedings.
"Labor imposed this cost on Australians when it handed control of
the nation's borders to criminal people-smuggling syndicates."
Labor immigration spokesman Shane Neumann would not comment on the
settlement.
The Australian understands Slater & Gordon initially sought a
settlement of $400m. People close to the case had believed the
case was more likely to settle for between $150m and $200m.
Slater & Gordon class action group leader Rory Walsh acknowledged
some detainees and their supporters would not be pleased with the
settlement, but said those group members could petition the court
if they wished to continue with a separate case.
"When we were offered sufficient money, and we were, we had no
hesitation in taking it," he said. "We think it's in the best
interests of our group members."
Slater & Gordon -- which is facing two potential class actions
from angry shareholders whose holdings have plummeted in value --
will receive at least $20m in costs, including disbursements for
barristers and expert witnesses, if the agreement is approved by
the Victorian Supreme Court. The firm will also apply to
administer the settlement distribution scheme and receive further
payment for this work. The settlement works out to roughly
$36,745 for each group member, but will be split according to how
long each person spent at the centre, the injuries they received
and whether they were present for particular events such as a
February 2014 attack in which a detainee died.
Refugee advocate Pamela Curr described the settlement as "shut-up
money", while Refugee Action Coalition spokesman Ian Rintoul said
it was likely further compensation cases would be lodged. "It's
not sufficient to compensate people for what they've been
through," he said. "It would have been far better for the public
to have heard the evidence from people on Manus Island, to see the
thousands of pages of evidence of documents that reveal the scale
of the mistreatment."
The Manus Island centre is due to close in October. [GN]
AVIS BUDGET: Bid to Exclude Morwitz Opinion in "Mendez" Denied
--------------------------------------------------------------
In the case captioned JOSE MENDEZ, individually and on behalf of
all others similarly situated, Plaintiff, v. AVIS BUDGET GROUP,
INC., et al., Defendants, Civil Action No. 11-6537 (JLL) (D.
N.J.), Judge Jose L. Linares of the U.S. District Court for the
District of New Jersey denied:
(i) the Defendants' motion to exclude the opinion of the
Plaintiff's expert Vicki Morwitz from the Court's consideration of
the Plaintiff's forthcoming motion for class certification, which
the Plaintiff opposes;
(ii) the Plaintiff's motion to exclude the opinion of the
Defendants' expert Larry Chiagouris from the Court's
consideration, which the Defendants oppose; and
(iii) the Plaintiff's motion to strike certain portions of the
exhibits that are annexed to the Declaration of Robert Muhs, Esq.,
who is a vice president and counsel for the Avis Entities, from
the Court's consideration, which the defendants oppose.
This is a putative class action brought on behalf of those who
were allegedly charged non-discounted toll charges and convenience
fees when they rented vehicles equipped with an electronic system
to pay tolls known as "e-Toll" from locations and websites that
were owned by, operated by, or connected to Defendants Avis Budget
Group and Avis Rent-A-Car System, LLC. Defendant Highway Toll
Administration, LLC ("HTA") was a vendor of the Avis Entities that
supplied and administered the e-Toll toll collection service.
The Court finds that Morwitz's opinion that the Defendants failed
to properly notify customers about the ramifications of renting a
vehicle that was equipped with the e-Toll system is sufficiently
reliable to permit its consideration in support of the Plaintiff's
forthcoming motion for class certification. Therefore, the
Defendants' motion to exclude Morwitz's expert opinion is denied,
and Morwitz's opinion will be considered for the purposes of the
Plaintiff's forthcoming motion for class certification.
The Court concludes that the opinion submitted by Chiagouris to
oppose Morwitz's opinion is sufficient under the standards set
forth in Daubert in order to be considered as part of the
defendants' opposition to the forthcoming motion for class
certification. Furthermore, Chiagouris' opinion will be helpful
for the Court to refer to when addressing the ultimate
determination concerning class certification. Therefore, the
Court denied the Plaintiff's motion to exclude the opinion of
Chiagouris from the Court's consideration.
The Court denied the Plaintiffs' motion to strike the submission
of: (i) a purported master rental agreement on the ground that it
does not illustrate anything concerning e-Toll disclosures; (ii) a
photo of an electronic screen showing a disclosure that the
plaintiff argues was buried under a cover letter during discovery;
(iii) a sample online reservation screen shot; and (iv) examples
of disclosures when the e-Toll system was being overseen by an
entity other than HTA. The Court alone will be tasked with
weighing the merits of the exhibits submitted in support of the
Muhs Declaration, not a jury, and thus no harm or confusion will
be caused. Those exhibits may be considered for the purposes of
opposition to the Plaintiffs' forthcoming motion for class
certification if the Defendants choose to resubmit them.
A full-text copy of the Court's June 21, 2017, opinion is
available at https://goo.gl/oiw4h5 from Leagle.com.
JOSE MENDEZ, Plaintiff, represented by KATRINA CARROLL --
kcarroll@litedepalma.com -- LITE DEPALMA GREENBERG, LLC.
JOSE MENDEZ, Plaintiff, represented by SUSANA CRUZ HODGE --
scruzhodge@litedepalma.com -- LITE DEPALMA GREENBERG LLC & JOSEPH
J. DEPALMA -- jdepalma@litedepalma.com -- LITE, DEPALMA,
GREENBERG, LLC.
AVIS BUDGET GROUP, INC., Defendant, represented by PAUL J. HALASZ
-- phalasz@daypitney.com -- DAY PITNEY LLP.
AVIS RENT A CAR SYSTEM, LLC, Defendant, represented by PAUL J.
HALASZ, DAY PITNEY LLP.
HIGHWAY TOLL ADMINISTRATION, LLC, Defendant, represented by PAUL
J. HALASZ, DAY PITNEY LLP.
BARNES & NOBLE: Judge Tosses Data Breach Class Action
-----------------------------------------------------
Rick Archer, Shayna Posses and Allison Grande, writing for Law360,
report that an Illinois federal judge shot down a class action
complaint over a Barnes & Noble data breach for the third and
final time on June 13, saying the class representatives had failed
to show economic damages.
U.S. District Judge Andrea R. Wood dismissed with prejudice the
suit from a group of Barnes & Noble customers for alleged theft of
their personally identifiable information, saying prior court
ruling had established economic damages must be alleged to state a
claim.
"In light of this, plaintiffs' alleged injuries to the value of
their PII, their time spent with bank and police employees and any
emotional distress they might have suffered are not injuries
sufficient to state a claim," Judge Wood said. "In a similar
vein, plaintiffs' temporary inability to use their bank accounts
is also insufficient to state a claim -- the temporary inability
to use a bank account is not a monetary injury in itself, and
plaintiffs have not set forth any allegations about how they
suffered monetary injury due to the inconvenience of not being
able to access their accounts."
The suit by a group of B&N book buyers alleged breach of contract,
invasion of privacy and violations of various Illinois and
California consumer fraud and breach reporting statutes stemming
from a 2012 security breach that compromised credit and debit
cards swiped at PIN pad terminals at 63 stores in nine states.
U.S. District Judge John W. Darrah first tossed the suit without
prejudice in 2013, holding that none of the consumers had shown
that their personal information had actually been stolen when
hackers tapped into the PIN pads and thus lacked standing to bring
the suit.
But on Oct. 3, Judge Wood held that the book buyers had fixed
those deficiencies but hadn't sufficiently pled their claims for
breach of contract, invasion of privacy and violations of various
Illinois and California consumer fraud and breach reporting
statutes, telling them to try again.
The plaintiffs have continued to stand by their claims, arguing in
a January reply brief that they still have standing and have
alleged sufficient injuries, and that Barnes & Noble's "cavalier
attitude contravenes law and public policy."
In her ruling, Judge Wood said most of the injuries alleged by the
lead plaintiffs -- such as blocks on bank accounts, time spent
sorting out their financial affairs and a decision to purchase
credit monitoring services -- are not actual economic injuries and
were insufficient to state a claim.
"Even with the benefit of the court's prior ruling, plaintiffs
primarily rested on the same theories of injury that had been
rejected in the prior ruling. Moreover, the additional putative
injuries that plaintiffs added to the SAC failed for very similar
reasons," she said. "The court thus concludes that plaintiffs do
not have any other injuries that can ground their claims for
relief. If plaintiffs did have injuries that could ground their
claims for relief, they have been given ample opportunity to bring
those to the court's attention."
Counsel for the plaintiffs and Barnes & Noble did not immediately
respond to requests for comment on June 14.
Barnes & Noble is represented by Peter V. Baugher of Honigman
Miller Schwartz and Cohn LLP and Kenneth L. Chernof --
kenneth.chernof@apks.com -- kenneth.chernof@apks.com -- of Arnold
& Porter Kaye Scholer LLP.
The plaintiffs are represented by Joseph J. Siprut of Siprut PC
and Ben Barnow of Barnow & Associates PC.
The case is In re: Barnes & Noble Pin Pad Litigation, case number
1:12-cv-08617, in the U.S. District Court for the Northern
District of Illinois. [GN]
BEST BUY: 2 Class Suits Still Stayed Pending IBEW Discovery
-----------------------------------------------------------
Best Buy Co., Inc. disclosed in its Form 10-Q filed on June 5,
2017, with the U.S. Securities and Exchange Commission for the
quarterly period ended April 29, 2017 that two purported class
actions, each filed by a single shareholder, remain stayed pending
the close of discover in a consolidated IBEW Local 98 Pension Fund
v. Best Buy Co., Inc., et al. case.
The 2 class actions are:
* a purported class action filed in July 2011 by a single
shareholder, Daniel Himmel, against the Company and certain of its
executive officers in the U.S. District Court for the State of
Minnesota. This was consolidated with another case with the
consolidated action captioned, In Re: Best Buy Co., Inc.
Shareholder Derivative Litigation; and
* a similar purported class action filed in June 2015 by a
single shareholder, Khuong Tran, derivatively on behalf of Best
Buy Co., Inc. against the Company and certain of its executive
officers and directors in the same court.
In February 2011, a purported class action lawsuit captioned, IBEW
Local 98 Pension Fund, individually and on behalf of all others
similarly situated v. Best Buy Co., Inc., et al., was filed
against the Company and certain of its executive officers in the
U.S. District Court for the District of Minnesota. This federal
court action alleges, among other things, that the Company and the
officers named in the complaint violated Sections 10(b) and 20A of
the Exchange Act and Rule 10b-5 under the Exchange Act in
connection with press releases and other statements relating to
the Company's fiscal 2011 earnings guidance that had been made
available to the public.
Additionally, in March 2011, a similar purported class action was
filed by a single shareholder, Rene LeBlanc, against the Company
and certain of its executive officers in the same court.
In July 2011, after consolidation of the IBEW Local 98 Pension
Fund and Rene LeBlanc actions, a consolidated complaint captioned,
IBEW Local 98 Pension Fund v. Best Buy Co., Inc., et al., was
filed and served. The Company filed a motion to dismiss the
consolidated complaint in September 2011, and in March 2012,
subsequent to the end of fiscal 2012, the court issued a decision
dismissing the action with prejudice.
In April 2012, the plaintiffs filed a motion to alter or amend the
court's decision on the Company's motion to dismiss. In October
2012, the court granted plaintiff's motion to alter or amend the
court's decision on the Company's motion to dismiss in part by
vacating such decision and giving plaintiff leave to file an
amended complaint, which plaintiff did in October 2012.
The Company filed a motion to dismiss the amended complaint in
November 2012 and all responsive pleadings were filed in December
2012. A hearing was held on April 26, 2013.
On August 5, 2013, the court issued an order granting the
Company's motion to dismiss in part and, contrary to its March
2012 order, denying the motion to dismiss in part, holding that
certain of the statements alleged to have been made were not
forward-looking statements and therefore were not subject to the
"safe-harbor" provisions of the Private Securities Litigation
Reform Act.
Plaintiffs moved to certify the purported class. By Order filed
August 6, 2014, the court certified a class of persons or entities
who acquired Best Buy common stock between 10:00 a.m. EDT on
September 14, 2010, and December 13, 2010, and who were damaged by
the alleged violations of law.
The 8th Circuit Court of Appeals granted the Company's request for
interlocutory appeal. On April 12, 2016, the 8th Circuit held the
trial court misapplied the law and reversed the class
certification order. IBEW petitioned the 8th Circuit for a
rehearing en banc, which was denied on June 1, 2016.
In October 2016, IBEW advised the trial court it will not seek
review by the Supreme Court. The trial court has set a January
2017 conference to discuss next steps.
The Company said, "We continue to believe that these allegations
are without merit and intend to vigorously defend our company in
this matter."
Best Buy Co., Inc. operates as a retailer of technology products,
services, and solutions in the United States, Canada, and Mexico.
The Company operates through two reportable segments, Domestic and
International. The Company was formerly known as Sound of Music,
Inc. It was founded in 1966 and is headquartered in Richfield,
Minnesota.
BRISTOL-MYERS: Nonresidents Can't Pursue Claims in California
-------------------------------------------------------------
The U.S. Supreme Court, in a decision delivered by Justice Alto,
reversed the California Supreme Court's ruling holding that the
California courts have specific jurisdiction to entertain
nonresidents' claims.
More than 600 plaintiffs -- consisting of 86 California residents
and 592 residents from other States -- filed a civil action in the
California Superior Court against Bristol-Myers Squibb Company,
asserting a variety of state-law claims based on injuries
allegedly caused by a BMS drug called Plavix, a prescription drug
that thins the blood and inhibits blood clotting. All the
complaints asserted 13 claims under California law, including
products liability, negligent misrepresentation, and misleading
advertising claims.
BMS is incorporated in Delaware, headquartered in New York, and
maintains substantial operations in both New York and New Jersey.
The company also engages in business activities in other
jurisdictions, including California, where five of the company's
research and laboratory facilities are located. BMS did not
develop Plavix in California, but the company sold almost 187
million Plavix pills in the State and took in more than $900
million from those sales.
Asserting lack of personal jurisdiction, BMS moved to quash
service of summons on the nonresidents' claims, but the California
Superior Court denied this motion, finding that the California
courts had general jurisdiction over BMS "[b]ecause [it] engages
in extensive activities in California."
BMS unsuccessfully petitioned the State Court of Appeal for a writ
of mandate, but after the Supreme Court's decision on general
jurisdiction in Daimler AG v. Bauman, 571 U. S. ___ (2014), the
California Supreme Court instructed the Court of Appeal "to vacate
its order denying mandate and to issue an order to show cause why
relief sought in the petition should not be granted."
The Court of Appeal then changed its decision on the question of
general jurisdiction. Under Daimler, it held, general
jurisdiction was clearly lacking, but it went on to find that the
California courts had specific jurisdiction over the nonresidents'
claims against BMS.
The California Supreme Court affirmed. The court unanimously
agreed with the Court of Appeal on the issue of general
jurisdiction, but the court was divided on the question of
specific jurisdiction.
The Supreme Court notes that in order for a state court to
exercise specific jurisdiction, "the suit" must "aris[e] out of or
relat[e] to the defendant's contracts with the forum." This
means, there must be "an affiliation between the forum and the
underlying controversy, principally, [an] activity or an
occurrence that takes place in the forum State and is therefore
subject to the State's regulation." For this reason, the Supreme
Court held, "specific jurisdiction is confined to adjudication of
issues deriving from, or connected with, the very controversy that
establishes jurisdiction."
The Supreme Court held that the case here "illustrates the danger
of the California approach." The Supreme Court pointed out that
the State Supreme Court found that specific jurisdiction was
present without identifying any adequate link between the State
and the nonresidents' claims. The Supreme Court noted that the
nonresidents were not prescribed Plavix in California, did not
purchase Plavix in California, did not ingest Plavix in
California, and were not injured by Plavix in California. The
mere fact that other plaintiffs were prescribed, obtained, and
ingested Plavix in California -- and allegedly sustained the same
injuries as did the nonresidents -- does not allow the State to
assert specific jurisdiction over the nonresidents' claims.
The Supreme Court concluded that its decision does not prevent the
California and out-of-state plaintiffs from joining together in a
consolidated action in the States that have general jurisdiction
over BMS. BMS concedes that those suits could be brought in
either New York or Delaware.
Justice Alito is joined by Chief Justice Roberts, and Justices
Kennedy, Thomas, Ginsburg, Breyer, Kagan, and Gorsuch.
Justice Sotomayor dissented, stating that she "fear[s] the
consequences of the Court's decision today will be substantial.
The majority's rule will make it difficult to aggregate the claims
of plaintiffs across the country whose claims may be worth little
alone. It will make it impossible to bring a nationwide mass
action in state court against defendants who are "at home" in
different States. And it will result in piecemeal litigation and
the bifurcation of claims."
Justice Sotomayor added that "[a] core concern in this Court's
personal jurisdiction cases is fairness. And there is nothing
unfair about subjecting a massive corporation to suit in a State
for a nationwide course of conduct that injures both forum
residents and nonresidents alike."
Justice Sotomayor said the California courts appropriately
exercised specific jurisdiction over respondents' claims, pointing
out that Bristol-Myers "purposefully avail[ed] itself," of
California and its substantial pharmaceutical market. The
dissenting justice also pointed out that the respondents' claims
"relate to" Bristol-Myers' instate conduct.
The case is BRISTOL-MYERS SQUIBB COMPANY, Petitioner, v. SUPERIOR
COURT OF CALIFORNIA, SAN FRANCISCO COUNTY, ET AL., No. 16-466
(U.S.).
A full-text copy of the Supreme Court's decision dated June 19,
2017, is available at https://is.gd/ajFMx5 from Leagle.com.
Neal Kumar Katyal, Hogan Lovells US LLP --
neal.katyal@hoganlovells.com -- Attorneys for Petitioner, Bristol-
Myers Squibb Company.
Thomas C. Goldstein, Goldstein & Russell, P.C. --
tg@goldsteinrussell.com -- Attorneys for Respondents, Superior
Court of California, San Francisco County, et al.
Louis M. Bograd, Motley Rice, LLC -- lbograd@motleyrice.com -- for
Public Justice, P.C.
Pamela Karten Bookman, Temple University, Beasley School of Law --
pamela.bookman@temple.edu -- for Civil Procedure Professors.
Jeffrey S. Bucholtz, King & Spalding LLP -- jbucholtz@kslaw.com --
for GlaxoSmithKline LLC.
Larry Coben, Anapol Weiss -- lcben@anapolweiss.com -- for The
Center for Auto Safety.
Lawrence S. Ebner, Capital Appellate Advocacy, PLLC --
lawrence.ebner@capitalappellate.com -- for DRI-The Voice of the
Defense Bar.
Noel J. Francisco, Acting Solicitor General, United States
Department of Justice -- SupremeCtBriefs@USDOJ.gov -- for United
States.
David C. Frederick, Kellogg, Huber, Hansen, Todd, Evans & Figel,
P.L.L.C. -- dfrederick@kellogghansen.com -- for TV Azteca, S.A.B.
de C.V., et al.
John Blaise Gsanger, The Edwards Law Firm, for Attorneys
Information Exchange Group.
Mark Haddad, Sidley Austin LLP -- mhaddad@sidley.com -- for
Pharmaceutical Research and Manufacturers of America.
Allan Ides, allan.ides@lls.edu, for Professors of Civil Procedure
and Federal Courts.
Erik S. Jaffe, Erik S. Jaffe, P.C. -- jaffe@esjpc.com -- for
California Constitution Center.
Martin S. Kaufman, Atlantic Legal Foundation --
mskaufman@atlanticlegal.org -- for Atlantic Legal Foundation, et
al.
Rachel Peter Kovner -- rachel.kovner@usdoj.gov -- for United
States.
Thomas S. Leatherbury, Vinson & Elkins LLP --
tleatherbury@velaw.com -- for Reporters Committee for Freedom of
the Press and Texas Association of Broadcasters.
Jonathan S. Massey, Massey & Gail, LLP -- jmassey@masseygail.com -
- for MoneyMutual LLP.
Jonathan S. Massey, Massey & Gail, LLP -- jmassey@masseygail.com -
-- for MoneyMutual LLP.
Alan B. Morrison, George Washington University Law School --
abmorrison@law.gwu.edu -- for Alan B. Morrison.
Robert S. Peck, Center for Constitutional Litigation, P.C. --
robert.peck@cclfirm.com -- for The American Association for
Justice.
Joel Gerard Pieper, Womble Carlyle, Sandridge & Rice, LLP --
jpieper@wcsr.com -- for Product Liability Advisory Council, Inc.
Andrew J. Pincus, Mayer Brown LLP -- apincus@mayerbrown.com -- for
Chamber of Commerce of the United States of America, et al.
Brent M. Rosenthal, Rosenthal Weiner LLP --
brent@rosenthalweiner.com -- for Asbestos Disease Awareness
Organization.
Richard A. Samp, Washington Legal Foundation -- rsamp@wlf.org --
for Washington Legal Foundation, et al.
Alan E. Untereiner, Robbins, Russell, Englert, Orseck, Untereiner
& Sauber LLP -- auntereiner@robbinsrussell.com -- for Product
Liability Advisory Council, Inc.
Jeffrey B. Wall, Acting Solicitor General, United States
Department of Justice -- SupremeCtBriefs@USDOJ.gov -- for the
United States.
BRISTOL-MYERS: Ruling to Impact Mass Torts in Three States
----------------------------------------------------------
Max Mitchell, writing for The Legal Intelligencer, reports that
the U.S. Supreme Court's recent game-changing decision in Bristol-
Myers Squibb v. Superior Court of California is widely seen as the
beginning of the end for mass torts in several venues that have
historically attracted large-scale litigation, including
California and Missouri.
But, for Pennsylvania -- another state with significant mass tort
dockets -- the ruling is expected to be much more of a mixed bag,
and, according to some, could instead lead to an uptick in suits
against certain defendants.
On June 19, a majority of the Supreme Court determined that
plaintiffs suing Bristol-Myers Squibb in California who were not
California residents had failed to establish specific jurisdiction
over the pharmaceutical giant, since there was no significant link
between the claims and Bristol-Myers' conduct in California. The
ruling, according to observers, makes clear that out-of-state
plaintiffs can't sue companies in states where the defendants
aren't considered to be "at home," or haven't conducted business
directly linked to the claimed injury.
Even before the Supreme Court made its ruling, motions were filed
in Pennsylvania and across the country seeking stays until the
justices ruled on the issue. Since Bristol-Myers Squibb came
down, it has already led to one mistrial, and attorneys in
Pennsylvania said they are already beginning to file
jurisdictional challenges based on the case.
According to James Beck -- jmbeck@reedsmith.com -- a products
liability attorney with Reed Smith, the ruling means all of the
cases in Philadelphia filed by out-of-state plaintiffs are subject
to being tossed out of Pennsylvania state court. According to the
latest statistics from Philadelphia's Complex Litigation Center,
that means 33 percent of the asbestos cases and 74 percent of the
pharmaceutical cases filed in 2016 could potentially be affected
by the decision.
"Unless they are suing a Pennsylvania defendant -- and there are
some -- every one of those cases, where a non-Pennsylvania
plaintiff has come to Philadelphia to sue someone, is potentially
implicated," Mr. Beck said.
However, plaintiffs attorneys say Pennsylvania's business consent
laws and the fact that many pharmaceutical businesses have strong
ties to the Philadelphia area put the Keystone State in a
different situation than other venues that historically saw
significant mass tort litigation.
"Janssen [the defendant in the Risperdal mass tort] is a
Pennsylvania corporation. With Bayer, which is a Pennsylvania
corporation, nothing changes. Merck, which has significant
facilities here, under the right factual pattern, would be in
Philadelphia. Ethicon, which is in the transvaginal mesh cases,
purchased material from a Pennsylvania corporation, so nothing has
changed," Kline & Specter attorney Thomas Kline --
Tom.Kline@KlineSpecter.com -- whose firm is handling cases in both
the Risperdal and transvaginal mesh mass torts, said.
Attorneys agreed that the ruling will most dramatically impact
mass tort programs in Illinois, Missouri and California, which is
where hundreds of other Risperdal cases have been filed. Those
courts, according to attorneys, were more favorable toward
allowing in out-of-state claims. Attorneys noted that Missouri,
for example, had allowed out-of-state plaintiffs to join their
claims, or "tag along," with complaints filed by in-state
plaintiffs. That practice is not allowed in Philadelphia.
Cases in those jurisdictions directly affected by Bristol-Myers
Squibb might see their cases transferred either to federal court,
or venues deemed to be either, the company's home, or where the
conduct occurred that was sufficiently linked to the injury.
That could mean Pennsylvania would see an increase in litigation
against specific defendants.
"The Pennsylvania-incorporated product manufacturers are going to
get sued more here in Pennsylvania," Abby Sacunas --
asacunas@cozen.com -- a partner in Cozen O'Connor's products
liability practice, said.
Others agreed.
The decision will "send cases where the court believes they
belong," Mr. Kline said. "A place where the Risperdal cases would
belong would be Philadelphia."
BRISTOL-MYERS: SCOTUS Ruling Game Changer, Defense Bar Says
-----------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that "The big one." "A major victory." "A game changer." That's
how many lawyers in the defense bar described the June 19 landmark
decision by the U.S. Supreme Court in Bristol-Myers Squibb v.
Superior Court of California.
They're not too far off. In mere hours, a judge in Missouri ended
a pivotal trial over Johnson & Johnson's baby powder because of
the court's decision, granting a mistrial in a courtroom in St.
Louis, a venue favored by many plaintiffs.
Even plaintiffs lawyers concede that Bristol-Myers took a hatchet
to a lucrative growth area in mass torts: Lawsuits brought on
behalf of dozens of individuals in venues considered more
favorable to plaintiffs, such as certain state courts in
California, Illinois, Missouri and Texas. The court held that
plaintiffs in such a case against Bristol-Myers Squibb Co. --
referred to as a "mass action" -- had failed to establish specific
jurisdiction because there wasn't enough of a link between their
claims and California, where they brought their lawsuit. The
ruling, like many of the Supreme Court's prior decisions on
jurisdictional matters, tightened the rules on where corporate
defendants can be sued.
"It clearly is a game changer for certain of these state courts
that have been receptive to the mass actions," said
Scott Solberg -- ssolberg@eimerstahl.com -- a partner at Eimer
Stahl in Chicago. "I don't think this will be the end of mass
actions, but the ones that are filed, unless they're filed in the
defendants' home court, will have less mass."
Defense attorneys saw the ruling as reining in a California
Supreme Court decision last year that came up with what the U.S.
Supreme Court called a "loose and spurious form of general
jurisdiction." But the impact was felt nationwide.
"I'm very concerned this is going to make it much harder to have
consolidated nationwide actions," said Paul Bland, executive
director of Public Justice in Washington, which filed an amicus
brief in the case. "Where you have a mass tort that affects a lot
of people, you may see suits in a whole bunch of different states.
For people who live in rural states, where the population is below
some threshold, you may see people walk away from those
completely."
The immediate impact is that, under the terms of the justices'
holding, mass actions must be filed in the state where the
defendant is headquartered or incorporated. That's often in New
Jersey and New York for pharmaceutical drugs and medical devices,
which make up the majority of mass actions. The ruling is
expected to have the greatest impact on new cases, rather than
existing litigation, with both sides anticipating a flood of
motions challenging jurisdiction from the starting gate.
"This decision will help reinforce that both in-house counsel and
outside counsel need to have personal jurisdiction on the check
list of early litigation strategy items to discuss," said
Timothy Droske -- droske.tim@dorsey.com -- of counsel at Dorsey &
Whitney in Minneapolis.
On the plaintiffs' side, Ken Seeger -- kseeger@seegersalvas.com --
a partner at Seeger Salvas & Devine in San Francisco, said he
anticipated more mass actions to be filed in New Jersey, New York
and other jurisdictions where companies are based. That's bad for
plaintiffs attorneys, who consider those venues to have less of an
"even playing field." Of course, mass actions still could be filed
in California and other states as long as they're brought in a
defendant's home turf or on behalf of residents in those states.
But filing a mass action on behalf of one state's residents is a
much smaller case. And that's what Bristol-Myers is really about,
Mr. Seeger said.
"The key here is that individual claims may not be valuable enough
or may not have the resources behind them enough to conduct the
type of discovery necessary and research necessary in these
cases," Mr. Seeger said. A nationwide mass action allows lawyers
to cobble their manpower and financial resources to fund the
litigation. "That's the key, and that's why the defendants pushed
so hard, why they're so happy with this decision. It makes it more
difficult for plaintiffs lawyers to organize."
The Bristol-Myers case involved more than 600 plaintiffs who sued
over injuries attributed to the blood thinner Plavix. The bulk of
the plaintiffs didn't live in California, and Bristol-Myers is
based in New York.
LEAVING CALIFORNIA
The Supreme Court's ruling noted that the plaintiffs who didn't
live in California didn't get Plavix in California, didn't take it
in California and weren't injured in California.
But, unlike the California Supreme Court's ruling, the U.S.
Supreme Court found research facilities in California were
"unrelated to Plavix" and that McKesson Corp., a distributor in
California, didn't have a close enough connection to the claims.
"What is needed -- and what is missing here -- is a connection
between the forum and the specific claims at issue," wrote Justice
Samuel Alito.
That makes clear what doesn't establish specific jurisdiction. But
what does? The question leaves a lot of room for debate.
"That kind of question, what kind of connection between the claims
and the forum, will be hotly litigated in cases where there is
some connection," said Andrew Pincus, a partner at Mayer Brown in
Washington who represented the U.S. Chamber of Commerce in an
amicus brief in the case.
BROCADE COMMUNICATIONS: Seeks Dismissal of "Hussey" Complaint
-------------------------------------------------------------
In the case captioned, Hussey v. Ruckus Wireless, Inc. et al.,
Case No. 3:16-cv-02991 (N.D. Cal.), the Hon. Edward M Chen held a
hearing on June 15, 2017, to consider the Motion to Dismiss the
Second Amended Complaint. Following the hearing, the Court took
the matter under submission. The Court set this timeline:
Case Management Statement due by Aug. 24, 2017
Further Case Management Conference set for Aug. 31, 2017
10:30 a.m. in Courtroom 5, 17th Floor, San Francisco.
According to Brocade Communications Systems, Inc.'s Form 10-Q
filed on June 2, 2017 with the U.S. Securities and Exchange
Commission for the quarterly period ended April 29, 2017, the
Company on May 27, 2016, completed its acquisition of Ruckus
Wireless, Inc., a public company incorporated in the state of
Delaware, to strengthen its Internet Protocol ("IP") Networking
product portfolio by adding Ruckus' wireless products and services
to the Company's networking solutions.
The class action is pending in the United States District Court
for the Northern District of California. The original complaint
in the Hussey action, filed on June 3, 2016, alleged that Ruckus,
members of the Ruckus board of directors, Ruckus' chief financial
officer, Brocade, and a Brocade subsidiary violated Section 14(e)
of the Exchange Act based on allegedly false and/or misleading
statements and/or alleged omissions in the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by
Ruckus with the SEC on April 29, 2016, and violated Section
14(d)(7) of the Exchange Act and Rule 14d-10 promulgated
thereunder based on the allegedly differential consideration
received by members of the Ruckus board of directors and Ruckus'
chief financial officer in connection with the acquisition.
An amended complaint, filed on October 24, 2016, named the same
defendants as the original complaint and alleged that the
defendants violated Sections 14(e), 14(d)(7), and 20(a) of the
Exchange Act and Rule 14d-10 promulgated thereunder, that the
members of the Ruckus board of directors breached their fiduciary
duties to Ruckus stockholders, and that Ruckus' chief financial
officer, Brocade, and the Brocade subsidiary aided and abetted the
members of the Ruckus board of directors in breaching their
fiduciary duties to Ruckus stockholders. The amended complaint
sought an award of damages in an unspecified amount.
On December 8, 2016, all defendants filed a motion to dismiss the
amended complaint.
On February 21, 2017, the court granted the motion and dismissed
the amended complaint, with leave to amend as to all claims except
the claim for violations of Section 14(d)(7) of the Exchange Act
and Rule 14d-10 promulgated thereunder, which claim was dismissed
without leave to amend.
A second amended complaint was filed on March 27, 2017, adding
Ruckus' financial advisor as an additional defendant and alleging
that certain of the defendants violated Sections 14(e) and 20(a)
of the Exchange Act, that the members of the Ruckus board of
directors and Ruckus' chief financial officer breached their
fiduciary duties to Ruckus stockholders, and that Brocade and the
Brocade subsidiary aided and abetted the individual defendants in
breaching their fiduciary duties to Ruckus stockholders by
purportedly doing one or more of the following: agreeing to terms
preferential to the defendants and other Ruckus insiders;
accepting overly restrictive deal protection measures in the
merger agreement; failing to negotiate for a collar on Brocade's
stock price; providing allegedly false, misleading, and/or
incomplete disclosures regarding conflicts of interest and the
opinion of Ruckus' financial advisors; and ultimately agreeing to
unfair transaction consideration for the Ruckus shares. The
second amended complaint seeks an award of damages in an
unspecified amount.
On April 27, 2017, all defendants filed a motion to dismiss the
second amended complaint.
Brocade Communications Systems, Inc., is a supplier of networking
hardware, software, and services for businesses and organizations
of various types and sizes. The Company's end customers include
global enterprises and other organizations that use its products
and services as part of their communications infrastructure. In
addition, service providers, such as telecommunication firms,
cable operators, and mobile carriers, use the Company's products
and services as part of their commercial operations.
BROCADE COMMUNICATIONS: Court Combines 6 Merger Suits
-----------------------------------------------------
Brocade Communications Systems, Inc. disclosed in its Form 10-Q
filed in June 2, 2017 with the U.S. Securities and Exchange
Commission for the quarterly period ended April 29, 2017 that the
United States District Court for the Northern District of
California has consolidated on April 13, 2017, the six purported
class action lawsuits arising from its proposed acquisition by
Broadcom Limited.
On November 2, 2016, the Company entered into an Agreement and
Plan of Merger with Broadcom Limited, a limited liability company
organized under the laws of the Republic of Singapore, Broadcom
Corporation, a California corporation and an indirect subsidiary
of Broadcom ("Parent"), and Bobcat Merger Sub, Inc., a Delaware
corporation and a direct wholly owned subsidiary of Parent
("Merger Sub"), providing for the merger of Merger Sub with and
into the Company (the "Merger"), with the Company surviving as a
wholly owned subsidiary of Parent. On December 19, 2016, Parent
assigned all of its rights under the Merger Agreement to LSI
Corporation, a Delaware corporation and an indirect subsidiary of
Broadcom.
Subsequent to the announcement that Brocade had agreed to be
acquired by Broadcom, six purported class action complaints have
been filed on behalf of Brocade's stockholders against Brocade and
members of its board of directors in the United States District
Court for the Northern District of California. Three of the six
complaints also name Broadcom Limited, Broadcom Corporation,
and/or Bobcat Merger Sub, Inc. as defendants.
The six complaints are captioned as follows: Steinberg v. Brocade
Communications Systems, Inc., et al. (filed December 12, 2016)
(the "Steinberg action"); Gross v. Brocade Communications Systems,
Inc., et al. (filed December 15, 2016); Bragan v. Brocade
Communications Systems, Inc., et al. (filed December 21, 2016);
Jha v. Brocade Communications Systems, Inc., et al. (filed
December 21, 2016) (the "Jha action"); Chuakay v. Brocade
Communications Systems, Inc., et al. (filed January 5, 2017) (the
"Chuakay action"); and Matthew v. Brocade Communications Systems,
Inc., et al. (filed January 18, 2017) (collectively, the "Broadcom
Acquisition-Related Litigation").
The complaints each allege violations of Sections 14(a) and 20(a)
of the Exchange Act and SEC Rule 14a-9 arising out of the
Company's preliminary proxy statement filed with the SEC on
December 6, 2016 (the "preliminary proxy statement") and/or the
Company's definitive proxy statement filed with the SEC on
December 20, 2016 (the "definitive proxy statement") relating to
Broadcom's proposed acquisition of Brocade.
Specifically, the plaintiffs allege that the preliminary proxy
statement and/or the definitive proxy statement omits material
information regarding the background of the transaction, the
Company's financial projections, the Company's intrinsic value and
prospects, the valuation analyses performed by Evercore Group
L.L.C. ("Evercore"), the Company's financial advisor in connection
with the transaction, and alleged conflicts of interest faced by
Evercore. The plaintiffs in each action seek to enjoin the
defendants from consummating the transaction, or, if the
transaction is consummated, the plaintiffs alternatively seek
rescission and/or damages. The plaintiffs also seek costs and
fees.
On January 11, 2017, the plaintiff in the Jha action filed a
motion (the "Injunction Motion") seeking to preliminarily enjoin
the special meeting of Brocade stockholders scheduled for January
26, 2017, at which time Brocade stockholders were to vote on the
transaction. The plaintiffs in the Steinberg action and the
Chuakay action subsequently joined the Injunction Motion. To
mitigate the risk of the Broadcom Acquisition-Related Litigation
delaying or adversely affecting the transaction, and to minimize
the expense of defending the Broadcom Acquisition-Related
Litigation, and without admitting any liability or wrongdoing, on
January 18, 2017, the Company made certain disclosures that
supplemented and revised those contained in the definitive proxy
statement. The plaintiffs in the Jha action, the Steinberg
action, and the Chuakay action subsequently withdrew the
Injunction Motion.
On April 13, 2017, the court consolidated the six actions and
named a lead plaintiff.
Brocade Communications Systems, Inc., is a supplier of networking
hardware, software, and services for businesses and organizations
of various types and sizes. The Company's end customers include
global enterprises and other organizations that use its products
and services as part of their communications infrastructure. In
addition, service providers, such as telecommunication firms,
cable operators, and mobile carriers, use the Company's products
and services as part of their commercial operations.
BROOKS BROTHERS: "Ables" Hits Data Breach, Lack of Data Security
----------------------------------------------------------------
Scott Ables, individually and on behalf of all others similarly
situated, Plaintiff, v. Brooks Brothers Group, Inc., Defendant,
Case No. 2:17-cv-04309 (C.D. Cal., June 9, 2017), seeks damages,
injunctive relief, attorneys' fees and any other available legal
or equitable remedies resulting from breach of implied contract,
negligence and violation of California's Unfair Competition Law,
California Business and Professions Code and constitutional
invasion of privacy.
Brooks Brothers sells high-end suits through 223 store locations
nationwide. They experienced a security breach compromising Brooks
Brothers store customers' name, credit and debit card account
numbers, card expiration dates, card verification codes, which
included personal identifying information. [BN]
Plaintiff is represented by:
Bobby Saadian, Esq.
Colin M. Jones, Esq.
Daniel B. Miller, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
BRP US INC: "Feldman" Sues Over Denied Warranty Claim
-----------------------------------------------------
Brian Feldman and Daniel Dickerson, individually, and on behalf of
a class of similarly situated individuals, Plaintiffs, v. BRP US,
Inc., Bombardier Recreational Products, Inc. and BRP, Inc.,
Defendants, Case No. 0:17-cv-61150 (S.D. Fla., June 7, 2017),
seeks to enjoin Defendants from further deceptive marketing;
removal and replacement of defective exhaust systems with a
suitable alternative product; compensatory, exemplary, statutory
damages; treble and punitive damages, including interest;
disgorgement of all ill-gotten profits it received from the sale
of the defective personal watercrafts; full restitution;
attorneys' fees and costs; prejudgment and post-judgment interest;
and such other relief resulting from breach of express and implied
warranty, statutory fraud, unjust enrichment and violation of the
Magnuson-Moss Warranty Act.
Feldman purchased a 2015 Sea-Doo GTI 130 SI from West Coast Power
Sports, an authorized Sea-Doo retailer in Clearwater, Florida.
However, its exhaust system resonator melted and took on water.
Defendants have refused to make the necessary repairs under the
applicable warranties. [BN]
The Plaintiff is represented by:
Steven R. Jaffe, Esq.
Mark S. Fistos, Esq.
FARMER, JAFFE, WEISSING, EDWARDS FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Telephone: (954) 524-2820
Facsimile: (954) 524-2822
Email: steve@pathtojustice.com
mark@pathtojustice.com
- and -
Matthew R. Mendelsohn, Esq.
MAZIE SLATER KATZ & FREEMAN, LLC
103 Eisenhower Parkway
Roseland, NJ 07068
Telephone: (973) 228-9898
E-mail: mmendelsohn@mskf.net
- and -
Richard E. Norman, Esq.
R. Martin Weber, Jr., Esq.
CROWLEY NORMAN, LLP
3 Riverway, Suite 1775
Houston, TX 77056
Telephone: (713) 650-1771
E-mail: rnorman@crowleynorman.com
mweber@crowleynorman.com
- and -
Britton D. Monts, Esq.
THE MONTS FIRM
Frost Bank Tower
401 Congress Ave., #1540
Austin, TX 78701
Telephone: 512-474-6092
E-mail: bmonts@themontsfirm.com
CABELA'S INC: "Garcarz" Sues Over Shadowy Merger Deal
-----------------------------------------------------
Bernard Garcarz, individually and on behalf of all others
similarly situated, Plaintiff, v. Cabela's, Inc., Theodore M.
Armstrong, James W. Cabela, John H. Edmondson, Dennis Highby,
Michael R. Mccarthy, Donna M. Milrod, Thomas L. Millner, Beth M.
Pritchard, Peter S. Swinburn and James F. Wright, Defendants, Case
No. 1:17-cv-00699 (D. Del., June 7, 2016), seeks to preliminarily
and permanently enjoin Defendants from proceeding with,
consummating, or closing the acquisition of Cabela's by Bass Pro
Group. The suit also seeks rescissory damages against the
individual Defendants, including, but not limited to, prejudgment
and post-judgment interest, costs and disbursements of this
action, including reasonable attorneys' and expert fees and
expenses, extraordinary, equitable and/or injunctive relief under
the Securities and Exchange Act.
Cabela's markets hunting, fishing, camping, shooting sports and
related outdoor merchandise with over 85 retail locations, a
catalog business and online sales. The merger statement fails to
provide line item metrics used to calculate the non-GAAP measures
of EBITDA and unlevered free cash flow, says the complaint. The
omission of such projections renders the non-GAAP projections
included materially incomplete and therefore misleading, it adds.
[BN]
The Plaintiff is represented by:
Brian D. Long, Esq.
Gina M. Serra, Esq
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Tel: (302) 295-531
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
- and -
Donald J. Enright, Esq.
LEVI & KORSINSKY LLP
Elizabeth K. Tripodi, Esq.
1101 30th Street, N.W., Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
Facsimile: (202) 333-2121
Email: denright@zlk.com
CALIFORNIA CHECK: Ninth Circuit Appeal Filed in "Gilberg" Suit
--------------------------------------------------------------
Plaintiff Desiree Gilberg filed an appeal from a court ruling in
the lawsuit styled Desiree Gilberg v. California Check Cashing
Store, et al., Case No. 2:15-cv-02309-JAM-AC, in the U.S. District
Court for the Eastern District of California, Sacramento.
The nature of suit is stated as consumer credit.
As previously reported in the Class Action Reporter, the lawsuit
was transferred from the U.S. District Court for the Central
District of California, to the U.S. District Court for the Eastern
District of California (Sacramento).
California Check is a financial institution that provides short-
term cash solutions in California. The Company's solutions
include title loans, payroll advances, signature loans, check
cashing, prepaid cards, auto insurance, Western Union money
transfer, tax services, and money orders. The Company was founded
in 1987 and is headquartered in Oakland, California.
The appellate case is captioned as Desiree Gilberg v. California
Check Cashing Store, et al., Case No. 17-16263, in the United
States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by July 14, 2017;
-- Transcript is due on August 14, 2017;
-- Appellant Desiree Gilberg's opening brief is due on
September 22, 2017;
-- Appellees California Check Cashing Stores, LLC and
Checksmart Financial, LLC's answering brief is due on
October 23, 2017; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant DESIREE GILBERG, on behalf of herself, all
others similarly situated, is represented by:
Chaim Shaun Setareh, Esq.
Howard Scott Leviant, Esq.
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: shaun@setarehlaw.com
scott@setarehlaw.com
Defendants-Appellees CALIFORNIA CHECK CASHING STORES, LLC, a
California corporation, and CHECKSMART FINANCIAL, LLC, a Delaware
limited liability company, are represented by:
Crystal S. Chase, Esq.
Timothy W. Snider, Esq.
STOEL RIVES LLP
760 SW Ninth Avenue, Suite 3000
Portland, OR 97205
Telephone: (503) 294-9221
Facsimile: (503) 220-2480
E-mail: crystal.chase@stoel.com
twsnider@stoel.com
- and -
Bryan L. Hawkins, Esq.
STOEL RIVES LLP
500 Capitol Mall
Sacramento, CA 95814
Telephone: (916) 447-0700
E-mail: bryan.hawkins@stoel.com
CALIFORNIA PHYSICIANS' SERVICE: Ct. Certifies Class in Des Roches
-----------------------------------------------------------------
The Hon. Lucy H. Koh grants the Plaintiffs' motion for class
certification in the lawsuit titled CHARLES DES ROCHES, et al. v.
CALIFORNIA PHYSICIANS' SERVICE, et al., Case No. 5:16-cv-02848-LHK
(N.D. Cal.).
The Court certifies this class under Rules 23(b)(1)(A) and
23(b)(2) of the Federal Rules of Civil Procedure:
All participants or beneficiaries of a health benefit plan
administered by either Blue Shield defendant and governed by
ERISA whose request for coverage (whether pre-authorization,
concurrent, post-service, or retrospective) was denied, in
whole or in part, between January 1, 2012 and the present,
based upon the Magellan Medical Necessity Criteria
Guidelines for any of the following levels of care: (i)
Residential Treatment, Psychiatric; (ii) Residential
Treatment, Substance Use Disorders, Rehabilitation; (iii)
Intensive Outpatient Treatment, Psychiatric; or (iv)
Intensive Outpatient Treatment, Substance Use Disorders,
Rehabilitation. Excluded from the Class are Defendants,
their parents, subsidiaries, and affiliates, their directors
and officers and members of their immediate families; also
excluded are any federal, state, or local governmental
entities, any judicial officers presiding over this action
and the members of their immediate families, and judicial
staff.
The Court appoints Charles Des Roches, Sylvia Meyer, and Gayle
Tamler Greco as representatives of the class. The Court also
appoints Psych-Appeal, Inc.; Zuckerman Spaeder LLP; and Grant &
Eisenhofer P.A. as class counsel to represent the class.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=JTSkqvDB
CAMEL CARPENTRY: "Contreras" Seeks Unpaid Minimum Wages
-------------------------------------------------------
Yhon Anderson Arias Contreras and all others similarly situated,
Plaintiff, v. Camel Carpentry Inc., Stefanie Suarez, Elizabeth I.
Negrete, Defendant, Case No. 1:17-cv-22142, (S.D. Fla., June 7,
2017), seeks double damages and reasonable attorney fees from the
Defendants, jointly and severally, pursuant to the Fair Labor
Standards Act, and all minimum wages still owing along with court
costs, interest and any other relief.
Plaintiff worked for Defendants as a laborer from on or about
February 17, 2015 through on or about May 18, 2016. [BN]
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
Email: zabogado@aol.com
CANADA: Mud Lake Flooding Victims Mull Class Action
---------------------------------------------------
Katie Breen, writing for CBC News, reports that a Halifax-based
litigator is in Labrador meeting with Mud Lake flooding victims
and determining whether to launch a class action.
"Well we wouldn't be here if we didn't think there was a causal
connection," lawyer Ray Wagner said about the potential
relationship between the Muskrat Falls hydroelectric project and
last month's flooding.
He'll assess the viability of the case over the next 30 days but
said he's "leaning to proceeding" with a suit he values at well
over $1 million.
Info session
Mr. Wagner held an information session in Happy Valley-Goose Bay
on June 13 to discuss how a lawsuit would work.
The 25 people in attendance signed up. About 100 were affected by
the flooding.
Roland Saunders, one of the people who put his name down, said
he's after "fairness."
"I just want another home, I guess," he said.
"I had a home. The government took it -- the only way to explain
that -- outright took it."
"Now they just kinda want to deny, deny, deny so, you know, just
be fair and give back . . . what I lost, a whole life basically."
In addition to covering the value of damaged property and
potential relocation costs, Mr. Wagner said if the suit proceeds
he'll also be seeking damages for psychological and physical harm
caused by the flood and subsequent evacuation.
Mr. Saunders said water rose 41 inches in his home on Mud Lake
Road and the electrical needs to be replaced.
Even if it's fixed, he said he's not sure he'll ever feel safe
there.
Evacuees unsure about lodging
Mr. Saunders and the other evacuees are staying at 5 Wing Goose
Bay for now.
The base opened its barracks for 30 days.
Mud Lake residents find temporary quarters in air force barracks
Saunders said there's about a week left and he hasn't been told
what will happen when time is up.
"At the end of this 30 days, far as I know, I may be homeless," he
said.
"I don't know if they're going to give us the boot, or give us an
extension on the stay, or what the case may be."
The situation is being reassessed, according to a 5 Wing
spokesperson.
"If there's still a requirement for temporary accommodation at 5
Wing, the Red Cross will communicate it to the province of N.L.
and the request for additional support will then make its way to
[the Department of National Defence,]" the spokesperson said in a
statement to the CBC. [GN]
CANADA: Gov't Fights Blanket Deal for Sixties Scoop Survivors
-------------------------------------------------------------
Tamara Khandaker, writing for News Canada, reports that in a move
Sixties Scoop class action organizers in Ontario are calling
"astonishing," Ottawa is asking for individual hearings to assess
the harm done to each survivor and the compensation they should
receive.
This comes four months after an Ontario court found the federal
government liable for the harm endured by about 16,000 Sixties
Scoop survivors who lost their cultural identities when they were
taken from their homes on reserves and placed with non-Indigenous
adoptive families during a period between 1965 and 1984.
"This would not only come at an exorbitant cost to taxpayers, it
would block access to justice for thousands of Indigenous
Ontarians."
Crown lawyers had hoped to argue that court's decision didn't
establish liability, but the judge had rejected that proposal.
The memo also says causation can't be established on a case-wide
basis and that there shouldn't be a blanket settlement for
victims.
"The government is calling for 16,000 additional individual trials
to determine if harm was done," said Jeffry Wilson, Esq. --
jeffery@wilsonchristen.com -- of Wilson-Christen LLP, lead
attorney for the claimants in a news release. "This would not only
come at an exorbitant cost to taxpayers, it would block access to
justice for thousands of Indigenous Ontarians."
Lead claimant Marcia Brown Martel, who has presented the
government with a framework for settlement out of court, said
"it's as if Canada is saying that the judge's decision in February
meant nothing,"
While Martel's settlement proposal does include direct payments,
survivors would also contribute parts of their compensation to a
healing foundation for survivors, a scholarship for research on
the value and protection of cultural identities in Canada, and a
public art installation acknowledging the history of the Sixties
Scoop.
"What we envisioned was a path forward, the start of a new
relationship between survivors and Canada," said Martel. "What we
got was a painful reminder that we are all still standing in the
dark. It is time for Canada to turn the light on. "
There are currently 17 other Sixties Scoop cases making their way
through courts across the country.
In a brief, the government said class members should come forward
"in individual issues trials to prove class identification,
causation, damages and quantum of damages," if Martel and Roberta
Commanda, another plaintiff, manage to prove harm and are awarded
damages first.
Earlier in the process, an Ontario judge endorsed individual issue
trials as the preferable way to resolve the claims.
"We'd really, really rather get this out of the court."
The government laid out a number of differences in individual
circumstances as reasons why there shouldn't be a single
assessment -- for example, some children who were placed in foster
care retained connections to their biological family, while those
placed in foster homes lost them; some were adopted as infants
while others were older; and some were placed in homes with one
Aboriginal parent.
The plaintiffs have asked for $1.3 billion, with each class action
member receiving around $85,000.
"You can't just say if you fit this broad definition, this is what
you get. That's the only point we're disagreeing on in court,"
said James Fitz-Morris, director of communications for Indigenous
and Northern Affairs Minister Carolyn Bennett. "We're not denying
liability, we're not denying damages."
"We'd really, really rather get this out of the court," said Fitz-
Morris, adding that there was an initial meeting with Brown's
lawyers in May about negotiating a settlement, and that another
one is imminent. [GN]
CARIBOU COFFEE: Settles Suit Over Unsolicited Text Messages
-----------------------------------------------------------
Brian Amaral, Shayna Posses and Steven Trader, writing for Law360,
report that Caribou Coffee Co. and the proposed class of consumers
who accused it of sending unsolicited text messages that violated
the Telephone Consumer Protection Act have reached a settlement
worth $8.5 million, with the chain agreeing to end its message
marketing program as well, according to a Wisconsin federal court
filing.
Lead consumer Kristie Farnham submitted a motion for preliminary
approval asking U.S. District Judge William Conley late on
June 12 to sign off on a deal she says would net each settlement
class member roughly $200. Under the terms of the agreement,
Caribou would also cease its the text message campaign and
implement a significant TCPA compliance program, Ms. Farnham said.
Preliminary approval of the deal is favored, Ms. Farnham argued,
in order to avoid what would likely be lengthy and very expensive
motion practice that could take years before it even reaches a
trial, not to mention the possibility of no damages recovery.
"Rather than embarking on years of protracted and uncertain
litigation, plaintiff and her counsel negotiated a settlement that
provides immediate, certain and meaningful relief to all
settlement class members," the motion read.
Frank Hedin -- fhedin@careyrodriguez.com -- of Carey Rodriguez
Milian Gonya LLP, an attorney for the proposed class, told Law360
via email on June 13 that it was "a hard-fought settlement" that
would "provide meaningful relief to a lot of people."
Counsel for Caribou on June 13 did not immediately return a
request for comment.
Ms. Farnham launched her proposed class action in May 2016
claiming that Caribou had sent her about 50 text message
advertisements on a daily basis since March of that year. The
five-digit number the messages were sent from is an SMS short
code, which indicates that they were sent from an automated
telephone dialing system and reached several other random
cellphone users, her Wisconsin federal complaint said.
Last June, Caribou asked the judge to pause Ms. Farnham's suit
until the D.C. Circuit ruled on a challenge to the Federal
Communications Commission's expansion of the TCPA, including
whether the agency's new definition of what constitutes an
automated telephone dialing system was overbroad and unfair.
Ms. Farnham and the proposed class responded in July, arguing that
the outcome of the D.C. Circuit's ruling in the FCC case would
have no effect on the outcome of her own action, considering that
the machine it used to send the messages would qualify as an
autodialer either way.
Judge Conley back in March agreed with Ms. Farnham, denying
Caribou's pause motion on the grounds that the pending D.C.
Circuit challenge wasn't likely to affect the case.
Ms. Farnham said on June 12 that mediation between the two sides
began in mid-April, with the coffee chain ultimately agreeing to
establish an $8.5 million settlement fund from which valid class
members and class counsel will be compensated.
The leader asked Judge Conley to conditionally certify a class of
anyone in the U.S. who received one or more text messages on their
cellular phone sent by or on behalf of Caribou Coffee between May
5, 2012, and the deal's preliminary approval date.
She also asked to be named as class representative, and for Hedin
and David Milian -- dmilian@careyrodriguez.com -- of Carey
Rodriguez Milian Gonya LLP to be appointed as class counsel.
Ms. Farnham is represented by Frank Hedin and David Milian of
Carey Rodriguez Milian Gonya LLP.
Caribou is represented by Leita Walker --
leita.walker@FaegreBD.com -- and Erin Hoffman --
erin.hoffman@FaegreBD.com -- of Faegre Baker Daniels.
The case is Kristie Farnham v. Caribou Coffee Co. Inc., case
number 3:16-cv-00295, in the U.S. District Court for the Western
District of Wisconsin. [GN]
CASHCALL INC: "De La Torre" Settlement Has Prelim Approval
----------------------------------------------------------
In the case captioned EDUARDO DE LA TORRE, ET AL., Plaintiffs, v.
CASHCALL, INC., Defendant, Case No. 08-cv-03174-MEJ (N.D. Cal.),
Magistrate Judge Maria-Elena James U.S. District Court for the
Northern District of California granted the Plaintiffs' motion for
preliminary approval of settlement.
In February 2006, De La Torre borrowed $2,600 from the Defendant
based on an annual percentage rate of interest ("APR") of
approximately 98%. In May 2006, Lori Kempley borrowed $2,525 from
the Defendant based on an APR of 99.07%. Neither De La Torre nor
Kempley could afford their monthly CashCall loan payments, and
their monthly expenses exceeded their income.
On July 1, 2008, the Plaintiffs initiated this action alleging
that CashCall made loans to De La Torre and Kempley that were
beyond their financial abilities to repay in the time and manner
set forth in the CashCall Promissory Note and Disclosure
Statement. On Feb. 25, 2010, they filed the operative Fourth
Amended Complaint asserting a total of six claims. It asserts
three claims for violations of (i) the Electronic Fund Transfer
Act ("EFTA"); (ii) the California Consumer Legal Remedies Act; and
(iii) the Rosenthal Fair Debt Collection Practices Act. In
addition, the FAC asserts three claims under California's Unfair
Competition Law ("UCL") predicated on the aforementioned
violations. As is relevant here, their EFTA claim is based on
CashCall's alleged practice of conditioning the extension of
credit on the consumer's repayment by means of preauthorized
electronic fund transfers ("EFTs") in violation of 15 U.S.C.
Section 1693k(1). This violation is also the basis for one of
their UCL claims.
On Nov. 15, 2011, the Court certified two classes. It certified a
Conditioning Class, which was later limited to all individuals
who, while residing in California, borrowed money from the
Defendant for personal, family, or household use on or after March
13, 2006 through July 10, 2011 and were charged an nonsufficient
fund (2017NSF) fee. The Court also certified a Loan
Unconscionability Class of all individuals who while residing in
California borrowed from $2,500 to $2,600 at an interest rate of
90% or higher from CashCall for personal family or household use
at any time from June 30, 2004 through July 10, 2011. The Court
later appointed James Sturdevant, Arthur Levy, and Whitney Stark
as class counsel.
On March 10, 2017, after nearly nine years of litigation,
including a bench trial, the parties in this certified class
action have reached a settlement as to one of their claims.
Plaintiffs De La Torre and Kempley ask the Court to (i)
preliminarily approve the Settlement, (ii) approve the proposed
notice and notice plan, (iii) appoint a settlement administrator,
and (iv) schedule a final approval hearing.
The Settlement provides relief for the Conditioning Class, defined
as all individuals who, while residing in California, borrowed
money from CashCall for personal, family, or household use from
March 13, 2006 through July 10, 2011 and were charged an NSF fee.
CashCall will pay a maximum of $1.5 million ("Settlement Fund").
The Settlement allocates $830,000 of the Settlement Fund to Class
Members who paid NSF fees prior to the cancellation, if any, of
their respective authorizations to collect loan payments via EFT.
The Class Members will receive a pro rata share of the $830,000
fund equal to the ratio of the total NSF fees he or she actually
paid prior to the EFT cancellation, if any, as compared to the
total NSF fees collected from all Class Members prior to EFT
cancellations.
CashCall further agrees to release all Class Members from
liability for all NSF fees CashCall charged prior to the
cancellation, if any, of their respective authorizations to
collect loan payments via EFT. The release will apply to all
Class Members, whether or not they paid NSF fees. If a Class
Member has an open loan account that includes unpaid charges for
NSF fees, CashCall will recalculate the loan account to eliminate
such charges.
The Settlement Administrator will mail Class Members payment in
the form of a check. The Class Members will have 60 days from the
date of mailing to cash their payments. Within 90 days of the
initial distribution, the Settlement Administrator will report to
the parties the total amount of funds, if any, related to (i)
Class Members who could not be located, and (ii) checks that were
mailed but had not been cashed. The Settlement requires the
parties to meet and confer to discuss whether a second
distribution is appropriate or whether the residual funds should
be paid to a Court-approved cy pres recipient. The Court will
have final approval over whether to make a second distribution or
to pay the residual amount to a cy pres recipient.
The Settlement Fund allocates a maximum of $650,000 in the
Plaintiffs' attorneys' fees and costs. If the Court awards less
than $650,000 in attorneys' fees and costs, the amount by which
$650,000 exceeds the amount awarded by the Court will be included
in the distribution to the Class Members.
The Settlement further provides for $10,000 in service awards for
each Kempley and De La Torre, subject to Court approval. Should
the Court approve service awards totaling less than $20,000, the
amount by which $20,000 exceeds the approved sum will be
distributed to Class Members.
Under the terms of the Settlement, CashCall will pay all costs of
notice and all other fees, costs, and expenses charged or incurred
by the Settlement Administrator. It will pay these expenses in
addition to the $1.5 million Settlement Fund. The Plaintiffs
propose Kurtzman Carson Consultants ("KCC") as the Settlement
Administrator.
The Court heard oral argument on this matter on June 1, 2017.
Having considered the parties' positions, the record in this case,
and the relevant legal authority, the Court preliminarily approved
the Settlement Agreement. Kempley and De La Torre are approved as
class representatives. James Sturdevant, Arthur Levy, Whitney
Stark, Steven M. Tindall, Jessica L. Riggin, and Damon M. Connolly
are appointed as Class Counsel. KCC is appointed as Settlement
Administrator under the Settlement.
The Defendant will provide notice data to KCC no later than July
6, 2017. By July 12, 2017, the parties will submit to the Court
its proposed cy pres recipient(s). The Plaintiffs will file their
motion for attorneys' fees and service awards no later than Aug.
3, 2017. KCC will send the Settlement Notice no later than Aug.
7, 2017. The Notice will be amended to instruct Class Members to
send their objections to KCC. The Class Members will mail their
objections and opt-out requests to KCC no later than Oct. 6, 2017.
The Plaintiffs will file their motion for final approval no later
than Oct. 26, 2017. The Court will hold a final fairness hearing
on November 16, 2017 at 10:00 a.m. in Courtroom B, 450 Golden Gate
Avenue, San Francisco, California.
A full-text copy of the Court's June 21, 2017 order is available
at https://goo.gl/dwWkQj from Leagle.com.
Eduardo De La Torre, Plaintiff, represented by Damon Mathew
Connolly, Law Offices of Damon M. Connolly.
Eduardo De La Torre, Plaintiff, represented by James C.
Sturdevant, The Sturdevant Law Firm, Whitney Stark, Terrell
Marwill Daudt & Willie, PLLC, Arthur David Levy, Jessica Lee
Riggin -- jriggin@rhdtlaw.com -- Rukin Hyland LLP, Melinda Fay
Pilling -- melinda.pilling@doj.ca.gov -- Rukin Hyland Doria and
Tindall & Steven M. Tindall -- smt@classlawgroup.com -- Gibbs Law
Group LLP.
Lori Saysourivong, Plaintiff, represented by Arthur David Levy,
James C. Sturdevant, The Sturdevant Law Firm, Melinda Fay Pilling,
Rukin Hyland Doria and Tindall, Steven M. Tindall, Gibbs Law Group
LLP & Whitney Stark -- whitneystark@tmdwlaw.com. -- Terrell
Marwill Daudt & Willie, PLLC.
Cashcall, Inc., Defendant, represented by Brad W. Seiling --
bseiling@manatt.com -- Manatt Phelps & Phillips LLP, Claudia
Callaway, Manatt Phelps & Phillips, LLP, pro hac vice, Lydia
Michelle Mendoza -- lmendoza@manatt.com -- Manatt Phelps and
Phillips LLP & Noel Scott Cohen -- ncohen@polsinelli.com --
Polsinelli LLP.
Cashcall, Inc., Counter-claimant, represented by Brad W. Seiling,
Manatt Phelps & Phillips LLP, Claudia Callaway, Manatt Phelps &
Phillips, LLP, Lydia Michelle Mendoza, Manatt Phelps and Phillips
LLP & Noel Scott Cohen, Polsinelli LLP.
Eduardo De La Torre, Counter-defendant, represented by Damon
Mathew Connolly, Law Offices of Damon M. Connolly, James C.
Sturdevant, The Sturdevant Law Firm, Whitney Stark, Terrell
Marwill Daudt & Willie, PLLC & Arthur David Levy.
Cashcall, Inc., Counter-claimant, represented by Brad W. Seiling,
Manatt Phelps & Phillips LLP, Claudia Callaway, Manatt Phelps &
Phillips, LLP, Lydia Michelle Mendoza, Manatt Phelps and Phillips
LLP & Noel Scott Cohen, Polsinelli LLP.
Lori Saysourivong, Lori Saysourivong, Counter-defendant,
represented by Arthur David Levy, James C. Sturdevant, The
Sturdevant Law Firm & Whitney Stark, Terrell Marwill Daudt &
Willie, PLLC.
Eduardo De La Torre, Counter-defendant, represented by Damon
Mathew Connolly, Law Offices of Damon M. Connolly, James C.
Sturdevant, The Sturdevant Law Firm, Whitney Stark, Terrell
Marwill Daudt & Willie, PLLC & Arthur David Levy.
CHICAGO, IL: Class Action Calls for Oversight of Police Reforms
---------------------------------------------------------------
Aislinn Murphy, writing for The Daily Caller, reports that
prominent community groups filed a class-action lawsuit against
the City of Chicago on June 14 to force court oversight of reforms
in the Chicago Police Department, according to the Associated
Press.
The lawsuit, filed on behalf of six African-American residents and
groups including Black Lives Matter Chicago, is an attempt to
force federal court supervision of the reform of the country's
second largest police force.
"Absent federal court supervision, nothing will improve," the
lawsuit says. "It is clear that the federal court intervention is
essential to end the historical and on-going pattern and practice
of excessive force by police officers and Chicago."
This class-action suit comes after the Justice Department released
a report following a year-long investigation that criticized the
Chicago police for civil rights violations, citing use of
excessive force and racial discrimination by officers.
Although a judge ruling in the community groups' favor would make
reform mandated, the plaintiff's lead attorney, Craig Futterman,
hopes the mayor will work in cooperation with the community groups
to create a sweeping reform plan that includes court oversight.
"This is a real test for the mayor as to whether he is truly
committed to police reform in Chicago," Mr. Futterman said.
Mayor Rahm Emanuel went back on his vow to arbitrate a consent
decree -- a settlement of lawsuit in which person or entity agrees
to specific actions without admitting fault of guilt -- after the
Justice Department under the Trump administration expressed
reluctance to interfere with local law enforcement.
Proponents of consent decrees argue that they are the best way to
ensure reforms. If the city and police do not follow the reforms
they agreed to, a judge can force them to do so with a binding
court order.
Despite Emanuel's reversal on a consent decree, his dedication to
police reform has been made evident in the establishment of a new
police oversight agency and adoption of body cameras to hold
officers accountable.
The plaintiff lawyers held a press conference on June 14, where
they accused Emanuel of back-room dealing with the attorney
general, reports the Chicago Sun-Times.
Filing the lawsuit early is an attempt to cut off such back-room
dealings and promote meaningful reform. [GN]
CHINA AGRITECH: Carlton Fields Comments on 9th Cir. Ruling
----------------------------------------------------------
Kristin Ann Shepard, Esq., and Christine Stoddard, Esq., at
Carlton Fields, in an article for JDSupra, wrote that the Ninth
Circuit held that plaintiffs whose claims were tolled during the
pendency of two class actions were not time-barred from bringing a
third related putative class action when the first two classes
were not certified. Plaintiffs alleged that the defendant, a
Chinese holding company, along with its directors and managers,
violated the Securities Exchange Act of 1934 by misstating revenue
and income related to its subsidiaries' purported fertilizer
business. The named plaintiffs had previously been unnamed
putative class members in two lawsuits against the same defendants
and arising from the same facts in which certification was denied.
Defendants in the third action moved to dismiss, arguing that the
class action was time-barred under the Exchange Act's two-year
statute of limitations. Plaintiffs claimed, however, that the two
earlier lawsuits had tolled the limitations period. The district
court disagreed, finding that, while the earlier action tolled the
statute for class members' individual claims, it did not toll the
time for a subsequent class action; otherwise, tolling could
continue indefinitely while plaintiffs made repeated attempts to
certify a class. The district court granted defendants' motions to
dismiss and subsequently denied reconsideration.
On appeal, however, the Ninth Circuit reversed. Like the district
court, it discussed the Supreme Court's decisions in American Pipe
& Construction Co. v. Utah, 414 U.S. 538 (1974) and Crown, Cork &
Seal Co. v. Parker, 462 U.S. 345 (1983), in which the Court
initially determined that class members' individual claims are
tolled during the pendency of a putative class action, which
enables them to intervene in or bring individual actions if the
class is not certified. These decisions did not, however, address
whether such individuals could bring an entirely new class action.
In analyzing that question, the Ninth Circuit determined that
successive class actions are an issue of preclusion rather than
tolling. It found support for this conclusion in three additional
Supreme Court decisions. First, the court relied on its reading of
the Supreme Court's decision in Shady Grove Orthopedic Associates,
P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), that only
Federal Rule of Civil Procedure 23 is used to determine whether a
claim is eligible for class certification, not any other laws
(such as statutes of limitations). Next, in Smith v. Bayer Corp.,
564 U.S. 299 (2011), the Supreme Court refused to allow a federal
court that denied class certification to enjoin a parallel
putative class action in state court involving different named
plaintiffs. There, preclusion did not bar the state suit, as the
plaintiffs had only been unnamed plaintiffs in the federal action
and the class had not been certified. Finally, in Tyson Foods,
Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), the Supreme Court
emphasized that the class action device does not abridge parties'
substantive rights in holding that statistical sampling evidence
could be used to show class-wide liability. The Ninth Circuit
interpreted these decisions as support for its determination that
the statute of limitations would not bar a class action where the
plaintiffs' individual claims were not time-barred.
The court put its decision in a broader context, stating this
outcome would advance the policy objectives of tolling and promote
judicial economy without creating unfair surprise for defendants.
It further noted that preclusion, comity, and the expense of
filing multiple, unsustainable class actions would serve to
dissuade the abusive filing of successive actions, but warned that
these principles, and Rule 23 itself, were still obstacles to
class certification in the case.
Resh v. China Agritech, Inc., No. 15-55432, 2017 WL 2261024 (9th
Cir. May 24, 2017). [GN]
CHINA MOBILE: September 14 Settlement Fairness Hearing Set
----------------------------------------------------------
Glancy Prongay & Murray LLP on June 14 disclosed that the United
States District Court for the Southern District of New York has
approved the following announcement of a proposed class action
settlement that would benefit purchasers of American Depository
Shares of China Mobile Games & Entertainment Group Limited
(NASDAQ:CMGE):
SUMMARY NOTICE OF (I) PENDENCY AND PROPOSED SETTLEMENT; (II)
SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF
ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED PUBLICLY
TRADED AMERICAN DEPOSITORY SHARES ("ADS") OF CHINA MOBILE GAMES &
ENTERTAINMENT GROUP LIMITED ("CMGE") BETWEEN APRIL 26, 2013 AND
JANUARY 14, 2015, INCLUSIVE ("CLASS PERIOD")
Please read this notice carefully, your rights will be affected by
a class action lawsuit pending in this court.
YOU ARE HEREBY NOTIFIED that pursuant to an Order of the United
States District Court for the Southern District of New York, a
hearing will be held on September 14, 2017, at 2:30 p.m., before
the Honorable Kimba M. Wood, United States District Judge, at the
United States District Court for the Southern District of New
York, Daniel Patrick Moynihan United States Courthouse, Courtroom
18B, 500 Pearl St., New York, NY 10007, for the purpose of
determining (1) whether the proposed Settlement of the Action for
the sum of One Million Five Hundred Thousand Dollars
($1,500,000.00) in cash should be approved by the Court as fair,
reasonable, and adequate, which would result in this Action being
dismissed with prejudice against the Released Persons as set forth
in the Stipulation and Agreement of Settlement dated May 22, 2017;
(2) whether the Plan of Allocation of settlement proceeds is fair,
reasonable, and adequate and therefore should be approved; and (3)
whether Lead Counsel's application for an award of attorneys' fees
of no more than 30% of the Settlement Amount and reimbursement of
expenses not to exceed $100,000 should be approved.
If you purchased or otherwise acquired CMGE ADS during the Class
Period, your rights may be affected by this Action and the
Settlement and you may be entitled to share in the Settlement
Fund. If you have not received a Postcard Notice of the
Settlement, you may contact the Claims Administrator, Strategic
Claims Services, at:
China Mobile Games & Entertainment Group Litigation
c/o Strategic Claims Services
P.O. Box 230
600 N. Jackson Street, Suite 3
Media, PA 19063
Tel: (866) 274-4004
Fax: (610) 565-7985
Email: info@strategicclaims.net
You can download a copy of the Settlement documents from the
website www.strategicclaims.net/cmge, including: (1) the Postcard
Notice; (2) the Notice of (I) Pendency and Proposed Settlement of
Class Action; (II) Settlement Fairness Hearing; and (III) Motion
for an Award of Attorneys' Fees and Reimbursement of Litigation
Expenses (the "Internet Long Form Notice"); and (3) the Proof of
Claim and Release form.
To participate in the Settlement, you must submit a completed
Proof of Claim and Release form with the required documents
postmarked or emailed no later than October 21, 2017 to the Claims
Administrator, establishing that you are entitled to a recovery.
You will be bound by any judgment rendered in the Action unless
you request to be excluded, in writing, to the Claims
Administrator's address above, mailed and postmarked by August 24,
2017 in the manner set forth in the Internet Long Form Notice.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees and
reimbursement of expenses, must be filed with the Court and
delivered to Lead Counsel and Defendants' counsel such that they
are received no later than August 24, 2017, in accordance with the
instructions set forth in the Internet Long Form Notice, which can
be downloaded at www.strategicclaims.net/cmge.
Inquiries about the Settlement, other than requests for the
Internet Long Form Notice or Proof of Claim and Release form, may
be made to Lead Counsel:
GLANCY PRONGAY & MURRAY LLP
Kara M. Wolke
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Tel: (888) 773-9224
Email: settlements@glancylaw.com
Further information may also be obtained by directing your inquiry
to the Claims Administrator. PLEASE DO NOT CONTACT THE COURT OR
THE CLERK'S OFFICE REGARDING THIS NOTICE.
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
[GN]
CITIZENS BANK: Excessive Bank Charges Hit in "Fawcett" Suit
-----------------------------------------------------------
Barbara Fawcett, individually and on behalf of all others
similarly situated, Plaintiff, v. Citizens Bank, N.A., Defendant,
Case No. 4:17-cv-11043, (D. Mass., June 7, 2017), seeks damages,
prejudgment and post-judgment interest, costs and disbursements
incurred in connection with this action, plus reasonable
attorneys' fees and any other relief for violation of the National
Bank Act.
Citizens Bank charges their customers overdraft fees, returned
item fees, sustained overdraft fees in addition to the initial
overdraft fees that are allegedly hidden interest charges that
exceed the maximum interest rate under the National Bank Act. [BN]
Plaintiff is represented by:
Edward F. Haber, Esq.
Patrick J. Valley, Esq.
SHAPIRO HABER & URMY LLP
Seaport East
Two Seaport Lane
Boston, MA 02210
Tel: (617) 439-3939
Fax: (617) 439-0134
Email: ehaber@shulaw.com
pvalley@shulaw.com
CONSUMER CELLULAR: Settlement in "Bell" Gets Final Approval
-----------------------------------------------------------
In the case captioned SHAWNA BELL, individually and on behalf of
all others similarly situated, Plaintiff, v. CONSUMER CELLULAR,
INCORPORATED, an Oregon Domestic Business Corporation, Defendant,
Case No. 3:15-cv-941-SI (D. Or.), Judge Michael H. Simon of the
U.S. District Court for the District of Oregon granted the
parties' Joint Motion for Settlement and the Plaintiff's Motion
for Attorney's Fees.
On May 30, 2015, the Plaintiff filed a collective and class action
Complaint in the Court alleging that Consumer Cellular failed
properly to pay her and other similarly situated customer service
representatives ("CSRs") the correct amount of overtime pay in
violation of the Fair Labor Standards Act ("FLSA") and Oregon
state wage and hour laws. Specifically, she alleged that Consumer
Cellular did not include non-discretionary incentive pay and
bonuses in the computation of the regular rate of pay for the
purposes of computing the overtime rate. In its Answer, Consumer
Cellular conceded that a payroll system error that occurred from
approximately September 2014 until March 2015 may have resulted in
the improper calculation of overtime pay for CSRs. Consumer
Cellular, however, maintains that it acted in good faith to comply
with the FLSA, had reasonable grounds for believing that it was in
compliance with the FLSA, and did not act willfully.
In January 2016, the parties participated in mediation with the
Hon. Susa Leeson and Richard Hall and reached a preliminary
settlement. On April 8, 2016, the parties filed a joint motion
for preliminary approval. The Court denied this motion on May 31,
2016, identifying a number of issues, concerns, and deficiencies
raised by the proposed settlement agreement. After the Court's
denial of the first motion for preliminary approval, the parties
participated in further negotiations and reached a new settlement
("Amended Settlement"). On Sept. 30, 2016, the parties filed a
renewed joint motion for preliminary approval. The Court granted
this motion, preliminarily approving the Amended Settlement and
Settlement Class; appointing Alan J. Leiman and Drew G. Johnson as
class counsel; appointing Class Action Administration, LLC ("CAA")
as settlement administrator; approving the settlement class
notices for distribution; and requiring that notice of the Amended
Settlement be mailed and posted on the web.
The parties propose a gross settlement amount (GSA) of $900,000
less requested attorney's fees of $250,000 (27.8% of the GSA),
settlement administration expenses of $24,000, and an incentive
award to Plaintiff of $2,500. Thus, the remaining Net Settlement
Fund ("NSF") is $626,000. The settlement provides for different
award amounts for different subclasses of claimants as follows:
(i) current Oregon employees will receive $880 each if they submit
a claim form and $35 each if they do not; (ii) former Oregon
employees will receive $1,791 each if they submit a claim form and
$35 each if they do not; and (iii) current and former Arizona
employees will receive $50 each or the amount of recomputed
overtime if they submit a claim form and nothing if they do not.
There are 299 current Oregon employees, 197 former Oregon
employees, and 232 current and former Arizona employees. Thus,
the Settlement Class contains 728 members ("Settlement Class
Members").
Of the 342 Settlement Class Members who submitted claim forms, 170
are members of the subclass of current Oregon employees and will
receive a total of $149,600, 114 are members of the subclass of
former Oregon employees and will receive a total of $204,174, and
58 are members of the subclass of current and former Arizona
employees and will receive $3,512. Of the 384 Settlement Class
Members who did not timely submit a claim form or a request for
exclusion, 128 are members of the subclass of current Oregon
employees and will receive a total of $4,480, 82 are members of
the subclass of former Oregon employees and will receive a total
of $2,870, and 174 are members of the subclass of current and
former Arizona employees and will receive nothing. In total
Consumer Cellular will pay $364,636 to class members, which is 58%
of the NSF.
The final approval hearing was held on April 28, 2017. After
considering the relevant factors and circumstances, the Court, the
Court granted the parties' Joint Motion for Settlement and the
Plaintiff's Motion for Attorney's Fees. The Class Counsel is
awarded attorney's fees in the amount of $250,000 and costs in the
amount of $24,000. The Class Representative is awarded $2,500 as
an incentive award.
A full-text copy of the Court's June 21, 2017 opinion and order is
available at https://goo.gl/uhjfiC from Leagle.com.
Shawna Bell, Plaintiff, represented by Alan J. Leiman, Leiman &
Johnson, LLC.
Shawna Bell, Plaintiff, represented by Drew G. Johnson, Leiman &
Johnson, LLC.
Consumer Cellular, Incorporated, Defendant, represented by David
J. Riewald -- driewald@bullardlaw.com -- Bullard Law, Francis T.
Barnwell -- fbarnwell@bullardlaw.com -- Bullard Law & Liani
Jeanheh Reeves -- lreeves@bullardlaw.com -- Bullard Law.
COOPER COMPANIES: Class Cert. Bid in Contact Lens Suit Pending
--------------------------------------------------------------
Plaintiffs in a consolidated case against a unit of The Cooper
Companies, Inc., among other contact lens manufacturers, are
seeking class certification, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended April 30, 2017. The plaintiffs' motion was
filed in March 2017.
Since March 2015, over 50 putative class action complaints were
filed by contact lens consumers alleging that contact lens
manufacturers, in conjunction with their respective Unilateral
Pricing Policy (UPP), conspired to reach agreements between each
other and certain distributors and retailers regarding the prices
at which certain contact lenses could be sold to consumers. The
plaintiffs are seeking damages against CooperVision, Inc., other
contact lens manufacturers, distributors and retailers, in various
courts around the United States.
In June 2015, all of the class action cases were consolidated and
transferred to the United States District Court for the Middle
District of Florida. CooperVision and the other defendants
jointly filed a motion to dismiss the complaints in December 2015.
In June 2016, the motion to dismiss with respect to claims brought
under the Maryland Consumer Protection Act was granted, but the
motion to dismiss with respect to claims brought under Section 1
of the Sherman Act and other state laws was denied.
The actions currently are in discovery.
In March 2017, the plaintiffs filed a motion for class
certification.
The Company said, "CooperVision denies the allegations and intends
to defend the actions vigorously. At this time, we do not believe
a loss or adverse effect on our financial condition is probable
nor is any range of potential loss reasonably estimable."
The Cooper Companies, Inc., is a global medical device company
publicly traded on the NYSE Euronext. Cooper operates through its
business units, CooperVision and CooperSurgical. CooperVision
primarily develops, manufactures and markets a broad range of soft
contact lenses for the worldwide vision correction market.
CooperSurgical primarily develops, manufactures, markets medical
devices and procedures solutions, and provides services to improve
health care delivery to families.
COSTCO WHOLESALE: "Canela" Class Action in Calif. Still Pending
---------------------------------------------------------------
Costco Wholesale Corporation still defends itself against a
putative class action lawsuit captioned Canela v. Costco Wholesale
Corp., et al., according to the Company's Form 10-Q filed on
June 1, 2017 with the U.S. Securities and Exchange Commission for
the quarterly period ended May 7, 2017.
The class action (Case No. 5:13-cv-03598, N.D. Cal.) was filed on
July 1, 2013, alleging violation of California Wage Order 7-2001
by failing to provide seating to member service assistants who act
as greeters and exit attendants in the Company's California
warehouses.
The complaint seeks relief under the California Labor Code,
including civil penalties and attorneys' fees. The Company has
filed an answer denying the material allegations of the complaint.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-
label products in a range of merchandise categories. The Company
was formerly known as Costco Companies, Inc. It was founded in
1976 and is based in Issaquah, Washington.
CUMBERLAND CO: "Honovich" Claims Non-Fogging Mirror Fogged Up
-------------------------------------------------------------
Roberto Honovich, and on behalf of all others similarly situated,
Plaintiff, v. Cumberland Companies LLC, Defendants, BC664638 (Cal.
Super., June 9, 2017), seeks compensatory and punitive damages,
prejudgment interest, restitution and all form of equitable
monetary relief, injunctive relief, attorneys' fees, experts' fees
and costs of suit for breach of implied and express warranty,
unjust enrichment, negligent misrepresentation and violation of
California's Unfair Competition Act, False Advertising Act and the
Song-Beverly Consumer Warranty Act.
Cumberland manufactures shower mirrors that claim to be "fog-
less." Plaintiff, despite following all instruction on the
packaging, claims that the mirror still fogged up during use. [BN]
The Plaintiff is represented by:
David E. Bower, Esq.
MONTEVERDE & ASSOCIATES PC
600 Corporate Pointe, Suite 1170
Culver City, CA 90230
Tel: (213) 446-6652
Email: dbower@monteverdelaw.com
DAVIS VISION: Independent Providers File Antitrust Class Action
---------------------------------------------------------------
Lowell Neumann Nickey, writing for Courthouse News Service,
reports that a class of independent eye care providers claims in a
federal lawsuit that one of Pennsylvania's largest vision insurers
forces them to steer their patients to buy lenses from a factory
owned by the insurer, often at a higher cost.
In a complaint filed on June 12 in Philadelphia federal court,
lead plaintiff Alan Frank accuses Davis Vision, HVHC and parent
company Highmark Health of forcing independent providers, but not
major retailers like Walmart, to order lenses and frames from a
lab owned by Davis Vision.
Davis Vision provides vision insurance to at least 65 percent of
insured Pennsylvania eye care patients, according to the
complaint.
Mr. Frank -- who seeks to represent a class of independent
ophthalmologists, optometrists and opticians -- claims this market
dominance prevents independent eye care providers from serving
their patients' best interests.
Instead of opting for relatively inexpensive and convenient in-
house, same-day services, independent providers are allegedly
coerced by Davis Vision's "mandatory laboratory policy" to order
frames and lenses from Davis' own laboratory.
The lawsuit asserts Davis' claim that the mandatory laboratory
policy saves patients money is an excuse to cover up its
"anticompetitive purpose and intent."
"Davis Vision's proclamation of so-called 'savings' is false and
illusory," the complaint states. "A direct consequence of Davis
Vision's mandatory laboratory policy is that independent
Pennsylvania eyecare providers cannot fabricate frames or lenses
through a competing laboratory -- even if doing so would be less
expensive, more convenient, or otherwise more beneficial for
patients."
The complaint alleges convenience and quality-related problems
arise from having to mail frames and lenses to a Davis Vision lab,
including delays in order fulfillment.
Davis has been sued before over its lab policy. It settled a
similar case last year brought by Acuity Optical Laboratories
after a judge denied in part its motion for summary judgment.
As a part of that case, Davis admitted that "each time Davis
Vision is obliged to cover costs incurred when one of its members
is prescribed a pair of eyeglasses by an optometrist . . . the
optometrist is required to source the lenses . . . from a
laboratory owned by Davis Vision," according to the June 12
complaint.
The complaint goes on to allege that the lab policy is part of a
"broader anticompetitive scheme in Pennsylvania" that includes
allowing major retailer and fellow Highmark subsidiary Visionworks
to provide in-house services while restricting independent
providers.
"Defendants force independent Pennsylvania eyecare providers and
their patients to endure the inconvenience and costs associated
with mailing frames and lenses to Davis Vision-owned laboratories,
but spares its corporate affiliate, Visionworks, from having to do
this," the lawsuit states.
Davis Vision also does not require big-box retailers like Walmart
and Costco to agree to its mandatory laboratory policy,
"presumably because they may possess countervailing market or
negotiating power," according to the complaint.
The proposed class further claims Davis Vision uses administration
delays and reimbursement policies to the disadvantage of
independent eye care providers.
Frank asserts 11 counts including unjust enrichment, unlawful
monopolization and unlawful restraint of trade. He is represented
by Richard M. Golomb of Golomb & Honik in Philadelphia, which
declined to comment on the case.
Representatives from Davis Vision and Highmark did not return
calls for comment by press time on June 13. [GN]
DISCOVERY METALS: Disgruntled Shareholders Mull Class Action
------------------------------------------------------------
Ben Creagh, writing for Australian Mining, reports that former
shareholders of now-defunct Discovery Metals plan to launch class
action against KPMG Financial Advisory Services over a valuation
of the company that was made almost five years ago.
The proposed class action arises out of an independent expert
valuation of the copper company prepared by KPMG and released in
November 2012, according to an ASX announcement submitted by
Litigation Capital Management.
"The valuation was commissioned by the Discovery board to support
a recommendation to shareholders in respect of an off-market,
takeover bid received from Cathay Fortune Investment seeking to
acquire all of the ordinary shares in Discovery for $830 million
at $1.70 per share in October 2012," the ASX announcement
outlined.
The proposed class action will allege the KPMG valuation was
negligent and misleading, or deceptive within the meaning of
section 670A of the Corporations Act 2001, the announcement
continues.
"Shareholders relied on the KPMG valuation to reject the takeover
bid and suffered loss and damage as a result," the announcement
stated.
Investors who held shares in Discovery between November 23 2012
and February 15 2013 may be eligible to participate in the class
action.
Discovery entered voluntary administration in early 2015, before
being wound up later that year. [GN]
DONALD TRUMP: Washington Court Certifies Class in "Wagafe"
---------------------------------------------------------
In the case captioned ABDIQAFAR WAGAFE, OSTADHASSAN, HANIN OMAR
BENGEZI, MUSHTAQ ABED JIHAD, and SAJEEL MANZOOR, on behalf of
themselves and others similarly situated, Plaintiffs, v. DONALD
TRUMP, President of the United States; UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES, et al., Defendants, Mehdi Case No. C17-
0094-RAJ (W.D. Wash.), Judge Richard A. Jones of the U.S. District
Court for the Western District of Washington, Seattle Division,
granted in part and denied in part the Defendants' motion to
dismiss and granted the Plaintiffs' motion for class
certification.
The Plaintiffs initiated this lawsuit on Jan. 23, 2017,
challenging only the Controlled Application Review and Resolution
Program (CARRP) program. On Jan. 27, 2017, the President issued
Executive Order 13769, entitled "Protecting the Nation from
Foreign Terrorist Entry into the United States." The United
States Citizenship and Immigration Service (USCIS) initially
determined that E.O. 13769 required it to suspend taking action on
all pending applications -- except those for naturalization -- of
nationals from those seven countries. Section 4 of E.O. 13769
called for the Secretaries of State and Homeland Security and the
Directors of National Intelligence and the FBI to implement a
program, as part of the adjudication process for immigration
benefits, to identify individuals seeking to enter the United
States on a fraudulent basis with the intent to cause harm, or who
are at risk of causing harm subsequent to their admission.
In response to E.O. 13769, the Plaintiffs amended their complaint
to challenge sections 3(c) and 4 of the order. They alleged that
the USCIS relied on section 3 to suspend processing immigrant
visas and other immigration benefits. They also alleged that
Section 4 of the E.O. directs federal agencies to create and
implement a policy of extreme vetting of all immigration benefits
applications and that any such extreme vetting policy would expand
CARRP.
After the Ninth Circuit upheld a temporary restraining order
enjoining portions of E.O. 13769 in Washington v. Trump, the
President promised to go further with a new executive action, and
assured that extreme vetting will be put in place, and that it
already is in place in many places. He then issued E.O. 13780,
which rescinded E.O. 13769 in its entirety. Following the
issuance of E.O. 13780, the Plaintiffs filed a second amended
complaint which added three named plaintiffs and a challenge to
E.O. 13780, alleging that it sanctions a major expansion of the
existing CARRP program.
In response to the Plaintiffs' second amended complaint, the
Defendants now move to dismiss all claims for two reasons. First,
the Defendants maintain that under Federal Rule of Civil Procedure
12(b)(1) the Court lacks subject matter jurisdiction because (i)
the Plaintiffs lack standing, and their claims are moot. Second,
the Defendants argue that under Federal Rule of Civil Procedure
12(b)(6), the Plaintiffs have failed to state a claim upon which
relief may be granted for Claims Four, Seven through Nine, and any
claims challenging extreme vetting.
After filing the second amended complaint, the Plaintiffs filed
the present amended motion for class certification arguing that
through CARRP, the government surreptitiously blacklists thousands
of applicants who are seeking immigration benefits, labeling them
national security threats. Accordingly, the Plaintiffs maintain
that class treatment is the appropriate avenue through which to
challenge CARRP and any other successor extreme vetting program
that the Executive branch may seek to implement pursuant to
Sections 4 and 5 of the Second EO or through other extra-statutory
means.
The Court granted the Defendants' motion to dismiss as to Claim
Four for the Adjustment Class only. The Court noted that as
numerous courts have held, discretionary relief, such as
adjustment of status, is not a protected property interest.
Therefore, the Plaintiffs who seek an adjustment of status cannot
claim a due process violation, and Claim Four is dismissed with
prejudice as to the Adjustment Class. The remainder of their
motion to dismiss is denied.
Having satisfied the requirements of Federal Rules of Civil
Procedure 23(a) and 23(b)(2), the Court granted the Plaintiffs'
motion for class certification. The Court approved of the two
proposed classes, appoints the five named Plaintiffs as class
representatives, and appoints their counsel as class counsel for
both classes. Because certification of anything less than a
nationwide class would run counter to the constitutional
imperative of a uniform Rule of Naturalization, class
certification is nationwide.
A full-text copy of the Court's June 21, 2017 order is available
at https://goo.gl/CVq6Cg from Leagle.com.
Abdiqafar Wagafe, Plaintiff, represented by David A. Perez --
DPerez@perkinscoie.com -- PERKINS COIE.
Abdiqafar Wagafe, Plaintiff, represented by Emily Chiang --
mechang.esq@gmail.com -- ACLU OF WASHINGTON, Glenda Melinda
Aldana Madrid, NORTHWEST IMMIGRANT RIGHTS PROJECT, Harry H.
Schneider, Jr. -- HSchneider@perkinscoie.com -- PERKINS COIE, Hina
Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, pro hac vice,
Hugh E. Handeyside, CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE
LLP, Jennifer Pasquarella -- jpasquarella@aclu-sc.org -- ACLU
FOUNDATION OF SOUTHERN CALIFORNIA, pro hac vice, Kristin Macleod-
Ball -- kristin@nipnlg.org -- NATIONAL IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD, pro hac vice, Lee Gelernt, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, pro hac vice, Matt Adams, NORTHWEST
IMMIGRANT RIGHTS PROJECT, Stacy Tolchin, LAW OFFICES OF STACY
TOLCHIN, pro hac vice, Trina Realmuto --
trina@nationalimmigrationproject.org -- NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS GUILD, pro hac vice, Laura Kaplan
Hennessey -- LHennessey@perkinscoie.com -- PERKINS COIE & Nicholas
Peter Gellert -- NGellert@perkinscoie.com -- PERKINS COIE.
Mehdi Ostadhassan, Plaintiff, represented by David A. Perez,
PERKINS COIE, Emily Chiang, ACLU OF WASHINGTON, Glenda Melinda
Aldana Madrid, NORTHWEST IMMIGRANT RIGHTS PROJECT, Harry H.
Schneider, Jr., PERKINS COIE, Hina Shamsi, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, pro hac vice, Hugh E. Handeyside, CORR
CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP, Jennifer
Pasquarella, ACLU FOUNDATION OF SOUTHERN CALIFORNIA, pro hac vice,
Kristin Macleod-Ball, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL
LAWYERS GUILD, pro hac vice, Lee Gelernt, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, pro hac vice, Matt Adams, NORTHWEST IMMIGRANT
RIGHTS PROJECT, Stacy Tolchin, LAW OFFICES OF STACY TOLCHIN, pro
hac vice, Trina Realmuto, NATIONAL IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD, pro hac vice, Laura Kaplan Hennessey,
PERKINS COIE & Nicholas Peter Gellert, PERKINS COIE.
Hanin Omar Bengezi, Plaintiff, represented by Emily Chiang, ACLU
OF WASHINGTON, Glenda Melinda Aldana Madrid, NORTHWEST IMMIGRANT
RIGHTS PROJECT, Harry H. Schneider, Jr., PERKINS COIE, Hina
Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, pro hac vice,
Hugh E. Handeyside, CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE
LLP, Jennifer Pasquarella, ACLU FOUNDATION OF SOUTHERN CALIFORNIA,
pro hac vice, Kristin Macleod-Ball, NATIONAL IMMIGRATION PROJECT
OF THE NATIONAL LAWYERS GUILD, pro hac vice, Lee Gelernt, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, pro hac vice, Matt Adams,
NORTHWEST IMMIGRANT RIGHTS PROJECT, Stacy Tolchin, LAW OFFICES OF
STACY TOLCHIN, pro hac vice, Trina Realmuto, NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS GUILD, pro hac vice, Laura Kaplan
Hennessey, PERKINS COIE, Nicholas Peter Gellert, PERKINS COIE &
David A. Perez, PERKINS COIE.
Mushtaq Abed Jihad, Plaintiff, represented by Emily Chiang, ACLU
OF WASHINGTON, Glenda Melinda Aldana Madrid, NORTHWEST IMMIGRANT
RIGHTS PROJECT, Harry H. Schneider, Jr., PERKINS COIE, Hina
Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, pro hac vice,
Hugh E. Handeyside, CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE
LLP, Jennifer Pasquarella, ACLU FOUNDATION OF SOUTHERN CALIFORNIA,
pro hac vice, Kristin Macleod-Ball, NATIONAL IMMIGRATION PROJECT
OF THE NATIONAL LAWYERS GUILD, pro hac vice, Lee Gelernt, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, pro hac vice, Matt Adams,
NORTHWEST IMMIGRANT RIGHTS PROJECT, Stacy Tolchin, LAW OFFICES OF
STACY TOLCHIN, pro hac vice, Trina Realmuto, NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS GUILD, pro hac vice, Laura Kaplan
Hennessey, PERKINS COIE, Nicholas Peter Gellert, PERKINS COIE &
David A. Perez, PERKINS COIE.
Sajeel Manzoor, Plaintiff, represented by Emily Chiang, ACLU OF
WASHINGTON, Glenda Melinda Aldana Madrid, NORTHWEST IMMIGRANT
RIGHTS PROJECT, Harry H. Schneider, Jr., PERKINS COIE, Hina
Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, pro hac vice,
Hugh E. Handeyside, CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE
LLP, Jennifer Pasquarella, ACLU FOUNDATION OF SOUTHERN CALIFORNIA,
pro hac vice, Kristin Macleod-Ball, NATIONAL IMMIGRATION PROJECT
OF THE NATIONAL LAWYERS GUILD, pro hac vice, Lee Gelernt, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, pro hac vice, Matt Adams,
NORTHWEST IMMIGRANT RIGHTS PROJECT, Stacy Tolchin, LAW OFFICES OF
STACY TOLCHIN, pro hac vice, Trina Realmuto, NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS GUILD, pro hac vice, Laura Kaplan
Hennessey, PERKINS COIE, Nicholas Peter Gellert, PERKINS COIE &
David A. Perez, PERKINS COIE.
United States Citizenship and Immigration Services, Defendant,
represented by Aaron R. Petty, US DEPARTMENT OF JUSTICE & Edward
S. White, US DEPARTMENT OF JUSTICE.
John Kelly, Defendant, represented by Aaron R. Petty, US
DEPARTMENT OF JUSTICE & Edward S. White, US DEPARTMENT OF JUSTICE.
Lori Scialabba, Defendant, represented by Aaron R. Petty, US
DEPARTMENT OF JUSTICE & Edward S. White, US DEPARTMENT OF JUSTICE.
Matthew D Emrich, Defendant, represented by Aaron R. Petty, US
DEPARTMENT OF JUSTICE & Edward S. White, US DEPARTMENT OF JUSTICE.
Daniel M Renaud, Defendant, represented by Aaron R. Petty, US
DEPARTMENT OF JUSTICE & Edward S. White, US DEPARTMENT OF JUSTICE.
Donald Trump, Defendant, represented by Aaron R. Petty, US
DEPARTMENT OF JUSTICE & Edward S. White, US DEPARTMENT OF JUSTICE
EL GALLEGO: "Baluja" Suit Seeks Unpaid Minimum Wages
----------------------------------------------------
Orlando Baluja and all others similarly situated, Plaintiff, v. El
Gallego Spanish Tavern Restaurant, Inc., El Gallego Spanish
Restaurant Inc., Enrique Blanco, Jorge Blanco, Defendants, Case
No. 1:17-cv-22135 (S.D. Fla., June 7, 2017), seeks double damages
and reasonable attorney fees from the Defendants, jointly and
severally, pursuant to the Fair Labor Standards Act, and all
minimum wages still owing along with court costs, interest and any
other relief.
Plaintiff worked for Defendants, El Gallego Spanish Tavern
Restaurant, Inc., Enrique Blanco and Jorge Blanco, as a waiter.
[BN]
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
Email: zabogado@aol.com
EQUITY RESIDENTIAL: Discovery Requests Too Expansive, Court Says
----------------------------------------------------------------
In the case captioned JAVANNI MUNGUIA-BROWN, et al., Plaintiffs,
v. EQUITY RESIDENTIAL, et al., Defendants, Case No. 16-cv-01225-
JSW (MEJ)(N.D. Cal.), Judge Maria-Elena James of the U.S. District
Court for the Northern District of California ordered the
Plaintiffs to show that their discovery requests are proportional
to the needs of the case.
In this putative class action, the Plaintiffs allege that since
2008, the Defendants have charged their tenants late fees that
violate California Civil Code Section 1671. Whether the provision
is lawful under California law depends in part on whether the
Defendants adopted the late fee as an attempt to recover actual
costs they incurred as a result of late rent payments, or whether
late fees serve as a source of profits. The Presiding Judge in
this matter referred discovery matters to Judge James.
Pending before the Court are five discovery letter briefs. The
Court scheduled a telephonic conference for June 20, 2017 to
address the parties' disputes, but the Counsel for the Plaintiffs
informed the Court's deputy that the parties would be unavailable
to speak with the Court at that time because they would be
attending a deposition in this matter. In the interest of time,
the Court resolves these letter briefs without the benefit of oral
argument.
The Plaintiffs request the Defendants to (i) produce emails of
custodians involved in the decision to change late fee policy in
2008; (ii) produce draft budgets provided to the approximately 144
properties at issue in this case between 2010 to present; (iii)
identify all individuals who are or were employed by any the
Defendant or any affiliate thereof who have knowledge about the
contents of the PwC Report; (iv) produce un-redacted versions of
the responsive documents; and (v) documents pertaining to three
categories of "costs" Defendants incur when tenants pay their rent
late: the cost of implementing the computer system Defendants use
to track rent payments; the cost of Defendants' loss-of-use-funds;
and aggregate collection agency costs and contractual arrangements
with collection agencies.
The Court ordered that no later than June 30, 2017, the Defendants
will file a declaration describing when the Company's current
email system was implemented, whether emails from departed
employees migrated to the new system or otherwise preserved within
the new email system, and what and how data associated with the
old system were preserved. Further, it ordered that no later than
July 7, 2017, Defendants will produce un-redacted budgets for
years 2010 to the present for the two properties where Plaintiffs
lived.
The Court agreed that the Defendants have provided a verified
original and supplemental interrogatory response that objects to
the request on a number of grounds and reiterates that Jim Fiffer
has knowledge of the report. However, it declined Defendants'
invitation to review the redactions. No later than July 7, 2017,
the Defendants will produce to Plaintiffs un-redacted versions of
the documents. Within two weeks of receiving the documents, the
Plaintiffs will file a status report describing any relevant
information that was redacted.
Finally, the Court found that the information on the costs that
the Defendants' incur when tenants pay their rent late is relevant
to the Plaintiffs' claims, but that the request is not
proportional to the needs of the case, at least at this stage of
the proceedings. No later than July 17, 2017, the Defendants will
produce responsive documents relating to the three categories of
"costs" described from 2010 to the present for the two properties
at which the Plaintiffs resided, the Court ordered.
Judge James appreciates that discovery has not been bifurcated by
the Presiding Judge, and that the Plaintiffs are entitled to both
merits and class discovery. Nevertheless, unless and until the
Presiding Judge certifies a class, Judge James finds the scope of
some of the Plaintiffs' discovery requests is much too expansive.
Should a class be certified, and should the Plaintiffs be able to
show their requests are proportional to the needs of the case,
they may renew their requests. The Plaintiffs' deadline for
moving for class certification is Aug. 18, 2017.
A full-text copy of the Court's June 20, 2017 discovery order is
available at https://is.gd/hjSXT0 from Leagle.com.
Javanni Munguia-Brown, Plaintiff, represented by William Copley
Jhaveri-Weeks -- wjhaveriweeks@gbdhlegal.com -- Goldstein, Borgen,
Dardarian & Ho.
Javanni Munguia-Brown, Plaintiff, represented by Alex Michael
Tomasevic, Nicholas and Butler LLP, Craig McKenzie Nicholas,
Nicholas and Butler LLP, Jason Holland Tarricone, Community Legal
Services in East Palo Alto, Katharine Lindsay Fisher --
kfisher@gbdhlegal.com -- Goldstein Borgen Dardarian Ho, Laura L.
Ho -- lho@gbdhlegal.com -- Goldstein Borgen Dardarian & Ho, Linda
Mary Dardarian -- ldardarian@gbdhlegal.com -- Goldstein Borgen
Dardarian & Ho, Margaret M. McBride, Community Legal Services in
East Palo Alto & Megan Elizabeth Ryan -- mryan@gbdhlegal.com --
Goldstein, Borgen, Dardarian & Ho.
Angelina Magana, Plaintiff, represented by William Copley Jhaveri-
Weeks, Goldstein, Borgen, Dardarian & Ho, Alex Michael Tomasevic,
Nicholas and Butler LLP, Craig McKenzie Nicholas, Nicholas and
Butler LLP, Jason Holland Tarricone, Community Legal Services in
East Palo Alto, Katharine Lindsay Fisher, Goldstein Borgen
Dardarian Ho, Laura L. Ho, Goldstein Borgen Dardarian & Ho, Linda
Mary Dardarian, Goldstein Borgen Dardarian & Ho, Margaret M.
McBride, Community Legal Services in East Palo Alto & Megan
Elizabeth Ryan, Goldstein, Borgen, Dardarian & Ho.
Norma Rodriguez, Plaintiff, represented by William Copley Jhaveri-
Weeks, Goldstein, Borgen, Dardarian & Ho, Alex Michael Tomasevic,
Nicholas and Butler LLP, Craig McKenzie Nicholas, Nicholas and
Butler LLP, Jason Holland Tarricone, Community Legal Services in
East Palo Alto, Katharine Lindsay Fisher, Goldstein Borgen
Dardarian Ho, Laura L. Ho, Goldstein Borgen Dardarian & Ho, Linda
Mary Dardarian, Goldstein Borgen Dardarian & Ho, Margaret M.
McBride, Community Legal Services in East Palo Alto & Megan
Elizabeth Ryan, Goldstein, Borgen, Dardarian & Ho.
David Bonfanti, Plaintiff, represented by William Copley Jhaveri-
Weeks, Goldstein, Borgen, Dardarian & Ho, Jason Holland Tarricone,
Community Legal Services in East Palo Alto, Katharine Lindsay
Fisher, Goldstein Borgen Dardarian Ho, Laura L. Ho, Goldstein
Borgen Dardarian & Ho, Linda Mary Dardarian, Goldstein Borgen
Dardarian & Ho, Margaret M. McBride, Community Legal Services in
East Palo Alto & Megan Elizabeth Ryan, Goldstein, Borgen,
Dardarian & Ho.
Equity Residential, Defendant, represented by Aaron Thomas Winn --
atwinn@duanemorris.com -- Duane Morris LLP, Christopher J. Healey
-- chris.healey@dentons.com -- DENTONS US LLP & Justin Jeremy
Fields -- JFields@duanemorris.com -- Duane Morris LLP.
ERP Operating Limited Partnership, Defendant, represented by Aaron
Thomas Winn, Duane Morris LLP, Christopher J. Healey, DENTONS US
LLP & Justin Jeremy Fields, Duane Morris LLP.
Equity Residential Management, LLC, Defendant, represented by
Aaron Thomas Winn, Duane Morris LLP & Justin Jeremy Fields, Duane
Morris LLP.
EQR-Woodland Park A Limited Partnership, Defendant, represented by
Aaron Thomas Winn, Duane Morris LLP & Justin Jeremy Fields, Duane
Morris LLP.
EQR-Woodland Park B Limited Partnership, Defendant, represented by
Aaron Thomas Winn, Duane Morris LLP & Justin Jeremy Fields, Duane
Morris LLP.
FIELD & TECHNICAL: Close Moves for Class Certification Under FLSA
-----------------------------------------------------------------
The Plaintiff in the lawsuit captioned JOHNNY CLOSE, individually
and on behalf of all similarly situated individuals v. FIELD &
TECHNICAL SERVICES, LLC, Case No. 2:17-cv-00556-MRH (W.D. Pa.),
moves the Court for an order conditionally certifying a collective
action for unpaid overtime wages under 29 U.S.C Section 216(b) of
the Fair Labor Standards Act defined as:
All current and former Operation Maintenance and Monitoring
Technicians, or equivalent job titles, employed by Field and
Technical Services, LLC who were not paid the FLSA's
overtime premium for any hours worked over 40 in a workweek.
The Plaintiff also asks the Court to (1) compel FTS to provide the
Plaintiff with the names and all known addresses of the potential
class members, and (2) approve the court-supervised notice to the
class members with a 60-day opt-in period.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=VdtU5kn9
The Plaintiff is represented by:
David H. Grounds, Esq.
Molly 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
FIELDTURF USA: Sued Over Massive Fraud in Duraspine Products
------------------------------------------------------------
Jim Walsh, writing for Courier Post Online, reports that Medford
Township has filed a proposed class-action lawsuit against an
artificial-turf firm, alleging the company produced a defective
product that raises the risk of concussions and other sports
injuries.
The suit, filed in federal court, Camden, seeks potential damages
of more than $5 million from FieldTurf USA and three related
companies.
It accuses FieldTurf of conducting a "massive fraud . . . by an
industry giant against those least able to bear the cost."
According to Medford's suit, FieldTurf -- the country's largest
supplier of artificial fields -- knowingly used a defective fiber
to make its Duraspine fields between 2005 and 2012.
It alleges FieldTurf claims the fields would last more than 10
years but the faulty fiber made that "impossible."
The suit says Medford paid about $660,000 to install a FieldTurf
field in 2007 at Bob Bende Park on Medford-Mount Holly Road.
It contends the "grass-like fronds" on so-called Soccer Field #2
began "fading, thinning, tearing out and shedding" as early as
2011. "In addition, the seams began to tear."
The lawsuit says the field on average was closed for repairs "two
to three weeks during the usable season every year" and that
Medford replaced it last year with a competitor's field that cost
more than $450,000.
Medford's action is the latest of several suits brought recently
against FieldTurf. The Florida firm also faces a proposed class-
action claim from Newark's state-operated school district and
Carteret Borough in Middlesex County.
FieldTurf President and CEO Eric Deliere has acknowledged problems
with Duraspine fields led the firm to sue the fiber's supplier.
But he said defective fields have occurred primarily in Sunbelt
states with high ultraviolet, or UV, radiation.
"New Jersey's not a high UV environment," said Deliere in a
statement at the firm's website.
Across New Jersey, he asserted, only 14 of 114 Duraspine fields
past their eight-year warranty period have been replaced "due to
normal wear."
An attorney for Medford, James Cecci of Rockland, Bergen County,
could not be reached for immediate comment.
Among other claims, Medford says FieldTurf charged customers for
10 pounds of infill -- a mixture of sand and rubber granules --
per square foot of product, but the actual volume was "far less."
It contends that accelerated the rate of "premature degradation"
and created a harder surface for athletes.
"The under-filling increased the risk of among other things,
concussions and injuries to shoulders and knees," alleges the
township's 68-page complaint.
The suit says FieldTurf had "irrefutable evidence" by 2006 that
its fields "were not living up to its claims." But it alleges the
firm continued to claim durability and safety advantages in order
to justify its product's higher price -- "about $1 per square foot
more than the competition."
The suit says FieldTurf has has installed more than 1,400 fields
in the United States, including 164 in New Jersey. It contends the
company never disclosed alleged problems to municipalities,
schools and other customers who've spent "upwards of a combined
$570 million" for artificial turf fields.
The suit says Medford and other customers learned of the field's
problems only last year, after an investigation by NJ Advance
Media.
In a statement at its website, FieldTurf says it "strongly
disagrees with the accusations and conclusions" raised by the
investigation.
Medford's lawsuit seeks to represent all customers, in the nation
and in New Jersey, who bought FieldTurf fields between 2005 and
2012. One count alleges a violation of the state's Consumer Fraud
Act, which allows treble damages for infractions. [GN]
FLEETCOR TECHNOLOGIES: Rosen Law Files Class Action Lawsuit
-----------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, disclosed the
filing of a class action lawsuit on behalf of purchasers of the
securities of FleetCor Technologies, Inc. (NYSE:FLT) from February
5, 2016 through May 2, 2017, inclusive (the "Class Period"). The
lawsuit seeks to recover damages for FleetCor investors under the
federal securities laws.
To join the FleetCor class action, go to
http://rosenlegal.com/cases-1148.htmlor call Phillip Kim, Esq. or
Kevin Chan, Esq. toll-free at 866-767-3653 or email --
pkim@rosenlegal.com -- or -- kchan@rosenlegal.com -- for
information on the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
The complaint alleges that defendants during the Class Period made
false and misleading statements and/or failed to disclose that
FleetCor owes its earnings and growth to overcharging customers,
disseminating misleading marketing materials, and engaging in
predatory sales practices. When the true details entered the
market, the lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than
August 14, 2017. A lead plaintiff is a representative party acting
on behalf of other class members in directing the litigation. If
you wish to join the litigation, go to
http://rosenlegal.com/cases-1148.htmlor to discuss your rights or
interests regarding this class action, please contact Phillip Kim,
Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-767-
3653 or via e-mail at -- pkim@rosenlegal.com -- or --
kchan@rosenlegal.com
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Since 2014, Rosen Law Firm has
been ranked #2 in the nation by Institutional Shareholder Services
for the number of securities class action settlements annually
obtained for investors.
Phillip Kim, Esq.
Kevin Chan, Esq.
The Rosen Law Firm, P.A.
Laurence Rosen, Esq.
275 Madison Avenue, 34th Floor
New York, NY 10016
Tel: (212) 686-1060
Fax: (212) 202-3827
E-mail: lrosen@rosenlegal.com
pkim@rosenlegal.com
kchan@rosenlegal.com
www.rosenlegal.com [GN]
FOX NEWS: Different Outcomes in Two Mandatory Arbitration Cases
---------------------------------------------------------------
Paul F. Millus, Esq. -- pmillus@msek.com -- of Meyer, Suozzi,
English, & Klei, in an article for New York Law Journal, reports
that on July 6, 2016, former Fox News Anchor Gretchen Carlson sued
in Superior Court in New Jersey naming former Fox News Chairman,
Roger Ailes, as the lone defendant in a NYC Human Rights Law case
alleging sexual harassment at the hands of Ailes. By not naming
Fox News, Ms. Carlson hoped to avoid the imposition of mandatory
arbitration. On July 8, 2016, Mr. Ailes filed a Notice of Removal
to the U.S. District Court in New Jersey, a motion to stay all
proceedings in New Jersey and to compel arbitration. A week
later, Mr. Ailes filed a Petition in the Southern District of New
York to arbitrate all matters involving Ms. Carlson. Ailes v.
Carlson, 16-cv-05671 (S.D.N.Y. 2016). On July 21, 2016 Mr. Ailes
resigned from Fox, and by Sept. 6, 2016 the parties filed a
Voluntary Order of Dismissal, reportedly settling her case for $20
million, without any court ever weighing the arbitrability of Ms.
Carlson's claims.
Conversely, on Aug. 22, 2016, former Fox News Anchor Andrea
Tantaros sued several individual defendants, including Mr. Ailes
and Fox News, also claiming, in part, discrimination based on sex.
She too argued that the arbitration provision did not apply to her
claims against the individual defendants. Tantaros v. Fox News
Network, New York County Supreme Court, Index No. 157054/2016.
Fox filed a motion to stay the action and compel arbitration seven
days later. The result there was that on
Feb. 15, 2017, Justice David Cohen ruled from the bench granting
the motion to compel arbitration after oral argument. The
difference in terms of the outcome in each case was based on
nothing more than timing.
Would Ms. Carlson's case have been forced to arbitration if the
court was required to make a decision? The answer is most
assuredly "yes" based on the prevailing law, which is clearly more
arbitration friendly, and it is expected that this circumstance
will continue despite pushback from employment rights advocates.
As recently as May 15, 2017, the U.S. Supreme Court has reiterated
its long-standing doctrine that arbitration agreements must be
placed on an equal plane with other contracts under the Federal
Arbitration Act (FAA). Kindred Nursing Centers Ltd. Partnership
v. Clark, 137 S.Ct. 1421. In a concise opinion, Justice Elena
Kagen made it abundantly clear that under the FAA, arbitration
agreements are "valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of
any contract." 9 U.S.C. Sec. 2 establishes an "equal-treatment
principle" such that a court may not invalidate an arbitration
agreement based on legal rules that "apply only to arbitration or
that derive their meaning from the fact that an agreement to
arbitrate is at issue." AT&T Mobility v. Concepcion, 131 S.Ct.
1740, 1746 (2011).
The Supreme Court has not wavered in its holding that the FAA
"preempts any state rule that discriminates on its face against
arbitration or that covertly accomplishes the same objective by
disfavoring contracts that have the defining features of
arbitration agreements." Kindred Nursing Centers Ltd. Partnership,
137 S.Ct, at 1423). In DIRECTV v. Imburgia, 136 S.Ct. 463 (2015)
the Supreme Court, in a 6-3 decision, reversed the California
Court of Appeals which had determined, essentially, that it could
apply a prior California law which made a class-arbitration waiver
in an employment setting unenforceable.
Against this backdrop, much has been made of the impact of
mandatory arbitration clauses in employment agreements and
handbooks which critics contend prevent transparency, limit the
employee's choice of forum, and often result in lower recoveries
than were possible if their claims were tried by a jury. They are
correct on each account as a general rule, but it begs the
question: Is that not the whole point of employer's requiring
arbitration rather than permitting litigation in the first place?
Employers will cite to the fact that arbitration maintains
confidentiality which, from a business standpoint, is important.
They would also cite to decreased costs, although any practitioner
who arbitrates and litigates in court might not be convinced that
the costs associated with arbitration are less than what would
have been expended in court. Finally, to the extent arbitration
does keep damage awards down, that is exactly what the employer is
hoping to do when faced with any legal claim. Yet, the question
is still asked: Should mandatory arbitration clauses bar a
litigant's claims that the employer violated state or federal law
as opposed to applying solely other contractual conditions of
employment? In 2016, a ground swell began to form to limit
mandatory arbitration as far as employment was concerned. That
year, Sens. Al Franken and Patrick Leahy reintroduced a bill that
proposes that any claim that violates state or federal law would
automatically bypass any arbitration clause and be permitted to
proceed to the courts. A number of states also began proposing
similar litigation. In light of present political circumstances,
however, it is unlikely that any such legislation will ever be
passed.
In New York, the Second Circuit has made it clear that the court
must address three primary issues: (1) whether the parties agreed
to arbitrate; (2) the scope of that agreement; (3) if federal
statutory claims are asserted, whether Congress intended those
claims to be nonarbitrable. SDD99 v. ASA Int'l, 2007 WL 952046, at
*5 (W.D.N.Y. 2007) (citing JLM Indus. v. Stolt-Nielsen SA, 387
F.3d 163 (2d Cir. 2004); Oldroyd v. Elmira Sav. Bank, 134 F.3d 72,
75-76 (2d Cir. 1998). In regard to the first issue, it is not
enough to claim that the employee was forced to enter into the
arbitration agreement as a condition of employment. "Even if the
Agreement was a form contract offered on a 'take-it-or-leave-it'
basis and [the party] refused to negotiate the Arbitration
Provision, this is not sufficient under New York law to render the
provision procedurally unconscionable." Nayal v. HIP Network
Servs. IPA, 620 F. Supp. 2d 566, 571 (S.D.N.Y. 2009); Gilmer v.
Interstate/Johnson Lane, 500 U.S. 20, 33, 111 S.Ct. 1647 (1991)
("[m]ere inequality in bargaining power . . . is not a sufficient
reason to hold that arbitration agreements are never enforceable
in the employment context").
As for any overbreadth argument, the scope of most arbitration
agreements is purposefully broad. A broad arbitration clause
"creates a presumption of arbitrability which is only overcome if
'it may be said with positive assurance that the arbitration
clause is not susceptible of an interpretation that [it] covers
the asserted dispute.'" WorldCrisa v. Armstrong, 129 F.3d 71, 74
(2d Cir. 1997) citing Collins & Aikman Prod. Co. v. Building
Systems, 58 F.3d 16, 20 (2d Cir. 1995) ("submitting to arbitration
'[a]ny claim or controversy arising out of or relating to th[e]
agreement,' is the paradigm of a broad clause"); Tong v. S.A.C.
Capital Management, 52 A.D.3d 386, 387 (1st Dep't 2008).
In regard to the third issue, there is little doubt that claims
under Title VII and the NYSHRL are arbitrable. See, e.g.,
Desiderio v. Nat'l Ass'n of Sec. Dealers, 191 F.3d 198, 206 (2d
Cir. 1999) (discussing purpose and history of Title VII and
concluding Congress did not intend to preclude arbitrability);
Johnson v. Tishman Speyer Properties, L.P., 2009 WL 3364038, at *3
(citing Fletcher v. Kidder, Peabody & Co., 81 N.Y.2d 623 (1993)
(race discrimination claims under the NYSHRL are arbitrable)).
So how would Ms. Carlson's argument have fared that, since
Mr. Ailes was not a signatory to the arbitration agreement, a
claim against him solely was not subject to mandatory arbitration?
Well, if Justice Cohen's decision in Ms. Tantaros's case is of any
guidance, probably not well. In his decision on the record,
Justice Cohen was not moved by the argument that the agreement
containing the arbitration clause was non-assignable and excluded
third party beneficiaries. In the end, Justice Cohen's
determination that, even though not signatories to the arbitration
agreement, the individual defendants could invoke the arbitration
clause and compel arbitration, is wholly consistent with Second
Circuit law. Roby v. Corporation of Lloyd's, 996 F.2d 1353 (2d
Cir. 1993) ("Courts in this and other circuits consistently have
held that employees or disclosed agents of an entity that is a
party to an arbitration agreement are protected by that
agreement"); Tracinda v. DaimlerChrysler AG, 502 F.3d 212 (3d Cir.
2007) ("The Pritzker rule -- that non-signatory agents may invoke
a valid arbitration agreement entered into by their principal --
is well-settled and supported by other decisions of this Court.").
While there can be no doubt that employees would rather, if
possible, have their claims heard by a jury of their peers rather
than an arbitrator (depending on the jurisdiction), the status of
the law, at least for the foreseeable future, seems strongly in
favor of the employers' use of arbitration to resolve workplace
disputes of all manner and kind. As for Ms. Tantaros, in
litigation, as in life, sometimes timing is everything.
FRANCHISE CONTRACTORS: Sunbelt Claims Unpaid Service Fees
---------------------------------------------------------
Sunbelt Rentals, Inc., on behalf of itself and all others
similarly situated, Plaintiff, v. Franchise Contractors, LLC,
Gateway Builders Construction, Inc., 55 Broadway Associates, LLC,
EAR 55 Broadway, LLC, Francisco Lombardi a/k/a Frank Lombardi,
John Fiorino and "John Doe No. 1-5," Defendants, 155323/2017 (N.Y.
Sup., June 9, 2017), seeks to recover the sum of $38,791.22, plus
interest at 1.5% per month from August 4, 2016, together with all
service charges, costs, attorneys' fees, expenses and damages
incurred in connection with the breach of the Rental Agreement by
Franchise and the enforcement of Sunbelt's rights pursuant to
same.
Fifty-five Broadway and EAR are the owners of real property and
the improvements located in the County of New York, known as 55
Broadway where Gateway was retained then hired by Franchise to
provide certain labor and materials at the premises. Franchise
entered into an equipment rental agreement with Sunbelt and
provide services and supplies to Franchise for its use at various
projects. Franchise allegedly still owes Sunbelt $38,791.22. [BN]
The Plaintiff is represented by:
Parshhueram T. Misir, Esq.
FORCHELLI, CURTO, DEEGAN, SCHWARTZ, MINEO & TERRANA, LLP
333 Earle Ovington Boulevard, Suite 1010
Uniondale, NY 11553
Tel: (516) 248-1700
GANLEY INC: Certification Order in "Konarzewski" Reversed
---------------------------------------------------------
Judge Sean C. Gallagher of the Court of Appeals of Ohio, Eighth
District, Cuyahoga County, reversed the trial court's decision
granting class certification and remanded the case styled WILLIAM
KONARZEWSKI, ET AL., Plaintiffs-Appellees, v. GANLEY, INC., ET
AL., Defendants-Appellants, No. 104681 9 (Ohio Ct. App.).
On January 16, 2008, plaintiffs William Konarzewski and Rachel
McCormick filed a class action complaint against defendants
Ganley, Inc. and Ganley Management Co., asserting claims
individually and as representatives of a class of motor vehicle
purchasers. The alleged claims included violations of the Ohio
Consumer Sales Practices Act (OCSPA), violations of the Ohio
Retail Installment Sales Act (RISA), intentional infliction of
emotional distress, gross negligence, fraud, and breach of
contract. The putative class action involves a claim under the
OCSPA arising from defendants' use of a retail sales installment
contract (RISC) and a conditional delivery agreement (CDA), which
were alleged to contain conflicting, misleading, unconscionable,
and substantially one-sided terms.
The parties filed summary judgment motions which the trial court
granted partial summary judgment to the plaintiffs, finding
defendants' use of the RISC and CDA violated the OCSPA.
Plaintiffs also filed a motion to certify a class action for the
OCSPA claims, defining the purported class as follows:
All consumers, who from within two years prior to the commencement
of this action to the present, purchased or attempted to purchase
a vehicle from Defendants or any dealership owned, operated,
managed, or controlled by Ganley Management Co., which transaction
involved the use of a RISC together with a CDA.
On December 5, 2008, the trial court issued a ruling that denied
class certification, but was reversed by the Court of Appeals of
Ohio, Eighth District. The court determined that the scope of
available damages for class actions brought under the OCSPA is
limited and that class action plaintiffs must prove actual damages
under R.C. 1345.09(B). As a result, the court found that the
trial court had abused its discretion by failing to modify the
class or giving plaintiffs the opportunity to modify the class to
conform with the additional requirement of actual damages found in
R.C. 1345.09(B) for class actions brought for violations of the
OCSPA. On remand, modified class definitions were proposed for
certification. On June 10, 2016, the trial court granted class
certification of a class defined as follows:
All Ganley consumers who, from within two years prior to the
commencement of this action to the present, purchased a vehicle
involving the use of the RISC, together with the CDA, and did not
receive the benefit of the bargain and as a result suffered actual
damages.
The court determined that plaintiffs satisfied the requirements of
Civ.R. 23 for class certification and that the class definition
was sufficient to comply with the requirement of R.C. 1345.09(B)
that class members must have actual damages to pursue a class
action under the OCSPA. The court certified the class under Civ.R.
23(B)(3), as the only subsection applicable to the case.
Defendants on appeal challenged the trial court's decision to
grant class certification.
Judge Gallagher finds that the trial court abused its discretion
in granting class certification pursuant to Civ.R 23 (B)(3). The
trial court found that it had already determined the defendants'
use of the RISC and CDA violated the Ohio CSPA and that the
liability arising from the OCSPA violations was common to the
class and predominates over the issue of actual damages. However,
a colorable claim does not satisfy the requirements of Civ.R. 23.
In order to satisfy Civ.R. 23(C), plaintiffs must demonstrate and
a trial court is required to find that questions common to the
class in fact predominate over individual ones. The decision
granting class certification is reversed and the case is remanded
for further proceedings.
A copy of Judge Gallagher's opinion dated June 15, 2017, is
available at https://goo.gl/N41i9c from Leagle.com.
A. Steven Dever, A. Steven Dever Co., L.P.A., 13363 Madison
Avenue, Lakewood, Ohio 44107; Georgia Hatzis, David D. Yeagley,
Ulmer & Berne, L.L.P., 1660 West 2nd Street, Suite 1100,
Cleveland, Ohio 44113, Attorneys for Appellants
Lewis A. Zipkin, April Bensimone, In Son J. Loving, Zipkin Whiting
Co., L.P.A., 3637 South Green Road, Cleveland, Ohio 44122,
Attorneys for Appellees
The Court of Appeals of Ohio, Eighth District, Cuyahoga County
panel consists of Presiding Judge Mary J. Boyle and Judges Sean C.
Gallagher and Anita Laster Mays.
GEICO GENERAL: Seeks Dismissal of Windshield Replacement Case
-------------------------------------------------------------
Nathan Hale, writing for Law360, reports that Geico General
Insurance Co. looked to shatter a Florida auto glass repair shop's
effort to lead a class action claiming the insurer routinely
underpays for windshield replacements, alleging on
June 13 that the shop made false statements to assert standing in
the case.
VIP Auto Glass Inc. claims that the insurer's approved prices for
reimbursement "have absolutely nothing to do" with the amount most
shops actually charge and that, by leaving policyholders to pay
the balance, the practice results in what are essentially
deductibles, which Florida state law does not permit for
windshield replacements.
VIP has asserted in its complaint, which was originally filed in
state court and later removed to the Middle District of Florida,
and throughout the proceedings, that it has standing to bring the
suit based upon an assignment of benefits from Florida resident
and Geico policyholder named Deryl Jones, whose windshield it
replaced in early 2016.
Last month, VIP asked a federal court in Tampa to certify a class
of similarly situated windshield repair facilities in the state
that were hired to perform repairs by Florida Geico policyholders,
obtained an assignment of benefits and submitted bills for
reimbursement, but did not receive full payment from the insurer.
But in its response opposing that motion, Geico told the court
that it has recently discovered that VIP's repeated assertions
that Jones, who spells his first name differently, assigned it his
benefits have been false.
"Mr. Jones himself recently confirmed that he never signed an
assignment, and that the purported assignment that VIP has
repeatedly put before this court is a forgery," Geico said.
"Since VIP actually has no valid assignment, it has no standing to
bring any claims, much less any class claims. Class certification
must be denied on this ground alone," Geico added, also noting
that it reserves the right to seek sanctions or other appropriate
remedies based on the alleged improper conduct.
Counsel for VIP did not immediately respond on June 13 to a
request for comment on Geico's filing and accusations.
Geico says that Jones recently confirmed the forgery during a
deposition and in a sworn affidavit, testifying that the signature
and initials on the filed assignment of benefits are not his. In
his affidavit, Jones also says that his first name is spelled
Derryl, with two "Rs."
Geico also alleges that VIP has submitted forgeries in at least
two other cases.
And VIP's owner Melvin Rivera recently admitted that, contrary to
the pleadings in the complaint, VIP never discussed pricing with
Jones and told him he would owe nothing, the insurer claims.
"Accordingly, even if there was such thing as a 'defacto [sic]
deductible' and VIP actually owned valid assignment, VIP would
still have no claim in this case," Geico argues. "VIP has
confirmed that Mr. Jones owes nothing. Because the insured owes
nothing, VIP similarly has no claim for breach of contract."
Geico says that the court's analysis should end with a finding
that VIP lacks standing, but also argues that class certification
should be denied because class members cannot be easily
ascertained since each proposed member's assignment of benefits
would have to be verified through individual factual inquiries.
VIP Auto Glass is represented by David M. Caldevilla, James Dan
Clark -- dclark@clarkmartino.com -- and Matthew A. Crist of Clark
& Martino PA.
Geico General Insurance is represented by Edward Keenan Cottrell,
John Patrick Marino -- jmarino@sgrlaw.com -- and Lindsey R.
Trowell -- ltrowell@sgrlaw.com -- of Smith Gambrell & Russell LLP.
The case is VIP Auto Glass Inc., et al. v. Geico General Insurance
Co., case number 8:16-cv-02012, in the U.S. District Court for the
Middle District of Florida. [GN]
GEICO GENERAL: Faces Class Action Over Glass Pricing
----------------------------------------------------
Timothy Montales writing for Insurance Business Magazine reports
that VIP Auto Glass Inc., a Florida-based automotive glass
company, has issued a class-action lawsuit against Geico General
Insurance Co.
Originally filed in the 13th Judicial Circuit Court in Florida,
the lawsuit accuses Geico of utilizing arbitrary price comparisons
to establish a "prevailing competitive price" for its
reimbursements to automotive glass companies, so that it could
possibly pay less.
"Defendant has an internal memorandum called the 'GEICO Glass
Pricing Agreement' (dated September 11, 2008), where Defendant
itself sets the price it will pay to the company's repair
facilities if one of Defendant's insureds obtains windshield
repair or replacement service," the plaintiffs claimed.
Geico's established prices are significantly lower than the NAGS
benchmark list price, the complaint stated, as reported in an
article by Fender Bender.
"Most companies bill what NAGS says to bill, but Geico says, 'No,
we're 45-50% below what NAGS says," Atty. Dan Clark, Clark &
Martino, PA, stated in a glassBYTEs.com article.
The case arose following a February incident where Deryl Jones --
listed in the court records as the "insured customer" -- had his
windshield repaired and replaced by VIP Auto Glass, in accordance
with Jones' insurance policy. Following the completion of the
repairs, Geico allegedly underpaid VIP Auto Glass for its work,
paying what it stated to be the "prevailing competitive price" for
repairs.
VIP Auto Glass is chasing declaratory and injunctive relief, while
both sides have until January to exhibit proof for a judge to
determine if the case is a class action suit. [GN]
GENERAL ELECTRIC: Wins Judgment Bid, "Kauffman" Suit Dismissal
--------------------------------------------------------------
The Hon. Lynn Adelman entered a decision and order in the lawsuit
styled EVELYN KAUFFMAN and DENNIS ROCHELEAU v. GENERAL ELECTRIC
COMPANY, Case No. 2:14-cv-01358-LA (E.D. Wisc.):
-- granting GE's motion for summary judgment;
-- denying the Plaintiffs' motion for summary judgment; and
-- denying as moot the Plaintiffs' motion for class
certification.
Evelyn Kauffman and Dennis Rocheleau bring the putative class
action under the Employee Retirement Income Security Act against
their former employer, General Electric Company, based on its
amendment and termination of Medicare supplement insurance plans
that it once provided to eligible retirees.
Plaintiffs initially brought two claims. First, they alleged that
language in summary plan descriptions (SPDs) of the plans obliged
GE to try to continue providing benefits under the plans absent a
compelling reason to reduce or terminate them and that it breached
that obligation when it amended and then terminated the plans.
"I dismissed this claim at the pleading stage because the terms of
an SPD are not enforceable as the terms of a plan itself and
plaintiffs did not allege that GE violated any plan terms," Judge
Adelman wrote in the Decision and Order. "Second, plaintiffs
alleged that GE breached its fiduciary duties under ERISA with
respect to the plans by misrepresenting its intent to continue the
plans indefinitely absent a compelling reason to substantially
amend or terminate them. Plaintiffs move for class certification
on this claim, and both parties move for summary judgment."
"Plaintiffs have not shown that they were cognizably harmed by
GE's fiduciary conduct with respect to the plans, so they lack
standing to sue GE for breach of its fiduciary duties under ERISA.
Thus, I will grant GE's motion for summary judgment and deny
plaintiffs' motion for same," Judge Adelman opined.
A copy of the Decision and Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Tx8NVBG4
GENERAL MOTORS: Corvette Z06 Owners File Class Action
-----------------------------------------------------
Stef Schrader, writing for Black Flag, reports that the current
Chevrolet Corvette Z06 is a supercharged monster, a 650 horsepower
nightmare aimed at dominating the track in a way that shames
Hellcats and Porsches alike. But it has a well-documented problem
with overheating. Now Z06 owners have filed a class-action
lawsuit against General Motors on June 13, alleging that GM's top-
tier trackrat doesn't deliver the performance they were promised.
The lawsuit claims that a cooling system defect can put the 2015-
2017 Z06 into "limp mode" after only 15 minutes of track use.
Fifteen minutes! Not much of a track day.
"Limp mode" drastically reduces the car's power and speed. A
sudden loss of power can create a dangerous situation on track, as
speeding traffic around a limping car may not expect that car to
slow down, the lawsuit said.
Given that most track day sessions last longer than 15 minutes,
this can be a major problem when you can't get all of the track
time you paid for as well.
The suit, filed on June 13 by perpetually automaker-suing firm
Hagens Berman, claims the Z06 can go into limp mode on public
roads, so it's not a problem limited to owners who use their Z06
on track. The cooling system defect allegedly warps vital engine
components due to the high temperatures, causing further headaches
over costly repairs.
Black Flag reached out to GM for comment but have not heard back
yet; this post will be updated if that happens.
The suit has been filed in the U.S. District Court for the
Southern District of Florida, and it alleges that GM knew of the
issue yet failed to disclose it and ensure that owners could
operate their cars safely.
Steve Berman, managing partner of the firm, explained in a
statement that owners are suing over GM's "bait and switch"
regarding how the Z06 was marketed and sold as a car built for
track use:
"We believe we've found GM to be guilty of a classic bait and
switch -- one that cost thousands of consumers dearly, up to
$120,000, and broke state consumer protection laws. GM enticed
race enthusiasts with bells and whistles, promising a car that
could maintain safe speeds and power when tracked, but we believe
what it sold them was far from what it promised. This defect not
only damages the Z06 engine, but endangers drivers.
The defect in question markedly limits the car's performance --
the sole reason these hotrod enthusiasts bought the Corvette Z06
in the first place. If they'd known of this defect at the time of
purchase, they likely wouldn't have spent six figures on the Z06.
The lawsuit claims that GM violated state and federal laws, and
has brought counts of breach of warranty, fradulent concealment,
unjust enrichment and other claims against the company. It seeks
monetary damages for affected owners, included for the diminished
value of the car now that many people associate the Z06 with
overheating problems on track.
Attorneys estimate that over 30,000 2015-2017 model year Corvette
Z06s are affected by this defect, and have asked owners of cars
that may be affected to contact the firm with any questions
related to the alleged defect or the class-action lawsuit itself.
The Z06s's engine cooling issues are well-known at this point. A
heat-soaked Z06 was quickly eliminated from contention in Motor
Trend's Best Driver's Car test in 2015 after going into a similar
limp mode on track with test driver Randy Pobst behind the wheel.
GM, however, maintained that the car Motor Trend got for their
test went into limp mode due to a servicing oversight; yet it was
far from the only mechanical issue we've heard from journalists or
owners about the current-generation Z06.
The 2017 Z06 received several upgrades to its cooling system as a
result of problems reported with the car, however, this year's
model is also listed in the list of affected cars in the class-
action lawsuit. [GN]
GERDAU AMERISTEEL: Wins OK of "Comer" Suit Deal; Hearing Sept. 11
-----------------------------------------------------------------
The Hon. Steven D. Merryday grants the parties' motion to amend
the class definition and motion for preliminary approval of class
settlement in the lawsuit entitled DANIEL L. COMER, et al. v.
GERDAU AMERISTEEL US INC., et al., Case No. 8:14-cv-00607-SDM-AAS
(M.D. Fla.).
The class includes:
1. Retirees (and their spouses and eligible dependents) of the
Sand Springs, Oklahoma plant (the Plant) who (i) were
represented during their employment by the United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union,
AFL-CIO/CLC (formerly known as the United Steelworkers of
America, AFL-CIO/CLC) on behalf of Local 2741 (USW), (ii)
retired from the Plant between September 1, 1981, and
March 2, 2011, and (iii) were receiving or were eligible
to receive retiree health care benefits from Gerdau as of
December 31, 2012 (i.e., retired under the company pension
plan on other than a deferred vested pension from a group
of employees designated by the company as covered by the
Plan, and at the time of retirement had fifteen or more
years of continuous service);
2. Surviving spouses (and their eligible dependents) who (i)
were receiving a surviving spouse's benefit under the
company pension plan as the surviving spouse of either a
retiree described in paragraph one or an active employee of
the Plan who was represented by USW and died between
September 1, 1981, and March 2, 2011, at a time when the
employee was accruing continuing service in a group of
employees designated by the company as covered by the Plan,
and (ii) were receiving or eligible to receive retiree
health care benefits from Gerdau as of December 31, 2012;
and
3. All former employees of the Plant who were represented
during their employment by USW (and their spouses, eligible
dependents, or surviving spouses) who were receiving or
were eligible to receive retiree health care benefits from
Gerdau as of December 31, 2012, but who do not fall within
paragraph one or two above.
The plaintiffs sue Gerdau and Gerdau's "Retiree Medical Plan" and
allege that the Defendants breached a contractual duty to provide
medical benefits to steelworkers, who retired from Gerdau's plant
in Sand Springs, Oklahoma. A June 12, 2014 order grants the
Plaintiffs' unopposed motion for class certification and certifies
a class under both Rules 23(b)(1)(A) and 23(b)(2) of the Federal
Rules of Civil Procedure.
Under the settlement, Gerdau will, among other things:
-- contribute $1,800 annually to a "Health Reimbursement
Account" (HRA) of each class member older than 65;
-- contribute $3,600 annually to the HRA of a class member
younger than 65 but eligible for Medicare as a result of a
disability;
-- offer a class member younger than 65 and ineligible for
Medicare the opportunity to enroll in the "restated
Sheffield Plan," that is, the "plan of benefits that Gerdau
has provided to the class before the changes at issue in
this lawsuit, and which [Gerdau] continues to provide to" a
class member younger than 65 and ineligible for Medicare;
and
-- contribute $8,820 annually to offset the premium under the
"restated Sheffield Plan";
The settlement further provides that each class member will
receive an equal share of $225,000, which Gerdau provides to
"partially reimburse" a class member for "the additional amounts
they paid for the costs of their medical and prescription during
coverage since January 1, 2013." The parties estimate that each
class member will receive $490, which Gerdau will deposit in the
class member's HRA (if the class member maintains an HRA) or will
pay by check (if the class member lacks an HRA). Finally, Gerdau
agrees to pay no more than $725,000 in an attorney's fee, costs,
and expenses.
"Because the record reveals no collusion between the parties and
because the settlement appears to resolve the class action fairly,
adequately, and reasonably, the motion (Doc. 125) for preliminary
approval of the class settlement is GRANTED," Judge Merryday said.
Judge Merryday also set this schedule:
* No later than June 21, 2017, the Defendants must mail the
notice;
* No later than July 27, 2017, the class counsel may move for
an attorney's fee, costs, and reasonable expenses attendant
to the litigation;
* No later than August 7, 2017, a class member may submit a
written objection;
* No later than August 25, 2017, the parties may respond to an
objection and may submit a memorandum in support of final
approval; and
* On September 11, 2017, at 8:30 a.m., in Courtroom 15A of the
Sam M. Gibbons U.S. Courthouse, 801 N. Florida Ave., Tampa,
Florida 33602, a hearing will decide finally whether the
settlement fairly, adequately, and reasonably resolves the
class action.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=jwFz1bOM
The Plaintiffs are represented by:
Joel R. Hurt, Esq.
FEINSTEIN DOYLE PAYNE & KRAVEC, LLC
Law & Finance Bldg., Suite 1300
429 Fourth Ave.
Pittsburgh, PA 15219
Telephone: (412) 281-8400
Toll Free: (888) 355-1735
Facsimile: (412) 281-1007
E-mail: jhurt@fdpklaw.com
The Defendants are represented by:
Brett J. Preston, Esq.
HILL WARD HENDERSON
101 E. Kennedy Blvd., Suite 3700
Tampa, FL 33602
Telephone: (813) 227-8419
Facsimile: (813) 221-2900
E-mail: brett.preston@hwhlaw.com
GIUMARRA VINEYARDS: $6.1MM Settlement in "Munoz" Has Final OK
-------------------------------------------------------------
Magistrate Judge Jennifer L. Thurston of the U.S. District Court
for the Eastern District of California granted the Plaintiffs'
motion for final approval of class settlement in the case styled
RAFAEL MUNOZ, et al., Plaintiffs, v. GIUMARRA VINEYARDS CORP.,
Defendant, Case No. 1:09-cv-00703-AWI-JLT (E.D. Cal.).
Pursuant to the proposed Settlement, the parties agreed to a gross
settlement amount totaling $6,100,000, plus interest. Giumarra
agreed to fund the Settlement for the following classes: (i) the
Tools Class which consists all fieldworkers employed by Giumarra
from Nov. 9, 2001 to the present who were required to purchase
necessary tools; and (ii) the Late Meal Break Class consists all
field workers by Giumarra from Nov. 9, 2001 to the present who
were not provided a timely meal period.
Giumarra agreed to pay $2,100,000 of the Gross Settlement Amount
by June 1, 2017; another $2,000,000 plus 5% interest on Dec. 1,
2017; and a final payment of $2,000,000 plus 5% interest on Nov.
1, 2018. If any of the payments are made after these deadlines,
the interest rate will rise to 10%.
The settlement provides for these payments from the gross
settlement amount: (i) the named Class Representatives will
receive up to $7,500 each; (ii) the Plaintiffs who withdrew from
the action will receive up to $3,500 each; (iii) the class counsel
will receive no more than 33 1/3% of the gross settlement amount
for fees, and up to $175,000 for expenses; (iv) the Claims
Administrator will receive up to $75,000 for fees and expenses.
After these payments have been made, the Net Settlement Amount
will be distributed as settlement shares to Class Members.
Because the Plaintiffs carry their burden to demonstrate
certification the settlement terms are fair, reasonable, and
adequate, the Court granted the Plaintiffs' request for final
approval of the Settlement.
The final approval of the Settlement Class is granted and defined
a combination of the previously-certified Tools Class and Late
Meal Break Class ("Class"): The Tool Class means all fieldworkers
employed by Giumarra from Nov. 9, 2001 through and including Dec.
1, 2016 who were required to purchase necessary tools. The Late
Meal Break Class consists of all field workers employed by
Giumarra from Nov. 9, 2001 through and including Dec. 1, 2016 who
were not provided a timely meal period. The Class does not
include irrigators and drivers; only employees, exclusive of
foremen, assigned to crews that performed tasks similar to those
of the named Plaintiffs: tying, pruning, picking and packing.
The Plaintiffs' request for incentive payments is denied as to
Lidia Cruz, and Yanet Hernandez. Their request for class
representative incentive payments is granted in the amount of $250
each for Trinidad Ruitz and Marta Rincon de Diaz; $5,000 each for
Santos Valenzuela, Hugo Perez Rios, and Ramon Cervantes; and in
the amount of $7,500 for Rafael Munoz.
The Class Counsel's motion for attorneys' fees is granted in the
modified amount of $1,525,000, which is 25% of the gross
settlement amount. The Class Counsel's request for costs is also
granted in the modified amount of $175,000.
The request for fees for the Settlement Administrator, Rust
Consulting, is granted in the amount of $75,000.
The action is dismissed with prejudice, with each side to bear its
own costs and attorneys' fees except as otherwise provided by the
Settlement and ordered by the Court. The Court retains
jurisdiction to consider any further applications arising out of
or in connection win the Settlement.
A full-text copy of the Court's June 20, 2017 order is available
at https://goo.gl/53UUDW from Leagle.com.
Rafael Munoz, Plaintiff, represented by Darren Michael Cohen --
dcohenlaw@sbcglobal.net -- Kingsley & Kingsley APC.
Rafael Munoz, Plaintiff, represented by Eric Bryce Kingsley,
Kingsley & Kingsley APC, Erica Deutsch --
edeutsch@bushgottlieb.com -- Bush Gottlieb, Hector Rodriguez
Martinez -- hectorm@themmlawfirm.com -- Mallison & Martinez,
Joseph Donald Sutton, Mallison & Martinez, Marco A. Palau,
Mallison & Martinez, Mario Martinez -- mmartinez@farmworkerlaw.com
-- Martinez Aguilasocho & Lynch Aplc, Stanley S. Mallison --
stanm@mallisonlaw.com -- Mallison & Martinez, Thomas Patrick Lynch
-- tlynch@farmworkerlaw.com -- Martinez, Aguilasocho & Lynch,
APLC, Douglas D. Winter, McNicholas & McNicholas, LLP, Eric
Sebastian Trabucco -- etrabucco@themmlawfirm.com -- Mallison &
Martinez, Ira L. Gottlieb -- igottlieb@bushgottlieb.com -- Bush
Gottlieb, A Law Corporation, Jeff S. Westerman --
jwesterman@jswlegal.com -- Westerman Law Corp, Matthew Sawaya
McNicholas, McNicholas and McNicholas, LLP. & Nicole Marie
Duckett, Milberg Weiss LLP.
Lidia Cruz, Plaintiff, represented by Darren Michael Cohen,
Kingsley & Kingsley APC, Eric Bryce Kingsley, Kingsley & Kingsley
APC, Joseph Donald Sutton, Mallison & Martinez, Marco A. Palau,
Mallison & Martinez, Mario Martinez, Martinez Aguilasocho & Lynch
Aplc, Stanley S. Mallison, Mallison & Martinez, Thomas Patrick
Lynch, Martinez, Aguilasocho & Lynch, APLC, Douglas D. Winter,
McNicholas & McNicholas, LLP, Eric Sebastian Trabucco, Mallison &
Martinez, Ira L. Gottlieb, Bush Gottlieb, A Law Corporation, Jeff
S. Westerman, Westerman Law Corp, Matthew Sawaya McNicholas,
McNicholas and McNicholas, LLP. & Nicole Marie Duckett, Milberg
Weiss LLP.
Yanet Hernandez, Plaintiff, represented by Darren Michael Cohen,
Kingsley & Kingsley APC, Eric Bryce Kingsley, Kingsley & Kingsley
APC, Erica Deutsch, Bush Gottlieb, Hector Rodriguez Martinez,
Mallison & Martinez, Joseph Donald Sutton, Mallison & Martinez,
Marco A. Palau, Mallison & Martinez, Mario Martinez, Martinez
Aguilasocho & Lynch Aplc, Stanley S. Mallison, Mallison &
Martinez, Thomas Patrick Lynch, Martinez, Aguilasocho & Lynch,
APLC, Douglas D. Winter, McNicholas & McNicholas, LLP, Eric
Sebastian Trabucco, Mallison & Martinez, Ira L. Gottlieb, Bush
Gottlieb, A Law Corporation, Jeff S. Westerman, Westerman Law
Corp, Matthew Sawaya McNicholas, McNicholas and McNicholas, LLP. &
Nicole Marie Duckett, Milberg Weiss LLP.
Santos R. Valenzuela, Plaintiff, represented by Darren Michael
Cohen, Kingsley & Kingsley APC, Eric Bryce Kingsley, Kingsley &
Kingsley APC, Erica Deutsch, Bush Gottlieb, Marco A. Palau,
Mallison & Martinez, Mario Martinez, Martinez Aguilasocho & Lynch
Aplc, Nicole Marie Duckett, Milberg Weiss LLP, Stanley S.
Mallison, Mallison & Martinez, Thomas Patrick Lynch, Martinez,
Aguilasocho & Lynch, APLC, William A. Sokol, Weinberg Roger and
Rosenfeld, Eric Sebastian Trabucco, Mallison & Martinez, Hector
Rodriguez Martinez, Mallison & Martinez, Ira L. Gottlieb, Bush
Gottlieb, A Law Corporation, Joseph Donald Sutton, Mallison &
Martinez & Matthew Sawaya McNicholas, McNicholas and McNicholas,
LLP..
Trinidad Ruiz, Plaintiff, represented by Darren Michael Cohen,
Kingsley & Kingsley APC, Eric Bryce Kingsley, Kingsley & Kingsley
APC, Erica Deutsch, Bush Gottlieb, Ira L. Gottlieb, Bush Gottlieb,
A Law Corporation, Marco A. Palau, Mallison & Martinez, Mario
Martinez, Martinez Aguilasocho & Lynch Aplc, Matthew Sawaya
McNicholas, McNicholas and McNicholas, LLP., Nicole Marie Duckett,
Milberg Weiss LLP, Stanley S. Mallison, Mallison & Martinez,
Thomas Patrick Lynch, Martinez, Aguilasocho & Lynch, APLC, Eric
Sebastian Trabucco, Mallison & Martinez, Hector Rodriguez
Martinez, Mallison & Martinez & Joseph Donald Sutton, Mallison &
Martinez.
Marta R. Rincon de Diaz, Plaintiff, represented by Darren Michael
Cohen, Kingsley & Kingsley APC, Eric Bryce Kingsley, Kingsley &
Kingsley APC, Ira L. Gottlieb, Bush Gottlieb, A Law Corporation,
Mario Martinez, Martinez Aguilasocho & Lynch Aplc, Nicholas David
Yonano, Yonano Law Offices, P.C., Nicole Marie Duckett, Milberg
Weiss LLP, Stanley S. Mallison, Mallison & Martinez, Douglas D.
Winter, McNicholas & McNicholas, LLP, Eric Sebastian Trabucco,
Mallison & Martinez, Hector Rodriguez Martinez, Mallison &
Martinez, Joseph Donald Sutton, Mallison & Martinez, Marco A.
Palau, Mallison & Martinez & Matthew Sawaya McNicholas, McNicholas
and McNicholas, LLP..
Ramon Cervantes Perales, Plaintiff, represented by Darren Michael
Cohen, Kingsley & Kingsley APC, Eric Bryce Kingsley, Kingsley &
Kingsley APC, Erica Deutsch, Bush Gottlieb, Marco A. Palau,
Mallison & Martinez, Mario Martinez, Martinez Aguilasocho & Lynch
Aplc, Nicole Marie Duckett, Milberg Weiss LLP, Stanley S.
Mallison, Mallison & Martinez, Thomas Patrick Lynch, Martinez,
Aguilasocho & Lynch, APLC, Douglas D. Winter, McNicholas &
McNicholas, LLP, Eric Sebastian Trabucco, Mallison & Martinez,
Hector Rodriguez Martinez, Mallison & Martinez, Ira L. Gottlieb,
Bush Gottlieb, A Law Corporation, Joseph Donald Sutton, Mallison &
Martinez & Matthew Sawaya McNicholas, McNicholas and McNicholas,
LLP..
Hugo Perez Rios, Plaintiff, represented by Darren Michael Cohen,
Kingsley & Kingsley APC, Eric Bryce Kingsley, Kingsley & Kingsley
APC, Erica Deutsch, Bush Gottlieb, Marco A. Palau, Mallison &
Martinez, Mario Martinez, Martinez Aguilasocho & Lynch Aplc,
Nicole Marie Duckett, Milberg Weiss LLP, Stanley S. Mallison,
Mallison & Martinez, Thomas Patrick Lynch, Martinez, Aguilasocho &
Lynch, APLC, Douglas D. Winter, McNicholas & McNicholas, LLP, Eric
Sebastian Trabucco, Mallison & Martinez, Hector Rodriguez
Martinez, Mallison & Martinez, Ira L. Gottlieb, Bush Gottlieb, A
Law Corporation, Joseph Donald Sutton, Mallison & Martinez &
Matthew Sawaya McNicholas, McNicholas and McNicholas, LLP..
Giumarra Vineyards Corporation, Defendant, represented by Joseph
C. Markowitz -- jcmarkowitz@gmail.com -- Law Offices Of Joseph C.
Markowitz.
GOPRO INC: California Court Dismisses "Bodri" Suit
--------------------------------------------------
Judge Jon S. Tigar of the U.S. District Court for the Northern
District of California, San Francisco Division, granted the
parties' joint stipulation and order that the Plaintiff's claims
are dismissed with prejudice and that the final judgment will be
entered in favor of the Defendants, with all parties waiving their
rights to appeal from the case captioned JOSEPH BODRI,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, v. GOPRO, INC., et al., Defendants, Lead Case No. 3:16-
cv-00232-JST (CONSOLIDATED) (N.D. Cal.).
The Stipulation and Order provided that each side will bear its
own attorneys' fees and costs incurred in connection with the
action.
A full-text copy of the Court's June 21, 2017 order is available
at https://goo.gl/8LQnhu from Leagle.com.
Joseph Bodri, Plaintiff, represented by Robert Vincent Prongay,
Glancy Prongay & Murray LLP.
Joseph Bodri, Plaintiff, represented by Shawn A. Williams --
shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Sunny
September Sarkis, Robbins Geller Rudman & Dowd LLP, Charles Henry
Linehan -- clinehan@glancylaw.com -- Glancy Prongay & Murray LLP,
Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay &
Murray LLP & Lionel Zevi Glancy -- lglancy@glancylaw.com --
Glancy Prongay & Murray LLP.
Barry Lee Deem, Plaintiff, represented by Laurence D. King --
lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Jeffrey Philip
Campisi -- jcampisi@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP,
Mario Man-Lung Choi -- mchoi@kaplanfox.com -- Kaplan Fox &
Kilsheimer LLP & Robert N. Kaplan, Kaplan Kilsheimer & Fox LLP.
Rene Van Meerbeke, Plaintiff, represented by Shawn A. Williams,
Robbins Geller Rudman & Dowd LLP, Frank James Johnson --
FrankJ@JohnsonandWeaver.com -- Johnson & Weaver, LLP, Michael I.
Fistel, Jr. -- MichaelF@JohnsonandWeaver.com -- Johnson & Weaver,
LLP & Nadim Gamal Hegazi -- nhegazi@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP.
GoPro, Inc., Defendant, represented by Catherine Duden Kevane --
ckevane@fenwick.com -- Fenwick & West LLP, Kaitlin O. Keller,
Fenwick & West LLP & Susan Samuels Muck -- smuck@fenwick.com --
Fenwick & West LLP.
Nicholas Woodman, Defendant, represented by Catherine Duden
Kevane, Fenwick & West LLP, Kaitlin O. Keller, Fenwick & West LLP
& Susan Samuels Muck, Fenwick & West LLP.
Jack Lazar, Defendant, represented by Catherine Duden Kevane,
Fenwick & West LLP, Kaitlin O. Keller, Fenwick & West LLP & Susan
Samuels Muck, Fenwick & West LLP.
Anthony J. Bates, Defendant, represented by Catherine Duden
Kevane, Fenwick & West LLP & Kaitlin O. Keller, Fenwick & West
LLP.
Bending Spoons ApS, Movant, represented by Patrice L. Bishop --
pbishop@ssbla.com -- Stull, Stull & Brody.
Jon Goldstein, Movant, represented by Thomas J. McKenna --
tjmckenna@gme-law.com -- Gainey McKenna & Egleston, pro hac vice &
Patrice L. Bishop, Stull, Stull & Brody.
Isaac Benporat, Movant, represented by Thomas J. McKenna, Gainey
McKenna & Egleston, pro hac vice & Patrice L. Bishop, Stull, Stull
& Brody.
Camia Investment LLC, Movant, represented by Danielle Suzanne
Myers -- danim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP,
Matthew Seth Melamed -- mmelamed@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP, Shawn A. Williams, Robbins Geller Rudman & Dowd
LLP & Sunny September Sarkis, Robbins Geller Rudman & Dowd LLP.
GoPro Group Lead Plaintiff Group, Movant, represented by Laurence
M. Rosen, The Rosen Law Firm, P.A. & Phillip C. Kim --
pkim@rosenlegal.com -- The Rosen Law Firm, P.A., pro hac vice.
Bending Spoons ApS, Movant, represented by Thomas J. McKenna,
Gainey McKenna & Egleston, pro hac vice, Adam Christopher McCall,
LEVI & KORSINSKY, LLP & Patrice L. Bishop, Stull, Stull & Brody.
Azim Maknojia, Movant, represented by Barbara Ann Rohr, Faruqi &
Faruqi, LLP.
Zhao Gao, Movant, represented by Lionel Z. Glancy, Glancy Prongay
& Murray LLP, Robert Vincent Prongay, Glancy Prongay & Murray LLP
& Stephen Douglas Bunch -- bunch@cohenmilstein.com -- Cohen
Milstein Sellers & Toll PLLC, pro hac vice.
HASTIE GROUP: Faces Shareholder Action
-------------------------------------
Reuters reports that IMF Bentham announced that proceedings have
been issued in shareholder class action against Hastie Group
Limited. IMF refers to the company's proposal to fund claims of
certain shareholders of Hastie Group against Deloitte Touche
Tohmatsu and Deloitte. [GN]
HIGHBURY CONCRETE: "Zamora" Suit Seeks Damages
----------------------------------------------
Wilfredo Zamora, Jose Antonio Dias, Juan Garcia, Pedro Hernandez,
Henry Soto, Fausto Prado, Eugenio Valerio and Alfonzo Valdevia,
individually and on behalf of all others similarly situated,
Plaintiffs, v. Highbury Concrete, Inc., RG Labor Services, Inc.,
The Laura Group, Inc. and Thomas Gorman, Richard Gorman and Laura
Phillips, as individuals, Defendants, Case No. CV17-2679, (E.D.
N.Y., June 9, 2017), seeks compensatory damages and liquidated
damages in an amount exceeding $100,000.00, interest, attorneys'
fees, costs and all other legal and equitable remedies under the
Fair Labor Standards Act and New York Labor Law.
Plaintiffs worked as carpenters at Defendants' various
construction sites in New York City under taken by Highbury
Concrete through RG Labor Services. [BN]
Plaintiff is represented by:
Roman Avshalumov, Esq.
Helen F. Dalton & Associates, P.C.
69-12 Austin Street
Forest Hills, NY 11375
Telephone: (718) 263-9591
Fax: (718) 263-9598
HILTON WORLDWIDE: Bid to Expedite Hearing on "Elder" Deal Denied
----------------------------------------------------------------
In the case captioned TIMOTHY ELDER, Plaintiff, v. HILTON
WORLDWIDE HOLDINGS, INC., et al., Defendants, Case No. 16-cv-
00278-TEH (N.D. Cal.), Judge Thelton E. Henderson of the U.S.
District Court for the Northern District of California denied the
parties' stipulation and request for an expedited hearing on the
Plaintiff's motion for preliminary approval of settlement.
The parties wish to move the preliminary approval hearing from
July 31, 2017, to June 26, 2017. They reason that if the motion
for preliminary approval is heard and decided at the earliest time
available on the Court's calendar, Judge Henderson will be able to
rule on their motion for final approval before he retires from the
bench.
The Court pointed out that the parties have not informed the Court
whether they have complied with the requirements of 28 U.S.C.
Section 1715(a). Even if they have properly served both
officials, the Court will not be able to rule on the motion for
final approval until 90 days have passed from the last date of
service, which will likely be long after Judge Henderson's planned
retirement in the beginning of August 2017. The Court saw no
reason to expedite the preliminary approval hearing and denied the
motion.
A full-text copy of the Court's June 20, 2017 order is available
at https://is.gd/VUkIwM from Leagle.com.
Timothy Elder, Plaintiff, represented by Jana Eisinger, LAW OFFICE
OF JANA EISINGER, PLLC.
Timothy Elder, Plaintiff, represented by Lawrence Timothy Fisher,
Bursor & Fisher, P.A..
Hilton Worldwide Holdings, Inc., Defendant, represented by Angela
Christine Agrusa -- aagrusa@linerlaw.com -- Liner LLP & David
Brian Farkas -- dfarkas@linerlaw.com -- Liner LLP.
Hilton Grand Vacations Company, Inc., Defendant, represented by
Angela Christine Agrusa, Liner LLP & David Brian Farkas, Liner
LLP.
Premier Getaway, Inc., Defendant, represented by Zana Z. Bugaighis
-- zanabugaighis@dwt.com -- Davis Wright Tremaine.
Blackhawk Engagement Solutions, Inc., Defendant, represented by
Jason F. Hoffman -- jhoffman@bakerlaw.com -- Baker & Hostetler
LLP, pro hac vice & Matthew D. Pearson -- mpearson@bakerlaw.com --
Baker & Hostetler LLP.
HITACHI CHEMICAL: Indirect Purchasers Move to Certify Classes
-------------------------------------------------------------
The Indirect Purchaser Plaintiffs in the litigation styled In Re
Capacitors Antitrust Litigation, Case No. 3:14-cv-03264-JD (N.D.
Cal.), move the Court for an order certifying these classes:
-- Injunctive Relief Classes Pursuant to Rule 23(b)(2):
* Electrolytic Injunctive Class: All persons and entities
in the United States who, during the period from April 1,
2002 to the present, purchased one or more electrolytic
capacitor(s) from a capacitor distributor that a
defendant or co-conspirator manufactured; and
* Film Injunctive Class: All persons and entities in the
United States who, during the period from January 1, 2002
to the present, purchased one or more film capacitor(s)
from a capacitor distributor that a defendant or
co-conspirator manufactured;
-- Monetary Damages Classes Pursuant to Rule 23(b)(3) under
California Law. Certification pursuant to Rule 23(b)(3) of
classes under California law that include purchasers from
the thirty-one states that permit recovery by indirect
purchaser plaintiffs in price-fixing cases ("Indirect
Purchaser States"):
* Electrolytic Damages Class: All persons and entities in
the Indirect Purchaser States who, during the period from
April 1, 2002 to February 28, 2014, purchased one or more
electrolytic capacitor(s) from a capacitor distributor
that a Defendant or Co-Conspirator manufactured; and
* Film Damages Class: All persons and entities in the
Indirect Purchaser States who, during the period from
January 1, 2002 to February 28, 2014, purchased one or
more film capacitor(s) from a capacitor distributor that
a Defendant or Co-Conspirator manufactured; and
-- Monetary Damages Classes Pursuant to Rule 23(b)(3) under
California, Florida, Iowa, Michigan, Minnesota, Nebraska
and New York Law. If the Court declines to certify the
Indirect Purchaser States class under California law, IPPs
propose certification of separate state classes for:
California, Florida, Iowa, Michigan, Minnesota, Nebraska
and New York:
* California Electrolytic Class: All persons and entities
who indirectly purchased in California one or more
electrolytic capacitors from a distributor during the
period of April 1, 2002 to February 28, 2014 that a
Defendant or Co-Conspirator manufactured;
* California Film Class: All persons and entities who
indirectly purchased in California one or more film
capacitors from a distributor during the period of
January 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Florida Electrolytic Class: All persons and entities who
indirectly purchased in Florida one or more electrolytic
capacitors from a distributor during the period of
April 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Florida Film Class: All persons and entities who
indirectly purchased in Florida one or more film
capacitors from a distributor during the period of
January 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Iowa Electrolytic Class: All persons and entities who
indirectly purchased in Iowa one or more electrolytic
capacitors from a distributor during the period of
April 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Michigan Electrolytic Class: All persons and entities who
indirectly purchased in Michigan one or more electrolytic
capacitors from a distributor during the period of
April 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Michigan Film Class: All persons and entities who
indirectly purchased in Michigan one or more film
capacitors from a distributor during the period of
January 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Minnesota Electrolytic Class: All persons and entities
who indirectly purchased in Minnesota one or more
electrolytic capacitors from a distributor during the
period of April 1, 2002 to February 28, 2014 that a
Defendant or Co-Conspirator manufactured;
* Minnesota Film Class: All persons and entities who
indirectly purchased in Minnesota one or more film
capacitors from a distributor during the period of
January 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Nebraska Electrolytic Class: All persons and entities who
indirectly purchased in Nebraska one or more electrolytic
capacitors from a distributor during the period of
April 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* Nebraska Film Class: All persons and entities who
indirectly purchased in Nebraska one or more film
capacitors from a distributor during the period of
January 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured;
* New York Electrolytic Class: All persons and entities who
indirectly purchased in New York one or more electrolytic
capacitors from a distributor during the period of
April 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured; and
* New York Film Class: All persons and entities who
indirectly purchased in New York one or more film
capacitors from a distributor during the period of
January 1, 2002 to February 28, 2014 that a Defendant or
Co-Conspirator manufactured.
The Plaintiffs in the litigation allege that the Defendants
engaged in vast conspiracies to fix the prices of electrolytic and
film capacitors -- two of the most essential and ubiquitous
electronic components in the world used in almost every electronic
product. The Plaintiffs contend that the Defendants achieved
their unlawful purpose of stabilizing prices for these commodity
products in a systematic fashion: they met in private -- in many
cases on a monthly basis over at least a twelve-year period -- to
exchange detailed information concerning their plans with respect
to production and pricing and to share other commercially
sensitive information that facilitated their price-fixing.
The Court will commence a hearing on September 7, 2017, at 10:00
a.m., to consider the Motion.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=HOpqFUG5
The Indirect Purchaser Plaintiffs are represented by:
Steven N. Williams, Esq.
Adam Zapala, Esq.
Elizabeth Tran, Esq.
Mark F. Ram, Esq.
COTCHETT PITRE & McCARTHY LLP
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Facsimile: (650) 697-0577
E-mail: swilliams@cpmlegal.com
azapala@cpmlegal.com
etran@cpmlegal.com
mram@cpmlegal.com
HOME CAPITAL: Settles Class Action Over Misleading Disclosure
-------------------------------------------------------------
Home Capital Group Inc. ("Home Capital") on June 14 disclosed that
it has reached two agreements which together comprise a global
settlement with the Ontario Securities Commission (the
"Commission") and with respect to the putative class action
commenced in February 2017 by Claire R. McDonald, Action No.
349/17CP (the "Class Action") relating to allegations of
misleading disclosure. The settlements are subject to approval
(by the Commission and by the Ontario Superior Court of Justice
respectively) and each settlement is conditional upon the approval
of the other. The main terms of the two settlements for which
approval is being sought are set out below. It is expected that
full copies of both agreements will be publicly filed if both
agreements receive final approval. Home Capital expects to fund
substantially all of the costs of such settlements through
available liability insurance.
Commission Settlement
Under its proposed settlement with the Commission, Home Capital
will make a payment of $10 million and reimburse Commission costs
in the amount of $500,000. Gerald Soloway ("Soloway") will be
reprimanded, prohibited from acting as a director or officer of
any reporting issuer for a period of four years and pay an
administrative penalty in the amount of $1 million. Each of
Robert Morton ("Morton") and Martin Reid ("Reid") will be
reprimanded, prohibited from acting as a director or officer of
any reporting issuer for a period of 2 years and pay an
administrative penalty in the amount of $500,000.
Of the $12 million (other than costs) being paid by the
respondents in the Commission Settlement, $10 million will be paid
by Home Capital directly for the benefit of Home Capital investors
who comprise the proposed class in the Class Action (the "Class").
A total of $2 million will be paid to the Commission. Staff of
the Commission will recommend that $1 million be allocated to the
Class and the remaining $1 million be allocated or used by the
Commission in accordance with the Securities Act.
Class Action Settlement
Home Capital will make a payment of $29.5 million to be
distributed (net of costs and other expenses) to the Class as
defined in the Class Action, all subject to the approval of the
Superior Court of Justice as to certification of the Class for
settlement purposes (as well as leave under the Securities Act)
and after notice to the Class of the proposed settlement, review
and approval of the settlement by the Court. The $29.5 million
includes $11 million of the payments being made in the Commission
Settlement. Releases of all defendants and dismissals in the
usual form are part of this settlement. There will be no deduction
for legal fees of counsel for the class plaintiff in respect of
the $11 million being paid in the Commission Settlement.
Approval Process
The Commission has issued a Notice of Hearing for a date to be
set by the Commission, at which time the Commission will consider
whether it is in the public interest to approve and give effect to
the settlement agreement by making certain orders against Home
Capital, Soloway, Morton and Reid as described therein.
The parties to the Class Action are in the process of obtaining a
date for the initial court hearing.
Company Statement
Brenda Eprile, Chair of the Home Capital Board, stated that "These
settlements will enable us to move forward with regaining the
confidence of our depositors and shareholders and creating value
for all our stakeholders." She noted, as indicated below, "Home
Capital will accept full responsibility for failing to meet its
disclosure obligations to the marketplace and appreciates the
importance of the serious concerns raised by the Commission with
respect to continuous and timely disclosure." Ms. Eprile
continued, "The Company also acknowledges that the Commission is
not to blame for the events of recent months involving its
liquidity position." Upon final approval by both the Commission
and the Ontario Superior Court of Justice, Home Capital believes
that it will have taken full and appropriate responsibility for
this matter.
Pursuant to the terms of the settlement agreement with the
Commission, Home Capital will not be making any further statements
on this matter outside of the approval proceedings.
About Home Capital Group Inc.
Home Capital Group Inc. -- http://www.homecapital.com-- is a
public company, traded on the Toronto Stock Exchange (HCG),
operating through its principal subsidiary, Home Trust Company.
Home Trust is a federally regulated trust company offering
residential and non-residential mortgage lending, securitization
of insured residential mortgage products, consumer lending and
credit card services. In addition, Home Trust offers deposits via
brokers and financial planners, and through its direct to consumer
deposit brand, Oaken Financial. Home Trust also conducts business
through its wholly owned subsidiary, Home Bank. Licensed to
conduct business across Canada, Home Trust has offices in Ontario,
Alberta, British Columbia, Nova Scotia, Quebec and Manitoba. [GN]
HOME DEPOT: Seeks Dismissal of Class Action Over Lumber Sizing
--------------------------------------------------------------
Jonathan Bilyk, writing for Cook County Record, reports that
facing a class action lawsuit claiming the retailer should be made
to pay for selling lumber that doesn't measure up to its listed
dimensions, Home Depot has hammered back, arguing it should not be
made to answer for simply selling its products using terms common
within the home improvement and construction business.
On June 1, Home Depot asked a Chicago federal judge to throw out
the legal action raised earlier this spring through attorneys with
the Chicago-based McGuire Law firm asserting Home Depot should be
held liable because its two-by-fours don't actually measure two
inches by four inches, and other pieces of lumber similarly don't
live up to their listed dimensions.
"Retailers such as Home Depot did not create these lumber sizing
standards or naming conventions and should not be subject to suit
simply for following them," Home Depot argued in its motion to
dismiss. "Plaintiff's attempt to turn this accepted lumber naming
convention into a class action lawsuit should be rejected. To do
otherwise would ignore nearly a century of standardization and
disturb an entire industry's reliance on these lumber names."
Plaintiff Mikhail Abramov filed his lawsuit in March, alleging the
retailer's practice of listing lumber according to its "nominal
dimensions" amounted to little more than false advertising,
allowing Home Depot and other retailers to shortchange customers
the lumber they expected to receive for the price paid.
The complaint noted, for instance, "the most commonly used
2" x 4" - 8' framing lumber actually measures 1.5" x 3.5" - 8'."
"Nowhere does Defendant state that the advertised dimensions are
not the actual dimensions of the products, that the advertised
dimensions were 'nominal' dimensions, or anything else to indicate
that the products' actual dimensions differ from those explicitly
stated on the advertising and product labeling,"
Mr. Abramov's complaint said.
Mr. Abramov noted he had purchased a piece of lumber listed as
measuring four inches wide by four inches high and six feet long
(4x4x6) at Home Depot's Palatine store in December 2016. However,
when he measured the lumber piece at home, its actual dimensions
were 3.5x3.5x6, "which was 12.5 percent shorter in height and
width, and approximately 23 percent less overall material than
advertised and represented by (Home Depot.)"
In its motion to dismiss, Home Depot asserted Mr. Abramov lacks
any foundation for his legal claims, saying it is common practice
at all lumber yards and home improvement stores selling lumber to
refer to pieces of lumber by their nominal dimensions, even if
their actual dimensions don't precisely correspond.
"Neither Home Depot nor any other lumber supplier sells a 4x4 of
dressed lumber that measures exactly 4 inches by 4 inches," Home
Depot said. "While Plaintiff alleges he would not have purchased
the lumber, he could not have purchased a piece of dressed lumber
with the 4 inch by 4 inch measurements he sought."
Further, the retailer said, Mr. Abramov's discovery that the
lumber he purchased didn't correspond to its nominal dimensions
should have "come as no surprise," as the actual dimensions of
lumber pieces sold by Home Depot are listed on Home Depot's
product pages on its website -- product pages Mr. Abramov
introduced as evidence -- and in many other published sources.
"The label and tag . . . like those used in the rest of the lumber
industry, reflected only the standard naming practice and were
intended to allow customers to shop for and compare dimensional
lumber of a similar size," Home Depot said.
"And, if there was any doubt as to the actual dimensions of
nominal lumber, Plaintiff had an opportunity to confirm the size
prior to purchase on Home Depot's webpage, as several customers
did, or even by measuring it himself like he did after he returned
home," Home Depot said.
Home Depot argued Mr. Abramov essentially received what he paid
for, a usable piece of lumber that conformed to industry
standards.
Home Depot is represented in the action by attorneys with the
firms of Polsinelli P.C., of Chicago, and King & Spalding LLP, of
Atlanta. [GN]
HOME LOAN: Securities Suit Deal Gets OK; Hearing on Nov. 17
-----------------------------------------------------------
The Hon. William P. Dimitrouleas grants preliminary approval of
the settlement and provides for notice in the lawsuit styled IN RE
HOME LOAN SERVICING SOLUTIONS, LTD. SECURITIES LITIGATION, Case
No. 0:16-cv-60165-WPD (S.D. Fla.).
The Settling Parties are Lead Plaintiffs West Palm Beach Police
Pension Fund, the City of Fort Lauderdale Police and Firefighters'
Retirement System, and The Police Retirement System of St. Louis,
on behalf of themselves and the other members of the Settlement
Class, and Defendants Home Loan Servicing Solutions, Ltd., William
C. Erbey, John P. Van Vlack, and James E. Lauter. The Settling
Parties have determined to settle all claims asserted in the
Action with prejudice on the terms and conditions set forth in the
Stipulation and Agreement of Settlement dated June 9, 2017,
subject to approval of the Court.
The Court certifies, solely for purposes of effectuating the
proposed Settlement, a Settlement Class consisting of:
all persons or entities who purchased or otherwise acquired
HLSS common stock during the period from February 28, 2012
through January 22, 2015, inclusive (the "Class Period").
Excluded from the Settlement Class are the Defendants; the
affiliates and subsidiaries of HLSS, Ocwen Financial Corporation,
Altisource Portfolio Solutions, S.A., Altisource Residential
Corporation, Altisource Asset Management Corporation, and New
Residential Investment Corp.; members of the immediate family of
each of the Individual Defendants; the officers and directors of
HLSS, Ocwen, Altisource Portfolio Solutions, S.A., Altisource
Residential Corporation, Altisource Asset Management Corporation,
and New Residential Investment Corp.; the heirs, successors, and
assigns of any excluded person or entity; and any entity in which
any excluded person has or had during the Class Period a
controlling interest. Also excluded from the Settlement Class are
any persons or entities that exclude themselves by submitting a
request for exclusion that is accepted by the Court as valid.
The Court authorized the Lead Counsel to retain Epiq Class Action
& Mass Tort Solutions, Inc., to supervise and administer the
notice procedure in connection with the proposed Settlement as
well as the processing of Claims.
The Court will hold a settlement hearing on November 17, 2017, at
1:15 p.m., to determine whether the proposed Settlement on the
terms and conditions provided for in the Stipulation is fair,
reasonable and adequate to the Settlement Class.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=eWXWpBvf
The Plaintiffs are represented by:
Joseph E. White, III, Esq.
SAXENA WHITE P.A.
5200 Town Center Circle, Suite 601
Boca Raton, FL 33486
Telephone: (561) 869-1012
Facsimile: (561) 394-3382
E-mail: jwhite@saxenawhite.com
The Settling Defendants are represented by:
Richard Slack, Esq.
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8017
E-mail: richard.slack@weil.com
- and -
Darrell S. Cafasso, Esq.
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004
Telephone: (212) 558-4000
Facsimile: (212) 558-3588
E-mail: cafassod@sullcrom.com
HONDA MOTOR: Says Soy-Based Wiring Class Actions Without Merit
--------------------------------------------------------------
Wendy Saltzman, writing for ABC6, reports that a furry little
culprit is causing big problems for car manufactures and, possibly
more importantly, for drivers whose vehicles are being destroyed.
Now lawsuits are popping up across the country claiming rodents
are responsible, eating cars from the inside out. And it's likely
not covered under your warranty.
Critics say soy-wire coverings now used in many new cars are also
a tasty food source attracting rodents. They're chewing through
wires, and costing car owners thousands of dollars.
Alice Clark, a rat enthusiast, says her cuddly little "pets"
wouldn't hurt anyone, but what they could do to the insides of
your car is a different tail.
"It's edible, rats will eat pretty much anything that's edible,"
Ms. Clark said.
Ms. Clark feeds her rats soy. And critics say as car companies
are going green, they've also turned to soy as an eco-friendly
alternative to plastic for wrapping wires and car parts.
Driver Sandy Medina doesn't know how long she had furry friends
living under her hood.
"Driving around there could have been something underneath while I
was driving it and who knows, maybe something would have popped
out!" Ms. Medina said.
After owning her Toyota Forerunner for just three months,
Ms. Medina says the first sign of trouble was when her engine
light went on and she took it to her dealer.
"They told me, 'There's a nest in the car. Could be anything,
could be rodents, could be squirrels, could be anything,'"
Ms. Medina said.
She says mechanics told her these pests weren't just making her
car their home, they were making it their meal.
"I don't even think that there was anything left. Everything was
eaten," Ms. Medina said.
She fears it wasn't only bad for her car, it was a potential fire
and safety hazard, too.
"I felt that my life was in danger," Ms. Medina said.
Attorney Brian Kabateck says, "It is a design defect which has
effected a lot of people and has cost a lot of people a lot of
money."
Mr. Kabateck has filed a class action lawsuit against Toyota,
which is one of the manufacturers allegedly using a soy based
compound for wire insulation.
"Rats think this is delicious," Mr. Kabateck said.
The lawsuit says the soy is "baiting rodents" and "enticing these
pests to chew through . . . the wiring" which could "leave the
vehicle partially or completely inoperable."
"It can be a life safety hazard, it can cause the car to stop in
the middle of the highway, it can cause it to shut down, and it
can cause serious problems," Mr. Kabateck said.
Mr. Kabatech says it's unknown how many manufacturers are using
soy in their cars, but Toyota and Honda are two of the most
prevalent.
He believes Toyota is using soy to cut costs, not necessarily to
go green, and they are leaving car owners to pay for it.
"They ate $6,000 out of my pocket," Ms. Medina said.
While some insurance companies, like Ms. Medina's, will pay for
repairs, the class action cases says Toyota won't cover it under
their warranty. Ms. Medina says the wires in her truck were
replaced with the exact same soy wire covers.
"They can't guarantee that it's not going to happen again,"
Ms. Medina said.
Mark Zickler of Terminix says, "Soy is a little bit sweeter than
chewing on a petroleum product, obviously."
Mr. Zickler says there are things car owners can do. Honda has
said that rodents chewing wiring has been a longstanding problem
and they have seen no evidence that anything in their wiring is
increasing rodents gnawing tendencies. Nonetheless, they have
come out with a fix -- spicy tape -- that costs about $45.
"You wrap the wiring throughout your vehicle and it has a really
super spicy flavoring in it that deters them from wanting to chew
on it," Mr. Zickler said.
He also recommends owners move their cars, instead of leaving them
in one place for long periods which makes them a more likely home,
parking inside, and using traps and moth balls to deter rodents.
"They can come from anywhere and surprise you," Mr. Zickler said.
Ms. Medina, who is part of the class action lawsuit, just wants to
warn other drivers and she wants manufactures to fix the problem,
without passing the buck to consumers.
"Why wait until something catastrophic to occur, why can't you do
something now?" Ms. Medina said.
In a statement to Action News Toyota said "rodent damage . . .
occurs across the industry and is not brand or model specific. And
they are "not aware of any scientific evidence that shows rodents
are attracted to automotive wiring because of alleged soy bases
content."
Honda tells us they believe the class action lawsuits have no
merit.
STATEMENT FROM TOYOTA
"Rodent damage to vehicle wiring occurs across the industry, and
the issue is not brand- or model-specific. We are currently not
aware of any scientific evidence that shows rodents are attracted
to automotive wiring because of alleged soy-based content. Because
these claims are the subject of current litigation, we cannot
comment further."
STATEMENT FROM HONDA
"It is a long established fact that rodents are drawn to chew on
electrical wiring in homes, cars, or anywhere else where they may
choose to nest. "
"Honda introduced a rodent-deterrent tape a few years ago to help
combat this age-old issue for customers who live in areas where
rodents have caused prior damage. Our attempt to provide some
protection for our customers against this natural behavior should
not lead to the assumption that Honda created the issue in the
first place.
"Further, Honda sources parts, including electrical wiring and
wire harnesses, from several different suppliers who each have
their own proprietary formula for wire insulation and wire
harnesses. Honda has not received any confirmation from its
various suppliers that the wiring insulation and harnesses used in
Honda vehicles are soy-based, as the plaintiffs allege. Honda is
not aware of studies or information indicating that any of the
wiring insulation or other components used for Honda vehicles are
derived from substances that attract rodents or increase their
propensity to chew on wiring or other components in engine
compartments. It is Honda's understanding that rodents may seek
shelter in engine components and once inside, can cause damage as
a natural result of their need to chew and use material that has
been chewed for nesting. Honda is not aware of any information
suggesting rodents use wire insulation as a food source.
"Class action lawsuits have been filed against a number of auto
manufacturers alleging that vehicles contain soy-based wiring
insulation and that such insulations attracts rodents to chew on
the insulation. Honda believes that the class actions filed
against it have no merit." [GN]
HP INC: Continues to Defend "Forsyth, et al." Lawsuit in Calif.
---------------------------------------------------------------
HP Inc. still defends itself in a purported class action related
to age discrimination in employment, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended April 30, 2017.
The case, Forsyth, et al. vs. HP Inc. and Hewlett Packard
Enterprise, is a purported class and collective action filed on
August 18, 2016 in the United States District Court, Northern
District of California, against HP and Hewlett Packard Enterprise
alleging the defendants violated the Federal Age Discrimination in
Employment Act ("ADEA"), the California Fair Employment and
Housing Act, California public policy and the California Business
and Professions Code by terminating older workers and replacing
them with younger workers.
Plaintiffs seek to certify a nationwide collective class action
under the ADEA comprised of all U.S. residents employed by
defendants who had their employment terminated pursuant to a
workforce reduction ("WFR") plan on or after May 23, 2012 and who
were 40 years of age or older. Plaintiffs also seek to represent
a Rule 23 class under California law comprised of all persons 40
years or older employed by defendants in the state of California
and terminated pursuant to a WFR plan on or after May 23, 2012.
Following a partial motion to dismiss, a motion to strike and a
motion to compel arbitration that the defendants filed in November
2016, the plaintiffs amended their complaint. New plaintiffs were
added, but the plaintiffs agreed that the class period for the
nationwide collective action should be shortened and now starts on
December 9, 2014.
On January 30, 2017, the defendants filed another partial motion
to dismiss and motions to compel arbitration as to several of the
plaintiffs.
On March 20, 2017, the defendants filed additional motions to
compel arbitration as to a number of the opt-in plaintiffs.
HP Inc. is a global provider of personal computing and other
access devices, imaging and printing products, and related
technologies, solutions and services. HP sells to individual
consumers, small and medium-sized businesses and large
enterprises, including customers in the government, health and
education sectors.
HP INC: July Hearing on Bid to Drop Supplies Authentication Suit
----------------------------------------------------------------
A hearing on HP Inc.'s motion to dismiss the consolidated class
action regarding authentication of supplies is scheduled for July
6, 2017, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
April 30, 2017.
Five purported consumer class actions were filed against HP,
arising out of the supplies authentication protocol in certain
OfficeJet printers. This authentication protocol rejects some
third-party ink cartridges that use non-HP security chips. Two of
the cases were dismissed, and the remaining cases have been
consolidated in the United States District Court for the Northern
District of California, captioned In re HP Printer Firmware Update
Litigation.
The remaining plaintiffs' operative consolidated complaint was
filed on March 22, 2017, alleging eleven causes of action: (1)
unfair and unlawful business practices in violation of the Unfair
Competition Law, Cal. Bus. & Prof. Code Section 17200, et seq.;
(2) fraudulent business practices in violation of the Unfair
Competition Law, Cal. Bus. & Prof. Code Section 17200, et seq.;
(3) violations of the False Advertising Law, Cal. Bus. & Prof.
Code Section 17500, et seq.; (4) violations of the Consumer Legal
Remedies Act, Cal. Civ. Code Section 1750, et seq.; (5) violations
of the Texas Deceptive Trade Practices - Consumer Protection Act,
Tex. Bus. & Com. Code Ann. Section 17.01, et seq.; (6) violations
of the Washington Consumer Protection Act, Wash. Rev. Code Ann.
Section 19.86.010, et seq.; (7) violations of the New Jersey
Consumer Fraud Act, New Jersey Statutes Ann. 56:8-1, et seq.; (8)
violations of the Computer Fraud and Abuse Act, 18 U.S.C. Section
1030, et seq.; (9) violations of the California Computer Data
Access and Fraud Act, Cal. Penal Code Section 502; (10) Trespass
to Chattels; and (11) Tortious Interference with Contractual
Relations and/or Prospective Economic Advantage.
The plaintiffs seek to certify a primary class of all persons in
the United States who purchased or owned the OfficeJet printers in
question, and they alternatively seek to certify subclasses of all
such printer purchasers or owners in California, Texas,
Washington, and/or New Jersey.
On April 21, 2017, HP filed a motion to dismiss the consolidated
complaint. A hearing on HP's motion is scheduled for July 6,
2017.
HP Inc. is a global provider of personal computing and other
access devices, imaging and printing products, and related
technologies, solutions and services. HP sells to individual
consumers, small and medium-sized businesses and large
enterprises, including customers in the government, health and
education sectors.
HP INC: Appeal from Dismissal of ERISA Lawsuit Remains Pending
--------------------------------------------------------------
An appeal from the dismissal of a consolidated putative class
action over alleged violations of the Employee Retirement Income
Security Act is still pending, according to HP Inc.'s Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended April 30, 2017.
The case, In re HP ERISA Litigation, consists of three
consolidated putative class actions filed beginning on December 6,
2012 in the United States District Court for the Northern District
of California alleging, among other things, that from August 18,
2011 to November 22, 2012, the defendants breached their fiduciary
obligations to HP's 401(k) Plan and its participants and thereby
violated Sections 404(a)(1) and 405(a) of the Employee Retirement
Income Security Act of 1974, as amended, by concealing negative
information regarding the financial performance of Autonomy and
HP's enterprise services business and by failing to restrict
participants from investing in HP stock.
On August 16, 2013, HP filed a motion to dismiss the lawsuit. On
March 31, 2014, the court granted HP's motion to dismiss this
action with leave to amend.
On July 16, 2014, the plaintiffs filed a second amended complaint
containing substantially similar allegations and seeking
substantially similar relief as the first amended complaint.
On June 15, 2015, the court granted HP's motion to dismiss the
second amended complaint in its entirety and denied plaintiffs
leave to file another amended complaint.
On July 2, 2015, plaintiffs appealed the court's order to the
United States Court of Appeals for the Ninth Circuit. Oral
argument occurred on May 15, 2017.
HP Inc. is a global provider of personal computing and other
access devices, imaging and printing products, and related
technologies, solutions and services. HP sells to individual
consumers, small and medium-sized businesses and large
enterprises, including customers in the government, health and
education sectors.
J CREW GROUP: "Coladonato" Alleges Promotional Discount a Farce
---------------------------------------------------------------
Caron Coladonato, on behalf of herself and all others similarly
situated, Plaintiff, v. J. Crew Group, Inc., J. Crew Operating
Corp., J. Crew, Inc., J. Crew International, Inc., Chinos
Holdings, Inc., Chinos Intermediate Holdings A, Inc., and Chinos
Intermediate Holdings B, Inc., Defendants, Case No. 1:17-cv-04287
(S.D. N.Y., June 7, 2017), seeks economic, compensatory, punitive
or exemplary damages, injunctive and declaratory relief, interest,
reasonable attorneys' fees and reimbursement of all costs incurred
in the prosecution of this action and such other relief resulting
from negligent misrepresentation, unjust enrichment, breach of
express and implied warranty, breach of contract and violation of
the New Jersey Truth in Consumer Contract, Warranty and Notice
Act.
Defendants allegedly posts a promotion on their online J. Crew
Factory website that purport to discount, for a limited time,
every item offered for sale by a certain percentage or amount. But
Plaintiff claims that it is just the actual price padded up and
re-discounted to make the impression that a discount was indeed
applied.
Defendants are each in to selling apparel and other personal items
in their J. Crew and J. Crew Factory retail stores, as well as via
their online J. Crew and J. Crew Factory retail websites. [BN]
The Plaintiff is represented by:
Ross H. Schmierer, Esq.
DeNlTTlS OSEFCHEN PRINCE, PC
5 Greentree Centre
525 Route 73 North, Suite 410
Marlton, NJ 08053
Tel: (856) 797-9951
Fax: (856) 797-9978
JAGGED PEAK: Faces Securities Class Action Over IPO
---------------------------------------------------
Bragar Eagel & Squire, P.C., on June 14 disclosed that a class
action lawsuit has been filed in the U.S. District Court for the
District of Colorado on behalf of all persons or entities who
purchased or otherwise acquired Jagged Peak Energy Inc. (NYSE:JAG)
securities traceable to the initial public offering ("IPO").
The Complaint alleges that when Jagged Peak held its IPO, the
Company failed to disclose certain risks regarding its acreage in
the Southern Delaware Basin. According to the Complaint, these
wells were positioned in an area in the Southern Delaware Basin
where extractability had not been tested. As news of these
concerns has come to light, Jagged Peak's shares have fallen
nearly 15% below its IPO price of $15 per share.
If you purchased or otherwise acquired Jagged Peak securities
traceable to the IPO and suffered a loss, have information, would
like to learn more about these claims, or have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Brandon Walker or Melissa
Fortunato by email at investigations@bespc.com, or telephone at
(212) 355-4648, or by filling out this contact form. There is no
cost or obligation to you.
Bragar Eagel & Squire, P.C. -- http://www.bespc.com-- is a New
York-based law firm concentrating in commercial and securities
litigation. [GN]
JOHNSON & JOHNSON: Missouri Talc Case Ends in Mistrial
------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that in a dramatic end to a pivotal trial over Johnson & Johnson's
baby powder, a Missouri judge has granted a mistrial in light of
the U.S. Supreme Court's ruling on June 19 in Bristol-Myers Squibb
v. Superior Court of California.
Rex Burlison, a judge on the 22nd Circuit Court in St. Louis,
granted a motion brought by Johnson & Johnson on June 19 that
cited the Bristol-Myers ruling, which tightened the jurisdictional
rules over where corporate defendants can be sued, particularly in
mass torts involving dozens of plaintiffs in a single case.
In its motion, Johnson & Johnson had sought the mistrial in a case
called Swann v. Johnson & Johnson, which involves the claims of
more than 60 women, many of whom were not from Missouri. The
family members of three of those women, all deceased, were the
plaintiffs in this month's trial. Only one was from Missouri.
"Under the reasoning of Bristol-Myers, the mere fact that
nonresident plaintiffs have joined their claims with those of a
handful of Missouri residents does not suffice to give rise to
personal jurisdiction over the Johnson & Johnson defendants with
respect to their claims."
Johnson & Johnson spokeswoman Carol Goodrich said in a statement:
"We're pleased our request for a mistrial was granted.
The mistrial decision could have dramatic implications for the
rest of the Missouri trials, the next of which was slated for
August. The bulk of the 1,700 women who have alleged they got
ovarian cancer from prolonged use of talcum powder have ended up
bringing their claims in suits in Missouri.
But lead plaintiffs attorney Ted Meadows immediately refuted the
idea that Bristol-Myers sounded the end of the Missouri talcum
powder trials.
"After reviewing the Supreme Court ruling, and based on evidence
and statements now in the record, we believe this litigation can
go forward in Missouri courts," wrote Mr. Meadows, principal at
Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery,
Alabama, in an email. "We plan to conduct additional discovery
and depositions to confirm this position, and look forward to that
opportunity."
But he also acknowledged that the cases might end up somewhere
else.
"We're prepared to file these cases in courts across the nation
should that be necessary," he added.
Johnson & Johnson has so far lost jury verdicts in Missouri
totaling roughly $300 million. Last month, a Missouri jury
awarded $110 million in an individual case. Johnson & Johnson won
one verdict earlier this year.
For this month's trial, which began with opening statements on
June 9, Johnson & Johnson had brought in a trial team that
included Debra Pole of Sidley Austin and James T. Smith at Blank
Rome.
Johnson & Johnson had unsuccessfully asked Judge Burlison to halt
the trial. It also had unsuccessfully asked the U.S. Court of
Appeals for the Eighth Circuit to toss the Missouri plaintiff, the
husband of a woman who died from ovarian cancer in 2010, on the
ground that he had engaged in "blatant forum shopping" by
dismissing his claims in order to join them into the Swann case.
Johnson & Johnson also cited Bristol-Myers in its appeal of a $72
million verdict now before the Missouri Court of Appeals, arguing
that most of the women with talcum powder claims have improperly
sued in Missouri.
JOSROS ENTERPRISES: "Rodriguez" Suit Seeks Unpaid Overtime Wages
----------------------------------------------------------------
Jose Rodriguez and Anwar Abuthan, on behalf of themselves all
other employees similarly situated, known and unknown, Plaintiffs,
v. Josros Enterprises, Inc., ABS Business Enterprises, Inc.,
Joseph Mathew and Antony Joseph, Defendants, Case No. 1:17-cv-
04396 (N.D. Ill., June 10, 2017), seeks damages in an amount equal
to the unpaid overtime compensation due and owing to the
Plaintiffs, statutory punitive damages, interest on all amounts
awarded, attorneys' fees, together with costs of suit and such
further relief under the Fair Labor Standards Act and the Illinois
Minimum Wage Law.
Defendants operate a Mobil dealership retail gas station at 5756
W. Ogden Ave., Cicero, IL 60804, where Plaintiffs worked as
cashiers. [BN]
Plaintiff is represented by:
Paul Luka, Esq.
MENDOZA LAW, P.C.
120 S. State Street, Suite 400
Chicago, IL 60603
Tel: (312) 508-6010
Email: paul@alexmendozalaw.com
JP MORGAN: Faces Class Action Over Employees' Parental Leave
------------------------------------------------------------
Rachel Gillett writing for Business Insider Dads at JPMorgan Chase
aren't happy with one of the company's policies.
Fathers at JPMorgan Chase are telling their employer that they
want more paid time off to care for their kids, too.
In recent years, many US companies have begun offering mothers
longer paid leave. Just last year JPMorgan announced it would
increase paid leave for primary caregivers from 12 weeks to 16
weeks.
But that same amount of time rarely extends to fathers. A fraction
of major employers -- like Etsy, Netflix, Facebook, and Spotify --
offer equal time to moms and dads.
When JPMorgan Chase upped its leave policy last year, nonprimary
caregivers were given two weeks of paid leave instead of one.
This was a small consolation for Derek Rotondo, a fraud
investigator who has worked at JPMorgan since 2010 and who filed a
class action charge claiming that the company discriminated
against him and other fathers by denying fathers paid parental
leave on the same terms as mothers.
His point of contention is that the bank "presumptively" considers
fathers to be non-primary caregivers and biological mothers to be
the default primary caregivers.
Rotondo says that when he sought approval to take parental leave
as the primary caregiver, he was told that fathers can only be
considered primary caregivers if they can demonstrate that their
spouse or partner has returned to work or that "the mother" is
medically incapable of caring for the child.
"When I found out how JPMorgan's parental leave policy was
actually implemented, I was shocked," said Rotondo in a press
release. "It was like something out of the 1950s. Just because I'm
a father, not a mother, it shouldn't prevent me from being the
primary caregiver for my baby. I hope that JPMorgan will change
this policy and show its support for all parents who work for the
company."
The American Civil Liberties Union, the ACLU of Ohio, and the
employment law firm Outten & Golden LLP filed the discrimination
charge with the Equal Employment Opportunity Commission (EEOC) on
behalf of Rotondo, who is the father of two young children, and
all fathers at JPMorgan.
The charge alleges that JPMorgan's parental leave policy violates
Title VII of the Civil Rights Act of 1964, the Ohio Fair
Employment Practices Act, and other state and local laws that
prohibit employers from discriminating against employees based on
sex or sex-based stereotypes.
"JPMorgan's parental leave policy is outdated and discriminates
against both moms and dads by reinforcing the stereotype that
raising children is women's work, and that men's work is to be the
breadwinner," said Galen Sherwin, senior staff attorney with the
ACLU's Women's Rights Project, in a press release. "JPMorgan needs
to make its family leave policy reflect the realities of modern
families working in America today."
This isn't the first time dads have taken their employers to court
over their ability to take paid time off to care for their kids.
In 2015 former CNN reporter Josh Levs settled his suit alleging
CNN's paternity leave policy discriminated against biological
dads. At the time, the news channel owned by the Turner
Broadcasting System offered 10 weeks of paid leave to biological
mothers and adoptive parents, but just two weeks to biological
fathers.
"It is long past the time that American companies implement
parental leave policies that comply with federal law and treat men
and women equally," said Peter Romer-Friedman, an Outten & Golden
civil rights attorney who represented Levs, in a press release.
"All parents, regardless of their sex, deserve fair paid leave so
they can bond with their babies."
Even when paternity leave is offered, the social pressure for
fathers to return to work prematurely prevents many from using it.
Stewart Friedman, a professor at the University of Pennsylvania's
Wharton School, previously told Business Insider that when he
studied unlimited-vacation policies, the main issue he saw was
employees' fear of using vacation days and looking less committed
than their colleagues. That fear extends to parental leave
policies, as well.
A study by Boston College's Center for Work & Family found 86% of
men surveyed said they wouldn't use paternity leave or parental
leave unless they were paid at least 70% of their normal salaries.
But when fathers do take equal leave it benefits everyone.
Research out of Israel shows that the more leave men take to care
for children when they're young, the more the fathers undergo
changes in the brain that make them better suited to parenting.
And a study by two Columbia University Social Work professors
found that fathers who take two or more weeks off after their
child is born are more involved in their child's care nine months
later. Simply put, paid paternity leave can help foster better
father-child relationships.
Additionally, the more leave fathers take, the more mothers'
incomes increase. In Sweden, where fathers must take at least two
months off before the child is 8 years old to receive the
government benefits, researchers saw mothers' incomes increase
almost 7% for every month of paternity leave their husbands took.
"Paid parental leave is crucial for both parents, and when
corporations like JPMorgan Chase push men to stay at work, they're
effectively pushing women to stay at home," said Freda Levenson,
Legal Director for the ACLU of Ohio, in a press release.
A spokesperson for JPMorgan tells Business Insider that the
company has received the complaint and is reviewing it. [GN]
KEMET CORP: Court Approved Accord in Antitrust Suit vs. TOKIN
-------------------------------------------------------------
KEMET Corporation disclosed in its Form 10-K filed on June 1, 2017
with the U.S. Securities and Exchange Commission for the fiscal
year ended March 31, 2017 that the court has approved an agreement
that subsidiary TOKIN Corporation has entered into for the
settlement of an antitrust class action. Specifically, the
settlement agreement was approved on April 6, 2017, as it relates
to the purported direct purchaser plaintiffs.
KEMET Corporation and subsidiary KEMET Electronics Corporation
("KEC"), along with more than 20 other capacitor manufacturers and
subsidiaries (including TOKIN Corporation), are defendants in a
purported antitrust class action complaint, In re: Capacitors
Antitrust Litigation, No. 3:14-cv-03264-JD, filed on December 4,
2014 with the United States District Court, Northern District of
California (the "U.S. Class Action Complaint").
The complaint alleges a violation of Section 1 of the Sherman Act,
for which it seeks injunctive and equitable relief and money
damages. The complaint is currently in the factual discovery
phase.
In addition, KEMET Corporation and KEC, along with more than 20
other capacitor manufacturers and subsidiaries, have been named as
defendants in two suits by plaintiffs who have chosen not to
participate in the U.S. Class Action Complaint (collectively with
the U.S. Class Action Complaint, the "U.S. Complaints"): AASI
Beneficiaries' Trust v. AVX Corporation, et al., filed on August
29, 2016 in the United States District Court, Southern District of
Florida, and Benchmark Electronics, Inc., et al. v. AVX
Corporation, et al., filed on April 18, 2017 in the United States
District Court, Southern District of Texas. The AASI and
Benchmark complaints allege generally the same violations as the
U.S. Class Action Complaint.
On May 2, 2016, TOKIN reached a preliminary settlement, followed
by definitive settlement agreements on July 15, 2016, in two
antitrust suits pending in the United States District Court,
Northern District of California as In re: Capacitors Antitrust
Litigation, No. 3:14-cv-03264-JD (the "Class Action Suits"), which
was approved by the court on April 6, 2017 (for the purported
direct purchaser plaintiffs), or is subject to court approval (for
the purported indirect purchaser plaintiffs).
Pursuant to the terms of the settlement, in consideration of the
release of TOKIN and its subsidiaries (including TOKIN America,
Inc.) from claims asserted in the Class Action Suits, TOKIN will
pay an aggregate US$37.3 million to a settlement class of direct
purchasers of capacitors and a settlement class of indirect
purchasers of capacitors. Each of the respective class payments
is payable in five installments, the first of which became due on
July 29, 2016, the next three of which are due each year
thereafter on the anniversary of the initial payment, and the
final payment is due by December 31, 2019. TOKIN has paid the
initial installment payments into the two plaintiff classes'
respective escrow accounts.
KEMET Corporation, together with its subsidiaries, manufactures
and sells passive electronic components under the KEMET brand
worldwide. It operates through two segments, Solid Capacitors,
and Film and Electrolytic. The Company sells its products to
original equipment manufacturers, electronics manufacturing
services providers, and electronics distributors. It was founded
in 1919 and is headquartered in Simpsonville, South Carolina.
KROGER CO: "Doporcyk" Balks at Retaliation, Biometrics Disclosure
-----------------------------------------------------------------
Thomas Doporcyk, individually, and on behalf of all others
similarly situated, Plaintiff, v. Roundy's Supermarkets, Inc.,
Roundy's Illinois, LLC, d/b/a Mariano's, The Kroger Company and
Kronos, Inc., Defendants, Case No. 2017-CH-08092 (Ill. Cir., June
9, 2016), seeks actual and/or statutory damages, lost wages and
fringe benefits, future loss of earnings and fringe benefits,
compensatory and punitive damages, injunctive and other equitable
relief, reasonable litigation expenses and attorneys' fees, pre-
and post-judgment interest and such other and further relief under
the Biometric Information Privacy Act, the Illinois Whistleblower
Act and the Clinical Laboratory Improvement Amendments (CLIA).
Kroger Company operates over 2,000 supermarket stores located
throughout the United States, including Mariano's and Roundy's
stores in Illinois. Plaintiff worked as a pharmacy manager at
Store No. 8532 in Northbrook, Illinois.
In October 2015, Plaintiff noticed that the pharmacy at Store No.
8532 was performing glucose tests without a CLIA waiver. Doporcyk
was terminated in February 2016 for emailing several of his
coworkers to notify them of their stores' expiring CLIA waivers.
Doporcyk submitted his finger prints and personal data to
Mariano's for time-keeping purposes but did not authorize such to
be endorsed to Kronos, Mariano's third-party service provider,
says the complaint. [BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Haley R. Jenkins, Esq.
STEPHAN ZOURAS, LLP
205 North Michigan Avenue, Suite 2560
Chicago, IL 60601
Tel: (312) 233 1550
Email: rstephan@stephanzouras.com
jzouras@stephanzouras.com
hjenkins@stephanzouras.com
LARRY PORTER: "Harris" Labor Suit to Recover Overtime Pay
---------------------------------------------------------
David Harris, individually and on behalf of all others similarly
situated, Plaintiffs, v. Larry Porter Seed, LLC and Larry Porter,
Defendants, Case No. 2:17-cv-00101 (E.D. Ark., June 9, 2017),
seeks monetary damages, liquidated damages, prejudgment interest,
civil penalties and costs, including reasonable attorneys' fees,
as a result of Defendants' failure to pay Plaintiff overtime
compensation in violation of the Fair Labor Standards Act and the
Arkansas Minimum Wage Act.
Larry Porter Seed provides cleaning and delivery services of seeds
where Harris worked as a delivery driver. [BN]
The Plaintiff is represented by:
Steve Rauls, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: steve@sanfordlawfirm.com
josh@sanfordlawfirm.com
LIFELOCK INC: Can Pay Settlement Fund Residuals Directly to FTC
---------------------------------------------------------------
In the case captioned NAPOLEON EBARLE, JEANNE STAMM, and BRIAN
LITTON, on behalf of themselves and all others similarly situated,
Plaintiffs, v. LIFELOCK, INC., a Delaware corporation, Defendant,
Case No. 3:15-CV-00258-HSG (N.D. Cal.), Judge Haywood S. Gilliam,
Jr., of the U.S. District Court for the Northern District of
California granted the Defendant's Administrative Consent Motion
Regarding Payment of Settlement Fund Residuals to the Federal
Trade Commission.
The Settlement Administrator is to pay directly to the FTC all
amounts that would otherwise be deposited into the registry of the
U.S. District Court for the District of Arizona pursuant to
paragraphs 57, 63, and 81 of the Settlement Agreement.
Judge Gilliam further ordered that the Settlement Administrator
immediately may pay to the FTC from the Settlement Fund an amount,
to be set in the Settlement Administrator's discretion, to satisfy
the FTC's demand for immediate payment pursuant to the Jan. 4,
2016 Amended Order in FTC v. LifeLock, Inc., provided that no
class members are thereby adversely affected and all outstanding
settlement benefit checks that are timely presented for payment
before their expiration on June 28, 2017 are honored. As
necessary following payment to the FTC, LifeLock will pay to the
Settlement Fund an amount sufficient to ensure that outstanding
settlement benefit checks that are timely presented for payment
prior to their expiration on June 28, 2017 are honored.
A full-text copy of the Court's June 21, 2017 order is available
at https://goo.gl/hZzfEK from Leagle.com.
Napoleon Ebarle, Plaintiff, represented by Michael W. Sobol, Lieff
Cabraser Heimann & Bernstein, LLP.
Napoleon Ebarle, Plaintiff, represented by Randall K. Pulliam --
rpulliam@cbplaw.com -- Carney Bates & Pulliam, PLLC, pro hac vice,
RoseMarie Maliekel, Clarence Dyer & Cohen LLP & Joseph Henry
Bates, III, Carney Bates & Pulliam, PLLC.
Jeanne Stamm, Plaintiff, represented by Joseph Henry Bates, III,
Carney Bates & Pulliam, PLLC, Michael W. Sobol, Lieff Cabraser
Heimann & Bernstein, LLP, Randall K. Pulliam, Carney Bates &
Pulliam, PLLC, pro hac vice & RoseMarie Maliekel, Clarence Dyer &
Cohen LLP.
Brian Litton, Plaintiff, represented by Michael W. Sobol, Lieff
Cabraser Heimann & Bernstein, LLP, Randall K. Pulliam, Carney
Bates & Pulliam, PLLC, pro hac vice, RoseMarie Maliekel, Clarence
Dyer & Cohen LLP & Joseph Henry Bates, III, Carney Bates &
Pulliam, PLLC.
Reiner Jerome Ebarle, Plaintiff, represented by Joseph Henry
Bates, III, Carney Bates & Pulliam, PLLC & Michael W. Sobol, Lieff
Cabraser Heimann & Bernstein, LLP.
LifeLock, Inc., Defendant, represented by Luanne Sacks --
lsacks@srclaw.com -- Sacks, Ricketts & Case, LLP & Cynthia A.
Ricketts -- cricketts@srclaw.com -- Sacks, Ricketts & Case LLP,
pro hac vice.
Walter F Ellingwood, Objector, represented by Steven F. Helfand --
sh4078@gmail.com -- Helfand Law Offices.
James Pentz, Objector, represented by John Jacob Pentz, Class
Action Fairness Group & Charles Benjamin Nutley, Kendrick and
Nutley.
Zebedee Milby, Objector, Pro Se.
Marla Merhab Robinson, Objector, represented by Steven Bradley
Scow -- sscow@kochscow.com -- Koch and Scow, LLC.
Teri Niemeyer, Objector, represented by Steve A. Miller --
sampc01@gmail.com -- Steve A. Miller, P.C..
Antonia Carrasco, Objector, represented by Timothy Ricardo Hanigan
-- trhanigan@gmail.com -- Lang Hanigan & Carvalho, LLP.
Barbara S Cochran, Objector, Pro Se.
LULULEMON ATHLETICA: "Gathmann-Landini" Suit Still Ongoing
----------------------------------------------------------
lululemon athletica inc. continues to defend itself in the class
action case captioned Rebecca Gathmann-Landini et al v. lululemon
USA inc pending in New York, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended April 30, 2017.
lululemon filed its answer to the Second Amended Complaint on May
8, and on May 24, an Initial Telephone Conference was held before
Judge Joan M. Azrack.
Any discovery disputes shall be referred to Magistrate Judge
Shields.
On October 9, 2015, certain current and former hourly employees of
the Company filed the class action lawsuit in the Supreme Court of
New York.
On December 2, 2015, the case was moved to the United States
District Court for the Eastern District of New York. The lawsuit
alleges that the Company violated various New York labor codes by
failing to pay all earned wages, including overtime compensation.
The plaintiffs are seeking an unspecified amount of damages.
lululemon is a designer, distributor, and retailer of healthy
lifestyle inspired athletic apparel.
MAN TRUCK: RHA Urges Hauliers to Join Truck Sales Cartel Suit
-------------------------------------------------------------
Alexander Whiteman, writing for The Loadstar, reports that The
Road Haulage Association (RHA) has called on hauliers to join its
legal action against truck manufacturers which operated a pricing
cartel.
Last year, the European Commission fined MAN, Volvo, Daimler,
Iveco and Daf EUR2.93bn after finding them guilty of "co-ordinated
truck pricing and colluding on passing on the costs of compliance
with emissions rules in the late 1990s and early 2000s".
The RHA revealed last year it was looking to launch a class action
against the firms and on June 13 announced insurance broker
Therium Capital Management had agreed to underwite the legal fees
-- which means hauliers that sign up will not face fees.
The RHA estimates that 650,000 new trucks were sold between 1997
and 2011, with an average inflated price of GBP6,000. It told The
Loadstar it expects to win this back in the compensation case
before the Competition Appeals Tribunal (CAT).
"We have begun the process of book building and are calling on all
those affected -- both RHA members and non-members alike -- to sign
up to our group action," said a spokesperson.
"Once we have enough signed -- we want a significant portion of
those who were affected -- we will approach CAT and asked to be
considered the hauliers' representatives in this case."
While the spokesperson would not be drawn on how many hauliers had
been caught up in the pricing cartel, some have estimated that
anywhere from 60,000-90,000 may be eligible to claim.
Backhouse Jones Solicitors and barristers from Exchange Chambers
and Brick Court will lead the claim, with the first hearing is
expected later this year.
RHA chief executive Richard Burnett said: "As the representative
body with sole responsibility for UK road freight operators, we
are duty-bound to act on behalf of our members.
"They have made it clear that they feel angry about the truck
pricing cartel and want us to represent them. Our legal team will
seek the best compensation deal that we can on behalf of our
members and other UK victims of this cartel."
The RHA noted this was the first fully funded group claim against
the truck manufacturers on behalf of affected hauliers, and called
on affected UK truck owners to join at
www.truckcartellegalaction.com. There will be no cost for
hauliers to be part of the group claim. [GN]
MANITOBA: Prelim Terms of Settlement Reached in 2011 Flood Suit
---------------------------------------------------------------
The preliminary terms of a settlement have been reached which
resolves the claims of members of the Lake St. Martin, Dauphin
River, Little Saskatchewan, and Pinaymootang First Nations in
respect of the 2011 flooding which resulted in thousands being
evacuated, many still to this day. The terms of the settlement
agreement are being finalized by the lawyers and must be approved
by the court in order to be implemented.
This class action was initially started by the members of the four
First Nations, alleging that the negligence of the defendants had
caused the flooding in the spring of 2011, which resulted in the
evacuations and other damages and losses. Certification of the
class action was originally denied but was eventually certified as
against Manitoba by the Manitoba Court of Appeal in January 2017.
The settlement will include payments to Class Members, payments
towards legal costs, and payments for notice and claims
administration.
According to Michael Peerless of McKenzie Lake Lawyers LLP, co-
counsel for the plaintiffs, "the parties engaged in difficult and
protracted negotiations and the preliminary settlement represents
valuable remuneration for the Class Members. We are very pleased
with the settlement, and we commend Manitoba and Canada for
entering into good faith negotiations and for ultimately agreeing
to the terms with us."
Clifford Anderson of Pinaymootang First Nation and a member of the
Class Action Steering Committee believes the preliminary
settlement is in the best interest of community members, saying:
"It has been six years since the flood happened and it's time for
our members, our elders, and our young people to move home and
move on." [GN]
MARION COUNTY, IN: 7th Cir. Vacates Certification in "Driver"
-------------------------------------------------------------
The United States Court of Appeals for the Seventh Circuit vacated
the district court's decision and remanded the case captioned
MICHAEL DRIVER, individually and as representative of a class of
similarly situated individuals, et al., Plaintiffs-Appellants, v.
MARION COUNTY SHERIFF, et al., Defendants-Appellees, No. 16-4239
(7th Cir.).
Plaintiffs brought a class action pursuant to 42 U.S.C. Section
1983 alleging that the policies and practices of the Marion County
Sheriff's Department and the Consolidated City of Indianapolis and
Marion County caused them to be detained in the Marion County Jail
awaiting release for an unreasonably long period of time, in
violation of the Fourth Amendment. The plaintiffs sought to
certify five subclasses, and the district court granted
certification as to two of those subclasses, but denied it as to
the remaining three. The plaintiffs then filed a petition before
the Seventh Circuit seeking permission to appeal the denial of two
of those class certifications pursuant to Federal Rule of Civil
Procedure 23(f). Specifically, the plaintiffs contested the
court's denial of two classes, consisting of all individuals who,
from December 19, 2012 to the present, were held in confinement by
the Sheriff after legal authority for those detentions ceased, due
to: (1) the Sheriff's practice of operating under a standard of
allowing up to 72 hours to release prisoners who are ordered
released; and (2) the Sheriff's practice of employing a computer
system inadequate for the purposes intended with respect to the
timely release of prisoners.
The Seventh Circuit granted permission for the interlocutory
appeal pursuant to Rule 23(f), and proceeded to the appeal on the
merits. The defendants asserted that the plaintiffs' case
nevertheless cannot be certified because the alleged 72-hour
policy and practice upon which they rely does not exist or, if it
exists, it is constitutional.
The Seventh Circuit held that the district court erred in its
decision denying class certification. The decision is vacated and
the case is remanded to the district court for further
proceedings. The class proposed by the plaintiffs involved a
markedly different situation. It is composed of persons for whom
legal authority for detention has ceased, whether by acquittal
after trial, release on recognizance bond, completion of jail time
in the sentence, or otherwise. For those persons, all that is left
is for the officials to merely process the release.
The district court did not consider whether the policies or
practices existed, nor did it consider whether the evidence
indicated deliberate indifference. The court on remand should
consider all issues related to the Rule 23 factors even if they
overlap with the merits, and can make the appropriate fact
findings at that time. The issues have never been decided by the
district court and are not properly before the 7th Circuit at such
time.
A copy of the Seventh Circuit's opinion dated June 15, 2017, is
available at https://goo.gl/YH5uRq from Leagle.com.
Richard A. Waples -- rwaples@wapleshanger.com -- at Waples &
Hanger; John P. Young -- john@youngandyoungin.com -- at Young &
Young Attorneys at Law for Plaintiff-Appellant
Anthony W. Overholt -- aoverholt@fbtlaw.com -- at Frost Brown Todd
LLC, for Defendant-Appellee
The United States Court of Appeals, Seventh Circuit panel consists
of Circuit Judges Ilana Diamond Rovner, Diane P. Wood and Joel M.
Flaum.
MARVELL TECHNOLOGY: March 2018 Trial Set in Consolidated Suit
-------------------------------------------------------------
Marvell Technology Group Ltd. disclosed in its Form 10-Q filed
with the U.S. Securities and Exchange Commission on June 5, 2017,
for the quarterly period ended April 29, 2017, that trial for a
consolidated class action litigation is set for March 5, 2018.
On September 11, 2015, Daniel Luna filed an action asserting
putative class action claims on behalf of the Company's
shareholders in the United States District Court for the Southern
District of New York ("S.D. of New York"). This action was
consolidated with two additional, nearly identical complaints
subsequently filed by Philip Limbacher and Jim Farno.
The complaints asserted violations of federal securities laws
based on allegations that the Company and certain of its officers
and directors (Sehat Sutardja, Michael Rashkin, and Sukhi Nagesh)
made, caused to be made, or failed to correct false and/or
misleading statements in the Company's press releases and public
filings. The complaints request damages in unspecified amounts,
costs and fees of bringing the action, and other unspecified
relief.
On November 18, 2015, the S.D. of New York granted the Company's
motion to transfer the consolidated cases to the N.D. of
California. On December 21, 2015, the N.D. of California granted
the Company's motion to deem the consolidated cases related to the
Saratoga litigation.
On February 8, 2016, the N.D. of California granted an unopposed
motion to appoint Plumbers and Pipefitters National Pension Fund
as Lead Plaintiff.
On March 19, 2016, Lead Plaintiff filed a consolidated amended
complaint.
On April 29, 2016, Marvell and each of the individual defendants
each filed motions to dismiss. The hearing on the motions to
dismiss took place on July 29, 2016 and the court took the matter
under submission.
On October 12, 2016, the Court granted Defendants' motions to
dismiss with leave to amend and granted lead plaintiff 30 days to
file an amended complaint. The parties agreed that the plaintiffs
would file and serve an amended complaint by November 28, 2016.
Plaintiffs filed and served the amended complaint on November 28,
2016. The Initial Case Management Conference took place on
January 12, 2017.
Marvell and co-defendants filed separate Motions to Dismiss on
January 17, 2017. A hearing on the Motion to Dismiss took place
on May 4, 2017, and on May 17, 2017, the court granted the Motion
to Dismiss as to Rashkin and Nagesh and denied the Motion to
Dismiss as to Sutardja and Marvell. A Case Management Conference
was held on June 1, 2017. Trial is set for March 5, 2018.
Marvell Technology Group Ltd. designs, develops, and markets
analog, mixed-signal, digital signal processing, and embedded and
standalone integrated circuits. The Company was founded in 1995
and is headquartered in Hamilton, Bermuda.
MARVELL TECHNOLOGY: Court Grants Protective Order in "Luna"
-----------------------------------------------------------
Judge William Alsup for the U.S. District Court for the Northern
District of California, San Francisco Division, granted the
parties' Stipulated Protective Order to the limited information or
items that are entitled to confidential treatment in the case
captioned DANIEL LUNA, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, v. MARVELL TECHNOLOGY GROUP, LTD.,
et al., Defendants, Case No. 3:15-cv-05447-WHA (Consolidated)
(N.D. Cal.).
The protections conferred by the Order cover not only Protected
Material, but also (i) any information copied or extracted from
Protected Material; (ii) all copies, excerpts, summaries, or
compilations of Protected Material; and (iii) any testimony,
conversations, or presentations by Parties or their Counsel that
might reveal Protected Material.
The Stipulation noted that any Party may challenge a designation
of confidentiality at any time. Unless a prompt challenge to a
Designating Party's confidentiality designation is necessary to
avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a
Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after
the original designation is disclosed.
The Stipulation provided that even after final disposition of this
litigation, the confidentiality obligations imposed by the Order
will remain in effect until a Designating Party agrees otherwise
in writing or a court order otherwise directs. Final disposition
will be deemed to be the later of (i) dismissal of all claims and
defenses in this action, with or without prejudice; and (ii) final
judgment herein after the completion and exhaustion of all
appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications
for extension of time pursuant to applicable law.
A full-text copy of the Stipulated Protective Order is available
at https://goo.gl/fFrUqg from Leagle.com.
Daniel Luna, Plaintiff, represented by Lesley Frank Portnoy --
lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP.
Daniel Luna, Plaintiff, represented by Casey Edwards Sadler --
csadler@glancylaw.com -- Glancy Prongay & Murray LLP, Lionel Zevi
Glancy -- lglancy@glancylaw.com -- Glancy Prongayn & Murrary LLP &
Robert Vincent Prongay, Glancy Prongay & Murray LLP.
Philip Limbacher, Consol Plaintiff, represented by Jeremy Alan
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Joseph
Alexander Hood, II, Pomerantz LLP, Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP & Patrick V. Dahlstrom --
pdahlstrom@pomlaw.com -- Pomerantz LLP.
Jim Farno, Consol Plaintiff, represented by Jeremy Alan Lieberman,
Pomerantz LLP, Joseph Alexander Hood, II -- ahood@pomlaw.com --
Pomerantz LLP & Patrick V. Dahlstrom, Pomerantz LLP.
Marvell Technology Group LTD, Defendant, represented by Diane M.
Doolittle -- dianedoolittle@quinnemanuel.com -- Quinn Emanuel
Urquhart & Sullivan, LLP, Harry Arthur Olivar, Jr. --
harryolivar@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan,
LLP, Alyssa L. Greenberg -- alygreenberg@quinnemanuel.com -- Quinn
Emanuel Urquhart Sullivan LLP, Jason Frank Lake --
jasonlake@quinnemanuel.com -- Quinn Emanuel Urquhart and Sullivan
& Valerie Suzanne Roddy -- valerieroddy@quinnemanuel.com -- Quinn
Emanuel Urquhart and Sullivan, LLP.
Sehat Sutardja, Defendant, represented by Jason David Russell --
jason.russell@skadden.com -- Skadden, Arps, Slate, Meagher & Flom
LLP.
Michael Rashkin, Defendant, represented by Joshua Garrett Hamilton
-- joshua.hamilton@lw.com -- Latham & Watkins LLP & James Hyeoun
Ju Moon -- james.moon@lw.com -- Latham and Watkins LLP.
Sukhi Nagesh, Defendant, represented by Bahram Seyedin-Noor --
bahram@altolit.com -- Alto Litigation, PC, Bryan Jacob Ketroser,
Wilson Sonsini Goodrich & Rosati & Ian Edward Browning, Alto
Litigation, PC.
Employees Pension Plan Of The City Of Clearwater, Movant,
represented by Curtis Victor Trinko -- ctrinko@trinko.com -- Law
Offices of Curtis V. Trinko, LLP.
Plumbers and Pipefitters National Pension Fund, Movant,
represented by Carissa Jasmine Dolan -- cdolan@rgrdlaw.com --
Robbins Geller Rudman and Dowd LLP, David Avi Rosenfeld --
DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jonah
Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP, Matthew Isaac Alpert -- malpert@rgrdlaw.com -- Robbins Geller
Rudman Dowd LLP, Nadim Gamal Hegazi -- nhegazi@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP, Scott H. Saham --
scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Shawn A.
Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd
LLP.
Cambridge Retirement System, Movant, represented by Gerald H. Silk
-- jerry@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP
& Avi Josefson -- avi@blbglaw.com -- Bernstein Litowitz Berger &
Grossmann LLP.
Oakland County Employees' Retirement System, Movant, represented
by Gerald H. Silk, Bernstein Litowitz Berger & Grossmann LLP & Avi
Josefson, Bernstein Litowitz Berger & Grossmann LLP.
Hui Qian, Movant, represented by Lesley Frank Portnoy, Pomerantz
LLP.
MARY HEALTH: Settles Class Action Over Drug Prescribing Practices
-----------------------------------------------------------------
Tom Kisken, writing for Ventura County Star, reports that a
highly-rated Catholic nursing home in Newbury Park has agreed to
pay $345,000 and will undergo spot inspections of health records
in the settlement of a class-action lawsuit alleging patients were
being given powerful drugs without required consent.
The long-awaited settlement was approved by Ventura County
Superior Court Judge Rocky Baio in May and involves the nonprofit
Mary Health of the Sick Convalescent and Nursing Hospital and
family members of former residents of the facility. It calls for
the nursing home to use procedures to ensure doctors explain the
benefits and risks of psychotherapeutic drugs to residents or
their legal representatives.
Those discussions encompass drugs that carry black box warnings of
extreme side effects and increased death risks for patients with
dementia.
"I'm an only child and my dad was the whole world. I trusted them
with his life," said Melisse Sullivan of Thousand Oaks, alleging
her father was prescribed black box drugs at Mary Health of the
Sick without her informed consent. "I just want them to be held
accountable. I just don't want it to happen to anyone else. That's
my point."
Representatives of the nursing home -- run by nuns from the
Servants of Mary, Ministers of the Sick, who live on the premises
-- denied all allegations of wrongdoing as part of the settlement.
They said they agreed to the settlement to avoid the costs, risks
and distraction of continuing a legal fight that started nearly
five years ago.
"Anyone can say anything they want in a complaint," said Dawn
Phleger, a San Diego lawyer who said the decision to settle was
aimed at allowing the sisters to focus their resources on care,
not litigation.
"The sisters had a really good reputation in the community and we
wanted to make sure they were able to keep that reputation going,"
she said. The nursing home has a five out of five stars rating
from the federal agency that runs Medicare and Medicaid.
Plaintiffs say the high rating attracted them. But they alleged
doctors at the nursing home prescribed powerful drugs without
discussing the impact of the drugs to residents, family members or
people with power of attorney designations.
The lawsuit alleged nursing home staff members filled out forms
stating they confirmed the doctor received consent when they knew
it was untrue.
"We were very explicit in telling them not to give her any
painkillers except aspirin, not antipsychotic drugs, nothing,"
said Tim Kennaley of Mariposa. He alleged his mother, Evelyn
Kennaley was administered Norco, Lexapro and the anti-anxiety
medication, Restoril, after going to the nursing home to rehab
after an extended stay at Simi Valley Hospital.
"They think they have every right to give drugs to the patient,"
he said, contending doctor discussions with the family were
bypassed.
"We never saw the doctor when we were there," he said.
Evelyn Kennaley died in at Los Robles Hospital & Medical Center on
March 6, 2012, three days after being taken to the hospital from
Mary Health of the Sick.
Ms. Phleger said the sisters contested all accusations that they
didn't obtain necessary consent. She contended the sisters would
have prevailed if the case went to court.
"We don't think there was truly any substance that would rise to
liability for the sisters," she said.
In the settlement, 57 former nursing home residents who received
psychotherapeutic drugs over a three-year period stand to receive
$500 each in an amount limited by state law. The two families
that led the legal fight will each receive $5,000.
The settlement dictates $228,500 goes to legal fees for the
plaintiffs with $35,000 going for costs.
Plaintiffs said they're more interested in changes in procedure at
the nursing home mandated by the settlement.
Sullivan's father, Chris Mehlum was an MIT engineering graduate
who came to the nursing home's memory care floor in 2011.
According to the lawsuit, his conditions included dementia,
depression and anxiety.
Sullivan said Mr. Mehlum was given drugs including Prozac, Ambien
and Vicodin. Instead of a doctor explaining the impact of
medication, she said staff would call her after prescriptions were
administered.
"They just told me to come in and sign the consent forms for the
drugs he was given, the black box drugs," she alleged. He died in
February 2014 at the age of 87 in a private group care facility.
The use of powerful drugs and questions about informed consent are
national issues. The law requires that doctors discuss certain
medications before they are prescribed, also requiring nursing
homes to verify that such conversations happen, said
Jody Moore, the elder abuse lawyer who litigated the class-action
lawsuit.
In many facilities, that process isn't always followed, she
contended.
As part of the settlement, Mary Health of the Sick will send "Dear
doctor" letters informing their physicians on the law regarding
the use of certain medications and what constitutes informed
consent.
The settlement also dictated the form the nursing home will now
use to verify that a care provider has received informed consent.
An independent monitor will make four unannounced visits to the
nursing home over at least two years and review paperwork showing
the facility's records in obtaining consent.
Moore said the legal mandates are rare. Ms. Phleger said the
procedures are not new and have been used at Mary Health of the
Sick and other care facilities.
Some of the plaintiffs complained about how long it took to settle
the case. Gary Kennaley, who was a plaintiff along with his
brother, Tim, wonders about the future.
"I am glad it's settled," he said. "I just hope it doesn't get
put in a shelf and forgotten." [GN]
MDL 1840: Costco's Appeal in Hot Fuel Sales Case Remains Pending
----------------------------------------------------------------
Costco Wholesale Corporation's appeal in the multidistrict
litigation related to sales practices on motor fuel temperature
is still pending, according to the Company's Form 10-Q filed on
June 1, 2017 with the U.S. Securities and Exchange Commission for
the quarterly period ended May 7, 2017.
Numerous putative class actions have been brought around the
United States against motor fuel retailers, including the Company,
alleging that they have been overcharging consumers by selling
gasoline or diesel that is warmer than 60 degrees without
adjusting the volume sold to compensate for heat-related expansion
or disclosing the effect of such expansion on the energy
equivalent received by the consumer.
The Company is named in the following actions: Raphael Sagalyn, et
al., v. Chevron USA, Inc., et al., Case No. 07-430 (D. Md.);
Phyllis Lerner, et al., v. Costco Wholesale Corporation, et al.,
Case No. 07-1216 (C.D. Cal.); Linda A. Williams, et al., v. BP
Corporation North America, Inc., et al., Case No. 07-179 (M.D.
Ala.); James Graham, et al. v. Chevron USA, Inc., et al., Civil
Action No. 07-193 (E.D. Va.); Betty A. Delgado, et al., v.
Allsups, Convenience Stores, Inc., et al., Case No. 07-202
(D.N.M.); Gary Kohut, et al. v. Chevron USA, Inc., et al., Case
No. 07-285 (D. Nev.); Mark Rushing, et al., v. Alon USA, Inc., et
al., Case No. 06-7621 (N.D. Cal.); James Vanderbilt, et al., v. BP
Corporation North America, Inc., et al., Case No. 06-1052 (W.D.
Mo.); Zachary Wilson, et al., v. Ampride, Inc., et al., Case No.
06-2582 (D.Kan.); Diane Foster, et al., v. BP North America
Petroleum, Inc., et al., Case No. 07-02059 (W.D. Tenn.); Mara
Redstone, et al., v. Chevron USA, Inc., et al., Case No. 07-20751
(S.D. Fla.); Fred Aguirre, et al. v. BP West Coast Products LLC,
et al., Case No. 07-1534 (N.D. Cal.); J.C. Wash, et al., v.
Chevron USA, Inc., et al.; Case No. 4:07cv37 (E.D. Mo.); Jonathan
Charles Conlin, et al., v. Chevron USA, Inc., et al.; Case No. 07
0317 (M.D. Tenn.); William Barker, et al. v. Chevron USA, Inc., et
al.; Case No. 07-cv-00293 (D.N.M.); Melissa J. Couch, et al. v. BP
Products North America, Inc., et al., Case No. 07cv291 (E.D.
Tex.); S. Garrett Cook, Jr., et al., v. Hess Corporation, et al.,
Case No. 07cv750 (M.D. Ala.); Jeff Jenkins, et al. v. Amoco Oil
Company, et al., Case No. 07-cv-00661 (D. Utah); and Mark Wyatt,
et al., v. B. P. America Corp., et al., Case No. 07-1754 (S.D.
Cal.).
On June 18, 2007, the Judicial Panel on Multidistrict Litigation
assigned the action, entitled In re Motor Fuel Temperature Sales
Practices Litigation, MDL Docket No 1840, to Judge Kathryn Vratil
in the United States District Court for the District of Kansas.
On April 12, 2009, the Company agreed to settle the actions in
which it is named as a defendant. Under the settlement, which was
subject to final approval by the court, the Company agreed, to the
extent allowed by law and subject to other terms and conditions in
the agreement, to install over five years from the effective date
of the settlement temperature-correcting dispensers in the States
of Alabama, Arizona, California, Florida, Georgia, Kentucky,
Nevada, New Mexico, North Carolina, South Carolina, Tennessee,
Texas, Utah, and Virginia. Other than payments to class
representatives, the settlement does not provide for cash payments
to class members.
On September 22, 2011, the court preliminarily approved a revised
settlement, which did not materially alter the terms. On April
24, 2012, the court granted final approval of the revised
settlement. A class member who objected has filed a notice of
appeal from the order approving the settlement, and the appeal is
pending. Plaintiffs moved for an award of US$10 million in
attorneys' fees, as well as an award of costs and payments to
class representatives. A report and recommendation was issued in
favor of a fee award of US$4 million. On August 24, 2016, the
district court affirmed the report and recommendation. On March
20, 2014, the Company filed a notice invoking a "most favored
nation" provision under the settlement, under which it seeks to
adopt provisions in later settlements with certain other
defendants. The motion was denied on January 23, 2015.
Final judgment was entered on September 22, 2015, and the
Company's appeal is pending.
Costco Wholesale Corporation, together with its subsidiaries,
operates membership warehouses. It offers branded and private-
label products in a range of merchandise categories. The Company
was formerly known as Costco Companies, Inc. It was founded in
1976 and is based in Issaquah, Washington.
MERCHANTS & PROFESSIONAL: July 13 Discovery Plan Filing Deadline
----------------------------------------------------------------
In the case captioned MICHELLE PACE, individually and on behalf of
all others similarly situated, Plaintiff, v. MERCHANTS &
PROFESSIONAL CREDIT BUREAU, INC. AND JOHN DOES 1-25, Defendants,
Case No. C17-411 RSM (W.D. Wah.), Judge Ricardo S. Martinez of the
U.S. District Court for the Western District of Washington,
Seattle Division, ordered that the deadlines of the order
regarding Initial Disclosures, Combined Joint Status Report, and
Discovery Plan be extended to June 29, 2017, July 6, 2017, and
July 13, 2017, respectively.
The Plaintiff's counsel was contacted by an attorney representing
the Defendant with a request to delay filing for a default
judgment in order that the parties may attempt settlement before
proceeding with litigation. However, settlement discussions have
ended up being fruitless, with little chance of resulting in
closure, despite a good faith attempt on behalf of the Plaintiff.
The Plaintiff's counsel had advised the Defendant's representative
of the Court's order, but no collaboration took place and no
attorney has filed an answer or notice of appearance as of the
filing of the Plaintiff's Status Report on June 7, 2017. On June
14, 2017, it requested a date by which the Defendant would be
answering, but was not provided one. On June 21, 2017, it advised
the Defendant that it will no longer delay prosecuting this case
for the purpose of settlement discussions beginning at noon on
June 23, 2017.
The Plaintiff requested that the Court extend the time for Initial
Disclosure and submission of the Joint Status Report and Discovery
Plan to the dates approved.
A full-text copy of the Court's June 21, 2017 order is available
at https://goo.gl/Eq2YWb from Leagle.com.
Michelle Pace, Plaintiff, represented by Ryan Matthew Pesicka --
Ryan@ConcordLawSeattle.com -- CONCORD LAW, P.C..
MICROSOFT CORP: 9th Circuit Upsets Rule 23(f)'s Balance
-------------------------------------------------------
Jay Ramsey, Esq. -- jramsey@sheppardmullin.com -- of Sheppard
Mullin Richter & Hampton LLP, in an article for JDSupra, wrote
that the U.S. Supreme Court has closed a loophole that class
action plaintiffs in the Ninth Circuit had been exploiting to
obtain immediate appellate review of a district court's denial of
class certification. The decision -- Microsoft Corp. v. Baker,
582 U.S. __ (2017) -- will end a practice in the Ninth Circuit
that was seen as unfair to defendants, who could not exploit the
same loophole to obtain immediate review of a district court's
grant of class certification.
A district court's class certification decision is inherently
interlocutory and therefore not immediately appealable. But a
party aggrieved by an adverse class certification decision also
need not satisfy the strict standards for taking an interlocutory
appeal; instead, under Rule 23(f), a "court of appeal[] may permit
an appeal from an order granting or denying class-action
certification . . . if a petition for permission to appeal is
filed with the circuit clerk within 14 days after the order is
entered." Under this rule, either side can ask the court of appeal
to exercise its discretion to review a class certification
decision. Rule 23(f) strikes a balance that provides both sides
an equal opportunity to obtain appellate review and the court of
appeal the right to control which interlocutory class
certification decisions it will review.
The Ninth Circuit, however, had upset Rule 23(f)'s balance. In
its case law, the Ninth Circuit permitted a class action
plaintiff, who suffered an adverse class certification decision,
to immediately appeal the decision if the plaintiff dismissed his
or her claims with prejudice, thereby creating an appealable final
judgment. If the Ninth Circuit then reversed the denial of
certification, the plaintiff's claims would be revived and the
dismissal with prejudice ignored. This procedure was not
available to a class action defendant, who could not similarly
force a final judgment, and also usurped the Ninth Circuit's
ability to deny appellate review.
In Microsoft, the U.S. Supreme Court rejected the Ninth Circuit's
plaintiff-friendly end run around Rule 23(f), finding that a
plaintiff's dismissal with prejudice so that it could appeal a
class certification decision was not a final judgment within the
meaning of the final judgment rule (28 U.S.C. Sec. 1291).
"Plaintiffs in putative class actions cannot transform a tentative
interlocutory order . . . into a final judgment within the meaning
of Sec. 1291 simply by dismissing their claims with prejudice --
subject, no less, to the right to 'revive' those claims if the
denial of class certification is reversed on appeal. . . . Were
[that] reasoning embraced by this Court, 'Congress' final decision
rule would end up a pretty puny one.'"
Going forward, if either side wishes for appellate review of a
class certification decision, it will have to seek permission from
the court of appeal under Rule 23(f). [GN]
A full-text copy of the Supreme Court's decision dated June 12,
2017, is available at https://is.gd/I1tQK1 from Leagle.com.
Stephen M. Rummage, Davis Wright Tremaine, LLP --
steverummage@dwt.com -- Attorney for Petitioner, Microsoft
Corporation.
Jeffrey L. Fisher, Stanford Law School --
jlfisher@law.stanford.edu -- Attorney for Petitioner, Microsoft
Corporation.
Brendan S. Maher, Stris & Maher LLP --
brendan.maher@strismaher.com -- Attorney for Respondent, Seth
Baker, et al.
Darren T. Kaplan, Stueve Siegel Hanson, LLP --
kaplan@stuevesiegel.com -- Attorney for Respondent, Seth Baker, et
al.
Peter K. Stris, Stris & Maher LLP -- peter.stris@strismaher.com --
Attorney for Respondent, Seth Baker, et al.
Cory L. Andrews, Washington Legal Foundation -- candrews@wlf.org -
- for Washington Legal Foundation, et al.
John H. Beisner, Skadden Arps Slate Meagher & Flom LLP --
John.Beisner@skadden.com -- for Product Liability Advisory
Council, Inc.
Rishi Bhandari, Mandel Bhandari LLP -- rb@mandelbhandari.com --
for Complex Litigation Law Professors.
Deborah J. La Fetra, Pacific Legal Foundation --
dlafetra@pacificlegal.org -- for Pacific Legal Foundation.
Jason L. Lichtman, Lieff Cabraser Heimann & Bernstein LLP --
jlichtman@lchb.com -- for Public Justice, P.C.
Mary Massaron, Plunkett Cooney -- mmassaron@plunkettcooney.com --
for DRI-The Voice of the Defense Bar.
Mark W. Mosier, Covington & Burling LLP -- mmosier@cov.com -- for
Chamber of Commerce of the United States of America, et al.
Adina H. Rosenbaum, Public Citizen Litigation Group --
arosenbaum@citizen.org -- for Public Citizen, Inc.
E. Joshua Rosenkranz, Orrick, Herrington & Sutcliffe LLP --
jrosenkranz@orrick.com -- for Civil Procedure Scholars.
GINSBURG, J., delivered the opinion of the Court, in which
KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J.,
filed an opinion concurring in the judgment, in which ROBERTS, C.
J., and ALITO, J., joined. GORSUCH, J., took no part in the
consideration or decision of the case.
MIDCITY FINANCIAL: Tenants Seek Class Status in Housing Case
------------------------------------------------------------
Andrew Giambrone, writing for the Washington City Paper, reports
that in one of D.C.'s most hotly contested redevelopment projects,
attorneys for two residents of Brookland Manor -- a 535-unit
housing complex off Rhode Island Avenue NE in Ward 5 -- have asked
a federal court to certify dozens of families living at that
property as a "class" for an ongoing civil lawsuit.
The legal team representing the pair of residents filed papers
with the U.S. District Court for D.C. to establish a group
composed of all families "who reside or have resided" at the
property in apartments of three-bedrooms or more and "have been
displaced" from them since October 2014 or "are at risk of being
displaced" from them. Plaintiffs Adriann Borum and Lorretta
Holloman, both of whom are longtime tenants of Brookland Manor
living in four-bedroom apartments with their families, brought the
suit through their attorneys last August.
They allege that developer MidCity Financial Corp. is
discriminating against their and others' "familial status," a
protected class under District and federal law, by advancing a
project that would eliminate the property's four- and five-bedroom
units, and include only 64 three-bedroom units. As of January,
Brookland Manor housed 118 families who were residing across 209
apartments of those sizes, the residents' lawyers say in this
filings.
If the court agrees that Borum and Holloman are typical of the
purported group, they would then be a step closer to attaining an
injunction requiring MidCity to stop, and possibly revise, its
plan for the property. The residents' attorneys, who are with the
firm Covington & Burling and also the Washington Lawyers'
Committee on Civil Rights and Urban Affairs, are relying on the
Fair Housing Act and the D.C. Human Rights Act.
"Without such declaratory and injunctive relief to prevent the
elimination of large apartment units in the redevelopment, many
Brookland Manor families will be displaced and lose their long-
standing support structures, such as access to jobs, assistive or
social-service related programs, and local schools," the lawyers
argue in a memo, which says families occupy 81 percent of the
bigger units.
MidCity's legal team has until July 21 to respond to the filings,
according to the U.S. District Court for D.C. docket. MidCity has
retained real estate-focused firm Greenstein Delorme & Luchs in
the case. After the court receives a response, the plaintiffs will
have until Aug. 11 to file any counterarguments.
"We understand that development is often a disruptive process and
will work with all stakeholders to address their concerns,"
MidCity executive Michael Meers told City Paper when tenants
organized a rally to coincide with a D.C. Zoning Commission
hearing on the case that took place in February. "We believe that
the new development will better support our current residents and
the entire community."
The litigation is moving forward even though MidCity won approval
from District zoning officials for a significant portion of its
redevelopment plans in May. That component calls for a 200-unit
affordable building for single seniors and a second, 131-unit
building consisting of studios to three-bedrooms.
The company says the complex, constructed in the 1930s, has
deteriorated to the point of needing to be razed and rebuilt
wholesale. At completion the entire project, which is located just
several blocks east of the Rhode Island Metro station, will
include approximately 1,700 residential units plus retail space.
Given the project's timeline, MidCity says many households
wouldn't have to leave the site for years to come.
Construction on the part of the project that the Zoning Commission
green-lighted cannot begin until a final order is written and
promulgated, which could take a few more months. It is also
possible that the ruling could be disputed, so the zoning case
would work its way up to the D.C. Court of Appeals.
Brookland Manor has become a hallmark of the District's affordable
housing situation, highlighting a lack of family-sized apartments
within financial reach of lower-income people. Since 2015, D.C.
leaders have invested $100 million annually in a city fund that
provides gap funding for developers who create affordable housing,
but data show it hasn't always reached the neediest.
MidCity insists that all current tenants who are "in good
standing" will be able to return to the 20-acre site, and that
it's gone to greater lengths than peer developers to work in good
faith with the tenants, the vast majority of whom receive
government rental subsidies. According to the landlord, 373 units
at Brookland Manor are attached to Section 8 vouchers and most of
the remaining units are filled by tenants with individual
household vouchers. Still, residents have pointed to aggressive
security tactics and questionable eviction practices at the
complex, which they say have pushed families out.
The plaintiffs have requested that the court set a hearing on the
motion for class-action certification if one proves necessary. In
November, the judge in the case, Rudolph Contreras, chose not to
grant Borum and Holloman the preliminary injunction that they'd
sought, but also denied MidCity's motion to dismiss the lawsuit.
[GN]
MONSANTO COMPANY: Arkansas Farmers File Class Action Over Dicamba
-----------------------------------------------------------------
Arkansas Matters reports that a group of Arkansas farmers has
filed a lawsuit against Monsanto Company and BASF SE, a German
Company, and BASF Corporation ("BASF") for crop damage due to
dicamba herbicide.
Arkansas attorneys Phillip Duncan,Esq. and lawyers at the Duncan
Firm, P.A., Paul Byrd, Esq. & Joseph Gates, Esq. --
wwinfo@paulbyrdlawfirm.com -- with the Paul Byrd Law Firm and
attorney Jerry Kelly, Esq. -- jpkelly@kellylawfirm.com -- with
Kelly Law Firm filed the class action suit.
According to a news release announcing the class action case, the
attorneys have decades of experience fighting and protecting
agricultural interests in Arkansas and across the nation.
"We filed the lawsuit as a class action for farmers whose property
was harmed by dicamba-based herbicides supplied by Monsanto and
BASF. The Defendants implemented and controlled the dicamba crop
system, releasing seed technology without a corresponding, safe,
and approved herbicide. Crops, fruits and trees that are not
dicamba resistant were injured causing extensive damage to
farmers' crops in Arkansas and other states throughout the 2016
growing season, including Alabama, Illinois, Kentucky, Minnesota,
Mississippi, North Carolina, Tennessee and Texas. Farmers'
livelihoods are at stake, and we want to protect their interests,"
said Attorney Phillip Duncan.
"The dicamba crisis was created and forced upon the farming
industry. Crops are at risk. Relationships are at risk. There have
already been tragedies due to this crisis," added Attorney Paul
Byrd.
The farmers allege that defendants' wrongful control of the
dicamba crop system and predominating wrongful conduct knowing
that, through their control of the agricultural process involving
dicamba-resistant seeds and herbicides, could wipe out crops,
fruits and trees that were not dicamba tolerant. Farmers across
Arkansas and other states who did not plant dicamab-resistant
seeds had no way of protecting themselves and have been victimized
by Monsanto's and BASF's conduct, the lawsuit states. [GN]
NATURAL HEALTH: Court Grants Protective Order in "Ford"
-------------------------------------------------------
In the case captioned ROBERT FORD, Individually and on behalf of
all others similarly situated, Plaintiff, v. NATURAL HEALTH TRENDS
CORP., CHRIS T. SHARNG, and TIMOTHY S. DAVIDSON, Defendants, Case
No. 2:16-cv-00255-TJH-AFM (C.D. Cal.), Magistrate Judge Alexander
F. MacKinnon of the U.S. District Court for the Central District
of California granted the parties' Stipulated Protective Order to
the limited information or items that are entitled to confidential
treatment.
The protections conferred by this Stipulation and Order cover not
only Protected Material, but also (i) any information copied or
extracted from Protected Material; (ii) all copies, excerpts,
summaries, or compilations of Protected Material; and (iii) any
testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material.
The Stipulation noted that any Party or Non-Party may challenge a
designation of confidentiality at any time that is consistent with
the Court's Scheduling Order. Unless a prompt challenge to a
Designating Party's confidentiality designation is necessary to
avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant delay or disruption of the litigation, a
Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after
the original designation is disclosed.
The Stipulation provided even after final disposition of this
litigation, the confidentiality obligations imposed by this Order
will remain in effect until a Designating Party agrees otherwise
in writing or a court order otherwise directs. Final disposition
will be deemed to be the later of (1) dismissal of all claims and
defenses in this Action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all
appeals, rehearings, remands, trials, or reviews of this Action,
including the time limits for filing any motions or applications
for extension of time pursuant to applicable law.
A full-text copy of the Stipulated Protective Order is available
at https://goo.gl/HzUWU4 from Leagle.com.
Robert Ford, Plaintiff, represented by Adam C. McCall --
amccall@zlk.com -- Levi and Korsinsky LLP.
Robert Ford, Plaintiff, represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm PA.
Abolghassem Tehrani, Plaintiff, represented by Adam C. McCall,
Levi and Korsinsky LLP, Nicholas I. Porritt -- nporritt@zlk.com --
Levi and Korsinsky LLP, pro hac vice & Laurence M. Rosen, The
Rosen Law Firm PA.
Tony A Tran, Plaintiff, represented by Adam C. McCall, Levi and
Korsinsky LLP, Nicholas I. Porritt, Levi and Korsinsky LLP, pro
hac vice & Laurence M. Rosen, The Rosen Law Firm PA.
Wang Juan, Consol Plaintiff, represented by Adam C. McCall, Levi
and Korsinsky LLP, Laurence M. Rosen, The Rosen Law Firm PA,
Jonathan R. Horne, The Rosen Law Firm PA, pro hac vice & Nicholas
I. Porritt, Levi and Korsinsky LLP, pro hac vice.
Mahn Dao, Consol Plaintiff, represented by Adam C. McCall, Levi
and Korsinsky LLP, Jonathan R. Horne -- jhorne@rosenlegal.com --
The Rosen Law Firm PA, pro hac vice, Nicholas I. Porritt, Levi and
Korsinsky LLP, pro hac vice & Laurence M. Rosen, The Rosen Law
Firm PA.
Brandon Stroh, Movant, represented by Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP.
Adriana Stroh, Movant, represented by Jennifer Pafiti, Pomerantz
LLP.
Jerry E. Carafello, Movant, represented by Jennifer Pafiti,
Pomerantz LLP.
David Dunning, Movant, represented by Jennifer Pafiti, Pomerantz
LLP.
Natural Health Trends Corp., Defendant, represented by Angela L.
Dunning -- adunning@cooley.com -- Cooley LLP, Blake M.
Zollar, Cooley LLP & Patrick E. Gibbs -- pgibbs@cooley.com --
Cooley LLP.
Chris T Sharng, Defendant, represented by Angela L. Dunning,
Cooley LLP, Blake M. Zollar, Cooley LLP & Patrick E. Gibbs, Cooley
LLP.
Timothy S Davidson, Defendant, represented by Angela L. Dunning,
Cooley LLP, Blake M. Zollar, Cooley LLP & Patrick E. Gibbs, Cooley
LLP.
George K. Broady, Defendant, represented by Angela L. Dunning,
Cooley LLP, Blake M. Zollar, Cooley LLP & Patrick E. Gibbs, Cooley
LLP.
NEINSTEIN & ASSOCIATES: Court Allows Class Action Suit to Proceed
-----------------------------------------------------------------
Michele Henrystaff and Kenyon Wallacenews, writing for The Star,
report that a possible 6,000 accident victims can now band
together to try and get their money back from a law firm alleged
to have double dipped from their settlements.
Ontario's top court ruled to uphold the class action certification
for a case against personal injury law firm Neinstein & Associates
LLP that is accused of taking more fees from its former clients
than Ontario law allows.
The hotly anticipated ruling by the Ontario Court of Appeal could
have wide-ranging ramifications for personal injury lawyers in the
province because it shines an increasingly glaring spotlight on
Ontario's contingency fee system -- "you don't pay unless we win."
In simple terms, lawyers working on contingency cannot take a sum
of money called "costs" in addition to an agreed-upon percentage
fee they take out of a final settlement. The court ruled that the
case against Neinstein can move forward as a class action.
The court, drawing on information presented to it during the
hearing earlier this year, stated there appears to be "widespread"
non-compliance in Ontario with the Solicitor's Act when it comes
to protection of contingency fee clients and the allocation of
costs.
Class counsel Peter Waldmann said the ruling brings his client,
accident victim Cassie Hodge, and other former clients of the
Neinstein firm "one step closer to seeking remedies in this case."
Hodge, a mother of two from Brooklin, Ont., developed chronic pain
after a December 2002 car accident. She hired the Neinstein firm.
When the case settled, the final account rendered to her included
charges for "legal fees" of CAD30,326 and "costs" of CAD30,000.
She was also charged for CAD48,924 of disbursements, which
included CAD4,008 for photocopies, CAD2,791 for "laser copies,"
and CAD1,372 for "interest recovery," the court of appeal ruling
said.
Hodge alleges she was left with a fraction of her CAD150,000
settlement.
Rejecting arguments that a class action lawsuit would violate
clients' privacy, the three-judge panel at the court of appeal
said court records submitted as part of the attempt to certify the
case as a class action were filled with examples of how the
Neinstein firm took costs.
"The record on appeal is replete with examples of final accounts
showing party-and-party costs payable to (the Neinstein firm), in
addition to a percentage of the award and settlement," the court
ruled.
The ruling said determining if costs were taken from former
clients would be a "simple matter."
An ongoing Star investigation found that personal injury lawyers
in Ontario routinely take their fees then also take the "costs,"
which the Divisional Court judge who earlier heard the case has
called "double dipping." As a result, the Star story said, many
Ontario residents have been overcharged thousands of dollars and
likely do not know it.
Earlier this year the Law Society of Upper Canada made changes to
the referral fee system and the way lawyers can advertise their
services. The province's legal regulator has now turned its
attention to the remaining piece of the puzzle -- contingency fee
agreements.
Now that the decision has come down in Hodge's favour, Waldmann
said the next step was to put in his submissions to ask
Neinstein's firm to pay the legal bills for the Court of Appeal
challenge that they launched in 2016.
Originally, a Superior Court judge refused to certify the
Neinstein case as a class action. Then a Divisional Court reversed
that decision, and then the Neinstein firm took the case to the
Court of Appeal.
Waldmann said he will arrange to go before a case management judge
who will adjudicate the merits of Hodge's claim along with the
claims of other former clients.
Counsel for the Neinstein firm did not immediately return the
Star's request for comment. The firm has 60 days to ask for
permission from the Supreme Court of Canada to appeal. It is
rarely granted.
Members of this class action include any client of the Neinstein
firm and Gary Neinstein who has signed or amended a contingency
fee agreement or arrangement after Oct. 1, 2004 and who has paid
their bill. The class does not include clients whose fees were
approved by a judge or have had their fees assessed by the court
or who have settled a claim with respect to their contingency fee
agreement, the ruling said.
In the ruling justices Alexandra Hoy, Eileen Gillese and David
Brown said that in Hodge's case, the Neinstein firm kept the costs
and the firm did not get a judge's approval to do so.
"Ms. Hodge was the successful party in this court and the court
below," the ruling said.
In addition to cost-taking, the court of appeal said Hodge's case
had several issues in common with other potential members of the
class action.
Those common issues included determining whether costs should be
ordered to be repaid and whether other former clients had
contingency fee agreements similar to Hodge's.
The ruling said there appears to be "no dispute" that the
contingency fee agreement signed by Hodge "violated" the
Solicitors Act, the law that governs how Ontario lawyers can
charge fees.
Another common issue, according to the decision, is whether the
Neinstein firm committed a fiduciary breach by not disclosing to
clients that the contingency fee agreements they signed were in
violation of the Act.
An additional common issue is whether punitive damages should be
awarded to Hodge and other class members.
One of the issues many in the legal community agree on is that the
language the Solicitors Act uses concerning contingency fee
agreements is confusing. The court of appeal stated the wording
has "created difficulties for lawyers and clients for many years"
and this case "represents another struggle to make sense of the
Act."
Claire Wilkinson, president of the Ontario Trial Lawyers
Association, said "it has been known for sometime that the
Solicitors Act, which governs agreements between lawyers and
clients, is poorly drafted. As this decision makes apparent, the
poor drafting has created unnecessary uncertainty for lawyers,
clients and the court. Hopefully this decision will spur on a
much-needed regulatory overhaul to bring greater certainty to
lawyers and their clients."
Malcolm Mercer, chair of the Law Society of Upper Canada committee
looking at contingency fee agreements and other issues, said the
ruling addresses legislation that exists now. He said he expects a
report to come out this fall with recommendations to "simplify the
Act to make it work more effectively." [GN]
NYCTL 1996-1: 2d Cir. Affirms Judgment in "Boyd" Suit
-----------------------------------------------------
The United States Court of Appeals for the Second Circuit affirmed
the district court's judgment in the case styled JOAN GRANT BOYD,
SYBIL TAYLOR and TONYA WARTERS, on behalf of themselves and all
others similarly situated, Plaintiffs-Appellants, v. NYCTL 1996-1
TRUST, NYCTL 1998-1 TRUST, and NYCTL 1999-1 TRUST, Defendants-
Appellees, J.E. ROBERT CO., INC., and JER REVENUE SERVICES, LLC,
Defendants, No. 16-2404 (2d Cir.).
Plaintiffs are three members of a proposed class of individuals
who claim harm from the way New York City collects debts arising
from unpaid water bills. In 2005, they brought a class action
(Boyd I) against the defendants asserting Fair Debt Collection
Practices Act (FDCPA) and state law claims. The district court in
Boyd I dismissed the FDCPA claim on summary judgment and because
the FDCPA claim was the only asserted basis for federal
jurisdiction, the district court declined to exercise supplemental
jurisdiction over the state law claims.
In 2015, the same three plaintiffs sued a nearly identical group
of defendants (Boyd II) asserting Racketeer Influenced and Corrupt
Organization Act (RICO) and state law claims based on the same
facts as the prior suit. Plaintiffs asserted jurisdiction both on
the basis of the federal RICO claim and the Class Action Fairness
Act (CAFA). The district court dismissed all their claims pursuant
to Rule 12(b)(6) on res judicata grounds. Plaintiffs appeal only
from the dismissal of their state law claims. Plaintiffs do not
dispute that the parties in both Boyd cases are the same, or that
the claims in both arise from the same set of transactions.
Instead, they argue that the decision in Boyd I was not a final
judgment because dismissal was without prejudice, that the
defendants waived their right to argue res judicata, and that the
issue of federal jurisdiction under CAFA could not have been
raised in Boyd I.
The Second Circuit reject the prejudice argument and that it may
be that res judicata generally does not apply when defendants
acquiesce to the splitting of claims, but the defendants' motion
to dismiss in Boyd I does not constitute acquiescence or waiver.
Defendants took the position that the plaintiffs could try to
bring their claims in state court, not that they could try again
in federal court.
Lastly, the plaintiffs' initial complaint in Boyd I alleged that
the named class members were overcharged by thousands of dollars,
that there were thousands of other class members, and that the
claims of the named plaintiffs were typical of the claims of the
other class members. There was a reasonable probability that
plaintiffs' damages totaled at least $5 million, and plaintiffs
thus indeed could have invoked CAFA jurisdiction in Boyd I. The
United States Court of Appeals, Second Circuit affirmed the
judgment of the district court.
A copy of the Second Circuit's summary order dated June 15, 2017,
is available at https://goo.gl/fRkWus from Leagle.com.
PAUL STUART GROBMAN, New York, New York, for Appellants
JULIE STEINER for Zachary W. Carter, Corporation Counsel of the
City of New York, Jane L. Gordon, for Appellees
The United States Court of Appeals, Second Circuit panel consists
of Circuit Judges Dennis Jacobs, Debra Ann Livingston and Raymond
J. Lohier.
OCWEN FINANCIAL: Securities Class Action Period Expanded
--------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") on June 13 announced an
expanded class period in the class action lawsuit it has filed in
the United States District Court for the Southern District of
Florida on behalf of a class (the "Class") consisting of persons
and entities that acquired Ocwen Financial Corporation ("Ocwen" or
the "Company") (NYSE: OCN) securities between January 13, 2015,
and April 20, 2017, inclusive (the "Class Period"). To obtain
information or participate in the class action, please visit the
Ocwen page on our website at www.glancylaw.com/case/ocwen-
financial-corporation.
If you are a member of the Class described above, you may move the
Court no later than June 20, 2017, to serve as lead plaintiff.
Please contact Lesley Portnoy at 888-773-9224 or 310-201-9150, or
at shareholders@glancylaw.com to discuss this matter.
On April 20, 2017, the Consumer Financial Protection Bureau
("CFPB") issued a press release announcing that it was suing Ocwen
and its subsidiaries for "failing borrowers at every stage of the
mortgage servicing process." Specifically, the CFPB claimed that
"Ocwen's years of widespread errors, shortcuts, and runarounds
cost some borrowers money and others their homes" and that Ocwen
"botched basic functions like sending accurate monthly statements,
properly crediting payments, and handling taxes and insurance."
The CFPB also claimed that Ocwen "foreclosed on struggling
borrowers, ignored customer complaints, and sold off the servicing
rights to loans without fully disclosing the mistakes it made in
borrowers' records." On this news, the Company's stock price
declined $2.91 per share, or 53.8%, to close at $2.49 per share on
April 20, 2017, on unusually heavy trading volume.
The complaint filed in this lawsuit alleges that throughout the
Class Period, Defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, Defendants failed to disclose: (1) that the Company
loaded inaccurate information into its REALServicing proprietary
system; (2) that the REALServicing system generated errors due to
deficient programming; (3) that the Company wrongfully initiated
foreclosure proceedings on at least 1,000 people, and wrongfully
held foreclosure sales; (4) that the Company failed to
appropriately credit payments made by numerous borrowers; (5) that
the Company failed to send borrowers accurate periodic statements
detailing the amount due, how payments were applied, total
payments received, and other information, and failed to correct
billing and payment errors; (6) that the Company botched basic
tasks in managing escrow accounts; (7) that the Company failed to
make timely insurance payments for home insurance premiums,
causing the lapse of homeowners' insurance coverage for more than
10,000 borrowers; (8) that the Company failed to cancel borrowers'
private mortgage insurance in a timely manner, causing consumers
to overpay; (9) that the Company enrolled some consumers in add-on
products through deceptive solicitations and without their
consent; (10) that the Company mishandled accounts for successors-
in-interest, or heirs, to a deceased borrower; (11) that the
Company routinely failed to properly acknowledge and investigate
complaints, or make necessary corrections; (12) that the Company
failed to include complete and accurate borrower information when
it sold its rights to service thousands of loans to new mortgage
servicers; and (13) that, as a result of the foregoing,
Defendants' statements about Ocwen's business, operations, and
prospects, were false and misleading and/or lacked a reasonable
basis. As a result of Defendants' wrongful acts and omissions,
and the precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages.
Follow us for updates on Twitter: twitter.com/GPM_LLP?lang=en.
If you purchased shares of Ocwen during the Class Period you may
move the Court no later than June 20, 2017 to ask the Court to
appoint you as lead plaintiff in this class action lawsuit. To be
a member of the Class you need not take any action at this time;
you may retain counsel of your choice or take no action and remain
an absent member of the class action lawsuit. If you wish to
learn more about this action, or if you have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Lesley Portnoy, Esquire,
of Glancy Prongay & Murray LLP, 1925 Century Park East, Suite
2100, Los Angeles, California 90067, at (310) 201-9150, by e-mail
to shareholders@glancylaw.com, or visit our website at
www.glancylaw.com. [GN]
PENNSYLVANIA: Wait Time for Treatment of Defendants Cut to 7 Days
-----------------------------------------------------------------
Pittsburg Post Gazette reports that people deemed too mentally ill
to stand trial in Pennsylvania will soon have more places to get
help.
Facing pressure from the American Civil Liberties Union of
Pennsylvania, state officials agreed to take another crack at
speeding up care for people determined to be too mentally ill to
stand trial by adding 110 new beds to treatment facilities across
the state.
The move comes as part of a settlement of a 2015 class-action
lawsuit brought by the ACLU of Pennsylvania, which alleged that
mentally ill defendants in Pennsylvania criminal cases wait months
or years for treatment meant to render them fit for trial.
Federal courts have ruled that mentally ill defendants should wait
just seven days to begin treatment after a judge rules they cannot
understand the charges against them or participate in their
defense. In Pennsylvania, however, those wait times routinely
stretch more than 300 days. [GN]
PHILADELPHIA, PA: Faces Class Action Over Center City Taxes
-----------------------------------------------------------
Dan Packel, writing for Law360, reports that a former Philadelphia
mayoral candidate and a parking lot owner launched a putative
class action in Pennsylvania state court on June 13 challenging
the city's implementation of a tax that supports the special
services provided by its Center City District.
Businessman Tom Knox, who unsuccessfully ran for mayor as a
Democrat in 2007, joined the owner of a Center City parking lot in
attacking the special assessment that funds the business
improvement district.
"This case concerns the defendants' patent misuse of the authority
to tax property within the city of Philadelphia for municipal
service," they said. "Under defendants' scheme for levying the
tax to support the Center City District, one Philadelphia property
owner who has successfully appealed the city's assessment may be
entitled to a return of funds from the Center City District and
another may not, even though in both cases the properties'
assessment went down."
Knox, who in 2009 paid $7.5 million for a condominium in
Philadelphia's ritzy Liberty Place skyscraper, says that while he
appealed the city's property tax assessment, prompting it to
reduce the assessed value of his property, the CCD refused to
lower its own assessment and refund him the money he had overpaid
based on the earlier, inaccurate assessment.
Convention Center Parking LP, owner of a garage adjacent to the
city's convention center, expressed a similar experience.
According to the complaint, the company was told that the CCD
required property holders appealing assessments with the city to
give the organization contemporaneous notice of the appeal in
order to have it use the new value of the property in the event of
a successful challenge.
Both Knox and Convention Center Parking contend that the CCD and
the city's practice violates the law in three ways.
They say that because some property owners pay a CCD assessment
based on the assessed value of their property and others pay an
assessment that does not reflect that value, the CCD assessments
violate the uniformity clause of the Pennsylvania Constitution.
They say that same policy of disparate application of the new
assessments also violates the equal protection clause of the U.S.
Constitution.
And they say that condominium properties acquired prior to
September 2005 are permitted to opt out of the assessment, even
though they draw benefits from the CCD. This exception violates
the enabling language behind the levy, the plaintiffs contend.
A spokeswoman for the CCD said on June 14 that the organization
had just received the complaint and was currently reviewing its
allegations.
An attorney for the plaintiffs did not immediately respond to a
request for comment.
The plaintiffs are represented by George Bochetto --
gbochetto@bochettoandlentz.com -- and John O'Connell --
joconnell@bochettoandlentz.com -- of Bochetto & Lentz PC.
Counsel information for the defendants was not available on
June 14.
The case is Convention Center Parking LP et al., v. City of
Philadelphia et al., case number 170601374 in the Philadelphia
County Court of Common Pleas. [GN]
PLAINS ALL AMERICAN: "Sherman" Suit Seeks Unpaid Overtime Pay
-------------------------------------------------------------
Peter Sherman, on behalf of himself and all those similarly
situated, Plaintiff, v. Plains All American GP LLC, Defendant,
Case No. 2:17-cv-01798 (D. Ariz., June 9, 2017), seeks to recover
overtime wages, including interest thereon, statutory penalties,
reasonable attorneys' fees and litigation costs for violation of
the Fair Labor Standards Act and the Arizona Wage Statute.
Plains All American owns and operates midstream energy
infrastructure and provides logistics services for crude oil,
natural gas liquids, natural gas and refined products. Plaintiff
works at the field at their propane and butane wholesale location
in Arizona as an operations technician. [BN]
The Plaintiff is represented by:
Ty D. Frankel, Esq.
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Tel: (602) 274-1100
Email: tfrankel@bffb.com
- and -
Patricia N. Syverson, Esq.
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
600 W. Broadway, Suite 900
San Diego, CA 92101
Tel: (619) 756-7748
Email: psyverson@bffb.com
PORTFOLIO RECOVERY: "Cote" Disputes Vague Collection Letter
-----------------------------------------------------------Roberta
Cote, individually and on behalf of all others similarly situated,
Plaintiff, v. Portfolio Recovery Associates, LLC and Blatt,
Hasenmiller, Leibsker & Moore, LLC, Defendants, Case No. 1:17-cv-
01871 (S.D. Ind., June 7, 2017), seeks statutory damages, costs
and reasonable attorneys' fees and such further relief under the
Fair Debt Collection Practices Act.
Portfolio Recovery Associates, LLC is a Delaware limited liability
company that acts as a debt collector, attempting to collect a
delinquent consumer debt from Cote owed to a credit card.
Defendants' letter failed to mention which creditor it was
representing, says the complaint. Defendant's letter also failed
to state effectively the name of the creditor to whom the debt is
owed, it adds. [BN]
Plaintiff is represented by:
David J. Philipps, Esq.
Mary E. Philipps, Esq.
Angie K. Robertson, Esq.
PHILIPPS & PHILIPPS, LTD.
9760 S. Roberts Road, Suite One
Palos Hills, IL 60465
Tel: (708) 974-2900
Fax: (708) 974-2907
Email: davephilipps@aol.com
mephilipps@aol.com
angiekrobertson@aol.com
- and -
John T. Steinkamp, Esq.
5214 S. East Street, Suite D1
Indianapolis, IN 46227
Tel: (317) 780-8300
Fax: (317) 217-1320
Email: steinkamplaw@yahoo.com
PREMIER LEGAL: Court Denies Voluntary Dismissal of "Murray"
-----------------------------------------------------------
District Judge Stephen N. Limbaugh, Jr., of the U.S. District
Court for the Eastern District of Missouri, Eastern Division,
denied plaintiff's motion to dismiss the case captioned DONNA
MURRAY, Plaintiff, v. STEVEN MARCHBANKS, et al., Defendants, Case
No. 4:16-CV-198 SNLJ (E.D. Mo.).
Plaintiff Donna Murray contends that the defendants violated the
Driver's Privacy Protection Act (DPPA) by using her personal
information obtained from the Missouri Department of Motor
Vehicles (DMV), without her consent, to solicit her as a client to
sue her automobile's manufacturer. Plaintiff filed a putative
nationwide class action lawsuit on behalf of herself and others
similarly situated who were solicited as potential clients by the
defendants.
Defendants acknowledge that they did send the plaintiff
solicitation letters but deny that the information was obtained
from the Missouri DMV or from the DMV of any other state.
Plaintiff wishes to voluntarily dismiss the action, without
prejudice, under Federal Rule of Civil Procedure 41(a)(2), but the
defendants oppose the motion, contending that plaintiff seeks to
avoid an adverse decision in the face of the defendants' motion
for summary judgment.
Judge Stephen N. Limbaugh denied plaintiff's motion to voluntarily
dismiss without prejudice as defendants have produced much
evidence with respect to their acquisition of plaintiff's
information. Plaintiff has yet to produce any evidence indicating
that defendants unlawfully obtained plaintiff's information via
Missouri's DMV or the DMV of any other state. Additionally,
defendants moved for summary judgment before plaintiff moved for
voluntary dismissal without prejudice. Finally, plaintiff does not
indicate why she attempts to voluntarily dismiss her action and
instead, plaintiff's motion appears to be an attempt to avoid an
adverse decision. A dismissal, without prejudice, would result in
a waste of judicial time and effort. However, plaintiff is granted
an additional seven days from the date of filling of the
memorandum and order to submit a response in opposition to
defendants' summary judgment.
A copy of Judge Limbaugh's memorandum and opinion dated June 19,
2017, is available at https://goo.gl/UQhTZR from Leagle.com.
Donna Murray, Plaintiff, represented by:
Anthony S. Bruning, Esq.
Ryan L. Bruning, Esq.
THE BRUNING LAW FIRM, LLC
555 Washington Ave, #600A
St. Louis, MO 63101
Tel: 314-735-8100
- and -
Richard S. Cornfeld, Esq.
LAW OFFICE RICHARD S. CORNFELD
1010 Market Street, Suite 1720
St. Louis, MO 63101
Tel: 314-241-5799
Fax: 314-241-5788
Steven Marchbanks and Premier Legal Center Defendants, represented
by Jaudon R. Godsey -- jgodsey@mwklaw.com -- Michael Todd Moulder
-- tmoulder@mwklaw.com -- at MORROW AND WILLNAUER LLC
The Community College District of Central Southwest Missouri a/k/a
Ozarks Technical Community College, Movant, represented by Daniel
K. Wooten -- at NEALE AND NEWMAN, LLP
PROCTER & GAMBLE: Court Denies Protective Order in "Perry"
----------------------------------------------------------
In the case captioned CITY OF PERRY, IOWA, Plaintiff, v. PROCTER &
GAMBLE COMPANY, et al., Defendants, No. 15-CV-8051 (JMF) (S.D.
N.Y.), Judge Jesse M. Furman of the U.S. District Court for the
Southern District of New York granted the Plaintiff's motion
seeking an extension of the deadline to complete fact discovery;
denied the Plaintiff's motion for a protective order requiring
that the depositions take place in or near Iowa; and denied
Kimberly-Clark Corp.'s motion for sanctions against the Plaintiff
for failing to conduct a reasonable inquiry to confirm the facts
alleged in its complaint.
The City of Perry, Iowa, brings a putative class action against
six leading manufacturers of so-called "flushable wipes." In
brief, Perry alleges that, contrary to the Defendants'
representations, the wipes are not actually "flushable" because
they do not degrade after being flushed down a toilet, leading to
clogs in and other damage to municipal sewer systems, wastewater
treatment plants, and public buildings.
The Court addressed three pending motions: (i) a letter motion
filed by Perry seeking an extension of the deadline to complete
fact discovery (Docket No. 186); (i) a letter motion filed by
Perry seeking a protective order precluding the Defendants from
deposing the City's mayor and requiring that the depositions of
other City officials take place in or close to Iowa (Docket No.
185); and (iii) a motion filed by Kimberly-Clark Corp. seeking
sanctions against Perry for failing to conduct a reasonable
inquiry to confirm the facts alleged in its complaint. (Docket No.
167).
First, Perry moves for an extension of the fact-discovery deadline
from July 14, 2017, to Sept. 1, 2017, based on delayed productions
from the Defendants, coupled with the high volume of these latter
productions. The Defendants consent to a brief extension, but
take some issue with Perry's account of the discovery process and
opposes any tracking of discovery in Wyoming.
Upon review of the parties' submissions, the Court finds good
cause to grant a one-time brief extension -- based in part on the
recent production by two Defendants of almost 100,000 additional
pages of discovery. Nevertheless, the Court agrees with the
Defendants that formally linking the schedule in this case to the
schedule in Wyoming is unnecessary and inadvisable, given
differences between the two cases and the likelihood of additional
extensions in the Minnesota case. Accordingly, the fact-discovery
deadline is extended to Aug. 14, 2017. In light of that
extension, the pretrial conference scheduled for July 18, 2017, is
adjourned to Aug. 15, 2017, at 10:45 a.m. The parties will confer
and advise the Court if they believe that the any other deadlines
in the case should be modified as well. No further extensions of
the fact-discovery deadline will be granted absent extraordinary
circumstances.
Next, Perry moves for a protective order, principally to require
that the depositions of its officials take place in or near Iowa
rather than in New York. The City attaches declarations from only
two City officials who allege that their simultaneous absence
would interfere with orderly municipal operations, and the
Defendants explicitly state that they are willing to work with
Perry to stagger deposition dates of those and other witnesses to
best accommodate Perry's day-to-day operations. Based on that
representation and Perry's failure to show that depositions in New
York would result in any other hardship, the Court denied the
request for a protective order requiring that the depositions take
place in or near Iowa.
In its motion, Perry also seems to seek a protective order
precluding the Defendants from deposing the City's mayor
altogether. To the extent Perry seeks an order precluding the
Defendants from deposing the City's mayor, the Court denied the
motion as unripe, without prejudice to a renewed application after
the parties have conferred in good faith and exhausted efforts to
resolve any dispute.
Finally, Kimberly-Clark -- alone -- moves for sanctions against
Perry for failing to conduct a reasonable inquiry to confirm the
facts alleged in its complaint. The Court declined to impose
sanctions on Perry under Rule 11 or under Section 1927, which
requires an additional showing of "bad faith." Kimberly-Clark
fails to persuade the Court that Perry's claims are of the latter
variety.
A full-text copy of the Court's June 20, 2017 memorandum opinion
and order is available at https://is.gd/weWYe2 from Leagle.com.
City of Perry, Iowa, Plaintiff, represented by Brian O. Marty,
Hudson, Mallaney, Shindler & Anderson, P.C..
City of Perry, Iowa, Plaintiff, represented by J. Barton Goplerud,
Hudson, Mallaney, Shindler & Anderson, P.C., pro hac vice, Jonas
Palmer Mann -- jmann@baronbudd.com -- Audet & Partners, LLP,
Ling Y. Kuang, Audet & Partners, LLP, Matthew Thomas Prewitt --
mprewitt@cuneolaw.com -- Cuneo Gilbert & Laduca, LLP, Michael
Andrew McShane, Audet & Partners LLP, S. Clinton Woods, Audet &
Partners, LLP & Charles Joseph LaDuca -- charlesl@cuneolaw.com --
Cuneo Gilbert & Laduca, LLP.
Procter & Gamble Company, Defendant, represented by Claire
Catalano Dean -- ccdean@cov.com -- Covington & Burling, LLP,
Cortlin H. Lannin -- clannin@cov.com -- Covington & Burling, Emily
Johnson Henn -- ehenn@cov.com -- Covington & Burling LLP, Henry
Liu -- hliu@cov.com -- Covington & Burling, L.L.P. & Michael C.
Nicholson -- mcnicholson@cov.com -- Covington & Burling LLP.
Kimberly-Clark Corporation, Defendant, represented by Eamon Paul
Joyce -- EJOYCE@SIDLEY.COM -- Sidley Austin LLP, Daniel Adam Spira
-- DSPIRA@SIDLEY.COM -- Sidley Austin, LLP & Kara Lynn McCall --
KMCCALL@SIDLEY.COM -- Sidley Austin LLP (Chicago Office).
Nice-Pak Products, Inc., Defendant, represented by Courtney
Elizabeth Scott, Tressler, LLP, Jennifer Lynn Mesko --
jennifer.mesko@tuckerellis.com -- Tucker Ellis LLP, John Quincy
Lewis -- john.lewis@tuckerellis.com -- Tucker Ellis LLP, Karl
Andrew Bekeny -- karl.bekeny@tuckerellis.com -- Tucker Ellis LLP &
Michael James Ruttinger -- michael.ruttinger@tuckerellis.com --
Tucker Ellis LLP.
Rockline Industries, Defendant, represented by Jerry W. Blackwell
-- blackwell@blackwellburke.com -- Blackwell Burke P.A., Mary S.
Young -- myoung@blackwellburke.com -- Blackwell Burke P.A., S.
Jamal Faleel -- jfaleel@blackwellburke.com -- Blackwell Burke
P.A., Corey L. Gordon -- cgordon@blackwellburke.com -- Blackwell
Igbanugo Engen et ano., Emily Ambrose --
eambrose@blackwellburke.com -- Blackwell Burke P.A. & Sean Timothy
Burns, Carroll, McNulty & Kull, LLC.
RECEIVABLE SOLUTIONS: Sued Over Debt Collection Practices
---------------------------------------------------------
St. Louis Record reports that an Oklahoma consumer has filed a
class-action lawsuit against a debt collector with offices in St.
Louis following alleged repeated cellphone calls he received
without consent.
Erick Johnson, on behalf of himself and others similarly situated,
filed a complaint June 8 in the U.S. District Court for the
Eastern District of Missouri Eastern Division against Receivable
Solutions Inc., alleging that the defendant violated the Fair Debt
Collection Practices Act.
According to the complaint, the plaintiff alleges that on April
21, he started receiving calls from the defendant through a third-
party caller named Isabella. The plaintiff claims he received
numerous calls from an unknown person and alleges the calls were
made using an automatic telephone dialing system. The plaintiff
claims the calls were an invasion of his privacy, an intrusion
into his life and a private nuisance.
The plaintiff holds Receivable Solutions responsible because the
defendant allegedly repeatedly dialed the plaintiff's cellular
telephone number for the purpose of attempting to collect a debt
he did not owe, placed numerous calls without plaintiff's
knowledge or consent and use an automatic telephone dialing
system.
The plaintiff requests a trial by jury and seeks the award of
statutory damages in the amount of $1,500, award of costs of
litigation, attorney's fees and other relief that the court deems
just and proper. He is represented by Anthony LaCroix --
tony@lacroixlawkc.com -- of LaCroix Law Firm LLC in Kansas City,
Missouri, and Michael L. Greenwald of Greenwald Davidson Radbil
PLLC in Boca Raton, Florida.
U.S. District Court for the Eastern District of Missouri Eastern
Division case number 4:17-cv-01635-RWS
[GN]
REEL GROUP: "Cruz" Labor Suit Seeks Unpaid Overtime Wages
---------------------------------------------------------
Rene Cruz on behalf of himself and on behalf of all others
similarly situated, Plaintiff, v. Reel Group Ltd., Global Energy
Group Ltd., Ian Mcdonald and Graham Cowperthwaite, Defendants,
Case No. 4:17-cv-01729 (S.D. Tex., June 7, 2017), seeks overtime
compensation for all hours worked in excess of forty per week,
liquidated damages, reasonable attorney's fees, costs and expenses
of this action and such other and further relief under the Fair
Labor Standards Act.
Defendants provide vendor inspection, third party inspection,
certification, testing and manpower services for the oil and gas
industry where Cruz worked for Defendants as a Non Destructive
Testing Inspector, performing inspections on oil and gas drilling
equipment and piping. [BN]
The Plaintiff is represented by:
Galvin B. Kennedy, Esq.
KENNEDY HODGES, L.L.P.
4409 Montrose Blvd., Ste. 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
Email: gkennedy@kennedyhodges.com
RH INC: Consolidated Securities Class Action in Calif. Underway
---------------------------------------------------------------
RH is defending itself in a consolidated securities class action
related to the roll out of the RH Modern product line, according
to the Company's Form 10-Q filed on June 2, 2017 with the U.S.
Securities and Exchange Commission for the quarterly period ended
April 29, 2017.
On February 2, 2017, City of Miami General Employees' & Sanitation
Employees' Retirement Trust filed a class action complaint in the
United States District Court, Northern District of California,
against the Company, Gary Friedman, and Karen Boone. On March 16,
2017, Peter J. Errichiello, Jr. filed a similar class action
complaint in the same forum and against the same parties.
On April 26, 2017, the court consolidated the two actions. The
consolidated action is captioned In re RH, Inc. Securities
Litigation.
The complaints allege, among other things, fraud in connection
with alleged misstatements under sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended. Both complaints
purport to make claims on behalf of a class of purchasers of
Company common stock from March 26, 2015 to June 8, 2016. The
alleged misstatements relate to forward looking statements
regarding the roll out of the RH Modern product line. The claims
are currently at an early stage. An amended consolidated
complaint is expected to be filed in June 2017, after which time
the Company will respond.
The Company said, "While the outcome of litigation is inherently
uncertain, the Company and its officers intend to vigorously
defend the claims and believe the complaints lack merit."
RH, together with its subsidiaries, operates as a retailer in the
home furnishings market. It was formerly known as Restoration
Hardware Holdings, Inc. and changed its name to RH in January
2017. RH was founded in 1979 and is headquartered in Corte
Madera, California.
ROYAL SEAS: "DeForest" Sues Over Illegal Telemarketing Calls
------------------------------------------------------------
Dan DeForest, individually and behalf of all others similarly
situated, Plaintiff, v. Royal Seas Cruises, Inc., and Does 1
through 10, inclusive, and each of them, Defendant, Case No.
8:17-cv-00977 (C.D. Cal., June 7, 2017), seeks treble damages,
injunctive relief and any other relief for violation of the
Telephone Consumer Protection Act.
Defendant operates cruises and uses telemarketers to place calls
to prospective customer. Plaintiff received such calls from Royal
Seas placed from an auto-dialer. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Phone: (877) 206-4741
Fax: 866-633-0228
Email: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
RUSS BASSETT: Faces Class Action Over Labor Code Violations
-----------------------------------------------------------
Wadi Reformado, writing for The Northern California Record,
reports that a former employee of two Los Angeles County
corporations alleges that they failed to pay employees for all
hours worked.
Alecia Ballin filed a complaint on behalf of others similarly
situated on May 26 in the U.S. District Court for the Central
District of California against Russ Bassett Corp., Insperity Peo
Services LP and Does 1 through 100 alleging violation of state
labor codes.
According to the complaint, the plaintiff was employed by the
defendants as a project coordinator in Whittier from 2013 to 2016.
The plaintiff holds Russ Bassett Corp., and Insperity Peo
Services, L.P., and Does 1 through 100 responsible because the
defendants allegedly failed to provide adequate meal and rest
periods, did not pay a minimum wage and failed to pay overtime
wages.
The plaintiff seeks compensatory damages, restitution of all
monies, disgorgement, liquidated damages, enjoin the defendant,
statutory and civil penalties, interest, all legal fees and any
other relief as the court deems just. She is represented by
Matthew J. Matern, Tagore Subramanian and Daniel J. Bass of Matern
Law Group PC in Manhattan Beach.
U.S. District Court for the Central District of California case
number 2:17-cv-03981-PSG-SK
[GN]
SANOFI-AVENTIS: Asks Court to Reject Cert for Taxotere Suit
-----------------------------------------------------------
Sandy Liebhard, writing for RX Injury Help, reports that Sanofi-
Aventis has asked the federal court overseeing hundreds of
Taxotere lawsuits to reject class action certification for a
complaint that seeks to represent all Louisiana women who
allegedly experienced permanent alopecia due to the chemotherapy
drug.
Sanofi-Aventis Accused of Breaching Duty to Consumers
The proposed class action is one of more than 1,000 Taxotere hair
loss claims currently pending in the U.S. District Court, Eastern
District of Louisiana, where all such federally-filed cases are
currently undergoing coordinated pretrial proceedings. The lawsuit
was filed in April under the Louisiana Product Liability Act, and
accuses Sanofi-Aventis of breaching its duty to consumers by
failing to warn that Taxotere could result in the permanent loss
of hair. Plaintiffs asserted that a class action offered the best
means of litigating claims due to the large number of Louisiana
women allegedly harmed by the drug.
In a June 12th filing, however, Sanofi-Aventis maintained that
there was not enough commonality among the claims to justify class
action certifications, and asserted that they should be litigated
as individual lawsuits.
"Innumerable individual inquiries regarding alleged defectiveness,
causation, injury, and damages swamp common issues -- to the
extent any even exist in this case -- which preclude findings of
typicality, adequacy, predominance, and superiority," the
company's filing states. "For all of the foregoing reasons, class
certification is entirely inappropriate here. Plaintiffs' motion
should be denied."
Taxotere and Hair Loss
Taxotere was brought to market by Sanofi-Aventis in 1996,
initially as a treatment for breast cancer. Its approved
indications have since been expanded to include several other
malignancies. While hair loss is not unusual with chemotherapy,
Taxotere lawsuit plaintiffs charge that docetaxel-induced alopecia
is far more likely to be permanent compared to hair loss
associated with other, equally effective medications.
In December 2015, the U.S. Taxotere label was updated to note that
permanent hair loss had been reported in patients treated with the
drug. However, plaintiffs pursuing hair loss claims against
Sanofi-Aventis charge that the potential for Taxotere to cause
permanent alopecia was reported to regulators and patients in
Europe as early as 2005, while the Canadian label underwent a
similar modification in 2012. Meanwhile, the U.S. prescribing
information only included a vaguely worded and insufficient
statement that "hair generally grows back." [GN]
SCHLUMBERGER TECH: Sanchez Seeks Cert. of Oilfield Workers Class
----------------------------------------------------------------
The Plaintiff in the lawsuit entitled JAIME SANCHEZ, on behalf of
himself and all others similarly situated v. SCHLUMBERGER TECH
CORP., Case No. 2:17-cv-00102 (S.D. Tex.), asks the Court to
conditionally certify and send Court-approved notice to these
putative class members:
Current and former oilfield workers employed by, or working
on behalf of, Schlumberger Technology Corporation from
________________, 2014* to the present who were classified
as independent contractors and paid a day-rate.
* This date will be three years preceding the date the Court
enters an Order granting conditional certification.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=xCZyqJKv
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew Dunlap, Esq.
Lindsay R. Itkin, Esq.
Jessica M. Bresler, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
litkin@mybackwages.com
jbresler@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
David I. Moulton, Esq.
Matthew S. Parmet, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
dmoulton@brucknerburch.com
mparmet@brucknerburch.com
SECURE ONE: Faces Class Action Over Solicitation Calls
------------------------------------------------------
Wadi Reformado, writing for The Northern California Record,
reports that a Costa Mesa corporation that deals with home
financing and servicing is alleged to have made unlawful
solicitation calls.
Chari Israni filed a complaint on behalf of all others similarly
situated on May 23 in the U.S. District Court for the Central
District of California against Secure One Capital Corp. alleging
violation of the Telephone Consumer Protection Act.
According to the complaint, beginning in 2016, the plaintiff
suffered damages from receiving several unsolicited calls from the
defendant. The plaintiff holds Secure One Capital Corp.
responsible because the defendant allegedly used an automatic
dialing system and called without the plaintiff's express consent.
The plaintiff requests a trial by jury and seeks $500 in statutory
damages, $1,500 in treble damages, injunctive relief and any other
relief as the court deems just. The plaintiff is represented by
G. Thomas Martin III and Nicholas J. Bontrager of Martin &
Bontrager APC in Los Angeles.
U.S. District Court for the Central District of California Case
number 8:17-cv-00895-JVS-JCG
[GN]
SEECO INC: Wins Summary Dismissal of "Lipsey"
---------------------------------------------
In the case captioned MAURICE LIPSEY, individually and on behalf
of all others similarly situated, Plaintiffs, v. SEECO, INC.;
DESOTO GATHERING CO., LLC; and SOUTHWESTERN MIDSTREAM SERVICES
CO., Defendants, No. 4:16CV00149 JLH (E.D. Ark.), Judge J. Leon
Holmes of the U.S. District Court for the Eastern District of
Arkansas, Western Division, granted the Defendants' motion for
summary judgment and denied Lipsey's motion for leave to file an
amended class action complaint.
Lipsey commenced this putative class action against the Defendants
by filing a complaint in the Court on March 17, 2016. He alleged
that the Defendants failed to pay him the full amount of royalties
to which he was entitled pursuant to a lease into which he entered
with SEECO on April 20, 2005. He invoked the Court's diversity
jurisdiction pursuant to 28 U.S.C. Section 1332(a)(1).
Pending before the Court are the Defendants' amended motion for
summary judgment and Lipsey's motion for leave to file an amended
class action complaint. The Court heard oral argument on the
pending motions on April 11, 2017. During argument, the Court sua
sponte raised the issue of whether the amount in controversy
satisfied the requirement for federal jurisdiction and directed
the parties to brief the issue prior to any ruling on the pending
motions. In his brief on the issue, Lipsey conceded that the
amount in controversy satisfies neither the traditional diversity
nor the Class Action Fairness Act ("CAFA") jurisdictional
requirements. In their brief, the Defendants asserted that the
Court has jurisdiction, arguing that the amount in controversy
exceeds the jurisdictional minimum set forth in CAFA.
The Court found that it has subject-matter jurisdiction based on
CAFA because this is not a case where later evidence has shown, to
a legal certainty, that the damages never could have exceeded the
jurisdictional minimum. Lipsey's cause of action for the
Defendants' alleged violations of the Arkansas Deceptive Trade
Practices Act is barred by the safe harbor provision. Therefore,
the Defendants are entitled to judgment as a matter of law on all
of the claims asserted in the original complaint.
The Court further found that much of this litigation activity
occurred after the Defendants put Lipsey on notice that his
original complaint was legally defective and after the Court put
him on notice that a meritorious summary judgment motion likely
would preclude granting leave to amend. It would be prejudicial
to allow Lipsey, at the conclusion of the process, to change his
theories of relief when he has offered no convincing reason as to
why these theories were not asserted earlier and it appears that
they are offered now solely to avoid summary judgment. Therefore,
the Court denied Lipsey's motion for leave to file an amended
class action complaint.
A full-text copy of the Court's June 20, 2017 opinion and order is
available at https://is.gd/QjbcLQ from Leagle.com.
Maurice Lipsey, Plaintiff, represented by John R. Holton --
jholton@holtonlaw.com -- Deal Cooper Holton PLLC.
Maurice Lipsey, Plaintiff, represented by Michael P. McGartland,
McGartland Law Firm PLLC, Timothy R. Holton --
tholton@holtonlaw.com -- Deal Cooper Holton PLLC & J.F. Valley --
mail@jfvalley.com -- J. F. Valley, Esq., P.A..
Seeco Inc, Defendant, represented by G. Alan Perkins --
alan@ppgmrlaw.com -- Perkins Peiserich Greathouse Morgan Rankin,
Jeffrey Martin Swann -- jeff@ppgmrlaw.com -- Perkins Peiserich
Greathouse Morgan Rankin, Michael D. Morfey --
michaelmorfey@andrewskurth.com -- Andrews Kurth LLP & Michele R.
Blythe -- micheleblythe@andrewskurth.com -- Andrews Kurth LLP.
Desoto Gathering Company LLC, Defendant, represented by G. Alan
Perkins, Perkins Peiserich Greathouse Morgan Rankin, Jeffrey
Martin Swann, Perkins Peiserich Greathouse Morgan Rankin, Michael
D. Morfey, Andrews Kurth LLP & Michele R. Blythe, Andrews Kurth
LLP.
Southwestern Midstream Services Company, Defendant, represented by
G. Alan Perkins, Perkins Peiserich Greathouse Morgan Rankin,
Jeffrey Martin Swann, Perkins Peiserich Greathouse Morgan Rankin,
Michael D. Morfey, Andrews Kurth LLP & Michele R. Blythe, Andrews
Kurth LLP.
SHREVEPORT, LA: Judge Allows Sewer Bill Class Action to Proceed
---------------------------------------------------------------
Josh Roberson, writing for KSLA, reports that Shreveport officials
will now have to move forward with a class-action lawsuit against
them regarding its water billing practices.
City attorney William Bradford says a judge disagreed with the
city's request to toss out the lawsuit on June 12.
Mr. Bradford said he believes the lawsuit has no legal basis.
The suit claims the city overcharged as many as 65,000 customers
in the tens of millions of dollars on their water and sewer bills
for over ten years.
"It does not mean he (the judge) agrees with the person or the
plaintiff, it does not mean that he disagrees with them,"
Mr. Bradford said. "We're confident that as the materials, and
evidence and facts develop throughout the lawsuit that the city
will be in a good position and posture to move forward."
Attorney Jerry Harper represents the plaintiffs in the suit and
says the city has cost some residents to have their water shut off
because they refused to pay amounts of money they did not owe.
Mr. Harper added these complaints have been going on for years.
When asked about any connection to the former Shreveport
administration under then-Mayor Cedric Glover, Bradford declined
to comment.
Mr. Bradford says a similar defamation suit against the city was
recently thrown out in May and believes this one could cost
taxpayer money if it plays out.
"Of course we want to move as expeditiously through these lawsuits
as possible," Mr. Bradford said. "I think this is the fourth, the
defamation suit has been dismissed. We're moving through the
procedures and the mechanisms and the legal avenues right now, but
again we want to save the tax payers dollars as much as we
possibly can."
When asked if he thought there was any truth to the plaintiffs'
claims, Mr. Bradford says the city will look to continue to follow
proper billing procedure.
"I think that the city has stated its defense and has stated
that's its position is that we have done all that we can to
protect the interest of the citizens. We are diligent in how we
are administering our rules and regulations as well as our
ordinances," said Mr. Bradford. [GN]
SHILOH INDUSTRIES: Review on Securities Suit Dismissal Ongoing
--------------------------------------------------------------
The plaintiffs' request to reconsider an order dismissing a
securities class action lawsuit in New York against Shiloh
Industries, Inc., among other defendants, is still ongoing,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
April 30, 2017.
A securities class action lawsuit was filed on September 21, 2015
in the United States District Court for the Southern District of
New York against the Company and certain of its officers (the
President and Chief Executive Officer and Vice President of
Finance and Treasurer). As amended, the lawsuit claims in part
that the Company issued inaccurate information to investors about,
among other things, the Company's earnings and income and its
internal controls over financial reporting for fiscal 2014 and
the first and second fiscal quarters of 2015 in violation of the
Securities Exchange Act of 1934. The amended complaint seeks an
award of damages in an unspecified amount on behalf of a putative
class consisting of persons who purchased the Company's common
stock between January 12, 2015 and September 14, 2015, inclusive.
The Company and such officers filed a Motion to Dismiss this
lawsuit with the United States District Court for the Southern
District of New York on April 18, 2016. The District Court
rendered an opinion and order granting the Company's motion to
dismiss the lawsuit on March 23, 2017.
On April 6, 2017, the plaintiffs filed a motion for
reconsideration of the dismissal order. The Company, in
opposition to the plaintiff's motion, filed a motion for
consideration of the dismissal on April 20, 2017 and the
plaintiffs filed a reply motion in opposition for reconsideration
on April 27, 2017.
Shiloh Industries, Inc., together with its subsidiaries, supplies
light weighting, noise, and vibration solutions to automotive,
commercial vehicle, and other industrial markets worldwide. It
was founded in 1950 and is headquartered in Valley City, Ohio.
SIGNET JEWELERS: Collective Action to Start in March 2018
---------------------------------------------------------
Signet Jewelers Limited disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended April 29, 2017, that the trial for the collective action
related to discriminatory US store-level employment practices is
anticipated to "begin the week of March 12, 2018, or as soon
thereafter as the Arbitrator's schedule permits."
In March 2008, a group of private plaintiffs (the "Claimants")
filed a class action lawsuit for an unspecified amount against
SJI, a subsidiary of Signet, in the US District Court for the
Southern District of New York alleging that US store-level
employment practices are discriminatory as to compensation and
promotional activities with respect to gender. In June 2008, the
District Court referred the matter to private arbitration where
the Claimants sought to proceed on a class-wide basis. The
Claimants filed a motion for class certification and SJI opposed
the motion.
A hearing on the class certification motion was held in late
February 2014. On February 2, 2015, the arbitrator issued a Class
Determination Award in which she certified for a class-wide
hearing Claimants' disparate impact declaratory and injunctive
relief class claim under Title VII, with a class period of July
22, 2004 through date of trial for the Claimants' compensation
claims and December 7, 2004 through date of trial for Claimants'
promotion claims.
The arbitrator otherwise denied Claimants' motion to certify a
disparate treatment class alleged under Title VII, denied a
disparate impact monetary damages class alleged under Title VII,
and denied an opt-out monetary damages class under the Equal Pay
Act.
On February 9, 2015, Claimants filed an Emergency Motion To
Restrict Communications With The Certified Class And For
Corrective Notice. SJI filed its opposition to Claimants'
emergency motion on February 17, 2015, and a hearing was held on
February 18, 2015.
Claimants' motion was granted in part and denied in part in an
order issued on March 16, 2015. Claimants filed a Motion for
Reconsideration Regarding Title VII Claims for Disparate Treatment
in Compensation on February 11, 2015. SJI filed its opposition to
Claimants' Motion for Reconsideration on March 4, 2015.
Claimants' reply was filed on March 16, 2015. Claimants' Motion
was denied in an order issued April 27, 2015. SJI filed with the
US District Court for the Southern District of New York a Motion
to Vacate the Arbitrator's Class Certification Award on March 3,
2015. Claimants' opposition was filed on March 23, 2015 and SJI's
reply was filed on April 3, 2015. SJI's motion was heard on May
4, 2015.
On November 16, 2015, the US District Court for the Southern
District of New York granted SJI's Motion to Vacate the
Arbitrator's Class Certification Award in part and denied it in
part. On November 25, 2015, SJI filed a Motion to Stay the AAA
Proceedings while SJI appeals the decision of the US District
Court for the Southern District of New York to the United States
Court of Appeals for the Second Circuit. Claimants filed their
opposition on December 2, 2015.
On December 3, 2015, SJI filed with the United States Court of
Appeals for the Second Circuit SJI's Notice of Appeal of the
Southern District's November 16, 2015 Opinion and Order. The
arbitrator issued an order denying SJI's Motion to Stay on
February 22, 2016.
SJI filed its Brief and Special Appendix with the Second Circuit
on March 16, 2016. The matter was fully briefed and oral argument
was heard by the U.S. Court of Appeals for the Second Circuit on
November 2, 2016. On April 6, 2015, Claimants filed in the AAA
Claimants' Motion for Clarification or in the Alternative Motion
for Stay of the Effect of the Class Certification Award as to the
Individual Intentional Discrimination Claims. SJI filed its
opposition on May 12, 2015. Claimants' reply was filed on May 22,
2015. Claimants' motion was granted on June 15, 2015.
Claimants filed Claimants' Motion for Conditional Certification of
Claimants' Equal Pay Act Claims and Authorization of Notice on
March 6, 2015. SJI's opposition was filed on May 1, 2015.
Claimants filed their reply on June 5, 2015. The arbitrator heard
oral argument on Claimants' Motion on December 18, 2015 and, on
February 29, 2016, issued an Equal Pay Act Collective Action
Conditional Certification Award and Order Re Claimants' Motion For
Tolling Of EPA Limitations Period, conditionally certifying
Claimants' Equal Pay Act claims as a collective action, and
tolling the statute of limitations on EPA claims to October 16,
2003 to ninety days after notice issues to the putative members of
the collective action.
SJI filed in the AAA a Motion To Stay Arbitration Pending The
District Court's Consideration Of Respondent's Motion To Vacate
Arbitrator's Equal Pay Act Collective Action Conditional
Certification Award And Order Re Claimants' Motion For Tolling Of
EPA Limitations Period on March 10, 2016.
SJI filed in the AAA a Renewed Motion To Stay Arbitration Pending
The District Court's Resolution Of Sterling's Motion To Vacate
Arbitrator's Equal Pay Act Collective Action Conditional
Certification Award And Order Re Claimants' Motion For Tolling Of
EPA Limitations Period on March 31, 2016.
Claimants filed their opposition on April 4, 2016. The arbitrator
denied SJI's Motion on April 5, 2016.
On March 23, 2016 SJI filed with the US District Court for the
Southern District of New York a Motion To Vacate The Arbitrator's
Equal Pay Act Collective Action Conditional Certification Award
And Order Re Claimants' Motion For Tolling Of EPA Limitations
Period.
Claimants filed their opposition brief on April 11, 2016, SJI
filed its reply on April 20, 2016, and oral argument was heard on
SJI's Motion on May 11, 2016.
SJI's Motion was denied on May 22, 2016. On May 31, 2016, SJI
filed a Notice Of Appeal of Judge Rakoff's opinion and order to
the Second Circuit Court of Appeals. SJI's brief was filed
September 13, 2016, and Claimants' brief was filed on December 13,
2016, SJI filed its reply brief on January 10, 2017, and oral
argument was heard on May 9, 2017.
Claimants filed a Motion For Amended Class Determination Award on
November 18, 2015, and on March 31, 2016 the arbitrator entered an
order amending the Title VII class certification award to preclude
class members from requesting exclusion from the injunctive and
declaratory relief class certified in the arbitration. The
arbitrator issued a Bifurcated Case Management Plan on April 5,
2016, and ordered into effect the parties' Stipulation Regarding
Notice Of Equal Pay Act Collective Action And Related Notice
Administrative Procedures on April 7, 2016.
SJI filed in the AAA a Motion For Protective Order on May 2, 2016.
Claimants' opposition was filed on June 3, 2016. The matter was
fully briefed and oral argument was heard on July 22, 2016. The
motion was granted in part on January 27, 2017. Notice to EPA
collective action members was issued on May 3, 2016, and the opt-
in period for these notice recipients closed on August 1, 2016.
On January 4, 2017, the Arbitrator issued a Second Amended
Bifurcated Case Management Plan. At this time, 10,456 current and
former employees have submitted consent forms to opt in to the
collective action.
On April 5, 2017, the Arbitrator issued a Third Amended Case
Management Plan. On April 24, 2017, the Arbitrator approved
Claimants' unopposed request to extend case management deadlines.
The Company said, "We anticipate trial to begin the week of March
12, 2018, or as soon thereafter as the Arbitrator's schedule
permits."
Signet Jewelers Limited is the world's largest retailer of diamond
jewelry.
SIGNET JEWELERS: Court Okays Consent Decree Resolving EEOC Suit
---------------------------------------------------------------
The U.S. District Court for the Western District of New York
approved on May 5, 2017, the Consent Decree which resolves the US
Equal Employment Opportunity Commission's claims against Signet
Jewelers Limited's subsidiary related to alleged gender
discrimination on behalf of a class of certain female employees,
according to the Company's Form 10-Q filed on June 1, 2017 with
the U.S. Securities and Exchange Commission for the quarterly
period ended April 29, 2017.
On September 23, 2008, the US Equal Employment Opportunity
Commission ("EEOC") filed a lawsuit against subsidiary SJI in the
US District Court for the Western District of New York. The
EEOC's lawsuit alleges that SJI engaged in intentional and
disparate impact gender discrimination with respect to pay and
promotions of female retail store employees from January 1, 2003
to the present.
The EEOC asserts claims for unspecified monetary relief and non-
monetary relief against the Company on behalf of a class of female
employees subjected to these alleged practices. Non-expert fact
discovery closed in mid-May 2013.
In September 2013, SJI made a motion for partial summary judgment
on procedural grounds, which was referred to a Magistrate Judge.
The Magistrate Judge heard oral arguments on the summary judgment
motion in December 2013.
On January 2, 2014, the Magistrate Judge issued his Report,
Recommendation and Order, recommending that the Court grant SJI's
motion for partial summary judgment and dismiss the EEOC's claims
in their entirety. The EEOC filed its objections to the
Magistrate Judge's ruling and SJI filed its response thereto.
The District Court Judge heard oral arguments on the EEOC's
objections to the Magistrate Judge's ruling on March 7, 2014 and
on March 11, 2014 entered an order dismissing the action with
prejudice.
On May 12, 2014, the EEOC filed its Notice of Appeal of the
District Court Judge's dismissal of the action to United States
Court of Appeals for the Second Circuit. The parties fully
briefed the appeal and oral argument occurred on May 5, 2015. On
September 9, 2015, the United States Court of Appeals for the
Second Circuit issued a decision vacating the District Court's
order and remanding the case back to the District Court for
further proceedings. SJI filed a Petition for Panel Rehearing and
En Banc Review with the United States Court of Appeals for the
Second Circuit, which was denied on December 1, 2015.
On December 4, 2015, SJI filed in the United States Court of
Appeals for the Second Circuit a Motion Of Appellee Sterling
Jewelers Inc. For Stay Of Mandate Pending Petition For Writ Of
Certiorari. The Motion was granted by the Second Circuit on
December 10, 2015.
SJI filed a Petition For Writ Of Certiorari in the Supreme Court
of the United States on April 29, 2016, which was denied. The
case was remanded to the Western District of New York and on
November 2, 2016, the Court issued a case scheduling order.
On January 25, 2017, the parties filed a joint motion to extend
case scheduling order deadlines. The motion was granted on
January 27, 2017.
On May 5, 2017 the U.S. District Court for the Western District of
New York approved and entered the Consent Decree jointly proposed
by the EEOC and SJI, resolving all of the EEOC's claims against
SJI in this litigation for various injunctive relief including but
not limited to the appointment of an employment practices expert
to review specific policies and practices, a compliance officer to
be employed by SJI, as well as obligations relative to training,
notices, reporting and record-keeping. The Consent Decree does
not require an outside third party monitor or require any monetary
payment. The duration of the Consent Decree is three years and
three months, expiring on August 4, 2020.
Signet Jewelers Limited is the world's largest retailer of diamond
jewelry.
SIGNET JEWELERS: July 14 Hearing Set for Employment Class Accord
----------------------------------------------------------------
Signet Jewelers Limited disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended April 29, 2017, that a hearing for final approval of an
agreement that will settle an employment-related class action
against Zale Delaware Inc. d/b/a Zale Corporation is scheduled for
July 14, 2017.
Prior to the Acquisition, Zale Corporation was a defendant in
three purported class action lawsuits:
* Tessa Hodge v. Zale Delaware, Inc., d/b/a Piercing Pagoda
which was filed on April 23, 2013 in the Superior Court of the
State of California, County of San Bernardino;
* Naomi Tapia v. Zale Corporation which was filed on July 3,
2013 in the US District Court, Southern District of California;
and
* Melissa Roberts v. Zale Delaware, Inc. which was filed on
October 7, 2013 in the Superior Court of the State of California,
County of Los Angeles.
All three cases include allegations that Zale Corporation violated
various wage and hour labor laws. Relief is sought on behalf of
current and former Piercing Pagoda and Zale Corporation's
employees. The lawsuits seek to recover damages, penalties and
attorneys' fees as a result of the alleged violations.
Without admitting or conceding any liability, the Company reached
an agreement to settle the Hodge and Roberts matters for an
immaterial amount. Final approval of the settlement was granted
on March 9, 2015 and the settlement was implemented.
On December 28, 2016, the Company participated in a mediation of
an employment class action brought against Zale Delaware Inc.
d/b/a Zale Corporation. The mediation resulted in a settlement
agreement signed by both parties. The settlement resolved various
California wage and hour claims involving all current and former
employees of Zale Delaware Inc. d/b/a Zale Corporation who were
designated as nonexempt and worked in California at any time from
July 3, 2010 to present. On April 18, 2017, the Court granted
preliminary approval of the settlement. The settlement is subject
to final approval by the Court. A hearing for final approval is
scheduled for July 14, 2017.
Signet Jewelers Limited is the world's largest retailer of diamond
jewelry.
SIGNET JEWELERS: July 5 Deadline for Lead Plaintiff & Counsel Bid
-----------------------------------------------------------------
Signet Jewelers Limited still defends itself in a consolidated
putative shareholder class action in New York, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended April 29, 2017. The
plaintiffs have until July 5, 2017 to file motions to serve as
lead plaintiff and lead counsel in this consolidated action.
On August 25, 2016, Susan Dube filed a putative class action
complaint in the United States District Court for the Southern
District of New York against the Company and its current Chief
Executive Officer and Chief Financial Officer (Dube v. Signet
Jewelers Limited, et al., Civ. No. 16-6728 (S.D.N.Y.)).
On August 31, 2016, Lyubomir Spasov filed a putative class action
complaint in the same court alleging identical claims against the
same defendants (Spasov v. Signet Jewelers Limited, et al., Civ.
No. 16-06861 (S.D.N.Y.)).
On September 16, 2016, the two actions were consolidated under
case number 16-CV-6728.
On April 3, 2017, Dube and Spasov filed a second amended
complaint, purportedly on behalf of persons or entities that
acquired the Company's securities between August 29, 2013, and
February 27, 2017, inclusive, which names the Company and its
current and former Chief Executive Officers and Chief Financial
Officers as defendants.
The complaint alleges that the defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 by, among other
things, misrepresenting the Company's business and earnings by
failing to disclose that the Company was allegedly experiencing
difficulty ensuring the safety of customers' jewelry while in
Signet's custody for repairs, which allegedly resulted in a drop-
off in customer confidence, and making misleading statements about
the Company's credit portfolio and public reports of sexual
harassment allegations that were raised by certain claimants in an
ongoing pay and promotion gender discrimination class arbitration
(the "Arbitration"). The complaint alleges that the Company's
share price was artificially inflated as a result of the alleged
misrepresentations and seeks unspecified compensatory damages and
costs and expenses, including attorneys' and experts' fees.
On March 28, 2017, Irving Firemen's Relief & Retirement System
("IFRRS") filed a putative class action complaint in the United
States District Court for the Northern District of Texas against
the Company and its current and former Chief Executive Officers.
IFRRS' complaint alleges that the defendants violated Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 by making
statements concerning the Arbitration (Irving Firemen's Relief &
Retirement System v. Signet Jewelers Limited, et al., Civ. No. 17-
00875 (N.D. Tex.)).
On March 31, 2017, Maria Mikolchak filed a putative class action
complaint in the same court alleging identical claims against the
same defendants (Mikolchak v. Signet Jewelers Limited, et al.,
Civ. No. 17-00923).
The IFRRS and Mikolchak cases have been transferred to the United
States District Court for the Southern District of New York and
consolidated with the Dube/Spasov action.
Motions to serve as lead plaintiff and lead counsel in this
consolidated action must be filed by July 5, 2017, and defendants'
obligation to respond to the pending complaints has been stayed
until after the Court has appointed a lead plaintiff and an
operative complaint has been filed or designated.
Signet Jewelers Limited is the world's largest retailer of diamond
jewelry.
SOMATDARY INC: Denied McCormick Rest Periods, Wage Statements
-------------------------------------------------------------
Jason McCormick, individually, and on behalf of others similarly
situated, Plaintiffs, v. Somatdary, Inc., Case No. BC664525 (Cal.
Super., June 9, 2017), seeks unpaid wages and interest thereon for
failure to pay for all hours worked and minimum wage rate, failure
to authorize or permit required meal periods, failure to authorize
or permit required rest periods, statutory penalties for failure
to provide accurate wage statements, unpaid vacation wages,
reimbursement of business-related expenses, injunctive relief and
other equitable relief, reasonable attorney's fees, costs and
interest pursuant to the California Labor Code and applicable
Industrial Welfare Commission Wage Orders as well as for breach of
contract.
Defendant operates as Rapid Plumbing and is engaged in home
improvement, repairs and plumbing. McCormick worked as an all-
around handyman. [BN]
The Plaintiff is represented by:
Zachary Crosner, Esq.
Michael Crosner, Esq.
Alfredo Nava, Esq.
CROSNER LEGAL, P.C.
433 N. Camden Drive, Suite 400
Beverly Hills, CA 90210
Tel. (310) 496-5818
Fax. (818) 700-9973
SOUTH LAMAR: Accused of Excessive Rent and Charges by "Merril"
--------------------------------------------------------------
Daniel Merrill, for himself and all others similarly situated,
Plaintiff, v. South Lamar Apartments, Limited Partnership, and its
general partner, SLJV G.P. LLC, Thc South Lamar Development LP and
its general partner SLJV G.P. LLC, and IMP South Lamar, LLC d/b/a
Windsor South Lamar, Defendants, Case No. 0:17-cv-61150 (N.D.
Cal., June 8, 2017), seeks to recover statutory remedies for
himself and the Class for unlawful, unreasonable and excessive
rent and late fees assessed and collected under the Texas Property
Code.
Plaintiff is a residential tenant at South Lamar Apartments, owned
and operated by the Defendants. [BN]
The Plaintiff is represented by:
Britton D. Monts, Esq.
THE MONTS FIRM
401 Congress Ave., Suite 1540
Austin, TX 78701-3851
Email: bmonts@lhemontsfirm.com
Tel: (512) 474-6092
Fax: (512) 692-2981
- and -
Jason W. Snell, Esq.
J.R. Skrabanek, Esq.
The Snell Law Firm, PLLC
Chase Tower
221 W. 6th Street, Suite 900
Austin, TX 78701
Email: firm@snellfirm.com
Tel: (512)477-5291
Fax: (512) 477-5294
STATE FARM: Bid to Dismiss "Cuadros" Suit Partly Granted
--------------------------------------------------------
In the case captioned LUZ ELENA CUADROS, Plaintiff(s), v. STATE
FARM FIRE AND CASUALTY COMPANY, Defendant(s), Case No. 2:16-CV-
2025 JCM (VCF) (D. Nev.), Judge James C. Mahan of the U.S.
District Court for the District of Nevada granted in part, without
prejudice, as to claims four, five, six, and seven; and denied in
part as to claims one, two, and three, the Defendant's amended
motion to dismiss.
Plaintiff filed a class action complaint arising from State Farm's
alleged practice of applying a reduced actual cash valuation for
total loss vehicles by roughly 7% to reflect the purported
difference between the sell price and the asking price of an
automobile.
The Plaintiff specifically asserts the following claims on behalf
of the purported class: (i) unfair trade practices under Nevada
Revised Statute ("NRS"); (ii) violations of the Nevada Deceptive
Trade Practices Act ("NDTPA"); (iii) breach of contract; (iv)
breach of the implied covenant of good faith and fair dealing; (v)
fraudulent misrepresentation; (vi) unjust enrichment; and (vii)
injunctive and declaratory relief.
The Defendant argues that the complaint should be dismissed
because these claims are subject to the Nevada insurance
commissioner's exclusive jurisdiction, and the Plaintiff has not
administratively exhausted her claims. Second, it alleges that
the complaint should be dismissed because the Plaintiff has not
alleged damages, though a named class action plaintiff must
identify the same. Next, it argues that the Plaintiff has not
satisfied the heightened pleading standard as to "her fraud-based
claims" and that the she does not indicate what part of the
insurance policy was violated by defendant's actions.
Moreover, the Defendant requests that the contractual bad faith
claim be dismissed because the Plaintiff's allegations involve the
terms of the contact and the claim processing procedure. Finally,
it posits that the contract prevents the unjust enrichment claim.
The Court granted the Defendant's motion as to the claims of
breach of the covenant of good faith and fair dealing, fraudulent
misrepresentation, unjust enrichment, and injunctive and
declaratory relief. However, it did not dismiss the Plaintiff's
NRS 686A.310, NDTPA, and breach of contract claims. The Court
declined to consider claims or arguments involving the
unconscionability of the contract terms.
A full-text copy of the Court's June 20, 2017 order is available
at https://goo.gl/oHK3ZV from Leagle.com.
Luz Elena Cuadros, Plaintiff, represented by Charles LaDuca --
charlesl@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP, pro hac
vice.
Luz Elena Cuadros, Plaintiff, represented by Imanuel B. Arin, Arin
& Associates, P.C., J. Randall Jones -- r.jones@kempjones.com --
Harrison, Kemp & Jones, LLP, Melissa W. Wolchansky --
wolchansky@halunenlaw.com -- Halunen & Associates, pro hac vice,
Michael J. Flannery -- mflannery@cuneolaw.com -- Cuneo Gilbert &
LaDuca, LLP, pro hac vice, Michael J. Gayan --
m.gayan@kempjones.com -- Kemp, Jones & Coulthard, LLP & Robert K.
Shelquist -- rkshelquist@locklaw.com -- Lockridge Grindal Nauen
P.L.L.P., pro hac vice.
State Farm Fire and Casualty Company, Defendant, represented by
Jeffrey G. Mason -- jeffrey.mason@stinson.com -- Stinson Leonard
Street LLP, pro hac vice, Todd Anders Noteboom --
todd.lasala@stinson.com -- Stinson Leonard Street LLP, pro hac
vice & Riley A. Clayton, Hall Jaffe & Clayton, LLP.
TATA SONS: Seeks to Revoke Premission Granted on Class Action
-------------------------------------------------------------
Swati Deshpandel, writing for Times of India, reports that the
Bombay high court heard a plea by Tata Sons for revoking a
permission it had granted to hear a representative class action
suit, claiming Rs 41,000 crore in damages made by a bunch of non-
promoter shareholders.
A few non-promoter shareholders of seven Tata companies had filed
a suit saying that because of the "illegal ouster of Cyrus Mistry
as Tata Sons chairman'', the market price of the shares had
crashed and thus they had suffered enormous loss. The damage
sought is the loss caused in shares of eight Tata group companies,
since closing on October 24 to December 6, the suit said.
They had pleaded for the suit be treated as a representative suit
of all shareholders. The court had last year allowed such a plea.
Tata Sons moved to revoke the permission. Tata Sons' counsel P
Chidambaram argued that it was "perverse to say that all non-
promoter shareholders have the same grievance and are unhappy". He
said that the retail shareholders later "sharpened their attack on
Ratan Tata'', alleging the removal by him in a "non-
transparent"manner led to fall in share prices. "Why or how can
you presume that all shareholders are unhappy?"he asked. Dinyar
Madon, counsel for the shareholders, who had moved the court,
argued that they were entitled to represent all similarly placed
Tata company shareholders. Madon also pointed out that 60 other
shareholders had filed applications in support of the suit and not
a single non-promoter shareholder had filed any plea to oppose the
suit.
There are over 25 lakh shareholders of Tata companies. If
permission is revoked, it would mean all shareholders would have
to file individual suits. Janak Dwarkadas, counsel for Mistry,
reiterated Madon's submission. In a rejoinder, Chidambaram
stressed that there cannot be an accepted commonality of
complaint. Justice S C Gupte closed the matter for orders. [GN]
THURSTON COUNTY, WA: Sex Offenders Can Proceed Under Pseudonyms
---------------------------------------------------------------
In the case captioned JOHN DOE P; JOHN DOE Q; JOHN DOE R; and JOHN
DOE S, as individuals and on behalf of others similarly situated,
Respondents, v. THURSTON COUNTY, a municipal organization, and its
departments the THURSTON COUNTY PROSECUTING ATTORNEY, and THURSTON
COUNTY SHERIFF, Respondents, DONNA ZINK, a married woman,
Appellant, No. 48000-0-II (Wash. App.), Judge Jill Johanson of the
Court of Appeals of Washington, Division Two, affirmed the trial
court's orders granting summary judgment and enjoining the
unredacted evaluations' release, certifying the class action, and
allowing the Plaintiffs to proceed as John Does.
In October 2014, under the Public Records Act, Donna Zink
requested the following records from the County: all special sex
offender sentencing alternative ("SSOSA") and special sex offender
disposition alternative ("SSODA") evaluations and victim impact
statements for sex offenders prosecuted in Thurston County,
registration forms of sex offenders registered in Thurston County,
and a list or database of all sex offenders registered in Thurston
County. In December 2014, the County notified 723 sex offenders
of Zink's request for SSOSA and SSODA evaluations and other
information.
In January 2015, the John Does filed a class action complaint,
which listed Zink as a party. They sought a permanent injunction
to enjoin the County from disclosing all level I sex offender
registration records and all SSOSA and SSODA evaluations. The
John Does did not object to the victim impact statements'
disclosure.
In January, the John Does moved for class certification,
permission to proceed under pseudonyms, and a preliminary
injunction preventing the release of the evaluations and
registration records. The trial court granted all three motions.
The trial court authorized the John Does to represent a class
defined as all individuals named in registration forms, a
registration database, SSOSA evaluations, or SSODA evaluations in
the possession of Thurston County, and classified as sex offenders
at risk level I who are compliant with the conditions of
registration or have been relieved of the duty to register.
In June, the John Does moved for summary judgment on their request
for a permanent injunction. Noting that the material facts were
undisputed and that the questions to be resolved were solely
questions of law, the trial court granted the John Does' summary
judgment motion and request for a permanent injunction that
enjoined the County from releasing unredacted records. Zink
appeals the summary judgment, pseudonym, and class certification
orders.
The Appellate Court held that the trial court properly granted the
John Does' summary judgment motion and enjoined the release of the
unredacted evaluations. It further held that Zink waived her
arguments regarding the trial court's orders allowing the
Plaintiffs to proceed under pseudonyms and class certification
when Zink failed to appear and object.
Zink also sought the release of sex offender registration records.
The Court agreed with the parties that the trial court erred when
it enjoined the registration records' release under former RCW
4.24.550 (2011) in light of John Doe A. v. Wash. State Patrol
(WSP). Thus, the Court held that the registration records must be
released. Accordingly, it affirmed the trial court's orders
granting summary judgment and enjoining the unredacted
evaluations' release, certifying the class action, and allowing
the Plaintiffs to proceed as John Does.
A full-text copy of the Court's June 20, 2017 opinion is available
at https://is.gd/s8LAZs from Leagle.com.
Donna Zink (Appearing Pro Se), P O Box 263, Mesa, WA, 99343,
Counsel for Appellant(s).
John C. Skinder, Thurston County Superior Court, 2000 Lakeridge Dr
Sw, Olympia, WA, 98502-6045, Elizabeth Petrich, Attorney at Law,
2000 Lakeridge Dr Sw Bldg 2, Olympia, WA, 98502-6001, Salvador
Alejo Mungia II -- smungia@gth-law.com -- Gordon Thomas Honeywell,
Po Box 1157, Tacoma, WA, 98401-1157, Reuben Schutz --
rschutz@gth-law.com -- Gordon Thomas Honeywell, 1201 Pacific Ave
Ste 2100, Tacoma, WA, 98402-4314, Vanessa Torres Hernandez, ACLU
of Washington, 901 5th Ave Ste 630, Seattle, WA, 98164-2086,
Prachi Vipinchandra Esq Dave, Attorney at Law, 901 5th Ave Ste
630, Seattle, WA, 98164-2086, Counsel for Respondent(s).
THINK SIMPLICITY: Settlement in Lot Owners' Suit Gets Final OK
--------------------------------------------------------------
In the case captioned LEHIGH ACRES LOT OWNERS ASSOCIATION, INC.,
individually and on behalf of all others similarly situated,
Plaintiff, v. THINK SIMPLICITY, INC.; and ALEXANDER PEROVICH,
Defendants, Case No. 6:16-cv-933-Orl-37GJK (M.D. Fla.), Judge Roy
B. Dalton, Jr. of the U.S. District Court for the Middle District
of Florida, Orlando Division, granted the Joint Motion for
Miscellaneous Relief, Specifically for Final Approval of Class
Action Settlement and Incorporated Memorandum of Law by Lehigh
Acres Lot Owners Association, Inc.
Pursuant to Federal Rule of Civil Procedure 23, the Court finally
certified the following Settlement Class for settlement purposes
only: All natural persons and entities in the United States who
were sent a facsimile advertisement, by or on behalf of Think
Simplicity, Inc. and/or Alexander Perovich, between April 30, 2015
and Feb. 22, 2017, that advertised Think Simplicity, Inc.'s
products and/or services, where the advertisement failed to
contain opt-out language compliant with the requirements of the
TCPA and/or its accompanying regulations.
As stated in the Settlement Agreement, each member of the
Settlement Class who submitted a timely and valid Claim Form will
be paid $390. The Settlement Administrator is directed to cause
those checks to be mailed after receiving the funds from the
Defendants. Checks issued to the claiming Settlement Class
members will be void 180 days after issuance and the total amount
from voided checks will revert back to the Defendants.
Pursuant to the parties' agreement, the Court approved the Class
Counsel's attorney fees in the total amount of $29,702.40,
inclusive of out-of-pocket litigation expenses. The Defendants
are directed to pay that amount in accordance with the Settlement
Agreement.
The Court also approved a $5,000 incentive award to the Plaintiff
for serving as the Class Representative. The Defendants are
directed to pay that amount in accordance with the Settlement
Agreement.
This action, including all claims against the Defendants asserted
in this lawsuit, or which could have been asserted in this
lawsuit, by or on behalf of the Plaintiff and all Settlement Class
members against the Defendants, is dismissed with prejudice and
without taxable costs to any Party.
The Court retains jurisdiction over this action, the Plaintiff and
all members of the Settlement Class, and the Defendants, to
determine all matters relating in any way to this Final Judgment
and Order, the Preliminary Approval Order, or the Settlement
Agreement, including, but not limited to, their administration,
implementation, interpretation, or enforcement.
The Court finds that there is no just reason to delay the
enforcement of or appeal from this Final Approval Order and
Judgment. Accordingly, the Clerk is directed to close this
action.
A full-text copy of the Court's June 20, 2017 order and final
judgment is available at https://goo.gl/2KdhtY from Leagle.com.
Lehigh Acres Lot Owners Association, Inc., Plaintiff, represented
by Charles Richard Bennett, Bennett & Bennett.
Lehigh Acres Lot Owners Association, Inc., Plaintiff, represented
by Joshua Aaron Glickman, Social Justice Law Collective, PL, Peter
Ashley Bennett, Bennett & Bennett & Shawn Alex Heller, Social
Justice Law Collective.
Think Simplicity Inc., Defendant, represented by Daniel T. Stabile
-- DStabile@shutts.com -- Shutts & Bowen, LLP & Francis Augustine
Zacherl, III -- FZacherl@shutts.com -- Shutts & Bowen, LLP.
Alexander Perovich, Defendant, represented by Daniel T. Stabile,
Shutts & Bowen, LLP & Francis Augustine Zacherl, III, Shutts &
Bowen, LLP.
TOTAL CARD: Court Dismisses FDCPA Class Action
----------------------------------------------
Stefanie H Jackman, Esq. -- jackmans@ballardspahr.com -- of
Ballard Spahr, in an article for insideARM, reports that a federal
district court in New Jersey dismissed a putative class-action
lawsuit against Total Card, Inc. (TCI), a South Dakota-based debt
collector. The plaintiff alleged that TCI violated the Fair Debt
Collection Practices Act (FDCPA) when it attempted to collect
time-barred debts with payment plan solicitations.
According to the lawsuit, TCI sent a collection letter to a New
Jersey consumer who owed $1,648.56 on a past-due cellular
telephone bill. The collection letter stated that resolving the
debt would "put an end to the calls and letters attempting to
collect on this account," but because of the age of the debt, the
collector would not file a lawsuit or report the debt to a credit
reporting agency.
Despite the time-barred debt disclosure, the plaintiff claimed
that the letter was "misleading" under sections 1692e and 1692f of
the FDCPA because it failed to advise consumers whether a new debt
or contract would be formed or whether the statute of limitations
would be revived if the consumer made a payment. TCI, by
contrast, argued that under Huertas v. Galaxy Asset Mgmt., a debt
collector may seek voluntary repayment of a time-barred debt under
the FDCPA if "the debt collector does not initiate or threaten
legal action in connection with its debt collection efforts."
The court granted TCI's motion to dismiss. The court first
rejected the plaintiff's argument that the collection letter
attempted to create a new contract or enforceable debt. Rather
than create a new contract, the court held that the collection
letter intended only to collect voluntary payments on existing
debts. In so holding, the court relied on the letter's language
that any payments would "full[y] and final[ly] resol[ve] . . .
this account!," "satisfy past financial obligations," and
"resolv[e] your account in full."
Next, the court rejected the plaintiff's argument that the
collection letter was misleading because it did not warn consumers
that partial payments may revive the statute of limitations. This
holding relied on a feature of New Jersey statute-of-limitations
law providing that a promise to pay only restarts the statute of
limitations if it is unconditional and in a signed writing. The
court reasoned that a letter that asks a consumer to "[s]imply
check a box" to select an installment payment plan is not an
unconditional, signed writing. Finally, the court held that the
letter was not misleading because it did not threaten legal action
and contained a time-barred debt disclosure.
The upshot of the decision is that the court reaffirmed a
collection agency's right to collect time-barred debt, provided it
does not do so in a misleading manner. We have previously covered
issues involving time-barred debt here. Collecting time-barred
debt continues, however, to invite litigation and regulatory
attention. It is therefore important to follow state law closely
and avoid even the appearance of threatening legal action while
keeping in mind the least-sophisticated-consumer standard.
Attorneys in Ballard Spahr's Consumer Financial Services Group
regularly advise clients on compliance with the FDCPA and state
debt collection laws and defend clients in FDCPA lawsuits and
enforcement matters. The Group is nationally recognized for its
guidance in structuring and documenting new consumer financial
services products, its experience with the full range of federal
and state consumer credit laws throughout the country, and its
skill in litigation defense and avoidance. [GN]
TRISTAR PRODUCTS: Court Denies Bid to Decertify "Chapman"
---------------------------------------------------------
In the case captioned KENNETH CHAPMAN et. al., Plaintiffs, v.
TRISTAR PRODUCTS, INC., Defendant, Case No. 1:16-CV-1114 (N.D.
Ohio), Judge James S. Gwin of the U.S. District Court for the
Northern District of Ohio denied the Defendant's motion to
decertify and bifurcated the July 10, 2017 trial.
The Plaintiffs bought pressure cookers from the Defendant. They
allege that the Defendant's Cookers have a design defect that
allows users to open the pressure cooker while the pressure cooker
still contains a significant and dangerous amount of pressure.
They allege this defect makes the Cookers worthless and seek a
full purchase price refund.
On April 24, 2017, the Court granted class certification to Cooker
purchasers residing in Ohio, Pennsylvania, and Colorado. The
Defendant now moves to decertify the Class, arguing that the
Plaintiffs' damages model fails to satisfy the requirements set by
the Supreme Court in Comcast Corp. v. Behrend.
The Court denied the Defendant's motion to decertify. When it
granted class certification, it found the Plaintiffs' damages
model fit their liability theory, as Comcast requires, the Court
said. The Plaintiffs' model and theory still align. However,
individual Class members' damages differ and the Class's size is
uncertain. Therefore, the Court bifurcated the upcoming July 10,
2017 trial.
As to liability, a jury will determine (i) whether the Cookers
have a defect, and, (ii) if so, whether the defect makes the
Cookers worthless. These two legal questions satisfy Rule 23's
typicality, commonality, and predominance requirements. If a jury
answers yes to both those questions, then the parties will turn to
damages. The damages of individual class members can be readily
determined in individual hearings, in settlement negotiations, or
by creation of subclasses.
A full-text copy of the Court's June 20, 2017 opinion and order is
available at https://goo.gl/GcQnsk from Leagle.com.
Kenneth Chapman, Plaintiff, represented by Adam A. Edwards --
adam@gregcolemanlaw.com -- Law Office of Greg Coleman.
Kenneth Chapman, Plaintiff, represented by Arthur M. Stock --
astock@bm.net -- Berger & Montague, Drew T. Legando, Landskroner
Grieco Merriman, Edward A. Wallace, Wexler Wallace --
eaw@wexlerwallace.com -- pro hac vice, Gregory F. Coleman --
greg@gregcolemanlaw.com -- Law Office of Greg Coleman, pro hac
vice, Jack Landskroner, Landskroner Grieco Merriman, Lisa A. White
-- lisa@gregcolemanlaw.com -- Law Office of Greg Coleman, Mark E.
Silvey, Law Office of Greg Coleman, pro hac vice, Shanon J. Carson
-- scarson@bm.net -- Berger & Montague & Tyler J. Story --
tjs@wexlerwallace.com -- Wexler Wallace.
Jessica Vennel, Plaintiff, represented by Adam A. Edwards, Law
Office of Greg Coleman, Arthur M. Stock, Berger & Montague, Edward
A. Wallace, Wexler Wallace, pro hac vice, Gregory F. Coleman, Law
Office of Greg Coleman, pro hac vice, Jack Landskroner,
Landskroner Grieco Merriman, Lisa A. White, Law Office of Greg
Coleman, Mark E. Silvey, Law Office of Greg Coleman, pro hac vice,
Shanon J. Carson, Berger & Montague, Tyler J. Story, Wexler
Wallace & Drew T. Legando, Landskroner Grieco Merriman.
Jason Jackson, Plaintiff, represented by Adam A. Edwards, Law
Office of Greg Coleman, Arthur M. Stock, Berger & Montague, Edward
A. Wallace, Wexler Wallace, pro hac vice, Gregory F. Coleman, Law
Office of Greg Coleman, pro hac vice, Jack Landskroner,
Landskroner Grieco Merriman, Lisa A. White, Law Office of Greg
Coleman, Mark E. Silvey, Law Office of Greg Coleman, pro hac vice,
Shanon J. Carson, Berger & Montague, Tyler J. Story, Wexler
Wallace & Drew T. Legando, Landskroner Grieco Merriman.
Tristar Products, Inc., Defendant, represented by Brian E. Roof --
broof@sutter-law.com -- Sutter O'Connell, Brian Douglas Sullivan -
- bsullivan@reminger.com -- Reminger & Reminger, Hugh J. Bode --
hbode@reminger.com -- Reminger & Reminger, John Q. Lewis --
john.lewis@tuckerellis.com -- Tucker Ellis, Jonathan F. Feczko --
jonathan.feczko@tuckerellis.com -- Tucker Ellis, Madeline Dennis -
- madeline.dennis@tuckerellis.com -- Tucker Ellis, Martin T.
Galvin -- mgalvin@reminger.com -- Reminger & Reminger & Nathan F.
Studeny -- nstudeny@sutter-law.com -- Sutter O'Connell.
U.S. AVIATION: Directed to Produce Class List in "Haralson"
-----------------------------------------------------------
In the case captioned JAMES HARALSON, on behalf of himself and
others similarly situated, Plaintiff, v. U.S. AVIATION SERVICES
CORP., a Nevada corporation; UNITED AIRLINES, INC., a Delaware
corporation; and DOES 1-50, inclusive, Defendants, Case No. 3:16-
cv-05207 (N.D. Cal.), Judge Jon S. Tigar of the U.S. District
Court for the Northern District of California required the U.S.
Aviation to immediately produce a Class List, and instructed the
Plaintiff's counsel to protect the privacy interest of putative
class members.
The Class List must include the name, last known mailing address,
last known cellular telephone number, last known personal email
address, and last known job title held for each putative class
member, with putative class member defined as all persons employed
by the Defendant in hourly paid or non-exempt positions as
aircraft cleaners in California since Sept. 9, 2012.
Judge Tigar further ordered that if putative class member declines
to talk with the Plaintiff's counsel, said counsel will
immediately terminate the conversation and will not contact that
individual again.
A full-text copy of the Court's June 21, 2017 order is available
at https://goo.gl/TGQL1a from Leagle.com.
James Haralson, Plaintiff, represented by Chaim Shaun Setareh --
haun@setarehlaw.com -- Setareh Law Group.
James Haralson, Plaintiff, represented by Howard Scott Leviant --
scott@setarehlaw.com -- Setareh Law Group & Thomas Alistair Segal
-- thomas@setarehlaw.com -- Setareh Law Group.
U.S. Aviation Services Corp., Defendant, represented by Brendan
Dolan -- bdolan@vedderprice.com -- Vedder Price (CA) LLP, Brittany
A. Sachs -- bsachs@vedderprice.com -- Vedder Price (CA), LLP &
Christopher Anthony Braham --
cbraham@vedderprice.com -- Vedder Price (CA), LLP.
United Airlines, Inc., Defendant, represented by Michael Anderson
Wahlander -- mwahlander@seyfarth.com -- Seyfarth Shaw LLP,
Catherine M. Dacre -- cdacre@seyfarth.com -- Seyfarth Shaw LLP,
Elizabeth Jarvis MacGregor -- emacgregor@seyfarth.com -- Seyfarth
Shaw LLP & Gary Steven Kaplan -- gkaplan@seyfarth.com -- Seyfarth
Shaw LLP, pro hac vice.
UNITED AIRLINES: Judge Allows Flight Attendant to Amend Complaint
-----------------------------------------------------------------
District Judge William T. Hart of the U.S. District Court for the
Northern District of Illinois, Eastern Division, granted
plaintiff's motion for leave to file first amended class action
complaint and denied defendant's motion to strike the class action
allegations in the case styled TONIA TATE, Plaintiff, v. UNITED
AIRLINES, INC., Defendant, No. 16 C 8689 (N.D. Ill.).
Plaintiff Tonia Tate was employed by defendant United Airlines,
Inc. (UAL) from 1998 until November 12, 2012 as a flight
attendant. She has been diagnosed as having Type I diabetes which
she alleges substantially limits one or more of her major life
activities. Plaintiff alleges that she was so terminated for being
absent from work after being subjected to a hostile work
environment.
Plaintiff alleged that UAL has a policy and practice of treating
Tate's condition as a common illness without accommodation of
medical restrictions and terminating employees for missing work
when absent from work as a result of such disability. Tate seeks
to bring an action on behalf of herself and other UAL similarly
situated employees pursuant to F.R.C.P. Rule 23(b)(3).
She alleges the following class definition:
"All persons who were employed by the defendant, its
subsidiaries and affiliated companies, as flight attendants or
similarly situated employees, in the United States at any time
during the relevant statute of limitations period, individuals
with disabilities, absent from work because of their disability,
and discharged under the attendance policy used by defendant."
Plaintiff filed a motion to amend the pleadings by adding class
action allegations as set forth in a first amended class action
complaint, while defendant filed a motion to compel plaintiff to
supply additional information and documents in response to
interrogatories and requests for the production of documents.
Defendant contends that the plaintiff's answers to interrogatories
and response to the request for documents is incomplete.
Judge Hart held that an order denying amendment to allege class
action allegations or to strike class action allegations is
functionally equivalent to an order denying class certification.
Plaintiff's motion for leave to file it first amended class action
complaint is granted. Defendant's motion to strike the class
action allegations is denied. Defendant contends that the
plaintiff's answers to interrogatories and response to the request
for documents is incomplete. The information sought is incomplete.
However, some or all of the information may be provided when
plaintiff gives a deposition. Plaintiff also states that some
information will be provided as required by F.R.C.P. Rule 26.
Accordingly, ruling on defendant's motion will be reserved until
after plaintiff is deposed. However, plaintiff must promptly
furnish the initial disclosures required by Rule 26 (a)(1).
Defendant is granted 14 days to answer the amended complaint.
Class-action discovery must be completed by October 2, 2017. Any
motion to certify a class shall be filed by October 2, 2017. The
parties shall comply with the initial disclosure requirements of
Rule 26(a)(1) within 14 days. Defendant's motion to compel
discovery is reserved and the case is set for a hearing on status
on October 5, 2017 at 2 PM.
A copy of Judge Hart's opinion and order dated June 15, 2017, is
available at https://goo.gl/gpGHSw from Leagle.com.
Tonia Tate, Plaintiff, represented by Daniel G. Austin --
daustin@1stcounsel.com -- at Austin Law Group LLC
United Airlines Inc, Defendant, represented by Jody A. Boquist --
jboquist@littler.com -- Oyindamola Hanna Badmus --
hbadmus@littler.com -- at Littler Mendelson, P.C.
UNITED STATES: Bagnall's Bid to Certify Taken Under Advisement
--------------------------------------------------------------
The Hon. Michael P. Shea took under advisement the motion to
certify class filed by the Plaintiffs of the lawsuit captioned
BAGNALL, et al. v. SEBELIUS, Case No. 3:11-cv-01703-MPS (D.
Conn.).
Kathleen Sebelius was the United States' Secretary of Health and
Human Services.
A copy of the Courtroom Minutes is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Qw6a1E0Z
The Plaintiffs are represented by:
Alice Bers, Esq.
CENTER FOR MEDICARE ADVOCACY
P.O. Box 350
Willimantic, CT 06226
Telephone: (860) 456-7790
Facsimile: (860) 456-2614
E-mail: abers@medicareadvocacy.org
UNITED STATES: ACLU Sues to Stop Deportation of Iraqi Nationals
---------------------------------------------------------------
KhWWL reports that The American Civil Liberties Union filed a
class-action lawsuit seeking to stop the government from deporting
more than 100 Iraqi nationals who were rounded up in raids last
weekend.
The lawsuit filed in federal court in Detroit against U.S.
Immigration and Customs Enforcement seeks a temporary stay of any
deportations, which the ACLU fears could begin. The ACLU also
requested a hearing about the matter.
The lawsuit claims it would be illegal to deport the detainees
without giving them a chance to prove they could face torture or
death if returned to Iraq.
"Not only is it immoral to send people to a country where they are
likely to be violently persecuted, it expressly violates United
States and international law and treaties," Kary Moss, executive
director for the ACLU of Michigan, said in a statement. "We are
hoping that the courts will recognize the extreme danger that
deportation to Iraq would pose for these individuals. Our
immigration policy shouldn't amount to a death sentence for
anyone."
The ACLU says most of the 114 Iraqis arrested in last weekend's
Detroit-area raids are Chaldean Christians, but that there are
also some Shiite Muslims and Christian converts. It says they all
fear violent retribution, if deported.
Many of the arrestees have been in the U.S. for decades and were
arrested for "minor offenses," according to the ACLU. Most have
been fully compliant with their conditions of supervision and have
had no further run-ins with the law, it says.
For example, plaintiff Jihan Asker, a 41-year-old Chaldean mother
of three who has spent much of her life near Warren since arriving
in the U.S. at age 5, was convicted on a misdemeanor fraud charge
in 2003 that was dismissed following probation, the lawsuit
states. Since then, she has complied fully with her order of
supervision and encountered no other legal troubles.
Asker is eligible to seek lawful, permanent U.S. residency under a
petition by a daughter who is a U.S. citizen, the ACLU contends.
ICE has said that all of those arrested had criminal convictions,
including for murder, rape, assault, burglary, weapons violations
and drug trafficking, and were ordered deported by an immigration
judge after "full and fair" proceedings. It has declined to
release the names of those it detained.
Most are being held at a detention facility in Youngstown, Ohio,
though some were taken to facilities in suburban Detroit and
southern Michigan.
Besides the 114 arrested in the Detroit area, 85 other Iraqi
nationals were arrested elsewhere in the country, according to
ICE. As of April 17, there were 1,444 Iraqi nationals with final
orders of removal from the U.S. Eight already have been removed to
Iraq.
An ICE spokesman said the agency doesn't comment on pending
litigation.
Six U.S. representatives from Michigan wrote to Department of
Homeland Security Secretary John Kelly requesting a copy of the
government's repatriation agreement with Iraq and for information
about any safety measures planned for the arrested Iraqi
nationals.
"Until we in Congress can review all aspects of the agreement
reached with Iraq, and the referenced safety measures, we urge you
to hold off removal of these individuals to Iraq," they wrote.
The Detroit area has one of the largest Chaldean communities in
the U.S. Longtime demographer Kurt Metzger said a community survey
estimated there were roughly 120,000 Chaldeans in and around
Detroit. [GN]
UNIVERSITY OF DENVER: Faces Pay Discrimination Lawsuit
------------------------------------------------------
Karen Sloan, writing for Law.com, reports that three women law
professors at the University of Denver have joined a pay
discrimination lawsuit filed last year by the Equal Employment
Opportunity Commission on behalf of a colleague, alleging that the
law school pays women faculty substantially less than men in the
same jobs.
Nancy Ehrenreich, Kris McDaniel-Miccio and Catherine Smith on June
16 intervened in the EEOC suit centered on the case of longtime
professor Lucy Marsh. That suit has garnered significant
attention within the legal academy.
The four women professors claim that the law school pays men
significantly more, and that their attempts to gain pay parity
went nowhere with former law dean Martin Katz. The school has
denied in court papers that any such pay disparity exists, and
said pay is based on performance.
"Despite their laudable performance in [teaching, scholarship and
public service], plaintiff-intervenors were and continue to be
paid less than the mean annual salary for male full law
professors," reads the complaint from the three new plaintiffs,
filed June 16 in the U.S. District Court for the District of
Colorado.
Charlotte Sweeny, the attorney representing the women professors,
did not respond to requests for comment on June 19, nor did a
university spokeswoman.
The EEOC sued the University of Denver in September 2016, after
Marsh contacted the agency to look into what she believed was a
widespread gender pay gap in the law school. Ms. Marsh filed a
complaint with the EEOC in 2013 after learning from Mr. Katz that
she was the lowest-paid full-time member of the faculty, despite
having worked at the school since 1976. In 2012, Mr. Katz
revealed that women of the faculty on average earned nearly
$16,000 less than their male colleagues.
The EEOC concluded that in 2015 the average salary for female
full-time law professors at Denver was $139,940, while men earned
an average $159,721 -- a difference of nearly $20,000 and a
"statistically significant amount," according to the initial suit.
No female law professors earned salaries that were greater than
the average among men, the EEOC found.
It identified nine female law professors who were "subject to a
sex-based pay disparity," including Ms. Marsh, Ms. Ehrenreich, Ms.
McDaniel-Miccio and Ms. Smith, according to their compliant.
The EEOC concluded that the school had violated the Equal Pay Act
and the parties sought mediation, but those talks broke down.
Attorneys representing women law professors said the school owed
them as much as $1.2 million in back wages. But the university
said at the time that an independent consultant concluded that
faculty pay is based on current rank, performance evaluations,
administrative roles and age when a faculty member's current rank
was attained. Any links between pay and gender were too weak to
draw conclusions, the consultant found.
With no resolution in sight, the EEOC sued. Ms. Marsh joined the
suit as a name plaintiff in January, now followed by three of her
female colleagues. Much of the new complaint is dedicated to
cataloging the achievements of the additional plaintiffs in an
apparent bid to refute any assertion that they are paid less
because of substandard performance.
Ms. Ehrenreich has taught at the Denver law school since 1989, yet
the new complaint alleges that several male professors hired after
her now earn upward of $40,000 more than she does.
Ms. McDaniel-Miccio joined the law faculty in 2002, and was told
by Katz in 2012 that her pay was "on target" based on a formula
weighing time since graduation and teaching experience, according
to the new complaint. Yet the EEOC included her among the
underpaid faculty it identified in 2015.
The law school hired Smith in 2004, and she was named associate
dean of institutional diversity and inclusiveness in 2010.
Ms. Smith learned in 2012 that her associate dean stipend was
$5,000 less than the one paid to the male associate dean of
scholarship, the complaint states. But Ms. Katz said he was
authorized only to offer a $7,500 one-time payment to Ms. Smith,
which was less than half the total pay discrepancy, according to
the complaint.
The plaintiffs are seeking back pay and benefits, punitive
damages, and front pay in the form of prospective salary
increases.
UTAH: Settles Offenders' Mental Health Care Class Action
--------------------------------------------------------
McKenzie Romero, writing for KSL.com, reports that The Disability
Law Center has reached a preliminary agreement resolving a class-
action lawsuit over lengthy wait times for mentally ill Utahns who
are charged with crimes and need treatment at the Utah State
Hospital for their cases to proceed.
In a joint press release, the nonprofit advocacy group and the
Utah Department of Human Services announced a joint motion to
settle the case, agreeing to terms that would create wait limits
for defendants needing mental health treatment and continuing
outreach efforts aimed at treating low-risk offenders in the
community.
Wait times for those who have been charged with crimes but are
found incompetent to face them in court have stretched to an
average of three to six months, leaving mentally ill men and women
warehoused in jails in the interim, according to reporting by KSL.
The waits were considerably longer than those in other Western
states.
The prolonged incarceration, typically in isolated or high-
security confinement, led to continued decline for inmates while
their families are plagued with uncertainty and worry, according
to the investigation.
Under the agreement, the state would be required to reduce wait
times for forensic treatment -- treatment for those found
incompetent to face the legal system -- down to just 60 days
within six months of the deal being signed by a judge, according
to Aaron Kinikini, legal director of the Disability Law Center.
After that, the wait time would need to come down to 30 days by
the year mark, Mr. Kinikini said, before hitting the goal wait
time of just 14 days within 18 months of the deal being made.
A federal judge is expected to decide within approximately 45 days
whether to accept the settlement. After that, the case would be
stayed for five years while changes agreed upon as part of the
deal are put in place, according to the release.
The Disability Law Center's class action lawsuit, filed in
September 2015, alleges that in light of extended wait times,
individuals needing treatment preparing them to proceed in their
cases were being held for unconstitutional lengths of time --
longer than the possible time they could be sentenced to if
convicted.
In a prepared statement, Mr. Kinikini, said the proposed
settlement would require the state to commit "substantial monies"
toward solutions to the wait list and improve its treatment system
for so-called forensic patients, those needing care before they
can proceed in court.
"The human stories behind this class-action lawsuit have been
tragic and disturbing," Mr. Kinikini said. "Due to a chronic lack
of funding in the Utah State Hospital system, people charged, but
not convicted of crimes, too ill to proceed to trial, waited for
months-on-end in our state's county jails after being court-
ordered into treatment to restore their competence."
Ann Silverberg Williamson, executive director of the Utah
Department of Human Services, emphasized in the release the
state's commitment to caring for those in the criminal justice
system who are dealing with mental illness and substance abuse
disorders.
The state is seeking to implement efficient and nationally
accepted solutions that incorporate support from family members,
neighbors, courts, law enforcement and treatment providers,
Williamson said.
"The complexity of solutions to overcome mental health suffering
cannot be overstated," Ms. Williamson said. "The greatest
help begins when these individuals are not stigmatized and receive
professional help through local services before escalating to
involvement in matters of personal safety and community safety."
Though in its early stages, Ms. Williamson noted that the
department's Outreach Program, which has been providing competency
treatment in jails or in the community rather than at the state
hospital since it was established in 2016, is already showing
promise.
According to the release, the program has already resolved more
than 90 cases at a cost of $16 per day, far less than $500 per day
for treatment at the Utah State Hospital.
Additionally, the state will press forward with plans for a
treatment effort within the Salt Lake County Jail. The
legislature has appropriated $3 million for the project. [GN]
VOYA FINANCIAL: Court Dismisses "Patrico" Class Suit
----------------------------------------------------
Judge Lorna G. Schofield of the U.S. District Court for the
Southern District of New York granted the Defendants' motion to
dismiss the case captioned LISA PATRICO, Plaintiff, v. VOYA
FINANCIAL, INC., et al., Defendants, No. 16 Civ. 7070 (LGS) (S.D.
N.Y.).
The Plaintiff brings this putative class action on behalf of all
participants and beneficiaries of the Nestle 401(k) Savings Plan
and All Other Similarly Situated Individual Account Plans against
Defendants Voya Financial; Voya Institutional Plan Services, LLC;
Voya Investment Management, LLC; and Voya Retirement Advisors, LLC
("VRA"). She claims that the Defendants breached their fiduciary
duties and engaged in self-interested transactions in violation of
the Employee Retirement Income Security Act ("ERISA") by charging
excessive fees for investment advisory services offered to 401(k)
plan participants. The Defendants moved to dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Judge Schofield stated, "Because the Defendants are not ERISA
fiduciaries with respect to the fees charged for the investment
advice service, they cannot be held liable under ERISA for breach
of fiduciary duty with respect to those fees. And because the
Complaint fails to allege that any ERISA fiduciary had actual or
constructive knowledge that the fees paid to VRA are excessive,
the Plaintiff's prohibited transaction claim is dismissed."
For these reasons, Judge Schofield granted the Defendants' motion
to dismiss. Their motion for oral argument is denied as moot.
Judge Schofield also denied as moot the Plaintiff's motion to
compel production of the Administrative Services Agreement.
The Plaintiff will file within 21 days any motion to replead,
together with a supporting memorandum of law, proposed First
Amended Complaint, and a redline of such complaint showing how it
differs from the Complaint dismissed. No pre-motion conference is
necessary. Should Plaintiff decline to file such motion, the case
will be closed. The Clerk of Court is respectfully directed to
close the motion at Docket No. 31.
A full-text copy of the Court's June 20, 2017 opinion and order is
available at https://goo.gl/JSLdLY from Leagle.com.
Lisa Patrico, Plaintiff, represented by Ellen T. Noteware --
enoteware@bm.net -- Berger & Montague, P.C..
Lisa Patrico, Plaintiff, represented by James A. Bloom, Schneider
Wallace Cottrell Konecky Wotkyns LLP, pro hac vice, Mark Thomas
Johnson, Schneider Wallace Cottrell Brayton Konecky LLP, Shanon
Jude Carson -- scarson@bm.net -- Berger & Montague, P.C., Todd S.
Collins -- tcollins@bm.net -- Berger & Montague, P.C., Todd
Michael Schneider -- tschneider@schneiderwallace.com -- Schneider
Wallace Cottrell Brayton Konecky LLP & John Joseph Nestico,
Schneider Wallace Cottrell Konecky Wotkyns LLC.
Voya Financial, Inc., Defendant, represented by Robert Wagner
Diubaldo -- rdiubaldo@carltonfields.com -- Carlton Fields Jorden
Burt, P.A., James F. Jorden -- jjorden@carltonfields.com --
Carlton Fields Jorden Burt, PA, Richard D. Euliss --
reuliss@carltonfields.com -- Carlton Fields Jorden Burt, P.A.,
Waldemar J. Pflepsen -- wpflepsen@carltonfields.com -- Carlton
Fields Jorden Burt, P.A., pro hac vice & William Glenn Merten --
gmerten@carltonfields.com -- Jorden Burt LLP, pro hac vice.
Voya Institutional Plan Services, LLC, Defendant, represented by
Robert Wagner Diubaldo, Carlton Fields Jorden Burt, P.A., James F.
Jorden, Carlton Fields Jorden Burt, PA, Richard D. Euliss, Carlton
Fields Jorden Burt, P.A., Waldemar J. Pflepsen, Carlton Fields
Jorden Burt, P.A., pro hac vice & William Glenn Merten, Jorden
Burt LLP, pro hac vice.
Voya Investments Management, LLC, Defendant, represented by Robert
Wagner Diubaldo, Carlton Fields Jorden Burt, P.A., James F.
Jorden, Carlton Fields Jorden Burt, PA, Richard D. Euliss, Carlton
Fields Jorden Burt, P.A., Waldemar J. Pflepsen, Carlton Fields
Jorden Burt, P.A., pro hac vice & William Glenn Merten, Jorden
Burt LLP, pro hac vice.
Voya Retirement Advisors, LLC, Defendant, represented by Robert
Wagner Diubaldo, Carlton Fields Jorden Burt, P.A., James F.
Jorden, Carlton Fields Jorden Burt, PA, Richard D. Euliss, Carlton
Fields Jorden Burt, P.A., Waldemar J. Pflepsen, Carlton Fields
Jorden Burt, P.A., pro hac vice & William Glenn Merten, Jorden
Burt LLP, pro hac vice.
WAL-MART STORES: Pontiac General Employees Suit Still Ongoing
-------------------------------------------------------------
Wal-Mart Stores, Inc. still defends itself against the securities
class action captioned City of Pontiac General Employees
Retirement System v. Wal-Mart Stores, Inc., USDC, Western Dist. of
AR, 5/7/12, according to the Company's Form 10-Q filed on June 2,
2017 with the U.S. Securities and Exchange Commission for the
quarterly period ended April 30, 2017.
The Company is a defendant in several lawsuits in which the
complaints closely track the allegations set forth in a news story
that appeared in The New York Times (the "Times") on April 21,
2012. One of these is a securities lawsuit that was filed on May
7, 2012, in the United States District Court for the Middle
District of Tennessee, and subsequently transferred to the Western
District of Arkansas, in which the plaintiff alleges various
violations of the U.S. Foreign Corrupt Practices Act (the "FCPA")
beginning in 2005, and asserts violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, as amended, relating
to certain prior disclosures of the Company. The plaintiff seeks
to represent a class of shareholders who purchased or acquired
stock of the Company between December 8, 2011, and April 20, 2012,
and seeks damages and other relief based on allegations that the
defendants' conduct affected the value of such stock.
On September 20, 2016, the court granted plaintiff's motion for
class certification. On October 6, 2016, the defendants filed a
petition to appeal the class certification ruling to the U.S.
Court of Appeals for the Eighth Circuit. On November 7, 2016, the
U.S. Court of Appeals for the Eighth Circuit denied the Company's
petition.
Wal-Mart Stores, Inc. operates retail stores in various formats
worldwide. It operates through three segments: Walmart U.S.,
Walmart International, and Sam's Club. The Company was founded in
1945 and is headquartered in Bentonville, Arkansas.
WELLS FARGO: Guarantees Sham Accounts Class Action Settlement
-------------------------------------------------------------
James Rufus Koren, writing for Los Angele Times, reports that
as part of a class-action settlement, Wells Fargo & Co. will
guarantee that customers harmed by the bank's practice of opening
unauthorized accounts will get back any fees they paid and be
fully compensated for damage done to their credit scores,
according to documents filed early on June 14.
That could mean the San Francisco bank will end up shelling out
substantially more than the $142 million it previously had agreed
to pay to settle the multiple lawsuits. A federal judge had said
he would not approve the deal without such a guarantee, prompting
Wells Fargo to accede to that and a handful of other changes the
judge demanded.
The guarantee marks the second big change in the deal and the
second time Wells Fargo has agreed to significantly sweeten the
settlement terms as it seeks to put the lawsuits and sham accounts
scandal behind it.
In March, the bank agreed to pay $110 million to settle claims
over unauthorized accounts dating back to 2009. It later boosted
that number to $142 million after an internal report on the bank's
practices found that unauthorized accounts may have been created
as early as 2002.
Now, the number could grow further, with the bank making an open-
ended commitment to pay more than $142 million if it turns out
that amount won't be enough to cover victims' out-of-pocket
losses. The bank had resisted making such a compensation
guarantee, with its attorney arguing at a hearing last month that
it could result in the bank's having to pay customers who never
suffered losses.
Still, the exact amount Wells Fargo will have to pay is not known
and likely won't be for months, with U.S. District Judge Vince
Chhabria noting at a hearing in May that the $142 million may
prove to be more than enough.
Jim Seitz, a Wells Fargo spokesman, said the bank does not expect
the payout to grow.
"While we believe $142 million will adequately compensate
customers, and there will be no need to add additional funds to
the settlement, this agreement reflects our commitment to make
things right for our customers," he said.
More than nine months after the accounts scandal became national
news, it remains unclear how many customers were harmed by the
bank or how much they lost.
Wells Fargo already has paid $3.2 million in refunds to holders of
about 130,000 accounts -- an average of about $25 per account --
but that covers only fees related to unauthorized accounts, not
out-of-pocket losses by customers whose credit was damaged and who
paid higher interest rates on loans or credit cards as a result.
Plaintiffs' attorneys estimated as many as 3.5 million sham
accounts were created, many more than the 2.1-million figure
reported by the bank and regulators last year. Many customers may
have had several unauthorized accounts opened in their names. The
attorneys also said individual customers' out-of-pocket losses
likely amounted to no more than $75, but that, too, is only an
estimate.
"We're working with incomplete information," Judge Chhabria said
at last month's hearing. "I think, because of that, stricter-
than-normal scrutiny is required by the court."
Stuart Rossman, director of litigation at the nonprofit National
Consumer Law Center, said the type of guarantee Wells Fargo has
agreed to is unusual, though not unheard of. In class-action
cases where the number of possible settlement participants or the
total amount of damages is not known, settlements often call for
all claimants to be paid a fraction of what they say they are
owed.
"Often in those cases, consumers are collecting pennies on the
dollar," he said. "What's unusual here is that it's 100 cents on
the dollar."
Judge Chhabria was particularly concerned about how the bank
planned to compensate customers whose credit may have been damaged
by any unauthorized credit card accounts.
In an order demanding the guarantee and other changes, Judge
Chhabria said the bank should pay more "if it becomes apparent
that [customers] suffered significantly greater injury than is
currently assumed."
Along with the guarantee, Wells Fargo and plaintiffs' attorneys
agreed to numerous other changes, including giving customers more
time to submit claims, notifying a broader swath of current and
former customers and giving Judge Chhabria additional time to
review the method being used to estimate how customers were harmed
by damaged credit scores.
The judge had said last month he would be inclined to approve the
deal if all of those changes were made. If he signs off on the
settlement, it would kick off a months-long process during which
current and former bank customers will be notified of the
settlement terms and be able to submit claims for compensation.
The payout by the bank would be the largest related to the
accounts scandal since Wells Fargo last year agreed to a $185-
million settlement with regulators, including the Los Angeles city
attorney's office.
Even if the class-action payments grow beyond $142 million, it
still would represent a relatively small sum for the massive bank.
Wells Fargo made a profit of $5.5 billion in this year's first
quarter.
The bank's practices were first uncovered by a 2013 Los Angeles
Times investigation that found workers opened the accounts to hit
unrealistic account-opening goals set by managers and executives.
[GN]
WELLS FARGO: Faces Class Action Over Changes to Mortgages
---------------------------------------------------------
Gretchen Morgens, writing for The New York Times, reports even as
Wells Fargo was reeling from a major scandal in its consumer bank
last year, officials in the company's mortgage business were
putting through unauthorized changes to home loans held by
customers in bankruptcy, a new class action and other lawsuits
contend.
The changes, which surprised the customers, typically lowered
their monthly loan payments, which would seem to benefit
borrowers, particularly those in bankruptcy. But deep in the
details was this fact: Wells Fargo's changes would extend the
terms of borrowers' loans by decades, meaning they would have
monthly payments for far longer and would ultimately owe the bank
much more.
Any change to a payment plan for a person in bankruptcy is subject
to approval by the court and the other parties involved. But Wells
Fargo put through big changes to the home loans without such
approval, according to the lawsuits.
The changes are part of a trial loan modification process from
Wells Fargo. But they put borrowers in bankruptcy at risk of
defaulting on the commitments they have made to the courts, and
could make them vulnerable to foreclosure in the future.
A spokesman for Wells Fargo, Tom Goyda, said the bank strongly
denied the claims made in the lawsuits and particularly disputed
how the complaints characterized the bank's actions. Wells Fargo
contends that the borrowers and the bankruptcy courts were
notified.
"Modifications help customers stay in their homes when they
encounter financial challenges," Mr. Goyda said, "and we have used
them to help more than one million families since the beginning of
2009."
According to court documents, Wells Fargo has been putting through
unrequested changes to borrowers' loans since 2015. During this
period, the bank was under attack for its practice of opening
unwanted bank and credit card accounts for customers to meet sales
quotas.
Outrage over that activity -- which the bank admitted in September
2016, when it was fined $185 million -- cost John G. Stumpf, its
former chief executive, his job and damaged the bank's reputation.
It is unclear how many unsolicited loan changes Wells Fargo has
put through nationwide, but seven cases describing the conduct
have recently arisen in Louisiana, New Jersey, North Carolina,
Pennsylvania and Texas. In the North Carolina court, Wells Fargo
produced records showing it had submitted changes on at least 25
borrowers' loans since 2015.
Bankruptcy judges in North Carolina and Pennsylvania have
admonished the bank over the practice, according to the class-
action lawsuit. One judge called the practice "beyond the pale of
due process."
The lawsuits contend that Wells Fargo puts through changes on
borrowers' loans using a routine form that typically records new
real estate taxes or homeowners' insurance costs that are folded
into monthly mortgage payments. Upon receiving these forms,
bankruptcy court workers usually put the changes into effect
without questioning them.
It is unclear why the bank would put through such changes. On one
hand, Wells Fargo stood to profit from the new loan terms it set
forth, and, under programs designed to encourage loan
modifications for troubled borrowers, the bank receives as much as
$1,600 from government programs for every such loan it adjusts,
the class-action lawsuit said. But submitting the changes without
approval violates bankruptcy rules and puts the bank at risk of
court sanctions and federal scrutiny. When a lawyer for a borrower
has questioned the changes, Wells Fargo has reversed them.
Abelardo Limon Jr., a lawyer in Brownsville, Tex., who represents
some of the plaintiffs, said he first thought Wells Fargo had made
a clerical error. Then he saw another case.
"When I realized it was a pattern of filing false documents with
the federal court, that was appalling to me," Mr. Limon said in an
interview. The unauthorized loan modifications "really cause
havoc to a debtor's reorganization," he said.
This is not the first time Wells Fargo has been accused of
wrongdoing related to payment change notices on mortgages it filed
with the bankruptcy courts. Under a settlement with the Justice
Department in November 2015, the bank agreed to pay $81.6 million
to borrowers in bankruptcy whom it had failed to notify on time
when their monthly payments shifted to reflect different real
estate taxes or insurance costs.
That settlement -- in which the bank also agreed to change its
internal procedures to prevent future violations -- affected
68,000 homeowners.
Borrowers having financial difficulties often file for personal
bankruptcy to save their homes, working out payment plans with
creditors and the courts to bring their loans current in a set
period. If the borrowers meet their obligations over that time,
they emerge from bankruptcy with clean slates and their homes
intact.
Changing these payment plans without the approval of the judge and
other parties can imperil borrowers' standing with the bankruptcy
courts.
In the class-action lawsuit, the lead plaintiffs are a couple in
North Carolina who say that Wells Fargo submitted three changes to
their payment plan in 2016 without approval. The first time,
Wells Fargo put through the changes without alerting them,
according to the couple, Christopher Dee Cotton and Allison
Hedrick Cotton.
The Cottons' monthly payments declined with every change, dropping
to $1,251 from $1,404.
Buried deep in the documents Wells Fargo filed -- but did not get
approved by the borrowers, their lawyers or the court -- was the
news that the bank would extend the Cottons' loan to 40 years,
increasing the amount of interest they would have to pay. Before
the changes, the Cottons owed roughly $145,000 on their mortgage
and were on schedule to pay off the loan in 14 years. Over that
period, their interest would total $55,593.
Under the new loan terms, the Cottons would have incurred $85,000
in interest costs over the additional 26 years, on top of the
$55,593 they would have paid under the existing loan, their court
filing shows.
Theodore O. Bartholow III, a lawyer for the Cottons, said Wells
Fargo's actions contravened the intent of the bankruptcy system.
"When it goes the right way, the debtor and mortgage company agree
to do a modification, go to court and say, 'Hey judge, modify or
change the disbursement on my mortgage.'"
Instead, Wells Fargo did "a total end run" around the process,
said Mr. Bartholow, of Kellett & Bartholow in Dallas. The Cottons
declined to comment.
Mr. Goyda, the Wells Fargo spokesman, denied that the bank had not
notified borrowers. "The terms of these modification offers were
clearly outlined in letters sent to the customers and/or to their
attorneys, and as part of the Payment Change Notices sent to the
bankruptcy courts," he wrote by email.
Mr. Goyda said that "such notices are not part of the loan
modification package, or part of the documentation required for
the customer to accept or decline modification offers." He added,
"We do not finalize a modification without receiving signed
documents from the customer and, where required, approval from the
bankruptcy court."
Mr. Limon and other lawyers say that while the bank may wait for
approval to complete a modification, it has nevertheless put
through unapproved changes to borrowers' payment plans. According
to a complaint he filed on behalf of clients in Texas, instead of
going through the proper channels to try to modify a loan, Wells
Fargo filed the routine payment change notification.
The clients also accuse the bank of making false claims by
contending that the borrowers had requested or approved the loan
modifications. In many cases, the trustees who handle payments on
behalf of consumers in bankruptcy would accept the changes Wells
Fargo had submitted on the assumption they had been properly
approved.
Mr. Limon represents Ignacio and Gabriela Perez of Brownsville,
who say Wells Fargo put through an improper change to their
payment plan last year.
After experiencing financial difficulties, Mr. and Mrs. Perez
filed for Chapter 13 bankruptcy protection in August 2016. They
owed about $54,000 on their home at the time, and had fallen
behind on the mortgage by $2,177. The value of their home was
$95,317, records show, so they had substantial equity.
In September, the Perezes filed a payment plan with the bankruptcy
court in Brownsville; the trustee overseeing the process ordered a
confirmation hearing on the plan for early November.
But in a letter to the Perezes dated Oct. 10, Wells Fargo said
their loan was "seriously delinquent" and offered them a trial
loan modification. "Time is of the essence," the letter stated.
"Act now to avoid foreclosure."
Because they were going through bankruptcy, the Perezes were not
under any threat of foreclosure. Mr. Perez said in an interview
that the letter worried him, so he asked his lawyer to
investigate.
Then, on Oct. 28, 2016, DeMarcus Jones, identified in court papers
as "VP Loan Documentation" at Wells Fargo, filed a notice of
mortgage payment change with the bankruptcy court. It said the
Perezes' new monthly payment would be $663.15, down from
$1,019.03. In the notice, the bank explained that the reduction
was a "Payment change resulting from an approved trial
modification agreement."
The changes had not been approved by the Perezes, their lawyer or
the bankruptcy court, their complaint said.
Although the monthly payment Wells Fargo had listed for the
Perezes was lower, there was a catch -- the same one that showed
up in the Cottons' loan. The Perezes had been scheduled to pay
off their mortgage in nine years, but the loan terms from Wells
Fargo extended it to 40 years. The Perezes would owe the bank an
extra $40,000 in interest, the legal filing said.
"I thought that I was totally crazy, or they were totally crazy,"
Mr. Perez said. "I am 58, in what mind could they think I would
agree to extend my mortgage 40 years more? I don't understand much
maybe, but it doesn't sound legal to me."
Mr. Limon quickly fought the changes.
If he had not, Mr. and Mrs. Perez could have faced further
complications. The new Wells Fargo payments were so much less
than the payments the Perezes had submitted to the bankruptcy
court that if the trustee had started making the new payments with
no court approval, the Perezes would have emerged at the end of
their bankruptcy plan owing the difference between the amounts.
The Perezes would be unwittingly in arrears, and the bank
could begin foreclosure proceedings if they were unable to make up
the difference. [GN]
WEST AMERICAN: Insurers Sue Over False Ad Suit Coverage
-------------------------------------------------------
Cara Salvatore and Shayna Posses, writing for Law360, report that
West American Insurance Co. and two other insurers sued Nutiva
Inc. in California federal court on June 12 over coverage for a
putative class action accusing the coconut oil maker of falsely
promoting its products as healthful.
West American, Peerless Insurance Co. and American Fire and
Casualty Co. said their policies do not provide coverage for the
claims in the proposed class action. In the underlying suit,
Preston Jones alleges that Nutiva touts several coconut oil
products as healthful despite their high total and saturated fat
content.
"Plaintiffs contend that they have no duty to defend Nutiva in the
underlying action under their respective [commercial general
liability] policies or umbrella policies," the insurers said in
their complaint. "Despite new allegations of 'increased risk' of
'morbidity' and 'impaired arterial endothelial function,' the
underlying [first amended complaint] seeks the same economic
relief prayed for in the original underlying complaint, namely
injunctive relief, restitution, 'actual damages in the amount of
the total retail sales price of the Nutiva coconut oils sold
throughout the class period to all class members,' 'punitive
damages,' attorneys' fees and costs."
According to the insurers, their policies have specific coverage
for personal and advertising injury and bodily injury, and the
Jones suit does not concern those things.
Peerless' commercial general liability policies were in effect
from March 2011 to September 2015 and had a $2 million general
aggregate limit. West American's CGL policies were and are in
effect from September 2015 to July 2017, with a $2 million general
aggregate limit. American Fire wrote umbrella policies for Nutiva
that were and are in effect from July 2014 to July 2017.
Peerless and West American initially defended Nutiva in the
underlying suit, but under a reservation of rights in which
American Fire joined, the insurers said.
The three firms now want a declaratory judgment as to whether they
have a duty to defend. Peerless and West American also want
reimbursement of the money they've already spent defending Nutiva.
In the underlying complaint, Jones said he bought Nutiva's Organic
Virgin Coconut Oil based on representations that it had
significantly less cholesterol than butter and is a nutritious
baking substitute. But as it turns out, the amount of total and
saturated fat in Nutiva's coconut oils makes them inherently
unhealthful and far less healthful than butter, Jones said.
In December, Nutiva asked a California federal judge to partially
dismiss the class action, saying the plaintiffs hadn't even bought
one of the products at issue, Nutiva Refined Coconut Oil. The
amended complaint also doesn't state a claim with regard to what
reasonable consumers would think, Nutiva said.
It is unclear whether the underlying suit is actively continuing,
as Jones in May asked the court to award him attorneys' fees and
costs based on Nutiva's recent label changes, which he said were
spurred by his lawsuit. U.S. District Judge Haywood S Gilliam Jr.
has not yet ruled on the motion to dismiss, though he took the
briefings under submission in March.
The insurers are represented by Frank Falzetta --
ffalzetta@sheppardmullin.com -- Brenda Bissett --
bbissett@sheppardmullin.com -- and Jennifer Hoffman --
jhoffman@sheppardmullin.com -- of Sheppard Mullin Richter &
Hampton LLP.
Counsel information for Nutiva was not immediately available on
June 12.
The case is West American Insurance Co. et al. v. Nutiva Inc.,
case number 3:17-cv-03374, in the U.S. District Court for the
Northern District of California. [GN]
WESTERN HOCKEY: Alberta Judge Certifies Class Action Lawsuit
------------------------------------------------------------
Sports Net reports that an Alberta judge has ruled that a class-
action lawsuit against the Western Hockey League may proceed,
making it the second such case against a major junior league in
Canada.
The suit contends that WHL players have been paid less than the
minimum wage required by law in their regions and asks for back
wages, overtime and vacation pay.
Alberta Justice R.J. Hall granted certification to the lawsuit
with some conditions. He ruled players with the WHL's five U.S.
teams -- four in Washington and one in Oregon -- were exempt from
the class action because they are out of the court's jurisdiction.
Lukas Walter, who played two seasons with the Tri-City Americans
based in Kennewick, Wash., was recognized as the representative
plaintiff.
The suit argues the standard agreements players sign pay them as
little as $35 per week for between 40 to 65 hours of work. The
WHL's position is the players are "amateur student-athletes" and
that it cannot afford to pay the players minimum wage on top of
the benefits they receive, which include post-secondary
scholarships.
The allegations contained in the suit have not been proven in
court.
The lawsuit parallels one brought against the Ontario Hockey
League that got the green light from the Ontario Supreme Court on
April 27.
Sam Berg, a former Niagara IceDogs forward, and Daniel Pachis, a
former member of the Oshawa Generals, were recognized as the
representative plaintiffs in that case.
A similar suit against the Quebec Major Junior Hockey League is
still pending, with Walter, who played one season with the Saint
John Sea Dogs, also acting as the representative plaintiff.
The three major junior hockey leagues, featuring a combined 60
teams of players between the ages of 16 and 20, fall under the
umbrella of the Canadian Hockey League.
"This was a procedural decision only and makes no determination
regarding the merits of the claim and, in particular, the status
of WHL players," said WHL commissioner Ron Robson in a statement.
"The claim fundamentally misunderstands the nature of amateur
sport, including major junior hockey. We believe players are not
employees but amateur athletes, and we believe our case is
strong."
The WHL maintains that their position has been endorsed by
governments in the majority of jurisdictions where its teams are
located.
"The provinces of Saskatchewan and British Columbia along with the
State of Washington have adopted exemptions to their employment
standards acts clarifying that WHL players are amateur athletes,"
said Robson. "The WHL expects all other provincial and state
jurisdictions will also pass similar exemptions in the near
future."
Both the OHL and WHL claim that several of their teams would fold
if they were forced to pay their players minimum wage. [GN]
YEXT INC: Settlement of Tropical Sails Suit Reached
---------------------------------------------------
Yext, Inc. has entered into a settlement agreement pursuant to
which the case captioned Tropical Sails Corp. v. Yext, Inc. was
dismissed with prejudice, according to Company's Form 10-Q filed
on June 2, 2017 with the U.S. Securities and Exchange Commission
for the quarterly period ended April 30, 2017.
The Company was a defendant in a case pending in the United States
District Court for the Southern District of New York, captioned
Tropical Sails Corp. v. Yext, Inc., civil action no. 14-cv-7582.
The plaintiffs alleged various violations of New York law related
to certain of the Company's sales practices.
In May 2015, the Court dismissed two of the four counts alleged by
plaintiffs.
In March 2016, the plaintiffs filed a Motion for Class
Certification, and the Company filed a Motion for Summary Judgment
as to the remaining counts. In March 2017, the Court denied the
plaintiffs' Motion for Class Certification and the Company's
Motion for Summary Judgment.
In April 2017, the Company entered into a settlement agreement
pursuant to which the case was dismissed with prejudice.
Yext, Inc. provides a knowledge engine platform that lets
businesses manage their digital knowledge in the cloud in North
America and Europe. The Company serves healthcare and
pharmaceuticals, retail, financial services, manufacturing, and
technology industries. It was founded in 2006 and is based in New
York, New York.
ZENEFITS: Pays $3.4 Million to Former Misclassified Employees
-------------------------------------------------------------
Cheryl Miller, writing for The Recorder, reports that human
resources startup Zenefits will pay $3.4 million to 743 current
and former employees the company misclassified as exempt from
overtime and minimum wage rules, the U.S. Department of Labor said
on June 20.
An investigation by the Labor Department's Wage and Hour Division
found Zenefits incorrectly paid account executives and sales
representatives a flat salary. The employees worked in San
Francisco and two now-shuttered offices in Arizona.
Zenefits also entered into an "enhanced compliance agreement" with
the labor department, which includes monitoring to avoid future
misclassification violations. A copy of the document wasn't
immediately disclosed.
"This case allows us to level the playing field for all of the
employers who play by the rules," said Ruben Rosalez, the Wage and
Hour Division's regional administrator in San Francisco. "We are
dedicated to protecting both workers and employers."
Jessica Hoffman, vice president for communications at Zenefits,
said in an email the company, which creates software that manages
businesses' payrolls, insurance offerings and other benefits, is
"happy to have this issue behind us."
"We are pleased that after the Department of Labor's review
regarding classification of two jobs at Zenefits, there were no
penalties, fines or damages," she said.
Allegations of missed payments and worker misclassification at
Zenefits go back to 2015, when the company offered former
employees payouts of approximately $5,000 if they gave up their
rights to file claims over unpaid time-off and overtime, The Wall
Street Journal reported.
In November, Zenefits agreed to pay up to $7 million to settle
claims by California regulators that the company had sold
insurance policies without obtaining the necessary licenses for
their employees first. Two months ago, the state of New York
fined Zenefits $1.2 million for allowing unlicensed insurance
brokers to sell policies.
The company in February announced that it had laid off about 45
percent of its workforce in an effort to cut costs.
* Big-Business Wants Ban on Employee Class Actions Upheld
---------------------------------------------------------
Marcia Coyle, writing for The National Law Journal, reports that
big-business advocates are lining up with the Trump
administration's new position in the U.S. Supreme Court that
workplace arbitration agreements banning class actions do not
violate federal labor law.
The organizations, including the U.S. Chamber of Commerce and the
Retail Litigation Center, submitted friend-of-the-court briefs
after acting Solicitor General Jeffrey Wall notified the court on
June 16 that President Donald Trump's Justice Department was
taking a different position than the Obama administration.
The justices next term will hear arguments in a trio of disputes
that will be among the most closely watched business cases. More
than 70 cases, representing major U.S. companies, were filed in
the federal appeals courts. Appeals courts were divided in their
rulings.
The three cases in the Supreme Court are: National Labor Relations
Board v. Murphy Oil USA (from the U.S. Court of Appeals for the
Fifth Circuit); Epic Systems v. Lewis (Seventh Circuit), and Ernst
& Young v. Morris (Ninth Circuit). The high court will decide
whether arbitration agreements are enforceable under the Federal
Arbitration Act or whether they violate the National Labor
Relations Act.
Most of the business groups filing amicus briefs are represented
by veteran Supreme Court advocates. They include: Jones Day's
Beth Heifetz, Esq. -- bheifetz@jonesday.com -- for The Employers
Group; Goodwin Procter's William Jay for The Business Roundtable;
Mayer Brown's Andrew Pincus for the U.S. Chamber of Commerce;
Jenner & Block's Adam Unikowsky, Esq. -- aunikowsky@jenner.com --
for the Retail Litigation Center; and the Washington Legal
Foundation's Richard Samp.
In the U.S. Chamber's brief, Mr. Pincus, among other arguments,
contends the justices have "made clear" that a statute must
expressly mention arbitration in order to displace the Federal
Arbitration Act. "The NLRA says nothing about arbitration.
Indeed, Section 7 does not mention class actions or joint
litigation -- and its general reference to 'other concerted
activities' is at the very most ambiguous about whether such
activities are protected, which is insufficient to overcome the
FAA," Mr. Pincus wrote in the brief.
Mr. Jay, in his brief for The Business Roundtable, said a decision
that says class action waivers violate the labor law "would force
employers to undergo 'arbitration' that is bereft of the benefits
of arbitration, shorn of the efficiency and cost savings that make
arbitration favored in the first place. Nothing in the collective
bargaining provisions of the NLRA compels such a result."
Friend-of-the-court briefs supporting employees in the three cases
are not yet due.
The question before the justices arose from a 2012 ruling by the
NLRB in D.R. Horton. That decision said agreements requiring
employees to use individual arbitration for all work-related
disputes interfered with employees' right to engage in "other
concerted activities," including class and collective actions. The
board said that when such an agreement violates the NLRA, the FAA
does not require its enforcement.
Last fall, Deputy Solicitor Edwin Kneedler filed a petition in the
Supreme Court on behalf of the NLRB, which had lost in the Fifth
Circuit. "The board, which is charged with enforcing the NLRA,
has reasonably concluded that such agreements are unlawful under
that act, because they would deprive employees of their statutory
right to engage in 'concerted activities' in pursuit of their
'mutual aid or protection,'" Mr. Kneedler wrote.
The Trump administration's amicus brief this month announced the
government's changed position. Mr. Wall, the acting solicitor,
told the high court: "We do not believe that the board in its
prior unfair-labor-practice proceedings, or the government's
certiorari petition in Murphy Oil, gave adequate weight to the
congressional policy favoring enforcement of arbitration
agreements that is reflected in the FAA."
The NLRB is likely now to look in-house for counsel to defend its
position unless the board's composition changes and it repudiates
that position between now and the Aug. 9 deadline for filing its
brief on the merits.
* Class Action Waiver Battle Kicks Off at Supreme Court
-------------------------------------------------------
David Pryzbylski, Esq., of Barnes & Thornburg LLP, in an article
for Lexology, wrote that the class action waiver battle between
employers and the National Labor Relations Board (NLRB) has been
brewing for years. It's finally coming to a head, as the U.S.
Supreme Court agreed to resolve the dispute earlier this year and
a group of employers just filed their opening briefs in the
matter.
Class action waivers are a tool utilized by companies to blunt
costly and time-intensive class or collective claims brought by a
large group of individuals. The waivers usually are included in
arbitration agreements in a variety of contexts. For example, some
organizations have mandatory arbitration agreements for consumers
that require customers to resolve disputes via arbitration rather
than in court and further mandate that claims be brought on an
individual rather than class basis.
In the employment setting, some companies require employees to
sign compulsory arbitration pacts that similarly require any
employment-related claims to be adjudicated in arbitration and
preclude class or collective claims. While the Supreme Court
previously has upheld class action waivers in the consumer
context, the NLRB has held such provisions are unlawful as they
pertain to employment claims because, in the agency's view, the
potential formation of class actions contesting alleged unlawful
employment practices is "group activity" protected by the National
Labor Relations Act (NLRA).
The issue has come up in various federal appellate courts. The
U.S. Courts of Appeal for the Sixth, Seventh, and Ninth Circuits
have agreed with the NLRB's stance that such clauses are invalid
under the NLRA, but the Fifth and Eighth Circuits have rejected
the NLRB's arguments on grounds that the clauses are enforceable
under the Federal Arbitration Act (FAA). Given the split in
appellate authority, employers utilizing or considering these
mechanisms have been operating in an environment of uncertainty.
Three employers now have filed their opening briefs with the
Supreme Court arguing that the NLRB's position on class action
waivers is wrong in light of the FAA. We should know by the end of
the year whether employers may lawfully utilize class action
waivers in the employment context. To the extent the Supreme Court
authorizes the use of such clauses by companies, more employers
should consider them because they can be invaluable for staving
off costly class and/or collective actions. Thankfully, the much
needed clarity on this front is coming soon. [GN]
* Court Approves $6.255MM Settlement in Wage-and-Hour Suit
----------------------------------------------------------
Hall Render Killian Heath & Lyman PC, in an article for Lexology,
reports that a federal district court in California recently gave
preliminary approval to a $6.255 million settlement in a class and
collective action wage and hour lawsuit against a California-based
medical group. The proposed settlement class includes more than
1,300 registered nurses who provided advice and education to
patients of the medical group through three call centers.
The Claims
The plaintiff nurses claimed they did not receive pay for time
spent opening and closing software applications that were
necessary to performing their job duties. Specifically, their
complaint alleged the computer start up process took 4 to 10
minutes daily (or as much as 30 minutes if technical issues
interfered); however, they were not logged in for timekeeping
purposes until the various programs were actually running. In
addition, they alleged that the shut down process took 4 or 5
minutes daily, but they were not allowed to begin the process
earlier than 3 minutes before the end of each shift (resulting in
1 to 2 minutes of additional unpaid time per shift). The
plaintiffs also claimed that although the medical group
automatically deducted 30 minutes of time from their shifts for
unpaid meal breaks, the nurses were not "completely relieved" from
their duties during those breaks.
As a result of their "off-the-clock" work, the plaintiff nurses
claimed both that they did not receive overtime to which they were
entitled under the Fair Labor Standards Act and that unpaid wages
and penalties were owed under the California Labor Code.
A Quick Settlement
After a few depositions and other discovery, the court granted
conditional certification of the class in February 2017, which
prompted settlement discussions. According to forensic
accountants engaged by the plaintiffs, the medical group's
potential exposure for damages and penalties (mostly the latter)
ranged between $18,000,000 and $20,000,000. In their motion
seeking approval of the settlement, the plaintiffs stated that the
proposed $6.255 million settlement, approximately one-third of the
medical group's potential exposure, represented "a reasonable
compromise."
The settlement has only preliminary approval. Before it becomes
final, notice must be delivered to the class members, a hearing on
objections must be held and the court must give final approval.
Practical Takeaways
As this proposed settlement shows, off-the-clock work represents a
major area of potential legal liability for health care and other
employers. Sometimes, employers' established practices, which
were not intended to deprive employees of any pay at all, can
cause very unintended consequences. A wage and hour audit may
help to flush out such legal issues and prevent or at least
mitigate risks. [GN]
* Slovenian Government Adopts Class Action Bill
-----------------------------------------------
Sta reports that the Slovenian government adopted on June 14 a
bill that will make it possible to file class action lawsuits in
the country. Justice Minister Goran Klemencic said the aim was to
make it easier for people to seek damages in mass damage events.
[GN]
* Wolf Haldenstein Attorney Comments on Pending HR985 Bill
----------------------------------------------------------
Fred Isquith, Esq. -- Isquith@whafh.com -- of Wolf Haldenstein
Adler Freeman & Herz LLP, in an article for Law360, reports that
pending before the Senate Judiciary Committee is proposed
legislation passed by the House of Representatives (HR985). That
bill is the latest effort to limit or thwart substantive rights --
such as in civil rights, the wage and hours laws; and economic
rights -- without seeming to touch them.
Mr. Isquith's first comments for Law360 ("Defective Process
Cripples Class Action Proposal," April 7, 2017) concerned the most
serious constitutional infirmities of the proposed legislation.
Among those was that Congress would completely bypass the U.S.
Supreme Court and Article III constitutional restrictions as well
as the structured balance and separation of power embedded within
the U.S. Constitution. The bill would impose upon the courts of
the United States procedures for their internal operations and the
courts' established Due Process mechanism which those courts have
developed for civil cases and controversies within their subject
matter jurisdiction.
In this commentary, I turn to aspects of the proposed legislation
that seeks to overturn legislative and common law substantive
rights (both Senate and Federal) without seeming radically to
change United States public policy. These substantive rights
include civil rights for which the modern class action rule was
written. It would make economically impractical the enforcement of
laws barring discrimination on perceived race, sexuality, national
origin, disabilities and economic rights arising from the fair
competition; laws dealing with access to health care and drugs,
and laws dealing with finance, consumer protection and wage and
hours, among others.
The U.S. House of Representatives proposed legislation would
constrict class actions to choke them off. The legislation, in
sum, proposes a new Rule 23 which renders class actions often
impractical. It would extend the period of resolution of those
lawsuits beyond five years to nearly a decade. Few law firms will
wish to engage in pursuing claims made so complex that the
financial outlays to prosecute could not be justified. Only the
most obvious of cases will be taken where liability is nearly
certain and damages large. The Fairness in Class Action Litigation
Act of 2017 is anything, but fair.
One of the most nefarious of the proposed changes to Rule 23,
would bar class actions unless the plaintiff "demonstrates that
each proposed class member suffered the same type and scope of
injury as the named class representative or representatives."
Exactly what is meant by this proposed change or how it is to be
measured has eluded most lawyers. To the extent it is intended to
mean that it must be shown at the motion stage and before claims
are submitted from absent class members that each absent class
member of the proposed class has suffered the identical ("same")
injury with the same damages (at least per transaction), it is a
standard impractical to satisfy.
Similar proposals have been urged upon courts and been rejected.
The reason is that any reasonably defined class is certain to
contain (upon claims examination), members who were not injured by
the wrongful act, or whose damages will vary somewhat from others
-- but can be calculated through the facts found by the jury or
otherwise dealt with through an administrative process or other
post-liability determination process.
The requirement that proposes a class lack a single unharmed
member might require discovery of every class member to "prove"
the negative. Discovery of absent class members would be
extraordinarily expensive and suppress class participation.
Damages to be paid would also be reduced, assuming that with
elimination of absent class members who refuse to participate in
discovery, a claim could then be certified.
The American Bar Association (on March 6, 2017) stated: "This
requirement places a nearly insurmountable burden for people who
have suffered personal injury or economic loss at the hands of
large institutions with vast resources, effectively barring them
from bringing class actions."
Similarly, the bill would require at class certification stage the
plaintiff to demonstrate that "there is a reliable and
administratively feasible mechanism" for the court to determine if
an individual is a class member and the funds distribution to a
substantive majority of class members. This is no more than a
surrender to the highly criticized and mostly court-rejected
"ascertainability" requirement. Professor John Coffee of Columbia
University commented that the proposal would make class action
certifications "generally impossible" in consumer class actions
involving relatively "small 'negative values' claims."
In addition to barring a class representative for being a relative
or employee of class counsel, the proposed legislation provides a
new pleading requirement: disclosing:
(a) REQUIRED DISCLOSURES. -- In a class action complaint, class
counsel shall state whether any proposed class representative or
named plaintiff in the complaint is a relative of, is a present or
former employee of, is a present or former client of (other than
with respect to the class action), or has any contractual
relationship with (other than with respect to the class action),
or has any contractual relationship with (other than with respect
to the class action) class counsel. In addition, the complaint
shall describe the circumstances under which each class
representative or named plaintiff agreed to be included in the
complaint and shall identify any other class action in which any
proposed class representative or named plaintiff has a similar
role.
Exactly how or what the legislation seeks to accomplish with these
pleading requirements, irrelevant to stating of a claim for relief
or otherwise satisfying Rule 23 requirements, is somewhat
mysterious. It only seems to seek the answer to the question:
"Where, oh lawyer, did you get your client?" If, however, this
information is of such urgent national importance, it is even more
so on the defense side where corporate boards owe fiduciary duties
to the corporation and shareholders to limit expenditure of
corporate assets -- the "old boy network" is notorious. In short,
if the question is of something more than ideal curiosity, it is
more important where actual money is changing hands -- class
lawyers having fees paid typically only from funds created and as
approached by the court.
A likely imbalance of data collection, concerning the costs of
litigation, requires plaintiffs only to report on third-party
funding. More: The Federal Judicial Center is required to collect
and report on the use of all funds paid by a defendant pursuant to
the settlement agreement. If the total costs of class actions are
of national interest, crucial data should be collected from the
defense side whose costs are said to be more than those of the
plaintiffs: costs of attorneys, experts, accountants, consultants,
electronic document hosting and the like. This data for
plaintiffs is currently reported to the court by class counsel.
Additionally, the proposed legislation would prohibit the courts
from certifying common issues for a class determination such as
questions going to liability.
In so doing, the proposed act would strip a tool of efficiency
from the judiciary. Courts currently may decide to certify issues
common to a large number of persons, leaving individual damages
for the other proceedings.
The reason is clear -- to eliminate the res judicata and
collateral estoppel impact on judgments by the decision on issues
common to class. In short, the bill provides another means for
defendants to avoid liability determinations where damage
calculations may differ.
Provisions as to payment of expense and fees are also intended to
discourage law firms from prosecuting claims by class actions.
For example, where cases result in a favorable judgment or
settlement, payment of attorneys' fees must wait until the
completion of the claim's administration. Attorneys' fees would
not be dependent on the total settlement fund achieved. Instead,
fees would be measured on the actual amounts paid out to class
members regardless of amounts achieved in settlements. Settlements
would merely be a ceiling for payouts. For noncash results, the
fee attributable to equitable relief "shall be limited to a
reasonable percentage of the value of the equitable relief" --
presumably after further proceedings about that value, regardless
of what the parties may stipulate.
In short, payment policy will be most radically changed from
present practice.
Such a change provides further incentives for those benefiting
from delay of litigation -- claims by class members diminish over
time as people move, lose records, die, lose interest, etc.
Consistent with this incentive-constricting approach, the proposed
bill builds years of delay into all class actions: "All discovery
and other proceedings shall be stayed during the pendency of any
motion to transfer, motion to dismiss, motion to strike class
allegations, or other motion to dispose of the class allegations,"
unless the court allows particular discovery necessary to preserve
evidence or prevent undue prejudice.
Appeals shall be permitted from any class certification order.
The goal of these proposals seems evident to allow lawmakers to
make radical changes in public policy -- supporting the laws
against racial discrimination or discrimination based on gender,
or for consumer rights as examples -- while voting to make it
economically impracticable to enforce those rights.
It is to be hoped that the United States Senate demonstrates
common sense.
Fred Taylor Isquith is a senior partner in the New York office of
Wolf Haldenstein Adler Freeman & Herz LLP.
The opinions expressed are those of the author(s) and do not
necessarily reflect the views of the firm, its clients, or
Portfolio Media Inc., or any of its or their respective
affiliates. This article is for general information purposes and
is not intended to be and should not be taken as legal advice.
[GN]
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