/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170724.mbx C L A S S A C T I O N R E P O R T E R Monday, July 24, 2017, Vol. 19, No. 144 Headlines AAC HOLDINGS: Court Certifies Class in "Kasper" Securities Suit AEROTEK INC: Magistrate Recommends Approval of $15MM Class Deal ALABAMA: Court Denies Bid to Exclude Experts in Inmates' Suit ALBANY MOLECULAR: Witmer Seeks to Enjoin Acquisition by Carlyle ALLSTATE INSURANCE: Bid for Interlocutory Appeal OK'd in "Sayles" ALLTRAN FINANCIAL: Placeholder Bid for Class Certification Filed AMERICAN HOTEL: Court Denied E&G's Bid for Class Certification AMETEK INC: Objections to Lone Pine Submission in "Porter" Denied AVEDA TRANSPORTATION: Court Okays FLSA Settlement in "Waltz" Suit BANKRUPTCY MANAGEMENT: Faces McGarry Suit over Chapter 7 Fees BAYER CORP: Bid to Dismiss "Jordan" Suit Partly Granted BJ'S WHOLESALE: Connecticut Narrows Claims in "O'Reilly" BRISTOL-MEYERS: Michigan Court Dismisses TCPA Suit CALIFORNIA: Sued Over Medicaid "Spousal Impoverishment" Rule CALIFORNIA SUPPLY: Fails to Pay OT and Minimum Wages, Kuhia Says CAPITAL MANAGEMENT: Placeholder Bid for Class Certification Filed CARRINGTON MORTGAGE: Bid for Partial Judgment in "Kautsman" OK'd CASSIDY'S POLO: Exotic Dancers' Wage Class Action Pending CENTRAL CREDIT: Placeholder Bid for Class Certification Filed CENTURYLINK INC: Sued Over Unauthorized Charges in Arizona CHADBOURNE & PARKE: Norton Ross Added to Gender Bias Suit CHARTER COMMUNICATIONS: Court Narrows Claims in "Michael" CIRRUS CONSULTING: Court Denies Bid to Dismiss "Zauderer" COLLECTO INC: Rivera Files Placeholder Class Certification Bid COLTON, CA: Settles False Arrest Suit for $150,000 CONVERGENT OUTSOURCING: Texas Stays "Alexander" Suit COPLEY PRESS: Court to Redetermine Class Award in "Espejo" Suit CRESTWOOD MIDSTREAM: 5th Cir. Dismisses Appeal in "Farber" DAVE BERRY: "Flores" Suit Seeks Unpaid Wages under Labor Code EL BESO MEXICAN: "Esteves" Suit Seeks to Certify 3 Classes EFFEX CAPITAL: Requests Extension of Time to Respond to Complaint EXTRA SPACE: Court Gives Final Approval of "Gomes" Settlement FACEBOOK INC: Court Narrows Claims in Internet Tracking Suit FINANCIAL RECOVERY: Summary Judgment in "Jewsevskyj" Affirmed FIRST STUDENT: Court Denies Class Certification in "Humes" FUQI INTERNATIONAL: December 18 Settlement Opt-Out Deadline Set GC SERVICES: Indiana Court Certifies Class in "Smith" GENERAL MOTORS: Bellwether Ignition Switch Defect Trial Begins GENIE ENERGY: Units Enter Into Class Action Settlement Agreement GERBER PRODUCTS: 5th Cir. Partly Affirms Trimming of "Bruton" GLH CAPITAL: Court Grants Conditional Certification in "Owens" GOOGLE INC: AGs Challenge $5.5-Mil. Class Action Settlement HAIN CELESTIAL: Faces Potential Class Action Over Veggie Straws HILTI INC: Electric Tools Buyers' Suit Moved Back to E.D. Cal. HUYSSEN INC: Court Narrows Claims in "Bruno" Suit JANSSEN PHARMA: Pa. Risperdal Docket Nearly Triples in First Half JC PENNEY: Can't Compel Arbitration of "Cavlovic" Suit JOE ARPAIO: Could End Up Behind Bars Over Racial Profiling Suit JOHNSON & JOHNSON: Tried to Stop Report About Pelvic Mesh Devices JOHNSON & JOHNSON: "Estrada" Suit Dismissed with Leave to Amend JOSEPH DECKER: Has Until Aug. 1 to Respond in "Shannon" LEGEND ENERGY: Harlow Seeks to Certify Class of Oilfield Worker LG CHEM: Filing of Claims for Battery CA Settlement Started LGI HOMES: "Selby" Suit Seeks to Certify Class of Office Managers LMCHH PCP: Outten & Golden Named Interim Lead Atty in "Kusnick" LULAROE LLC: Harvey Seeks Minimum Wages & OT under Labor Code MARSHALLS OF CA: Discovery Order in "Williams" Reversed MASSACHUSETTS: Class Action Challenges Voter Cutoff Law MASSACHUSETTS FINANCIAL: Faces "Velazquez" Lawsuit Under ERISA MATTRESS FIRM: "Herrera" Suit Seeks Drivers Class Certification MERCHANT ADVANCE: Court Extends Time to Serve in "Hemis" METRO AIR: Faces "Vizcarra" Suit Seeking to Recoup Overtime Pay METROPOLITAN TRANSPO: Faces Suit Over Safe Service Failure MILLWOOD INC: "Yu" Suit Seeks Certification of FLSA Class MR. HEATER: Cal. App. Affirms Demurrer to SAC in "Burger" NEW HAMPSHIRE: Lack of Foster Care Reform May Spark Suit v. DCYF NEW YORK: Refund Checks Mailed to Class Members NOBLE ENERGY: Faces "Virden" Suit Alleging Misclassification ORION HEALTHCORP: Singh-Narayan Seeks Unpaid OT under Labor Law PETROLEO BRASILEIRO: Ruling in Securities Suit Partly Affirmed PHC INC: Maz Partners' Bid for New Trial Denied PHILLIPS & COHEN: Placeholder Bid for Class Certification Filed PROGRESSIONS BEHAVIORAL: Ct. OK's $865K Settlement in FLSA Suit PROSCAPE GROUP: Faces "Silva" Lawsuit Alleging FLSA Violation RAMELLI GROUP: Ct. Certifies Former Employees' Collective Action RAYMOURS FURNITURE: Class Action Waiver Inapplicable, Judge Rules RCS CAPITAL: September 28 Settlement Fairness Hearing Set RED INN: Former Server Files Class Action Over Tips RELIANCE JIO: May Face Class Action Threat Over Data Leak RESIDENTIAL CAPITAL: Underwriters Must Produce Pre-Oct. 2008 Docs REVCLAIMS LLC: Class Action Over Billing Practices Dismissed RJ REYNOLDS: 2nd Cir. Upholds $28MM Verdict in Izzarelli Case ROCK FREIGHT: "Cheuk" Suit Seeks Overtime Pay under FLSA SEARS: Keller Grover Announces Gift Card Settlement SHILOH INDUSTRIES: Ct. Grants Leave to Amend "Prince" Suit SLATER AND GORDON: Share Trading Halted Following Class Action SPITZER INDUSTRIES: "Sarabia" Suit Alleges Misclassification SYNDICATED OFFICE: "Carpenter" Suit Seeks Class Certification SYNGENTA: Court to Hear Viptera Trials Two States at a Time SYNGENTA: Averts Trial by Reaching Confidential Settlement TAHOE RESOURCES: Faces "Sanders" Suit Over Escobal Mining TD BANK: Court Refuses to Dismiss RFDCPA Claims in "Martinez" TEAM OIL: "Staggert" Labor Lawsuit Transferred to S.D. Texas TOKIO MARINE: Court Dismisses "Azad" Suit with Leave to Amend TRIDENT ASSET: Placeholder Bid for Class Certification Filed U.S. STEEL: Faces Suit Over Donora Zinc Works UBER TECHNOLOGIES: "Olivares" Suit Compelled to Arbitration UNITED STATES: Hawaii Loses Bid to Challenge Trump Travel Ban UNITED STATES: Asks Judge to Rethink Class Certification Order UNITED STATES: Judge Extends Stay Blocking Deportation of Iraqis VOLKSWAGEN: Wants to Dodge Liability for Failure to Warn Investors VOLKSWAGEN AG: Attorney Provides Details on Diesel Settlement VOLKSWAGEN AG: Diesel Emissions Case Lawyers Seek Addt'l Fees VOLKSWAGEN GROUP: Suit Over Emissions Allowed to Proceed WELLS FARGO: Judge Grants Prelim Approval to $142MM Settlement WENDY'S OF LAS VEGAS: Loses Bid to Strick Workers' Expert Witness WEST VIRGINIA: Judge Denies Prelim Approval of Proposed Settlement ZTO EXPRESS: Robbins Arroyo Files Securities Class Action ZURICH INSURANCE: Appeals Panel Sides Against Complainant * New Database Mulled as Part of CFPB's Final Arbitration Rule * CFPB in Dispute with OCC Over Arbitration Rule ********* AAC HOLDINGS: Court Certifies Class in "Kasper" Securities Suit --------------------------------------------------------------- In the case captioned DR. JOSEPH F. KASPER, individually and on behalf of all others similarly situated, Plaintiff, v. AAC HOLDINGS, INC., JERROD N. MENZ, MICHAEL T. CARTWRIGHT, ANDREW W. McWILLIAMS and KIRK R. MANZ, Defendant, No. 15-cv-00923-JPM-jsf (M.D. Tenn.), Judge Jon P. McCalla of the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted the Plaintiffs' Motion to Certify the Class, Appoint Class Representatives, and Appoint Class and Liaison Counsel. On Aug. 24, 2015, the Plaintiff, individually and on behalf of those similarly situated, filed a complaint against the Defendants alleging violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and SEC Rule 10b-5(b) promulgated thereunder. On Oct. 23, 2015, the Plaintiffs filed a Motion to Appoint Lead Plaintiff, Lead Counsel, and Liasion Counsel, as well as a Motion to Consolidate Cases. On Oct. 26, 2015, the Court consolidated Tenzyk v. AAC Holdings, Inc., et al. (Case No. 3-15- cv-0986) and Kasper v. AAC Holdings, Inc., et al. (Case No. 3-15- cv-0923). On Dec. 30, 2015, the Court entered a Stipulation and Order Appointing Lead Plaintiffs, Lead Counsel, and Liaison Counsel. The Court's Order appointed Arkansas Teacher Retirement System ("ATRS") and James P. Gills, M.D. as Lead Plaintiffs. On Feb. 29, 2016, Plaintiffs filed an Amended Complaint for consolidated class actions. On April 14, 2016, the Defendants filed a Motion to Dismiss which the Court denied on July 1, 2016 finding that the Plaintiffs pled with sufficient specificity required by the statute for an actionable misstatement and omission, and scienter; and sufficiently alleged a claim for Rule 20(a) to survive a motion to dismiss. On July 6, 2016, the Court ordered the Defendants to serve their answer to the Consolidated Complaint by July 22, 2016. The Defendants then filed their answer on July 22, 2016. On Aug. 31, 2016, the Court entered a Joint Initial Case Management Order. On Nov. 4, 2016, the Court entered the Stipulation and Protective Order for the parties. On Nov. 28, 2016, the Plaintiffs filed a Motion to Set a Case Management Conference alleging that the Defendants failed to produce a single document in response to the Requests Plaintiffs served on July 19, 2016. The Court found the motion moot in light of the teleconference scheduled with Judge McCalla. The Court held a telephonic status conference on Dec. 13, 2016, amending the discovery and trial schedule. On Dec. 22, 2016, proposed class representative, Dr. James Gills, withdrew his request to be appointed class representative. Thus, ATRS is the one remaining Plaintiff seeking to be appointed class representative. On Dec. 22, 2016, the Defendants filed a redacted response in opposition to the Plaintiffs' Motion for Class Certification. They refiled an un-redacted response in opposition on Jan. 24, 2017. The Plaintiffs filed a reply on Feb. 10, 2017. On Feb. 15, 2017, the Defendants moved for Oral Argument on Lead Plaintiffs' Motion for Class Certification which the Court granted on Feb. 23, 2017. A telephonic motion hearing was set for April 4, 2017 at 9:30 a.m. (CST). On March 8, 2017, the Plaintiffs sought leave to file a sur-reply on the issue of class certification which the Defendants opposed on March 10, 2017. The Defendants filed a response in opposition to the Plaintiff's sur-reply on March 10, 2017. On April 4, 2017, the Court held a telephonic Motion Hearing regarding the Plaintiffs' pending motions. Following the hearing, the Court entered an Order Requiring Supplemental Briefing. The parties filed timely supplemental briefs on April 18, 2017 and May 2, 2017. The Court granted the Plaintiffs' Motion to Certify the Class of all persons and entities who purchased or otherwise acquired AAC securities between Oct. 2, 2014, and Aug. 4, 2015 at 9:40 a.m. (EDT). The Court also granted the Plaintiffs' Motion to appoint Kaplan Fox, Kahn Swick and Barrett Johnston as Class Counsel and their request to appoint Lead Plaintiff as Class Representative. A full-text copy of the Court's July 14, 2017 order is available at https://is.gd/GVxH8u from Leagle.com. Dr. Joseph F. Kasper, Plaintiff, represented by David W. Garrison, Barrett Johnston Martin & Garrison, LLC. Dr. Joseph F. Kasper, Plaintiff, represented by Jeffrey C. Block, Block & Leviton LLP, Paul Kent Bramlett, Bramlett Law Offices, Robert P. Bramlett, Bramlett Law Offices & Steven P. Harte, Block & Leviton LLP. Judith D. Tenzyk, Consol Plaintiff, represented by J. Alexander Hood, II, Pomerantz LLP, Jeremy A. Lieberman, Pomerantz LLP, Marc Gorrie, Pomerantz LLP, Patrick V. Dahlstrom, Pomerantz LLP, Paul Kent Bramlett, Bramlett Law Offices & Robert P. Bramlett, Bramlett Law Offices. Jacquelin Welsh, Consol Plaintiff, represented by James A. Holifield, Jr., Holifield Janich Rachal & Associates, PLLC. AAC Holdings, Inc., Defendant, represented by Britt K. Latham, Bass, Berry & Sims, David Gouzoules, Alston & Bird LLP, Jessica Perry Corley, Alston & Bird LLP, John Latham, Alston & Bird LLP, Joseph B. Crace, Jr., Bass, Berry & Sims & Lisa R. Bugni, Alston & Bird LLP. Jerrod N. Menz, Defendant, represented by Britt K. Latham, Bass, Berry & Sims, David Gouzoules, Alston & Bird LLP, Jessica Perry Corley, Alston & Bird LLP, John Latham, Alston & Bird LLP, Joseph B. Crace, Jr., Bass, Berry & Sims & Lisa R. Bugni, Alston & Bird LLP. Michael T. Cartwright, Defendant, represented by Britt K. Latham, Bass, Berry & Sims, David Gouzoules, Alston & Bird LLP, Jessica Perry Corley, Alston & Bird LLP, John Latham, Alston & Bird LLP, Joseph B. Crace, Jr., Bass, Berry & Sims & Lisa R. Bugni, Alston & Bird LLP. Kathryn Sevier-Phillips, Defendant, represented by Britt K. Latham, Bass, Berry & Sims, Jessica Perry Corley, Alston & Bird LLP, John Latham, Alston & Bird LLP, Joseph B. Crace, Jr., Bass, Berry & Sims & Lisa R. Bugni, Alston & Bird LLP. Andrew W. McWilliams, Defendant, represented by Britt K. Latham, Bass, Berry & Sims, David Gouzoules, Alston & Bird LLP & Joseph B. Crace, Jr., Bass, Berry & Sims. Kirk Manz, Defendant, represented by Britt K. Latham, Bass, Berry & Sims, David Gouzoules, Alston & Bird LLP & Joseph B. Crace, Jr., Bass, Berry & Sims. JAMES P GILL, Intervenor Plaintiff, represented by Alexander L. Burns, Kahn Swick & Foti, LLP, Donald R. Hall, Jr., Kaplan Fox Kilsheimer LLP, Joseph Scott St. John, Kahn Swick & Foti, LLP, Paul Kent Bramlett, Bramlett Law Offices, Ramzi Abadou, Kahn Swick & Foti, LLP, Timothy L. Miles, Barrett Johnston Martin & Garrison, LLC & David W. Garrison, Barrett Johnston Martin & Garrison, LLC. Judith D. Tenzyk, Movant, represented by Jeremy A. Lieberman, Pomerantz LLP. Arkansas Teacher Retirement System, Movant, represented by Alexander L. Burns, Kahn Swick & Foti, LLP, David W. Garrison, Barrett Johnston Martin & Garrison, LLC, Donald R. Hall, Jr., Kaplan Fox Kilsheimer LLP, Frederic S. Fox, Kaplan Fox Kilsheimer LLP, Jeffrey P. Campisi, Kaplan Fox Kilsheimer LLP, Jerry E. Martin, Barrett Johnston Martin & Garrison, LLC & Timothy L. Miles, Barrett Johnston Martin & Garrison, LLC. Robert Salyer, Movant, represented by Joey P. Leniski, Jr., Branstetter, Stranch & Jennings, PLLC. AEROTEK INC: Magistrate Recommends Approval of $15MM Class Deal --------------------------------------------------------------- A magistrate judge in the United States District Court for the Southern District of Ohio, Eastern Division, recommended that Plaintiff's Motions for final approval of class action settlement be granted in the cases captioned Ebony Moore, individually and on behalf of all others similarly situated, Plaintiffs, v. Aerotek, Inc., Defendant, AND Jose Rubio-Delgado, individually and on behalf of all others similarly situated, Plaintiffs, v. Aerotek, Inc. Defendant, Case Nos. 2:15-cv-2701, 2:16-cv-1066 (S.D. Ohio), as well as for final approval of class action settlement. On July 3, 2013, Plaintiff Rubio-Delgado filed his class action complaint in the United States District Court for the Northern District of California, alleging that Defendant had violated 15 U.S.C. Section 1681b(b)(2) by procuring background checks on him and putative class members without first providing a disclosure that a report would be obtained in a document consisting solely of the disclosure. Specifically, Plaintiff alleged that Defendant's disclosure contained a liability release and other extraneous information beyond that allowed under the FCRA. The action was stayed in November 2013 to facilitate settlement discussions, which resulted in a settlement that was ultimately not approved by the court. Following the denial of approval, the parties stipulated to continue the stay pending resolution of Spokeo, Inc. v. Robins, No. 13-1339 (2015), and Syed v. M-I, LLC, No. 14-17186 (9th Cir. 2014). On July 15, 2015, Plaintiff Moore filed a separate class action complaint in the Court of Common Pleas of Franklin County, Ohio, also alleging that Defendant had violated 15 U.S.C. Section 1681b(b)(2) by procuring background checks without first providing a stand-alone disclosure, and, in addition, alleging that Defendant had violated 15 U.S.C. Section 1681b(b)(3) by failing to provide her and putative class members with a copy of their background check and summary of rights prior to taking adverse employment action based in whole or in part on the background check (pre-adverse action notice). Plaintiff alleges that she did not receive pre-adverse action notice as required, and that she was terminated on the basis of her background check without having the opportunity to review or dispute her report, which contained inaccuracies. Defendant removed Moore's action to this Court on August 7, 2015. The parties then stipulated to stay the case to facilitate settlement discussions. Aerotek has agreed to provide both monetary and non-monetary relief in consideration for the release of the settlement class members' claim. It agreed to pay $15,000,000 into a common settlement fund. Subsequent to the deductions of attorneys' fees, costs, administration costs, and class representative service awards, the funds are to be distributed pro rata to all Class members, with each member's distribution calculated on the bases of which of the three designated classes. Members in the 1681b(b)(2) Class will receive one share; members in the 1681b(b)(2) Adjudicated Class will receive 1.67 shares; and those in the 1681b(b)(3) Class will receive six shares. Individuals who fall into more than one class will receive a distribution for the most valuable class in which they are categorized. Any funds remaining after the close of the time period within which to cash checks will be re-distributed to 1681b(b)(3) class members who cashed their original checks. Any funds remaining after that redistribution will be donated to the National Consumer Law Center. The Court has reviewed and considered the record in this case, including the representations made by counsel at the fairness hearing held on June 22, 2017. The Court has considered the risk of fraud or collusion, the complexity, expense, and likely duration of the litigation, the amount of discovery engaged in by the parties, the likelihood of success on the merits, the opinions of class counsel and the class representative, the reaction of the absent class members, and the public interest, and it finds that all seven factors weigh in favor of final approval of the proposed settlement. Counsel for the parties are in agreement with this assessment. This Court finds that the settlement agreement is fair, reasonable, and adequate, and that approval is in the best interest of the Class. The Court will now examine the reasonableness of the attorneys' fees set forth in the settlement agreement. The following payments are to be made in connection with the settlement: (1) attorneys' fees to Class Counsel in the amount of one-third of the common fund ($5,000,000); (2) reimbursement of Class Counsel's out-of-pocket costs in the amount of $67,964.27; (3) Class Representative Awards of $5,000 each to Plaintiffs Moore and Rubio-Delgado, and $3,000 each to Plaintiffs Hubbard and Burgess; and (4) third-party settlement administration charges in the amount of $856,849.87. A full-text copy of the District Court's July 13, 2017 Order is available at https://is.gd/KiK9bm from Leagle.com Ebony R. Moore, Plaintiff, represented by Matthew A. Dooley -- mdooley@omdplaw.com -- O'Toole, McLaughlin, Dooley & Pecora, Co. LPA. Ebony R. Moore, Plaintiff, represented by Anthony R. Pecora -- apecora@ompdlaw.com -- O'Toole, McLaughlin, Dooley & Pecora, Co. LPA, Eleanor Michelle Drake -- mdrake@bm.net - Berger & Montague & Joseph C. Hashmall -- jhashmall@bm.net -- Berger & Montague. Aerotek, Inc., Defendant, represented by Alison S. Hightower, -- ahightower@littler.com -- Littler Mendelson P.C., pro hac vice & Chad J. Kaldor -- ckaldor@littler.com -- Littler Mendelson. ALABAMA: Court Denies Bid to Exclude Experts in Inmates' Suit ------------------------------------------------------------- The United States District Court for Middle District of Alabama, Northern Division, issued an Opinion denying the parties' motion for exclusion of expert witness in the case captioned EDWARD BRAGGS, et al., Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants, Civil Action No. 2:14cv601-MHT (M.D. Ala.). The plaintiffs in this phase of this class-action lawsuit are seriously mentally ill state prisoners and the Alabama Disabilities Advocacy Program (ADAP). The defendants are officials of the Alabama Department of Corrections (ADOC) -- Commissioner Jefferson Dunn and Associate Commissioner of Health Services Ruth Naglich -- who are sued in only their official capacities. In Phase 2A of the case, the plaintiffs claim that the defendants have failed to provide constitutionally adequate mental-health care to ADOC prisoners with serious mental-health needs, in violation of the Eighth and Fourteenth Amendments. At trial, the parties presented evidence from five expert witnesses, some of whom the parties had objected to prior to trial. The parties did not object to any of the experts' qualifications, but the plaintiffs asserted objections under Daubert portions of Dr. Raymond Patterson's testimony and to the methodology underlying Robert Ayers's opinion, and the defendants asserted Daubert objections against Dr. Kathryn Burns's and Eldon Vail's methodologies. The District Court held that while the defendants did not object to Dr. Burns's qualification as a correctional mental-health expert, they objected to the methodology she employed to assess the adequacy of mental-health care within ADOC. The defendants raised two additional grounds for objecting to Burns's testimony under Daubert. First, the defendants argued that Burns failed to identify during her trial testimony specific prisoners whose experience supported her conclusions and that she therefore "improperly extrapolated." The court finds this argument unconvincing. Burns provided an extensive report that identified sources of her observations and conclusions, including names of prisoners and specific documents based on which she evaluated ADOC policies and practices. The defendants' second contention is that Burns's opinion as to the adequacy of individual care does not establish an Eighth Amendment violation. This is not a Daubert objection at all: establishing legal liability is not a requirement under the Daubert analysis. It is the factfinder's job to evaluate competing expert opinions, in conjunction with all other admissible evidence, to decide whether there has been a violation, the Court held. In sum, Burns's testimony was sufficiently reliable to survive a Daubert challenge. The defendants objected under Daubert to the testimony and expert report offered by Eldon Vail, the plaintiffs' correctional administration expert, asserting that he is not "qualified" to testify under Daubert and Federal Rule of Evidence 702 to offer an opinion as to facilities that he did not visit. Vail's expert testimony is admissible, the Court held. First, as explained in the class-certification opinion with regards to Burns's testimony, the case law indicates that an expert on prison conditions is not categorically required to visit every single facility in order to offer an opinion on systemic issues. Second, for the facilities that he did not visit, Vail reviewed internal and public documents of ADOC, including vulnerability analyses, monthly statistical reports, standard operating procedures, local institutional policies, meeting minutes, transcripts of ADOC officials' depositions, and incident reports. The court therefore found in the Daubert order that Vail's testimony was admissible. The plaintiffs challenged as unreliable Dr. Raymond Patterson's testimony and his report about an ADOC medical-records audit that he and other defense experts performed. The plaintiffs were able to point out errors on the audit forms and raise doubts about the accuracy of audit results during the cross examination of Patterson. Therefore, with the previously entered Daubert order, the court found that the audit- implementation issues raised by the plaintiffs were properly addressed through the adversarial system, rather than by excluding the results from consideration by the factfinder, and that Patterson's testimony regarding the audit results was admissible. The plaintiffs initially challenged defense expert Ayers's methodology under Daubert, arguing that relying primarily on interviews with staff to formulate an opinion about the quality of mental-health care is unreliable. The court further found that the limited nature of his supporting data and his testimony that he did not have sufficient time to investigate certain issues bore on only the weight of his expert opinion, rather than admissibility. Therefore, the plaintiffs' initial objection against Ayers's methodology was overruled in the Daubert order. The court denied the plaintiffs' motion to exclude Ayers's testimony and portions of Patterson's testimony and the defendants' motions to exclude Burns and Vail's testimony. A full-text copy of the District Court's July 13, 2017, Order is available at https://is.gd/G40kD6 from Leagle.com. Edward Braggs, Plaintiff, represented by Andrew Philip Walsh -- awalsh@bakerdonelson.com -- Baker Donelson Bearman Caldwell & Berkowitz PC. Edward Braggs, Plaintiff, represented by Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter -- pclotfelter@bakerdonelson.com -- Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III -- wsomerville@bakerdonelson.com -- Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Tedrick Brooks, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Gary Lee Broyles, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Chandler Clements, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Christopher Gilbert, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Dwight Hagood, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Sylvester Hartley, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Christopher Jackson, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Brandon Johnson, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. John Maner, Plaintiff, represented by Andrew Philip Walsh, Baker Donelson Bearman Caldwell & Berkowitz PC, Brooke Menschel, Southern Poverty Law Center, Ebony Glenn Howard, Southern Poverty Law Center, Eunice Cho, Southern Poverty Law Center, pro hac vice, Jack Richard Cohen, Southern Poverty Law Center, Latasha Lanette McCrary, Southern Poverty Law Center, Maria V. Morris, Southern Poverty Law Center, Miriam Fahsl Haskell, Southern Poverty Law Center, pro hac vice, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Rhonda C. Brownstein, Southern Poverty Law Center, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz & William Van Der Pol, Jr., Alabama Disabilities Advocacy Program. Ruth Naglich, Defendant, represented by Anne Adams Hill, Alabama Department of Corrections, David Randall Boyd, Balch & Bingham LLP, Elizabeth Anne Sees, Alabama Department of Corrections, Evan Patrick Moltz, -- emoltz@maynardcooper.com -- Maynard, Cooper & Gale, P.C., John Garland Smith,jgsmith@balch.com -- Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Alabama Dept of Corrections, Luther Maxwell Dorr, Jr. -- rdorr@maynardcooper.com -- Maynard, Cooper & Gale, P.C., Matthew Reeves -- mreeves@maynardcoper.com -- Maynard Cooper & Gale PC, Mitesh Bansilal Shah -- mshah@maynardcooper.com -- Maynard, Cooper & Gale, PC, Steven C. Corhern -- scorhem@balch.com -- Balch & Bingham, William Richard Lunsford -- blunsford@maynardcooper.com -- Maynard Cooper & Gale PC, Melissa K. Marler -- mmarler@maynardcooper.com -- Maynard, Cooper & Gale PC, Michael Paul Huff -- mhuff@maynardcooper.com -- Maynard Cooper & Gale PC & Stephen Clarence Rogers -- srogers@maynardcooper.com -- Maynard Cooper and Gale PC. Alabama Department of Corrections, Defendant, represented by David Randall Boyd, Balch & Bingham LLP, John W. Naramore, Balch & Bingham LLP, John Garland Smith, Balch & Bingham LLP, Anne Adams Hill, Alabama Department of Corrections, Elizabeth Anne Sees, Alabama Department of Corrections, Joseph Gordon Stewart, Jr., Alabama Dept of Corrections, Steven C. Corhern, Balch & Bingham & William Richard Lunsford, Maynard Cooper & Gale PC. Jefferson S. Dunn, Defendant, represented by Anne Adams Hill, Alabama Department of Corrections, David Randall Boyd, Balch & Bingham LLP, Elizabeth Anne Sees, Alabama Department of Corrections, Evan Patrick Moltz, Maynard, Cooper & Gale, P.C., John Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Alabama Dept of Corrections, Luther Maxwell Dorr, Jr., Maynard, Cooper & Gale, P.C., Matthew Reeves, Maynard Cooper & Gale PC, Mitesh Bansilal Shah, Maynard, Cooper & Gale, PC, Steven C. Corhern, Balch & Bingham, William Richard Lunsford, Maynard Cooper & Gale PC, Melissa K. Marler, Maynard, Cooper & Gale PC, Michael Paul Huff, Maynard Cooper & Gale PC & Stephen Clarence Rogers, Maynard Cooper and Gale PC. MHM Correctional Services, Inc., Movant, represented by Brett T. Lane, MHM Services, Inc. & Deana Johnson, MHM Services, Inc., pro hac vice. Corizon Health, Inc., Movant, represented by Melissa K. Marler, Maynard, Cooper & Gale PC, Stephen Clarence Rogers, Maynard Cooper and Gale PC & William Richard Lunsford, Maynard Cooper & Gale PC. Kim Thomas, Movant, represented by Evan Patrick Moltz, Maynard, Cooper & Gale, P.C., Melissa K. Marler, Maynard, Cooper & Gale PC, Mitesh Bansilal Shah, Maynard, Cooper & Gale, PC, Stephen Clarence Rogers, Maynard Cooper and Gale PC & William Richard Lunsford, Maynard Cooper & Gale PC. ALBANY MOLECULAR: Witmer Seeks to Enjoin Acquisition by Carlyle --------------------------------------------------------------- COLLEEN WITMER, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. ALBANY MOLECULAR RESEARCH, INC., THOMAS E. D'AMBRA, DAVID H. DEMING, KENNETH P. HAGEN, GERARDO GUTIERREZ FUENTES, ANTHONY J. MADDALUNA, FERNANDO NAPOLITANO, WILLIAM S. MARTH, EVIN O'CONNOR, THE CARLYLE GROUP, GTCR LLC, UIC PARENT CORPORATION, and UIC MERGER SUB, INC., the Defendants, Case No. 1:17-cv-00942-UNA (D. Del., July 13, 2017), seeks to preliminarily and permanently enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing a proposed transaction, and in the event defendants consummate the Proposed Transaction, rescinding it and setting it aside or awarding rescissory damages. This action stems from a proposed transaction announced on June 6, 2017, pursuant to which Albany Molecular Research, Inc. will be acquired by affiliates of The Carlyle Group and GTCR LLC. According to the complaint, on June 5, 2017, AMRI's Board of Directors caused the Company to enter into an agreement and plan of merger with UIC Parent Corporation and UIC Merger Sub, Inc. Pursuant to the terms the Merger Agreement, shareholders of AMRI will receive $21.75 per share in cash. On July 3, defendants filed a Preliminary Proxy Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. Accordingly, plaintiff alleges that defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the Proxy Statement. AMRI is a contract research and manufacturing organization that provides drug discovery, development, cGMP manufacturing and aseptic fill and finish to the pharmaceutical and biotechnology industries.[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 Telephone: (302) 295 5310 Facsimile: (302) 654 7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324 6800 ALLSTATE INSURANCE: Bid for Interlocutory Appeal OK'd in "Sayles" ----------------------------------------------------------------- The United States District Court for the Middle District of Pennsylvania issued a Memorandum granting Defendant's Motion for Interlocutory Appeal in the case captioned SAMANTHA SAYLES, individually and on behalf of all others similarly situated, Plaintiffs, v. ALLSTATE INSURANCE COMPANY, Defendant, Civil Action No. 3:16-CV-01534 (M.D. Pa.). Plaintiff Samantha Sayles originally filed this putative class action Sayles alleges that an auto insurance policy issued by Allstate under which she was insured contains an "examination requirement" that violates section 1796 of Pennsylvania's Motor Vehicle Financial Responsibility Law. Pursuant to 28 U.S.C. section 1292(b), a district judge may certify an order for immediate appeal if it the judge finds that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Section 1292(b) imposes three criteria for the district court's exercise of discretion to grant a section 1292(b) certificate. The order must (1) involve a controlling question of law,' (2) offer 'substantial ground for difference of opinion' as to its correctness, and (3) if appealed immediately materially advance the ultimate termination of the litigation. The Court finds that the requirements set forth in section 1292(b) have been satisfied, and that an interlocutory appeal is warranted in this case. First, the Court concludes that its prior Order involves a controlling question of law, thereby satisfying the first statutory criterion. A question of law is controlling if: (1) an incorrect disposition would constitute reversible error; or (2) it is serious to the conduct of the litigation, either practically or legally. Second, the Court finds that an immediate appeal will also materially advance the ultimate termination of the litigation. Lastly, the Court concludes that there is a substantial ground for difference of opinion as to the correctness of the Court's Order with respect to the denial of Allstate's Motion to Dismiss as to Counts I and II. A substantial ground for difference of opinion about a particular issue exists "when the matter involves 'one or more difficult and pivotal questions of law not settled by controlling authority. Here, as the Court recognized previously, the Pennsylvania Supreme Court has not directly weighed in on this specific issue, and therefore there is an absence of controlling law. Consequently, not only is there an absence of controlling law on this particular issue, but there are also conflicting interpretations from multiple courts. Considering the potential scope of this lawsuit and the unsettled nature of this legal question, the Court believes this is the type of exceptional case warranting an interlocutory appeal. Furthermore, the Court concludes that a stay is appropriate in this case because the issues awaiting resolution are dependent upon the outcome of the certified appeal. Defendant Allstate's Motion for Certification for Interlocutory Appeal is granted. A full-text copy of the District Court's July 13 2017 Memorandum is available at https://is.gd/BgO4qV from Leagle.com. Samantha Sayles, Plaintiff, represented by Charles Kannebecker -- info@kannebecker.com --, Weinstein Schneider Kannebecker & Lokuta. Allstate Insurance Company, Defendant, represented by Marc E. Wolin -- mwolin@saiber.com -- Saiber LLC. ALLTRAN FINANCIAL: Placeholder Bid for Class Certification Filed ---------------------------------------------------------------- In the lawsuit styled ROBERT AKER, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. ALLTRAN FINANC IAL, LP, the Defendant, Case No. 2:17-cv-00985-WED (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a proposed class in this case, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=W2sZaAgM The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com AMERICAN HOTEL: Court Denied E&G's Bid for Class Certification -------------------------------------------------------------- In the lawsuit captioned E & G, Inc., the Plaintiff, v. American Hotel Register Company, et al., the Defendants, Case No. 1:17-cv- 01011 (N.D. Ill.), the Hon. Judge Jorge L. Alonso entered an order denying Plaintiff's Damasco motion for class certification without prejudice, with the understanding that Plaintiff's request for class certification remains pending as a placeholder, and no rights are waived According to the docket entry made by the Clerk on July 18, 2017, Defendants are on notice that this is a putative class action. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=IUY5UqTj AMETEK INC: Objections to Lone Pine Submission in "Porter" Denied ----------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order Denying Defendants' Objection to Plaintiffs' Lone Pine Submission in the case captioned DANIELLE TRUJILLO, as Guardian Ad Litem for KADEN PORTER, a minor, on behalf of himself and others similarly situated; LACEY MORALES, as Guardian Ad Litem for ISABEL MORALES., a minor, on behalf of herself and others similarly situated; BEVERLY HOY, on behalf of herself and all others similarly situated; Plaintiffs, v. AMETEK, INC., a Delaware corporation; SENIOR OPERATIONS, LLC, a limited liability company; and DOES 1 through 100, inclusive, Defendants, Case No. 3:15-cv-01394-GPC-BGS (S.D. Calif.). This is toxic tort case arising out of Defendant Ametek's alleged dumping of chemical waste into a temporary storage tank on their property in El Cajon, California. Plaintiffs allege, that the toxic waste caused an underground plume of discharge that infected, and continues to infect, the groundwater below the Magnolia Elementary School, which shares a property line with the Defendant property. The plume created toxic fumes that migrated, and continue to migrate, from the ground into the air at Magnolia and the toxic vapors contain chemicals that posed and pose a significant human health risk to Magnolia's occupants, including students like Kaden Porter and Lacey Morales and teachers like Plaintiff Beverly Hoy. The Court granted in part and denied in part Defendants' motions for entry of a Lone Pine (Lore v. Lone Pine Corp., 1986 WL 637507 N.J. Sup. Ct. Nov. 19, 1986) case management order. The Court found it appropriate to require each named Plaintiff to make a prima facie showing regarding his or her exposure, increased risk of specific injury and causation, but did not require that such an evidentiary showing be made as to any of the putative class members. Lone Pine (orders are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation. Their basic purpose is to identify and cull potentially meritless claims and streamline litigation in complex cases and to achieve that purpose it require plaintiffs to produce some evidence to support a credible claim. A full-text copy of the District Court's July 17, 2017 Order is available at https://is.gd/KLu9Dv Leagle.com. Danielle Trujillo, Plaintiff, represented by Carla Burke, Baron & Budd PC, pro hac vice, 3102 Oak Lawn Avenue #1100, Dallas, TX 75219 Danielle Trujillo, Plaintiff, represented by Celeste A. Evangelisti, Esq. -- cevangel@baronbudd.com -- Baron & Budd PC, John P. Fiske, Baron & Budd, P.C. & 3102 Oak Lawn Avenue #1100, Dallas, TX 75219, Scott Summy, Baron & Budd PC, pro hac vice. 3102 Oak Lawn Avenue #1100, Dallas, TX 75219 Lacey Morales, Plaintiff, represented by Carla Burke, Baron & Budd PC, pro hac vice, Celeste A. Evangelisti, Baron & Budd PC, John P. Fiske, Baron & Budd, P.C. & Scott Summy, Baron & Budd PC, pro hac vice. Beverly Hoy, Plaintiff, represented by Celeste A. Evangelisti, Baron & Budd PC & John P. Fiske, Baron & Budd, P.C.. Ametek, Inc., Defendant, represented by Edward C. Walton, -- ed.walton@procopio.com -- Procopio, Cory, Hargreaves & Savitch, LLP, Hazel Ocampo -- hazel.ocampo@procopio.com -- Procopio & Sean Michael Sullivan -- sean.sullivan@procopio.com -- Procopio, Cory, Hargreaves & Savitch LLP. Senior Aerospace Ketema, Defendant, represented by David James Porter, --david.porter@bipc.com -- Buchanan Ingersoll & Rooney PC, pro hac vice & Kimberly Arouh -- Kimberly.arouh@bipc.com -- Buchanan Ingersoll & Rooney LLP. Senior Operations LLC, Defendant, represented by Jordan Webster -- jordan.webster@bipc.com -- Buchanan Ingersoll & Rooney PC, pro hac vice & Kimberly Arouh, Buchanan Ingersoll & Rooney LLP. AVEDA TRANSPORTATION: Court Okays FLSA Settlement in "Waltz" Suit ----------------------------------------------------------------- In the case captioned RANDY WALTZ, on behalf of himself and similarly situated employees, Plaintiffs, v. AVEDA TRANSPORTATION AND ENERGY SERVICES INC., and RODAN TRANSPORT USA LTD, Defendants, No. 4:16-CV-00469 (M.D. Pa.), Judge Matthew W. Brann granted the unopposed motion for approval of FLSA settlement filed by the plaintiffs, Randy Waltz, David Canada, Toby Hayes, Mark Ortiz, Gary Solinger, John Tinkle, and Michael Tinkle. On March 17, 2016, Randy Waltz filed a Complaint against veda Transportation and Energy Services Inc. and Rodan Transport USA Ltd alleging: (1) a collective action under FLSA Section 16(b) for failure to pay an overtime premium as required by 29 U.S.C. section 207(a)(1), and (2) a class action under Federal Rule of Civil Procedure 23 for violations of the Pennsylvania Minimum Wage Act. Aveda Transportation and Energy Services Inc. and Rodan Transport USA Ltd employ hundreds of employees engaged in various services at oil and gas rigs throughout the United States. Those employees, the plaintiffs in this litigation, were employed in the Field Supervisor/Truck Push (FSTP) position. During their terms of employment as FSTPs, the plaintiffs were paid on a day rate basis. Because they alleged that their work week often consisted of greater than 40 hours, the plaintiffs argued that the defendants' failure to pay overtime premium compensation resulted in a violation of the FLSA. The Court granted, by Memorandum Opinion and Order dated December 27, 2016, the plaintiffs Randy Waltz and Gary Solinger's Motion for Conditional Certification. This conditional certification, and the dissemination of Notice and Consent Forms to over 30 individuals, resulted in five additional plaintiffs joining the suit -- David Canada, Toby Hayes, Mark Ortiz, John Tinkle, and Michael Tinkle. The parties subsequently engaged in further discovery and settlement negotiations. Settlement in the amount of $145,000.00 has since been reached. In their motion, the parties jointly requested that the Court approve the proposed settlement agreement pursuant to Section 16(b) of the FLSA, codified at 29 U.S.C. section 216(b). Having reviewed the Settlement Agreement reached by parties, Judge Brann found that it is both a "fair and reasonable resolution of a bona fide dispute over FLSA provisions," and does not impermissibly frustrate implementation of the FLSA in the workplace. A full-text copy of Judge Brann's June 30, 2017 memorandum opinion and order is available at https://is.gd/C7L16i from Leagle.com. Randy Waltz, Plaintiff, represented by Mark J. Gottesfeld mgottesfeld@winebrakelaw.com -- Winebrake & Santillo, LLC, Peter D. Winebrake -- pwinebrake@winebrakelaw.com -- Winebrake & Santillo, LLC & R. Andrew Santillo -- asantillo@winebrakelaw.com -- Winebrake & Santillo, LLC. Gary Solinger, Plaintiff, represented by Mark J. Gottesfeld, Winebrake & Santillo, LLC & Peter D. Winebrake, Winebrake & Santillo, LLC. Aveda Transportation and Energy Services, Inc., Rodan Transport USA Ltd., Defendants, represented by Mark A. Fontana -- mfontana@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC, Clayton M. Davis -- clayton.davis@bracewell.com -- Bracewell LLP & Robert E. Sheeder -- robert.sheeder@bracewell.com BANKRUPTCY MANAGEMENT: Faces McGarry Suit over Chapter 7 Fees ------------------------------------------------------------- MCGARRY & MCGARRY, LLC, the Plaintiff, v. BANKRUPTCY MANAGEMENT SOLUTIONS, INC., the Defendant, Case No. 2017L007010 (Ill. Cir. Ct., July 13, 2017), seeks compensatory damages and treble damages, pursuant to the Illinois Antitrust Act. McGarry alleges BMS has orchestrated a conspiracy with its two largest competitors, in violation of the Illinois Antitrust Act, to fix the manner of charging Chapter 7 bankruptcy estates for support services. Through this conspiracy, that one Trustee has termed "a train robbery," BMS has unlawfully extracted excessive, if not exorbitant, fees from Chapter 7 bankruptcy estates, and cheated creditors, such as McGarry, out of millions of dollars. McGarry, individually and on behalf of those similarly situated, demands judgment against BMS. BMS develops software solutions to automate case administration, streamline claims distributions, and simplify collaboration.[BN] The Plaintiff is represented by: Marianne C. Holzhall, Esq. MCGARRY & MCGARRY, LLC 120 North LaSalle Street, Suite 1100 Chicago, IL 60602 Telephone: (312) 345 4600 E-mail: mch@mcgarryllc.com - and - DUNNEGAN & SCILEPPI LLC 350 Fifth Avenue New York, NY 10118 Telephone: (212) 332 8300 BAYER CORP: Bid to Dismiss "Jordan" Suit Partly Granted ------------------------------------------------------- In the case captioned LAVETA JORDAN, et al., Plaintiffs, v. BAYER CORP., et al., Defendants, Case No. 4:17-CV-865 (CEJ)(E.D. Mo.), Judge Carol E. Jackson of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied without prejudice the Defendants' motion to dismiss the complaint for failure to state a claim or federal preemption; denied as moot the Defendants' motion to sever; denied the Plaintiffs' motion to remand; and (iv) denied as moot the Plaintiffs' motion to stay. On Jan. 19, 2017, the Plaintiffs initiated this action in the Circuit Court for the City of St. Louis, Missouri to recover damages for injuries they allegedly sustained as a result of using Essure, a medical device manufactured and sold by the Defendants. In the complaint, they assert claims of (i) negligence, (ii), negligence per se, (iii) negligent misrepresentation, (iv) strict liability for failure to warn and manufacturing defects, (v) fraud, (vi) constructive fraud, (vii) fraudulent concealment, (viii) breach of express and implied warranties, (ix) violations of assorted state consumer protection laws, (x) Missouri products liability under Mo. Rev. Stat. Section 537.760, (xi) violation of the Missouri Merchandising Practices Act under Mo. Rev. Stat. Section 407.020, and (xii) gross negligence. Of the 94 Plaintiffs, seven are citizens of Missouri. One Plaintiff is an Illinois citizen who allegedly had the device implanted in Missouri. The remaining Plaintiffs are citizens of 25 different states. On March 9, 2017, the Defendants jointly removed the action to this Court on the basis of diversity jurisdiction and federal question jurisdiction. CSome of the Plaintiffs are citizens of Delaware, Indiana, and Pennsylvania. Despite the lack of complete diversity on the face of the complaint, the Defendants argue that they properly removed this case. Specifically, they contend that removal was proper because the diversity-destroying the Plaintiffs were misjoined, jurisdiction lies under the Class Action Fairness Act, and the Plaintiffs plead violations of federal law, thus invoking federal question jurisdiction. The Plaintiffs counter that all of the claims are properly joined, and the Court lacks subject-matter jurisdiction over this action in the absence of complete diversity of the parties. They also contest the Defendants' assertion that federal question jurisdiction exists here. They urge the Court to refrain from ruling on the Defendants' motions and instead rule on their remand motion first. In their motion to dismiss, the Defendants assert (i) lack of personal jurisdiction over the out-of-state Plaintiffs' claims, (ii) forum non-conveniens with respect to the out-of-state Plaintiffs' claims, (iii) express and implied preemption, (iv) failure to state a claim on which relief can be granted, and (v) failure to plead fraud claims with particularity. The Defendants argue that the Court should address the "straightforward" personal jurisdiction issues first. The Court finds that the question of general jurisdiction is easily disposed of here, as none of the Defendants is incorporated in Missouri or has its principal place of business in the state. Moreover, none of the Defendants have such substantial and extensive contacts such that they are essentially "at home" in Missouri. The Plaintiffs' allegations that the Defendants conduct substantial business activities in Missouri are insufficient to show that the Defendants are "at home." The Plaintiffs concede that the Court cannot exercise general jurisdiction over defendants. Therefore, the Defendants are not subject to general jurisdiction in Missouri. Bristol-Myers Squibb Company v. Superior Court of California is dispositive of the specific personal jurisdiction issue in this case. The Bristol-Myers Court, relying on Goodyear Dunlop Tires Operations, S.A. v. Brown, stated that 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. Here, the Defendants did not develop, manufacture, label, package, or create a marketing strategy for Essure in Missouri. And the general exercise of business activities in the state cannot create an adequate link between the claims and the Missouri forum. The sole exception is the claim of Illinois Plaintiff Jennifer Dischbein, whose device was implanted in Missouri. With respect to the other non-Missouri Plaintiffs, under Bristol-Myers, there is no personal jurisdiction as to their claims because there is no connection between the forum and the specific claims at issue. Because the Court has determined that there is no personal jurisdiction as to the claims of the non-Missouri Plaintiffs, it need not address the Defendants' forum non conveniens argument. The dismissal of the non-Missouri Plaintiffs also negates any challenges to complete diversity. For these reasons, the Court granted the Defendants' motion to dismiss for lack of personal jurisdiction as to the claims of all non-Missouri Plaintiffs, except plaintiff Jennifer Dischbein. The Court ordered that the remaining Plaintiffs Laveta Jordan, Jennifer Baggett, Cheryl Denbow, Jennifer Dischbein, Tiffany Queen, Erica Ware, Michelle Weedman, and Lavena Wilkerson will have until Aug. 1, 2017, to file an amended complaint setting forth their claims against the Defendants. The Court further (i) denied without prejudice the Defendants' motion to dismiss the complaint for failure to state a claim or federal preemption is denied; (ii) denied as moot the Defendants' motion to sever; (iii) denied the Plaintiffs' motion to remand; and (iv) denied as moot the Plaintiffs' motion to stay. A full-text copy of the Court's July 14, 2017 memorandum and order is available at https://is.gd/1OvRqc from Leagle.com. Laveta Jordan, Plaintiff, represented by Eric D. Holland -- eholland@allfela.com -- HOLLAND LAW FIRM LLC. Laveta Jordan, Plaintiff, represented by Randall S. Crompton -- scrompton@allfela.com -- HOLLAND LAW FIRM LLC. Jennifer Baggett, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Cheryl Denbow, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Jennifer Dischbein, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Tiffany Queen, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Erica Ware, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Michelle Weedman, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Lavena Wilkerson, Plaintiff, represented by Eric D. Holland, HOLLAND LAW FIRM LLC & Randall S. Crompton, HOLLAND LAW FIRM LLC. Bayer Corp., Defendant, represented by W. Jason Rankin -- jrankin@heplerbroom.com -- HEPLER BROOM. Bayer Healthcare LLC, Defendant, represented by W. Jason Rankin, HEPLER BROOM. Bayer Essure, Inc., Defendant, represented by W. Jason Rankin, HEPLER BROOM. Bayer HealthCare Pharmaceuticals, Inc., Defendant, represented by W. Jason Rankin, HEPLER BROOM. BJ'S WHOLESALE: Connecticut Narrows Claims in "O'Reilly" -------------------------------------------------------- The United States District Court for District of Connecticut issued an Order granting in part and Denying in part the Defendant's Motion to Dismiss in the case captioned JOHN O'REILLY, Plaintiff v. BJ's WHOLESALE CLUB, INC., Defendant. No. 3:16-cv- 01351 (D. Conn.). Plaintiff John O'Reilly filed a four-count amended complaint against Defendant BJ's Wholesale Club, Inc., alleging breach of contract (Count One), negligence (Count Two), "class action claims" (Count Three), and violation of the Connecticut Unfair Trade Practices Act. Defendant moves to dismiss, arguing that Plaintiff's amended complaint (i) fails to establish personal jurisdiction, (ii) does not allege the $75,000 in damages required to satisfy 28 U.S.C. Section 1332, (iii) is time-barred under Connecticut's negligence action statute of limitations, and (iv) does not meet the requirements for a class action lawsuit under Rule 23. Plaintiff alleges that he is a member of Defendant's wholesale club and was shopping at Defendant's North Haven, Connecticut location on August 8, 2014. While checking-out his purchases, Defendant's cashier dropped a bottle of cleaning solution into Plaintiff's shopping cart, causing the bottle to break and splashing cleaning solution into Plaintiff's eyes and onto his face. Plaintiff alleges, inter alia, that he has experienced repeated incidents of blurred vision caused by the cleaning solution splashed in his eyes at Defendant's store, and that this resulted in numerous falls and injuries. Plaintiff also brings class allegations on behalf of himself and other victims of accidents caused by Defendant's employees' negligence. The Court grants Defendant's 12(b)(6) motion to dismiss as to Plaintiff's time-barred negligence claim (Count Two). Plaintiff does not allege that relevant facts were concealed from him by Defendant, that he was unaware of his injury, or that he was delayed in any other way that might warrant equitable tolling. Indeed, the letters from Attorney Davis filed on the docket show that the Plaintiff was aware of his claim and was seeking to negotiate an out-of-court resolution of it well before the statute of limitations ran. The negligence claim is therefore dismissed. The Court denies Defendant's 12(b)(1) and 12(b)(2) motions for lack of personal and subject matter jurisdiction. Defendant argues that Plaintiff's complaint should be dismissed for lack of subject matter jurisdiction because the matter in controversy fails to exceed the $75,000 amount in controversy required for diversity jurisdiction under 28 U.S.C. Section 1332(a)(1). The Court held that the fact that Plaintiff was willing to accept less than $75,000 as a settlement to avoid trial is not proof that the full value of his claim is less than $75,000. As courts have consistently recognized in the context of the Federal Rules of Evidence, statements made during settlement negotiations have "the potential to end the instant federal litigation in an amicable fashion and . . . should therefore be excluded as evidence of conduct or statements made in compromise negotiations." The Court denies Defendant's motion to dismiss Plaintiff's class allegations. The Plaintiff has included in his complaint, as a separate count, "class action allegations." But those allegations are not a distinct legal cause of action, however they might be labeled. They are, instead, merely allegations aimed at invoking a joinder device recognized by Federal Rule of Civil Procedure 23. They are, therefore, not a proper target of a Rule 12(b)(6) motion, which is used to attack allegations for a "failure to state a claim upon which relief can be granted." In any event, it is premature to consider the class allegations because the Plaintiff has filed no motion to certify a class. The motion to dismiss the "Third Count" is therefore denied. The case will proceed as to the breach of contract claim (Count One) and the CUTPA claim (Count Four). A full-text copy of the District Court's July 17, 2017 Order is available at https://is.gd/ie4IrE from Leagle.com John O'Reilly, Plaintiff, Pro Se. BJ's Wholesale Club, Inc., Defendant, represented by Nicole Marie Paquette, Mullen & McGourty, P.C. & Robert W. Cassot -- rcassot@morrisonmahoney.com -- Morrison, Mahoney LLP. BRISTOL-MEYERS: Michigan Court Dismisses TCPA Suit -------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order granting Defendants' Motion to Dismiss Amended Complaint and denying as moot Plaintiffs' Motion for Class Certification in the case captioned Health One Medical Center, Eastpointe, P.L.L.C., Plaintiff, v. Bristol-Myers Squibb Company and Pfizer, Inc., Defendants, Case No. 16-cv-13815 (E.D. Mich.). Plaintiff Health One Medical Center, Eastpointe PLLC has filed a putative class action against defendants Mohawk, Inc., Bristol- Myers Squibb Co. ("BMS"), and Pfizer, Inc., for alleged violations of the Telephone Consumer Protection Act ("TCPA"). On August 8, 2016, plaintiff received an unsolicited fax advertising several pharmaceutical products. On September 8, 2016, plaintiff received a second fax that also advertised several pharmaceutical products, including many of the products listed in the fax received in August. To order these drugs, the customer is directed to fax, call, or email order@mohawkmedical.com. And each fax bears Mohawk Medical's name, address, website, and email address at the top. Defendant BMS produces Kenalog, and defendant Pfizer produces Depo Medrol, and both of these drugs were promoted in the August and September faxes. Plaintiff alleges these defendants "sent the faxes, caused the faxes to be sent, participated in the activity giving rise to or constituting the violation, or the faxes were sent on its behalf. Plaintiff's first claim is that the faxes do not comply with the TCPA because there is no opt-out notice that meets the statutory and regulatory requirements. For these alleged TCPA violations, plaintiff seeks statutory and/or treble damages, an injunction, and any other costs and relief the Court deems just and proper. Plaintiff also claims that the faxes amount to common law and statutory conversion. Defendants have brought motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and BMS also argues the Court lacks personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). The party seeking to establish the existence of personal jurisdiction bears the burden to establish such jurisdiction. To defeat [a motion to dismiss for lack of personal jurisdiction, a plaintiff] need only make a prima facie showing of jurisdiction. A complaint must state a claim that is plausible on its face.. A plausible claim need not contain detailed factual allegations, but it must contain more than labels and conclusions or a formulaic recitation of the elements of a cause of action. Pfizer argues plaintiff fails to state a claim for a TCPA violation, common law conversion, and statutory conversion. BMS also argues that plaintiff fails to state a claim, and that the Court lacks personal jurisdiction over it. Pfizer argues it cannot be held liable because plaintiff alleges no facts showing (1) any action or inaction on its part; (2) participation in the creation or transmission of the faxes; (3) a business relationship between Pfizer and Mohawk, Inc.; (4) Pfizer was aware that Mohawk sent the faxes; (5) Pfizer sold products to Mohawk or knew Mohawk was selling its products; or (6) Pfizer was aware of Mohawk. BMS makes these same arguments with respect to the TCPA claim against it. Assuming the Court has jurisdiction over BMS, the analysis below applies with equal force to BMS. Plaintiff alleges that Pfizer, Inc. qualifies as a "sender" for several reasons because it actually sent the faxes and one of its products is listed in the faxes. But plaintiff also claims former defendant Mohawk, Inc. actually sent the faxes at issue. because plaintiff has not alleged any action or relationship between defendants that would raise an inference that Pfizer knew Mohawk was sending the faxes, plaintiff has not sufficiently pleaded that defendant "caused the faxes to be sent, participated in the activity giving rise to or constituting the violation, or the faxes were sent on their behalf. Plaintiff argues that it need not allege more than that defendant's products are listed in the advertisements because a sender includes the entity "whose goods or services are advertised or promoted in the unsolicited advertisement. To support this argument, plaintiff relies on Siding and Insulation Co. v. Alco Vending. But these cases are insufficient, the Court held. In each of those cases, plaintiffs alleged that the defendants whose products were advertised had hired an advertising agency that sent the faxes to plaintiffs, and defendants acknowledged that they had hired the ad agency. Plaintiff's allegation that Pfizer's product is listed on the faxes is insufficient to sustain the TCPA claim. Accordingly, defendant's motion to dismiss the TCPA claim is granted. Pfizer argues plaintiff has failed to state a claim for conversion or statutory conversion because the facts show that Mohawk, Inc. sent the faxes and no other allegations suggest Pfizer, Inc. committed an intentional or wrongful act. In Michigan, common law conversion includes any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein. Plaintiff has failed to plausibly allege that Pfizer, Inc. sent or requested the faxes be sent or had any knowledge of or relationship with Mohawk, Inc., the Court held. Thus, plaintiff has failed to plead that Pfizer, Inc. intended to exercise dominion over plaintiff's property or innocently or intentionally aided or abetted Mohawk, Inc. in conversion. Accordingly, the common law and statutory conversion claims are dismissed. Defendant BMS argues plaintiff has failed to state a claim and that the Court lacks personal jurisdiction over it. It is undisputed that BMS is not incorporated in Michigan, and has not consented to the jurisdiction of this court. Thus, this Court can exercise jurisdiction pursuant to MICH. COMP. LAWS Section 600.711 only if defendant carries on a continuous and systematic part of its general business within Michigan. Even assuming that the Court has personal jurisdiction over BMS, the analysis as to whether Pfizer, Inc. violated the TCPA and is liable for conversion would be equally applicable to BMS, the Court further held. Defendants' motions to dismiss are granted. A full-text copy of the District Court's July 17, 2017 Order is available at https://is.gd/yJnrH7 from Leagle.com. Health One Medical Center, Eastpointe P.L.L.C., Plaintiff, represented by David M. Oppenheim -- david@classlawyers.com -- Bock, Hatch, Lewis, & Oppenheim, LLC. Health One Medical Center, Eastpointe P.L.L.C., Plaintiff, represented by James M. Smith-- jim@classlawyers.com -- Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC, Jonathan Piper -- jon@classlawyers.com -- Bock & Hatch LLC, Robert M. Hatch -- rhatch@bfrhawaii.com -- Macey, Chern, Tod A. Lewis -- tod@classlawyers.com -- Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC & Phillip A. Bock -- phil@classlawyers.com---Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC. Bristol-Myers Squibb Company, Defendant, represented by Debra Bogo-Ernst, --dernst@mayerbrown.com -- Mayer Brown LLP & Robert H. Ellis -- rellis@dykema.com -- Dykema Gossett. Pfizer, Inc., Defendant, represented by Rebecca J. Schwartz -- rschwartz@shb.com -- Shook, Hardy & Bacon L.L.P. CALIFORNIA: Sued Over Medicaid "Spousal Impoverishment" Rule ------------------------------------------------------------ Stephanie O'Neill, writing for California Healthline, reports that former Los Angeles radio announcer Pat Kelley was selling real estate in 1999 when the severe backaches started. A couple of years later, he also began to suffer weakness in his foot, leading to a fall so serious his wife insisted he see a doctor. The diagnosis: "primary progressive multiple sclerosis," the rarest form of the neurological disease. "My symptoms just got worse and worse and worse," Mr. Kelley said. Today, Mr. Kelley, 67, retains only the limited use of his left hand. "He's gone from a limp to a cane to a walker to a wheelchair to now he can't move," said Melody Rogers, Mr. Kelley's wife of 29 years. "He can't sit up by himself." Mr. Kelley now needs 24-hour care, but the couple can't afford it. The nearly quarter-million dollars they've spent on caregiving since 2012 has almost depleted their savings, the couple said. And the $4,000 they pay monthly for five hours of daily care puts a severe strain on their income from their combined Social Security checks and pensions and Ms. Rogers' income from a part- time job. "I don't know how much longer I can keep working," said Ms. Rogers, 75, a former actress who sells real estate part time to help pay for her husband's care. "The emotional, physical, spiritual and financial strain on a caregiver is just unbelievable." Mr. Kelley is a plaintiff in a lawsuit filed by four non-profit advocacy groups seeking to provide disabled Californians and their spouses financial relief promised under the federal Medicaid Act. The organizations are seeking class-action status for the lawsuit, alleging the state is denying assistance to more than 1,000 qualified married and disabled Californians. The complaint, filed in Los Angeles County Superior Court, accuses the state's Department of Health Care Services of failing to implement a Medicaid "spousal impoverishment" rule intended to keep spouses, who want to keep their disabled partner out of a nursing facility, from going broke paying for home-based care. Under federal law, the spouse of the disabled person is allowed to keep $120,900 in assets and a higher income rather than just the $3,000 Medicaid would otherwise allow a couple to keep. When originally passed in 1988, the spousal protection law took effect only when one spouse entered a nursing home. But Congress expanded the protection so that people like Mr. Kelley, who qualify for the high level of care provided in a nursing facility, could get it at home. But California isn't allowing that, the lawsuit says. California "should have implemented the [expanded] law in 2014, but it has failed to do so for the past three years, said Dipti Singh, an attorney with Bet Tzedek Legal Services in Los Angeles, one of the advocacy organizations that filed the lawsuit. A spokesman for the Department of Health Care Services said on July 7 the agency had not yet reviewed the pending lawsuit and would not comment on it. "As the population ages, we're going to be confronted more and more with the economic and social . . . need for in-home care that doesn't bankrupt families," Ms. Singh said. "That's what this law was trying to do." According to the lawsuit, California's failure to implement the expanded protections has caused patients and their spouses "either [to] submit to institutionalization or become impoverished." The petitioners are asking the court to force California to immediately apply the expanded spousal protections, to notify Californians who potentially were eligible for the protections of their rights and to reimburse them for any out-of-pocket expenses they paid that should have been free. "It's much more cost-effective to provide home and community-based services as opposed to institutionalized care," Ms. Singh said. "In the case of our clients and many other individuals with disabilities . . . they would rather stay at home with their spouses and their families." Ms. Rogers, meanwhile, said she will do all she can to keep her husband out of a nursing facility, even as his disease progresses and caregiving becomes harder for her. "I just can't do that to him," she said. "I think he would die." [GN] CALIFORNIA SUPPLY: Fails to Pay OT and Minimum Wages, Kuhia Says ---------------------------------------------------------------- MARIGO KUHIA, an individual, on behalf of herself and all others similarly situated, the Plaintiff, v. CALIFORNIA SUPPLY, INC., a California corporation; CALIFORNIA SUPPLY NORTH, INC., a California corporation; CALIFORNIA LABEL PRODUCTS, INC., a California corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. BC668430 (Cal. Super. Ct., July 13, 2017), seeks to recover overtime wages and minimum wage under California Labor Code. The Plaintiff, on behalf of herself and other similarly situated current and former non-exempt employees of Defendants in the State of California at any time during the four years preceding the filing of this action, and continuing while this action is pending, brings this class action to recover, among other things, wages and penalties from unpaid wages earned and due, including but not limited to unpaid minimum wages, unpaid and illegally calculated overtime compensation, illegal meal and rest period policies, failure to pay all wages due to discharged and quitting employees, failure to indemnify employees for necessary expenditures and/or losses incurred in discharging their duties, failure to provide accurate itemized wage statements, failure to maintain required records, and interest, attorneys' fees, costs, and expenses. Oregon California Supply was founded in 1996. The company's line of business includes the retail sale of a number of basic hardware lines, such as tools, housewares and household appliances.[BN] The Plaintiff is represented by: Matthew J. Matern, Esq. Matthew W. Gordon, Esq. Braunson C. Virjee, Esq. MATERN LAW GROUP, 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531 1900 Facsimile: (310) 531 1901 CAPITAL MANAGEMENT: Placeholder Bid for Class Certification Filed ----------------------------------------------------------------- In the lawsuit titled MORGAN OTTMANN, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CAPITAL MANAGEMENT SERVICES, LP, the Defendant, Case No. 2:17-cv-00995 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a proposed class in this case, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=4EKP8ACu The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com CARRINGTON MORTGAGE: Bid for Partial Judgment in "Kautsman" OK'd ---------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued an Order granting Defendants' Motion for partial judgment on the pleadings in the case captioned NIKOLAY KAUTSMAN and OLGA KOFANOVA, Plaintiffs, v. CARRINGTON MORTGAGE SERVICES LLC, Defendant, Case No. C16-1940-JCC (W.D. Wash.), with leave to amend complaint. Plaintiffs are the fee title owners of a single family home in Redmond, Washington. Defendant Carrington Mortgage Services is the servicer of the mortgage. Plaintiffs defaulted on their mortgage. Defendant directed its employees to break into Plaintiffs' Residence, change the locks, and take possession of the Residence. Plaintiffs filed a class action suit in state court for breach of contract; violations of the duty of good faith and fair dealing; violations of Washington's Consumer Protection Act (CPA); and negligent supervision. Plaintiffs seek damages based on the costs associated with rekeying their locks, reimbursement for inspection costs, and costs associated with consulting legal counsel. Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." For a breach of contract claim, the party claiming breach must assert that there was indeed a contract between the plaintiff and the defendant. Plaintiffs failed to provide any precedent that would indicate that Plaintiffs have a contract with Defendant as a loan servicer. Defendant acted as an agent of the note owner, and therefore, the Court finds there was no contract between Plaintiffs and Defendant. Thus, the Court dismisses the breach of contract claim. The duty of good faith arises only in connection with terms agreed to by the parties. In order to bring a good faith and fair dealing claim, a party must identify the contractual obligation that was breached by the opposing party. Plaintiffs, according to the Court, have not sufficiently pleaded there was indeed a contract between themselves and Defendant. Without a contract and specific contractual duties, there is no duty of good faith and fair dealing. Consequently, the Court dismisses the breach of good faith and fair dealing claim. The Court takes as true Plaintiffs' allegations that Defendant ordered the inspector to change the locks despite the fact that the property was not abandoned. However, the Court need not consider the sufficiency of these claims because Plaintiffs acknowledge their negligent supervision claims lack essential allegations and seek leave to amend. Therefore, the Court dismisses the negligent supervision claim. Defendant's motion for partial judgment on the pleading is granted. Plaintiffs' breach of contract, duty of good faith and fair dealing, and negligent supervision claims are dismissed with prejudice and with leave to amend. A full-text copy of the District Court's July 13 2017 Order is available at https://is.gd/6aj8nu from Leagle.com. Nikolay Kautsman, Plaintiff, represented by Harish Bharti, Esq. -- mail@hbharti.com Nikolay Kautsman, Plaintiff, represented by Jason E. Anderson, Esq. -- jason@jasonandersonlaw.com Olga Kofanova, Plaintiff, represented by Harish Bharti & Jason E. Anderson. Carrington Mortgage Services LLC, Defendant, represented by Tina R. Thomas, Esq. -- Tthomas@perkinscoie.com -- PERKINS COIE & Amanda J. Beane, Esq. -- Abeane@perkinscoie.com -- PERKINS COIE. CASSIDY'S POLO: Exotic Dancers' Wage Class Action Pending --------------------------------------------------------- Amarillo Globe-News reports that Cassidy's Polo Club is in the news for the second time in two months. This time, a breast implant was found inside the strip club's bar utensil holder. There was no word on how the breast implant came to be there. Other violations from the June 23 inspection detailed in a report included the lack of a certified food manager, bottle nozzles and beer cooler racks that needed to be cleaned and floor tiles that needed to be replaced. Test strips to measure pH balance were also not present. That gave Cassidy's a total of nine demerits, which is considered "an average number" by the City of Amarillo's Environmental Health Department. No one was available for comment on July 9 at Cassidy's, 6019 S.W. 45th Ave. Environmental Health Supervisor Anthony Spanel said on July 9 he was not at the site during the time of the inspection and the only details he could offer would be speculative. In May, two exotic dancers filed a class action lawsuit against the club. Angela Parker and Jessica Collins are alleging the staff was withholding their tips for operating costs, not paying wages and forcing the dancers to pay a house fee. "They're forcing them to rely on tips alone, and what's even worse is that the dancers have to pay the club to work there," said attorney Jeremi Young, a partner at Amarillo's Young &Newsom P.C. "The bottom line is Cassidy's is using money that belongs to the dancers to subsidize their operation, and that's what makes it illegal." The alleged business model would violate the Fair Labor Standards Act, in which tipped employees are entitled to at least $2.13 per hour, though the model is common throughout the strip club industry. Player's Bikini Club was also named in the lawsuit. Owner Kenneth Barnett did not want to comment on the class action suit when it was filed at the end of May. [GN] CENTRAL CREDIT: Placeholder Bid for Class Certification Filed ------------------------------------------------------------- In the lawsuit entitled JENNIFER ASSELIN, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CENTRAL CREDIT SERVICES, LLC, and SYNCHRONY BANK, the Defendants, Case No. 2:17-cv-00991-DEJ (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a proposed class in this case, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kajjyjC5 The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com CENTURYLINK INC: Sued Over Unauthorized Charges in Arizona ---------------------------------------------------------- Carol Ann Alaimo, writing for Arizona Daily Star, reports that a Phoenix man who claims he was systematically cheated by CenturyLink has filed a federal lawsuit against the telecom firm, one that stands to benefit "thousands" of other Arizona customers if it succeeds, his lawyer says. The class-action complaint, filed July 6 in U.S. District Court in Phoenix, accuses the company of padding its profits by "adding false and unauthorized charges" to phone and internet bills and then failing to remove them after customers complained. The Arizona case marks an expansion of a potential $12 billion in similar class actions recently filed against CenturyLink in California, Colorado, Idaho, Nevada, Oregon and Washington. The plaintiffs are being represented by celebrity law firm Geragos & Geragos of Los Angeles, which has represented the likes of Winona Ryder, Chris Brown and the late Michael Jackson. Attorney Ben Meiselas of Geragos & Geragos said the law firm received "thousands of emails from victims in Arizona" after filing cases in other states and hopes to recover all the money consumers lost. The string of court cases comes on the heels of a whistleblower lawsuit filed against CenturyLink in Maricopa County by a former customer-service representative. The ex-employee claims she was fired after alerting management that many customers had accounts they hadn't signed up for or were being billed for services they hadn't ordered. CenturyLink spokesman Mark Molzen said the firm is investigating the former employee's allegations, but suggested claims of widespread wrongdoing are being manufactured by lawyers looking for a payday. "A law firm is trying to leverage a wrongful termination suit into a putative class-action lawsuit," Mr. Mozen said. "Unfortunately, these types of opportunistic follow-on claims are not unexpected." The man at the center of the Arizona class action, Luke Roger Allison of Phoenix, is a pest inspector and CenturyLink customer for the last several years. The lawsuit claims Allison was repeatedly billed at inflated prices and charged for services he didn't order, leaving him out of pocket by about $500. It's not the first time CenturyLink has faced such allegations in Arizona. Last year, state Attorney General Mark Brnovich's office investigated similar claims and concluded the firm violated Arizona's Consumer Fraud Act. CenturyLink disputed the findings, but agreed to pay $150,000 to the state's revolving consumer-protection fund and to clearly itemize all financial charges in writing when customers sign up for services. [GN] CHADBOURNE & PARKE: Norton Ross Added to Gender Bias Suit --------------------------------------------------------- Christine Simmons, writing for Law.com, reports that Norton Rose Fulbright can be added to a $100 million gender bias suit filed last year against its merger partner, Chadbourne & Parke, a federal magistrate judge ruled on July 5. Former partner Kerrie Campbell filed the suit in the Southern District last August, alleging Chadbourne consistently underpaid women. The plaintiffs attorney, David Sanford, Esq. -- dsanford@sanfordheisler.com -- of Sanford Heisler Sharp, on June 30 asked to add the successor firm, Norton Rose, to the suit as a defendant. His request came the same day the firms solidified their combination. Mr. Sanford also asked to add allegations about a Chadbourne lawyer who sought to join the suit, Mary Yelenick, and add allegations about "material developments" since the complaint was filed. Chadbourne's attorney, Kathleen McKenna, Esq. -- kmckenna@proskauer.com -- a Proskauer Rose partner, objected to any amendment. In a July 5 discovery scheduling order, Southern District Magistrate Judge Barbara Moses granted Mr. Sanford's request to amend the suit "for the limited purpose" of adding Norton Rose and allegations about Yelenick. She wrote that those amendments would simply "conform the pleadings to the current cast of characters," before any substantive motions. However, Judge Moses denied Mr. Sanford's request to add more details about "material developments," reminding the parties of the June order from the Southern District judge overseeing the case, J. Paul Oetken, who rejected a proposed amended complaint for more retaliation allegations. Mr. Oetken had denied competing motions and ordered "limited" discovery to determine if three former Chadbourne partners deserved protection under employment laws, or if their former status as partial owners of the firm disqualified them from bringing the suit. Moses, in her July 5 order, outlined 2017 and early 2018 deadlines for discovery and set an Oct. 20 status conference. CHARTER COMMUNICATIONS: Court Narrows Claims in "Michael" --------------------------------------------------------- The United States District Court for the Eastern District of Missouri, Eastern Division, issued an Order granting in part and denying in part Defendant's Motion to Dismiss the case captioned A. MICHAEL, Plaintiff, v. CHARTER COMMUNICATIONS, INC., Defendant, Case No. 4:17 cv 1242 JMB (E.D. Mo.). This matter is a putative class action suit by a former customer against a telecommunications company related to its privacy practices for customer information. At issue here are a number of interrelated motions pertaining to whether Plaintiff must disclose his full name in a putative consumer class action, as well as the treatment of other "personally identifiable information" about Plaintiff and other potential class members. The Court finds that the equities of the situation weigh in favor of allowing the Response to stand despite its late filing. There is no indication that the error was committed in anything other than good faith. The length of the delay was relatively short, and at this early stage of litigation it does not delay the overall timing of the proceeding. There is a "judicial preference for adjudication on the merits" rather than on technicalities. Therefore, the Court will grant the Motion for Leave and take Plaintiff's Response into consideration. Plaintiff asserts that he should be allowed to proceed anonymously. The Court finds that the general presumption in favor of public disclosure of a plaintiff's identity is even stronger in a case which is pled as a putative class action, because the named plaintiff is purporting to represent other members of the public. Class representatives have a fiduciary obligation to fairly represent the entire class, and generally receive an incentive award as compensation for work done on behalf of the class. Even if there was some heightened interest in the privacy of the class members here, Plaintiff's status as the putative named plaintiff requires that he be the named plaintiff. The second issue raised in the Motion to Dismiss is that Plaintiff did not plead his circumstances with sufficient detail to allow Defendant to determine whether Plaintiff had actually been a customer and whether certain defenses were applicable, most notably whether there was a binding arbitration agreement governing Plaintiff's claims. The standard for adequacy of a complaint cannot be dependent upon the specific needs of a defendant's internal record-keeping system. Charter's inability to search its system for its documents does not prevent it from framing a responsive pleading. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. The Court is cognizant that Defendant would prefer to assert its defenses at the earliest possible point without going through the expense of discovery, especially if there is something dispositive like a binding arbitration agreement. Under Rule 5.2(e), a court may for good cause order redaction of additional information or limit non-parties' ability to access a document. As discussed above, being publicly named as a Charter customer is not such an invasion of deeply personal matters so as to overwhelm the First Amendment interest in open court proceedings. Finally, the home addresses of the putative class members fall under the redaction requirement of Local Rule 5- 2.17(a)(5), as they are non-parties unless and until a class is certified. Therefore, the only personally identifiable information with any arguable privacy implications covered by Plaintiff's requested motion would be his own address. Plaintiff's Motion for Leave to File Out of Time is granted; Defendant's Motion to Dismiss and for More Definite Statement is granted in art and denied in part, in that Plaintiff is ordered to file an amended complaint including his full name in the caption. Plaintiff's Motion for Protective Order and for Leave to Proceed Anonymously is granted in art and denied in part, in that the parties shall redact Plaintiff's address from any filings with the Court until the Rule 16 Scheduling Conference is held. A full-text copy of the District Court's July 13 2017 Order is available at https://is.gd/wW9vv9 from Leagle.com. A. Michael, Plaintiff, represented by Ryan P. Horace -- ryan@swmwlaw.com -- SWMK LAW. Charter Communications, Inc., Defendant, represented by Matthew D. Guletz -- mguletz@thompsoncoburn.com -- THOMPSON COBURN, LLP & Roman P. Wuller -- rwuller@thompsoncoburn.com -- THOMPSON COBURN, LLP. CIRRUS CONSULTING: Court Denies Bid to Dismiss "Zauderer" --------------------------------------------------------- Magistrate Judge M. Page Kelley of the U.S. District Court for the District of Massachusetts denied the Defendants' Motion to Dismiss the case captioned MARC J. ZAUDERER, DMD, a Massachusetts resident, individually and as the representative of a class of similarly-situated persons, Plaintiff, v. CIRRUS CONSULTING GROUP (USA), INC., a Delaware corporation, CIRRUS CONSULTING GROUP INC., a Canadian corporation, JEREMY BEHAR, JOANNA BEHAR, ALAIN SABBAH and JOHN DOES 1-5, Defendants, Civil Action No. 16-11742-MPK (D. Mass.). The Plaintiff filed this putative class action against the Defendants, alleging violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Prevention Act of 2005, by sending him an "unsolicited advertisement" via fax. On April 10, 2014, the Defendants transmitted an unsolicited fax promoting an upcoming seminar that was to be held on May 20, 2014 to the Plaintiff by telephone fax machine. The Defendants allegedly sent the same and other unsolicited faxes to more than 40 additional recipients. Zauderer contends that these unsolicited faxes caused him and other recipients damages that include: (i) loss of paper and toner consumed in the printing of the Defendants' faxes; (ii) occupation of telephone lines and fax machines; (iii) waste of time receiving, reviewing and routing faxes; and (iv) interruption of the privacy interest to be left alone. Presently before the Court is the Defendants' motion to dismiss for lack of standing; the Plaintiff has responded in opposition; and the Defendants have replied. The Defendants assert that the Plaintiff lacks standing under Article III because he has not alleged an injury in fact as a result of the Defendants' fax. Judges in this district have found that a mere technical violation of the TCPA is, by itself, a concrete injury sufficient to confer standing, the Court said. In short, Zauderer has alleged adequately that he suffered a concrete harm sufficient to confer standing. The fax received by the Plaintiff rendered his fax line unavailable for legitimate business messages while processing the junk fax, and interfered with Zauderer's privacy interest to be left alone -- the precise harm Congress sought to protect by enacting the TCPA. Accordingly, the Defendants' Motion to Dismiss be, and the same holding, is denied by the Court. A full-text copy of the Court's July 14, 2017 order is available at https://is.gd/iclO95 from Leagle.com. MARC J ZAUDERER, Plaintiff, represented by Alan L. Cantor -- acantor@swartzlaw.com -- Swartz & Swartz. MARC J ZAUDERER, Plaintiff, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson & Wanca, pro hac vice & Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca. CIRRUS CONSULTING GROUP (USA), INC., Defendant, represented by Paul R. Mastrocola, Burns & Levinson & Laura Lee Mittelman, Burns & Levinson LLP. CIRRUS CONSULTING GROUP INC., Defendant, represented by Paul R. Mastrocola -- pmastrocola@burnslev.com -- Burns & Levinson & Laura Lee Mittelman -- lmittelman@burnslev.com -- Burns & Levinson LLP. COLLECTO INC: Rivera Files Placeholder Class Certification Bid -------------------------------------------------------------- In the lawsuit styled KELLEY RIVERA, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. COLLECTO, INC. d/b/a EOS CCA, the Defendant, Case No. 2:17-cv-00993 (N.D. Ill.), the Plaintiff asks the Court to enter an order certifying a proposed class in this case, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=0qEithLJ The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com COLTON, CA: Settles False Arrest Suit for $150,000 -------------------------------------------------- City News Service reports that a man who highlighted long-standing flaws in California's warrants system after law enforcement arrested him on a warrant meant for someone else has settled his civil rights case against the County of San Bernardino and the City of Colton. In 2016, Manuel Bravo Martinez filed a federal complaint against the county and its sheriff's department and the City of Colton and its police, claiming officials had jailed hundreds of people on warrants meant for someone else. In some cases, officials had mistakenly arrested people on the warrants multiple times, according to Martinez. On July 6, Martinez filed court documents confirming that the parties had settled the case. "The city council of defendant City of Colton and the board of supervisors for defendant County of San Bernardino have approved settlement agreements disposing of this case; plaintiff awaits only the issuance of the settlement checks," the two-page filing states. Martinez was jailed at the San Bernardino County Jail Central Detention Center on Aug. 11, 2015 after a Colton police officer stopped him during a morning drive for failing to use a proper child restraint in his vehicle. Martinez said officers arrested him after running a warrant check and finding an outstanding warrant for another Manuel Martinez who was facing fraud, drug and weapon charges. But there were major differences between the subject of the warrant and Martinez, he said. He had a different middle name, and he is not a "junior" as the suspect was. Their birth dates were two months and eight days apart. Martinez had an address in Hawaii, but the man on the warrant lived in California -- and their drivers' license numbers were different. Colton police Officer Matthew Collins arrested and jailed Martinez despite his protests, he said. He added that jailers should have realized their error because his fingerprints were on file from a 2007 misdemeanor conviction for reckless driving. Martinez spent the night in jail, was arraigned the next day and posted a $100,000 bond. San Bernardino County Superior Court Judge Raymond Haight cleared Martinez after comparing his identifying information with the identifiers on the warrant, Martinez said in the complaint. Martinez's attorney, Donald Cook, Esq. has filed multiple lawsuits against Los Angeles County seeking to fix flaws in the state's warrants system. The attorney has repeatedly urged law enforcement officials to use the unique identifying numbers on warrants. "This is not the result of aberrational behavior," Cook said in an interview with Courthouse News in 2016. "This is the result of a systematic failure by law enforcement to simply exonerate the innocent, the people that they really know, should know, are innocent. They have an attitude of they don't really care if in fact it's not the right person." San Bernardino County sheriff's department records going back five years showed that up to 450 people were jailed on the wrong warrants and that officials knew about the problem but did nothing to fix it, Martinez said. Cook wrote in an email on July 6 that the case had settled for $150,000 with no formally acknowledged changes to the warrant system. The class action complaint was for false arrest, wrongful incarceration and false imprisonment. San Bernardino County spokesman David Wert said that he could not comment on cases related to the sheriff's department. The City of Colton did not immediately respond to a request for comment. [GN] CONVERGENT OUTSOURCING: Texas Stays "Alexander" Suit ---------------------------------------------------- The United States District Court for the Southern District of Texas, Houston Division, issued a Memorandum and Order Granting Defendant's Motion to Stay the case captioned TAMARA ALEXANDER, Plaintiff, v. CONVERGENT OUTSOURCING, INC., Defendant, Civil Action No. H-16-3318 (S.D. Tex.). Tamara Alexander alleges that Convergent Outsourcing violated the Fair Debt Collection Practices Act by sending her multiple debt- collection letters after the statute of limitations for suing to collect the debt had expired. On September 8, 2016, the Fifth Circuit Court of Appeals issued Daugherty v. Convergent Outsourcing, Inc.. The opinion held that an identical debt-collection letter from Convergent Outsourcing violates the Fair Debt Collection Practices Act. Plaintiff seeks to certify a class of Texas consumers who received one or more debt-collection letters with the same or similar language after the statute of limitations had expired. Convergent Outsourcing moved to stay on the basis of an earlier- filed, nearly identical case in the United States District Court for the District of Colorado, Ross v. Convergent Outsourcing, Inc., et al. Since the court granted the first stay, much has happened in Ross. Motions to intervene have been filed, including a motion to intervene by the plaintiff in this suit. The submission date for those motions is early August. Despite filing a motion to intervene in the Colorado suit. Alexander opposes extending the stay in this case. The Court held that the reasons for granting the first stay continue to apply. The nationwide settlement class in the Colorado litigation is closer to decision. If it is approved, it would subsume this Texas class action. Convergent Outsourcing's motion to extend the stay of the proceedings is granted. A full-text copy of the District Court's July 17, 2017, Memorandum and Order is available at https://is.gd/HUxWPx from Leagle.com. Tamara Alexander, Plaintiff, represented by Caitlyn Nicole Wells, Kellett & Bartholow PLLC. 11300 N Central Expy, Suite 301Dallas, TX 75243 Tamara Alexander, Plaintiff, represented by Karen L. Kellett, Kellett & Bartholow PLLC & Theodore O. Bartholow, III, Kellett & Bartholow PLLC. 11300 N Central Expy Ste 301, Dallas, TX 75243 T (214) 696-9000 Convergent Outsourcing, Inc., Defendant, represented by Robbie LuAnn Malone, MALONE AKERLY MARTIN PLLC. 8750 North Central Expressway, Ste 1850, Dallas, TX 75231 Phone: +1 214 346 2630 COPLEY PRESS: Court to Redetermine Class Award in "Espejo" Suit --------------------------------------------------------------- In the case captioned LILIANA ESPEJO, et al., Plaintiffs and Appellants, v. THE COPLEY PRESS, INC., Defendant and Appellant, No. D065397 (Cal. App.), the Court of Appeals of California, Fourth District, Division One, affirmed in part and reversed in part the judgment of the trial court with directions to redetermine the class award, attorney fees, and prejudgment interest. The Copley Press, Inc., owner of the San Diego Union-Tribune newspaper (collectively UT), appealed from a second amended and restated judgment after a court trial in this class action brought by and on behalf of persons whom UT formerly engaged as newspaper home delivery carriers. The main issue at trial was whether the carriers were employees of UT or independent contractors. The trial court decided the carriers were employees. UT contended that: (1) the plaintiff class must be decertified because the class representatives were inadequate; (2) the court committed reversible error by not limiting the trial to certified issues and by granting plaintiffs' motion to amend their second amended complaint according to proof; (3) the class should be decertified and the judgment reversed because the court did not and could not manage individualized issues; (4) the court's order bifurcating plaintiffs' cause of action under Business and Professions Code section 17200 to be tried first deprived UT of its right to a jury trial; (5) the class award must be reversed because UT paid carriers enhanced compensation that reimbursed them for expenses the court awarded; (6) the amounts the court awarded were not restitution; (7) the court erred in awarding plaintiffs prejudgment interest; (8) substantial evidence does not support the court's determination that the carriers were employees rather than independent contractors; (9) the court erred in awarding plaintiffs attorney fees under Code of Civil Procedure section 1021.5; (10) even if attorney fees could be awarded, the court erred by not substantially reducing them for limited success; and (11) the court erred by adopting plaintiffs' lodestar amount in awarding attorney fees. The plaintiffs appealed the portion of the judgment awarding them attorney fees, contending that: (1) the court abused its discretion in not awarding an enhancement of the lodestar amount of their fees; and (2) the court erred in ruling they abandoned their cause of action for damages under Labor Code section 2802 and therefore could not recover attorney fees under that statute. The Court of Appeals reversed the portions of the judgment awarding the class members the principal sum of $3,188,445 plus prejudgment interest and attorney fees in the amount of $6,160,416 and remanded the matter. The appellate court also directed the trial court to redetermine the amount of the class award and prejudgment interest, including reducing the award by the amount of any documented and readily identifiable payments, credits, or reversals in the subject expense categories that UT is able to show the class members received, and disallowing recovery for insert credits. The trial court was further directed to redetermine attorney fees, taking into consideration any reductions in the class monetary recovery on remand and whether the fee award should be reduced by the amount of any fees that were attributable to unsuccessful claims that were unrelated to successful claims. In all other respects, the trial court's judgment was affirmed. The plaintiffs were awarded their costs on appeal. A full-text copy of the Court's July 7, 2017 ruling is available at https://is.gd/Xz4hY3 from Leagle.com. Cooley, Steven M. Strauss -- sms@cooley.com -- Seth A. Rafkin, Summer J. Wynn -- swynn@cooley.com -- Heather C. Meservy for Defendant and Appellant. Callahan & Blaine, Daniel J. Callahan, Michael J. Sachs, Jill A. Thomas and Scott D. Nelson -- snelson@walkermurphy.com -- Cadena Churchill and Raul Cadena for Plaintiffs and Appellants. CRESTWOOD MIDSTREAM: 5th Cir. Dismisses Appeal in "Farber" ---------------------------------------------------------- The United States Court of Appeals, Fifth Circuit, issued dismissed, for lack of appellate jurisdiction, the appeals case captioned LAWRENCE G. FARBER, Plaintiff, v. CRESTWOOD MIDSTREAM PARTNERS L.P.; CRESTWOOD MIDSTREAM GP, L.L.C.; ROBERT G. PHILLIPS; ALVIN BLEDSOE; MICHAEL G. FRANCE; PHILIP D. GETTIG; WARREN H. GFELLER; DAVID LUMPKINS; JOHN J. SHERMAN; DAVID WOOD; CRESTWOOD EQUITY PARTNERS L.P.; CRESTWOOD EQUITY GP L.L.C.; CEQP ST SUB L.L.C.; MGP GP, L.L.C.; CRESTWOOD MIDSTREAM HOLDINGS L.P.; CRESTWOOD GAS SERVICES GP, L.L.C., Defendants-Appellees, v. DAVID G. DUGGAN, Appellant. ISAAC ARON, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, v. CRESTWOOD MIDSTREAM PARTNERS L.P.; CRESTWOOD MIDSTREAM GP, L.L.C.; ROBERT G. PHILLIPS; ALVIN BLEDSOE; MICHAEL G. FRANCE; PHILIP D. GETTIG; WARREN H. GFELLER; DAVID LUMPKINS; JOHN J. SHERMAN; DAVID WOOD; CRESTWOOD EQUITY PARTNERS L.P.; CRESTWOOD EQUITY GP L.L.C.; CEQP ST SUB L.L.C.; MGP GP, L.L.C.; CRESTWOOD MIDSTREAM HOLDINGS L.P.; CRESTWOOD GAS SERVICES GP, L.L.C., Defendants-Appellees, v. DAVID G. DUGGAN, Appellant, No. 16-20742 (5th Cir.). This appeal arises from the district court's approval of a zero- dollar class action settlement and award of attorneys' fees in a consolidated lawsuit stemming from a merger between two Delaware entities: Crestwood Midstream Partners LP ("Midstream") and Crestwood Equity Partners LP ("Equity"). In the class action lawsuit, Isaac Aron, a Midstream unitholder and the class representative, alleged that Midstream's directors breached their fiduciary duty in approving the merger and that Equity's preliminary proxy statement omitted material information in violation of federal securities laws and Securities and Exchange Commission ("SEC") rules. The parties settled for additional disclosures, confirmatory discovery, and attorneys' fees. David Duggan, a class member, objected to the settlement. The district court approved the parties' settlement and awarded Aron attorneys' fees over Duggan's objection. Duggan appeals. Duggan has timely appealed. He contends that the Fifth Circuit has jurisdiction to hear the merits of his appeal, arguing that he has Article III standing and that the untimeliness of his objection to the settlement did not constitute a waiver of his right to appeal. The Fifth Circuit begins by addressing the threshold issue of its appellate jurisdiction. Where, as here, an appellant is a nonnamed member of a class certified under Federal Rule of Civil Procedure 23(b)(1)" who has not "intervene[d] in the litigation," the underlying question is "whether [the] appellant should be treated as a party for purposes of appealing a judgment when it was not a party in the proceedings below," not whether the appellant has Article III standing or prudential standing. Duggan provides three reasons why his failure to comply with the notice does not constitute waiver of his appeal. First, even though he failed to file a notice of appearance in the district court, Duggan contends that this failure is not a waiver because the district court's notice stated that objectors need not appear at the fairness hearing and he did not appear. Second, Devlin did not create a jurisdictional rule forbidding the district court from considering his objection. Notwithstanding Duggan's arguments, the Fifth Circuit concludes that it lacks jurisdiction over this appeal because Duggan, a nonparty, non-intervenor, waived his right to appeal by filing an untimely, procedurally deficient11 objection. The fact that the district court considered the merits of Duggan's objection before dismissing it does not cure the waiver problem for Duggan. The district court's June order stated that objectors who filed noncompliant objections would "be deemed to have waived [their] objection(s) (including any right of appeal) . . . unless otherwise ordered by the Court." The court, in approving the settlement agreement, did indeed interrogate the parties relating to the subject matter of Duggan's objection, but it neither indicated that it had accepted, approved, or waived the objection's procedural defects. It certainly did not hold that Duggan had good cause for failing to timely submit his objection. Duggan's reasons for his several failures are lame, the Fifth Circuit said. Duggan opted to go on vacation and he submitted his procedurally deficient objection, however, after he returned from vacation and ten days after the actual deadline. Such choices have consequences. For these reasons, this appeal, for lack of appellate jurisdiction, is dismissed. A full-text copy of the District Court's July 17, 2017, Opinion is available at https://is.gd/XhzNAh from Leagle.com. Thomas Emerson Bilek, for Plaintiff-Appellee. 700 Louisiana, Suite 3950 Houston, TX 77002 James Gregory Waller -- gregwaller@andrewskurth.com -- for Defendant-Appellee Michael Conrad Holmes, for Defendant-Appellee. 1001 Chase Tower St, Houston, TX 77088 Charles B. Hampton, -- champton@mcguirewoods.com -- for Defendant- Appellee. Leif A. Olson, for Appellant. Kenneth Prager Held, for Defendant-Appellee. 333 Clay Street, Suite 3300 Three Allen Center, Houston, TX 77002-4499 Anna St. John, for Appellant,1310 L Street NW, 7th Floor, Washingtong DC 20005 Michael Terrell Murphy -- micheal.t.murphy@klgates.com -- for Defendant-Appellee. Kelly Spragins Sandill -- kellysandill@andrewskurth.com -- for Defendant-Appellee. Theodore H. Frank, for Appellant, L Street NW, 7th Floor, Washingtong DC 20005 Bryan U. Gividen -- bgividen@velaw.com -- for Defendant-Appellee. Elizabeth Chinyere Brandon -- ebrandon@btlaw.com -- for Defendant- Appellee. Juan E. Monteverde -- jmonteverde@monteverdelaw.com -- for Plaintiff-Appellee. James Milligan Wilson, Jr. -- matt@willaw.com -- for Plaintiff- Appellee. Miles Dylan Schreiner -- mschreiner@monteverdelaw.com -- for Plaintiff-Appellee. DAVE BERRY: "Flores" Suit Seeks Unpaid Wages under Labor Code ------------------------------------------------------------- RICHARD FLORES, individually and on behalf of all others similarly situated, the Plaintiff, v. DAVE BERRY & SON'S, INC., a corporation, and Does 1 through 10, inclusive, the Defendants, Case No. BC668431 (Cal. Super. Ct., July 13, 2017), seeks to recover unpaid wages under California Labor Code. The Plaintiff brings this action on behalf of himself and all others similarly situated, as a class action, against Defendants for their (1) failure to pay its current and former pool cleaners in California separately and on an 10 hourly basis for their time spent taking their statutory rest periods and all other "nonproductive time"; (2) its failure to provide paid rest breaks and rest break premiums to its current and former pool cleaners; (3) its failure to provide meal breaks and meal break premiums to its current and former pool cleaners; (4) its failure to reimburse pool cleaners for business expenses; (5) its failure to provide complete wage statements to its current and former pool cleaners; (6) its failure to pay all wages due to former pool cleaners; and (7) unfair business practices based on the foregoing.[BN] The Plaintiff is represented by: Timothy B. Sottile, Esq. Michael F. Baltaxe, Esq. Jeremy D. Scherwin, Esq. Payaam I. Aframian, Esq. SOTTILE EBALTAXE 4360 Park Terrace Drive, Suite 140 Westlake Village, CA 91361 Telephone: (818) 889 0050 Facsimile: (818) 889 6050 EL BESO MEXICAN: "Esteves" Suit Seeks to Certify 3 Classes ---------------------------------------------------------- In the lawsuit captioned EDUARDO ESTEVES, et al., the Plaintiffs, v. Case No. 15-CV-484-LA, EL BESO MEXICAN, and RESTAURANTE, LLC, et al., the Defendants, Case No. 2:15-cv-00484-LA (E.D. Wisc.), the Parties ask the Court for conditional certification of three collective classes: Collective Server Class: "all persons who worked at the El Beso restaurant located at 5030 S. 74th Street in Greenfield, Wisconsin as a Server at any time since September 19, 2012"; Collective Busser/Expeditor Class: "all persons who worked at the El Beso restaurant located at 5030 S. 74th Street in Greenfield, Wisconsin as a Busser and/or Expeditor at any time since September 19, 2012"; Collective Cooks/Dishwasher Class: "all persons who worked at the El Beso restaurant located at 5030 S. 74th Street in Greenfield, Wisconsin as a Cook and/or Dishwasher at any time since September 19, 2012". The Plaintiffs seek to prosecute this action on behalf of themselves and other similarly situated employees of Defendants who Plaintiffs allege were each similarly denied minimum wages for each hour worked and/or overtime premium compensation for each hour worked in excess of forty in a workweek in violation of the FLSA. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=K7IIHA7T The Plaintiffs are represented by: Larry A. Johnson, Esq. Summer H. Murshid, Esq. Timothy P. Maynard, Esq. HAWKS QUINDEL, S.C. 222 E Erie Street, Suite 210 P.O. Box 442 Milwaukee, WI 53202 Telephone: (414) 271 8650 Facsimile: (414) 271 8442 E-mail: ljohnson@hq-law.com smurshid@hq-law.com tmaynard@hq-law.com The Defendants are represented by: Lauren Wick, Esq. Paul R. Erickson, Esq. Lauren L. Wick, Esq. GUTGLASS, ERICKSON, BONVILLE & LARSON, S.C. 735 North Water Street, Suite 1400 Milwaukee, WI 53202-4106 Telephone: (414) 908 0242 Facsimile: (414) 273 3821 E-mail: cpaul.erickson@gebsc.com Lauren.wick@gebsc.com EFFEX CAPITAL: Requests Extension of Time to Respond to Complaint ----------------------------------------------------------------- Maria Nikolova, writing for FinanceFeeds, reports that the New York Southern District Court continues to deliver updates regarding the legal actions against FXCM. The law firm representing John Dittami and Effex Capital, the company implicated in the exit of FXCM from the US retail FX market, has requested another extension of time to respond to the complaint in the Nguyen v. FXCM Inc. et al case. A quick reminder -- the case in question is a class action on behalf of FXCM's customers who traded on the "No Dealing Desk" platform during 2010-2016. The plaintiffs, lead by Vantalie Nguyen, allege that they suffered harm as a result of FXCM's relationship with Effex Capital, LLC as a liquidity provider. The class action has as defendants Global Brokerage Inc (NASDAQ:GLBR), formerly known as FXCM Inc, FXCM Holdings, Dror Niv, William Ahdout, as well as Effex and its principal. According to a Letter Motion, seen by FinanceFeeds, lawyers for Effex and its CEO are now requesting further extension of time to respond to Plaintiff's complaint to September 1, 2017. This is the second time Effex and its CEO request extension -- the Judge assigned to the case had already granted them one to July 14, 2017. The Plaintiff's counsel has consented the relief, which raises the chances that it will be granted. Whereas the lawyers for Effex and its CEO mention no reason for the extension request, we can speculate that this has to do with another case around FXCM -- Effex Capital, LLC et al v. National Futures Association et al. Effex is targeting NFA and is asking for a preliminary injunction against the Association that should see it remove a news release about the settlement between US authorities and FXCM. Effex also requests that NFA removes the complaint against FXCM, involving Effex, and/or amends it accordingly. The briefing schedule on the motion for preliminary injunction has been extended, giving time to NFA to respond by July 24, 2017. An oral argument hearing is reset for August 9, 2017. FinanceFeeds can speculate (only speculate) that Effex Capital and Mr Dittami would like to base their further action on the developments in their lawsuit against NFA. If NFA removes the complaint against FXCM from its website, this will undermine the evidentiary support for the Nguyen case. [GN] EXTRA SPACE: Court Gives Final Approval of "Gomes" Settlement ------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion granting Final Approval of Settlement in the case captioned STEVEN GOMES, JR., on behalf of himself and those similarly situated, Action Plaintiff(s), v. EXTRA SPACE STORAGE, INC.; EXTRA SPACE MANAGEMENT, INC.; and JOHN DOE COMPANIES 1-50, Defendants, No. 2:13-cv-929 (KSH)(CLW)(D.N.J.). This matter comes before the Court on Plaintiff's Motion for Final Approval of the Settlement of the matter brought by Plaintiff Steven Gomes, Jr., against Defendants Extra Storage Space, Inc. and Extra Space Management, Inc. Plaintiff filed a Class Action Complaint in Superior Court on January 11, 2013, alleging that Extra Space's rental agreements contained provisions that violated the New Jersey Self-Storage Facility Act (SSFA), the Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA), and the Consumer Fraud Act (CFA). Settlement agreements for class action lawsuits must be approved by the trial court before they can go into effect. The Third Circuit has developed a nine-factor test to guide district courts in examining whether a settlement agreement is fair, reasonable, and adequate. These factors are: (1) the complexity and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best possible recovery; and (9) the range of reasonableness of the settlement in light of the attendant risks of litigation (citing Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975)). This Court believes that all of the Girsh factors have been met and approves the Settlement Agreement. There are two objectors to the settlement terms, but their objections do not convince the Court that the terms are inadequate. The Court also considers the attorneys' fees and incentive award agreed upon by the parties and finds them to be reasonable. The Court approves the Settlement Agreement despite the two objections because they do not present any argument sufficient to show that the Settlement Agreement is unfair, unreasonable, or inadequate. One objector, Edward Anthony Shields, pro se, objects because the Settlement Agreement does not cover late fees he believes he was unfairly charged for. Mr. Shields seeks reimbursement for all the extra-ordinary late fees that Extra Space Storage charged me for being late only a few days, which, considering the number of months he was late. However, as discussed above, the claim that the late fees Extra Space charged were unconscionable was dismissed by the District Judge in 2015. Therefore, the Court has no basis to consider this objection. The Settlement Agreement should not be altered on the grounds that it is not satisfactory to Mr. Shields, especially since there are ways he can benefit from it without renting a unit from Extra Space again. Class Counsel request $725,000 to be paid out of the Common Fund. This is a reasonable amount because the attorneys invested a great deal of time and assumed financial risks in the prosecution of the class claims. The Court also approves the incentive award for Mr. Gomes. It was mentioned but not disputed during the fairness hearing. Class Counsel believes that Mr. Gomes deserves this award not only as an incentive but to compensate him for the property he lost when Extra Space sold the contents of his unit. The Court concludes that it is fair to compensate Mr. Gomes both for his property that was wrongfully sold and for his contribution to this lawsuit. The Court approved Plaintiff's Motion for Final Approval. A full-copy text of the District Court's July 13, 2017 Opinion is available at https://is.gd/SbLoqy from Leagle.com. STEVEN GOMES, JR., Plaintiff, represented by ANDREW R. WOLF, The Wolf Law Firm, LLC, 123 Washington Street. Newark, NJ 07102. 732- 545-7900. STEVEN GOMES, JR., Plaintiff, represented by BEN A. KAPLAN & BHARATI SHARMA PATEL, THE WOLF LAW FIRM LLC, 1520 U.S. Highway 130, Suite 101, North Brunswick, New Jersey 08902 EXTRA SPACE STORAGE, INC., Defendant, represented by AMANDA LAUREN ZABLOCKI -- azablocki@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON LLP, JAMIE P. CLARE -- jclare@coleschotz.com -- COLE SCHOTZ & TYLER BAKER -- tbaker@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON LLP. EXTRA SPACE MANAGEMENT, INC., Defendant, represented by AMANDA LAUREN ZABLOCKI, SHEPPARD MULLIN RICHTER & HAMPTON LLP, JAMIE P. CLARE, COLE SCHOTZ & TYLER BAKER, SHEPPARD MULLIN RICHTER & HAMPTON LLP. FACEBOOK INC: Court Narrows Claims in Internet Tracking Suit ------------------------------------------------------------ The United States District Court for the Northern District of California, San Jose Division issued an Order granting Defendant's Motion to Dismiss in the case captioned In re Facebook Internet Tracking Litigation, Case No. 5:12-md-02314-EJD (N.D. Cal.). Plaintiffs allege that Defendant Facebook, Inc., violated their privacy by tracking their browsing activity on third-party websites. This Court previously granted Facebook's motion to dismiss, with leave to amend, for lack of standing and failure to state a claim. Plaintiffs filed an amended complaint, and Facebook now moves to dismiss. The Court orders as follows: 1. Facebook's motion to dismiss Plaintiffs' claims for trespass to chattels, violations of the California Comprehensive Computer Data Access and Fraud Act ("CDAFA"), fraud, and larceny is granted without leave to amend for lack of standing under Fed. R. Civ. P. 12(b)(1). This Court previously found that Plaintiffs have not established a "realistic economic harm or loss that is attributable to Facebook's alleged conduct." Although Plaintiffs' personal web browsing information might have "some degree of intrinsic value," this Court held that Plaintiffs failed to show, "for the purposes of Article III standing, that they personally lost the opportunity to sell their information or that the value of their information was somehow diminished after it was collected by Facebook." The SAC contains no new facts that establish economic harm or loss. Nor does the SAC establish that Facebook intended to permanently deprive Plaintiffs of property of any sort. As such, Plaintiffs lack Article III standing to pursue their claims for trespass to chattels, violations of the CDAFA, fraud, and larceny. These claims must be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction. 2. Facebook's motion to dismiss Plaintiffs' claims for violations of the Wiretap Act, violations of the SCA, violations of the California Invasion of Privacy Act ("CIPA"), invasion of privacy, and intrusion upon seclusion (SAC Par. 232-41) is granted without leave to amend for failure to state a claim under Fed. R. Civ. P. 12(b)(6). This Court previously found that Plaintiffs had established standing for their Wiretap Act, SCA, and CIPA claims. Economic injury is not required to establish standing under any of those three statutes. Plaintiffs allege that Facebook "intercepts" and "tracks" their internet communications in violation of all three statutes. These allegations are sufficient to confer standing for Plaintiffs' Wiretap Act, SCA, and CIPA claims. 3. Facebook's motion to dismiss Plaintiffs' claims for breach of contract and breach of the duty of good faith and fair dealing is granted with leave to amend. The Court finds that Plaintiffs have standing to pursue their claims for breach of contract and breach of the duty of good faith and fair dealing. 4. Facebook's motion for a protective order temporarily staying further discovery is denied. 5. Plaintiffs' motion to compel discovery is terminated and may be refiled in accordance with the procedures of the assigned magistrate judge. A full-text copy of the District Court's July 13 2017 Order is available at https://is.gd/HLKq2m from Leagle.com. Alexandria Parrish, Plaintiff, represented by Edward D. Robertson, III --krobertson@bflawfirm.com -- BARTIMUS FRICKLETON ROBERTSON GORNY. Alexandria Parrish, Plaintiff, represented by Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton -- jimf@bflawfirm.com -- BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, 170 Monmouth StreetRed Bank, NJ 07701, pro hac vice, Mary Doerhoff Winter -- mwinter.bflawfirm.com -- Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel -- kiesel@kbla.com-- Kiesel Law LLP, Peter F. Burns, Peter S. Mackey, Stephen M. Gorny, The Gorny Law Firm, LC, 4330Belleview Ave, Suite 200, Kansas City, MO 64111 Phone 816-756- 5071 & William Mitchell Cunningham, Jr. Sharon Beatty, Plaintiff, represented by David A. Straite -- dstraite@kalanfox.com - Kaplan Fox & Kilsheimer LLP, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Paul R. Kiesel, Kiesel Law LLP, Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Joel Grant Woods, Grant Woods PC, 1726 North Seventh Street, Phoenix, AZ 85006 (Maricopa) Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny & Stephen M. Gorny, The Gorny Law Firm, LC. Brooke Rutledge, Plaintiff, represented by David Shelton, David Shelton, PLLC, Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Michael Singley, Plaintiff, represented by Alice London, Daniel W. Bishop, II, Bishop London & Dodds PC, 3701 Bee Caves Rd, #200, West Lake Hills, TX 78746 Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Dana Howard, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mark Chandler Goldenberg, Goldenberg Heller Antognoli and Rowland, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP, Stephen M. Gorny, The Gorny Law Firm, LC & Thomas P. Rosenfeld -- tom@ghalaw.com -- Goldenberg Heller Antognoli and Rowland, P.C.. John Graham, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Michelle L. Marvel, Bartimus, Frickleton, Robertson & Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. David Hoffman, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, Emily Ward Roark, Bryant Law Center, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mark P. Bryant -- lawteam@bryantpsc.com -- Bryant Law Center, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Janet Seamon, Plaintiff, represented by Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, L.J. Hymel, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Michael Reese Davis, Hymel Davis and Petersen, LLC, Paul R. Kiesel, Kiesel Law LLP, Richard P. Ieyoub, Ieyoub Law Firm, LLC, 3741 Hwy 1 S Port Allen, LA 70767- 5814 West Baton Rouge Parish, Stephen M. Gorny, The Gorny Law Firm, LC & Tim P. Hartdegen. Chandra L. Thompson, Plaintiff, represented by Andrew Stephan Lyskowski, Edward D. Robertson, III, BARTIMUS FRICKLETON ROBERTSON GORNY, Edward D. Robertson, Jr., Bartimus Frickleton Robertson and Gorny, James Patrick Frickleton, BARTIMUS FRICKLETON ROBERTSON GORNY, Jennifer L. Harwood, Keefe Bartels, pro hac vice, Mary Doerhoff Winter, Bartimus Frickleton Robertson and Gorny, Paul R. Kiesel, Kiesel Law LLP & Stephen M. Gorny, The Gorny Law Firm, LC. Facebook Inc., Defendant, represented by Jeffrey Gutkin -- jgutkin@cooley.com -- Cooley LLP, Kyle Christopher Wong -- kylewong99@yahoo.com -- Cooley LLP, Matthew Dean Brown -- brownmd.cooley.com -- Cooley LLP & Adam Christopher Trigg -- atrigg@be-law.com -- Cooley LLP. FINANCIAL RECOVERY: Summary Judgment in "Jewsevskyj" Affirmed ------------------------------------------------------------- In the case captioned ALEXANDRA JEWSEVSKYJ, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Appellant, v. FINANCIAL RECOVERY SERVICES, INC.; LVNV FUNDING, LLC; RESURGENT CAPITAL SERVICES, L.P.; ALEGIS GROUP, LLC, No. 16-4086 (3d Cir.), the Court of Appeals for the Third Circuit affirmed the District Court's order granting summary judgment in favor of the Defendants. LVNV Funding is a corporation that purchases portfolios of consumer debt from various creditors and hires debt collection agencies to recover the moneys owed. FRS is one such debt collection agency. FRS sent a letter to Jewsevskyj advising her that LVNV Funding purchased a debt she owed in the amount of $1,128. The body of the letter is typed in all uppercase letters, in Times New Roman style, and in 8-point font. There is minimal spacing between the lines in each of the three full paragraphs on the front page and thus the text is compressed. The second paragraph of the letter contains what is commonly referred to as the "validation notice," which describes a mechanism for Jewsevskyj to contest the debt. Jewsevskyj filed a class action complaint, alleging that this validation notice was not sufficiently prominent or readable to satisfy the statutory notice requirements of Section 1692g. After discovery, the parties filed cross-motions for summary judgment. The District Court granted the Defendants' motion and denied Jewsevskyj's, finding that, from the perspective of the least sophisticated debtor, the validation notice was not overshadowed by other aspects of the letter and was sufficiently prominent to put Jewsevskyj on notice of her right to contest the debt. Jewsevskyj appeals. Here, although the format is compressed and the font is small, the Court's inquiry focuses on whether the notice is free from language or formatting choices that contradicts or overshadows the notice. There is no language that contradicts the notice and the recipient's right to obtain information about the debt. Moreover, because the notice language is in the same font and format as the rest of the letter, there is nothing more prominent than the notice. Furthermore, the Court finds that the notice is placed on the first page of the letter and is written in plain English. While font size and format could render a notice unreadable, the Court cannot conclude that the notice here fits in that category as it is concise and legible, and is not misleading, confusing, or overshadowed by anything else in the letter. Thus, the District Court correctly concluded that the letter does not violate Section 1692g. Accordingly, this Court affirmed the District Court's order granting summary judgment in favor of the Defendants. A full-text copy of the Court's July 14, 2017 opinion is available at https://is.gd/bc3YXf from Leagle.com. FIRST STUDENT: Court Denies Class Certification in "Humes" ---------------------------------------------------------- Judge Barbara A. McAuliffe of the U.S. District Court for the Eastern District of California denied the Plaintiffs' Motion for Class Certification in the case captioned DELORES HUMES, an individual; and DIANE ABELLA, individually and on behalf of all others similarly situated, Plaintiffs, v. FIRST STUDENT, INC., and DOES 1 through 100, inclusive, Defendants, Case No. No. 15-cv- 1861-BAM (E.D. Cal.). The Plaintiff was formerly employed by First Student as a bus driver out of its Fresno Yard. She is currently employed by First Student as a bus driver out of its Fresno Yard. The Plaintiffs contend that during their employment, First Student failed to pay its bus drivers for all time worked, including all time that the drivers were subject to First Student's control. The Plaintiffs initially filed this action in the Fresno County Superior Court. On Dec. 11, 2015, First Student removed the case to this Court based on federal question jurisdiction and the Class Action Fairness Act. The Plaintiffs' class action complaint alleges that First Student: (i) failed to pay regular wages in violation of Labor Code Sections 201-203 (unpaid wages); (ii) failed to pay wages within the time allowed in violation of Labor Code Section 204 (untimely wages); (iii) failed to pay minimum wage in violation of Labor Code Sections 1194, 1194.2, 1198 and IWC Wage Order No. 9-2001 (minimum wage); (iv) failed to provide accurate itemized statements in violation of Labor Code Section 226 (inaccurate wage statements); (v) violated Business and Professions Code Section 17200 et seq. with unlawful, unfair, and fraudulent business practices; and (vi) breached an oral contract. The Plaintiffs moved for class certification on Dec. 23, 2016. They move to certify the class of all current and former bus drivers who were employed by First Student at its Fresno Yard located at 2805 South East Avenue in Fresno, California since Oct. 28, 2011 to the present. Alternatively, they seeks to certify the following classes: a. Unpaid Wages Class: The Plaintiffs and all other persons who were employed by the Defendant as school bus drivers at the Defendant's Fresno, California yard, at any time from Oct. 28, 2011, and continuing to the present who were not paid all wages due by the Defendant. b. Untimely Wages Class: The Plaintiff and all other persons who were employed by Defendant as school bus drivers at the Defendant's Fresno, California yard, at any time from Oct. 28, 2011, and continuing to the present who were not paid wages due by Defendant on a timely basis. c. Minimum Wages Class: The Plaintiff and all other persons who were employed by Defendant as school bus drivers at the Defendant's Fresno, California yard, at any time from Oct. 28, 2011, and continuing to the present, who were not paid at least minimum wages for work performed for the Defendant. d. Inaccurate Wage Statement Class: The Plaintiff and all other persons employed by Defendant as school bus drivers at the Defendant's Fresno, California yard, at any time from Oct. 28, 2011, and continuing to the present who were provided with inaccurate wage statements by the Defendant. First Student opposed the motion on March 24, 2017, and the Plaintiffs replied on June 15, 2017. Having carefully considered the parties' submissions and the entire record in this case, the Court finds that (i) the Plaintiffs have met the numerosity requirement; (ii) the Plaintiffs have failed to identify uniform policies and systemic practices that apply uniformly to this class of employees; (iii) the Plaintiffs have not met the typicality requirement because they've failed to present evidence that First Student pays drivers based on flat-rate compensation system or that First Student routinely fails to pay drivers for all hours worked; and (iv) a class action would not be a superior method for resolving this litigation because the Plaintiffs have not met their burden to establish commonality, typicality and predominance. Accordingly, the Court denied the Plaintiffs' Motion for Class Certification. A telephonic status conference is set for Aug. 3, 2017, at 9:00 a.m. The parties should be prepared to discuss the status and scheduling of this litigation, and may appear at the conference with each party using the following dial-in number and passcode: dial-in number: 1-877-411-9748; passcode: 3190866. A full-text copy of the Court's July 14, 2017 order is available at https://is.gd/Fms67T from Leagle.com. Delores Humes, Plaintiff, represented by Armand Raffi Kizirian -- armand.falveylaw@gmail.com -- Law Offices of Thomas W. Falvey. Delores Humes, Plaintiff, represented by Carol Gillam -- Carol@gillamlaw.com -- The Gillam Law Firm, Michael Hagop Boyamian -- mike.falveylaw@gmail.com -- Law Offices of Thomas W. Falvey & Thomas Walker Falvey, Law Office of Thomas W. Falvey. Diane Abella, Plaintiff, represented by Armand Raffi Kizirian, Law Offices of Thomas W. Falvey, Michael Hagop Boyamian, Law Offices of Thomas W. Falvey & Thomas Walker Falvey, Law Office of Thomas W. Falvey. First Student Inc., Defendant, represented by Ofelia Mishell Parreno-Taylor -- mtaylor@littler.com -- Littler and Mendelson, David J. Dow -- ddow@littler.com -- Littler Mendelson, Pc & Heather L. Shook -- hshook@littler.com -- Littler Mendelson, PC. FUQI INTERNATIONAL: December 18 Settlement Opt-Out Deadline Set --------------------------------------------------------------- Plaintiffs' Lead Counsel, Abraham, Fruchter & Twersky, LLP on July 10 disclosed that a settlement has been reached, subject to Court approval, in a class action lawsuit against Marcum, LLP in the United States District Court, Southern District of New York, 15 Civ. 01938 (DAB), which is being administered by Angeion Group. This announcement of the proposed Settlement is being given to all persons or entities who purchased or acquired Fuqi International, Inc. common stock between May 15, 2009 and March 27, 2011, inclusive, and/or who purchased or acquired Fuqi International, Inc. common stock pursuant to or traceable to the secondary offering on or about July 22, 2009. Pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, a hearing will be held on January 8, 2018, at 11:00 a.m., before The Honorable Deborah A. Batts, at the Daniel P. Moynihan U.S. Courthouse, 500 Pearl Street, Courtroom 24B, New York, New York, for the purpose of determining: (1) whether the proposed Settlement of the claims in the above- captioned litigation (the "Action") for the principal sum of $1,100,000 in cash, plus accrued interest, should be approved by the Court as fair, reasonable and adequate to Members of the Class; (2) whether, thereafter, this Action should be dismissed with prejudice pursuant to the terms and conditions set forth in the Stipulation of Settlement dated as of October 6, 2016 (the "Settlement Agreement"); (3) whether the proposed plan to distribute the Settlement proceeds (the "Plan of Allocation") is fair, reasonable and adequate and therefore should be approved; and (4) whether the application of Lead Counsel for the payment of attorneys' fees and expenses incurred in connection with this Action should be approved and reimbursement awards to Lead Plaintiffs should be approved. If you purchased or acquired Fuqi International, Inc. ("Fuqi") common stock between May 15, 2009 and March 27, 2011, inclusive, and/or purchased or acquired Fuqi common stock pursuant to or traceable to the Secondary Offering on or about July 22, 2009, and were damaged thereby, your rights may be affected by this Settlement. If you have not received a detailed Notice of Proposed Settlement of Class Action, Motion for Attorneys' Fees and Settlement Fairness Hearing ("Notice") and a copy of the Proof of Claim and Release, you may obtain copies by writing to In re Fuqi International, Inc. Securities Litigation - Marcum Litigation, Claims Administrator, c/o Angeion Group, 1801 Market Street, Suite 660, Philadelphia, PA 19103, or you can download a copy at www.fuqiclasssettlement.com. If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than November 24, 2017, establishing that you are entitled to a recovery. If you previously submitted a Proof of Claim and Release in connection with the settlement of the litigation against Fuqi International, Inc. and others, you do not need to submit another Proof of Claim and Release. If you desire to be excluded from the Class, you must submit a request for exclusion postmarked by December 18, 2017, in the manner and form explained in the detailed Notice referred to above. All Members of the Class who do not timely and validly request exclusion from the Class will be bound by any judgment entered in the Action pursuant to the terms and conditions of the Settlement Agreement. Any objection to the Settlement must be mailed or delivered, in the manner and form explained in the detailed Notice referred to above, such that it is received by each of the following no later than December 18, 2017: Court: Clerk of the Court UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Daniel P. Moynihan U.S. Courthouse 500 Pearl Street New York, NY 10007 Lead Counsel for Plaintiffs: Mitchell M.Z. Twersky Lawrence D. Levit ABRAHAM, FRUCHTER & TWERSKY, LLP One Penn Plaza, Suite 2805 New York, NY 10119 Defendant's Counsel Designee: Stephen J. Tully Garrett & Tully, P.C. 4615 E. Thousand Oaks Blvd., Suite 201 Westlake Village, CA 91362 805-446-4141 PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Lead Counsel at the address listed above or go to the following website: www.fuqiclasssettlement.com. [GN] GC SERVICES: Indiana Court Certifies Class in "Smith" ----------------------------------------------------- The United States District Court for the Southern District of Indiana, Indianapolis Division, granted Plaintiff's Second Amended Motion for Class Certification in the case captioned FRANCINA SMITH, individually and on behalf of all others similarly situated, Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, a Delaware limited partnership, and OWNERS RESOURCE GROUP GC GP BUYER, LLC, a Delaware limited liability company, Defendants, No. 1:16-cv-01897-RLY-DML (S.D. Ind.). Plaintiff, Francina Smith, individually and on behalf of all others similarly situated, claims the Defendants, GC Services Limited Partnership and Owner Resource Group GC GP Buyer, LLC, sent her and the putative class a debt collection letter that violated various provisions of the Fair Debt Collection Practices Act ("FDCPA"). Plaintiff seeks certification under Rule 23(b(3), which permits class certification if questions of law or fact common to class members predominate over any questions affecting only individual members and class resolution is superior to other available methods for failure and efficiently adjudicating the controversy. Defendants argue Plaintiff lacks Article III standing in light of the Supreme Court's decision in Spokeo, Inc. v. Robins. Second, they argue Plaintiff has failed to propose an ascertainable class in which she is a member. And lastly, they argue Plaintiff cannot establish any of the factors listed in Rule 23(a) or (b). In the court's Entry denying Defendants' Motion to Dismiss Plaintiff's Amended Complaint, the court found that Plaintiff had alleged a concrete injury in fact sufficient for Article III standing by alleging a violation of the FDCPA. An implicit requirement under Rule 23 is that the class definition "be definite enough that the class can be ascertained. The class definition is clear and objective as it is based on the same form debt collection letter received by all putative class members. This class is ascertainable. Although Rule 23 does not identify a threshold number to establish numerosity, joinder is considered impractical when a class numbers at least forty members. Walker v. Calusa Inv. In response to discovery requests, Defendants represented that the proposed class consists of 118 persons. Given that same form collection letter was sent to all 118 potential class members, the court finds the numerosity requirement is satisfied. Commonality requires the plaintiff to show that 'the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members. Here, Plaintiff's FDCPA claims are based on the same form debt collection letter sent to 118 members of the putative class. Whether it violated the FDCPA is a common question of law. Therefore, the court finds Plaintiff satisfies the commonality requirement. A claim is typical of the class if "it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory. So long as the representative plaintiff's and the putative class members' injuries arise out of the same violative conduct, the plaintiff may represent the class. Such is the case here. Plaintiff, therefore, satisfies the typicality requirement. Adequacy of Representation The court must view alleged violations of the FDCPA through the eyes of an 'unsophisticated debtor. It is thus immaterial whether the consumer was misled by the letter. The court finds Plaintiff, who was sent the same form collection letter as the individuals she seeks to represent, is an adequate representative. Because the key issue in this case -- whether the subject letter violates the FDCPA -- is identical as to each putative plaintiff, the court finds the requirements of Rule 23(b)(3) are satisfied. Accordingly, the Court certifies the class with the following definition: "[A]ll persons similarly situated in the State of Indiana from whom Defendants attempted to collect a delinquent consumer debt allegedly owed for a Synchrony Bank/Sam's Club account, via the same form collection letter that Defendants sent to Plaintiff, from one year before the date of the initial Complaint to the present." A full-text copy of the District Court's July 17, 2017 Order is available at https://is.gd/LFbo4V from Leagle.com. FRANCINA SMITH, Plaintiff, represented by Angie K. Robertson, PHILIPPS AND PHILIPPS, LTD., 9760 S. Roberts Rd., Suite 1, Palos Hills, Illinois 60465 FRANCINA SMITH, Plaintiff, represented by John Thomas Steinkamp, JOHN T. STEINKAMP AND ASSOCIATES, 5214 S East Street Suite D-1, Indianapolis, Indiana, 40227, Mary E. Philipps, PHILIPPS AND PHILIPPS, LTD. Address. 9760 S Roberts Rd; Palos Hills, Illinois 60465 & David J. Philipps, PHILIPPS AND PHILIPPS, LTD., 9760 S Roberts Rd; Palos Hills, Illinois 60465 GC SERVICES LIMITED PARTNERSHIP, Defendant, represented by William S. Helfand, LEWIS BRISBOIS BISGAARD SMITH LLP, pro hac vice. GC FINANCIAL CORP., Defendant, represented by William S. Helfand -- Bill.Helfand@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD SMITH LLP, pro hac vice. DLS ENTERPRISES, INC., Defendant, represented by William S. Helfand, LEWIS BRISBOIS BISGAARD SMITH LLP, pro hac vice. OWNERS RESOURCE GROUP, GC GP BUYER, LLC, Defendant, represented by William S. Helfand, LEWIS BRISBOIS BISGAARD SMITH LLP. GENERAL MOTORS: Bellwether Ignition Switch Defect Trial Begins -------------------------------------------------------------- Law.com, citing Andrew Denney of New York Law Journal, reports that defense counsel for General Motors told jurors it was not a faulty part, but a run-of-the-mill fender bender partly caused by inattention to the road, that caused any injury suffered by the plaintiff as trial for the seventh General Motors bellwether ignition defect case opened on July 11. But the plaintiff's legal team blamed their client's leg injuries on a defective ignition switch that they say allowed a driver's knee to knock the car key out of position. Mike Brock, Esq., -- mike.brock@kirkland.com -- of Kirkland & Ellis, in his opening statement in New York federal court, said the switch played no part in the collision. "It's just a rear-end collision," Mr. Brock said of plaintiff Dennis Ward's March 2014 accident in Tucson, Arizona. "Sometimes accidents just happen and this is what this case is about." But Nicholas Wise of Weitz & Luxenberg, a member of Mr. Ward's legal team, said during his opening statement that his client's 2009 Chevrolet HHR lost power because of a "knee-key" interaction with his ignition switch that caused the key to turn out of the "on" position. The accident left Mr. Ward with a permanent leg injury, he said. Mr. Ward, who was present in the courtroom and used a cane to move around, said that before the accident, in which he rear-ended a Ford Bronco during busy, weekday morning traffic, he tried both slamming on the brakes and swerving out of the way, each to no avail. GM ignition switches have been linked to 124 deaths and hundreds of injuries and over the last several years has paid out more than $2 billion. An engineering flaw in its switches caused them to flip from the "on" position to the "accessory" position, which would cause engines to shut off and would disable power steering and antilock brakes. An automotive journalist noticed the problem back in 2004 while test driving a Chevrolet Cobalt. In 2014, it admitted that the "423 ignition switch" found in some of its models was defective and issued a massive recall. "Sometimes people were injured. Sometimes people died," Mr. Wise said during opening arguments. "Sometimes the airbags didn't go off when they should have. GM knew about it." But the ignition switch in Mr. Ward's vehicle was a different model -- the "190 switch" -- that GM has not deemed defective. Mr. Brock said during opening arguments that the ignition switch from Mr. Ward's vehicle was found to be up to specifications. "The car performed as it should have," Mr. Brock said. Southern District Judge Jesse Furman presides over Ward v. General Motors, 14-md-2543. This is Furman's fourth GM bellwether case. Mr. Ward's legal team also includes James Bilsborrow of Weitz & Luxenberg in the firm's New York office, Paul Novak and Diana Gjonaj of Weitz & Luxenberg in Detroit and Robert Hilliard of Hilliard Munoz Gonzales. GM is also represented by Brian Sieve, Esq. -- brian.sieve@kirkland.com -- and Renee D. Smith, Esq. -- renee.smith@kirkland.com -- of Kirkland & Ellis. Regardless of GM's fortunes in the Ward case, the automaker has recently been dealt some setbacks in the courts. In April, the U.S. Supreme Court declined to review a lower court ruling that GM is liable for deaths and injuries that occurred before it filed for bankruptcy in 2009. In June, Southern District Bankruptcy Judge Martin Glenn, who presides over GM's bankruptcy case, found that plaintiffs may seek claims against the automaker that are unrelated to ignition switches. Attorneys from Hagens Berman Sobol Shapiro, which also represents vehicle owners in litigation against GM, said in a release that Judge Glenn's ruling could increase the automaker's exposure to economic loss claims in litigation before Furman. GENIE ENERGY: Units Enter Into Class Action Settlement Agreement ---------------------------------------------------------------- Reuters reports that Genie Energy Ltd said on July 5 that the company's units entered into class action settlement agreement. Under the settlement agreement, the company agreed to pay certain amounts to resolve lawsuits. The company estimates, based in part on historical participation rates, that total settlement payment will be about $9 million. [GN] GERBER PRODUCTS: 5th Cir. Partly Affirms Trimming of "Bruton" ------------------------------------------------------------- In the case captioned NATALIA BRUTON individually and on behalf of all others similarly situated, Plaintiff-Appellant, Northern District of California, San Jose v. GERBER PRODUCTS COMPANY, Defendant-Appellee, No. 15-15174 (9th Cir.), Plaintiff-Appellant Natalia Bruton filed a putative class action against baby food manufacturer Gerber Products Company. Bruton alleged that labels on certain Gerber baby food products included claims about nutrient and sugar content that were impermissible under Food and Drug Administration regulations incorporated into California law. The district court dismissed several of Bruton's claims, denied class certification, denied partial summary judgment for Bruton, and granted summary judgment to Gerber. Bruton appeals, challenging the district court's orders. The United States Court of Appeals, Ninth Circuit, held that the district court erred in dismissing Bruton's claim for unjust enrichment/quasi-contract. At the time when the district court dismissed this claim, California's case law on whether unjust enrichment could be sustained as a standalone cause of action was uncertain and inconsistent. But since then, the California Supreme Court has clarified California law, allowing an independent claim for unjust enrichment to proceed in an insurance dispute, in Hartford Cas. Ins. Co. v. J.R. Mktg., L.L.C., 61 Cal.4th 988, 1000 (2015); see also Ghirardo v. Antonioli, 14 Cal.4th 39, 54 (1996). Accordingly, the Ninth Circuit reverses the district court's dismissal and remands for consideration of whether there are other grounds on which Bruton has failed to state a claim for unjust enrichment, or if that claim must proceed to resolution. The Ninth Circuit adds that the district court erred when it held that the class could not be certified because it was not ascertainable. In Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), the court -- using different terminology for what the district court called ascertainability -- held that there was no separate "administrative feasibility" requirement for class certification. Accordingly, the Ninth Circuit reverses the district court's denial of class certification and remands for further consideration of whether class certification is appropriate. The Ninth Circuit held that the district court properly held that there was no genuine dispute of material fact on Bruton's claims that the labels were deceptive in violation of California's Unfair Competition Law (UCL). Bruton's theory of deception does not rely on proving that any of Gerber's labels were false. Bruton's theory of deception may be viable. The California courts have held that even technically correct labels can be misleading. See Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 510 (2003) The advertisement, although literally true, was nevertheless deceptive and misleading in its implications." Here, it may be literally true that Gerber's products are "As Healthy As Fresh," but due to alleged external facts -- that Gerber does not comply with the FDA regulations that otherwise prevent its competitors from making the same claim -- Bruton's theory is that Gerber's labels by comparison mislead in their implications. Nevertheless, even assuming the validity of Bruton's theory, the record does not include sufficient evidence to create a genuine dispute of material fact for trial as to consumer deception under her theory. Bruton points to the following evidence to support consumer deception: (1) Gerber's and its competitors' labels; (2) Bruton's own testimony about being misled by Gerber's labels; and (3) two warning letters from the FDA. The letters therefore do not support Bruton's theory that Gerber's labels are deceptive because its competitors' labels follow the law. The Ninth Circuit held that the record does not contain sufficient evidence to create a genuine dispute of material fact for trial as to the outcome under the reasonable consumer test. Accordingly, the Ninth Circuit affirms the district court's grant of summary judgment to Gerber on Bruton's claims that the labels were deceptive in violation of the UCL, FAL, and Consumers Legal Remidies Act. The district court erred in granting summary judgment to Gerber on Bruton's claims that the labels were unlawful under the UCL. The UCL's unlawful prong "borrows" predicate legal violations and treats them as independently actionable under the UCL. Wang v. Massey Chevrolet, 97 Cal.App.4th 856, 871 (2002). The predicate violation here is of California's Sherman Law. The Ninth Circuit reverses the district court's grant of summary judgment to Gerber on Bruton's claims that the labels were unlawful in violation of the UCL. A full-text copy of the Ninth Circuit's July 17, 2017 Opinion is available at https://is.gd/DdOe42 from Leagle.com. GLH CAPITAL: Court Grants Conditional Certification in "Owens" -------------------------------------------------------------- The United States District Court for Southern District for Illinois issued a Memorandum and Order granting Conditional Certification of Collective Action in the case captioned TABITHA OWENS and CHAD WALTERS, on behalf of themselves and all others similarly situated, Plaintiffs, v. GLH CAPITAL ENTERPRISE, INC., M.L.K. ENTERPRISES, LLC, BACKSTREET ENTERTAINMENT, LTD., CHARLES "JERRY" WESTLUND, JR., an individual, and DOES 1-10, Defendants, Case No. 17-CV-875-KAD-GWF (S.D. Ill.). This action arises under the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 201, and the Illinois Minimum Wage Act, 820 Ill. Comp. Stat. Section 105/1. Employees allege on their own behalf, and on behalf of the potential class, that Employers willfully violated the FLSA by failing to pay overtime at a rate of one-and-a-half times Employees' regular rate, for hours worked in excess of forty hours in a work week. Employees asked this Court to conditionally certify a collective action, defining the potential class as: All non-exempt cooks, servers, bartenders, and assistant managers who worked for Defendants at any time in the past three years. Employers oppose certification, arguing: (1) Employees cannot prove potential members of the proposed class are similarly situated;" (2) Employees cannot prove Employers are joint employers and part of an enterprise-wide action; and (3) Employees cannot prove the three year statute of limitations applies. The Court finds unpersuasive Employers' argument that conditional certification should be delayed in order to determine whether the identified companies are "joint employers." If an employer's actions were willful, the FLSA provides for an extension of the normal two year statute of limitations, to three years. Employees have also pled facts supporting their claim that Employers' failure to pay overtime was done either knowingly or recklessly, the Court pointed out. Employers' failure to correctly calculate the overtime amount is sufficient to show either knowing or reckless behavior for conditional certification purposes. Given the minimal burden on plaintiffs at the conditional certification stage, the Court finds the allegations made by Employees are sufficient to allege willfulness on the part of Employers and therefore a three-year statute of limitations time period is appropriate. Accordingly, the Motion for Conditional Certification of Collective Action is granted. A full-copy text of the District Court's July 13, 2017 Memorandum and Order is available at https://is.gd/Ow1KBx from Leagle.com. Tabitha Owens, Plaintiff, represented by Jesse Lee Randolph Young, Sommers Schwartz, P.C., pro hac vice. Tabitha Owens, Plaintiff, represented by Martine P. Jackson, Rhode & Jackson, P.C. & Shari R. Rhode, Rhode & Jackson, P.C.. Chad Walters, Plaintiff, represented by Jesse Lee Randolph Young, Sommers Schwartz, P.C., Martine P. Jackson, Rhode & Jackson, P.C. & Shari R. Rhode, Rhode & Jackson, P.C.. GLH Capital Enterprise, Inc., Defendant, represented by John R. Schneider, Johnson, Schneider & Ferrell, LLC. 212 North Main Street, Cape Girardeau, Missouri 63701 M.L.K. Enterprises, L.L.C., Defendant, represented by John R. Schneider, Johnson, Schneider & Ferrell, LLC. Back Street Entertainment, L.T.D., Defendant, represented by John R. Schneider, Johnson, Schneider & Ferrell, LLC. Charles Westlund, Jr., Defendant, represented by John R. Schneider, Johnson, Schneider & Ferrell, LLC. Back Street Entertainment, L.T.D., Counter Claimant, represented by John R. Schneider, Johnson, Schneider & Ferrell, LLC. Tabitha Owens, Counter Defendant, represented by Jesse Lee Randolph Young -- jyoung@sommerspc -- Sommers Schwartz, P.C., Martine P. Jackson, Rhode & Jackson, P.C. & Shari R. Rhode, Rhode & Jackson, P.C., 1405 W Main StCarbondale, IL 62901-2229. Chad Walters, Counter Defendant, represented by Jesse Lee Randolph Young, Sommers Schwartz, P.C., Martine P. Jackson, Rhode & Jackson, P.C. & Shari R. Rhode, Rhode & Jackson, P.C.. GOOGLE INC: AGs Challenge $5.5-Mil. Class Action Settlement ----------------------------------------------------------- Law.com, citing Amanda Bronstad of Inside Counsel, reports that when class members are owed a few pennies from a settlement, how hard must you try to make sure they get paid? That's the question before the U.S. Court of Appeals for the Third Circuit in a petition to reverse a $5.5 million settlement with Google Inc. over privacy claims that gives money to the plaintiffs' attorneys and six nonprofit organizations but nothing to the class. On July 5, attorneys general from 11 states filed an amicus brief insisting that the Delaware judge who approved the settlement didn't go far enough in attempting to put class members above the use of cy pres, a controversial practice used to distributed unclaimed funds in a settlement to third parties. The same issue has come up in other cases, particularly those involving millions of internet users whose payouts are considered too small to be worth distributing. "The proposed settlement releases millions of consumer claims related to Google's electronic 'cookie' placement practices in exchange for $5.5 million from Google, and yet it diverts the class members' $3.5 million portion of the settlement to cy pres charities when that money could be feasibly distributed to class members," wrote Oramel Skinner, an attorney at the Arizona attorney general's office. The case involves multidistrict litigation challenging Google's practice of overriding cookie blockers on Apple's Safari and Microsoft's Internet Explorer to gain access to user information. In 2012, Google paid $22.5 million to the Federal Trade Commission to resolve similar claims; a year later, it settled complaints by 28 state attorneys general for $17 million. In 2015, the Third Circuit partially reversed dismissal of the multidistrict litigation. In her Feb. 2 approval of the settlement, U.S. District Judge Sue Robinson found that delivering money to the class would have been "logistically burdensome, impractical, and economically infeasible, resulting (at best) with direct compensation of a de minimus amount." She also reduced a $2.4 million request for attorney fees to about $1.9 million. In its June 28 opening brief, objector Ted Frank, founder of the Washington, D.C.-based Competitive Enterprise Institute's Center for Class Action Fairness, alleged that four of the cy pres recipients in the case, including Harvard University's Berkman Klein Center for Internet & Society and Stanford University's Center for Internet and Society, have conflicts of interest because they have accepted donations and other benefits from Google. In addition, the chairman of another recipient, Public Counsel, the nation's largest pro bono organization, is Brian Strange, Esq. -- bstrange@strangeandbutler.com -- one of the plaintiffs' attorneys in the case. "That's a pretty obvious conflict of interest," Mr. Frank said. "He put his interests of the nonprofit ahead of the interests of the class." Mr. Strange, of Strange & Butler in Los Angeles, declined to comment. In a Jan. 4 filing before Judge Robinson, Mr. Strange noted that he was one of 70 board members at Public Counsel, all of whom are lawyers. Michael Rubin, Esq., -- mrubin@wsgr.com -- co-chairman of the privacy and data protection practice at Wilson Sonsini Goodrich & Rosati in San Francisco who represents Google, didn't respond to a request for comment. Mr. Frank raised similar objections in another case against Google before the U.S. Court of Appeals for the Ninth Circuit. In that case, he argued that an $8.5 million class action settlement steered funds to the alma maters of two of the plaintiffs' attorneys. The cy pres recipients in that case also included Harvard's Berkman Center and Stanford's Center for Internet and Society. But in Google cookie case, both Mr. Frank and the attorneys general said Robinson failed to follow the Third Circuit's 2013 holding in In re: Baby Prods. Antitrust Litig., which mandated that judges prioritize class member payments over cy pres funds whenever possible. "The district court made no reasonably accurate estimate of the actual distribution of funds to individual class members that could have occurred," Mr. Skinner wrote. "The district court's failure to apply this court's economic feasibility precedent was reversible error." Upholding the settlement also would create a split with the Seventh, Eighth and Fifth circuits, Mr. Frank wrote. As he did in the Ninth Circuit case, Frank relied on a California case called Fraley v. Facebook, a $20 million settlement in which lawyers managed to arrange the distribution of $15 to each class member. In a separate amicus brief filed on July 5, a group of legal aid organizations in Pennsylvania, New Jersey and Delaware, led by the National Legal Aid and Defender Association and the Association of Pro Bono Counsel, defended the use of cy pres while not taking a position in the case. "The availability and effectiveness of cy pres awards should not be eroded by unreasonably narrow and mechanical constraints," wrote Duncan Grant, Esq. -- grantm@pepperlaw.com -- a partner at Pepper Hamilton in Philadelphia. HAIN CELESTIAL: Faces Potential Class Action Over Veggie Straws --------------------------------------------------------------- Elizabeth Licata, writing for Daily Meal, reports that the makers of Garden Veggie Straws have been hit with a lawsuit from two customers who say the brand's packaging and advertising made them believe that Veggie Straws contained vegetables, which the plaintiffs say is not true. According to the New York Post, two men have filed a potential class-action lawsuit against Hain Celestial Group, which produces the Garden Veggie Straws. The Veggie Straws are described on the packaging as "vegetable and potato snacks," and the bag says they have 30 percent less fat than the leading potato chips. The packages also feature photographs of spinach leaves, tomatoes, and potatoes. The plaintiffs say the Veggie straws "do not contain any of the actual vibrantly depicted vegetables. They assert that the company is misleading people who are trying to seek out healthful foods and snacks. The Veggie Straws ingredient list includes potato flour, potato starch, corn starch, tomato paste, and spinach powder. "Although the marketing and labeling of the Garden Veggie Straws depicts whole tomatoes, spinach leaves and potatoes, and separately claims those vegetables are 'garden grown' and 'ripe,' there are no garden grown or ripe vegetables in the Garden Veggie Straws," the lawsuit says. "Instead, the Vegetable Straws contain highly processed byproducts of what were once vegetables, and with respect to tomatoes and spinach, only contain trace amounts of those byproducts upon information and belief." The plaintiffs are looking for the suit to be a class action of people who purchased Hain Celestial Group's Garden Veggie Straws in the past six years. [GN] HILTI INC: Electric Tools Buyers' Suit Moved Back to E.D. Cal. -------------------------------------------------------------- Judge Claire V. Eagan of the U.S. District Court for the Northern District of Oklahoma retransferred the case captioned S & J RENTALS, d/b/a Twin Cities Equipment Rentals, Plaintiff, v. HILTI, INC., Defendant, Case No. 17-CV-0159-CVE-FHM (N.D. Okla.) to the Eastern District of California. The Plaintiff asserts that it purchased two TE 3000-AVR electric tools from the Defendant and that the tools eventually shut down and could not be reactivated. It alleges that when it contacted the Defendant about the shut down, the latter informed it for the first time that the tools had an "automatic shutoff feature" and could be serviced and reactivated only by the Defendant. The Plaintiff asserts that it had to pay the Defendant approximately $600 in service and reactivation fees. The Plaintiff filed a class action complaint in the U.S. District Court for the Eastern District of California alleging that the Defendant engaged in unfair and fraudulent business practices under the California Unfair Competition Law, Cal. Bus. Code Section 17200. The Plaintiff asserts that it would not have purchased the tools from the Defendant had it known about the automatic shutoff feature and servicing and reactivation requirements. It also asserts that the Defendant engaged in fraudulent practices by failing to adequately disclose that the tools would automatically shutoff, that the tools must be reactivated by the Defendant, and that the Defendant would charge servicing and reactivation fees. The Plaintiff filed suit on behalf of itself and all individuals and entities that purchased one or more Hilti Automatic Shutoff Tools in California. The Defendant filed two motions in the California district court, a motion to transfer and a motion to dismiss. The California district court granted the motion to transfer due to a forum selection clause that it found applied to this case. After the transfer, this Court ordered the parties to show cause as to why this suit should not be dismissed because the forum selection clause stated that the case could be brought only in the District Court for the County of Tulsa, State of Oklahoma. The Plaintiff argues that the Court should not dismiss the case and alternatively, that the Court should retransfer the case to the California district court. The Defendant argues that the Court should dismiss the case so that it may be refiled in Tulsa County District Court. This Court held that to allow the transfer order to stand would work manifest injustice because the order relies on the Defendant's misrepresentations regarding the forum selection clause to its benefit and the detriment of the Plaintiff. The transfer order relies on the fact that the case will be transferred to a federal court. This Court does not proffer an opinion on whether the Defendant's motion to transfer should have been denied or whether the case should be been dismissed under forum non conveniens; that is for the California district court to decide. What is clear at this point, the Court says, is that the transfer ordered is based on the mistaken belief that the forum selection clause mandated this suit be resolved in federal or state court in Tulsa, Oklahoma. Because the forum selection clause does not include federal courts, the purpose for the transfer order, to give effect to the forum selection clause, has been frustrated by the Defendant's misrepresentations. Reconsideration should be rare, and reconsideration of a transfer order even rarer. But this is an extraordinary situation where a transfer order is clearly erroneous and to let it stand would work manifest injustice. Therefore, this Court finds that this matter should be retransferred to the Eastern District of California. The Court Clerk is directed to transfer this case to the U.S. District Court for the Eastern District of California, Sacramento Division. A full-text copy of the Court's July 14, 2017 opinion an order is available at https://is.gd/0Cv3Eq from Leagle.com. S & J Rentals, Plaintiff, represented by Ian Barlow -- ian@kctlegal.com -- Kershaw, Cook & Talley PC. S & J Rentals, Plaintiff, represented by Jason Charles Messenger, Richardson Richardson Boudreaux, Stuart C. Talley -- stuart@kctlegal.com -- Kershaw, Cook & Talley PC & William A. Kershaw, Kershaw, Cook & Talley PC. Hilti, Inc., Defendant, represented by J. Daniel Morgan -- dmorgan@newtonoconnor.com -- Newton O'Connor Turner & Ketchum PC & John Stuart Poulos -- John.Poulos@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith. HUYSSEN INC: Court Narrows Claims in "Bruno" Suit ------------------------------------------------- Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California granted in part and denied in part the defendants' motions to dismiss the case captioned WILLIAM PELLEGRINI, individually and on behalf of others similarly situated, Plaintiff, v. HUYSSEN, INCORPORATED, a California corporation, bda SEDONA STAFFING; TEMPRO, INC., a Delaware corporation; L.A. LEASING, INC., an Illinois corporation; and DOES 3 through 100, inclusive, Defendants, Case No. 3:17-cv-00135-CAB- (JMA) (S.D. Cal.). On July 1, 2016, Daniel Bruno brought suit in the Superior Court of the State of California against Huyssen asserting for wage and hour claims in violation of the California Labor Code, the Code of Regulations, Industrial Wage Commission (IWC) and California's Unfair Competition Law (UCL). Bruno later filed a First Amended Complaint (FAC) alleging similar wage and hour claims in violation of California law, and further amended it to name Tempro Services, Inc. and L.A. Leasing as defendants. A Second Amended Complaint was later filed asserting that the defendants failed to compensate their employees as required by federal and California law and included a Fair Labor Standards Act (FLSA) claim. On January 25, 2017, Huyssen and L.A. Leasing removed the action to the District Court pursuant to 28 U.S.C. sections 1441(a) and 1446(a). On February 13, 2017, the defendants filed three separate motions to dismiss. All defendants sought dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), with TemPro also seeking to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2). TemPro moved to dismiss for lack of either specific or general personal jurisdiction because it does not conduct or solicit any business in the State of California. Bruno did not dispute that TemPro lacks sufficient contacts with California to support general jurisdiction, but asserted that TemPro operates in California as Sedona Staffing and the Sedona Group and is therefore subject to specific personal jurisdiction. Judge Bencivengo found that TemPro, operating as Sedona Staffing and The Sedona Group, purposefully avails itself of the privilege of conducting business in California. The judge concluded that but for TemPro's, operating as The Sedona Group and/or Sedona Staffing, contacts with California Bruno's claims against it would not have arisen. The judge found that TemPro failed to present a compelling case that the Court's exercise of jurisdiction would be unreasonable. Judge Bencivengo thus concluded that Bruno has met his burden and demonstrated facts that, if true, would support jurisdiction over TemPro in order to survive the motion to dismiss. Huyssen and L.A. Leasing both moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the SAC in its entirety. TemPro joined in and incorporated by reference Huyssen and L.A. Leasing's motions. The motions asserted multiple grounds as to why each of Bruno's causes of action fail to state claims upon which relief can be granted. The defendants argued that Bruno's Sixth Cause of Action for Failure to Pay Minimum Wages under the FLSA is barred by the applicable statute of limitations, and does not contain sufficient allegations of underlying facts to allow the defendants to defend themselves effectively. Judge Bencivengo, however, found that, viewed as a claim for failure to pay wages for compensable time, Bruno has adequately alleged that the defendants failed to pay him and other members of the proposed class for work and travel they performed on the defendants behalf. Consequently, Judge Bencivengo denied the defendants' motions to dismiss the FLSA claim. The defendants also asserted there is no private right of action under California Labor Code section 223 and as a result, Bruno's first cause of action for failure and refusal to pay agreed upon wages should be dismissed. Judge Bencivengo agreed that it is indeed true that section 223 of the code does not create a private cause of action. But, the judge noted that Bruno has brought his failure and refusal to pay agreed upon wages claim under other portions of the California Labor Code, including sections 201, 202, 203, 204, 218, and 1194. Accordingly, Judge Bencivengo denied the defendants' motions to dismiss this cause of action in its entirety, but limited Bruno's claim to the private causes of action permitted by the California Labor Code. The defendants also argued for dismissal of Bruno's second cause of action for failure to pay minimum wages under California law on the grounds that compensation for meetings and trainings related to prospective employment is not required under California Law. Judge Bencivengo found that Bruno has sufficiently alleged that the interviews with the defendants' clients was not a typical pre- employment interview and that, the alleged facts, taken as true, show that Bruno was an employee of the defendants. Consequently, the judge denied the defendants' motions to dismiss the second cause of action. The defendants asserted that Burno's third claim for failure to provide accurate itemized wage statements fails because it is time barred, is predicated on Bruno's minimum wage claims, and because California Labor Code section 226(a) only requires that employers accurately describe the monies being paid at the time of each payment of wages. Bruno did not contest dismissal of the third cause of action. Accordingly, Judge Bencivengo granted the defendants' motions to dismiss the third cause of action. The defendants further argued that Bruno's fourth claim for failure to pay wages upon termination also fails because it is predicated on Bruno's minimum wage claims which also fails, and because a good faith dispute exists as to whether Huyssen and L.A. Leasing owed Bruno any wages. Because Judge Bencivengo has found that Bruno has sufficiently alleged a minimum wage claim, the judge held that the defendants' argument for dismissal on this basis fails. Lastly, the defendants asserted that the fifth cause of action for violation of California's Unfaire Competition Law fails because it is predicated on the other violations of law alleged in the SAC which also fail. Judge Bencivengo, however, found that Bruno has adequately alleged violations of the California Labor Code and FLSA upon which to predicate his UCL claim. As a consequence, the defendants' motions to dismiss the fifth cause of action were denied. A full-text copy of Judge Bencivengo's July 7, 2017 order is available at https://is.gd/1lJJEG from Leagle.com. William Pellegrini, Plaintiff, represented by Alex M. Tomasevic -- atomasevic@nicholaslaw.org -- Nicholas and Tomasevic LLP, Craig McKenzie Nicholas -- cnicholas@nicholaslaw.org -- Nicholas and Tomasevic, Lacy N. Wells -- lwells@nicholaslaw.org -- Nicholas & Tomasevic, LLP & Noam Glick, Glick Law Group, P.C.. Huyssen, Incorporated, Tempro, Inc., L.A. Leasing, Inc., Tempro Services, Inc., Defendant, represented by Shareef Farag -- sfarag@bakerlaw.com -- Baker & Hosteler, LLP. JANSSEN PHARMA: Pa. Risperdal Docket Nearly Triples in First Half ----------------------------------------------------------------- Law.com, citing Max Mitchell of The Legal Intelligencer, reports that the litigation over Risperdal has not only become the largest mass tort program in Philadelphia's busy court system, it has also nearly tripled in size from about 2,000 cases at the start of the year to more than 5,500 as of June. According to the latest statistics from the Philadelphia Court of Common Pleas, litigation over the anti-psychotic drug Risperdal jumped from being 31.4 percent of the Complex Litigation Center's inventory as of Jan. 1 to 55.8 percent as of June 14. That number represents a 185 percent increase from the 1,945 at the start of the year, and is due to 3,617 new cases being filed in the mass tort since January. As of early June, 5,548 Risperdal cases were pending. Attorney Thomas R. Kline, who, as part of a consortium of attorneys from Kline & Specter, Sheller P.C. and Arnold & Itkin, is handling approximately three-quarters of the Risperdal docket in Philadelphia, said the recent influx was caused mostly by a tolling agreement that was terminated last year. Although he said the latest wave of cases is largely over, he anticipates the litigation will continue to grow in Philadelphia. In particular, he noted the recent jurisdictional ruling by the U.S. Supreme Court in Bristol-Myers Squibb v. Superior Court of California, the numerous issues on appeal before the state Superior Court, and what Kline said is a lack of progress toward a "reasonable" global settlement. "The significant influx of cases is a direct result of Johnson & Johnson's actions," he said, specifically referencing the termination of the tolling agreement. A spokeswoman for Janssen, the Johnson & Johnson subsidiary that makes Risperdal, said the company plans to "continue to defend this litigation and will try cases where appropriate." "We do not have insight into plaintiffs' choices regarding when and where they initiate lawsuits," Janssen spokeswoman Jessica Castles Smith said in an emailed statement. According to the statistics, 94 percent of the latest filings comes from outside Pennsylvania. That is the highest the court has seen since at least 2005. Philadelphia has long been a hub for mass tort litigation, often attracting suits from plaintiffs who live outside Pennsylvania. Frequently finding itself on the American Tort Reform Foundation's list of "judicial hellholes," the court made some administrative changes to the program in 2012, in part to address a growing backlog. Since the court began measuring the number of out-of-state filings in 2005, the percentage of cases filed by plaintiffs from outside Pennsylvania has mostly hovered between 85 and 89 percent. Last year saw the lowest percentage of out-of-state filings since 2005. Mr. Kline said the plaintiffs hale from all over the country, and balked at the criticism that having plaintiffs from outside the Keystone State unfairly burdens Pennsylvania courts, specifically noting that Philadelphia is considered to be a home venue for Janssen. "It's like the [Pittsburgh] Pirates saying we would like to play all our games in Philadelphia," he said. "We will play all the games here on your home court." According to Mr. Kline, eight to 10 trials are listed to take place through the rest of 2017 and the first half of 2018. Although the largest mass tort that Philadelphia has seen was the Fen-Phen litigation, which involved about 15,000 cases, Judge Arnold New, supervising judge of the Complex Litigation Center, said the Risperdal mass tort is the largest he has seen since he began leading the center in 2012. New said he had been anticipating significant growth in the Risperdal mass tort, and he has been asking the parties for more information about the cases in an effort to get a better understanding of the litigation for administrative purposes. For example, one recent ruling requires plaintiffs to submit more information about their prescribing doctors and their injuries when filing. But New added that information including where a plaintiff is from and their ages can also help the court to focus on handling cases that don't involve issues up on appeal. "As we've had this growth in cases, we've been trying to get more and more information from the lawyers to determine how to handle these cases, how try these cases, and when," he said. "Risperdal really is overwhelmingly gynecomastia, but maybe if some claims arise over stroke, or heart attack, I want to know about it." The court, he said, is expecting more cases to be filed, particularly in the wake of the Bristol-Myers Squibb decision. "That's fine. We have a great court system that knows how to deal with mass torts as efficiently as possible in order to have all the parties reach a resolution that's acceptable," he said. The Risperdal mass tort saw, by far, the largest growth out of the nine programs pending in Philadelphia. The Xarelto mass tort grew by 210 cases, or 17 percent, from 1,214 to 1,424. The pelvic mesh litigation was the only other program to see any growth. It increased 7 percent, rising from 164 to 176. The Yaz, Yazmin, Ocella mass tort, which came to a settlement agreement in 2015, fell 80 percent, from 109 to 22, and the asbestos docket dropped by 7 percent, from 595 to 554. Fen-Phen also dropped by 33 percent, but it started the year with only three cases pending. Reglan also dropped by 74 cases, or 3 percent. But with 2,091 cases pending as of early June, it was the second largest mass tort in the Complex Litigation Center, making up 21 percent of the inventory. JC PENNEY: Can't Compel Arbitration of "Cavlovic" Suit ------------------------------------------------------ In the case captioned ANN CAVLOVIC, individually and on behalf of those similarly situated, Plaintiff, v. J.C. PENNEY CORPORATION, INC., Defendant, Case No. 17-cv-2042-JAR-TJJ (D. Kan.), Magistrate Judge Teresa J. James of the U.S. District Court for the District of Kansas denied the Defendant's Motion to Stay Proceedings and Compel Arbitration. The Plaintiff brings this putative class action against the Defendant, asserting claims for violations of the Kansas Consumer Protection Act and unjust enrichment. She alleges the Defendant's advertisements of its "original," "regular," "former," and "sale" prices and their corresponding price discounts are fraudulent and deceptive. This matter is before the Court on the Defendant's Motion to Stay Proceedings and Compel Arbitration. The Defendant argues all of Plaintiff's claims are subject to binding, individual (non-class) arbitration under two separate arbitration agreements: one set out in her credit card agreement and one set out in the terms and conditions of the Defendant's rewards program. The Defendant argues that, because the Plaintiff used her JCPenney credit card on Sept. 23, 2014 to purchase the gold hoop earrings that are the basis for her claims against the Defendant for fraudulent and deceptive advertising of prices and discounts on that jewelry, the Plaintiff's claims are subject to arbitration pursuant to the terms of her credit card agreement. The Defendant alternatively argues that, because the Plaintiff used the JCPenney rewards program and obtained rewards credit points for the jewelry purchase, her claims are likewise subject to arbitration under the terms and conditions of the rewards program agreement. The Plaintiff argues she never agreed to arbitrate any of the claims she presently asserts against the Defendant, and the arbitration provisions the Defendant relies upon in its motion do not apply to her claims in this case. She also argues that the 2008 credit card agreement the Defendant relies upon has been superseded by later versions containing materially different provisions regarding arbitration. Reviewing the factual allegations of the Plaintiff's petition, the Court finds no mention of the Defendant's rewards agreement, program, or the Plaintiff's membership in the rewards program. The Plaintiff includes detailed allegations about her purchase of the earrings and the Defendant's advertised discounts and pricing with respect to the earrings, but the Plaintiff makes no allegations regarding the rewards program. As the Plaintiff contends, her claims are based upon the Defendant's allegedly deceptive and fraudulent pricing and discounts, not upon breach of the terms of the rewards program or upon the Plaintiff's membership in the program. The Court therefore finds that the Plaintiff's claims alleging the Defendant "falsely advertised former prices and discounts" do not arise from or relate to the rewards membership agreement or the rewards membership. Thus, the Plaintiff's claims are not within the scope of the rewards program arbitration provision. Accordingly, the Court denied the Defendant's Motion to Stay Proceedings and Compel Arbitration. A full-text copy of the Court's July 14, 2017 order is available at https://is.gd/KMKwpO from Leagle.com. Ann Cavlovic, Plaintiff, represented by Ashley Scott Waddell, Waddell Law Firm LLC. Ann Cavlovic, Plaintiff, represented by Bryce B. Bell -- Bryce@belllawkc.com -- Bell Law, LLC, Mark W. Schmitz, Bell Law, LLC, Reagan E. Bradford, The Lanier Law Firm, P.C., pro hac vice, Rex A. Sharp, Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest- law.com -- Rex A. Sharp, PA, Scott B. Goodger -- sgoodger@midwest- law.com -- Rex A. Sharp, PA & W. Mark Lanier, The Lanier Law Firm, P.C., pro hac vice. J.C. Penney Corporation, Inc., Defendant, represented by Bradley J. Hamburger -- bhamburger@gibsondunn.com -- Gibson, Dunn, & Crutcher LLP, pro hac vice, Christina M. Pyle -- christina.pyle@huschblackwell.com -- Husch Blackwell LLP, Christopher Chorba -- cchorba@gibsondunn.com -- Gibson, Dunn, & Crutcher LLP, pro hac vice, Christopher A. Smith -- chris.smith@huschblackwell.com -- Husch Blackwell LLProndelet, pro hac vice, Mark A. Perry, Gibson, Dunn & Crutcher, LLP, pro hac vice, Michael S. Hargens -- michael.hargens@huschblackwell.com -- Husch Blackwell LLP & Taylor Brooke Concannon -- taylor.concannon@huschblackwell.com -- Husch Blackwell LLP. JOE ARPAIO: Could End Up Behind Bars Over Racial Profiling Suit --------------------------------------------------------------- Bill Kirkos, Catherine E. Shoichet and Darran Simon, writing for CNN, reports in his years as the top lawman in Arizona's largest county, Joe Arpaio touted the tough punishments he handed out. Now the former Maricopa County sheriff's fate is in a judge's hands. And if US District Judge Susan Bolton finds him guilty of criminal contempt, the man who once called himself "America's toughest sheriff" could end up behind bars. Arpaio is accused of violating a court order in a racial profiling case by continuing patrols that targeted immigrants. The 85-year- old has said the court order wasn't clear and he didn't intend to violate it. But in closing arguments on July 6, prosecutor John Keller, Esq. - - jkeller@kkfb.com -- of Keller, Keller & Beck LLC alleged that Arpaio's defiance was deliberate -- and something he thought he could get away with. "The defendant thought this day was never coming," Keller said. "But nobody gets to defy a federal judge's order." If he's convicted, Arpaio could face up to six months in jail. The judge is expected to make a decision in several weeks. People on both sides of the immigration debate have been closely watching the high-profile trial. Supporters of Arpaio slam the case, which the Justice Department began prosecuting under the Obama administration, as politically motivated. Immigrant rights advocates and other longtime critics of the outspoken former sheriff are hoping the trial ends with his conviction. Arpaio served as sheriff of Maricopa County for more than two decades. The county is home to Phoenix, the state's capital, and more than 4 million people -- about 30% of whom are Latino. During his tenure as sheriff, Arpaio's headline-grabbing punishments earned him diehard supporters and fiery opponents. He established Tent City, an infamous outdoor jail where inmates wore pink underwear and shuffled around in chain gangs. He said he was saving taxpayers money by removing salt and pepper from jail meals. And he made cracking down on illegal immigration a priority for his deputies -- gaining national notoriety in the process as he became a darling of conservative cable television commentators and a villain to immigrant rights activists. His legal troubles began in 2007, when a group of Latinos filed a class action civil lawsuit claiming that Arpaio's policing policies amounted to racial discrimination. A federal investigation and a federal civil rights lawsuit followed. Arpaio disputed allegations he'd discriminated against Latinos and called the Justice Department's investigation into his office a "witch hunt." US District Judge G. Murray Snow issued a temporary injunction in 2011, blocking Arpaio's office from detaining people solely based on their immigration status. The judge issued a permanent order two years later, ruling that Maricopa County's handling of people of Latino descent amounted to racial and ethnic profiling. Last year, the judge asked federal prosecutors to file criminal contempt charges against Arpaio and several subordinates, alleging that they'd disregarded the court's directions, made false statements and attempted to obstruct further inquiry. Nine witnesses took the stand during the eight-day trial, including Arpaio's former attorney, Tim Casey, who was questioned by the defense during the occasionally contentious testimony. During his closing argument, Keller, deputy chief of the Justice Department's Public Integrity section, said Arpaio told the court he "understood the exact situation of how the preliminary injunction applied," but made false statements to his attorneys and federal immigration officials to defy the Obama administration. "In the defendant's own words, he made the decision. No one was higher than him," Keller said. The prosecution argued that Arpaio raised millions in re-election campaign funds in large part due to his widely publicized anti- federal government stance. Keller played an excerpt from a Fox News interview with host Neil Cavuto, which took place at the time of the temporary injunction, in an attempt to show what he asserted was Arpaio's defiance. "If you stop a car and suspect that the occupants might be illegal . . . what does Joe Arpaio do after that?" Cavuto asked. Arpaio said: "One thing I'm going to do, if it's some sort of . . . crime, they're going to jail." In another video played in court, Arpaio, speaking to a Mexican detainee through a translator, said: "Nobody is higher than me. I am the elected official, elected by the people. I don't serve any governor or any president." Keller said Arpaio "continued to detain people all the way up until May 2013." Defense: 'Nobody thought they were violating the order' But defense attorney Dennis Wilenchik claimed Arpaio was unaware his officers were doing anything unlawful. He argued Arpaio didn't lie to his former attorney, Casey, about stopping the detentions. Rather, Wilenchik said Casey "dropped the ball" and didn't clearly explain the order or seek clarification from Snow. "I'm not here to cry or castigate him. But he is at fault," Wilenchik said of Casey. Wilenchik re-read testimony from the first day of the trial, when he questioned Casey. "Let me ask it this way," Wilenchik said then. "Did you believe when you read that (preliminary injunction) that it was clear to you?" "I thought that there was ambiguity," Casey said. "If he thought it was ambiguous, why wouldn't a good lawyer seek clarification from the court before exposing his client to a possible contempt?" Wilenchik told Bolton. Wilenchik said the only person who knew what Snow meant in his order "was Judge Snow himself." "Nobody thought they were violating the order, but I think it's easy to understand why the sheriff was singled out here," Wilenchik said, claiming the prosecution is driven by politics. He challenged the prosecution's notion that Arpaio used his defiance of the order to raise money for his own re-election. Arpaio's fall from grace In November, Arpaio lost his bid for a seventh term to Paul Penzone, a former Phoenix police officer. Arpaio's opinions and actions drew praise and rebuke during his 24-year run as sheriff. He insisted President Barack Obama was not an American citizen and that his birth certificate was fraudulent -- a claim that has been debunked. In 1993, he established Tent City -- the infamous outdoor jail. Arpaio said the outdoor jail saved taxpayers money despite criticism that the facility was inhumane. This spring, Penzone announced he was taking down the tents and closing the desert camp, saying there was no evidence that it deterred crime. "This facility became more of a circus atmosphere for the general public," Penzone said. "Starting today, that circus ends." [GN] JOHNSON & JOHNSON: Tried to Stop Report About Pelvic Mesh Devices ----------------------------------------------------------------- Christopher Knaus, writing for The Guardian, reports that the pharmaceutical giant Johnson & Johnson tried to stop French health authorities publishing a report warning against the use of its untested pelvic mesh devices, two years after they began giving them to Australian women, a court has heard. Hundreds of Australian women have launched a class action against three Johnson & Johnson companies alleging the meshes -- used to treat two common childbirth complications -- have caused them chronic and debilitating pain, ruined their sex lives, and, in some cases, destroyed their livelihoods. Thousands of patients in the UK, Canada and the United States have launched similar cases. On July 5 the federal court in Sydney heard Australian women were effectively used as "guinea pigs" by the Johnson & Johnson group. Barrister Duncan Graham SC told the court the devices were not properly tested before they were approved by the Therapeutic Goods Administration and placed on the Australian market in 2005. Johnson & Johnson instead conducted an aggressive marketing campaign aimed at convincing surgeons the devices were inexpensive, simple to implant, and therefore a lucrative alternative to other treatment options. No randomised controlled trials were conducted, the court heard, and the scant testing that was available was insufficient or too short-term. Had such trials been conducted, Mr. Graham said, they would have found the devices posed an unacceptable risk to women. "It was sell first, test later," Mr. Graham said. "The women who had them implanted were part of an experiment, they were guinea pigs," he said. The court has been shown internal documents from one of the Johnson & Johnson companies, Ethicon, suggesting it knew it lacked the proper trials. In 2007, the French health authority, Haute Autorite de Sante, was preparing to release a report on the mesh devices. The report found a proper randomised controlled trial was needed before the devices could be approved. It concluded they should be used only in clinical research until such a trial was complete. At that stage, the devices had been on the Australian market for two years. The looming French report prompted concern within Ethicon. Meeting minutes described in court show the company feared the report "could have a major impact on our business if made public". It said work was needed to "stop the publication of the report". "So there is no randomised clinical trial, the [French] commission wants one and essentially until it gets one, Prolift, which has already been on the market in Australia for two years, is considered only suitable for clinical research," Mr. Graham told the court. The court also heard evidence about the origins of a journal article supportive of the safety and efficacy of the devices, which was published in the New England Journal of Medicine in 2011. Mr. Graham said the journal had been forced into an "embarrassing" correction two years later, after it emerged the study had failed to properly disclose the involvement of Ethicon. Ethicon had paid the authors consultant fees, and reviewed the original study protocol and a presubmission draft of the manuscript. The presubmission draft differed in several respects from the published article, the court heard. Part of the device's appeal to surgeons was the apparent ease with which it could be inserted. Johnson & Johnson marketed the mesh's implantation as a standardised technique. That claim, Graham alleged, was a "pipe dream, and a dangerous one at that". He said there was variability in the technique, and the surgery was complex, beyond the skills of lesser-trained or inexperienced surgeons. A study published in the Lancet in December found that women who were given mesh implants were roughly three times more likely to suffer complications and twice as likely to need follow-up surgery compared with women who had the traditional version of the surgery, where stitches are used to provide support for the organs. The case continues before Justice Anna Katzmann. [GN] JOHNSON & JOHNSON: "Estrada" Suit Dismissed with Leave to Amend --------------------------------------------------------------- In the case captioned MONA ESTRADA, on behalf of herself and all others similarly situated, Plaintiff, v. JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES INC., Defendants, Civil Action No. 16-7492 (FLW) (D. N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey granted the Defendants' Motion to Dismiss Plaintiff's First Amended Class Action Complaint with leave to amend for lack of standing. The Plaintiff's allegations center on the Defendants' marketing of Johnson's Baby Powder to women. In that regard, she alleges that the Defendants market Baby Powder to women specifically -- encouraging women to dust themselves with Baby Powder to maintain freshness and cleanliness, and to mask odors -- despite the fact that the use of Baby Powder by women in the genital area results in an increased risk of developing ovarian cancer. The Plaintiff avers that the Defendants failed to disclose the risks associated with the use of Baby Powder by women, and continued to market the product as safe despite knowledge of those risks. In support of her allegations regarding the increased cancer risk associated with Baby Powder, the Plaintiff cites numerous clinical studies that have been conducted since 1961. She alleges that since at least 1982, the Defendants have been aware of the studies associating talcum powder with an elevated risk of ovarian cancer. On April 28, 2014, the Plaintiff filed her original complaint in this matter in the United States District Court for the Eastern District of California. On March 27, 2015, Judge Troy L. Nunley dismissed the Plaintiff's original complaint for lack of Article III standing, finding that she failed to allege an injury-in-fact. On April 24, 2015, the Plaintiff filed the FAC, asserting four causes of action against the Defendants. She brings these claims individually and on behalf of putative classes of consumers who have purchased Baby Powder manufactured and sold by the Defendants. Count I of the FAC seeks injunctive and equitable relief, on the grounds that Defendants violated the Consumers Legal Remedies Act, by failing to disclose the increased risk of ovarian cancer associated with consumption of Baby Powder on its product labels and packages, and by representing that Baby Powder is clinically proven to be safe, gentle, and mild. Count II of the FAC asserts claims pursuant to California's Unfair Competition Law, alleging that the Defendants committed unlawful business practices by making misrepresentations and omitting material facts regarding the safety of Baby Powder. Count III of the FAC asserts a related claim for negligent misrepresentation. Finally, Count IV of the FAC asserts a claim for breach of the implied warranty of merchantability, alleging that the Defendants impliedly warranted Baby Powder to be safe, despite the fact that it is unsafe and not merchantable. On May 18, 2015, the Defendants filed a motion to dismiss the FAC in the Eastern District of California which was fully briefed before Judge Nunley. However, on Oct. 5, 2016, the case was transferred to this Court by the Multi-District Litigation Panel as part of the In re Johnson & Johnson MDL assigned to me. ECF No. 39. Thereafter, the Defendants filed the instant Motion to Dismiss on Dec. 22, 2016. The Defendants move to dismiss the FAC on several grounds, including that Plaintiff lacks Article III standing to bring the present action, and fails to state a claim on which relief can be granted. Because the Court finds that the Plaintiff lacks Article III standing to bring the present action, it need not reach Defendants' other theories. While the Court is cognizant that "injury-in-fact is not Mount Everest," it cannot find, based on the allegations in the FAC, that the Plaintiff has suffered an injury-in-fact. Because she does not have standing to bring the present action, the FAC must be dismissed for lack of subject matter jurisdiction. Moreover, it is well-settled that, absent subject matter jurisdiction, the Court is without authority to address the parties' remaining merit-based arguments. For these reasons, the Court granted the Defendants' Motion to Dismiss as to the Plaintiff's lack of standing to bring suit. The Plaintiff is given leave to amend her Complaint, consistent with this decision, within 30 days from the date of the Order accompanying the Opinion. Specifically, to the extent that the Plaintiff seeks to amend her benefit-of-the-bargain theory on the basis of an omission, she must allege that the Defendants had an affirmative legal obligation to disclose the omitted fact. In addition, to the extent the Plaintiff seeks to amend her benefit-of-the-bargain theory on the basis of the alleged misrepresentations appearing in the Defendants' advertisements or on their website, she must allege that she actually relied on those misrepresentations in purchasing Baby Powder. The Plaintiff is not be given leave to amend her alternative product theory, however, in light of her concession that a cornstarch-based alternative would not have been cheaper than Baby Powder. Should the Plaintiff seek to assert a price premium claim, that claim must be pled with sufficient factual support. A full-text copy of the Court's July 14, 2017 opinion is available at https://is.gd/SEgLSC from Leagle.com. MONA ESTRADA, Plaintiff, represented by ALISON D. HAWTHORNE -- alison.hawthorne@beasleyallen.com -- COUNSEL NOT ADMITTED TO USDC, pro hac vice. MONA ESTRADA, Plaintiff, represented by Charles Lance Gould -- lance.gould@beasleyallen.com -- Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., pro hac vice, Paula Michelle Roach -- proach@bholaw.com -- Blood Hurst & O'Reardon, LLP, TIMOTHY G. BLOOD -- tblood@bholaw.com -- COUNSEL NOT ADMITTED TO USDC, W. Daniel Miles, III -- dee.miles@beasleyallen.com -- Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., pro hac vice & Thomas J. O'Reardon -- toreardon@bholaw.com -- II, Blood Hurst & O'Reardon LLP. JOHNSON & JOHNSON, Defendant, represented by ALLEN W. BURTON -- aburton@omm.com -- O'MELVENY & MYERS LLP, Matthew David Powers -- mpowers@omm.com -- O'Melveny & Myers LLP, GENE M. WILLIAMS -- gmwilliams@shb.com -- COUNSEL NOT ADMITTED TO USDC, KATHLEEN A. FRAZIER -- kfrazier@shb.com -- COUNSEL NOT ADMITTED TO USDC & SCOTT A. JAMES -- sjames@shb.com -- COUNSEL NOT ADMITTED TO USDC. JOHNSON & JOHNSON CONSUMER COMPANIES INC., Defendant, represented by ALLEN W. BURTON, O'MELVENY & MYERS LLP, Matthew David Powers, O'Melveny & Myers LLP, GENE M. WILLIAMS, COUNSEL NOT ADMITTED TO USDC, KATHLEEN A. FRAZIER, COUNSEL NOT ADMITTED TO USDC & SCOTT A. JAMES, COUNSEL NOT ADMITTED TO USDC. JOSEPH DECKER: Has Until Aug. 1 to Respond in "Shannon" ------------------------------------------------------- The United States District Court for the District Nevada issued an Ordere approving the Stipulation to Extend Time for Defendants to Respond to Plaintiffs' Motion to Amended Complaint in the case captioned JOSEPH SHANNON, PENNY LUCILLE BEHRENS, CHRISTOPHER ROBERT BRAGGS, and JOSE LOPEZ GOMEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. JOSEPH (JD) DECKER, STEVE GEORGE, and DONALD SODERBERG, in their individual capacities, Defendants, Case No. 17-CV-875-KAD-GWF (D. Nev.). The Parties stipulate and agree that Defendants have until Tuesday, August 1, 2017, to file their response to Plaintiffs' First Amended Class Action Complaint. In consideration for Plaintiffs' agreement, Defendants agree not to assert any defense based upon failure to effectuate proper service of process. This is the first request for additional time for Defendants' response. This extension of time is not made for any dilatory or delaying tactic and is necessary in order to allow Defendants time to prepare their response. A full-copy text of the District Court's July 13, 2017 Order is available at https://is.gd/Ow1KBx from Leagle.com. Joseph Shannon, Plaintiff, represented by Jason D. Mills -- jdm@neemanmills.com -- Neeman & Mills, Ltd. Joseph Shannon, Plaintiff, represented by Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg, 2965 South Jones Boulevard #E-4, Las Vegas, NV, 89146 Office (702) 383-6085 & James P. Kemp, Kemp & Kemp, 7534 W. Azure DriveSuite 110Las Vegas, NV 89130. Phones: (702) 258-1183. Penny Lucille Behrens, Plaintiff, represented by Jason D. Mills Neeman & Mills, Ltd., Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg & James P. Kemp, Kemp & Kemp. Christopher Robert Braggs, Plaintiff, represented by Jason D. Mills, Neeman & Mills, Ltd., Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg & James P. Kemp, Kemp & Kemp. Jose Lopez Gomez, Plaintiff, represented by Jason D. Mills, Neeman & Mills, Ltd., Leon Marc Greenberg, Leon Greenberg Professional Corporation, Dana Sniegocki, Leon Greenberg & James P. Kemp, Kemp & Kemp. Joseph Decker, Defendant, represented by Sarah Bradley, State of Nevada Office of the Attorney General. Steve George, Defendant, represented by Sarah Bradley, State of Nevada Office of the Attorney General. Donald Soderberg, Defendant, represented by Sarah Bradley, State of Nevada Office of the Attorney General. LEGEND ENERGY: Harlow Seeks to Certify Class of Oilfield Worker --------------------------------------------------------------- In the lawsuit styled JARED HARLOW, Individually and on Behalf of Those Similarly Situated, v. LEGEND ENERGY SERVICES, LLC; TREY INGRAM, MATTHEW GOODSON, and JOSH PRUETT, Each Individually and as Officers of LEGEND ENERGY SERVICES, LLC, the Defendants, Case No. 4:16-cv-02324-FHS (S.D. Tex.), the Plaintiff asks the Court to conditionally certify a class of: "each individual employed as a salaried Oilfield Worker for Defendant at any time within the three years preceding the filling of Plaintiff's Original Complaint, excluding any such person who has already participated in a claim against Defendant as an opt-in or named party in a wage lawsuit". The Plaintiff brought this suit on behalf of certain former and current oil field employees of Defendants Legendary Energy Services, LLC, to recover overtime wages and other damages pursuant to the Fair Labor Standards Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kjljHGT9 The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221 0088 Facsimile: (888) 787 2040 E-mail: josh@sanfordlawfirm.com The Defendant is represented by: Meritt B. Chastain, III, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. One Allen Center 500 Dallas Street, Suite 3000 Houston, TX 77002 Telephone: (713) 655 0855 Facsimile: (713) 655 0020 E-mail: merit.chastain@odnss.com LG CHEM: Filing of Claims for Battery CA Settlement Started ----------------------------------------------------------- Inc.com reports that if you bought a phone, camera or computer with a rechargeable battery since 2000, the odds are good you're eligible to claim part of a settlement in a major class action lawsuit if you act before November 29. The suit claims that makers of lithium-ion batteries illegally colluded to fix the price of the cylindrical, rechargeable batteries that power portable computers, cameras, power tools and a number of other electronics. A handful of the more than a dozen companies being sued for participating in the price-fixing conspiracy have agreed to a settlement, including LG Chem, Hitachi Maxell, NEC and Sony. Collectively, they've agreed to pay up to $64 million to settle the case. After the lawyers take a chunk of that amount, the rest is set to be distributed to anyone who bought just about any type of portable electronics between 2000 and 2011. Getting your chunk of the settlement is as easy as going to a special website setup to file your claim at reversethecharge.com. It takes less than five minutes to go to the site and enter the number of laptops, cell phones, smart phones, tablets, cameras, camcorders, digital music players, power tools and rechargeable battery packs that you bought between 2000 and 2011. Filing a claim only requires entering the number of each type of product, not a comprehensive list of model or serial numbers and proof of purchase is not required. You can also go back and edit your claim if you remember another eligible product you purchased. You have until November 29 to file your claim, but the catch is there's no way to know how much cash you're entitled to until all claims are in. Also, a court still has to give final approval to the settlement and distribution of funds later this year, so nothing is set in stone yet. Because many millions of device purchases are likely eligible to be part of the settlement, it really will come down to how many claims are filed. Odds are most payments won't be more than a few bucks if word gets out and the millions of affected consumers get around to filing a claim. But hey, there's nothing wrong with a few extra bucks and striking a blow in the name of consumer protections, even if the biggest winners are probably the lawyers in this case. [GN] LGI HOMES: "Selby" Suit Seeks to Certify Class of Office Managers ----------------------------------------------------------------- In the lawsuit captioned LORRIE SELBY AND SONIA AGUIRRE, Individually, and on behalf of all others similarly situated, the Plaintiffs, v. LGI HOMES CORPORATE, LLC, the Defendant, Case No. 4:17-cv-00100-ALM-KPJ (E.D. Tex.), the Plaintiffs ask Court to certify a collective action opt-in class pursuant to Fair Labor Standards Act: "all office managers who worked for Defendant LGI Homes Corporate. LLC in Texas from February 13, 2015, to present". This case involves a putative-class lawsuit brought by Plaintiffs against Defendant, in their individual capacities and as collective action on behalf of other purported similarly situated office managers employed by LGI across the country. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=uYpcP1r6 The Plaintiffs are represented by: Matthew R. Scott, Esq. Javier Perez, Esq. SCOTT & PEREZ LLP Founders Square 900 Jackson Street, Suite 550 Dallas, TX 75202 Telephone: (214) 965 9675 Facsimile: (214) 965 9680 E-mail: matt.scott@scottperezlaw.com Javier.perez@scottperezlaw.com The Defendant is represented by: Kimberley S. Moore, Esq. STRASBURGER & PRICE, LLP 2600 Dallas Parkway, Suite 600 Frisco, Texas 75034 Telephone: (469) 287 3900 Facsimile: (469) 287 3999 E-mail: Kim.moore@strausburger.com LMCHH PCP: Outten & Golden Named Interim Lead Atty in "Kusnick" --------------------------------------------------------------- The United States Bankruptcy Court for the Eastern District of Louisiana issued an Order granting Plaintiff's motion to appoint interim lead counsel in the case captioned BARBARA KUSNICK, on behalf of herself and all others similarly situated, Plaintiffs, v. LMCHH PCP, LLC, and LOUISIANA MEDICAL CENTER AND HEART HOSPITAL, LLC, CCG OF LOUISIANA, LLC, and MEDCARE INVESTMENT FUNDS, Defendants. TERRY KING, APRIL ESCHETE, LEONIDA GALLOWAY, MARVETTE LEBLANC-CLARKSTON, JOHN FAYARD, III, BAMBILYNN JORDAN, LOU ANN LEA, MONICA SMITH, and MARLEA ROSS, on behalf of themselves and all others similarly situated, Plaintiffs, v. LMCHH PCP, LLC, LOUISIANA MEDICAL CENTER AND HEART HOSPITAL, LLC and CCG OF LOUISIANA, LLC, Defendants, Adv. P. No. 17-1021., 17-1024 (Bankr. E.D. La.). The Kusnick Complaint seeks remedies for LMCHH PCP, LLC, Louisiana Medical Center and Heart Hospital, LLC, CCG of Louisiana, LLC, and Medcare Investment Funds' alleged failure to provide at least sixty days' advance written notice of the terminations as required by the WARN Act and adds claims against the Non-Debtor Defendants, among other claims. On February 24, 2017, the King Plaintiffs, on behalf of themselves and all others similarly situated, filed an almost identical class action adversary proceeding against the Defendants, minus Medcare Investment Funds, for violation of the WARN Act and the recovery of damages in the amount of sixty days' back pay and ERISA benefits, among other claims. The Kusnick Plaintiffs' counsel represent to the court that they will be paid on a contingent fee basis, so they will not cost the debtor's estate anything more than the King Plaintiffs' counsel. On the balance, although both proposed interim counsel are very competent and would certainly be able to do a fine job, the balance of the factors the court must consider weigh in favor of the counsel for the Kusnick Plaintiffs leading the charge. The Kusnick Plaintiffs' Motion is granted and Outten & Golden, LLP, are appointed as Interim Lead Counsel. A full-copy text of the District Court's July 13, 2017 Order is available at https://is.gd/MlnxWG from Leagle.com. Barbara Kusnick, Plaintiff, represented by Benjamin Kadden -- bkadden@lawla.com Lugenbuhl, Wheaton, Peck, Rankin, Jack Raisner, Outten & Golden LLP, Jack A. Rasiner & Rene S. Roupinian, Outten & Golden LLP, 685 Third Avenue, 25th Floor, Manhattan, New York 10017. Rose H. Delaney, Plaintiff, represented by Rene Roupinian, Outten & Golden LLP. LMCHH PCP LLC, Defendant, represented by Elizabeth J. Futrell -- efutrell@joneswalker.com -- & Mark Mintz -- mmintz@joneswalker.com -- Jones Walker, et al. MedCare Investment Funds, Defendant, represented by Michael A. Crawford, --mike.crawford@taylorporter.com -- Taylor Porter Brooks & Phillips LLP & Thomas Robert Peak -- tom.peak@taylorporter.com -- c/o Taylor Porter Brooks & Phillips. CCG of Louisiana, LLC, Defendant, represented by Jan Marie Hayden -- jhayden@bakerdonelson.com -- Baker Donelson. Official Committee of Unsecured Creditors, Creditor Committee, represented by Tristan E. Manthey -- tmanthey@hellerdraper.com -- Heller, Draper, Patrick, Horn & Dabney LULAROE LLC: Harvey Seeks Minimum Wages & OT under Labor Code ------------------------------------------------------------- BRIAN HARVEY, individually and on behalf of all others similarly situated, the Plaintiff, v. LULAROE, LLC, a California limited liability corporation; HOWROYDWRIGHT EMPLOYMENT AGENCY, INC. D/B/A APPLEONE, a California corporation; and DOES 1-10, inclusive, the Defendants, Case No. BC688401 (Cal. Super. Ct., July 13, 2017), seeks to recover minimum wages and overtime wages under California Labor Code. The Plaintiff alleges the Defendants had a consistent policy of violating state wage and hour laws by, among other failing to pay at least minimum wages for all hours worked; filing to pay overtime compensation for work performed in excess of 8 hours per day, 12 hours per day, and/or 40 hours per week; failing to provide proper meal periods or compensation in lieu thereof; willfully failing to provide accurate semi-monthly itemized wage statements; and failing to pay all wages due upon separation of employment. Lularoe is in the business of retail clothing sales.[BN] The Plaintiff is represented by: Scott B. Cooper, Esq. Samantha A. Smith, Esq. THE COOPER LAW FIRM, P.C. 4000 Barranca Parkway, Suite 250 Irvine, California 92604 Telephone: (949) 724 9200 Facsimile: (949) 724 9255 E-mail: scott@cooper-firm.com samantha@cooper-finn.com - and - Christopher Markelz OFFICES OF CHRISTOPHER MARKELZ 200 N. Main, 2nd Floor Santa Ana, CA 92701 Telephone: (714) 361 4188 Facsimile: (714) 881 5445 E-mail: info@markelzlaw.com MARSHALLS OF CA: Discovery Order in "Williams" Reversed ------------------------------------------------------- The case captioned MICHAEL WILLIAMS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY Respondent, MARSHALLS OF CA, LLC, Real Party in Interest, No. S227228 (Cal.), is a representative action seeking civil penalties on behalf of the State of California and aggrieved employees statewide for alleged wage and hour violations. In the course of discovery, plaintiff Michael Williams sought contact information for fellow California employees. When the defendant employer, Marshalls of CA, LLC, resisted, Williams filed a motion to compel. The trial court granted the motion as to the store where Williams worked, but denied it as to every other California store, conditioning any renewed motion for discovery on Williams sitting for a deposition and showing some merit to the action. Williams petitioned the Court of Appeal to compel the trial court to vacate its discovery order. The Court of Appeal denied the writ, and the Supreme Court of California granted review to consider the scope of discovery available in PAGA actions. The state Supreme Court held that in the absence of privilege, the right to discovery in this state is a broad one, to be construed liberally so that parties may ascertain the strength of their case and at trial the truth may be determined. The state Supreme Court's prior decisions and those of the Courts of Appeal firmly establish that in non-PAGA class actions, the contact information of those a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief, without any requirement that the plaintiff first show good cause. Nothing in the characteristics of a PAGA suit, essentially a qui tam action filed on behalf of the state to assist it with labor law enforcement, affords a basis for restricting discovery more narrowly, nor, on this record, do other objections interposed in the trial court support the trial court's order, the state Supreme Court held. Accordingly, the state Supreme Court reverses. A full-copy text of the state Supreme Court's July 13, 2017, decision is available at https://is.gd/HMQCWu from Leagle.com. Capstone Law, Glenn A. Danas-- Glenn.Danas@CapstoneLawyers.com -- Ryan Wu -- Ryan.Wu@CapstoneLawyers.com -- Robert Drexler -- Robert.Drexler@CapstoneLawyers.com -- Stan Karas -- Stan.Karans@CapstoneLawyers.com -- and Liana Carter -- Lina.Carter@CapstoneLawyers.com -- for Petitioner. Cohelan Khoury & Singer and Michael D. Singer -- msinger@ckslaw.com -- for California Employment Lawyers Association as Amicus Curiae on behalf of Petitioner. Cynthia Rice for California Rural Legal Assistance, Inc., California Rural Legal Assistance Foundation, Legal Aid Society- Employment Law Center and National Employment Law Project as Amici Curiae on behalf of Petitioner. The Turley Law Firm, William Turley, David T. Mara and Jamie Serb, 7428 Trade St., San Diego CA 92121 for Consumer Attorneys of California as Amicus Curiae on behalf of Petitioner. No appearance for Respondent. Littler Mendelson, Robert G. Hulteng -- rhulteng@littler.com -- Amy Todd-Gher, Esq. -- atodd-gher@littler.com -- Kyle W. Nageotte, Esq., Joshua J. Cliffe, Esq. -- jcliffe@littler.com -- Emily E. O'Connor, Esq. -- eoconnor@littler.com -- and Scott D. Helsinger for Real Party in Interest. Shook, Hardy & Bacon, Phil Goldberg -- pgolberg@shb.com -- Christopher E. Appel -- cappel@shb.com -- and Patrick Gregory -- Gregory@.shb.com -- for National Association of Manufacturers, American Coatings Association and NFIB Small Business Legal Center as Amici Curiae on behalf of Real Party in Interest. Call & Jensen, Julie R. Trotter, Jamin S. Soderstrom -- jamin@soderstormlawfirm.com -- and Delavan J. Dickson for Retail Litigation Center, Inc., California Retailers Association and California Grocers Association as Amici Curiae on behalf of Real Party in Interest. Jackson Lewis, Lisa Barnett Sween -- Lisa.Sween@jacksonlewis.com - - Natalja M. Fulton, Dylan B. Carp -- CarpD@jacksonlewis.com -- and Douglas G.A. Johnston for Prometheus Real Estate Group, Inc., as Amicus Curiae on behalf of Real Party in Interest. Pahl & McCay, Stephen D. Pahl, Karen Kubala McCay kmccay@pahl- mccay.com and Julie Bonnel-Rogers jrogers@pahl-mccay.com -- for California Apartment Association as Amicus Curiae on behalf of Real Party in Interest. O'Melveny & Myers, Apalla U. Chopra,achopra@omm.com -- Adam J. Karr akarr@omm.com -- Ryan W. Rutledge -- rrutledge@omm.com -- Andrew Lichtenstein -- alichtenstein@omm.com -- Christina N. Pacudan -- cpacudan@omm.com -- for The Employers Group as Amicus Curiae on behalf of Real Party in Interest. Haynes and Boone, Mary-Christine Sungaila -- mcsungaila@haynesboone.com -- and Martin M. Ellison -- mellison@bsfllp.com -- for International Association of Defense Counsel as Amici Curiae on behalf of Real Party in Interest. MASSACHUSETTS: Class Action Challenges Voter Cutoff Law ------------------------------------------------------- Boston Globe reports that Gladys Vega has been registering new voters in Chelsea since the early 1990s, an eternity in political time. But one of her biggest challenges has stayed constant. "Every election, when I run campaigns in September, my team and I literally have to beg people to get registered to vote," said Vega, executive director of the Chelsea Collaborative, a nonprofit serving immigrants. "But come October, close to the election, they're the ones chasing me. But by then, they can't vote in that year's election because of the deadline." Ns. Vega is referring to the voter cutoff law, nearly 25 years old, which establishes a deadline 20 days before Election Day for voters to register. The Chelsea Collaborative is part of a class action lawsuit filed by the American Civil Liberties Union of Massachusetts last November challenging the constitutionality of the cutoff. The trial, which started on July 5, is still underway. Whether or not the current law is unconstitutional, though, there is no good argument for keeping the archaic 20-day rule in place. It only serves to discourage registration. Ms. Vega testified to that effect in the trial. She said that as media coverage on an impending election intensifies, voters naturally become more interested in it and want to register. By that time, however, they've missed the cutoff date. A US Census Bureau survey showed that nearly 1 in 5 eligible voters in Massachusetts said they were not registered to vote because they had missed the cutoff date. Many are not even aware that there is a deadline -- ignorance about the law is rampant. "We're a state that has a law that needlessly disenfranchises voters," said Matt Segal, the ACLU's legal director. "The constitution recognizes voting as fundamentally important, so we didn't think the cutoff law was compatible with that." The lawsuit alleges the deadline is arbitrary and that it disproportionately affects young, elderly, and low-income residents, and people of color. The secretary of state's office, in charge of managing elections, defends the rule, saying it is necessary to ensure an orderly election process. However, Massachusetts already allows for early voting, which means one can register to vote and then cast a ballot five days later but still ahead of Election Day; also, electronic voter registration was recently enacted. The current capabilities of the state bureaucracy can surely process registrations without a 20-day deadline. Experts say no other election reform is more effective at increasing voter turnout than allowing same-day registration. In the 2012 presidential election, for example, the average voter turnout was over 10 percent higher in states that let residents register on Election Day. More than a dozen states -- including neighboring Maine, New Hampshire, and Vermont -- have enacted same-day registration. The 20-day rule, as a matter of public policy, is hopelessly outdated. Regardless of the outcome of the lawsuit, Massachusetts legislators should make voting more friendly. Enhancing access to the ballot takes on particular significance now, given the threats to voting rights pushed by the Trump administration at the federal level. Enacting same-day registration is a golden opportunity for the Commonwealth to take a stand. [GN] MASSACHUSETTS FINANCIAL: Faces "Velazquez" Lawsuit Under ERISA -------------------------------------------------------------- Melissa Velazquez, individually and as representative of a class of similarly situated persons, and on behalf of the Massachusetts Financial Services Company Defined Contribution Plan and the Massachusetts Financial Services Company MFSavings Retirement Plan, Plaintiff, v. Massachusetts Financial Services Company d/b/a MFS Investment Management, the Massachusetts Financial Services Company Retirement Committee, the Massachusetts Financial Services Company Retirement Investment Committee, MFS Service Center, Inc., and John Does 1-30, Case No. 1:17-cv-11249-RWZ (D. Mass., July 7, 2017), alleges that Defendants have breached their fiduciary duties and engaged in prohibited transactions with respect to the Plans in violation of ERISA, to the detriment of the Plans and their participants and beneficiaries. Defendants have used the Plans as an opportunity to promote MFS Service Center, Inc.'s mutual fund business and maximize profits at the expense of the Plans and their participants, says the complaint. Defendants loaded the Plans primarily with MFS's investment offerings, without investigating whether Plan participants would be better served by investments managed by unaffiliated companies. The MFS Defined Contribution Plan is an employee pension benefit plan. MFS Service Center, Inc. is the plan sponsor.[BN] The Plaintiff is represented by: Jason M. Leviton, Esq. Bradley J. Vettraino, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 0211 0 Phone: (617) 398-5600 Fax: (617) 507-6020 E-mail: jason@blockesq.com bradley@blockesq.com - and - Kai H. Richter, Esq. Carl F. Engstrom, Esq. Eleanor Frisch, Esq. NICHOLS KASTER, PLLP 4600 IDS Center 80 South Eighth St. Minneapolis, MN 55402 Phone: (612) 256-3200 E-mail: krichter@nka.com cengstrom@nka.com efrisch@nka.com MATTRESS FIRM: "Herrera" Suit Seeks Drivers Class Certification --------------------------------------------------------------- In the lawsuit titled RAFAEL HERRERA, MAURICIO ALTAMIREZ, JOSE DIAZ, and others similarly situated, the Plaintiffs, v. MATTRESS FIRM, INC., a Foreign Profit Corporation, EDWIN V. DELIVERY SERVICES, INC., a Florida Corporation, EDWIN VINDAS, individually, C.S.F. ENTERPRISES, INC., a Florida Corporation, and FELIX PACHECO, individually, the Defendants, Case No. 1:17-cv- 22048-CMA (S.D. Fla.), the Plaintiffs seek collective action certification for a class of similarly situated persons: "all non-exempt delivery drivers hired by any of MATTRESS FIRM's subcontractors during the three years preceding this action, who classified as independent contractors, and who were not compensated at least the applicable overtime rate of time and a half their regular rate of pay pursuant to the FLSA for hours worked over 40 in a workweek". The Plaintiffs initiated this action for unpaid overtime wages and liquidated damages on June 1, 2017. The Complaint seeks damages for Plaintiffs and others similarly situated for violations of the Fair Labor Standards Act. The Plaintiffs were employed as delivery drivers. Specifically, Plaintiffs allege that Defendants were joint employers of Plaintiffs for purposes of the FLSA under a vertical joint employment relationship. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=8nkY9cCh The Plaintiff is represented by: Andres F. Fernandez, Esq. Samantha M. Fraga-Lopez, Esq. Jeanette Escudero, Esq. BERENS, FERNANDEZ & ASSOCIATES, P.A. 2100 Ponce de Leon Blvd., PH-2 Coral Gables, FL 33134 Telephone: (305) 329 2990 E-mail: Fernandez@berensfernandez.com Fraga@berensfernandez.com escudero@berensfernandez.com pleadings@berensfernandez.com The Defendant is represented by: David Alan Miklas, Esq. LAW OFFICE OF DAVID MIKLAS, P.A. PO Box 12996 Fort Pierce, FL 34979 E-mail: David@miklasemploymentlaw.com - and - Ivan Izquierdo, Esq. IZQUIERDO & LEON LAW, PLLC 8950 SW 74 Court Miami, FL 33156 E-mail: izquierdo@ileonlaw.com - and - Pelayo M. Duran, Esq. LAW OFFICES OF PELAYO DURAN, P.A. 4640 NW 7th Street Miami, FL 33126 E-mail: pleadings@pelayoduran.com duranandassociates@gmail.com - and - Jamila Mensah, Esq. Heather Sherrod, Esq. NORTON ROSE FULBRIGHT US LLP Fulbright Tower 1301 McKinney, Suite 5100 Houston, TX 77010 E-mail: Jamila.mensah@nortonrosefulbright.com Heather.sherrod@nortonrosefulbright.com MERCHANT ADVANCE: Court Extends Time to Serve in "Hemis" -------------------------------------------------------- The United States District Court for the Southern District of Illinois issued an Order Granting the Plaintiff's Motion for alternative service and extension of time to serve in the case captioned DR. GERALD H. BEMIS, SR., D.C., individually and as the representative of a class of similarly situated persons, Plaintiffs, v. MERCHANT ADVANCE EXPRESS, INC., et al., Defendants, Case No. 3:15-cv-1365-DRH-DGW (S.D. Ill.). The Court held that Plaintiff has provided sufficient evidence demonstrating that personal service has become impracticable on defendants insofar as the usual means of service have proved to be extremely difficult or inconvenient. In particular, Plaintiff has submitted evidence establishing five separate attempts at service on Mass Marketing Data, Inc., on four separate days that were unsuccessful Plaintiff's attempts to ascertain additional information on Mass Marketing Data via subpoena were unsuccessful. Plaintiff has demonstrated four failed attempts on four separate days to effect service. Again, Plaintiff's efforts to obtain more information regarding Email Blast via subpoena were unsuccessful. In light of the failed prior service attempts and apparent attempt by the above-mentioned Defendants to evade service, the Court finds that personal service is impracticable. Pursuant to Rule 4.1(k) of the Arizona Rules of Civil Procedure, under these circumstances service may be accomplished in another manner." The Arizona Rules of Civil Procedure also allow for service by publications provided specific requirements are met and procedures followed. The Court also Orders Plaintiff to attempt service by publication in accordance with the procedures set forth in the Arizona Rules of Civil Procedure A full-text copy of the District Court's July 17, 2017 Order, is available at https://is.gd/rImNYS from Leagle.com Dr Gerald H Bemis, Sr, Plaintiff, represented by David Max Oppenheim -- david@classlawyers.com -- Bock & Hatch, LLC. Dr Gerald H Bemis, Sr, Plaintiff, represented by John P. Orellana, -- johno@classlawyers.com Bock & Hatch, LLC, Kimberly Mahlow Watt -- kimberly@classlawyers.com -- Bock & Hatch, LLC, Tod A. Lewis, ----- tod@classlawyers.com Bock & Hatch, LLC & Phillip A. Bock -- phil@classlawyers.com --, Bock & Hatch, LLC. Merchant Advance Express, Inc., Defendant, represented by Adam Stein -- astein@herrick.com -- Herrick, Feinstein LLP & Carol Michele Goodman -- cgoodman@herrick.com -- Herrick, Feinstein LLP. Merchant Advance Express, Inc., ThirdParty Plaintiff, represented by Adam Stein, Herrick, Feinstein LLP & Carol Michele Goodman, Herrick, Feinstein LLP. Merchant Advance Express, Inc., Cross Claimant, represented by Adam Stein, Herrick, Feinstein LLP & Carol Michele Goodman, Herrick, Feinstein LLP. METRO AIR: Faces "Vizcarra" Suit Seeking to Recoup Overtime Pay --------------------------------------------------------------- CHRISTOPHER VIZCARRA, on behalf of himself and others similarly situated, PLAINTIFF, vs. METRO AIR SERVICE INC., a corporation; and DOES 1 to 100, inclusive, DEFENDANTS, Case No. BC 667909, seeks to recover alleged unpaid wages and interest thereon for failure to pay all double-time hours worked at the double-time rate of pay; failure to provide legally compliant meal periods and/or pay meal period premium wages; failure to provide legally complaint rest breaks and/or pay rest break premium wages; unpaid vested vacation wages; statutory penalties for failure to provide accurate wage statements; waiting time penalties in the form of continuation wages for failure to timely pay employees; injunctive relief and other equitable relief; and reasonable attorney's fees pursuant to the Labor Code. METRO AIR SERVICES services HVAC components. Plaintiff worked at and/or for Defendants in California as non-exempt, hourly employee.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Andrea Rosenkranz, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd. Suite 200 Beverly Hills, CA 90211 Phone: (310)432-0000 Fax: (310) 432-0001 E-mail: ilavi@lelawfirm.com arosenkranz@lelawfirm.com - and - Sahag Majarian II, Esq. LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Boulevard Tarzana, CA 91356 Phone: (818) 609-0807 Fax: (818) 609-0892 E-mail: sahagii@aol.com METROPOLITAN TRANSPO: Faces Suit Over Safe Service Failure ---------------------------------------------------------- Frank Eltman, writing for Stamford Advocate, reports that even before the start of a two-month track renovation project at New York's Pennsylvania Station that's expected to disrupt life for hundreds of thousands, some frustrated Long Island Rail Road riders filed a lawsuit over its chronic shutdowns, delays and packed trains that they say are unacceptable. It is believed to be the first such legal action by riders over the most recent problems with rail lines running in and out of Penn Station. "It's getting unsafe. People are fighting because it's so unbearable. The anxiety is out of control," says Meredith Jacobs, vice president of sales for a Manhattan dress manufacturer and a plaintiff in a lawsuit filed in June. The suit against the Metropolitan Transportation Authority, the LIRR's parent organization, claims breach of contract, negligence and "intentional infliction of emotional distress," listing a litany of complaints alleging the railroad is failing to provide on-time, safe and reliable service. It seeks unspecified damages. "The mornings tend to not be as bad, but the evenings are a nightmare," says Jacobs, who has been riding the LIRR from her home in Wantagh to Penn Station for 24 years. "The trains and platforms are usually standing-room-only." An MTA spokesman said the authority does not comment on pending litigation. Paul Liggieri, an LIRR commuter and attorney who filed the lawsuit, hopes the suit, even if it fails, elicits changes for commuters. "We are requesting hundreds of documents be turned over. I am hoping they will help give me answers for my clients." Liggieri is also waiting to learn whether a state judge will grant class-action status to the lawsuit, making it possible for hundreds, if not thousands, of commuters eligible to join in. The lawsuit comes as Amtrak, which operates Penn Station, presses on with infrastructure improvements, including track and switch replacement, at the nation's busiest rail station. In order to accommodate the work, which will require some of the station's 21 tracks to be taken out of service, the LIRR, New Jersey Transit and Amtrak itself have altered service schedules. Those commuting from Long Island are being told to consider going to stations the LIRR serves in Brooklyn and Queens and transferring to the city subways. The LIRR also is adding cars to all trains to accommodate more riders on fewer trains into Penn Station. The epicenter of activity in New Jersey likely will be Hoboken, where NJ Transit is diverting trains that would normally go into New York. An estimated 15,000 extra passengers will have the option of crowding onto already-packed Port Authority Trans-Hudson trains or taking ferries. Joe Lhota, who was named as MTA chairman, has said the agency will make adjustments to its service plan on the fly, assessing how things go after both the morning and afternoon commutes on July 3, the first day the changes go into effect. "We're going to remain flexible and evaluate what makes sense and what doesn't make sense," he told reporters. The LIRR, which began in 1834, is the busiest commuter railroad in North America. It has over 700 miles of track on 11 branches, stretching 120 miles from Manhattan to Montauk. Grousing about LIRR service has been a staple of life for Long Islanders for decades, but a spate of breakdowns, power failures and minor derailments in recent years has brought many to a boiling point. "I can count on one hand how often that train is on time," says Claire Kalakowski, a sales analyst for a Manhattan information services business who is not a party to the lawsuit. "I used to call my boss whenever I was going to be late, but I changed that," she said. "Now I call when I'm going to be on time. I hardly call at all." [GN] MILLWOOD INC: "Yu" Suit Seeks Certification of FLSA Class --------------------------------------------------------- In the lawsuit entitled Jorge Yu, individually and on behalf of all others similarly situated, the Plaintiff, v. Millwood, Inc. Defendant, Case No. 17-cv-324-PP (E.D. Wisc.), the parties jointly ask the Court to conditionally certify a collective action pursuant to the Fair Labor Standards Act and authorize notice. The Plaintiff seeks to prosecute this action on behalf of himself and other similarly situated hourly and piece rate employees of Defendant's Cudahy, Wisconsin plant, who Plaintiff alleges were each similarly subject to common policies and practices which denied them proper compensation for each hour worked in violation of the FLSA. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=v4RzJPhW The Plaintiffs are represented by: Larry A. Johnson, Esq. Summer H. Murshid, Esq. Timothy P. Maynard Esq. HAWKS QUINDEL, S.C. 222 E Erie Street Suite 210 P.O. Box 442 Milwaukee, WI 53202 Telephone: (414) 271 8650 Facsimile: (414) 271 8442 E-mail: ljohnson@hq-law.com smurshid@hq-law.com tmaynard@hq-law.com The Defendant is represented by: Tiffany L. Hutchens, Esq. Frank A. Gumina, Esq. HUSCH BLACKWELL, LLP 555 East Wells Street Milwaukee, WI 53202-3819 Telephone: (414) 273 2100 Facsimile: (414) 223 5000 E-mail: tiffany.hutchens@huschblackwell.com frank.gumina@huschblackwell.com - and - Karen Soehnlen McQueen, Esq. KRUGLIAK, WILKINS, GRIFFITHS & DOUGHERTY CO., L.P.A. 4775 Munson St NW Canton, OH 44718 Telephone: (330) 497 0700 Facsimile: (330) 497 4020 E-mail: kmcqueen@kwgd.com MR. HEATER: Cal. App. Affirms Demurrer to SAC in "Burger" --------------------------------------------------------- The Court of Appeals of California, Fourth District, Division Three, issued an Opinion that affirmed the District Court's decision to sustain without leave to amend manufacturer's demurrer to the second amended complaint in the case captioned MATTHEW BURGER, Plaintiff and Appellant, v. MR. HEATER, INC., et al., Defendants and Respondents, No. G049505 (Cal. App.). This appeal challenges the trial court's decision to sustain, without leave to amend, the manufacturers' demurrer to the second amended complaint's UCL cause of action. The second amended complaint alleged three causes of action against the manufacturers and LHC as follows: (1) violation of the Unfair Competition Law (UCL); (2) false advertising; and (3) violation of the Consumers Legal Remedies Act (CLRA). Burger's UCL claim against the manufacturers was based on a theory they aided and abetted Lowe's Home Center's (LHC) criminal conduct in selling the heater. Burger asserted the trial court incorrectly ruled the manufacturers could not be liable for aiding and abetting because it was not alleged they were a retail merchant or that they could have prevented LHC's purported crime. Relevant to this appeal, the trial court sustained without leave to amend the manufacturers' demurrer to the Derivative UCL claim. However, it overruled the manufacturers' demurrer to the false advertising and CLRA causes of action. With respect to LHC, the court sustained without leave to amend the demurrer to the false advertising and CLRA claims but allowed Burger to proceed on the UCL claim against LHC. Burger filed a motion for summary judgment or summary adjudication against LHC and the manufacturers on the remaining causes of action. He argued there was no defense to the causes of action and the undisputed evidence supported liability. LHC filed a summary judgment motion, arguing the sole remaining claim against it (the UCL cause of action) failed as a matter of law because the portable heater was not covered by section 19881, subdivision (a). The Cal. App. noted the trial court correctly applied the basic rules of statutory interpretation after it determined section 19881 did not define any of its operative terms and there was no legal authority on this issue. Reviewing the matter de novo, and applying the same legal principles, the Cal. App. reaches the same conclusion as the trial court. Section 19881 does not apply to the type of portable heater at issue in this case. Burger maintains the SAC adequately pled the elements of two forms of secondary liability, (1) aiding and abetting, and (2) conspiracy. The demurrer was properly sustained without leave to amend because the manufacturers' liability is dependent upon the commission of an underlying tort by LHC, a claim found to lack merit in our Burger I opinion. "Plaintiffs cannot proceed with this claim of aiding and abetting, until such time as they have properly alleged discrimination by a particular employer or group of employers Since the Cal. App. decided in Burger I that Burger cannot state the Principal UCL claim against LHC as a matter of law, his causes of action based on secondary liability must fail. Unless LCH committed the underlying tort alleged here (the UCL claim), the manufacturers cannot be held liable under either a conspiracy or aider and abettor theory. This court affirmed the trial court's determination LCH is not liable for violating the UCL. (Burger I, supra, G049771.) This ruling is now the law of the case. Accordingly, the Cal. App. said it must conclude the demurrer relating to the manufacturers' secondary liability was properly sustained without leave to amend. The Cal. App. rejects Burger's argument the decision in Burger I is irrelevant to our review of the demurrer ruling. He asserts law of the case, res judicata, and collateral estoppel are inapplicable. The doctrine of law of the case operates primarily within the proceedings in a single lawsuit and deals with the effect of the first appellate decision on a subsequent retrial or appeal. Under that doctrine, the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case."' The doctrine promotes finality by preventing re- litigation of issues previously decided. In Burger I, the Cal. App. affirmed the trial court's ruling the Principal UCL claim against LHC was not viable. Under the law of the case doctrine, Burger is prohibited from reviving this cause of action against LHC on remand. The determination LHC cannot be held directly liable for UCL violations precludes Burger from pursing secondary theories of liability against other defendants. The manufacturers' derivative liability is dependent upon the commission of an underlying tort by LHC. Contrary to Burger's contention, the Burger I decision precludes him from re-litigating the claim against the primary tortfeasor. And without proof of the underlying tort, there can be no secondary liability. The judgment is affirmed. A full-text copy of the Cal. App.'s July 17, 2017 Opinion is available at https://is.gd/Td3hsA from Leagle.com. The Arkin Law Firm, Sharon J. Arkin, 225 S Olive St, Suite 102, Los Angeles, CA 90012 Hodes Milman Liebeck Mosier, Jason M. Caruso -- ason.caruso@ndlf.com -- for Plaintiff and Appellant. Greenberg Gross, Wayne R. Gross -- wgross@ggtriallaw.com -- Evan C. Borges, -- eborges@ggtriallaw.com -- and Michael E. Lopez for Defendants and Respondents. NEW HAMPSHIRE: Lack of Foster Care Reform May Spark Suit v. DCYF ---------------------------------------------------------------- Dave Solomon, writing for New Hampshire Union Leader, reports that first-term state Rep. Sean Morrison, R-Epping, became a foster parent two years ago, even though he and his wife have two children of their own. "We just wanted to help the children," he said. After two years in the program and now with his second foster child, Mr. Morrison has witnessed the operation of the foster care system from the inside, and he doesn't like what he sees. "They've been talking about a foster parent bill of rights since 2010, and it's never happened," said Morrison, alluding to the Division for Children, Youth and Families, which administers the foster care program in New Hampshire. "I want to sponsor a bill and put it up for legislation so it becomes law. Right now, we are flat out told: You have no rights." Foster parents are a key part of the child protective system, but can be left with no voice in the fate of children they often come to love as one of their own. Many hope a "bill of rights" for foster parents now in the works will give them stronger standing in a system that they say too often treats them as second-class citizens. DCYF has been working closely with the N.H. Foster and Adoptive Parents Association (NHFAPA) and the Educational and Training Partnership at Granite State College to craft a foster parent bill of rights, according to DCYF spokesman Jake Leon. "The NHFAPA feels strongly that it's time for New Hampshire foster parents to develop their own bill of rights to affirm the dignity of foster parents," he said. The bill of rights would require that foster parents be given notice regarding child placement decisions; it would allow them a voice in court and in planning visitation between children and their birth parents; and it would give foster parents consideration if adoption of the child becomes the primary goal. Michele Woltering, a foster parent for the past 10 years, is president of the state Foster and Adoptive Parents Association. She says the bill of rights will soon be posted online as a petition to gather statewide support for legislation when the Legislature reconvenes in January. "We really want to focus on making sure that our foster parents are heard and taken care of, and that things are appropriate across the board for foster families . . . that they are all treated the same, and treated with the same respect," she said. "The foster parent bill of rights will hopefully protect the foster parents' right to be heard and advocate for the children in the courtroom and with DCYF," she said. "We're the ones raising these children. We see their behavior and emotions surrounding everything going on in their lives, and if the judge doesn't know the whole story, how can the judge assess the situation?" Lack of standing Mr. Morrison was surprised by the lack of standing foster parents have, as the fate of neglected or abused children they care for is debated within the courts and state agencies. "I have witnessed the completely closed and broken system that is DCYF," Mr. Morrison said. "A class action lawsuit against DCYF may very well be organized by foster parents if improvements don't happen fast." In late May, Mr. Morrison submitted an eight-page report to Gov. Chris Sununu on the "Child Services System in NH," endorsing the reforms recommended by the outside review of DCYF last year, and adding his own observations as a foster parent. He has since met with D.J. Bettencourt, a policy adviser for Sununu, as well as lawmakers on the Child and Family Law Committee. "I do not intend to let this matter simply go away," he said. "Kids are being retraumatized in the current system." The state is desperately in need of more foster families as the opioid crisis forces more children into foster care. The number of children removed from homes with substance abuse problems went from 85 in 2010 to 329 in 2015, according to the NH Children's Trust. Yet many find foster parents find their experience in the system so frustrating, that the turnover rate is high. "A lot of that is due to lack of support for the foster families in every respect," said Ms. Woltering, "whether it's family, community or the state. The support from the state is a necessity, but doesn't always come through." Ms. Woltering takes a more moderate view of DCYF than Mr. Morrison, but in 10 years of fostering has had many experiences that reinforce her position that a bill of rights is needed. She has attended every court hearing involving foster children in her care, but has only been asked to speak on rare occasion. "Some judges ask for updates on the children, but most do not," she said. "It all depends on the judge you get." Wanting to be heard Mr. Morrison said the state would have more success retaining foster parents and better outcomes for children at risk if it paid more attention to what the foster parents have to say. He has a long list of recommended changes in policy and procedure that he submitted in his report to the governor, including mandatory drug testing for birth parents prior to reunification if the parents lost custody due to drug addiction. One of the most painful experiences for foster parents, he said, is to see a child reunited with birth parents over the objection of foster parents, and then to see the same child returned to the foster care system in a year or less. "Drug testing is very sporadic now, if at all, even though it is supported by the state in the Child Protection Act," said Mr. Morrison. "DCYF's current position is that if drugs are not being used in front of the child, there is little they can do. They rely on a judge's order for drug testing rather than making drug testing and screening part of their recommended orders to the court." Mr. Leon confirmed that drug testing is at the discretion of DCYF and the courts, even if substance abuse was the basis for the out- of-home placement. "Safety of children is our primary concern," he said. "DCYF may recommend to the court that parents be drug tested prior to and during the reunification period." High 'recidivism' Paying more attention to foster parents could also help the state reduce the so-called recidivism rate among foster children, according to Morrison. He cites data from the Annie Casey Foundation that show New Hampshire has a high percentage of children reunified with birth parents and ending up back in the DCYF system within one year, based on 2013 data. "Nearly one in four children reunified wind up back in the system," he said. Mr. Leon says that 24 percent recidivism rate is misleading. New Hampshire includes both child protection and juvenile justice programs in the data it provides, while other states may only report their child protection data to the national database, he said. According to DCYF data from 2016, New Hampshire children who are abused and neglected have a 12.6 percent likelihood of ending back in the system after reunification with birth parents, close to the national average, according to Mr. Leon. "Since the publication of the Casey 2013 report, the national standard for calculating reentry rates is being revised to account for these discrepancies," he said. [GN] NEW YORK: Refund Checks Mailed to Class Members ----------------------------------------------- Land Line Mag reports that on July 7 more than 100,000 tax refund checks were mailed to truckers who are members of a class action lawsuit brought by the Owner-Operator Independent Drivers Association against the state of New York for unconstitutionally discriminatory registration and decal taxes. The state of New York issued a check on May 17 for $44.4 million under a settlement it reached with OOIDA in September 2016 regarding its imposition of the unconstitutional registration and decal taxes. OOIDA had previously obtained a court ruling that the taxes violated the U.S. Constitution, and an injunction prohibiting New York from collecting the taxes in the future. "We fought against a number of similar taxes back in the 1980s and 1990s and the states lost in every one of those cases," said OOIDA President Jim Johnston. "We were shocked that New York even thought they could get away with this. The amount for the New York HUT decal is $19, which may seem insignificant, but if other states were to do the same thing, it would be huge -- collectively and in administrative costs." The Association had challenged the taxes as unconstitutionally discriminatory against out-of-state truckers who drive their trucks mostly in other states -- in contrast to New York-based truckers, who drive a disproportionately higher number of miles in New York. OOIDA established that the challenged taxes resulted in a higher per-mile tax rate being imposed on out-of-state trucks, and therefore violated the Commerce Clause. The class action lawsuit challenged the constitutionality of taxes that imposed $15 for a certificate of registration and a $4 decal charge on all trucks using New York state highways. The taxes were imposed not only on New York-based trucks, which log proportionately higher miles in New York but were also charged on trucks based outside of New York, which are driven mostly in states other than New York. "If there are other states that think tacking on flat fees to their state truck taxes won't be noticed as an economic burden to interstate commerce, they need to understand this is not a good idea," said OOIDA's Johnston. "We will take them to court in a heartbeat." The Association's successful lawsuit against New York's Department of Taxation and Finance was concluded on April 19, when the court issued its final order and judgment, paving the way for the refund phase to proceed. According to OOIDA's counsel, Daniel Cohen, Esq. -- dec@cullenlaw.com -- of the Cullen Law Firm in Washington, D.C., carriers in the class are entitled to keep refunds for taxes paid exclusively by them. However, Cohen stated that the court further ordered that carriers who charged back any registration or decal payments to owner-operators are required to pass through or reimburse the full amount of the tax refunds they receive for such tax payments to those owner-operators, without regard to any claims or setoffs. Any such refunds that are not passed through must be returned to the Cullen Law Firm's office in Washington, D.C., within six months after the date the refund payment was sent to the class member. According to the law firm, all checks will expire after 90 days, so class members must take particular care to deposit their checks promptly after they receive them. Cohen further advised that the court's order provides that all disputes regarding the reimbursement of owner-operators will be referred to a mediator designated by the court. Any disputes must be received in writing by the Cullen Law Firm, PLLC, 1101 30th Street NW, Suite 300, Washington, DC 20007 within six months after the date the refund payment was sent to the class member. [GN] NOBLE ENERGY: Faces "Virden" Suit Alleging Misclassification ------------------------------------------------------------ KELBY VIRDEN, individually and on behalf of all others similarly situated Plaintiffs, v. NOBLE ENERGY, INC., Defendant, Case No. 4:17-cv-02094 (S.D. Tex., July 7, 2017), alleges that Defendant did not pay plaintiff overtime as required by the Fair Labor Standards Act, instead Defendant improperly classified Virden and those similarly situated as independent contractors, paying a daily rate with no overtime compensation. Noble Energy, Inc. is a global oil and gas exploration and production company operating worldwide and throughout the United States, including in Texas. Virden and the putative class members worked for Noble as quality control inspectors.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Lindsay R. Itkin, Esq. Jessica M. Bresler, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77005 Phone: 713-352-1100 Fax: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com litkin@mybackwages.com jbresler@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: (713) 877-8788 Fax: (713) 877-8065 E-mail: rburch@brucknerburch.com ORION HEALTHCORP: Singh-Narayan Seeks Unpaid OT under Labor Law --------------------------------------------------------------- Rookminee Singh-Narayan, and Jairaj Yamraj, Individually and on behalf of all others similarly-situated, the Plaintiffs, v. Orion Healthcorp, Inc., and Physicians Practice Plus LLC, the Defendants, Case No. 709520/2017 (N.Y. Sup. Ct., July 13, 2017), seeks to recover unpaid overtime wages under the New York Labor Law. The Plaintiffs complain on behalf of themselves and a class of other similarly-situated current and former employees who worked for the Defendants, individually, and/or jointly, pursuant to the NY Civil Practice Law and Rules, within the six-year period preceding the filing of this action to the date of disposition of this action, that they: 1) were employed by Defendants within the State of New York as manual workers; 2) are entitled to maximum liquidated damages (for the period after April 9, 2011) and interest for being paid overtime wages and non-overtime wages later than weekly; and 3) entitled to costs and attorneys' fees, pursuant to the New York Labor Law, and the regulations thereunder; as well as an injunction prohibiting Defendants from continuing to violate the weekly payment requirement for manual workers set forth in NYLL. Orion Healthcorp, incorporated on July 20, 1984, is a healthcare services organization providing outsourced business services to physicians.[BN] The Plaintiff is represented by: Abdul K. Hassan, Esq. Abdul Hassan Law Group, PLLC 215-28 Hillside Avenue, Queens Village, NY 11427 Telephone: 718 740 1000 Facsimile: 718 740 2000 E-mail: abdul@abdulhassan.com PETROLEO BRASILEIRO: Ruling in Securities Suit Partly Affirmed -------------------------------------------------------------- The United States Court of Appeals for the Second Circuit affirmed in part and vacated in part the judgment of the United States District Court for the Southern District of New York in the securities fraud action against Petroleo Brasileiro S.A. ("Petrobas") and various other defendants. Petrobras is a multinational oil and gas company headquartered in Brazil and majority-owned by the Brazilian government. Though Petrobras was once among the largest companies in the world, its value declined precipitously after the exposure of a multi-year, multi-billion-dollar money-laundering and kickback scheme, prompting a class action by holders of Petrobras equity and debt securities ("Plaintiffs") against multiple defendants ("Defendants"): Petrobras and certain wholly owned subsidiaries (the "Subsidiaries"; collectively with Petrobras, the "Petrobras Defendants"1); former officers and directors of the Petrobras Defendants; several underwriters of Petrobras debt securities (the "Underwriter Defendants"2); and Petrobras's independent auditor. The district court certified two classes for money damages under Federal Rule of Civil Procedure 23(b)(3): the first asserts claims under the Securities Exchange Act of 1934; and the second asserts claims under the Securities Act of 1933. On appeal, the appellants, the Petrobras Defendants and the Underwriter Defendants, contested the Certification Order on two grounds. First, the appellants challenged both class definitions insofar as they include all otherwise eligible persons who purchased Petrobras debt securities in "domestic transactions." Because Petrobras' debt securities do not trade on a domestic exchange, the district court must assess each class member's over-the- counter transactions for markers of domesticity under Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010). The appellants asserted that the need for such assessments precludes class certification, particularly in light of concerns over the availability and content of the necessary transaction records. The Second Circuit first addressed the appellants' arguments regarding the "implied" Fed. R. Civ. P. 23 requirement of "ascertainability," and took the opportunity to clarify the scope of the contested ascertainability doctrine: a class is ascertainable if it is defined using objective criteria that establish a membership with definite boundaries. The Second Circuit found that the threshold requirement was met in this case. However, the appellate court next held that the district court committed legal error by finding that Rule 23(b)(3)'s predominance requirement was satisfied without considering the need for individual Morrison inquiries regarding domestic transactions. The appellate court therefore vacate this portion of the Certification Order. Second, with regard to the Exchange Act Class, the Petrobras defendants challenged the district court's finding that the plaintiffs were entitled to a presumption of reliance under the "fraud on the market" theory established in Basic Inc. v. Levinson, 485 U.S. 224 (1988). The Second Circuit found no abuse of discretion in the district court's determination that the plaintiffs met their burden under Basic with a combination of direct and indirect evidence of market efficiency. The appellate court therefore affirmed as to this issue. The case is IN RE PETROBRAS SECURITIES UNIVERSITIES SUPERANNUATION SCHEME LIMITED, EMPLOYEES RETIREMENT SYSTEM OF THE STATE OF HAWAII, NORTH CAROLINA DEPARTMENT OF STATE TREASURER, Plaintiffs- Appellees, PETER KALTMAN, individually and on behalf of all others similarly situated, DIMENSIONAL EMERGING MARKETS VALUE FUND, DFA INVESTMENT DIMENSIONS GROUP INC., on behalf of its series Emerging Markets Core Equity Portfolio, Emerging Markets Social Core Equity Portfolio and T.A. World ex U.S. Core Equity Portfolio, DFA INVESTMENT TRUST COMPANY, on behalf of its series The Emerging Markets Series, DFA AUSTRIA LIMITED, solely in its capacity as responsible entity for the Dimensional Emerging Markets Trust, DFA International Core Equity Fund and DFA International Vector Equity Fund by Dimensional Fund Advisors Canada ULC solely in its capacity as Trustee, DIMENSIONAL FUNDS PLC, on behalf of its sub- fund Emerging Markets Value Fund, DIMENSIONAL FUNDS ICVC, on behalf of its sub-fund Emerging Markets Core Equity Fund, SKAGEN AS, DANSKE INVEST MANAGEMENT A/S, DANSKE INVEST MANAGEMENT COMPANY, NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, NEW YORK CITY POLICE PENSION FUND, BOARD OF EDUCATION RETIREMENT SYSTEM OF THE CITY OF NEW YORK, TEACHERS' RETIREMENT SYSTEM OF THE CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT PENSION FUND, NEW YORK CITY DEFERRED COMPENSATION PLAN, FORSTA AP-FONDEN, TRANSAMERICA INCOME SHARES, INC., TRANSAMERICA FUNDS, TRANSAMERICA SERIES TRUST, TRANSAMERICA PARTNERS PORTFOLIOS, JOHN HANCOCK VARIABLE INSURANCE TRUST, JOHN HANCOCK FUNDS II, JOHN HANCOCK SOVEREIGN BOND FUND, JOHN HANCOCK BOND TRUST, JOHN HANCOCK STRATEGIC SERIES, JOHN HANCOCK INVESTMENT TRUST, JHF INCOME SECURITIES TRUST, JHF INVESTORS TRUST, JHF HEDGED EQUITY & INCOME FUND, ABERDEEN EMERGING MARKETS FUND, ABERDEEN GLOBAL EQUITY FUND, ABERDEEN GLOBAL NATURAL RESOURCES FUND, ABERDEEN INTERNATIONAL EQUITY FUND, each a series of Aberdeen Funds, ABERDEEN CANADA EMERGING MARKETS FUND, ABERDEEN CANADA SOCIALLY RESPONSIBLE GLOBAL FUND, ABERDEEN CANADA SOCIALLY RESPONSIBLE INTERNATIONAL FUND, ABERDEEN CANADA FUNDS EAFE PLUS EQUITY FUND AND ABERDEEN CANADA FUNDS GLOBAL EQUITY FUND, each a series of Aberdeen Canada Funds, ABERDEEN EAFE PLUS ETHICAL FUND, ABERDEEN EAFE PLUS FUND, ABERDEEN EAFE PLUS SRI FUND, ABERDEEN EMERGING MARKETS EQUITY FUND, ABERDEEN FULLY HEDGED INTERNATIONAL EQUITIES FUND, ABERDEEN INTERNATIONAL EQUITY FUND, ABERDEEN GLOBAL EMERGING MARKETS EQUITY FUND, ABERDEEN GLOBAL ETHICAL WORLD EQUITY FUND, ABERDEEN GLOBAL RESPONSIBLE WORLD EQUITY FUND, ABERDEEN GLOBAL WORLD EQUITY DIVIDEND FUND, ABERDEEN GLOBAL WORLD EQUITY FUND, ABERDEEN GLOBAL WORLD RESOURCES EQUITY FUND, ABERDEEN EMERGING MARKETS EQUITY FUND, ABERDEEN ETHICAL WORLD EQUITY FUND, ABERDEEN MULTI-ASSET FUND, ABERDEEN WORLD EQUITY FUND, ABERDEEN LATIN AMERICA EQUITY FUND, INC., AAAID EQUITY PORTFOLIO, ALBERTA TEACHERS RETIREMENT FUND, AON HEWITT INVESTMENT CONSULTING, INC., AURION INTERNATIONAL DAILY EQUITY FUND, BELL ALIANT REGIONAL COMMUNICATIONS INC., BMO GLOBAL EQUITY CLASS, CITY OF ALBANY PENSION PLAN, DESJARDINS DIVIDEND INCOME FUND, DESJARDINS EMERGING MARKETS FUND, DESJARDINS GLOBAL ALL CAPITAL EQUITY FUND, DESJARDINS OVERSEAS EQUITY VALUE FUND, DEVON COUNTY COUNCIL GLOBAL EMERGING MARKET FUND, DEVON COUNTY COUNCIL GLOBAL EQUITY FUND, DGIA EMERGING MARKETS EQUITY FUND L.P., ERIE INSURANCE EXCHANGE, FIRST TRUST/ABERDEEN EMERGING OPPORTUNITY FUND, GE UK PENSION COMMON INVESTMENT FUND, HAPSHIRE COUNTY COUNCIL GLOBAL EQUITY PORTFOLIO, LONDON BOROUGH OF HOUNSLOW SUPPERANNUATION FUND, MACKENZIE UNIVERSAL SUSTAINABLE OPPORTUNITIES CLASS, MARSHFIELD CLINIC, MOTHER THERESA CARE AND MISSION TRUST, MTR CORPORATION LIMITED RETIREMENT SCHEME, MYRIA ASSET MANAGEMENT EMERGENCE, NATIONAL PENSION SERVICE, NPS TRUST ACTIVE 14, OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM, WASHINGTON STATE INVESTMENT BOARD, ABERDEEN LATIN AMERICAN INCOME FUND LIMITED, ABERDEEN GLOBAL EX JAPAN PENSION FUND PPIT, FS INTERNATIONAL EQUITY MOTHER FUND, NN INVESTMENT PARTNERS B.V., acting in the capacity of management company of the mutual fund NN Global Equity Fund and in the capacity of management company of the mutual fund NN Institutioneel Dividend Aandelen Fonds, NN INVESTMENT PARTNERS LUXEMBOURG S.A., acting in the capacity of management company SICAV and its Sub-Funds and NN (L) SICAV, for and on behalf of NN (L) Emerging Markets High Dividend, NN (L) FIRST, AURA CAPITAL LTD., WGI EMERGING MARKETS FUND, LLC, BILL AND MELINDA GATES FOUNDATION TRUST, BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP, LOUIS KENNEDY, individually and on behalf of all others similarly situated, KEN NGO, individually and on behalf of all others similarly situated, JONATHAN MESSING, individually and on behalf of all others similarly situated, CITY OF PROVIDENCE, individually and on behalf of all others similarly situated, UNION ASSET MANAGEMENT HOLDING AG, Plaintiffs, v. PETROLEO BRASILEIRO S.A. PETROBRAS, BB SECURITIES LTD., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, BANK OF CHINA (HONG KONG) LIMITED, BANCA IMI, S.P.A., SCOTIA CAPITAL (USA) INC., THEODORE MARSHALL HELMS, PETROBRAS GLOBAL FINANCE B.V., PETROBRAS AMERICA INC., CITIGROUP GLOBAL MARKETS INC., ITAU BBA USA SECURITIES, INC., J.P. MORGAN SECURITIES LLC, MORGAN STANLEY & CO. LLC, MITSUBISHI UFJ SECURITIES (USA), INC., HSBC SECURITIES (USA) INC., STANDARD CHARTERED BANK, BANCO BRADESCO BBI S.A., Defendants-Appellants, JOSE SERGIO GABRIELLI, SILVIO SINEDINO PINHEIRO, PAULO ROBERTO COSTA, JOSE CARLOS COSENZA, RENATO DE SOUZA DUQUE, GUILLHERME DE OLIVEIRA ESTRELLA, JOSE MIRANDA FORMIGL FILHO, MARIA DAS GRACAS SILVA FOSTER, ALMIR GUILHERME BARBASSA, MARIANGELA MOINTEIRO TIZATTO, JOSUE CHRISTIANO GOME DA SILVA, DANIEL LIMA DE OLIVEIRA, JOSE RAIMUNDO BRANDA PEREIRA, SERVIO TULIO DA ROSA TINOCO, PAULO JOSE ALVES, GUSTAVO TARDIN BARBOSA, ALEXANDRE QUINTAO FERNANDES, MARCOS ANTONIO ZACARIAS, CORNELIS FRANCISCUS JOZE LOOMAN, PRICEWATERHOUSECOOPERS AUDITORES INDEPENDENTES, Defendants, No. 16-1914-cv (2nd Cir.). A full-text copy of the Court's July 7, 2017 opinion is available at https://is.gd/aVt0Ey from Leagle.com. JEREMY A. LIEBERMAN -- jalieberman@pomlaw.com -- Mark I. Gross -- migross@pomlaw.com -- Emma Gilmore -- egilmore@pomlaw.com -- John A. Keho -- jkehoe@pomlaw.com -- Brenda F. Szydlo -- bszydlo@pomlaw.com -- Pomerantz LLP, New York, NY, for the Plaintiffs-Appellees. LEWIS J. LIMAN -- lliman@cgsh.com -- Jared Gerber -- jgerber@cgsh.com -- Mitchell A. Lowenthal -- mlowenthal@cgsh.com - - Cleary Gottlieb Steen & Hamilton LLP, New York, NY, for Defendants-Appellants Petroleo Brasileiro S.A. -- Petrobras, Theodore Marshall Helms, Petrobras Global Finance B.V., and Petrobras America Inc. JAY B. KASNER -- jay.kasner@skadden.com -- Boris Bershteyn -- boris.bershteyn@skadden.com -- Scott D. Musoff -- scott.musoff@skadden.com -- Jeremy A. Berman -- jeremy.berman@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, New York NY, for Defendants-Appellants BB Securities Ltd., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Bank of China (Hong Kong) Limited, Banca IMI, S.p.A., Scotia Capital (USA) Inc., Citigroup Global Markets Inc., Itau BBA USA Securities, Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, Mitsubishi UFJ Securities (USA), Inc., HSBC Securities (USA) Inc., Standard Chartered Bank, and Banco Bradesco BBI S.A. PHC INC: Maz Partners' Bid for New Trial Denied ----------------------------------------------- The United States District Court for the District of Massachusetts issued a Memorandum and Order disgorging share plus interest in the case captioned MAZ PARTNERS LP, Individually and on Behalf of Others Similarly Situated, Plaintiff, v. BRUCE A. SHEAR, et al., Defendants, Civil Action No. 11-11049-PBS (D. Mass.), and denying the motion for new trial. The Court held a nine-day jury trial in this shareholder class action arising from a corporate merger. In this class action, the plaintiff, MAZ Partners LP, alleges in Count I of its second amended complaint that the directors of PHC, Inc., breached their fiduciary duty by approving inadequate compensation for Class A shareholders in connection with PHC's merger with Acadia Healthcare, Inc. In Count II, MAZ contends that one director, Bruce Shear, then CEO of PHC, breached his fiduciary duty as PHC's controlling shareholder by negotiating a $5 million sweetener for his Class B shares at the expense of the Class A shareholders. Finally, in Count III, MAZ alleges that Acadia aided and abetted these breaches of fiduciary duty. On March 10, 2017, the jury returned a verdict in favor of Bruce Shear and Acadia Healthcare, Inc. On the special verdict form, the jury answered: 1. Has the plaintiff MAZ proven that Bruce Shear controlled a majority of the PHC Board of Directors with regard to the Board's decision to approve the merger? Yes_X No ___ 2. Has the defendant Bruce Shear proven that the merger was entirely fair to the Class A shareholders? Yes ___ No X 3. Has MAZ proven that, at the time of the merger, the class suffered an economic loss caused by Shear's breach of fiduciary duty to the Class A shareholders? Yes ___ No X Pursuant to the instructions on the verdict form, the jury stopped after finding no economic loss and did not answer subsequent questions on aiding-and-abetting liability and damages. Plaintiff MAZ Partners LP moves for judgment as a matter of law or, in the alternative, for a new trial. MAZ raises a number of issues: (1) alleged inconsistency in the jury verdict, (2) the appropriateness of one of the questions on the special verdict form, (3) the availability of equitable remedies notwithstanding the jury verdict, and (4) evidentiary error at trial. The defendants respond to those issues and also raise three alternative bases for a finding of non-liability. The Court allows in part the motion for judgment as a matter of law. The Court orders that Shear's pro rata share of the $5 million Class B premium be disgorged to the certified class. Otherwise, the Court denied the motion. The Court denies the motion for a new trial. A full-copy text of the District Court's July 13, 2017 Memorandum and Order is available at https://is.gd/4RmBgv from Leagle.com. MAZ Partners LP, Consolidated Plaintiff, represented by Adam J. Blander, Esq. -- ablander@wolfpopper.com -- Wolf Popper LLP, pro hac vice. MAZ Partners LP, Consolidated Plaintiff, represented by Chet B. Waldman, Esq. -- cwaldman@wolfpopper.com -- Wolf Popper Wolf Ross & Jones, Nathaniel L. Orenstein --norenstein@bermandevalerio.com - - Berman DeValerio Pease Tabacco Burt & Pucillo & Norman Berman nberman@bermandevalerio.com -- Berman DeValerio Pease Tabacco Burt & Pucillo. MAZ Partners LP, Plaintiff, represented by Adam J. Blander, Wolf Popper LLP, pro hac vice, Chet B. Waldman, Wolf Popper Wolf Ross & Jones, Jeffrey W. Chambers, Wolf Popper LLP, pro hac vice, Nathaniel L. Orenstein, Berman DeValerio Pease Tabacco Burt & Pucillo, Norman Berman, Berman DeValerio Pease Tabacco Burt & Pucillo & Patricia L. Avery -- pavery@wolfpopper.com -- Wolf Popper LLP, pro hac vice. Bruce A. Shear, Defendant, represented by James H. Hulme -- james.hulme@arentfox.com -- Arent Fox, LLP, pro hac vice, Leonard H. Freiman lfreiman@goulstomstorrs.com --Goulston & Storrs, PC, Matthew M. Wright, Esq. -- matthew.wright@arentfox.com -- Arent Fox LLP, pro hac vice, Nadia A. Patel, -- nadia.patel@arentfox.com -- Arent Fox, LLP, pro hac vice & Richard M. Zielinski -- rzielinski@goulstonstorrs.com --, Goulston & Storrs. Donald E. Robar, Defendant, represented by James H. Hulme, Arent Fox, LLP, pro hac vice, Leonard H. Freiman, Goulston & Storrs, PC, Matthew M. Wright, Arent Fox LLP, pro hac vice, Nadia A. Patel, Arent Fox, LLP, pro hac vice & Richard M. Zielinski, Goulston & Storrs. Douglas J. Smith, Defendant, represented by James H. Hulme, Arent Fox, LLP, pro hac vice, Leonard H. Freiman, Goulston & Storrs, PC, Matthew M. Wright, Arent Fox LLP, pro hac vice, Nadia A. Patel, Arent Fox, LLP, pro hac vice & Richard M. Zielinski, Goulston & Storrs. Howard W. Phillips, Defendant, represented by James H. Hulme, Arent Fox, LLP, pro hac vice, Leonard H. Freiman, Goulston & Storrs, PC, Matthew M. Wright, Arent Fox LLP, pro hac vice, Nadia A. Patel, Arent Fox, LLP, pro hac vice & Richard M. Zielinski, Goulston & Storrs. William F. Grieco, Defendant, represented by James H. Hulme, Arent Fox, LLP, pro hac vice, Leonard H. Freiman, Goulston & Storrs, PC, Matthew M. Wright, Arent Fox LLP, pro hac vice, Nadia A. Patel, Arent Fox, LLP, pro hac vice & Richard M. Zielinski, Goulston & Storrs. David E. Dangerfield, Defendant, represented by James H. Hulme, Arent Fox, LLP, pro hac vice, Leonard H. Freiman, Goulston & Storrs, PC, Matthew M. Wright, Arent Fox LLP, pro hac vice, Nadia A. Patel, Arent Fox, LLP, pro hac vice & Richard M. Zielinski, Goulston & Storrs. Acadia Healthcare Company, Inc., Defendant, represented by Douglas S. Curran, Esq. -- dcurran@cov.com -- Kirkland & Ellis LLP, James H. Hulme, Arent Fox, LLP, pro hac vice, Leonard H. Freiman, Goulston & Storrs, PC, Matthew M. Wright, Arent Fox LLP, pro hac vice, Nadia A. Patel, Arent Fox, LLP, pro hac vice, Richard M. Zielinski, Goulston & Storrs & Whitney L. Becker, Esq. -- whitney.becker@kirkland.com -- Kirkland & Ellis LLP, pro hac vice. Acadia Merger Sub, LLC, Defendant, represented by Douglas S. Curran, Kirkland & Ellis LLP, James H. Hulme, Arent Fox, LLP, pro hac vice, Leonard H. Freiman, Goulston & Storrs, PC, Matthew M. Wright, Arent Fox LLP, pro hac vice, Nadia A. Patel, Arent Fox, LLP, pro hac vice, Richard M. Zielinski, Goulston & Storrs & Whitney L. Becker, Kirkland & Ellis LLP, pro hac vice. MAZ Partners LP, Movant, represented by Adam J. Blander, Wolf Popper LLP, pro hac vice, Nathaniel L. Orenstein, Berman DeValerio Pease Tabacco Burt & Pucillo, Norman Berman, Berman DeValerio Pease Tabacco Burt & Pucillo & Patricia L. Avery, Wolf Popper LLP. PHILLIPS & COHEN: Placeholder Bid for Class Certification Filed --------------------------------------------------------------- In the lawsuit styled JENNIFER GAJEWSKI, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. PHILLIPS & COHEN ASSOCIATES, LTD., the Defendant, Case No. 2:17- cv-00996 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a proposed class in this case, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=NH55Gf3m The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com PROGRESSIONS BEHAVIORAL: Ct. OK's $865K Settlement in FLSA Suit --------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania Granted the Plaintiffs' unopposed motion to approve the settlement in the Fair Labor Standards Act collective action captioned SARINA BROWN, APRIL WALKER, and MICHELLE AARON, individually and on behalf of others similarly situated, v. PROGRESSIONS BEHAVIORAL HEALTH SERVICES, INC., Civil Action No. 16-6054 (E.D. Pa.), and unopposed motion for attorneys' fees and reimbursement of expenses. The Class Representatives brought this collective action on behalf of themselves and other lead clinicians, behavioral specialist consultants, and/or mobile therapists who worked for Defendant. alleging that Defendant unlawfully misclassified them as independent contractors, resulting in the denial of overtime compensation and certain wages and employee benefits, and failed to pay them for certain work deemed "non-billable" by Defendant. The Court held that this matter meets the prerequisites for civil actions set forth in Rule 23(a). The Settlement Class of 55 members meets the numerosity requirement, and the parties have established that Plaintiffs are similarly situated, meeting the commonality and typicality requirements. The Court added that the Class Representatives have fairly and adequately represented the interests of the Class Members. Accordingly, the Court said it will certify the collective action and the settlement class. The Court concluded that the settlement is a fair and reasonable resolution of the claims asserted by the class, and that the Agreement does not undermine the purpose of the FLSA. The fees, negotiated separately, are undeniably reasonable in light of the nature of the case and the hours and work devoted to it, and the litigation expenses are costs are likewise fair and reasonable. The Court approved the settlement and grant Plaintiffs' motion for fees and reimbursement of expenses. Specfically, reports Law.com, citing P.J. D'Annunzio of The Legal Intelligencer, U.S. Magistrate Judge Elizabeth T. Hey of the Eastern District of Pennsylvania has given final approval to the $865,000 settlement that resolved claims from 55 behavioral health professionals alleging they were denied overtime pay by the clinic where they worked. Judge Hey approved the settlement class of clinicians, behavioral specialist consultants, and therapists who logged overtime hours at Progressions Behavioral Health Services. The class members alleged they were misclassified as independent contractors and wrongly denied overtime and other employee benefits, as well as payment for other work that was deemed "non-billable." Their case was brought under the Fair Labor Standards Act. Of the $865,000, the class members will receive $542,500 plus $3,700 in costs. The three class representatives will each receive a $10,000 award, along with $3,250 in expenses, according to Judge Hey's memorandum. Class attorneys are slated to receive one-third of the overall settlement. Participating class members will receive anywhere from $500 to a maximum of $70,000 from the settlement fund on a pro rata basis, determined by the degree of their wage shortfall, Judge Hey said. Hey conditionally certified the class on May 8. Class Counsel should be awarded the amount of $289,164.00 for fair and reasonable attorneys' fees and litigation expenses incurred in the prosecution of this litigation, the award to be paid from the Settlement Amount in full compromise and satisfaction of all attorneys' fees and expenses incurred by Class Council as specified in the Agreement. The Claims Administrator, RG/2 Claims Administration LLC, will be awarded an amount to exceed $6,500.00 for fair and reasonable fees and expenses incurred in the administration of the settlement. With the exception of the award to the Claims Administrator, 50% of which will be paid by Defendants in addition to and above the Settlement Amount, these awards are to be paid from the Settlement Amount as specified in the Agreement. "We're very pleased with the result," said class counsel, Michael Murphy of the Murphy Law Group in Philadelphia. Progressions' attorney, Eric B. Meyer, Esq. -- emeyer@dilworthlaw.com -- of Dilworth Paxson in Philadelphia, did not return a call seeking comment. Mr. Murphy said the settlement was agreed upon after a day of negotiation in mediation handled by retired Judge Thomas M. Blewitt of JAMS. According to Judge Hey, all of the class members were similarly situated, making it appropriate for the class to move forward to the settlement phase. "The class members were all non-exempt, hourly employees of defendant, and all were paid the same way and were subject to the same payroll and time-keeping practices," Judge Hey said. "Not surprisingly, therefore, each member of the class has virtually identical claims--specifically, that defendant misclassified them as independent contractors and thereby failed to pay them statutorily-mandated overtime compensation and wages, and failed to pay them for certain work deemed 'non-billable' by defendant." At the time of the settlement, the case was not close to going to trial, and had been stayed for roughly three months after the discovery period. Negotiations began after the stay, and Judge Hey said the agreement was met with an "overwhelmingly positive" response from the class members. "I conclude that the settlement is fair to the class members. The settlement came about after extensive arm's-length negotiations and resolves a bona fide dispute over unpaid compensation and wages," Judge Hey said. A full-text copy of the District Court's July 13, 2017 Memorandum and Order is available at https://is.gd/AGMYmn from Leagle.com. SARINA BROWN, Plaintiff, represented by MICHAEL PATRICK MURPHY, Jr., -- MURPHY@PHILLYEMPLOYMENTLAWYER.COM -- MURPHY LAW GROUP LLC. SARINA BROWN, Plaintiff, represented by MICHAEL GROH, MURPHY LAW GROUP, LLC, EIGHT PENN CENTER, S U I T E 2000 6 2 8 J O H N F . KENNEDY BLVD. PHILADELPHIA, PA 1 9 1 0 3 APRIL WALKER, Plaintiff, represented by MICHAEL PATRICK MURPHY, Jr., MURPHY LAW GROUP LLC & MICHAEL GROH, MURPHY LAW GROUP, LLC. MICHELLE AARON, Plaintiff, represented by MICHAEL PATRICK MURPHY, Jr., MURPHY LAW GROUP LLC & MICHAEL GROH, MURPHY LAW GROUP, LLC. PROGRESSIVES BEHAVIORAL HEALTH SERVICES, INC., Defendant, represented by ERIC B. MEYER -- emeyer@dilworthlaw.com -- DILWORTH PAXSON LLP & MARJORIE M. OBOD -- mobod@dilworth.com --Dilworth Paxson LLP. PROSCAPE GROUP: Faces "Silva" Lawsuit Alleging FLSA Violation ------------------------------------------------------------- Harryeth A. Silva and other similarly-situated individuals, Plaintiff(s), v. PROSCAPE GROUP, INC. and SHAWN J. ROPER, Defendants, Case No. 8:17-cv-01644-VMC-TGW (M.D. Fla., July 7, 2017), alleges that Plaintiff worked in excess of forty (40) hours without being compensated overtime wages pursuant to the Fair Labor Standards Act. PROSCAPE GROUP, INC. is a landscaping and lawn maintenance company. Plaintiff had duties as a driver and landscaping worker.[BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 South Dadeland Blvd., Suite 1500 Miami, FL 33156 Tel: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmalawgroup.com RAMELLI GROUP: Ct. Certifies Former Employees' Collective Action ---------------------------------------------------------------- The United States District Court for the Eastern District of Louisiana issued an Order granting Plaintiff's Motion to Certify a Collective Action in the case captioned DARWIN ESCOBAR, et al., individually and on behalf of all others similarly situated, v. RAMELLI GROUP, L.L.C. et al., Section: "H" (2), Civil Action No. 16-15848 (E.D. La.). Plaintiffs allege that they are former employees of Defendant Ramelli Group, L.L.C. Plaintiffs filed this lawsuit in October of 2016 on their behalf and on the behalf of those similarly situated. Plaintiffs seek collective action under the Fair Labor Standards Act, alleging that Ramelli Group, L.L.C. et al. wrongfully failed to pay appropriate overtime wages. Plaintiffs ask the Court to conditionally certify a class to proceed as a collective action. Plaintiffs seek certification of a class including: "All individuals who were employed by Ramelli Group, L.L.C., Ramelli Janitorial, Inc., Robert C. Ramelli, K.C. Staffing L.L.C. and/or K.C. Staffing Solutions, L.L.C. as landscape laborers paid by the hour during any workweek from October 26, 2013 through the time notice of this action is provided." A full-text copy of the District Court's July 17, 2017 Order is available at https://is.gd/xlJ1BE from Leagle.com. Darwin Escobar, Plaintiff, represented by Daniel Brian Davis -- Dan@EstesDavisLaw.com -- Estes Davis Law, LLC. Darwin Escobar, Plaintiff, represented by Gabriel Omar Mondino -- gmondino@burgoslawfirm.com -- Burgos & Associates, LLC, James R. Bullman, 201 Saint Charles Street, Baton Rouge, LA 70802-5946 Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC, 11404 Lake Sherwood Ave N Ste ABaton Rouge, LA 70816-0419 & Randall Eugene Estes -- Ran@EstesDavis.com --, Estes Davis Law, LLC. Rigoberto Garcia, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. Selvin A. Portillo, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. Gustavo A. Reyes Ramirez, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. Selvin Vasquez, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. Antonio Alcontora, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. Alma Arauz, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. Miguel Cruz, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. Enner Diaz-Vega, Plaintiff, represented by Daniel Brian Davis, Estes Davis Law, LLC, Gabriel Omar Mondino, Burgos & Associates, LLC, James R. Bullman, Estes Davis Law, LLC, Matthew Thomas Lofaso, Lofaso Law Firm, LLC & Randall Eugene Estes, Estes Davis Law, LLC. RAYMOURS FURNITURE: Class Action Waiver Inapplicable, Judge Rules ----------------------------------------------------------------- Tony Coles, Esq. -- anthony.coles@dlapiper.com -- of DLA Piper LLP, in an article for Lexology, reports that here's a pop arbitration quiz, drawn from Judge Netburn's Report and Recommendation in Borecki v. Raymours Furniture Co., Inc. Is the following arbitration term in a contract between a store and its customer broad or narrow: "[A]ny claim, dispute, or controversy between you and us that in any way arises from or relates to the goods and/or services you have purchased or are purchasing from us (the "Purchases"), now or in the past, including . . . any information we seek from you . . . ."? Many lawyers, accustomed to courts' deference to arbitration provisions, would answer "broad." But they'd fail the test. Scott Borecki purchased a bedroom set from Raymours, and left his cell-phone number for the furniture company to contact him when the set was ready for pick up. The sale and pick up went smoothly. But three years later, Raymours texted Mr. Borecki four times promoting its local Raymour and Flanigan store. Mr. Borecki was not interested in the local promotion; instead, he brought a putative class action asserting that Raymours violated the Telephone Consumer Protection Act, a federal law which restricts unauthorized telemarketing. Raymours moved to compel arbitration, arguing that Mr. Borecki's claim "arises from or relates to" the purchase of his bedroom set. After all, but for Mr. Borecki's purchase Raymours wouldn't have his cell number. Therefore, Raymours assumed, the claim "relates to" the purchase. But Judge Netburn drew a finer line. The question she posed was whether Raymour's text messages were related to Mr. Borecki's purchase of the bedroom set -- not whether the means by which Raymours obtained Mr. Borecki's contact information related to the purchase. Even though the arbitration agreement defined "claim" to require the "broadest reasonable meaning," Judge Netburn concluded that the text messages were sale promotions unrelated to the purchase of the bedroom set, and that Mr. Borecki's claim was not subject to arbitration. Judge Netburn distinguished Borecki's claim from claims that she said would be arbitrable, such as false advertising, a product defect, or even text messages asking Borecki to rate its furniture favorably. Rubbing salt in to Raymours' wound, Judge Netburn also found that a class action waiver included as part of the arbitration provision was inapplicable: "Because the Agreement's class action waiver is applicable only to arbitrable claims, and because I recommend finding that the Arbitration Agreement does not require Borecki to arbitrate his TCPA claim, Borecki's TCPA claim may be asserted as a class action." Under court rules, Judge Netburn's Report and Recommendation now goes to Judge Kaplan for his review (since she sits as a Magistrate). Regardless of the case's ultimate outcome, Mr. Borecki is a cautionary tale for companies that expect that customer-related litigation will take place in the privacy of an arbitration forum, not in the glare of a class action courtroom. [GN] RCS CAPITAL: September 28 Settlement Fairness Hearing Set --------------------------------------------------------- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GRADY SCOTT WESTON, Individually And On Behalf Of All Others Similarly Situated, Plaintiffs, v. RCS CAPITAL CORPORATION, RCAP HOLDINGS, LLC, RCAP EQUITY, LLC, NICHOLAS S. SCHORSCH, BRIAN S. BLOCK, EDWARD MICHAEL WEIL, WILLIAM M. KAHANE, BRIAN D. JONES, PETER M. BUDKO, MARK AUERBACH, JEFFREY BROWN, C. THOMAS MCMILLEN, and HOWELL WOOD, Defendants. Civ. No. 1:14-CV-10136-GBD SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT, AND MOTION FOR ATTORNEYS' FEES AND EXPENSES To: All Investors That Purchased or Otherwise Acquired the Common Stock of RCS Capital Corporation ("RCAP") During the Period from February 12, 2014 to December 18, 2014, Inclusive (the "Class Period"), and Were Allegedly Damaged Thereby (the "Settlement Class"). YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, that Oklahoma Police Pension Fund and Retirement System and City of Providence, Rhode Island ("Lead Plaintiffs") on behalf of themselves and the Settlement Class, and RCAP, RCAP Holdings, LLC, RCAP Equity, LLC, Nicholas S. Schorsch, Brian S. Block, Edward M. Weil, Jr., William M. Kahane, Brian D. Jones, Peter M. Budko, Mark Auerbach, Jeffrey Brown, C. Thomas McMillen and Howell Wood (collectively, "Defendants") have reached a proposed settlement of the above- captioned action (the "Action") in the amount of $31,000,000 in cash that, if approved, will resolve the Action in its entirety (the "Settlement"). A hearing will be held before the Honorable George B. Daniels of the United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, Courtroom 11A, 500 Pearl Street, New York, NY 10007 at 10:00 a.m. on September 28, 2017 (the "Settlement Hearing") to, among other things, determine whether the Court should: (i) approve the proposed Settlement as fair, reasonable, and adequate; (ii) dismiss the Action with prejudice as provided in the Stipulation and Agreement of Settlement, dated June 2, 2017; (iii) approve the proposed Plan of Allocation for distribution of the Net Settlement Fund; and (iv) approve Lead Counsel's application for an award of attorneys' fees and payment of Litigation Expenses. The Court may change the date of the Settlement Hearing without providing another notice. You do NOT need to attend the Settlement Hearing to receive a distribution from the Net Settlement Fund. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO A MONETARY PAYMENT. If you have not yet received the Notice and Proof of Claim and Release form ("Claim Form"), you may obtain copies of these documents by visiting the website dedicated to the Settlement, www.RCAPSecuritiesSettlement.com, or by contacting the Claims Administrator at: RCAP Securities Litigation Claims Administrator c/o A.B. Data, Ltd. P.O. Box 173040 Milwaukee, WI 53217 (866) 778-9626 Inquiries, other than requests for the Notice/Claim Form or for information about the status of a claim, may also be made to Lead Counsel: Ira A. Schochet, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 www.labaton.com (888) 219-6877 Deborah Clark-Weintraub, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 (800) 404-7770 If you are a Settlement Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Claim Form postmarked or received no later than November 2, 2017. If you are a Settlement Class Member and do not timely submit a valid Claim Form, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will nevertheless be bound by all judgments or orders entered by the Court in the Action, whether favorable or unfavorable. If you are a Settlement Class Member and wish to exclude yourself from the Settlement Class, you must submit a written request for exclusion in accordance with the instructions set forth in the Notice such that it is received no later than August 29, 2017. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action, whether favorable or unfavorable, and you will not be eligible to share in the distribution of the Net Settlement Fund. Any objections to the proposed Settlement, the proposed Plan of Allocation, and/or Lead Counsel's application for attorneys' fees and payment of Litigation Expenses must be filed with the Court and mailed to counsel for the Parties in accordance with the instructions set forth in the Notice, such that they are filed and received no later than August 29, 2017. PLEASE DO NOT CONTACT THE COURT, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. DATED: July 19, 2017 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RED INN: Former Server Files Class Action Over Tips --------------------------------------------------- Sean F. Driscoll, writing for Cape Cod Times, reports that a former server at the Red Inn, a Commercial Street inn and restaurant, is attempting to launch a class-action suit against his former employers, claiming they illegally redirected tips to staff who weren't eligible for them and paid waitstaff a lower wage than is required by state law. Nathan Butera, who was a waiter at the Red Inn from April 2011 to October 2016, claims in his lawsuit filed in Barnstable Superior Court that the Red Inn's managers and owners, David Silva, Sean Burke and Philip Mossy Jr., broke the state's Minimum Wage Law and laws regarding tip pools. He wants the suit to encompass all servers and bartenders who worked at either the restaurant or the inn since Dec. 2, 2010, and anyone who worked at weddings and special events during the same time period. Mr. Butera estimates that about 40 people would be included in the suit, according to court records. Mr. Butera alleges that the Red Inn, open seasonally from April until Jan. 2, charged customers a 20 percent gratuity on all food and beverages purchased for events, according to court documents. But the entire gratuity wasn't passed on to the banquet servers and bartenders; instead, portions were paid to employees who would normally be ineligible for tips, such as housekeepers, front desk staff, kitchen staff and maintenance staff. The Red Inn also required all waitstaff and bartenders in the restaurant to give the two hosts 5 percent of their tips at the end of each shift, the lawsuit states. The hosts acted as managers, including approving schedule changes, sending staff home throughout the night and meeting weekly with the inn's owners; they rarely helped serve food or bring items to tables. The Red Inn took a "tip credit" against the minimum wage, paying waitstaff just $3.75 an hour instead of the state's full $11 minimum wage. But the waitstaff didn't receive the full tips owed to them because of the requirement to give back money to the hosts, the suit states. "The waitstaff are owed the difference between the tipped and full minimum wage for all hours work," Mr. Butera's suit states. Brian Haney, a Boston attorney representing the Red Inn's owners, said his clients were "devastated and disappointed" over Mr. Butera's lawsuit. "In addition to the customer service that the Red Inn espouses to perform and deliver, there is nothing the owners take more seriously than the welfare of their employees, who they consider family," Mr. Haney said. "This is not a business or a situation where they have employees come and go. It's truly a family environment." In their response to the suit, which was first filed in December and amended in March, Silva, Burke and Mossy listed several defenses, including that the statute of limitations had passed, that Mr. Butera has acted in bad faith and that they have not proved that the Red Inn was liable for the claims. The case has not yet been certified as a class-action suit, which would allow Mr. Butera to proceed on behalf of the people affected by the alleged illegalities without having to name them individually in the suit or have them file their own cases. On June 29, both sides filed their arguments for why the suit should, or should not, proceed as a class-action suit. Mr. Butera argues that the suit meets Massachusetts court rules for class action, including that the group of potentially affected individuals is too large to make a traditional suit practical and that the questions of law are common to the entire class. But the Red Inn's owners say a class-action suit is unnecessary because they individually approached the employees who may have a claim, expect Mr. Butera, to offer a settlement payment in exchange for agreeing not to participate in the class-action suit. All but nine took them up on the offer, according to court documents. "The owners were mortified . . . that an employee, be it one or 100, accused them of not paying what they were entitled to," Haney said. "The Red Inn took certain measures to ensure to the best they could that employees didn't think that to be the case." Adelaide Pagano, the Boston attorney representing Butera, said in an email that the releases should not affect the court's decision on whether to turn the matter into a class-action suit. "The rationale is that the court should first certify the class and then let us argue about whether the releases are actually valid and binding," she wrote. "The court has not yet ruled on whether the releases are valid, and it could still find that they are not. We are still in the process of investigating . . . and we expect that additional facts may come to light that will persuade the court that the releases should be invalidated. "We feel very strongly about trying to pursue this as a class action, even for those folks who signed these releases, because we want to make sure that all of the employees get what they're owed -- which in some cases may be many times what they've been offered in these settlement releases." No date for oral argument on the class certification request has been set, according to court records. [GN] RELIANCE JIO: May Face Class Action Threat Over Data Leak --------------------------------------------------------- Business Today reports that un what appears to be a major security breach, the personal information of Reliance Jio subscribers, including Aadhaar numbers, was leaked to a website on July 9. This is the latest in a slew of data breaches and online attacks that have exposed the weak state of India's cyber security. If a Reliance Jio mobile number is keyed in on 'magicapk.com', it throws up details such as first name, second name, email ID, SIM activation date and time, as well as Aadhaar number, if the subscriber has used it as proof to get the connection. "There is either a bug in Reliance Jio's system because of which data is getting leaked and a hacker is using it in the backend, or it could be a breach," Anand Prakash, one of the top ethical hackers in the country, told Mail Today. Mr. Prakash, the founder of AppSecure India, said he had obtained data for five Jio numbers from 'magicapk.com'. Another ethical hacker Kanishk Sajnani also said the website revealed information of the two Jio mobile numbers he tried. However, multiple attempts may be required, he added. "We have come across the unverified and unsubstantiated claims of the website and are investigating it. Prima facie, the data appears to be unauthentic. We want to assure our subscribers that their data is safe and maintained with highest security," said Jio spokesperson. The company said data is only shared with authorities as per their requirement. "We have informed law enforcement agencies about the claims of the website and will follow through to ensure strict action is taken," Jio added. The site in question was later suspended. This may be the work of a hacke, Mr. Prakash said. "Or, the database may have been hacked completely. Reliance Jio's Application Programming Interface (API) may not have authentication," he added. In any app, the developers in the back-end put together all the data, explained Prakash. "That's the API, the most crucial thing for an app. The next step is to display it aesthetically, which is what the User Interface (UI) team does by working on the API information," he added. Either way, the information is out in the public domain. "But the extent of the breach is not clear at this point," said Mr. Prakash. He said he has tried reaching out to Reliance Jio earlier as well about cyber security, but there was no response from the company. The government has made it mandatory to link Aadhaar with PAN, a 10-digit alphanumeric issued by the income-tax department. Without linking, a taxpayer cannot file tax returns. Global cybersecurity expert and advocate Prashant Mali said privacy of clients when it comes to Aadhaar details should remain top priority. "If the leak further reveals financial data, then one can file for damages and compensation against the company for not following reasonable security practices to protect customer data," he pointed out. For instance, if Aadhaar is linked to PAN and financial details are revealed because of this people can start filing class action suits for damages. "Any company responsible for Aadhaar leakage gets exposed to a huge financial legal risk," he said. A class action suit is one where people with same or similar injuries caused by the same product or action can sue the company as a group. Billionaire Mukesh Ambani-owned Reliance Jio, the latest entrant in the telecom sector, had 108.9 million subscribers as of March 2017, within six months of its launch. The country's total telephone subscriber base was 1,194.58 million as of March 2017. Jio's subscribers have spiked after its debut in October, when it offered free SIM cards and unlimited 4G internet. However, the rate at which it added new subscribers declined in April. On March 31, it began paid service. [GN] RESIDENTIAL CAPITAL: Underwriters Must Produce Pre-Oct. 2008 Docs ----------------------------------------------------------------- In the case captioned ROWENA DRENNEN, individually and as Representative of the KESSLER SETTLEMENT CLASS, et al., Plaintiffs, v. CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, et al., Defendants, Case No. 12-12020 (MG) (Bankr. S.D. N.Y.), Plaintiffs Rowena Drennen, individually and as Representative of the Kessler Settlement Class, et al., filed a motion to compel discovery from Defendant Certain Underwriters at Lloyd's of London. In this lawsuit about insurance coverage, Plaintiffs allege that Underwriters have improperly withheld claims handling documents on the basis of the attorney-client and work product privileges. Specifically, Plaintiffs allege that Underwriters used attorneys from a law firm -- Sedgwick, Detert, Moran & Arnold, LLP -- as claims handlers and, therefore, cannot shield from discovery documents that reflect the claims handling activities performed by these Sedgwick attorneys. Underwriters maintain, however, that these documents are privileged because Underwriters retained Sedgwick to provide legal advice on coverage issues under the applicable insurance policies. The parties also dispute the date when litigation became likely for purposes of when any attorney work product privilege would apply. Judge Sean H. Lane of the U. S. Bankruptcy Court for the Southern District of New York grants Plaintiffs' Motion in part and denies it in part. Beginning in 2001, several class actions were filed against Residential Funding Company, LLC, and other parties on behalf of borrowers who had obtained second mortgage loans that were acquired by RFC on the secondary market. Sedgwick sent reports to Underwriters about these actions, which the parties here have referred to as the Kessler class action, the Mitchell class action, and the Related Missouri Actions. These reports include so-called "Bordeaux Reports" and "Direct Reports," which provided information on the second mortgage claims, including the Underlying Actions and other claims. Plaintiffs contend that these reports provided Underwriters with an update on Sedgwick's investigation of the Underlying Actions, and demonstrate that Underwriters had delegated claims handling functions to Sedgwick for the Underlying Actions. Underwriters disagree, maintaining that Sedgwick was providing legal advice and counseling with respect to the second mortgage claims, specifically whether these claims implicated coverage under the Policy. Underwriters here maintain that litigation was anticipated on October 17, 2008, the date of the Mitchell reservation of rights letter. Underwriters contend that it was apparent by this date that Underwriters would not provide coverage for damages awarded on the claims. But Plaintiffs argue that the October 2008 date is too early. Plaintiffs point out that, even after that date, Underwriters continued to request and receive information from RFC and conduct meetings with RFC, make partial defense cost payments in Mitchell, and that the Mitchell ROR itself states that the claims were subject to a "continuing investigation" and requested additional information. Instead, Plaintiffs urge the Court to adopt February 29, 2012, the date that Underwriters denied RFC's demand for payment for the Mitchell compensatory damages judgment. Looking at all the facts and circumstances presented, Judge Lane finds that the anticipated litigation date is Oct. 17, 2008, the date of the Mitchell ROR. This conclusion is confirmed by the context for the issuance of the Mitchell ROR. Shortly before the Mitchell ROR -- in September 2008 -- a judgment of approximately $99 million was entered against RFC in the Mitchell claim. Given the factual record here, therefore, the Court concludes that Underwriters has established by specific competent proof that the anticipated date of litigation was Oct. 17, 2008. Plaintiffs also contend that reserve information here is relevant to Underwriters' knowledge of the underlying claims and its coverage position, the reasonableness of the underlying settlement, and Underwriters' alleged bad faith conduct and delay in adjusting the claims. In contrast, Underwriters argue that reserve information is not relevant here and is nonetheless protected by the attorney-client and work product privileges. Underwriters note that Plaintiffs do not assert a bad faith claim here. As to relevancy to their defenses, Underwriters asserts that there has been no allegation of ambiguity or suggestion that it would be necessary for the Court to review extraneous evidence like this reserve information to interpret the Policy. The Court finds that Plaintiffs have not established that the reserve information here is relevant. Moreover, the Court rejects Plaintiffs' contention that reserve information is relevant to their claims for coverage, particularly regarding fees-related exclusions. Plaintiffs argue that under the doctrine contra proferentum, the claims files, including reserve information, are crucial to resolving any ambiguities in the policy language since Sedgwick helped draft the Policy. But Plaintiffs have not pointed to any specific policy language that they claim is ambiguous or any evidence of ambiguity. While the relevance standard is a liberal one, "it is not so liberal as to allow a party 'to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.' Accordingly, the Court denies Plaintiffs' request for reserve information. Consistent with the foregoing, Judge Lane grants Plaintiffs' Motion in part and denies it in part. Accordingly, Underwriters shall produce without redactions, those documents withheld on the basis of work product privilege that are dated prior to Oct. 17, 2008, and shall review all documents consistent with this ruling to determine whether any additional information should be produced. A full-text copy of Judge Lane's Memorandum of Decision dated July 14, 2017, is available at https://is.gd/LDR9OS from Leagle.com. ROWENA DRENNEN, Plaintiff, represented by Ronald Bruce Carlson -- bcarlson@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP, Garrett M. Hodes, -- ghodes@wbsvlaw.com -- Walters, Bender, Strohbehn & Vaughan, P.C., Edwin J. Kilpela, Jr. -- ekilpela@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP, Gary F. Lynch -- glynch@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP, Karen W. Renwick -- krenwick@wbsvlaw.com -- Walters Bender Strohbehn & Vaughan, P.C., Michael B. Sichter -- msichter@wbsvlaw.com -- Walters Bender Strohbehn & Vaugha, P.C., David M. Skeens -- dskeens@wbsvlaw.com -- Walters Bender Strohbehn & Vaughan, PC & Roy Frederick Walters -- fwalters@wbsvlaw.com -- Walters Bender Strohbehn & Vaughan, P.C.. CHRISTIE TURNER, Plaintiff, represented by Daniel J. Flanigan -- dflanigan@polsinelli.com -- Polsinelli. RESCAP LIQUIDATING TRUST, Plaintiff, represented by Vivek Chopra -- Vchopra@perkinscoie.com -- Perkins Coie LLP, Alexis E. Danneman -- Adanneman@perkinscoie.com -- Perkins Coie LLP & Selena J. Linde -- Slinde@perkinscoie.com -- Perkins Coie LLP. CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, Defendant, represented by Susan N.K. Gummow -- sgummow@fgppr.com -- Foran Glennon Palandech Ponzi & Rudloff, Timothy Donald Kevane -- timothy.kevane@sedgwicklaw.com -- Sedgwick LLP, Soo Yeon Kim -- soo.kim@sedgwicklaw.com -- Sedgwick LLP, Lawrence J. Klein -- Lawrence.klein@sedgwicklawcom. -- Sedgwick LLP & Gregory Lahr, Sedgwick LLP. TWIN CITY FIRE INSURANCE COMPANY, Defendant, represented by Cara Tseng Duffield -- cduffield@wileyrein.com -- Wiley Rein LLP & Daniel J. Standish -- dstandish@wileyrein.com -- Wiley Rein LLP. CONTINENTAL CASUALTY COMPANY, Defendant, represented by Patrick M. Kennell -- pkennell@kdvlaw.com -- Kaufman Dolowich & Voluck, LLP & Kevin M. Mattessich -- kmattessich@kdvlaw.com -- Kaufman Dolowich & Voluck, LLP. CLARENDON NATIONAL INSURANCE COMPANY, Defendant, represented by John W. Duchelle -- john.duchelle@troutmansanders.com -- Troutman Sanders LLP, Thomas Hay -- thomas.hay@troutmansanders.com -- Troutman Sanders LLP, Gabriela Richeimer, Troutman Sanders LLP & Gabriela Richeimer -- gabriela.richeimer@troutmansanders.com -- Troutman Sanders LLP. SWISS RE INTERNATIONAL SE, Defendant, represented by Samuel G. Mann -- smann@cahill.com -- Cahill Gordon & Reindel LLP, Suzanne Marinkovich -- smarinkovich@cahill.com -- Cahill Gordon & Reindel LLP, Thorn Rosenthal -- trosenthal@cahill.com -- Cahill Gordon & Reindel LLP & Ben Schatz -- bschatz@cahill.com -- Cahill Gordon & Reindel LLP. ACE BERMUDA INSURANCE LTD., Defendant, represented by Paul R. Koepff -- paul.koepff@clydeco.us -- Clyde & Co & Tancred V. Schiavoni -- tschiavoni@omm.com -- O'Melveny & Myers LLP. XL INSURANCE (BERMUDA) LTD., Defendant, represented by Michael Chester -- mchester@skarzynski.com -- Skarzynski Black LLC & James T. Sandnes -- jsandnes@skarzynski.com -- Skarzynski Black LLC. AMERICAN INTERNATIONAL REINSURANCE COMPANY, Defendant, represented by Maryann Taylor -- MTaylor@damato-lynch.com -- Damato-Lynch LLP. CHUBB ATLANTIC INDEMNITY LTD., Defendant, represented by Jonathan A. Constine -- jonathan.constine@troutmansanders.com -- Troutman Sanders LLP & Lee William Stremba -- lee.stremba@ troutmansanders.com -- Troutman Sanders LLP. STEADFAST INSURANCE COMPANY, Defendant, represented by Sharon F. McKee -- smckee@hangley.com -- Hangley Aronchick Segal Pudlin & Schille, Sharon F. McKee, Hangley Aronchick Segal Pudlin & Schiller, Jacqueline R. Robinson -- jrobinson@hangley.com -- Hangley Aronchick Segal Pudlin & Schiller & Ronald P. Schiller -- rschiller@hangley.com -- Hangley Aronchick Segal Pudlin & Schiller. ST. PAUL MERCURY INSURANCE COMPANY, Defendant, represented by Paul T. Curley -- pcurley@kbrlaw.com -- Kaufman Borgeest & Ryan, LLP, Matthew E. Mawby -- mmawby@kbrlaw.com -- Kaufman Borgeest & Ryan LLP, Scott A. Schechter -- sschecter@kbrlaw.com -- Kaufman Borgeest & Ryan, LLP & Patrick Stoltz -- pstoltz@kbrlaw.com -- Kaufman Borgeest & Ryan, LLP. NORTH AMERICAN SPECIALTY INSURANCE COMPANY, Defendant, represented by Stewart D. Aaron -- stewart.aaron@apks.com -- Arnold & Porter, LLP & Anthony D. Boccanfuso -- Anthony.boccanfuso@apks.com -- Arnold & Porter Kaye Scholer LLP. REVCLAIMS LLC: Class Action Over Billing Practices Dismissed ------------------------------------------------------------ Mark Friedman, writing for Arkansas Business, reports that hospitals are notching legal victories over patients who have challenged their billing practices. A federal judge dismissed a case in March that was filed against the collection company RevClaims LLC of Jackson, Mississippi, and St. Bernard's Hospital of Jonesboro. Sue Garrison of Craighead County had sought class-action status in the case, which centered on a controversial practice in which hospitals refuse to accept the health insurance of patients who have been injured by the actions of others. Ms. Garrison was injured in an automobile accident in 2013; another driver was found to be at fault. Plaintiffs' attorneys claimed that the hospitals created financial and legal headaches, including filing liens against the injured patients, in hopes of being paid higher list prices from the patients' settlements with the at-fault party rather than the discounted prices that their health insurance companies have negotiated for policyholders. Ms. Garrison's bill from St. Bernard's was $2,000, which was the price before any discount her insurance carrier would have received. Ms. Garrison also named as defendants Baptist Health of Little Rock, Lawrence Memorial Hospital of Walnut Ridge and White River Health System Inc. of Batesville. The hospitals argued that Ms. Garrison was not injured by any conduct traceable to them. "Garrison agrees that these defendants have not directly caused her injury," U.S. District Judge J. Leon Holmes of Little Rock wrote in his order. "She contends, nevertheless, that she has been harmed by all of the defendants through a conspiracy to bill patients like her illegally." Judge Holmes found that Ms. Garrison's complaint didn't allege sufficient facts to support her claim and dismissed Baptist, Lawrence Memorial and White River from the lawsuit. Judge Holmes also found that St. Bernard's and RevClaims didn't injure Garrison because they didn't recover anything from a lien filed against her. St. Bernard's released the lien on March 17 and has "written off all outstanding amounts claimed by the lien and will not report any unpaid amounts on Garrison's credit history," Judge Holmes wrote. Judge Holmes' ruling came shortly after the dismissal of a similar case brought by Lacey Robinett of Lawrence County against Regional Medical Center of Memphis and the collection company it used, Avectus Healthcare Solutions LLC of Corinth, Mississippi. U.S. District Court Judge D.P. Marshall Jr. in the Eastern District of Arkansas granted the defendants' request to dismiss the case earlier this year. Ms. Robinett has appealed the decision to the 8th U.S. Circuit Court of Appeals, where it is pending and being monitored by other hospitals and plaintiff Tammy Hargett of Craighead County. Ms. Hargett sued RevClaims and St. Bernard's Hospital on charges that mirror Robinett's allegations. In May, the attorneys in the Hargett case asked to stay the litigation until the 8th Circuit rules in Robinett's case. If the 8th Circuit affirms the dismissal of the Robinett case, Hargett "will have no cause of action to pursue and dismissal of the action in this Court will occur," a joint motion filed by the attorneys for the plaintiff and defendants said. [GN] RJ REYNOLDS: 2nd Cir. Upholds $28MM Verdict in Izzarelli Case ------------------------------------------------------------- Law.com, citing Michael Marciano of The Connecticut Law Tribune, reports that a Connecticut jury's damages award of more than $28 million in a suit against R.J. Reynolds Tobacco Co. has been upheld by the U.S. Court of Appeals for the Second Circuit -- and the sum stands to grow, as the court also remanded for reconsideration of punitive damages. Barbara Izzarelli, formerly of Norwich, sued the company for smoking-related illnesses, which led to the removal of her larynx. A Bridgeport federal jury in May 2010 awarded Ms. Izzarelli $7.9 million after a 14-day trial before U.S. District Judge Stefan Underhill. Judge Underhill awarded punitive damages of $3.9 million, limiting that amount to litigation expenses less taxable costs. Prejudgment interest increased the total judgment to more than $28 million. The appeals court said the punitive damages limit must be reconsidered on remand. "I'll say that both Barbara and her legal team are ecstatic right now," said attorney David Golub, Esq. -- dgolub@sgtlaw.com -- of Stamford-based Silver Golub & Teitell, who represented Ms. Izzarelli. "It's been seven years since the verdict and six years since then that the appeal has been pending, but the decision is a strong decision, and it's really gratifying," Mr. Golub said of the Second Circuit's summary order. Mr. Golub also noted that this case, the first smoker's case to come to trial in Connecticut, has helped refine the law and make Connecticut a strong state for tobacco-related claims. "Connecticut is very favorable," he said. "It's likely there will be more litigation now." Ms Izzarelli, 57, developed larynx cancer after smoking Salem cigarettes for more than 25 years. She was forced have her larynx surgically removed, requiring her to breathe through a hole in her throat. She currently lives in Holly Hill, Florida. Evidence in Ms. Izzarelli's trial sought to show that Reynolds had undertaken a campaign to market Salems to minors in order to establish a long-term customer base. Ms. Izzarelli also claimed that Reynolds had designed Salem cigarettes with a set level of nicotine that would provide a daily dose of nicotine above the threshold for nicotine addiction. The jury held that the Salem cigarettes were unreasonably dangerous and defectively designed. The jury also ruled that Reynolds had acted with reckless disregard for the safety of consumers. Dr. K. Michael Cummings, professor at the Medical University of South Carolina, testified as an expert on the public health issues in the case. In a release by Mr. Golub, Cummings said, "The tobacco companies have discounted the significance of the verdicts against them in Florida as an aberration because of the Engel class action there," he said. "This verdict demonstrates that the verdicts in Florida are no flukes and that the tobacco companies will be held liable in the Northeast and elsewhere. This unanimous verdict in Connecticut, with its substantial damages and punitive damages award, should send shivers down the tobacco companies' CEO's spines." Theodore M. Grossman, Esq. -- tgrossman@jonesday.com -- of Jones Day, representing Reynolds, could not immediately be reached. ROCK FREIGHT: "Cheuk" Suit Seeks Overtime Pay under FLSA -------------------------------------------------------- Cheuk Yu Yu, Chung Ka Hing, Chao Min Lu, Individually and on behalf of All Other Employees Similarly Situated, the Plaintiffs, v. Rock Freight System Inc., Sam Cheng, Vicky Cheng, and Randy Cheng, the Defendants, Case No. 1:17-cv-04156 (E.D.N.Y., July 13, 2017), seeks to recover overtime compensation under the Fair Labor Standards Act. The case is brought by Plaintiffs on their own behalf and on behalf of similarly situated employees, alleging violations of the Fair Labor Standards Act and the New York Labor Law, arising from Defendants' various willful and unlawful employment policies, patterns and/or practices. The Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in a pattern and practice of failing to pay their employees, including Plaintiffs, compensation for all hours worked, including overtime compensation for all hours worked over 40 each workweek. Rock Freight System is a bonded freight shipping and trucking company running freight hauling business from Jamaica, New York.[BN] The Plaintiffs are represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC. 136-18 39th Avenue, Suite 1003 Flushing, NY 11354 Telephone: (718) 353 8588 E-mail: jhang@hanglaw.com SEARS: Keller Grover Announces Gift Card Settlement --------------------------------------------------- Keller Grover LLP announces a settlement in a gift card class action against Sears involving California consumers. If you are a California consumer who possessed a Sears gift card with a balance of less than $10.00 but disposed of the gift card during the period January 12, 2013 through June 21, 2017, you may be eligible to receive a free $9.99 Sears gift card. Please visit the settlement website https://kellergrover.com/giftcardsettlement/ for more information about the settlement and instructions for how eligible consumers can submit a claim. You can also get more information about the settlement by contacting Eric Grover at 415-543-1305 or by email at -- eagrover@kellergrover.com [GN] SHILOH INDUSTRIES: Ct. Grants Leave to Amend "Prince" Suit ---------------------------------------------------------- In the case captioned TYRONE PRINCE, et al., Plaintiffs, v. ARAMARK CORP., et al., Defendants, Civil Action No. 16-cv-1477 (D.C.), RAYMOND THOMAS and WILLIAM PORTER, individually and on behalf of all others similarly situated, Plaintiffs, V. SHILOH INDUSTRIES, INC., RAMZI HERMIZ, and THOMAS M. DUGAN, Defendants, No. 15 CV 7449 (KMW) (S.D.N.Y.), Judge Kimba M. Wood granted in part and denied in part the plaintiffs' motion to reconsider the Court's March 23, 2017 decision which dismissed the plaintiffs' Corrected Amended Complaint. The judge granted the plaintiffs limited leave to amend their complaint. On September 21, 2015, the plaintiffs brought a putative class action against Shiloh Industries and two of its individual directors, Ramzi Hermiz and Thomas M. Dugan. The plaintiffs asserted claims under Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, and Section 20(a) of the Exchange Act. Shiloh Industries manufactures and distributes equipment used to build automobiles. During the class period, Ramzi Hermiz served as the president and CEO of Shiloh Industries. Thomas Dugan served as the company's treasurer and vice president of finance. The plaintiffs alleged that the defendants perpetrated an accounting fraud at Shiloh's manufacturing facility in Wellington, Ohio, and that this fraudulent accounting artificially inflated Shiloh's net income. When Shiloh publicly revealed the alleged fraud, its stock price plummeted. The defendants moved to dismiss the Complaint under Rule 9(b) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act (PSLRA), on the ground that the plaintiffs failed to state with particularity facts sufficient to allege scienter on the part of both the individual defendants and Shiloh Industries as a corporation. The Court granted the defendants' motion to dismiss on the ground that the plaintiffs failed to adequately allege scienter on the part of the defendants, Ramzi and Dugan. The Court, however, did not address whether the Wellington Controller's scienter could be imputed to the corporation. The Wellington Controller refers to the employee who committed the accounting fraud at the company's Wellington Facility. The plaintiffs asked the Court to vacate its March 23, 2017 Order and Judgment and hold that the plaintiffs have adequately stated their claims against Shiloh. The plaintiffs alternatively asked for leave to file an amended complaint. While the plaintiffs did not contest the Court's previous ruling with respect to the individual defendants, the plaintiffs asked the Court to consider whether they have sufficiently plead scienter on the part of Shiloh Industries. The plaintiffs urged the Court to find the Wellington Controller's rank akin to that of a "regional manager" or head of a particular practice group, roles for which courts in this district have imputed scienter. Judge Wood found that the plaintiffs have not sufficiently plead corporate scienter with respect to the Wellington Controller and declined to vacate the Court's previous Order and Judgment. However, because there is a possibility that the plaintiffs could amend their complaint to rectify factual deficiencies and satisfy the pleading standard with respect to their corporate scienter claim, the judge granted the plaintiffs leave to amend for this limited purpose. A full-text copy of Judge Wood's July 7, 2017 opinon and order is available at https://is.gd/nxZDxO from Leagle.com. Raymond Thomas, Lead Plaintiff, represented by Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A., Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Charles H. Linehan -- clinehan@glancylaw.com -- Glancy Prongay & Murray LLP, Sara Esther Fuks -- sfuks@rosenlegal.com -- Milberg LLP & Lesley Frank Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. William Porter, Plaintiff, represented by Charles H. Linehan, Glancy Prongay & Murray LLP & Robert Vincent Prongay, Glancy Prongay & Murray LLP, pro hac vice. Shiloh Industries, Inc., Ramzi Hermiz, Thomas M. Dugan, Defendants, represented by Geoffrey J. Ritts -- gjritts@jonesday.com -- Jones Day, pro hac vice & Robert C. Micheletto -- rmicheletto@jonesday.com -- Jones Day. SLATER AND GORDON: Share Trading Halted Following Class Action -------------------------------------------------------------- Chris Pash, writing for Business Insider, reports that trading in Slater and Gordon shares has been halted as the law firm prepares a statement about a class action. Maurice Blackburn, one of Slater and Gordon's major competitors, is acting for the class action by shareholders who purchased stock during between March 2015 and February this year. Slater and Gordon says the halt is related to "mediation" of the action started in October last year and to the company restructure announced last month. The shareholders in the class action allege there were problems within Slater and Gordon that extended beyond its acquisition in the UK of Quindell's Professional Services Division. Slater and Gordon closed a deal with its lenders, leaving US-based private equity group Anchorage Capital in control of the law firm. The lenders will end up with 95% of the ASX-listed company, bringing on a restructure of the board of directors. Slater and Gordon shares hit a high of $8.07 in 2015, valuing the world's first stock exchange-listed law firm at $2.8 billion. But they went on a steep slide because of the company's underperforming UK business and the British government's plans to limit compensation for road accidents. The shares last traded at $0.074. In August last year, the company posted an annual loss of $1.017 billion, including a $879.5 million non-cash impairment against the value of goodwill in its UK business. In February this year, Slater and Gordon posted a net loss of $425.1 million, including $350.3 million impairment charge against the value of UK assets. [GN] SPITZER INDUSTRIES: "Sarabia" Suit Alleges Misclassification ------------------------------------------------------------ AGAPITO SARABIA, Individually and on Behalf of All Others Similarly Situated, v. SPITZER INDUSTRIES, INC., Case No. 4:17-cv- 02092 (S.D. Tex., July 7, 2017), alleges that Plaintiff and the other welders like him regularly worked for Spitzer in excess of 40 hours each week without overtime compensation. Instead of paying overtime as required by the FLSA, Spitzer improperly classified Sarabia and those similarly situated as independent contractors, paying a straight hourly rate with no overtime compensation. Spitzer Industries, Inc. is an oil and gas production company. Sarabia is a welder.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Lindsay R. Itkin, Esq. Jessica M. Bresler, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77005 Phone: 713-352-1100 Fax: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com litkin@mybackwages.com jbresler@mybackwages.com - and - Matthew S. Parme, Esq. Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: (713) 877-8788 Fax: (713) 877-8065 E-mail: rburch@brucknerburch.com SYNDICATED OFFICE: "Carpenter" Suit Seeks Class Certification ------------------------------------------------------------- In the lawsuit captioned ASHLEY M. CARPENTER, on behalf of herself and all others similarly situated, the Plaintiff, v. SYNDICATED OFFICE SYSTEMS, LLC, d/b/a CENTRAL FINANCIAL CONTROL, the Defendant, Case No. 9:16-cv-81899-KAM (S.D. Fla.), the Plaintiff asks the Court to certify a class of: "(a) all persons to whom Defendant sent, or caused to be sent, a letter to a mailing address located within the State of Florida, (b) in an attempt to collect a debt incurred for medical services, (c) allegedly owed to Palm Beach Gardens Medical Center, (d) from March 9, 2016 to March 9, 2017". The Plaintiff filed this purported class action pursuant to the Fair Debt Collection Practices Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=5Sj6qAQP The Plaintiff is represented by: Donald A. Yarbrough, Esq. DONALD A. YARBROUGH, ESQ. Post Office Box 11842 Fort Lauderdale, FL 33339 Telephone: (954) 537 2000 Facsimile: (954) 566 2235 E-mail: don@donyarbrough.com - and - Randolph Bragg, Esq. HORWITZ, HORWITZ AND ASSOCIATES 25 E. Washington, Suite 900 Chicago, IL 60602 Telephone: (312) 372 8822 Facsimile: (312) 372 1673 E-mail: rand@horwitzlaw.com The Defendant is represented by: Mr. Michael L. Ehren, Esq. LASH AND GOLDBERG LLP Miami Tower, Suite 1200 100 South East 2nd Street Miami, FL 33131 Telephone: 305 347 4040 Facsimile: 305 347 4050 SYNGENTA: Court to Hear Viptera Trials Two States at a Time ----------------------------------------------------------- Trial dates have been set in seven additional states on class- action lawsuits filed against Syngenta over the release of Viptera corn to China, according to an order issued by a judge in the U.S. District Court for the District of Kansas in Kansas City, Kansas. A Kansas jury on June 26 awarded farmers $217.7 million in compensatory damages in the first of several class-action lawsuits filed against Syngenta. On July 6, U.S. District Judge John Lungstrom announced in an order the court's rationale for scheduling the next set of trials two states at a time. The court set a trial date of Jan. 22, 2018, for negligence and tortious interference claims made by farmers in Arkansas and Missouri. Motions in the case are due by Sept. 22, 2017. The trial of farmer negligence and statutory consumer protection claims made in Illinois and Nebraska is set for April 4, 2018, with motions due on Jan. 5, 2018. The Iowa and South Dakota negligence claims are scheduled for trial on May 14, 2018, with motions due by Feb. 26, 2018. Negligence claims made by farmers in the Ohio class are set for trial Oct. 8, 2018, with motions due May 28, 2018. Plaintiffs in the cases allege Syngenta sold corn with Agrisure Viptera and Duracade traits prior to the traits receiving import approvals in several countries, including China. China claims it found and rejected corn shipments containing the traits, which plaintiffs say led to lower corn prices. According to the order, Syngenta had argued for seven individual trials so as to "obtain more data points" that would be used in seeking a global settlement of claims asserted against Syngenta. "Even if some classes' claims are combined for trial, the parties will still have a number of verdicts (the Kansas class trial, at least one trial in Minnesota, and multiple additional class trials in this court) that may be used by the parties in considering a global settlement," the court ruled. "There is no question that efficiency would best be served by combining classes' claims for trial in some manner. The class claims are asserted against the same defendants, they involve common questions of law and fact, and as the Kansas class trial recently demonstrated, the evidence particular to the state of residence is relatively limited." The jury in the Kansas case took less than a day to render a verdict. Donald L. Swanson, Esq. -- don.swanson@koleyjessen.com -- an attorney with Koley Jessen in Omaha who follows the Syngenta cases, told DTN it is likely Syngenta will appeal the Kansas case, which could take a couple of years to complete. Syngenta said as much after the $217.7 million verdict was announced. The Kansas lawsuit was filed by four farmers who represent more than 7,000 farmers in the state. It was the first of multiple lawsuits claiming Syngenta should have inspected and prevented harvested Viptera (MIR 162) corn from being shipped to China in 2013 and 2014. A second case is set for trial on July 10 in Minnesota state court. That case was brought on behalf of about 60,000 farmers. The official lawsuits filed on behalf of corn producers include cases in Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas and Wisconsin. All farmers in the United States who priced corn for sale after Nov. 18, 2013, were approved last fall as a major class in the ongoing lawsuit. [GN] SYNGENTA: Averts Trial by Reaching Confidential Settlement ---------------------------------------------------------- Margaret Cronin Fisk and Jef Feeley, writing for The Daily Republic, reports that Syngenta reached a confidential settlement with a Nebraska farmer who claimed the company mishandled marketing of its genetically modified seed, causing U.S. corn prices to plummet. With the settlement, Syngenta averts a trial that was scheduled to start July 10. Terms weren't disclosed. Syngenta lost a $218 million jury verdict for a class of Kansas farmers who brought similar claims against the Swiss agrochemical company, which has been acquired by China National Chemical Corp. The Basel-based company completed its $43 billion takeover by ChemChina in June. Syngenta faces its next class action in a Minnesota court in August, where farmers are seeking more than $600 million. The company reached the settlement with farmer Daniel Mensik last week, as a scheduled trial neared in state court in Minnesota, plaintiffs' attorney Mikal Watts said on July 6 by phone. The settlement was confirmed by the court. The farmers claim Syngenta rushed its GMO seed to market before getting approval from China to export the grain there. In 2013, China stopped shipments after calling the corn contaminated by the GMO seed, setting off a five-year depression in prices, the farmers claim. They also allege Syngenta misled them on when the Chinese would approve the seed. The settlement may not have implications for the rest of the cases, said Anthony Sabino, a law professor at St. John's University in New York. "Call it a tactical retreat," he said. "Most likely, Syngenta felt the case of a single farmer versus the big corporation was too risky to take to trial, and the dollars paid were within an acceptable range." Syngenta has disputed the damages claimed by farmers, or that it did anything wrong. The company didn't sell the seed until approved by the U.S. and didn't need Chinese approval, Syngenta lawyers have argued. Paul Minehart, Syngenta spokesman, declined to comment on July 6. Mensik's claim was set to be the first to trial in the corn litigation in April, but that ended in a mistrial when the judge couldn't find enough jurors. Mensik, who has a 300 acre-farm in Morse Bluff, Nebraska, claims he lost $125,000 in sales because of Syngenta's mishandling of the GMO corn. "We're hopeful that Dan and Bonnie Mensik are the first of tens of thousands of farmers who recover their damages from Syngenta,'' said Watts, plaintiffs' attorney. The federal judge overseeing multiple class actions in Kansas set several trial dates on July 6 for additional class actions to be tried in that court. The claims of Arkansas and Missouri farmers will go forward in January, while Illinois and Nebraska go to trial in April. [GN] TAHOE RESOURCES: Faces "Sanders" Suit Over Escobal Mining --------------------------------------------------------- TYLER SANDERS, Individually and on behalf of all others similarly situated, Plaintiff, v. TAHOE RESOURCES INC., C. KEVIN MCARTHUR, RONALD W. CLAYTON, MARK SADLER, and ELIZABETH MCGREGOR, Defendants, Case No. 1:17-cv-04052 (E.D.N.Y., July 7, 2017), is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired the publicly traded securities of Tahoe from March 12, 2015 through July 5, 2017, both dates inclusive. The case alleges that Defendants issued financial results that were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operational and financial results, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) consultation obligations relating to the permitting of the Escobal mine property mining license were not met; (2) in turn, the Escobal mining license is subject to suspension; and (3) as a result, the Company's public statements were materially false and misleading at all relevant times. Defendant Tahoe explores, develops, and operates mines in the Americas.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Phone: (212) 686-1060 Fax: (212) 202-3827 Email: lrosen@rosenlegal.com pkim@rosenlegal.com TD BANK: Court Refuses to Dismiss RFDCPA Claims in "Martinez" ------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion denying Defendant's Summary Judgment on Rosenthal Fair Debt Collection Practices Act ("RFDCPA") Claims in the case captioned CHARLENE MARTINEZ, individually and on behalf of all others similarly situated, Plaintiff, v. TD BANK USA, N.A., a National Bank, and TARGET CORPORATION, a Minnesota corporation, Civil Action No. 15-7712 (JBS/AMD)(D.N.J.), but granting summary judgment on TCPA claims and strike class allegations. Plaintiff Charlene Martinez brings this putative class action against Defendants TD Bank USA, N.A., and Target Corporation, alleging violations of the Telephone Consumer Protection Act ("TCPA"), and a California law entitled the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"). Before the Court is Defendants' motion for summary judgment, or, in the alternative, to strike Plaintiff's class allegations. To prove a violation of the TCPA, 47 U.S.C. section 227(b)(1)(A), a plaintiff must put forth evidence that (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent. Defendants argue that they are entitled to summary judgment on Plaintiff's claim that they violated the TCPA because there is no genuine dispute of material fact that Plaintiff provided her prior express consent to receiving autodialed calls to her cell phone, and she did not receive any calls from Defendants after revoking that consent. Plaintiff has conceded that she provided her prior express consent but she revoked her consent and that Defendants nevertheless made four more calls to her in violation of the TCPA. Consent is terminated when the actor knows or has reason to know that the other is no longer willing for him to continue the particular conduct. The sole dispute is as to whether the faxing of the letters to the fax numbers in question, where Defendants submit that the evidence is clear that they never received either letter, was a reasonable method of informing Defendants that Plaintiff was revoking her consent. Defendants argue that they cannot be said to have had reason to know that Plaintiff revoked her consent when they assert that they never received the revocation, their business records do not reveal having received the faxes, and Plaintiff cannot point to any evidence that they received the faxes beyond the numbers themselves and the fact that the faxes marked their transmission as "OK." The Court finds that Plaintiff has not produced sufficient evidence to allow a reasonable finder of fact to conclude that she revoked her consent, thus allowing her claim under the TCPA for the four calls placed. Accordingly, the Court will grant summary judgment to Defendants as to the TCPA claim. Defendants argue that they are entitled to summary judgment on Plaintiff's claims under the RFDCPA. Plaintiff argues that the undisputed call logs show that Defendants called Plaintiff 165 times over an eight-month period, which a reasonable jury could find to constitute harassment within the meaning of the RFDCPA. The RFDCPA prohibits harassing conduct related to debt collection, including "causing a telephone to ring repeatedly or continuously to annoy the person called" and "communicating with such frequency as to be unreasonable and to constitute harassment under the circumstances. After careful consideration, the Court is persuaded that the relevant case law supports a finding that Plaintiff, in this case, has raised a genuine dispute of material fact as to whether the volume and pattern of calls in this case could constitute actionable harassment under the RFDCPA. Courts have found a genuine issue of material fact in a case where the plaintiff received ninety-nine calls over a one-and-a-half year period, frequently received between two and five calls a day, and answered at least some of those calls. The Court will deny Defendants' motion for summary judgment as to Plaintiff's RFDCPA claim. The Court agrees that Plaintiff has not brought forth evidence sufficient to create a genuine dispute of material fact as to the allegation that she suffered an economic injury caused by Defendants. No reasonable finder of fact could conclude, based on the evidentiary record before the Court, that Plaintiff in fact suffered such an injury. Accordingly, the Court finds that she lacks standing under the UCL and will grant summary judgment on that claim to Defendants. Plaintiff seeks certification of the following class under Rule 23(b)(3), Every individual in the United States who: (1) received a call on his or her cellular telephone; (2) placed by or on behalf of Defendants; (3) relating to a Target credit card; (4) using a dialer; and (5) where Defendants did not have prior express consent to place such a call at the time it was placed. Defendants seek to strike the class allegation on grounds of lack of ascertainability. Defendants object to this class because Plaintiff Martinez herself would not be a member. She consented to receive the vast majority of these calls, including all calls made on multi-call days. Defendants also move to strike the class allegations from Plaintiff's Amended Complaint because she "impermissibly attempts to create a 'fail-safe' class where the question of 'whether a person qualifies as a member depends on whether the person has a valid claim. Because the Court has granted summary judgment to Defendants on Plaintiff's TCPA claims, the Court will not grant Plaintiff leave to amend the class allegations with regard to claims under the TCPA, because Plaintiff will not fall into the revised class definition. Because Plaintiff's only remaining claim survives under California's RFDCPA, any class definition would be limited to residents of California3 who received such calls. Finally, as noted, Plaintiff's membership in the class as presently defined is a nullity. Defendants' motion to strike Plaintiff's class allegations will be granted. The Court will deny Defendants' motion to for summary judgment as to Plaintiff's claim under the RFDCPA. will grant Defendants' motion for summary judgment as to Plaintiff's claims under the TCPA . The Court will also grant Defendants' motion to strike the class allegations. A full-text copy of the District Court's June 30, 2017 Opinion is available at https://is.gd/sXVQOY from Leagle.com. CHARLENE MARTINEZ, Plaintiff, represented by STEFAN LOUIS COLEMAN. 1309 Jericho Turnpike, New Hyde Park, NY 11040 Phone: 347-673-0015 TD BANK USA, N.A., Defendant, represented by JARROD D. SHAW, -- jshaw@mcguirewoods.com -- McGuireWoods LLP. TARGET CORP., Defendant, represented by JARROD D. SHAW, McGuireWoods LLP. TEAM OIL: "Staggert" Labor Lawsuit Transferred to S.D. Texas ------------------------------------------------------------ The case captioned SCOTT STAGGERT (401 E 8th Street # 1152, Sioux Falls, SD 57103) on behalf of himself and all others similarly situated, Plaintiff vs. TEAM OIL TOOLS, LP, c/o Statutory Agent CT Corporation System (1300 East Ninth Street, Cleveland, Ohio 44114), Defendant, (originally, Case No. 2:16-cv- 00822, S.D. Ohio, August 25, 2016) was transferred from the United States District Court for the Southern District of Ohio to the United States District Court for the Southern District of Texas, and assigned Case No. 4:17-cv-02077. Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons is set for October 13, 2017, at 02:15 p.m. in Courtroom 3A before Judge Keith P Ellison. The case alleges that Defendant Team Oil Tools, LP required Plaintiff Scott Staggert and other similarly situated employees to work more than forty hours each workweek but failed to pay them overtime wages for those hours worked in excess of forty in a workweek. The case alleges violation of the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, and the Pennsylvania Minimum Wage Act. Defendant specializes in the design and sale of custom petroleum exploration tools used in the hydraulic fracturing and cementing of wells. Plaintiff Staggert worked for Defendant as a Field Service Technician.[BN] The Plaintiff is represented by: Anthony James Lazzaro, Esq. 614 W Superior Ave., Ste 920 Cleveland, OH 44113 Phone: (216) 696-5000 E-mail: anthony@lazzarolawfirm.com - and - Chastity Lynn Christy, Esq. 614 W. Superior Avenue, Suite 920 Cleveland, OH 44113 Phone: (216) 696-5000 Fax: (216) 696-7005 - and - Donny J. Foty, Esq. KENNEDY HODGES LLP 4409 Montrose Blvd., Ste 200 Houston, TX 77006 Phone: (713) 523-0001 Fax: (713) 523-1116 E-mail: dfoty@kennedyhodges.com - and - John Anthony Neuman, Esq. SOSA-MORRIS NEUMAN ATTORNEYS AT LAW 5612 Chaucer Dr. Houston, TX 77005 Phone: (281) 885-8630 E-mail: jneuman@smnlawfirm.com Defendant(s) is represented by: Peter W. Hahn, Esq. DINSMORE & SHOHL, LLP 191 West Nationwide Blvd., Suite 300 Columbus, OH 43215 Phone: (614) 227-4286 Fax: (614) 628-6890 - and - Mark D. Downey, Esq. HUGHES ARRELL KINCHEN 1910 Pacific Ave., Ste 15650 Dallas, TX 75201 Phone: (214) 764-7279 Fax: (713) 568-1747 E-mail: mdowney@hakllp.com TOKIO MARINE: Court Dismisses "Azad" Suit with Leave to Amend ------------------------------------------------------------- In the case captioned MOHAMMED AZAD, et al., Plaintiffs, v. TOKIO MARINE HCC - MEDICAL INSURANCE SERVICES LLC, et al., Defendants, Case No. 17-cv-00618-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted each of the Defendants' motions to dismiss with leave to amend, and denied HCC's and HII's motions to strike. This case was filed on Feb. 7, 2017, by the Plaintiffs Azad against HCC, a seller of short-term medical insurance, and three other entities who allegedly worked with HCC: HCC Life Insurance Co., Health Insurance Innovation, Inc., ("HII"), and Consumer Benefits of America ("CBA"). HCC contracted with the Plaintiffs to provide them HCC Life Insurance was the underwriter on the Plaintiffs' polices. The Plaintiffs seek to represent a Rule 23 class of all individuals who have purchased HCC health insurance policies from the Defendants in the State of California, and/or all California residents for whom HCC denied their insurance claim, since a date to be ascertained through discovery. The Plaintiffs allege that the Defendants falsely represented that the short-term medical insurance policies ("STM policies") provided reasonable coverage and fair claim processing. In reality, HCC misled policyholders about the scope of the coverage and made it unreasonably difficult to make a claim. They allege that HCC had a common policy and practice of marketing their polices in a misleading manner, delaying and refusing to pay claims, providing deliberately unhelpful customer service, and obstructing policyholders' claims. The Plaintiffs assert five claims: (i) violations of the California Unfair Competition Law ("UCL"); (ii) violation of the California False Advertising Law ("FAL"); (iii) breach of contract; (iv) breach of the implied duty of good faith and fair dealing ("bad faith"); and (v) unjust enrichment. On April 13 and 14, 2017, HCC (together with HCC Life Insurance), HII, and CBA filed the instant motions to dismiss the complaint and/or strike its allegations. On April 20, 2017, the Defendants filed a motion to stay discovery pending resolution of the motions to dismiss. The Court denied the motion to stay discovery, but vacated the case management conference in light of the pending dispositive motions. HCC's motion to dismiss argues that the misrepresentation theory fails because neither Azad nor Buckley identifies a specific misrepresentation that they relied on. Although they allege that the Brochure is misleading when "read together" with the application form, the complaint does not allege that either of the named Plaintiffs saw or relied on the Brochure when they decided to purchase the STM policies. The Court finds that these arguments have merit and therefore granted HCC's motion to dismiss, with leave to amend. At the hearing, the Plaintiffs proposed a new claims-processing theory, which is more firmly grounded in the language of the contract. They assert that the policies' pre-existing conditions exclusion is limited to conditions for which the insured received medical treatment, diagnosis, care, or advice within the six-month period prior to the effective date of coverage. The Court finds that the new claims-processing theory could, at least potentially, state a claim for breach of contract and the implied duty of good faith and fair dealing. It may also provide a basis for a claim under the UCL unlawful or unfair prongs. In light of the Plaintiffs' newly asserted claims-handling theory, the Court granted HCC's motion to dismiss the contact, bad faith, and UCL unfair claims, but provided the Plaintiffs leave to amend to assert their new allegations. Finally, the Court dismissed the unjust enrichment claim with prejudice since it is not an independent cause of action in California. Since the Plaintiffs have alleged both a contract claim and a UCL claim for restitution, the unjust enrichment claim is duplicative. HCC has also filed a separate motion to strike all of the complaint's class allegations, arguing that neither the Plaintiffs' misrepresentation theory nor the claims-handling theory can be pursued as a class action. Given that the Plaintiffs have not been afforded discovery into the alleged common fraudulent scheme of the Defendants, the Court denied HCC's motion to strike. The proprietary of class adjudication can be addressed later in the usual fashion, on a fully-briefed motion for class certification. The Court granted CBA's motion to dismiss as to all claims, with leave to amend except as to the unjust enrichment claim. The complaint says almost nothing about CBA. In particular, the complaint contains no explanation as to why CBA would be liable for the actions of other defendants in the marketing of the HCC STM policies, or what specific contractual duties were owed by CBA to the Plaintiffs. As to the contract and bad faith claims, the complaint does not clearly allege that CBA was a party to the Plaintiffs' insurance contracts. The Court finds no plausible factual basis for the claim as currently pleaded, and the Plaintiffs' oral representations at the hearing cannot cure their pleading's deficiencies. In the amended complaint, the Plaintiffs must clarify CBA's contractual relationships with the other parties. Finally, the unjust enrichment claim is dismissed with prejudice by the Court for the same reasons explained with respect to HCC's motion to dismiss. The complaint's sparse allegations against HII also are insufficient to state a claim. Given that "joint marketing" between HCC and HII is alleged, the Court finds that the complaint's allegations provide a basis to infer HII was involved in the marketing of the policies, and thus potentially liable for their allegedly misleading advertising. However, the claims based on the misrepresentation theory must be dismissed with leave to amend for the reasons discussed with regard to HCC's motion to dismiss. As to the improper claims-processing theory, the complaint fails to allege that HII was an insurer or a party to the insurance contracts. Although the Court has some difficulty seeing how a breach of contract or bad faith claim could be stated against HII, it provided leave to amend these claims as well. HII also seeks to the complaint concerning regulatory actions taken against HII in other states. Although HII claims that these allegations are "immaterial," the fact that there is out-of-state regulatory action against HII is relevant to the Plaintiffs' allegations that the Defendants have a common policy or practice of fraudulent behavior, according to the Court. These allegations thus relate to and have a possible bearing on the Plaintiffs' claims. Accordingly, the Court denied HII's motion to strike. For these reasons, the Court granted HCC's motion to dismiss, CBA's motion to dismiss, and HII's motion to dismiss with leave to amend save with respect to the unjust enrichment claim. HCC's motion to strike the class allegations is denied and HII's motion to strike is also denied. The Plaintiffs will file an amended complaint by Aug. 7, 2017. No additional claims or parties may be added without leave of Court or stipulation of the Defendants. A case management conference will be rescheduled after the pleadings are settled. A full-text copy of the Court's July 14, 2017 order is available at https://is.gd/YpXN5y from Leagle.com. Mohammed Azad, Plaintiff, represented by David F. Slade -- dslade@cbplaw.com -- Carney Bates & Pulliam, PLLC. Mohammed Azad, Plaintiff, represented by James Allen Carney -- acarney@cbplaw.com -- Carney Bates Pulliam, PLLC, Jay B. Angoff, Mehri and Skalet, Matthew Thomas Prewitt -- mprewitt@cuneolaw.com -- Cuneo Gilbert and LaDuca LLP, Michael J. Flannery -- mflannery@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP, Rachel Geman -- rgeman@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP & Kelly M. Dermody -- kdermody@lchb.com -- Leiff Cabraser Heimann & Bernstein LLP. Danielle Buckley, Plaintiff, represented by David F. Slade, Carney Bates & Pulliam, PLLC, James Allen Carney, Carney Bates Pulliam, PLLC, Jay B. Angoff, Mehri and Skalet, Matthew Thomas Prewitt, Cuneo Gilbert and LaDuca LLP, Michael J. Flannery, Cuneo Gilbert & LaDuca, LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP & Kelly M. Dermody, Leiff Cabraser Heimann & Bernstein LLP. Health Insurance Innovations, Inc., Defendant, represented by Garry W. O'Donnell -- garry.odonnell@gmlaw.com -- Greenspoon Marder, P.A. & Daniel J. Herling -- DJHerling@mintz.com -- Mintz Levin Cohn Ferris Glovsky and Popeo P.C.. HCC Life Insurance Company, Defendant, represented by Gerard G. Pecht -- gerard.pecht@nortonrosefulbright.com -- Norton Rose Fulbright -- US LLP, Joshua David Lichtman, Norton Rose Fulbright US LLP, Michael Scott Incerto -- scott.incerto@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, Michelle Lynnea Mello -- michelle.mello@nortonrosefulbright.com -- Norton Rose Fulbright US LLP & Sumera I. Khan -- sumera.khan@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, pro hac vice. Tokio Marine HCC - Medical Insurance Services Group, Defendant, represented by Gerard G. Pecht, Norton Rose Fulbright US LLP, Joshua David Lichtman, Norton Rose Fulbright US LLP, Michael Scott Incerto, Norton Rose Fulbright US LLP, Michelle Lynnea Mello, Norton Rose Fulbright US LLP & Sumera I. Khan, Norton Rose Fulbright US LLP, pro hac vice. Consumer Benefits of America, Defendant, represented by Howard Michael Garfield -- hgarfield@hbblaw.com -- Haight, Brown, & Bonesteel, David W. Evans -- devans@hbblaw.com -- Haight Brown & Bonesteel LLP & Renata Louise Hoddinott -- rhoddinott@hbblaw.com - - HAIGHT BROWN BONESTEEL LLP. TRIDENT ASSET: Placeholder Bid for Class Certification Filed ------------------------------------------------------------ In the lawsuit styled MARY ANN OLSZWESKI, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. TRIDENT ASSET MANAGEMENT, LLC, and ORION PORTFOLIO SERVICES, LLC, the Defendants, Case No. 2:17-cv-00994 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a proposed class in this case, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kjljHGT9 The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com U.S. STEEL: Faces Suit Over Donora Zinc Works --------------------------------------------- Gideon Bradshaw, writing for Observer, reports that sixty years after the Donora Zinc Works closed, some who live nearby are seeking to hold its owners responsible for elevated levels of hazardous heavy metals its operations allegedly produced. A lawsuit filed on July 7 in Washington County Court accuses U.S. Steel of failing to notify those in the area around the zinc works of "insidious industrial pollution in their homes, yards and communities" resulting from operations there. Attorney Michael Jacks,Esq. of Morgantown, W.Va., the plaintiffs' lead attorney, wrote his clients "are suffering from a continuing harm in that each and every day, they wake up to live in a polluted property and suffer from additional exposure which cannot be removed unless and until professional remediation is performed." The lawsuit includes claims under the state Hazardous Site Cleanup Act and accuses U.S. Steel of negligence and recklessness. It draws on a study published March 31 that found "elevated levels of hazardous materials including arsenic, lead, cadmium and zinc" in soil seven miles from the zinc works, specifically attributed to the former mill. U.S. Steel spokeswoman Meghan Cox said the company doesn't comment on pending litigation. U.S. Steel opened the smelting and processing plant in 1915 and operated it until it closed in 1957. The suit alleges the company opted to use horizontal retort furnaces to produce zinc -- despite cleaner alternatives available when the works opened -- and allegedly never modernized the facility even as the industry evolved, failing to take measures to adequately control pollution. Along with U.S. Steel, the lawsuit names USX Corp. -- the name the company adopted from 1986 to 2001 before reverting to its former name -- as a defendant. The facility came under scrutiny as the probable culprit in the Donora Smog when, during five days in October 1948, a temperature inversion trapped heavily polluted air in the valley, kiling more than 20 people and leaving thousands more ill in Donora and nearby Webster and Sunnyside, across the Monongahela River. The lethal smog lent momentum to the then-budding environmental movement. The small borough, 20 miles southeast of Pittsburgh, is still known nationally as the site of the man-made disaster. In subsequent litigation, the company admitted it collected atmospheric sampling data in the decades leading up to the deadly smog incident but has never made that data public. The new lawsuit alleges the company failed to notify those in the area about contamination from the zinc works. It seeks designation as a class action and names Louise Kowall and Evelyn Vehouc, both of Donora, and Donna Kopecek of Charleroi, whose child and grandchildren live in a home she owns in Donora, as proposed class representatives. The lawsuit defines proposed class members as those who own private real estate within a seven-mile radius of the former zinc works, those who have lived in that area at any point in the last 30 years and children who have lived within those bounds. In court papers, Jacks identified lead, arsenic and cadmium as "carcinogens, neurotoxins and nephrotoxins, causing cancer and kidney failure," and enumerated risks associated with lead poisoning. Among the demands in the lawsuit, Jacks asks that a judge hold U.S. Steel responsible for the costs of medical monitoring for diseases associated with the exposure; remediation of the hazardous materials; and punitive and compensatory damages. [GN] UBER TECHNOLOGIES: "Olivares" Suit Compelled to Arbitration ----------------------------------------------------------- In the case captioned LUIS OLIVARES, an individual, on behalf of himself and all persons similarly situated, Plaintiff, v. UBER TECHNOLOGIES, INC., Defendant, Case No. 16 C 6062 (N.D. Ill.), Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part the Defendant's motion to compel arbitration and dismiss the case pursuant to the Federal Arbitration Act. The Plaintiff, who has been an Uber driver since May 2015, voluntarily entered into a valid and enforceable arbitration agreement with Rasier, LLC, Uber's wholly-owned subsidiary. At the time the Plaintiff signed up to use the Uber app to generate leads for potential riders, the applicable agreement was the Nov. 10, 2014 Rasier Software License & Online Services Agreement. He voluntarily entered into the November 2014 and December 2015 Agreements and did not opt out of the Arbitration Provision. The Plaintiff filed a five-count amended complaint against the Defendant for violation of the Illinois Wage Payment and Collection Act ("IWPCA") (Count I), Illinois Minimum Wage Law ("IMWL") (Count II), and Fair Labor Standards Act ("FLSA") (Counts III-V). He brings the IWPCA and IMWL claims pursuant to Federal Rule of Civil Procedure 23 on behalf of himself and an Illinois class, defined as all individuals who are or previously employed by Uber in Illinois and who were classified as independent contractors at any time during the five-year period prior to the filing of the complaint. The Plaintiff brings the FLSA claims on behalf of himself and a collective class, defined as all individuals who worked for Uber nationwide, except in California and Massachusetts, and who were classified as independent contractors at any time during the three-year period prior to the filing of the complaint. The Defendant asks the Court to compel arbitration and dismiss the complaint because there is a valid, enforceable arbitration agreement and the National Labor Relations Act ("NLRA") does not apply since the Plaintiff is an independent contractor, not an employee. The Plaintiff first asserts that the arbitration provision is unenforceable because the class action waiver it contains violates Section 7 of the NLRA. To support this argument, he relies on Lewis v. Epic Systems, in which the Seventh Circuit held that a class action waiver was unenforceable because it abridged employees' rights to engage in concerted activity. He next challenges the Defendant's classification of him as an independent contractor and argues that the Court must decide whether the Plaintiff is an employee or independent contractor before it can rule on the Defendant's motion. The Defendant counters that Lewis is distinguishable because the arbitration provision at issue here is voluntary and not mandatory as it was in Lewis. Further, it argues that whether the Plaintiff is properly classified as an employee or an independent contractor is for the arbitrator, not the Court, to decide. The Court says the Uber's delegation clause is clear and unmistakable evidence that when the Plaintiff accepted the December 2015 Agreement, he agreed to arbitrate threshold issues. Pursuant to that arbitration agreement, of which he did not opt out, the Court finds that the arbitrator is responsible for determining the threshold issue of whether the Plaintiff's relationship with Uber is that of employee or independent contractor. Moreover, the Court says the NLRA applies to employees, not independent contractors. Accordingly, it is essential to first resolve whether the Plaintiff is an independent contractor, as the December 2015 Agreement seems to indicate, or an employee. Because the Court has held that question is for the arbitrator, it declines to weigh in at this stage whether the class action waiver violates the NLRA. For these reasons, the Court granted the Defendant's motion to compel arbitration. Because the Seventh Circuit instructs that the proper course of action when a party seeks to invoke an arbitration clause is to stay the proceedings rather than to dismiss outright, the motion to dismiss is denied. This case is stayed pending arbitration. The Plaintiff is directed to notify the Court within 14 days of the conclusion of the arbitration proceedings. A full-text copy of the Court's July 14, 2017 order is available at https://is.gd/n62i34 from Leagle.com. Luis Olivares, Plaintiff, represented by Norman Blumenthal -- norm@bamlawca.com -- Blumenthal, Nordrehaug & Bhowmik. Luis Olivares, Plaintiff, represented by Victoria Bree Rivapalacio -- victoria@bamlawca.com -- Blumenthal, Nordrehaug & Bhowmik & Mark E. King, King Law Group, P.C.. Uber Technologies, Inc., Defendant, represented by James J. Oh -- joh@littler.com -- Littler Mendelson, P.C., Darren Mason Mungerson -- dmungerson@littler.com -- Littler Mendelson, P.C. & Todd M. Church -- tchurch@littler.com -- Littler Mendelson, P.C. UNITED STATES: Hawaii Loses Bid to Challenge Trump Travel Ban ------------------------------------------------------------- Jonathon Churchin, writing for JURIST, reports that the US Court of Appeals for the Ninth Circuit on July 7 dismissed Hawaii's appeal to challenge the rules of the Trump administration's travel ban. The three-judge panel decided that the court did not have jurisdiction, clarifying that the question should be posed to the US Supreme Court. Hawaii was lodging an attempt to allow grandparents and certain other relatives to be classified as having a "bona fide" relationship, allowing them to come into the US. It is unclear what steps Hawaii might take now that the Ninth Circuit has declined to address the issue. As it stands the only relationships that are classified as bona fide connections are parents, spouses, sons, daughters, sons-in-law, daughters-in-law, fiances and siblings. The travel ban has been a contentious topic since the Trump administration first implemented the executive order [materials], and continues to face a series of federal legal action. On July 6 a federal judge in Hawaii denied the state's attempt to exempt grandparents the ban. In June the US District Court for the Western District of Washington denied in part and granted in part a motion to dismiss a class action suit filed against President Donald Trump and the US Citizenship and Immigration Services (USCIS). Also in June the US District Court for the Eastern District of Michigan temporarily blocked the deportation of more than 100 Iraq nationals, arrested by US Immigration and Customs Enforcement (ICE) [official website] agents, for approximately two weeks, during which time the court will decide whether it has jurisdiction in the matter. Earlier that same month the US Court of Appeals for the Ninth Circuit ruled against the majority of Trump's revised executive order limiting travel from six Muslim- majority countries. That ruling affirmed the majority of a district court injunction in March that blocked the order from being enforced. In May a federal district court in Washington granted a temporary restraining order to allow legal aid groups to continue to provide certain kinds of assistance to undocumented immigrants. [GN] UNITED STATES: Asks Judge to Rethink Class Certification Order -------------------------------------------------------------- Kyle Jahner, writing for Law360, reports that in a class action challenging the legality of an immigrant vetting program allegedly expanded by the Trump administration, the U.S. government asked a federal judge to rethink his order certifying a class of applicants for immigration benefits, arguing on July 5 that the applicants could not attribute any injury to the program. In a motion to reconsider a June class certification order, the administration said that even if the court found the Controlled Application Review and Resolution Program illegal, it could not be assumed to have caused delays in the processing of immigration paperwork for all class members, or any "concrete injury" on a classwide basis. "The court has no jurisdiction to evaluate the legality of CARRP absent a plausible allegation that CARRP is the proximate cause of unlawful delay," the motion said. "And there can be no commonality among a class that contains members who have not suffered a concrete injury. This alone is a sufficient basis to deny class certification." The lawsuit, filed on Jan. 23 in the Western District of Washington, alleges the U.S. Citizenship and Immigration Services program secretly and unlawfully targets applicants who are Muslim or from certain Muslim-majority countries. It has since been heavily amended, the first time only a week after it was filed in order to incorporate arguments challenging parts of President Donald Trump's first executive order restricting travel to the U.S. from several Muslim-majority countries. The latest version of the suit targets the second travel ban order in place of the first one, saying it would expand CARRP. U.S. District Judge Richard A. Jones declined to toss the case and certified a nationwide class of potentially thousands of applicants in June. The lawsuit from multiple groups including the ACLU and attorneys from Perkins Coie LLP says USCIS created CARRP in 2008 to determine when an applicant should be labeled a "national security concern," a vetting process they say was not authorized by Congress nor was subject to required public notice and comment. The Feb. 1 amended complaint tells the story of two plaintiffs, but more have since been added. In April, Judge Jones rejected a government bid to transfer the case to North Dakota. It had argued the claims of the named plaintiff, Washington resident Abdiqafar Wagafe, were moot after it processed his application to change his refugee status and become a lawful permanent resident. In rejecting that argument, Judge Jones noted the government only processed Wagafe's application after the plaintiffs filed for class certification, adding that other named plaintiffs living in Washington had joined the suit. In June, when he certified the class and rejected a motion to dismiss, Judge Jones further said that it would be a "blatant attempt to moot the plaintiff's claims" if the government were processing claims strategically. But while Judge Jones' June ruling said that "the common question here is whether CARRP is lawful," the government's on July 5 motion countered "that is only part of the equation" and argued it matters equally that each class member has been similarly injured by CARRP. The government said the Ninth Circuit and the U.S. Supreme Court have warned against using "abstract harm" to establish jurisdiction. The plaintiffs can't possibly show both that processing was unreasonable and that CARRP was the proximate cause for all delays, much less for all class members, it argued. Processing delays could arise for a variety of reasons, the administration continued, saying class members "may be subject to CARRP but not harmed by it," and that simply answering the common question won't "finally resolve any claims on a classwide basis." If Judge Jones refuses to undo class certification, the motion requests in the alternative that he alter its definition, which among other criteria includes immigrants whose applications have been pending for longer than six months. It says the six-month benchmark is derived only from a "sense" of congressional intent, not from any legal requirement. The motion also said most applicants wait longer than six months for processing regardless of whether CARRP was involved. "The court is entitled to exercise its discretion in defining classes, but relying on a six-month mark that (1) has no legal significance, and (2) does no work in separating delays cause by CARRP from delays caused by a backlog of applications, is an abuse of discretion," the motion said. Representatives for the plaintiffs declined to comment. The government does not comment on pending litigation. The government is represented by trial attorneys Edward S. White, Esq. -- Edward.s.white@usdoj.gov -- and Aaron R. Petty, Esq. -- aaron.r.petty@usdoj.gov -- of the National Security & Affirmative Litigation Unit and acting Assistant Attorney General Chad A. Readler, Esq. -- chad.a.readler@usdoj.gov -- District Court Section Director William C. Peachey, Esq. -- William.c.peachey@usdoj.gov -- and chief of the National Security and Affirmative Litigation Unit Christopher W. Dempsey, Esq. -- Christopher.w.dempsey@usdoj.gov The plaintiffs are represented by Laura K. Hennessey, Esq. -- lhennessey@perkinscoie.com -- David A. Perez, Esq. -- dperez@perkinscoie.com -- Harry A. Schneider Jr., Esq. -- hschneider@perkinscoie.com -- Nicholas P. Gellert, Esq. -- ngellert@perkinscoie.com -- and Kate Reddy, Esq. -- kreddy@perkinscoie.com -- of Perkins Coie LLP, Jennifer Pasquarella, Esq. -- jpasquarella@aclusocal.org -- of the ACLU Foundation of Southern California, Matt Adams, Esq. -- adam@nwirp.org -- and Glenda M. Aldana Madrid, Esq. -- glenda@nwirp.org -- of the Northwest Immigrant Rights Project, Stacy Tolchin, Esq. -- stacy@tolchinimmigration.com -- of the Law Offices of Stacy Tolchin, Hugh Handeyside, Esq. -- hhandeyside@aclu.org -- Lee Gelernt, Esq. -- lgelernt@aclu.org -- and Hina Shamsi, Esq. -- hshamsi@aclu.org -- of the American Civil Liberties Union Foundation, Trina Realmuto, Esq. -- trina@nipnlg.org -- and Kristine Macleod-Ball, Esq. -- Kristine@nipnlg.org -- of the National Immigration Project of the National Lawyers Guild and Emily Chiang, Esq. -- echiang@aclu- wa.org -- of the ACLU of Washington Foundation. The case is Wagafe et al. v. Trump et al., case number 2:17-cv- 00094-RAJ, in the U.S. District Court for the Western District of Washington. [GN] UNITED STATES: Judge Extends Stay Blocking Deportation of Iraqis ---------------------------------------------------------------- CNN Wire reports Iraqi nationals with final orders of removal from the US cannot be deported for at least another two weeks, a federal judge has ruled. Judge Mark Goldsmith extended a temporary stay blocking their deportation until July 24, according to the judge's order. The judge said the court needed additional time to determine whether the court has jurisdiction over the case in the first place, according to court documents. The group of Iraqi nationals who filed the initial lawsuit along with the ACLU argued that there was "good cause" for extending the stay, because Iraqis in danger of deportation face the same threats they did when the initial stay was granted a few weeks ago: fear of "persecution, torture or even death," upon return to their country, according to court documents. Attorneys arguing on behalf of the federal government did not initially agree, but conceded during the court hearing that the court had the power to extend the stay, according to court documents and Lee Gelernt, ACLU Immigrants' Rights Project deputy director. "As the court has recognized, these individuals are potentially in grave danger if sent back to Iraq," Gelernt told CNN in a statement. "There is simply no reason why the government needs to deport them before they have had an opportunity to present their claims that they will be tortured and possibly killed if returned to Iraq." The ACLU along with some Iraqi nationals detained in the Michigan area originally filed a suit on June 15, requesting a stay of removal for any Iraqi detained under the jurisdiction of the Detroit ICE office. A few days earlier, ICE arrested more than 100 Iraqi nationals in the Michigan area. ICE has arrested 199 Iraqi nationals since May; 114 of them from Detroit, according to the agency's press secretary Gillian Christensen. ICE said most of those arrested have criminal records. Shortly after the initial stay was granted, the ACLU asked to expand the class-action lawsuit to cover all Iraqi nationals in the US with final orders of removal for deportation. The judge granted their request, expanding the temporary stay on June 26 to cover this group of 1,444 Iraqi nationals on June 26. Eighty-five of them face deportation when the stay is lifted, according to court documents. While the stay is in place, Iraqi nationals, both those being held in detention centers and those still going about their normal lives but who have final orders of removal, are able to take their case before an immigration court judge and argue why they believe they should be allowed to stay in the U.S. A group of about 40 Iraqis immigrants living in Michigan who were detained by ICE requested pardon from deportation from Michigan Gov. Rick Snyder on July 7, a day after the temporary stay was extended. "The requests for pardon have been received and each one is being reviewed by our office," Anna Heaton, the governor's spokeswoman, told CNN. The ACLU has also requested a list of names from the federal government of all 1,444 Iraqis who fall into the category protected by the temporary stay so they can equip them with legal representation and help them argue their cases in immigration courts. The government had not provided this list to the ACLU as of July 8, according to Gelernt, who is arguing the case. The US attorney's office has argued that a federal district court did not have jurisdiction over whether Iraqis can be deported. Government lawyers believe it should be handled by an immigration court, according to Gina Balaya, public information officer for the US attorney's office for the Eastern District of Michigan. [GN] VOLKSWAGEN: Wants to Dodge Liability for Failure to Warn Investors ------------------------------------------------------------------ Nicholas Iovino, writing for Courthouse News, reports that a federal judge on July 7 appeared unwilling to let Volkswagen off the hook for failing to warn investors that it was skirting environmental laws, even as it touted its commitment to developing emissions-reducing technology. "It's not that they have to disclose wrongdoing," U.S. District Judge Charles Breyer said in court on July 7. "But when you say, 'Look at all the government is doing to monitor this,' and you fail to say, 'And we're devoting resources to defeat this,' that's a misstatement by omission." Breyer was referring to a document drafted in May 2014 to court big investors such as a retirement fund for Puerto Rico's government employees, which serves as the lead plaintiff in one of two U.S. securities class actions against Volkswagen and its former top executives. The retirement fund claims Volkswagen overstated its profitability and hid the billions of dollars in liabilities it faced for its worldwide distribution of 11 million vehicles tainted with emissions-cheating software. During a motion-to-dismiss hearing on July 7, Volkswagen attorney Robert Giuffra, Esq. -- giuffrar@sullcrom.com -- insisted the German automaker can't be held liable for securities fraud because it made no false statements in a May 2014 memo that institutional investors relied on when purchasing bonds. "Every company issues warnings that we are subject to laws," Giuffra said. "If that's enough for a misstatement, every company that gets fined could be liable." But Breyer found Volkswagen focused heavily on its commitment to emissions-reducing technology in that memo while failing to disclose that it also invested in devices intended to conceal emissions. "The truth and context of what Volkswagen is doing is important," Breyer said. The judge said he would not consider other statements and financial reports issued by the company because the memo stated that investors should "rely only on information contained in this offering memorandum." Attorneys for Volkswagen and the proposed class of qualified institutional buyers also argued over whether the proposed class period should start on May 15, 2014, when the bonds were purchased, or May 23, 2014, when the transaction was complete. That eight-day difference is important because the plaintiffs claim then-Volkswagen of America CEO Michael Horn received an email on May 15 warning him that Volkswagen vehicles did not meet U.S. emissions standards and of the potential consequences. Class attorney Ian Berg.Esq. argued that because the transaction was not completed until May 23, that date should represent the start of the class period. He contended Horn knew about the fraud before the retirement fund completed its purchase of bonds on May 23, 2014. "If the truth was disclosed, they would have had the opportunity to cancel that order," Berg said. But Volkswagen attorneys, including Giuffra, insisted the company and its executives can only be held liable for conduct that occurred before the purchase date of May 15, 2014. Volkswagen sold three sets of bonds to qualified institutional buyers between May 23, 2014, and May 22, 2015. It sold $3.5 billion in bonds in May 2014; $2 billion in bonds in November 2014; and $2.8 billion in bonds in May 2015, according to the retirement fund's complaint. Giuffra said it was "telling" that no other named plaintiffs have stepped forward in the case, adding that the retirement fund for Puerto Rico's public employees only lost $66,000, or 1.6 percent in value when it sold the bonds in October 2015. "People didn't lose a lot of money on these bonds, and some made money," Giuffra said. Breyer indicated that the proposed class would need to find additional named plaintiffs that purchased bonds in November 2014 and May 2015 to pursue claims of securities fraud for those transactions. After about an hour of debate, Breyer took the arguments under advisement. Breyer refused to dismiss claims against Volkswagen in a separate class action brought by U.S. investors who purchased Volkswagen shares in the form of level 1 American Depository Receipts, or ADRs. Giuffra is with Sullivan and Cromwell in New York. Berg is with Abraham, Fruchter & Twersky in San Diego. [GN] VOLKSWAGEN AG: Attorney Provides Details on Diesel Settlement ------------------------------------------------------------- The Associated Press reports that about a year ago, Volkswagen agreed to spend up to $15.3 billion to settle consumer lawsuits and government allegations that its diesel vehicles cheated on U.S. emissions tests. Included was up to $10 billion for owners of about 450,000 VWs and Audis to either buy back or repair vehicles with 2-liter engines. Owners would get $5,100 to $10,000 in addition to buybacks or fixes. As of late June, VW had paid $6.3 billion to 2-liter owners. About 62 percent of the cars, or 300,000, have been purchased by VW, modified or scrapped. Owners have until September of 2018 to apply. Elizabeth Cabraser, a San Francisco attorney who led negotiations for people suing the company, says the payments are substantial because VW admitted guilt. Her interview has been edited for length and clarity. Q: Consumers appeared to be better compensated here than in most class-action suits. How did you manage that? A: Consumer class actions sometimes get a bum rap, I think. This case was different. It's about cars. That's a major investment for people, particularly because they bought these cars for very specific reasons. Having a situation where VW was caught red- handed and forced to ultimately concede liability helped. But we had to make the case that there would be no environmental solution without active participation of the owners and leasees. The government couldn't and wouldn't go out and take people's cars, and if there was a fix, couldn't make people fix them. We had to incentivize people to come in and have their cars repaired or have their cars bought back. We couldn't make it work by paying people small dollars. Q: Earlier this year VW had problems taking back cars and making payments. Have those been cleared up? A: For the most part. No one has ever been through a buyback of this magnitude. VW spent a lot of time and money ramping up the program to have it ready. There's a limited infrastructure there, limited by the number of dealers. We did such a good job in the financial features of the settlement that everybody showed up early to get their buybacks. That put a tremendous stress on the system. In order to make this work for people, more resources had to be put into the system. Q: You're now lead counsel for people suing Fiat Chrysler over allegations of diesel truck emissions cheating. Will the settlements be smaller than with VW? A: The government has strong allegations, as do we. It's too early to project. The fact remains that emissions controls were evaded. (The company says it did not install software with the intent to cheat on tests and says it will defend itself in court) The number of vehicles is smaller. (104,000) That means this is a less- expensive problem to solve. If repairing the cars is less complicated, either from a software reflashing or a mechanical standpoint, that saves money. But also we still have the challenge of sufficiently incentivizing owners to have modifications made. Owners are not going to do that if they are concerned that the modifications are going to significantly affect the mileage or performance of these vehicles. [GN] VOLKSWAGEN AG: Diesel Emissions Case Lawyers Seek Addt'l Fees ------------------------------------------------------------- Law.com, citing Amanda Bronstad of The Recorder, reports that lawyers who sued Volkswagen over its diesel emissions scandal could end up with a pretty good return on their investment: After being awarded $175 million in fees and costs, they are asking for an additional $125 million -- and it appears there's a good chance they'll get it. That means a total of nearly $350 million in fees and costs could end up going to the 22 law firms leading the emissions litigation. The case lasted about a year, mostly in settlement negotiations. The fees already awarded were related to a $14.7 billion settlement that resolved class actions by consumers of 475,000 vehicles alleging their 2.0-liter diesel engines were rigged to cheat emissions tests. The latest request ties to a $1.2 billion settlement involving over 75,000 vehicles with 3.0-liter diesel engines. According to a June 30 motion for fees, Volkswagen agreed to the latest request, which includes $121 million in fees and $4 million in costs. "In the context of this historic settlement, class counsel's fee request is more than justified," wrote Elizabeth Cabraser of San Francisco's Lieff Cabraser Heimann & Bernstein, who leads the plaintiffs' steering committee. "So, too, are the requested costs, which are reasonable and were necessary to advance the litigation and settlement expeditiously." A Volkswagen spokeswoman declined to comment. Ms. Cabraser leads a team that includes prominent plaintiffs attorneys across the country, including those in New Jersey, New York, Florida, Texas and California. In a statement, the steering committee noted that the fees would be in addition to the estimated $1.22 billion paid to consumers. "We negotiated these agreements to hold Volkswagen accountable for its breach of consumer trust, and we hope that all class members choose to take advantage of the benefits detailed in these settlements," they said. Like the $14.7 billion deal, the latest settlement would provide cash compensation, buybacks, lease terminations and repairs to consumers. But the cash and repair options differ based on older or new model cars. If Volkswagen does not provide an adequate fix for the new models by Dec. 20, it has agreed to pay $4.04 billion. In May, U.S. District Judge Charles Breyer of the Northern District of California approved the deal, which also resolved claims brought by the Federal Trade Commission. In the fee request, Ms. Cabraser noted that the amount was less than 10 percent of the deal's value, far below the 25 percent benchmark established in the U.S. Court of Appeals for the Ninth Circuit. It's also well below that of other "super-mega-fund" settlements, which average between 13.7 percent and 14.5 percent, according to a declaration provided by William Rubenstein, a professor at Harvard Law School and an expert on class actions. Partners billed between $250 and $1,650 on the case, which took more than 130,000 hours, according to a declaration submitted by Cabraser. In addition to the Volkswagen settlements, the same team was awarded $52 million as part of a $327.5 million related deal with Robert Bosch GmbH, which supplied the software installed in the vehicles. Still, the fees aren't shoo-ins. In April, Judge Breyer denied 244 motions for fees brought by nearly 60 law firms not on the committee and slashed by 90 percent a $28.5 million request by one committee member, Steve Berman, managing partner of Seattle's Hagens Berman Sobol Shapiro, for work he did on a separate $1.2 billion settlement for Volkswagen franchise dealers. But there's more emissions litigation in the works. Ms. Cabraser was named lead counsel this month in similar emissions litigation brought against Fiat Chrysler AV. Most of the lawyers joining her in that case were also on the Volkswagen committee. VOLKSWAGEN GROUP: Suit Over Emissions Allowed to Proceed -------------------------------------------------------- The Superior Court of New Jersey, Appellate Division, issued a Decision affirming District Court's Order denying Defendant VW's Motion to Dismiss the cases captioned AVID L. FELIX and LUIS M. FELIX, Plaintiffs-Respondents, v. VOLKSWAGEN GROUP OF AMERICA, INC., Defendant-Appellant, and JACK DANIELS VOLKSWAGEN, Defendant. EDUARDO DEANG, Plaintiff-Respondent, v. VOLKSWAGEN GROUP OF AMERICA, INC., Defendant-Appellant, and JACK DANIELS VOLKSWAGEN, Defendant, Nos. A-0585-16T3, A-0586-16T3 (N.J. App. Div.). The App. Div. granted leave to appeal in these two cases and consolidated the appeals because they present a common question of law. Defendant Volkswagen Group of America, Inc. (VW), appeals from Judge Camille M. Kenny's order denying VW's motion to dismiss the complaint filed by plaintiffs David L. and Luis M. Felix and the Order denying its motion to dismiss the complaint of plaintiff Eduardo Deang. In both complaints, plaintiffs alleged VW misrepresented its vehicles' high performance capabilities while asserting each vehicle fully complied with federal emissions standards set by the Environmental Protection Agency (EPA). Both complaints included causes of action for common law fraud and violations of the Consumer Fraud Act (CFA), and the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (the MMWA), and breach of other implied warranties. VW moved to dismiss the complaints, arguing they were expressly or impliedly pre-empted by provisions of the Clean Air Act. VW cited 42 U.S.C.A. 7543(a), which provides in pertinent part that "No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part." The District Court concluded the CAA did not pre-empt plaintiffs' state law actions. Title II requires the EPA to test all new motor vehicles and engines and issue certificates of compliance, before a vehicle is introduced into commerce. The CAA provides a mechanism for the recall of engines when the EPA finds previously certified engines do not conform to emissions standards, prohibits any State or political subdivision from adopting or attempting to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. However, Title II also contains a savings clause which provides "nothing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles." VW argues Congress expressly pre-empted the field by prohibiting any State action to enforce a "standard relating to the control of emissions." 42 U.S.C.A. 7543(a). It argues the Supreme Court has recognized that "relating to," as used in other federal statutes, suggests "a broad pre-emptive purpose. VW contends that plaintiffs' complaints are, in reality, attempts to enforce EPA's emission standards, because to succeed, plaintiffs must prove VW's vehicles exceeded those standards. The App. Div. disagrees. In Cipollone, the Court explained that consideration of whether the plaintiff's state law claims were preempted by the Cigarette Labeling and Advertising Act (the Labeling Act), required examination of "the legal duty that is the predicate" of the particular claim and whether it falls within the scope of the pre- emption provision. The Court analyzed each claim in light of the Labeling Act's provision that expressly prohibited states from requiring a health warning to appear on all cigarette advertisements and containers Although the plurality found certain claims were pre-empted, the Court found two claims could go forward. First, the plaintiff's breach of express warranty claim was not pre-empted because "a manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty.The 'requirement[s]' imposed by an express warranty claim are not imposed under State law,' but rather imposed by the warrantor. However, in In re Caterpillar, Inc., the federal district court cited Cipollone and Wolens in interpreting the pre-emptive reach of Section 7543(a) of the CAA. There, the class action plaintiffs alleged their diesel engine vehicles with an emissions control system designed to comply with EPA standards were defective, causing the vehicles to experience repeated engine failures and shutdowns. Plaintiffs' claims which seek enforcement of express and implied warranties for defects in the Engines' emissions systems, as well as those based on consumer fraud and negligent design, are hardly comparable to efforts by state and local governments to adopt or enforce emissions standards or to require additional certifications or inspections prior to sale. In the cases her, plaintiffs do not seek to enforce an EPA emission standard or force the manufacturer to adopt a different emission standard. It may well be that plaintiffs will prove their vehicles failed to comply with EPA emission standards, something VW has publicly acknowledged, but the gravamen of plaintiffs' complaint centers on VW's alleged deceitful, fraudulent practices, and its alleged breach of a duty not to mislead consumers. The App. Div. concludes section 7543(a) does not expressly pre- empt plaintiffs' causes of action. The App. Div. also concludes that the CAA does not impliedly pre- empt plaintiffs' complaints. Implied pre-emption occurs either when "the scheme of federal regulation is 'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,'" or when "compliance with both federal and state regulations is a physical impossibility. The App. Div. agrees with the analysis of the Caterpillar court, i.e., that "the savings clause suggests that Congress did not intend to occupy the entire field of motor vehicle regulation. Instead, the [savings clause] explicitly contemplates continued state involvement in the regulation of motor vehicles. Furthermore, because plaintiffs' claims do not hinge on compliance with EPA standards, there can be no direct conflict with the federal regulatory scheme that requires compliance with those standards. A full-text copy of the NJ App. Div.'s July 17, 2017 Opinion is available at https://is.gd/nuEdL1 from Leagle.com. Judson O. Littleton -- littletonj@sullcrom.com -- (Sullivan & Cromwell, LLP) of the District of Columbia bar, admitted pro hac vice, argued the cause for appellant (Chase, Kurshan, Herzfeld & Rubin, P.C., and Mr. Littleton, attorneys; Jeffrey L. Chase -- Jchase@herzfeld-rubin.com -- on the briefs). Michael D. Power argued the cause for respondents (Power & Associates, PC, attorneys; Mr. Power, on the briefs: 1790 Wilmington Pike, Suite 200, Glen Mills, PA 19342 WELLS FARGO: Judge Grants Prelim Approval to $142MM Settlement -------------------------------------------------------------- On July 8, 2017 the federal court overseeing the first class action lawsuit filed against Wells Fargo related to unauthorized accounts granted preliminary approval to a $142 million settlement designed to compensate Wells Fargo customers nationwide. The court also appointed Keller Rohrback L.L.P. to represent the class of bank victims. The national consumer class action firm brought the case, captioned Jabbari, et. al. v. Wells Fargo & Company and Wells Fargo Bank, N.A., Case No. 3:15-cv-02159-VC, in the United States District Court for the Northern District of California in 2015. The Court found that "for the purpose of preliminary approval, the Court is satisfied that the revised settlement is fair, reasonable, and adequate within the meaning of Rule 23." The settlement compensates customers for fees charged on Wells Fargo unauthorized consumer or small business checking or savings accounts, unsecured credit cards, or unsecured lines of credit, compensates them for damage to their credit resulting from any unauthorized accounts, and provides additional compensation to all class members based on the number of unauthorized accounts opened in their names. "We are pleased that the court has preliminarily approved this groundbreaking settlement that provides substantial monetary benefits and first-of-its kind credit repair damage to customers. The settlement is an important component of holding Wells Fargo accountable for its abuse of its customers' trust," said Derek Loeser, a partner at Keller Rohrback L.L.P. and lead attorney for the plaintiffs. Now that the court has preliminarily approved the settlement, information will soon be sent to class members about the settlement benefits. Potential class members can also go to the settlement website, www.WFSettlement.com, or call (866) 431-8549 for more information. The court is scheduled to hold a final fairness hearing to decide whether to grant final approval on January 4, 2018. The class covered by the settlement consists of people for whom Wells Fargo opened a consumer or small business checking or savings account, an unsecured credit card, or an unsecured line of credit, or submitted an application for one of these, without the customer's consent during the period from May 1, 2002 through April 20, 2017. The class also consists of people who obtained Wells Fargo's Identity Theft Protection Services during the same time period. Plaintiffs are represented by: Derek W. Loeser, Esq. -- dloeser@KellerRohrback.com -- Gretchen Freeman Cappio, Esq. -- gcappio@KellerRohrback.com -- Daniel P. Mensher, Esq. -- dmensher@KellerRohrback.com -- Keller Rohrback L.L.P., in Seattle, WA; Matthew J. Preusch, Esq. -- mpreusch@KellerRohrback.com -- Keller Rohrback L.L.P., in Santa Barbara, CA; and Jeffrey Lewis, Esq. -- jlewis@KellerRohrback.com -- at Keller Rohrback L.L.P., in Oakland, CA. WENDY'S OF LAS VEGAS: Loses Bid to Strick Workers' Expert Witness ----------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order denying Defendants' Motion to Strike Expert's Declaration and for Sanctions in the case captioned LATONYA TYUS, an individual; DAVID HUNSICKER, an individual; LINDA DAVIS, an individual; TERRON SHARP, an individual; COLLINS KWAYISI, an individual; LEE JONES, an individual; RAISSA BURTON, an individual; JERMEY McKINNEY, an individual; and FLORENCE EDJEOU, an individual, all on behalf of themselves and all similarly situated individuals, Plaintiffs, v. WENDY'S OF LAS VEGAS, INC., an Ohio corporation; CEDAR ENTERPRISES, INC., an Ohio Corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 2:14-cv- 00729-GMN-VCF (D. Nev.). Defendants Wendy's of Las Vegas, Inc. and Cedar Enterprises, Inc.'s Renewed Motion to Strike Plaintiffs' Expert Declaration, Strike Plaintiffs' Purported Expert Witness, and for Sanctions. This case arises from a class action brought by Plaintiffs regarding Nevada's Minimum Wage Amendment ("MWA") to the Nevada Constitution. Nevada voters approved the MWA, which guaranteed to each Nevada employee a particular hourly wage. Plaintiffs were employees of Defendants, who are owners and operators of Wendy's Restaurants in southern Nevada. Plaintiffs allege that Defendants paid employees below the upper-tier hourly minimum wage leve in violation of the MWA. Defendants' Motion requests that this Court strike Plaintiffs' designation of Dr. Matthew T. Milone as an expert and the declaration of Dr. Milone, an expert witness, for two reasons: * First, Defendants assert that Plaintiffs' expert disclosure through a deficient and untimely declaration violates the Federal Rules of Civil Procedure and the Amended Scheduling Order. * Second, Defendants claim the Plaintiffs' expert declaration is improper and highly prejudicial because it sets "forth legal conclusions that are exclusively in the province of this Court. The parties present three issues to the Court: (1) Whether the Plaintiffs' designation of Milone as an expert and the Milone expert declaration were timely under Fed. R. Civ. P. 26(a)(2)(D) and the Amended Scheduling Order?; (2) Whether the Milone expert declaration met the substantive requirements under Fed. R. Civ. P. 26(a)(2)(B)?; and (3) Whether the Milone expert declaration invades the province of the Court by opining on ultimate issues of law? The Court finds that the Plaintiffs' expert designation and declaration were not untimely under the Amended Scheduling Order. The Court also finds that Plaintiffs' expert disclosure was substantially justified for two reasons. First, in light of the above, the "bifurcated discovery" between class certification and merits issues resulted in a limited record at the class certification stage. Indeed, Plaintiffs did not have the benefit of discovery into the merits of the case at this stage. The Court cannot say that Plaintiffs' designation and declaration of expert Milone in response to Defendants' dispositive motion on issues going to the merits was unreasonable. Second, Defendants' delay in bringing this motion is a factor the Court considers. Plaintiffs served supplemental disclosures in May 2016, which disclosed the "Plaintiffs' Merits and Liability-Phase Expert Report of Milone and that "Plaintiffs may use [it] to support their claims. Judge Navarro permitted the parties to re- file motions only after the Nevada Supreme Court answered Judge Navarro's certified question of law. The Court's review of the record shows that Defendants did not move to strike that designation or expert declaration until June 5, 2017. After reviewing the expert declaration, the Court does not agree that the declaration fails to include the above requirements. An expert's written report must meet the requirements of Fed. R. Civ. P 26(a)(2)(B)(i)-(vi). The language in the Milone expert declaration does state that "the opinions in this Declaration are my preliminary opinions and are subject to the opinions in my final report." The Court finds this reasonable in light of the bifurcated discovery issues discussed above and not necessarily an indicator that the Declaration does not include a "complete statement of all opinions to which the witness will express." At this stage in the case, Defendants' request to exclude Milone and his declaration on the ground that he opines on legal conclusions also appears premature. A full-text copy of the District Court's July 17, 2017, Order is available at https://is.gd/v5yt1r from Leagle.com Latonya Tyus, Plaintiff, represented by Bradley Scott Schrager -- bschrager@wrslawyers.com -- Wolf, Rifkin, Shapiro, Schulman & Rabkin. Latonya Tyus, Plaintiff, represented by Daniel Bravo -- dbravo@wrslawyers.com -- Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer -- dspringmeyer@wrslawyers.com -- Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. David Hunsicker, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. Terron Sharp, Plaintiff, Pro Se. Linda Davis, Plaintiff, Pro Se. Collins Kwayisi, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. Lee Jones, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. Raissa Burton, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. Jeremy McKinney, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. Florence Edjeou, Plaintiff, represented by Bradley Scott Schrager, Wolf, Rifkin, Shapiro, Schulman & Rabkin, Daniel Bravo, Wolf, Rifkin, Shapiro, Schulman, & Rabkin, LLP & Don Springmeyer, Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. Wendy's of Las Vegas, Inc., Defendant, represented by Kathryn Blakey -- kblakey@littler.com -- Littler Mendelson, Montgomery Y. Paek -- mpaek@littler.com -- Littler Mendelson, Rick D. Roskelley -- rroskelley@littler.com -- Littler Mendelson, PC & Roger L. Grandgenett -- rgrandgenett@littler.com --Littler Mendelson, PC. Cedar Enterprises, Inc., Defendant, represented by Kathryn Blakey, Littler Mendelson, Montgomery Y. Paek, Littler Mendelson, Rick D. Roskelley, Littler Mendelson, PC & Roger L. Grandgenett, Littler Mendelson, PC. WEST VIRGINIA: Judge Denies Prelim Approval of Proposed Settlement ------------------------------------------------------------------ Ken Ward, writing for Charleston Gazette, reports that a class- action legal settlement worth up to $151 million is a "strong result" that provides "substantial" benefits for victims of the Kanawha Valley's water crisis in 2014, but the deal needs more work and the lawyers who represent thousands of residents and businesses don't deserve to be paid quite as much as they think, according to a detailed review of the proposal by the federal judge who will decide if the settlement is finalized. U.S. District Judge John T. Copenhaver Jr. issued a 93-page order in which he declined to give preliminary approval to the settlement with West Virginia American Water Co. and Eastman Chemical. The case was brought over the impact of the "do not use" order that followed the Jan. 9, 2014, chemical spill at the Freedom Industries facility 1.5 miles upstream from the water company's Elk River regional intake and treatment plant. Copenhaver told the parties he would not approve them issuing a public notice to members of the plaintiff class or scheduling a hearing to consider potential objections to the settlement -- a requirement for final approval by the court -- until changes are made to language about tiered payments to various-sized businesses, the ability of victims to appeal denial of claims, fixed-base payments for medical claims and a schedule to hold off any payments until appeals are resolved. The judge also indicated he would reduce the payments to lawyers for residents and businesses by at least $5 million. The ruling came as a bit of a surprise given that the 220-page settlement document had been worked out by lawyers partly during a series of closed-door meetings the judge held between when the tentative settlement was reached on the eve of trial in October and when the document was filed in court in late April. It remains unclear how long the ruling will set back the process of businesses and residents receiving their share of the settlement, but residents won't be able to file claims until parts of the deal are rewritten to the judge's satisfaction. There's a chance the deal could fall apart, but lawyers in the case said they were confident that wasn't going to happen. Publicly, lawyers for all sides expressed optimism they could deal with the judge's concerns in fairly short order. Before he can give the settlement final approval, Copenhaver must conclude it is "fair, reasonable and adequate." Class members must also be given the opportunity to opt-out of the deal. Stuart Calwell, a lead lawyer for residents and businesses, said the parties will work to address the judge's concerns as quickly as possible. "In our view, those concerns, once met, will only strengthen the settlement and the ability of those impacted to receive fair compensation," Calwell said. Laura Martin, a spokeswoman for West Virginia American, said company officials "are evaluating the judge's order and anticipate responding to the court's concerns with further good faith settlement negotiation." Amanda Allman, a spokeswoman for Eastman, said her company's goal "continues to be completion of a resolution for the affected communities." "While the court's order means that there is additional work to be done, Eastman is pleased that the issues raised by the court appear to be capable of swift resolution," Allman said. In the case, lawyers for residents and businesses alleged West Virginia American did not adequately prepare for or respond to the spill, and Eastman, maker of the main chemical that spilled, did not properly warn Freedom of the dangers of its chemical or take any action when Eastman officials learned the Freedom facility was in disrepair. West Virginia American and Eastman continue to deny any liability and say the blame for the crisis rests with Freedom Industries, which admitted to criminal pollution violations related to the spill. Under the settlement, residents and businesses can obtain uniform settlement payments by filing claim forms, or they can potentially receive larger distributions by providing receipts or other proof of money spent for things like replacing hot water tanks or buying bottled water. The settlement also provides additional payments to women who were pregnant at the time of the spill, residents who had medical expenses and hourly wage earners who lost money when businesses closed during the water crisis. For example, residential households that choose the claim form will receive $525 for the first resident and $170 for each additional resident. Businesses, nonprofit organizations and government entities that choose the form can receive between $6,250 and $40,000, depending on their size, if they were forced to close or partly close during the crisis and whether they are hotels. "The anticipated sums represent substantial amounts that few claimants could expect to recoup through independent litigation that would likely engulf similar compensation amounts with high litigation costs and fees," Copenhaver said in his ruling, issued on July 6. The judge also noted the attorneys in the case had provided the public with other benefits, such as "a prophylactic against future water contamination" through their work to secure a separate deal before the state Public Service Commission that will "improve the water system generally" and provide better emergency response and improved detection of any contamination. The judge, though, outlined four concerns he has about the settlement: Tiered compensation -- The system was meant to help small local businesses that may have been disproportionately harmed by being closed during the "do not use" water order. But the judge said he believes calculating basic payments on the size of affected businesses "generates unfairness" to those businesses "whose revenues are in the upper margins of the various tiers." For example, he argues a business with earnings just less than $250,000 would receive a payment of $6,250, or 2.5 percent of its annual revenue, while a self-employed individual with annual revenue of $20,000 would receive the same $6,250, equal to 31 percent of his or her annual revenues. At the same time, a business earning less than $1 million would receive $12,500, or 1.25 percent of its annual revenue. Copenhaver said the system "appears to provide a windfall to certain businesses" and "calls into question the fairness of the proposal." Resolving disputes -- The judge wants the settlement to include an appeals body of some sort whose rulings would be binding on the settlement administrator. Currently, the rulings of a "claims oversight panel" -- made up of representatives of the plaintiffs and the defendants -- would be binding only if they were unanimous. Fixed payments for medical claims -- The judge said fixed amounts for certain medical issue claims, such as eye impairment and employment disability, were not appropriate because they didn't allow for "adjustment based on particular circumstances" of each victim. Delays in payment distribution -- Copenhaver said he is concerned the settlement currently would not allow payments to claimants to start until all appeals have been resolved and any further appeals period expired. Instead, the judge said, the settlement could sequester adequate funds to cover claims that are appealed and allow other claims to be processed and paid right away. In his order, the judge also praised the work of the lawyers representing residents and businesses, but he said he would likely not approve their request to receive 30 percent of the first $101 million of the settlement, saying the percentage was higher than was acceptable for a case where the settlement fund was so large. "While class counsel soundly built their case against both the water company and Eastman at considerable expenditure of skilled and determined effort, and some $2 million in out-of-pocket expenses, the ultimate risk of nonpayment was not so great as to merit an atypically high award," Copenhaver said. The judge noted, in particular, arguments developed by the plaintiffs' lawyers that West Virginia American should have had a second intake at the local plant and should have kept more water stored at the facility so it could shut the intake until the chemical spill flowed by. "Although class counsel have been skillful and diligent and have been resisted by equally formidable counsel for defendants, the complexity and duration of this case have not been so extraordinary as to justify the requested fee award," he said. The judge said the appropriate amount would be 25 percent of the $101 million, which would reduce that part of the legal fees from $30.3 million to $25.25 million. The lawyers would also receive 25 percent of whatever is eventually paid out of a second pot of $50 million in settlement money from West Virginia American Water. Copenhaver also commented that it was "quite troubling" that some lawyers could receive additional contingency fees if they help specific clients file more complicated individual review claim forms. "The additional fee of 15 percent for some, and the unlimited fee for most others, would send the total attorneys' fees in this case soaring well above the 25 percent figure preliminarily approved by the court," the judge wrote. "The parties must bring all attorney fees in this case under control." [GN] ZTO EXPRESS: Robbins Arroyo Files Securities Class Action --------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP announces that a class action complaint was filed against ZTO Express (Cayman) Inc. (NYSE: ZTO). The complaint is brought on behalf of all purchasers of ZTO American Depository Shares ("ADSs") pursuant to the company's public offering (the "Offering") on October 27, 2016, for alleged violations of the Securities Act of 1933 by ZTO's officers and directors. ZTO, through its subsidiaries, provides express delivery and other value-added logistics services in China. View this information on the law firm's Shareholder Rights Blog: www.robbinsarroyo.com/shareholders-rights-blog/zto-express-cayman- inc ZTO Accused of Exaggerating Its Profit Margins According to the complaint, on October 27, 2016, ZTO held the Offering, selling 72,100,000 ADSs at a price of $19.50 per share, raising $1.4 billion. ZTO's registration statement and prospectus filed with the U.S. Securities and Exchange Commission in support of the Offering presented a highly positive picture of the company's business, performance, prospects, and acreage, while omitting crucial realities. The company specifically emphasized its strong operating leverage, superior profitability, and rapid growth. However, ZTO failed to disclose that it was improperly inflating its stated profit margins far above industry norms by keeping low-margin segments of its business out of its financial statements. Since the Offering, the price of ZTO's ADSs has fallen approximately 25%. ZTO Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003 -- LKandinov@robbinsarroyo.com -- or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] ZURICH INSURANCE: Appeals Panel Sides Against Complainant --------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a state appeals panel has sided with several insurance companies facing class action complaints from a Chicago-based medical practice specializing in treating neck and back injuries as part of worker compensation claims, saying the clinic has no right under the law to demand insurers pay interest on slow-arriving reimbursements. In an opinion issued June 30, Illinois First District Appellate Court justices Mary K. Rochford, Thomas E. Hoffman and Mathias W. Delort said a Cook County judge was correct to dismiss the complaints of Marque Medicos, a practice that provides care to patients at several locations in Chicago and west suburban Aurora. According to published reports about the practice, Marque Medicos specializes in neck and back injuries, generally payable under workers compensation claims. The practice also was described in at least one report as catering particularly to Hispanic patients. The appellate panel was considering four actions consolidated from the courtroom of Cook County Circuit Judge Rita M. Novak. Defendants in the actions represented Zurich Insurance Company, Travelers Property Casualty Company of America, Hartford Underwriters Insurance Company and AIG Insurance Company. Marque Medicos filed its complaints in March 2015, saying the insurance companies failed to comply with Workers Compensation Act requirements by not paying interest on late payments. The insurers moved to dismiss the complaints for failure to state a claim. In addition, Travelers argued the circuit court did not have jurisdiction, but rather the argument was the domain of the Illinois Workers' Compensation Commission. On Feb. 19, 2016, Novak dismissed each of the four complaints with prejudice, finding Marque Medicos was not a third-party beneficiary of the policies, had no implied private right of action and was not entitled to remedies under the Insurance Code. Marque Medicos appealed March 15, 2016; the appeals were consolidated in May 2016. Rochford wrote the Commission was not authorized to resolve the common law and statutory claims in the complaints, rejecting Travelers' jurisdictional argument. However, the panel sided with the insurers in finding Marque Medicos to be, "at best, incidental and not direct beneficiaries" of the worker compensation policies. The law, the panel wrote, requires employers to be timely in compensating employees, but the provision does not extend to medical providers. "While providers might receive some benefit from the specific interest provision" in the worker compensation law, "that benefit is at most incidental and was provided solely in an effort to serve the legislature's primary goal of compensating employees completely and promptly." The practice also argued the insurers breached an implied contract, but Rochford said its complaints conceded the insurers' "purported consideration for any asserted implied-in-fact contracts was to be performed pursuant to preexisting legal duties," an arrangement that precludes the type of consideration essential for formation of a contract. Finally, the justices determined third parties such as Marque Medicos are not entitled to recovery under the Illinois Insurance Code, which negated its challenge of dismissal of a request for legal fees and statutory damages. Marque Medicos was represented in the action by the firm of Sperling & Slater PC, of Chicago. The insurers have been represented in the action by attorneys with the firms of Dentons US, DLA Piper and Winston & Strawn, according to Cook County court records. These complaints are unrelated to an Aug. 17, 2016, complaint a group of insurers, including Liberty Mutual, brought against Marque Medicos, in which the insurers accused the clinic of billing for procedures and therapy it didn't perform and billed at inflated rates under worker compensation claims. That case remains pending in Cook County court. [GN] * New Database Mulled as Part of CFPB's Final Arbitration Rule -------------------------------------------------------------- Law.com, citing C. Ryan Barber of The National Law Journal, reports that when the Consumer Financial Protection Bureau expanded its public database to include narratives of negative customer experiences, banks such as Wells Fargo and other industry players worried about being named and shamed. Now, a new public database could be going up online as part of the agency's newly finalized arbitration rule -- if the regulation survives anticipated challenges on Capitol Hill and in the courts. The CFPB's new rule, which calls for restricting arbitration agreements that block consumers from filing class actions, immediately drew criticism from the financial industry. The U.S. Chamber of Commerce has argued the rule would effectively shut down a "cheaper and faster" form of dispute resolution for consumers, as companies would no longer subsidize arbitration if they were still faced with the cost of defending against class actions. Perhaps because of that dim view of the future of arbitration, another portion of the CFPB rule has drawn less attention: A requirement that companies give the agency records about individual arbitrations -- including any awards -- that would still be allowed under the new regulation. The CFPB plans to publish those records, with "appropriate redactions," on its website, according to the 775-page final rule published on July 10. CFPB Director Richard Cordray said the publication of the records "will promote transparency and give consumers, providers and other regulators more insight into how arbitration works." Mr. Cordray said financial services providers will scrub the records of personal information and the CFPB would begin posting them online beginning in July 2019 -- a full 12 months after his five-year term is set to expire. Federal agency databases have come under threat in the Trump administration, and the CFPB's proposal would meet similar resistance. The U.S. Labor Department's Occupational Safety and Health Administration this year suspended an Obama-era rule that required companies to electronically report their injury and illness records so that they could be made available to the public. The U.S. Treasury Department under Secretary Steven Mnuchin has called for shutting down public access to the CFPB's consumer complaint database, arguing it lacks "appropriate safeguards." Instead, the agency suggested the database be made available only to state and federal agencies. In the rule that the CFPB published on July 10, the agency noted several industry commenters that said the publication of arbitration records would lead "plaintiff's attorneys to bring more frivolous litigation generally." The Kansas-based Heartland Credit Union Association argued the publication of collected arbitration records would "serve the litigators in formulating more class actions settlements." "In addition, a credit union's reputational risk is at stake," wrote Brad Douglas, president and CEO of the Heartland Credit Union Association. "Making this information public could negatively damage their reputation when not warranted." Other commenters shared that fear of reputational harm. Acknowledging that concern, the CFPB said it was requiring companies to submit answers as well as arbitral counterclaims "to balance out one-sided accounts and mitigate any perceived reputational risk." According to the CFPB's rule, another commenter expressed concern that companies "may face more scrutiny from the bureau than others" after losing in arbitration. In deciding to publicize the records, including awards issued in arbitration, the CFPB found support from Democratic state attorneys general and scholars who had advocated for making the information available online. Massachusetts Attorney General Maura Healey, along with her peers in 18 other states, encouraged the CFPB in an August 2016 letter to "publish this valuable information on its website, making it available to the public, so that both government enforcement agencies and consumers can analyze and benefit from the results." The CFPB also said the publication of the records would help academic researchers with their analyses of arbitration. "In contrast to commenters that viewed the possibility of increased scrutiny by regulators or plaintiff's attorneys as a negative outcome from the monitoring rule, the bureau believes that the increased transparency will tend to increase consumers' ability to seek redress for legal violations, providers' incentives for compliance and general public confidence in the orderly operation of the markets," the CFPB said. * CFPB in Dispute with OCC Over Arbitration Rule ------------------------------------------------ Law.com, citing C. Ryan Barber of The National Law Journal, reports that the skirmish between the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency intensified over the consumer agency's push to restrain the scope of forced arbitration, Reuters reports. "There is no basis for claiming that the arbitration rule puts the federal banking system at risk," CFPD Director Richard Cordray wrote in a letter to Keith Noreika, the acting head of the OCC. The CFPB's move forward on a rule to restrict banks and financial institutions from curtailing the power of class actions will test the resolve of Republicans in Congress and the Trump administration to fight over the merits of the rule. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Joseph Cardillo at 856-381- 8268. * * * End of Transmission * * *