/raid1/www/Hosts/bankrupt/CAR_Public/170731.mbx
C L A S S A C T I O N R E P O R T E R
Monday, July 31, 2017, Vol. 19, No. 149
Headlines
A & M DISCOUNT: Faces "Castro" Suit in E.D. New York
ACTON CORPORATION: Faces "Bocage" Suit in N.D. Alabama
ADVISAR LLC: "Klein" Sues Over Unpaid Overtime Wages
AEGERION PHARMACEUTICALS: Nov. 30 Settlement Approval Hearing Set
ALBANY MOLECULAR: Faces "Frodyma" Suit in Delaware Federal Court
ALBANY MOLECULAR: October 12 Settlement Fairness Hearing
ALLERGAN INC: September 11 Class Action Opt-Out Deadline Set
ANGELS CARE: "Augustin" Action Claims Unpaid Overtime Wages
BROOKLYN EVENT: Faces "Brooks" Suit in Eastern Dist. of New York
CARSON SMITHFIELD: Faces "Stabile" Suit in E.D. New York
CATALINA HOTEL: "Gramazio" Suit Moved to S.D. Florida
CBL & ASSOCIATES: Faces "Badger" Suit in Penn. Over ADA Breach
COACHELLA, CA: CVWD Settles Customers' Class Action for $2MM
DEARBORN COUNTY, IN: Faces "Harkins" Suit in S.D. Indiana
DEUTSCHE LUFTHANSA: Shabotinsky Moves for Class Certification
DG SMITH: Faces "Prasad" Suit in California Superior Court
DGT ALLIANCE: "Suarez" Suit Seeks OT & Minimum Wages under FLSA
DRYSHIPS INC: September 12 Lead Plaintiff Motion Deadline Set
DRYSHIPS INC: Seven More Firms File Securities Class Actions
DUNKIN' BRANDS: Donuts Don't Have Blueberry or Maple, Suit Says
ENHANCED RECOVERY: Faces "Witt" Suit in E.D. New York
ENHANCED RECOVERY: Faces "Texeira" Suit in S.D. New York
EQUINOX COLLECTION: Illegally Collects Debt, "Hargis" Suit Claims
ESTES EXPRESS: Faces "McIntosh" Suit in Middle Dist. of Florida
EXPRESS SCRIPTS: "Harrod" Suit Moved to Middle Dist. of Florida
EYM PIZZA: Underpays Workers, "Johnson" Class Suit Says
FCA US: Raymo et al. Sue over Defective SCR System in Ram Trucks
FELCOR LODGING: Rigrodsky & Long Files Securities Class Action
FIRST ADVANTAGE: "Grimm" Suit Moved to Maryland Federal Court
FLETCHER THOMPSON: Fails to Pay for Project, M-E Engineers Says
FORD MOTOR: October 2 Powershift Settlement Hearing Set
FORSTER & GARBUS: Faces "Russell" Suit in E.D. New York
FRONTLINE ASSET: Sued Over Unlawful Debt Collection Practices
GATHERAPP INC: "Williams" Class Suit Removed to W.D. Missouri
GC SERVICES LTD: "Cahill" Sues Over Auto-dialed Collection Calls
GOLD RING: Underpays Cashiers, "Massari" Class Suit Says
GOLF MART: "Arivett" Class Suit Removed to C.D. California
HALLIBURTON CO: "Leblanc" Suit Alleges Misclassification
HENKEL AG: Faces "Sacchi" Suit in New Jersey Federal Court
HITACHI MAXELL: Nov. 29 Settlement Claims Filing Deadline
HOOPER'S CRAB: Knox Seeks Unpaid Minimum Wages, OT under FLSA
HOME HEALTH: "Yusupova" Suit Seeks Unpaid Wages under Labor Law
JACKSONVILLE, FL: Faces "Chapman" Suit in Fla. Over ADA Violation
JOE FRESH: Judge Tosses $2-Bil. Rana Plaza Collapse Class Action
JPMORGAN CHASE: Faces "Thew" Suit in Central Dist. of California
LA REINA A: Underpays Workers, "Schafler" Suit Says
LEMONIA RESTAURANT: Ananiadis Seeks Minimum Wages, OT under FLSA
MEARS DESTINATION: "Rodriguez" Suit Alleges Misclassification
MIDLAND CREDIT: Faces "Knight" Suit Over Illegal Debt Collection
MIDLAND CREDIT: Illegally Collects Debt, "Villomil" Suit Claims
MILLER BERNSTEIN: Buckingham Securities Clients Win Class Action
MINNESOTA ISD 625: Faces "Kaw" Class Suit
MIRACLE MILE: Faces "Guerrero" Suit in Eastern Dist. of New York
MOVE CONSULTANTS: Diener Seeks Back Wages and Overtime under FLSA
NATIONAL MILK: Andrews Appeals "Edwards" Suit Ruling to 9th Cir.
NATIONAL MILK: Erwin Appeals Ruling in "Edwards" Suit to 9th Cir.
NATIONWIDE CREDIT: Faces "Witt" Suit in Eastern Dist. of New York
NEW YORK, USA: Second Circuit Appeal Filed in "Lackwood" Suit
NEW YORK PHYSICIANS: Kiler Sues over Internet Access Barriers
NORTHLAND GROUP: Faces "Meisels" Suit in E.D. New York
NOVARTIS PHARMACEUTICALS: Direct Purchasers Appeal Case Dismissal
OCB BANCORP: "Parshall" Suit Balks at Sierra Bancorp Merger
OHIO STATE: Matt Finkes Joins Antitrust Class Action
PEOPLE AGAINST DIRTY: Hammack Appeals Ruling in "Vincent" Suit
PHOENIX FINANCIAL: "Koch" Suit Sues over Unsolicited Phone Calls
PJJK RESTAURANT: Faces "Placido" Suit Over Failure to Pay OT
PLATINUM HOME: Faces "Lawrence" Suit in Northern Dist. of Ohio
PROCTER & GAMBLE: DACA Intern Files Discrimination Class Action
R&L CARRIERS: Faces Class Action Over Unpaid Overtime Wages
ROCA CAFE: "Sierra" Suit Moved to Southern District of Florida
SAN DIEGO, CA: Faces "Arundel" Suit in S.D. California
SANTANDER CONSUMER: Faces "Ponce" Suit in Middle Dist. of Florida
SIGNET JEWELERS: CEO Retires Amid Gender Discrimination Case
SIMONMED IMAGING: "Ader" Action Seeks Overtime Pay
SKM RECYCLING: More Than 70 Residents Join Fire Class Action
SO. CAL PETROLEUM: Underpays Workers, "Rosales" Suit Says
SORRELLI TRUCKING: "Kanan" Suit Moved to N.D. Illinois
SOUTHERN GLAZER'S: Sales Scheme Illegal, "Nguyen" Suit Says
SPEEDPAY INC: Eleventh Circuit Appeal Filed in "Pincus" Suit
STRATEGIC HOTELS: "White" Suit Sues over Credit Card Fraud
STRATICON LLC: "Plamondon" Suit Moved to S.D. Florida
SUN PHARMACEUTICAL: ArCare Suit Moved to District of New Jersey
SUNRISE CREDIT: Accused of Wrongful Conduct Over Debt Collection
T&R MARKET: Faces "DeJolie" Class Suit in New Mexico
TELE PAY: Faces Minimum Wage Class Action in California
TEVA PHARMA: S Horowitz Attorney Discusses Class Action Ruling
TOP GUARD: "Guerrero" Suit Seeks Unpaid Overtime Wages under FLSA
TOYOTA FINANCIAL: Can Arbitrate 2015 Class Action, Judge Rules
TRANSDEV SERVICES: "Scott" Suit Moved to N.D. California
TRANSWORLD SYSTEMS: Placeholder Bid for Class Certification Filed
TWO RIVERS: Winnebago Board May Pursue Class Action
U.S. EQUITIES: Faces "Yentzer" Suit in Southern Dist. of New York
VEIN CENTERS: Judge Decertifies TCPA Class Action
VISITING NURSE: "Brown" Suit Seeks Unpaid Wages under Labor Law
VIVINT SOLAR: Faces "Del Llano" Suit in S.D. California
WAL-MART STORES: Faces "Hamilton" Suit in C.D. California
WEB.COM GROUP: Faces "Lira" Suit in Central. Dist. of California
WELLS FARGO: Settles Trainee Class Action for $3.5 Million
WEST CORP: Rigrodsky & Long Files Securities Class Action
WHOLE FOODS: Investors File Securities Class Action
XOLLE DEMO: "Zapeta" Suit Seeks Overtime Wages under FLSA
* Akerman Attorney Discusses DOJ's Stance on Class Action Waivers
* CFPB's New Arbitration Rule Draws Immediate Criticism
* Congress Expected to Override CFPB's New Arbitration Rule
* Federal Class Action Securities Fraud Filings Hit Record Pace
* Republicans Take Steps to Kill CFPB's New Arbitration Rule
* Recent Court Rulings Muddy Waters on Class "Ascertainability"
* Skadden Arps Slate Discusses Class Certification Rulings
* Trump-Appointed Regulator Seeks to Halt CFPB Arbitration Rule
*********
A & M DISCOUNT: Faces "Castro" Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against A & M Discount
Furniture Inc. The case is captioned as Ernesto Castro,
individually and on behalf of others similarly situated, the
Plaintiff, v. A & M Discount Furniture Inc., as assignee of d/b/a
A & M Discount Furniture; A & M Discount Furniture II Inc., as
assignee of d/b/a A & M Discount Furniture; and Avraham Alharar,
the Defendants, Case No. 2:17-cv-04226 (E.D.N.Y., July 17, 2017).
A&M Discount is a furniture store located in Rosedale, New
York.[BN]
The Plaintiff appears pro se.
ACTON CORPORATION: Faces "Bocage" Suit in N.D. Alabama
------------------------------------------------------
A class action lawsuit has been filed against Acton Corporation.
The case is captioned as Jordan Bocage, Sheila Garrett, and Joel
Kelly, individually, on behalf of themselves, and on behalf of a
class of similarly situated individuals, the Plaintiffs. v.
Acton Corporation, an Alabama Corp.; IM Records Inc., a
Massachusetts Corp.; Pro Impact Physical Therapy & Sports
Performance LLC, an Alabama Limited Liability Company; and Med-
South Inc., an Alabama Corp., the Defendants, Case No. 2:17-cv-
01201-JHE (N.D. Ala., July 18, 2017). The case is assigned to the
Hon. Magistrate Judge John H England, III.[BN]
The Plaintiffs are represented by:
Cameron L Hogan, Esq.
LLOYD & HOGAN PC
2871 Acton Road, Suite 201
Birmingham, AL 35243
Telephone: (205) 969 6235
Facsimile: (205) 969 6239
E-mail: clhogan@lloydhoganlaw.com
- and -
Diandra S Debrosse-Zimmermann, Esq.
ZARZAUR MUJUMDAR & DEBROSSE
2332 2nd Avenue North
Birmingham, AL 35203
Telephone: (205) 983 7985
E-mail: fuli@zarzaur.com
ADVISAR LLC: "Klein" Sues Over Unpaid Overtime Wages
----------------------------------------------------
Sherree Klein, individually and on behalf of all others similarly
situated Plaintiff, v. Advisar LLC, Defendant, Case No. 8:17-cv-
01504, (M.D. Fla., June 23, 2017), seeks to recover overtime
compensation, liquidated damages, attorneys' fees, and costs,
pursuant to the provisions of Section 216(b) of the Fair Labor
Standards Act of 1938.
Defendants manufactures residential doors in Tampa, Florida. Klein
worked for the Advisar as a business development specialist. [BN]
Plaintiff is represented by:
Christopher J. Saba, Esq.
WENZEL FENTON CABASSA, PA
1110 N Florida Ave., Ste. 300
Tampa, FL 33602-3343
Tel: (813) 224-0431
Fax: (813) 229-8712
Email: csaba@wfclaw.com
AEGERION PHARMACEUTICALS: Nov. 30 Settlement Approval Hearing Set
-----------------------------------------------------------------
The following statement is being issued by Robbins Geller Rudman &
Dowd LLP and Motley Rice LLC regarding the Aegerion Securities
Litigation:
If you bought Aegerion Pharmaceuticals, Inc. stock between April
30, 2013 and May 11, 2016, you could get a payment from a class
action settlement.
A settlement has been proposed in a class action lawsuit captioned
KBC Asset Management NV, et al., v. Aegerion Pharmaceuticals,
Inc., et al., No. 14-cv-10105-MLW, concerning the price of
Aegerion Pharmaceuticals, Inc. stock. The settlement will provide
$22.25 million to pay claims from Aegerion investors who bought or
acquired the company's stock from April 30, 2013, through and
including May 11, 2016. If you qualify, you may send in a claim
form to get benefits, or you can exclude yourself from the
settlement, or you can object to it.
A hearing will be held on November 30, 2017, at 2:00 p.m. ET,
before the Honorable Mark L. Wolf, at the John Joseph Moakley U.S.
Courthouse, 1 Courthouse Way, Boston, MA 02210, to consider
whether to approve the settlement and a request by the lawyers
representing all Class Members for an award of attorneys' fees of
25% of the $22.25 million settlement amount, plus expenses not to
exceed $250,000, and a request by each of the Lead Plaintiffs for
reimbursement of their time and expenses in representing the Class
in an amount not to exceed $17,500 in the aggregate.
If you purchased or acquired Aegerion publicly traded common stock
between April 30, 2013 and May 11, 2016, inclusive, your rights
may be affected by this Litigation and the settlement thereof. If
you have not received a detailed Notice of Proposed Settlement of
Class Action and a copy of the Proof of Claim and Release form,
you may obtain copies by writing to Aegerion Securities
Litigation, Claims Administrator, c/o Gilardi & Co. LLC, P.O. Box
30253, College Station, TX 77842-3253 or by downloading this
information at www.aegerionsecuritieslitigation.com. You may also
review the Stipulation of Settlement and all other settlement-
related documents at www.aegerionsecuritieslitigation.com, or you
may contact the Claims Administrator at 1-844-319-2120 for further
information regarding the Settlement. You may also contact
representatives of counsel for the Class: Rick Nelson, Shareholder
Relations, Robbins Geller Rudman & Dowd LLP, 655 West Broadway,
Suite 1900, San Diego, CA 92101, 1-800-449-4900, or Gregg S.
Levin, Christopher F. Moriarty, Motley Rice LLC, 28 Bridgeside
Blvd., Mt. Pleasant, SC 29464, 1-843-216-9000.
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 online at www.aegerionsecuritieslitigation.com by November
17, 2017, or postmarked no later than November 17, 2017,
establishing that you are entitled to a recovery. You will be
bound by any judgment rendered in the Litigation unless you
request to be excluded, in writing, to Aegerion Securities
Litigation, Claims Administrator, EXCLUSIONS, c/o Gilardi & Co.
LLC, 3301 Kerner Blvd., San Rafael, CA 94901, postmarked by
October 31, 2017.
Any objection to any aspect of the settlement must be filed with
the Clerk of the Court on or before October 31, 2017, and also
delivered by hand or first-class mail to:
ROBBINS GELLER RUDMAN & DOWD LLP
ELLEN GUSIKOFF STEWART
655 West Broadway, Suite 1900
San Diego, CA 92101
1-800-449-4900
ROPES & GRAY LLP
RANDALL W. BODNER
Prudential Tower
800 Boylston Street
Boston, MA 02199-3600
1-617-951-7000
The Court has retained the discretion to alter any of the
deadlines or requirements outlined above for good cause shown.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
DATED: June 29, 2017
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALBANY MOLECULAR: Faces "Frodyma" Suit in Delaware Federal Court
----------------------------------------------------------------
A class action lawsuit has been filed against Albany Molecular
Research, Inc. The case is styled as Stanley Frodyma,
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, Kevin
O'Connor, The Carlyle Group, GTCR LLC, UIC Parent Corporation, and
UIC Merger Sub, Inc., the Defendants, Case No. 1:17-cv-00971-UNA
(D. Del., July 17, 2017).
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 Pkwy, Suite 120
Wilmington, DE 19803
Telephone: (302) 295 5310
Facsimile: (302) 654 7530
E-mail: bdl@rl-legal.com
gms@rl-legal.com
ALBANY MOLECULAR: October 12 Settlement Fairness Hearing
--------------------------------------------------------
The Rosen Law Firm, P.A., on July 17 disclosed that the United
States District Court for the Eastern District of New York has
approved the following announcement of a proposed class action
settlement that would benefit purchasers of common stock of Albany
Molecular Research, Inc. (NASDAQ:AMRI):
SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION
AND FAIRNESS HEARING
TO: ALL PURCHASERS OF COMMON STOCK OF ALBANY MOLECULAR RESEARCH,
INC. ("AMRI") DURING THE PERIOD FROM AUGUST 5, 2014 THROUGH
NOVEMBER 5, 2014, INCLUSIVE.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Eastern District of New York, that a
hearing will be held before the Honorable Frederic Block, United
States District Judge, on October 12, 2017 at 12:00 p.m. in
Courtroom 1040 of the U.S. District Court for the Eastern District
of New York, 225 Cadman Plaza East, Brooklyn, New York 11201, for
the purpose of determining, among other things, (i) whether the
proposed Settlement of this Action for $2,868,000 is fair,
reasonable, and adequate and should be approved; (ii) whether this
Action should be dismissed with prejudice as against the
Defendants as set forth in the Amended Stipulation of Settlement
dated as of June 23, 2017; (iii) whether the Plan of Allocation of
the Net Settlement Fund is fair and reasonable and should be
approved; and (iv) the reasonableness of an application of Lead
Counsel for the payment of attorneys' fees and expenses, incurred
in connection with this Action. Lead Counsel intends to seek
attorneys' fees and reimbursement of expenses not to exceed
$956,000 (33 1/3% of the Settlement Amount) and awards to Lead
Plaintiffs of no greater than $12,000 ($6,000 each).
The Court has reserved the right to reschedule the hearing from
time to time without further notice.
If, between August 5, 2014 and November 5, 2014, inclusive, (the
"Settlement Class Period") you purchased AMRI common stock, your
rights may be affected by this Action and the settlement thereof.
If you have not received the detailed Notice of Pendency and
Proposed Settlement of Class Action and Fairness Hearing (the
"Notice") and Proof of Claim and Release form, you may obtain them
free of charge at www.strategicclaims.net; by sending an e-mail to
info@strategicclaims.net; by calling the Claims Administrator
toll-free at 866-274-4004; or by writing to the Claims
Administrator at: Albany Molecular Research, Inc. Litigation, c/o
Strategic Claims Services, P.O. Box 230, 600 N. Jackson St., Ste.
3, Media, PA 19063. You may also contact Lead Counsel directly:
Laurence Rosen, Esq. or Phillip Kim, Esq., The Rosen Firm, P.A.,
275 Madison Avenue, 34th Floor, New York, New York 10016, (212)
686-1060.
If you are a member of the Settlement Class and wish to share in
the Settlement money, you must submit a Proof of Claim and Release
form postmarked no later than September 21, 2017 to the Claims
Administrator establishing that you are entitled to recovery. As
further described in the Notice, you will be bound by any judgment
entered in the Action, regardless of whether you submit a Proof of
Claim and Release form, unless you exclude yourself from the
Settlement Class, in accordance with the procedures set forth in
the Notice, postmarked no later than September 21, 2017 to the
Claims Administrator. Any objections to the Settlement, Plan of
Allocation or attorneys' fees and expenses must be filed and
served, in accordance with the procedures set forth in the Notice,
received no later than September 21, 2017 to each of the
following:
Clerk of the Court
U.S. District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Lead Counsel
Deborah S. Birnbach, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Counsel for Defendants
If you have any questions about the Settlement, you may call or
write to Lead Counsel:
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, New York 10016
Tel.: 212-686-1060
Fax: 212-202-3827
PLEASE DO NOT CONTACT THE COURT OR
THE CLERK'S OFFICE ABOUT THIS NOTICE.
Dated: June 23, 2017
BY ORDER OF THE U.S. DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
[GN]
ALLERGAN INC: September 11 Class Action Opt-Out Deadline Set
------------------------------------------------------------
The following statement is being issued by Bernstein Litowitz
Berger & Grossmann LLP and Kessler Topaz Meltzer & Check, LLP.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
IN RE ALLERGAN, INC. PROXY VIOLATION SECURITIES LITIGATION
Case No. 8:14-cv-2004-DOC (KES)
CLASS ACTION
Honorable David O. Carter
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
To: (I) All persons who sold Allergan, Inc. ("Allergan") common
postmarked no later than September 11, 2017, in accordance with
stock during the period February 25, 2014 through April 21, 2014,
inclusive (the "Class Period") and were damaged thereby ("Class
Members"); and
(II) All persons who traded price-interdependent derivative
securities of Allergan ("Non-Class Member Derivative Investors").
I. To Class Members:
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 Central District of California, Southern Division,
that the above-captioned action (the "Action") has been certified
to proceed as a class action on behalf of the Class as defined in
Roman Numeral (I), above. Please Note: At this time, there is no
judgment, settlement or monetary recovery. Trial in this Action
is currently scheduled for January 30, 2018.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THIS ACTION. A full printed Notice of Pendency of Class Action
(the "Notice") is currently being mailed to known potential Class
Members. If you have not yet received the full printed Notice,
you may obtain a copy of the Notice by contacting the
Administrator:
Allergan Proxy Violation Securities Litigation
c/o GCG
P.O. Box 10436
Dublin, OH 43017-4036
(855) 474-3851
www.AllerganProxyViolationSecuritiesLitigation.com
Inquiries, other than requests for the Notice, may be made to the
following representative Class Counsel:
Jeremy P. Robinson
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
(800) 380-8496
(212) 554-1400
Lee Rudy
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
(888) 299-7706
(610) 667-7706
If you are a Class Member, you have the right to decide whether to
remain a member of the Class. If you want to remain a member of
the Class, you do not need to do anything at this time other than
to retain your documentation reflecting your transactions and
holdings in Allergan common stock. If you are a Class Member and
do not exclude yourself from the Class, you will be bound by the
proceedings in this Action, including all past, present, and
future orders and judgments of the Court, whether favorable or
unfavorable. If you move, or if the Notice was mailed to an old
or incorrect address, please send the Administrator written
notification of your new address.
If you ask to be excluded from the Class, you will not be bound by
any order or judgment of this Court in this Action, and you will
not be eligible to receive a share of any money which might be
recovered for the benefit of the Class. To exclude yourself from
the Class, you must submit a written request for exclusion
postmarked no later than September 11, 2017, in accordance with
the instructions set forth in the full printed Notice. Pursuant
to Rule 23(e)(4) of the Federal Rules of Civil Procedure, it is
within the Court's discretion as to whether a second opportunity
to request exclusion from the Class will be allowed if there is a
settlement or judgment in the Action.
II. To Non-Class Member Derivative Investors:
The Action to which this notice refers is brought only on behalf
of investors who sold Allergan COMMON STOCK during the Class
Period and were damaged thereby. IF YOU TRADED PRICE-
INTERDEPENDENT DERIVATIVE SECURITIES OF ALLERGAN (I.E., DERIVATIVE
SECURITIES WITH A VALUE THAT IS A FUNCTION OF OR RELATED TO THE
VALUE OF ALLERGAN COMMON STOCK) ("ALLERGAN DERIVATIVE
SECURITIES"), YOUR TRANSACTIONS IN THOSE SECURITIES ARE NOT
COVERED BY THE ACTION. THE COURT HAS NOT DETERMINED, AND THIS
NOTICE DOES NOT EXPRESS ANY OPINION AS TO, WHETHER TRADING IN
ALLERGAN DERIVATIVE SECURITIES GIVES RISE TO ANY CLAIMS. BUT
BECAUSE DEFENDANTS' LIABILITY FOR DAMAGES IS LIKELY CAPPED AT
THEIR GAINS OR LOSSES AVOIDED FROM THE SECURITIES LAW VIOLATIONS
ALLEGED IN THIS ACTION, IT IS POSSIBLE THAT PLAINTIFFS WILL
RECOVER THE ENTIRETY OF THE DAMAGES POOL AVAILABLE TO PERSONS
ALLEGEDLY HARMED BY THE DEFENDANTS' CONDUCT. IF SO, IT IS
POSSIBLE THAT THERE WILL BE NOTHING LEFT FOR OTHERS TO RECOVER
FROM DEFENDANTS on any similar claims AGAINST DEFENDANTS that they
may have AND THOSE CLAIMS MAY BE EFFECTIVELY PRECLUDED. If you
engaged in transactions in Allergan Derivative Securities and wish
to determine whether you have a cause of action with respect to
those transactions, you should consult with your own attorney as
soon as possible.
Further information regarding this notice may be obtained by
directing your inquiry in writing to the Administrator at the
address provided above.
PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE.
BY ORDER OF THE COURT:
United States District Court
For the Central District of California
Southern Division
ANGELS CARE: "Augustin" Action Claims Unpaid Overtime Wages
-----------------------------------------------------------
Michelle Augustin, Mikette Brutus and Jean Letang, on behalf of
all those similarly situated, Plaintiffs, v. Angels Care Home
Health Inc., a Florida corporation, Defendant, Case No. 1:17-cv-
22401 (S.D. Fla., June 27, 2017), seeks unpaid overtime wages,
unpaid minimum wages, liquidated damage and reasonable attorney's
fee and costs under the Fair Labor Standards Act.
Defendants operate a nursing care center where plaintiffs worked
as nurses. [BN]
Plaintiff is represented by:
Brian Militzok, Esq.
MILITZOK LAW, P.A.
Wells Fargo Building
4600 Sheridan Street, Suite 402
Hollywood, FL 33021
Tel: (954) 780-8228
Fax: (954) 719-4016
Email: bjm@militzoklaw.com
BROOKLYN EVENT: Faces "Brooks" Suit in Eastern Dist. of New York
----------------------------------------------------------------
A class action lawsuit has been filed against Brooklyn Events
Center. The case is captioned as Lloyd Brooks, on behalf of
himself and others similarly situated, the Plaintiff, v. Brooklyn
Events Center, LLC, d/b/a Barclays Center; Brooklyn Sports &
Entertainment; Anschutz Entertainment Group, Inc.; and AEG
Management Brooklyn, LLC, the Defendants, Case No. 1:17-cv-04186
(E.D.N.Y., July 14, 2017).
Brooklyn Events Center constructs, manages, and operates real
estate building. The company is based in New York. Brooklyn Events
Center LLC operates as a subsidiary of Brooklyn Arena Holding
Company LLC.[BN]
The Plaintiff appears pro se.
CARSON SMITHFIELD: Faces "Stabile" Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Carson Smithfield,
LLC. The case is styled as Anthony J. Stabile, individually and on
behalf of all others similarly situated, the Plaintiff, v. Carson
Smithfield, LLC, the Defendant, Case No. 2:17-cv-04205 (E.D.N.Y.,
July 14, 2017).
Carson Smithfield offers to settle on cardholder's charge-off
credit cards and unpaid balances.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
SANDERS LAW, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (516) 203 7600
Facsimile: (516) 281 7601
E-mail: csanders@sanderslawpllc.com
CATALINA HOTEL: "Gramazio" Suit Moved to S.D. Florida
-----------------------------------------------------
The class action lawsuit titled Mitchell Gramazio and Ana Horvat,
on behalf of themselves and similarly situated employees, the
Plaintiffs, v. Catalina Hotel, LLC, the Defendant, Case No. 17-
015267 CA 01, was removed on July 18, 2017 from the 11th Judicial
Circuit in and for Miami-Dade County, to the U.S. District Court
for the Southern District of Florida (Miami). The District Court
Clerk assigned Case No. 1:17-cv-22682-RNS to the proceeding. The
case is assigned to the Hon. Judge Robert N. Scola, Jr.
Catalina Hotel is a European set vibe and a beach club offering
two restaurants, two pools, four bars, a rooftop terrace, a
Japanese Koi fishpond and Zen.[BN]
The Plaintiffs are represented by:
Scott M. Behren, Esq.
BEHREN LAW FIRM
2893 Executive Park Drive, Suite 110
Weston, FL 33331
Telephone: (954) 636 3802
Facsimile: (772) 252 3365
E-mail: scott@behrenlaw.com
The Defendant is represented by:
Candace Diane Cronan, Esq.
Joshua Michael Entin, Esq.
ENTIN & DELLA FERA, P.A.
633 S. Andrews Avenue, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 761 7201
Facsimile: (954) 764 2443
E-mail: candace@entinlaw.com
joshentin@comcast.net
CBL & ASSOCIATES: Faces "Badger" Suit in Penn. Over ADA Breach
--------------------------------------------------------------
Josie Badger and Kit Borden, individually and on behalf of all
others similarly situated v. CBL & Associates Properties, Inc.,
Case No. 2:17-cv-00931-AJS (W.D. Penn., July 14, 2017), is brought
against the Defendants for violation of the Americans with
Disabilities Act.
CBL & Associates Properties, Inc. operates a real estate
investment in Chattanooga, Tennessee. [BN]
The Plaintiff is represented by:
Benjamin J. Sweet, Esq.
CARLSON LYNCH SWEET & KILPELA, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: bsweet@carlsonlynch.com
COACHELLA, CA: CVWD Settles Customers' Class Action for $2MM
------------------------------------------------------------
Patrick Edgell and Katie Widner, writing for KESQ, report that the
Coachella Valley Water District recently settled a $2 million
lawsuit, which means some customers could be seeing a refund in
the form of a credit.
"I'm all on the class action suit. Now, I don't usually get
involved in this type of thing but I have to tell you, it's just
not fair," Palm Desert resident Christina De Musee told KESQ News
Channel 3's and CBS Local 2's Katie Widner.
CVWD customers will be receiving a legal notice in the mail
notifying them that a settlement has been reached in a lawsuit
that challenged the district's former rates.
"Clearly, we're thrilled. I mean, when your bill goes up 200
percent and then you hear that the basis for which those were
raised was perhaps faulty, we're happy to put some money back in
our pockets to spend on other things I suppose," said
Steven Hecht, who has been a customer for at least eight years.
Back in 2009, CVWD was one of the first agencies that adopted a
budget based tiered-rate system, essentially giving every customer
an individual water budget based on how many people are in the
home, how hot it is and how large their landscaping is.
A representative for the district said that it had been a public
and transparent process, and that the district followed legal
advice at the time.
"Over the years, as more agencies have adopted tiered rates, there
have been other legal challenges and through them, the courts have
narrowed and defined what are legal tiered rates," said Heather
Engel, the director of communication and conservation.
Last year, the district adopted a new system, which it says is
fully compliant with the law. However, it settled the suit to
avoid costly legal fees. Those who may benefit from it were
customers who paid for water in tiers three, four or five during
the nine-month period of Oct. 1, 2015, through June 30, 2016.
"The refund will be distributed by way of refund on a CVWD
customer's bill," Ms. Engel added.
Eligible recipients can expect to see these credits sometime in
the fall. The exact amount of what they will get is not yet known
as it will be divvied up among all parties after legal expenses
are paid. The district said drought penalties are not included in
the refund.
Eligible recipients who are no longer customers of CVWD will need
to file a claim. Legal representative of the plaintiff who
brought the suit said anybody with any questions about how they
may be affected, or what they may be entitled to, should visit
cvwdsettlement.com. [GN]
DEARBORN COUNTY, IN: Faces "Harkins" Suit in S.D. Indiana
---------------------------------------------------------
A class action lawsuit has been filed against Michael R.
Kreinhopp. The case is titled as CHRIS EDWARD HARKINS, on his own
behalf and on behalf of a class of those similarly situated, the
Plaintiff, v. MICHAEL R. KREINHOPP, SHERIFF OF DEARBORN COUNTY,
GUY GRAMAGALIA, Lieutenant, DAVID HALL, Captain, TRAVIS DAY,
Officer, JENNY McANINCH, Corporal, DANIEL BAKER, Officer, and
STEVE COURTER, Officer, the Defendants, Case No. 1:17-cv-02426-
WTL-MJD (S.D. Ind., July 18, 2017). The case is assigned to the
Hon. Judge William T. Lawrence.
Dearborn County is a county located in the U.S. state of Indiana.
In 2010, the population was 50,047. The county seat and largest
city is Lawrenceburg.[BN]
The Plaintiff appears pro se.
DEUTSCHE LUFTHANSA: Shabotinsky Moves for Class Certification
-------------------------------------------------------------
The Plaintiff in the lawsuit styled DAVID SHABOTINSKY v. DEUTSCHE
LUFTHANSA AG, Case No. 1:16-cv-04865 (N.D. Ill.), asks the Court
to:
(1) certify the instant action as a class action;
(2) appoint him as Class Representative; and
(3) approve the Plaintiffs' Counsel as Class Counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=LA7z9hhF
The Plaintiff is represented by:
Vladimir Gorokhovsky, Esq.
Gorokhovsky Law Office, LLC
10919 North Hedgewood Ln.,
Mequon, WI 53092
Telephone: (414) 581-1582
E-mail: gorlawoffice@yahoo.com
DG SMITH: Faces "Prasad" Suit in California Superior Court
----------------------------------------------------------
A class action lawsuit has been filed against DG Smith Enterprises
Inc. The case is captioned as Prasad, Jasu, and Similarly Situated
Employees, the Plaintiff, v. DG Smith Enterprises Inc., and Does
1-100, the Defendant, Case No.
34-2017-00215046-CU-OE-GDS (Cal. Super. Ct., July 5, 2017).
D. G. Smith Enterprises owns and operates 16 Taco Bell units. The
company provides quick food services.[BN]
The Plaintiff is represented by:
Galen T Shimoda, Esq.
SHIMODA LAW
9401 East Stockton Blvd., Suite 200
Elk Grove, CA 95624
E-mail:attorney@shimodalaw.com
DGT ALLIANCE: "Suarez" Suit Seeks OT & Minimum Wages under FLSA
---------------------------------------------------------------
CLARISSA SUAREZ, the Plaintiff, v. DGT ALLIANCE LLC., TREM GROUP,
LLC., ALEXANDER AUGUSTIN & FRANCISCO AGUIRRE, the Defendants, Case
No. 1:17-cv-22466-MGC (S.D. Fla., July 3, 2017), seeks to recover
overtime and/or minimum wages, pursuant to the Fair Labor
Standards Act.
The Plaintiff on behalf of himself and all others similarly
situated files this Complaint against Defendants alleging that the
Defendants have employed several other similarly situated
employees like Plaintiff who have not been paid overtime and/or
minimum wages for work performed in excess of 40 hours weekly from
the filing of this complaint back three years.[BN]
The Plaintiff is represented by:
Joshua H. Sheskin, Esq.
JOMARRON & LOPEZ
4300 Biscayne Boulevard, Suite 305
Miami, FL 33137
Telephone: (305) 717 7530
Facsimile: (305) 717 7539
E-mail: jsheskin@jltrial.com
DRYSHIPS INC: September 12 Lead Plaintiff Motion Deadline Set
-------------------------------------------------------------
Lundin Law PC, a shareholder rights firm, on July 17 announced the
filing of a class action lawsuit against DryShips Inc. ("DryShips"
or the "Company") (Nasdaq: DRYS) concerning possible violations of
federal securities laws between June 8, 2016 and July 12, 2017
inclusive (the "Class Period"). Investors who purchased or
otherwise acquired shares during the Class Period should contact
the firm prior to the September 12, 2017 lead plaintiff motion
deadline.
To participate in this class action lawsuit, you can call Brian
Lundin, Esquire, of Lundin Law PC, at 888-713-1033, or e-mail him
at brian@lundinlawpc.com.
No class has been certified in the above action yet. Until a
class is certified, you are not considered represented by an
attorney. You may also choose to do nothing and be an absent class
member.
According to the Complaint, throughout the Class Period, DryShips
made materially false and/or misleading statements, and/or failed
to disclose: that the Company engaged in a systemic stock-
manipulation scheme to artificially inflate its share price; that
DryShips' transactions with Kalani Investments Ltd. were an
illegal capital-raising scheme, due partly to Kalani's failure to
register as an underwriter with the Securities and Exchange
Commission; and that as a result of the above, the Company's
public statements were materially false and misleading at all
relevant times. Since November 2016, DryShips' stock price has
fallen about 99%, which caused investors harm according to the
Complaint.
Lundin Law PC -- http://lundinlawpc.com/-- was founded by Brian
Lundin, Esquire, a securities litigator based in Los Angeles
dedicated to upholding shareholders' rights. [GN]
DRYSHIPS INC: Seven More Firms File Securities Class Actions
------------------------------------------------------------
Splash 247 reports that seven US law firms have announced the
filing of class action lawsuits against George Economou's
DryShips, joining three firms that launched action against the
company alleging the company violated federal securities laws.
Many of the lawsuits also name Economou and CFO Anthony Kandylidis
as defendants. [GN]
DUNKIN' BRANDS: Donuts Don't Have Blueberry or Maple, Suit Says
---------------------------------------------------------------
HRACH BABAIAN, as an individual, on behalf of himself, all others
similarly situated, and the general public, the Plaintiff, v.
DUNKIN' BRANDS GROUP, INC., a Delaware Corporation; and DOES 1
through 100, inclusive, the Defendants, Case No. 2:17-cv-04890
(C.D. Cal., July 3, 2017), seeks financial compensation for
members of the Class in connection with their purchase of the
Blueberry Donuts and Maple Donuts.
Plaintiffs bring this action on behalf of himself, and all other
similarly situated persons residing in California and/or the
United States who purchased products sold by Defendants.
According to the complaint, Dunkin Donuts sells certain products
with descriptive names containing the word "blueberry," such as
"Blueberry Butternut Donut," "Blueberry Cake Donut," "Blueberry
Crumb Cake Donut," and "Glazed Blueberry Munchkin' (collectively,
"Blueberry Donuts") and others containing the word "maple," such
as "Frosted Maple Cräme Donut," "Glazed Apple Maple Donut," "Maple
Apple Croissant Donut," "Maple Creme Donut," "Maple Creme Drizzle
Donut," "Maple Crumb Cake Donut," "Maple Frosted Coffee Roll,"
"Maple Frosted Donut," "Maple Frosted Sprinkles Donut," and "Maple
Vanilla Creme Donut" (collectively, "Maple Donuts" and
collectively with Blueberry Donuts, "Class Products") which
represent to consumers that these donuts contain blueberries and
maple syrup or maple sugar, respectively ("Real Ingredients").
However, the reality is that these donuts do not contain these
ingredients. The Defendants Dunkin Donuts and DOES 1 through 100
collectively, designed, manufactured, distributed, marketed, and
sold Class Products with such deceptive names.
The Plaintiffs do not seek damages for personal, bodily, or
emotional injury or wrongful death; or damages for becoming
subject to liability or legal proceedings by others.[BN]
The Plaintiff is represented by:
Hovanes Margarian, Esq.
THE MARGARIAN LAW FIRM
801 North Brand Boulevard, Suite 210
Glendale, CA 91203
Telephone: (818) 553 1000
Facsimile: (818) 553 1005
E-mail: hovanes@margarianlaw.com
ENHANCED RECOVERY: Faces "Witt" Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Enhanced Recovery
Company, LLC. The case is titled as Christopher Witt, individually
and on behalf of all others similarly situated, the Plaintiff, v.
Enhanced Recovery Company, LLC, the Defendant, Case No. 2:17-cv-
04213 (E.D.N.Y., July 14, 2017).
Enhanced Recovery provides business process outsourcing services
that include recovery, outsourcing, and market research.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
SANDERS LAW, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (516) 203 7600
Facsimile: (516) 281 7601
E-mail: csanders@sanderslawpllc.com
ENHANCED RECOVERY: Faces "Texeira" Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Enhanced Recovery
Company, LLC. The case is entitled as Jennifer Texeira, on behalf
of herself and all others similarly situated, the Plaintiff, v.
Enhanced Recovery Company, LLC, the Defendant, Case No. 1:17-cv-
05450 (S.D.N.Y., July 18, 2017).
Enhanced Recovery provides business process outsourcing services
that include recovery, outsourcing, and market research.[BN]
The Plaintiff appears pro se.
EQUINOX COLLECTION: Illegally Collects Debt, "Hargis" Suit Claims
-----------------------------------------------------------------
Michael Hargis, an individual, on behalf of himself and all others
similarly situated v. Equinox Collection Services, Inc., Case No.
4:17-cv-00410-JED-FHM (N.D. Ok., July 13, 2017), seeks to stop the
Defendant's unfair and unconscionable means to collect a debt.
Equinox Collection Services, Inc. operates a collection company,
specializing in accounts receivable management services. [BN]
The Plaintiff is represented by:
Robert William Murphy, Esq.
LAW OFFICES OF ROBERT W. MURPHY
1212 SE 2nd Ave
Ft Lauderdale, FL 33316
Telephone: (954) 763-8660
Facsimile: (954) 763-8607
E-mail: rphyu@aol.com
- and -
Victor R. Wandres, Esq.
PARAMOUNT LAW
4835 S Peoria Ave Ste 1
Tulsa, OK 74105
Telephone: (918) 200-9272
Facsimile: (918) 895-9774
E-mail: victor@paramount-law.net
ESTES EXPRESS: Faces "McIntosh" Suit in Middle Dist. of Florida
---------------------------------------------------------------
A class action lawsuit has been filed against Estes Express Lines.
The case is captioned as Jeffrey McIntosh, on behalf of himself
and on behalf of all others similarly situated, the Plaintiff, v.
Estes Express Lines (Corporation), Defendant, Case No. 8:17-cv-
01609-MSS-AEP (M.D. Fla., July 3, 2017). The case is assigned to
the Hon. Judge Mary S. Scriven.
Estes Express Lines is a full-service freight transportation
provider based in Richmond, Virginia, in the United States.[BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
WENZEL FENTON CABASSA, PA
1110 N Florida Ave Ste 300
Tampa, FL 33602-3343
Telephone: (813) 224 0431
Facsimile: (813) 229 8712
E-mail: bhill@wfclaw.com
EXPRESS SCRIPTS: "Harrod" Suit Moved to Middle Dist. of Florida
---------------------------------------------------------------
CYNTHEA HARROD, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, v. EXPRESS SCRIPTS, INC., the Defendant,
was removed on July 3, 2017 from the Thirteenth Judicial Circuit
in Hillsborough County, to the United States District Court for
the Middle District of Florida. The Middle District of Florida
Court Clerk assigned Case No. 8:17-cv-01607-JSM-TGW to the
proceeding.
The Plaintiff seeks to recover various forms of equitable or
injunctive relief, including restitution of all fees paid to ESI
in excess of what the law allows, and injunctive relief
prohibiting ESI "from continuing to take" the alleged "unfair,
deceptive, illegal and/or unlawful action" of charging a flat fee
of $75.00 in order to release a copy of an individual's records.
The Plaintiff asserts various claims against ESI, on behalf of two
purported classes, for ESI's alleged practice of charging
"excessive" and "arbitrary" fees "to customers who authorize a
third party to request a copy of their pharmacy records on his or
her behalf." Specifically, Plaintiff alleges that ESI charged
Plaintiff and members of both purported classes a "flat fee of
$75" for "data processing" in order to release a copy of
Plaintiff's and the purported class members' respective records.
Express Scripts is an American Fortune 100 company. As of 2017,
the company is the 22nd-largest in the United States as well as
the largest pharmacy benefit management organization in the United
States.[BN]
The Plaintiffs are represented by:
Jason K. Whittemore, Esq.
WAGNER LAW
E-mail: Jason@WagnerLaw.com
arelys@WagnerLaw.com
- and -
Alex C. Davis, Esq.
JONES WARD
E-mail: jasper@jonesward.com
alex@jonesward.com
The Defendant is represented by:
Robert L. Blank, Esq.
Sara S. Whitehead, Esq.
Douglas B. Brown, Esq.
RUMBERGER, KIRK & CALDWELL
100 North Tampa Street, Suite 2000
Post Office Box 3390
Tampa, FL 33601-3390
Telephone: (813) 223 4253
Facsimile: (813) 221 4752
E-mail: rblanksecy@rumberger.com
docketingtpa@rumberger.com
swhitehead@rumberger.com
docketingtpa@rumberger.com
swhiteheadsecy@rumberger.com
dbrown@rumberger.com
docketingorlando@rumberger.com
dbrownsecy@rumberger.com
- and -
Philip E. Holladay, Jr., Esq.
Jonathan Ray Chally, Esq.
KING & SPALDING LLP
180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: 404-572 4673
Facsimile: 404-572 5100
E-mail: pholladay@kslaw.com
jchally@kslaw.com
EYM PIZZA: Underpays Workers, "Johnson" Class Suit Says
-------------------------------------------------------
SHAKIEMA JOHNSON, individually and on behalf of a class
of similarly situated persons, the Plaintiffs, v. Pizza Hut, Inc.,
EYM Group, Inc. and EYM Pizza of Illinois, LLC, the Defendants,
Case No. 2017L007102 (Ill. Cir. Ct., July 14, 2017), seeks to
recover wages for all hours worked including overtime wages under
Illinois Minimum Wage Law and the Illinois Wage Payment and
Collection Act.
According to the compliant, Plaintiff was scheduled to work, on
average, 35 hours per week. However, Plaintiff continued to
regularly pick up additional shifts. The Plaintiff was never paid
time and a half for the hours she worked in excess of 40 hours per
week. The Plaintiffs co-workers also ceased being paid time and a
half for hours in excess of 40 hours per week. The Plaintiff and
other co-workers complained to Flora Jones, store manager, about
not receiving full pay.
EYM Group is a franchisee company that manages numerous Pizza Hut
store locations.[BN]
The Plaintiff is represented by:
Adrian Jonak, Esq.
ASONYE AND ASSOCIATES
100 North LaSalle Street, Suite 2115
Chicago, IL 60602
Telephone: (312) 795 9110
E-mail: ajonak@aa-law.com
FCA US: Raymo et al. Sue over Defective SCR System in Ram Trucks
----------------------------------------------------------------
JEREMY RAYMO, FORREST POULSON, GARY GASTER, BRENDON GOLDSTEIN, and
MANUEL PENA, on behalf of themselves and all others similarly
situated, the Plaintiffs, v. FCA US LLC, a Delaware corporation,
and CUMMINS INC., an Indiana corporation, the Defendants, Case No.
2:17-cv-12168-TGB-SDD (E.D. Mich., July 3, 2017), seeks to recover
damages and equitable relief for the Defendants' misconduct
related to the design, manufacture, marketing, sale, and lease of
Vehicles with unlawfully high emissions.
According to the complaint, "a cardinal rule of business is that
you fix a product if it is defective. Indeed, most companies
consider it their moral and legal obligation to do so. But when
FCA and Cummins discovered at least as early as 2014 that the
selective catalytic converter (SCR) system in certain Dodge Ram
trucks was defective -- and that these trucks were emitting
harmful pollutants and experiencing a precipitous drop in
performance -- they did not rush to fix the problem. Instead, they
sued each other and used the defect as leverage in their
negotiations over who was going to pay to fix it. Defendants
intent to evade their responsibilities at the cost of the consumer
is not conjectural or speculative. It is all laid out in
remarkable filings each side submitted as part of their litigation
battle in FCA US LLC v. Cummins Inc., No. 2:16-cv-12883-AC-SDD
(E.D. Mich.) (FCA Litigation). In those filings, we learn that,
according to Cummins, a recall to fix the defect was "in the
public interest to ensure that Vehicles which are not emissions[-
]compliant are appropriately recalled and remedied to avoid future
harm to the environment. The potential recall affected over
135,000 trucks and truck owners, and -- again according to Cummins
-- the environmental impact "could be significant." Despite this
imminent harm, Cummins contends that "FCA refuses [to effect a
recall] for one reason -- money. FCA is holding both Cummins and
its own customers hostage to FCA's commercial demands." And FCA
knew about the problem for years. As Cummins stated, it
"discovered that FCA had been receiving an increasing number of
warranty claims relating to the SCR and emissions issues in the
Vehicles for several years prior to Cummins discovering the
emissions issues in the Vehicles."
FCA US is the American subsidiary of Fiat Chrysler Automobiles
N.V., an Italian controlled automobile manufacturer registered in
the Netherlands with headquarters in London, U.K., for tax
purposes.[BN]
The Plaintiffs are represented by:
Steve W. Berman, Esq.
Jerrod C. Patterson, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623 7292
Facsimile: (206) 623 0594
E-mail: steve@hbsslaw.com
jerrodp@hbsslaw.com
- and -
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
THE MILLER LAW FIRM PC
950 W. University Dr., Ste. 300
Rochester, MI 48307
Telephone: (248) 841 2200
Facsimile: (248) 652 2852
E-mail: epm@millerlawpc.com
ssa@millerlawpc.com
- and -
Christopher A. Seeger, Esq.
SEEGER WEISS LLP
77 Water Street
New York, NY 10005
Telephone: (212) 584 0700
Facsimile: (212) 584 0799
E-mail: cseeger@seegerweiss.com
- and -
James E. Cecchi, Esq.
CARELLA, BYRNE, CECCHI, OLSTEIN,
BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994 1700
Facsimile: (973) 994 1744
E-mail: JCecchi@carellabyrne.com
- and -
Eric J. Artrip, Esq.
MASTANDO & ARTRIP
301 Washington St., Suite 302
Huntsville, AL 35801
Telephone: (256) 532 2222
Facsimile: (256) 513 7489
FELCOR LODGING: Rigrodsky & Long Files Securities Class Action
--------------------------------------------------------------
Rigrodsky & Long, P.A., on July 17 disclosed that that it has
filed a class action complaint in the United States District Court
for the District of Maryland on behalf of holders of FelCor
Lodging Trust Incorporated ("FelCor") (NYSE:FCH) common stock in
connection with the proposed acquisition of FelCor by RLJ Lodging
Trust and its affiliates ("RLJ") announced on April 24, 2017 (the
"Complaint"). The Complaint, which alleges violations of the
Securities Exchange Act of 1934 against FelCor, its Board of
Directors (the "Board"), and RLJ, is captioned Assad v. FelCor
Lodging Trust Inc., Case No. 1:17-cv-01744 (D. Md.).
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests, please contact
plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at
Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington,
DE 19803, by telephone at (888) 969-4242; by e-mail at info@rl-
legal.com, or at http://rigrodskylong.com/contact-us/.
On April 23, 2017, FelCor entered into an agreement and plan of
merger (the "Merger Agreement") with RLJ. Pursuant to the Merger
Agreement, each outstanding share of common stock of FelCor will
be converted into the right to receive 0.362 common shares of
beneficial interest of RLJ, and each share of $1.95 Series A
cumulative convertible preferred stock of FelCor will be converted
into the right to receive one share of newly created Series A
cumulative convertible preferred shares of RLJ (the "Proposed
Transaction").
Among other things, the Complaint alleges that, in an attempt to
secure shareholder support for the Proposed Transaction,
defendants issued materially incomplete disclosures in a Form S-4
Registration Statement (the "Registration Statement") filed with
the United States Securities and Exchange Commission on June 2,
2017. The Complaint alleges that the Registration Statement,
which recommends that FelCor stockholders vote in favor of the
Proposed Transaction, omits material information necessary to
enable shareholders to make an informed decision as to how to vote
on the Proposed Transaction, including material information with
respect to FelCor's financial projections, the analyses performed
by FelCor's financial advisors, and potential conflicts of
interest. The Complaint seeks injunctive and equitable relief and
damages on behalf of holders of FelCor common stock.
If you wish to serve as lead plaintiff, you must move the Court no
later than September 15, 2017. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. Any member of the proposed class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member.
With offices in Wilmington, Delaware and Garden City, New York,
Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com--
regularly prosecutes securities fraud, shareholder corporate, and
shareholder derivative litigation on behalf of shareholders in
state and federal courts throughout the United States. [GN]
FIRST ADVANTAGE: "Grimm" Suit Moved to Maryland Federal Court
-------------------------------------------------------------
The class action lawsuit titled Virginia Barton Grimm,
individually and on behalf of all others similarly situated, the
Plaintiff, v. First Advantage Background Services Corp. doing
business as: First Advantage, and The Board of Trustees of The
Community College of Baltimore County, the Defendants, Case No. C-
02-CV-17-001368, was removed on July 14, 2017 from the Circuit
Court for Anne Arundel County, Maryland, to the U.S. District
Court for the District of Maryland (Baltimore). The District Court
Clerk assigned Case No. 1:17-cv-01967-RDB to the proceeding. The
case is assigned to the Hon. Judge Richard D. Bennett.
First Advantage Background Services Corporation provides
employment background checks, company research, and drug and
medical screening services.[BN]
Attorneys for Virginia Barton Grimm, individually and on behalf of
all others similarly situated:
Emanwel Josef Turnbull, Esq.
THE HOLLAND LAW FIRM PC
PO Box 6268
Annapolis, MD 21401
Telephone: (410) 280 6133
Facsimile: (410) 280 8650
E-mail: eturnbull@hollandlawfirm.com
- and -
Peter A Holland, Esq.
THE HOLLAND LAW FIRM PC
PO Box 6268
Annapolis, MD 21401-0268
Telephone: (410) 280 6133
Facsimile: (410) 280 8650
E-mail: peter@hollandlawfirm.com
- and -
Scott C Borison, Esq.
LEGG LAW FIRM LLP
1900 S. Norfolk St., Suite 350
San Mateo, CA 94403
Telephone: (301) 620 1016
Facsimile: (301) 620 1018
E-mail: usdc@legglaw.com
Attorneys for First Advantage Background Services Corp.:
Edward Victor Arnold, Esq.
SEYFARTH SHAW LLP
975 F St NW
Washington, DC 20004
Telephone: (202) 828 3597
Facsimile: (202) 828 5393
E-mail: earnold@seyfarth.com
Attorneys for The Board of Trustees of The Community College of
Baltimore County:
Clifford Bernard Geiger, Esq.
Peter S Saucier, Esq.
KOLLMAN AND SAUCIER PA
The Business Law Building
1823 York Road
Timonium, MD 21093
Telephone: (410) 727 4300
Facsimile: (410) 727 4391
E-mail: cgeiger@kollmanlaw.com
sauce23@kollmanlaw.com
FLETCHER THOMPSON: Fails to Pay for Project, M-E Engineers Says
---------------------------------------------------------------
M-E/VOGEL TAYLOR ENGINEERS, P.C. d/b/a M-E ENGINEERS, behalf of
itself and on behalf of similarly situated subcontractors of
Fletcher Thompson Architecture Engineering LLC, the Plaintiff, v.
FLETCHER THOMPSON ARCHITECTURE (Residence of Plaintiff)
ENGINEERING LLC, KURT C. BAUR, MICHAEL S. MARCINEK, JOHN C.
OLIVETO, ROBERT WILDERMUTH and BRIAN J. DUDDY, the Defendants,
Case No. 654817/2017 (N.Y. Sup. Ct., July 14, 2017), seeks to
recover compensatory damages in the amount of any diverted trust
funds; punitive damages for breach of trust, in an amount to be
determined at trial; and such other and further relief as may be
deemed just and equitable, including Plaintiffs' reasonable
attorneys' fees and costs of suit pursuant to the New York
Consolidated Laws.
This is action is brought by Plaintiff against Fletcher Thompson
Architecture Engineering LLC for breach of contract and unjust
enrichment for the reasonable value of services rendered by
Plaintiff to Fletcher Thompson.
In the construction industry, during the design phase of a
project, the owner of the real property being improved will
typically hire an architectural firm as a contractor to provide
design services, and the architectural firm will then hire a
mechanical, electrical and plumbing engineering firm and other
design professionals as subcontractors to provide necessary design
services on the project.
According to the complaint, Fletcher Thompson, acting as general
contractor, retained M-E Engineers to provide professional
mechanical engineering services in connection with certain
projects for the improvement of real property located in the State
of New York, including the construction of a Pediatric Rooftop
Courtyard at the Maria Fareri Children's Hospital and the
construction of an MRI Suite at Mount Sinai Roosevelt Hospital. M-
E Engineers rendered services in connection with the Pediatric
Rooftop Courtyard Project having a value of $12,000. M-E Engineers
rendered services in connection with the MRI Suite Project having
a value of $15,600. M-E Engineers sent numerous invoices to
Fletcher Thompson in connection with these services, which were
retained by Fletcher Thompson without objection. Although Fletcher
Thompson was contractually obligated to pay for M-E Engineer's
services, it has failed to do so, and there is a current
outstanding balance of $27,600.[BN]
The Plaintiff is represented by:
Bruce A. Schoenberg, Esq.
MORITT HOCK & HAMROFF LLP
1407 Broadway, Suite 3900
New York, NY 10018
Telephone: (212) 239 2000
FORD MOTOR: October 2 Powershift Settlement Hearing Set
-------------------------------------------------------
Steve Lehto, writing for ROT, reports that as anyone who has ever
driven one knows, the dual-clutch transmission in many Ford
products has issues. The cars often slam into gear or feel like
they are slipping. Repeated trips to the service department of the
Ford dealer can result in nothing more than a reflash of the
transmission control, which has little or no effect on the
transmission's performance.
The good news is that a class action suit which is nearing
completion offers what appears to be some pretty good relief for
current and former owners of these cars. First, "these cars"
refers to 2012 -- 2016 Ford Focus and 2011 -- 2016 Ford Fiestas
equipped with the "PowerShift" dual clutch transmissions. If you
own or have owned one of these cars, you may have already received
a notice in the mail of the pending class action settlement.
The proposed settlement is 148 pages long so this will, by
necessity, only cover the highlights of the agreement. But those
highlights are impressive.
For example, one of the biggest complaints owners had about these
cars was that the dealers kept reflashing the transmission
controls without any noticeable improvement. If your vehicle's
transmission was reflashed more than twice, this settlement will
get you paid for your inconvenience. Anywhere from $50 to $600
will be given to you simply to compensate you for that
inconvenience.
Did the Ford dealer replace a bunch of parts on your transmission
to no avail? You may be entitled to as much as $2,325 simply for
the trouble you went through. Did you pay for any of these
repairs yourself? Ford may reimburse you for those repairs as
well.
The proposed settlement also includes a provision for an
arbitration process for those who feel their PowerShift cars are
lemons. And while arbitration is not always a preferable venue
for consumers, this process specifically allows for the payment of
attorney's fees should you choose to hire an attorney to walk you
through the process.
And if your car does not qualify under your state's lemon laws
specifically, the arbitrators will be empowered to order the
buybacks of some of these vehicles so long as the transmission
remains defective. This notion is quite valuable: I cannot tell
you how many times people have called my office complaining of
vehicles with transmission failures which were simply timed badly.
They did not happen soon enough or often enough to qualify under
the lemon law. And while lawsuits were still possible for these
consumers under other legal theories, those can be much harder to
pursue. That Ford has agreed to this particular remedy for
consumers is telling.
As I mentioned above, there is more -- much more -- to this
settlement and I urge you to study it before making any decisions.
But you need to do a few things. First, watch your mailbox and
read all notices you get about this. If you are a member of the
class and you do nothing, you will remain in the class and the
case will lock in your legal rights and remedies without your
input. If you want to opt out, you can do that but it requires
you to be proactive. And remember that this applies to former
owners of these cars as well. You got rid of the car because of
all the trouble with the transmission? You may still be entitled
to compensation.
For more information, visit the website set up for the settlement.
www.fordtransmissionsettlement.com. You can also call (844) 540-
6011.
Whatever you do, do not call the court. And the settlement is not
final yet. There is a hearing set for October 2, 2017. If all
goes according to plan, the settlement will be finalized and
blessed by the court. After that is when you can finally get
compensated for having put up with that transmission for all those
years.
Steve Lehto is a writer and attorney from Michigan. He
specializes in Lemon Law and frequently writes about cars and the
law. His most recent books include Preston Tucker and His Battle
to Build the Car of Tomorrow, and Dodge Daytona and Plymouth
Superbird: Design, Development, Production and Competition. He
also has a podcast where he talks about these things. [GN]
FORSTER & GARBUS: Faces "Russell" Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Forster & Garbus,
LLP. The case is captioned as Matthew Russell, On Behalf of
Himself and All Others Similarly Situated, the Plaintiff, v.
Forster & Garbus, LLP, LVNV Funding LLC, Sherman Financial Group,
LLC, Mark A. Garbus, and Ronald Forster, the Defendants, Case No.
2:17-cv-04274 (E.D.N.Y., July 18, 2017).
Forster & Garbus is a full service New York Law Firm concentrating
on creditor's rights law since 1970.[BN]
The Plaintiff appears pro se.
FRONTLINE ASSET: Sued Over Unlawful Debt Collection Practices
-------------------------------------------------------------
Samuel Williams, pleading on his own behalf and on behalf of all
others similarly situated v. Frontline Asset Strategies and
Velocity Investments, LLC, Case No. 2:17-cv-03119-JD (E.D. Penn.,
July 13, 2017), seeks to stop the Defendant's unfair and
unconscionable means to collect a debt.
Frontline Asset Strategies operates a call center that provides
credit and accounts receivables management services. [BN]
The Plaintiff is represented by:
Alexander R. Ferrante, Esq.
GOLD & FERRANTE
261 Old York Rd Ste 526
Jenkintown, PA 19046
Telephone: (215) 885-1118
Facsimile: (215) 885-5283
E-mail: aferrante1@verizon.net
GATHERAPP INC: "Williams" Class Suit Removed to W.D. Missouri
-------------------------------------------------------------
The class action lawsuit captioned Ryan M. Williams, individually,
and on behalf of all others similarly situated v. GatherApp, Inc.,
Case No. 1716-CV12757, was removed on July 13, 2017, from the
Circuit Court of Jackson County, Missouri to U.S. District Court
for the Western District of Missouri (Kansas City). The District
Court Clerk assigned Case No. 4:17-cv-00572-DW to the proceeding.
GatherApp, Inc. is a mobile application developer that allows its
users to share and discuss places with their friends. [BN]
The Plaintiff is represented by:
Aristotle N. Rodopoulos, Esq.
Noah K. Wood, Esq.
WOOD LAW FIRM LLC
1100 Main Street, Suite 1800
Kansas City, MO 64105
Telephone: (816) 256-3582
Facsimile: (816) 337-4243
E-mail: ari@woodlaw.com
noah@woodlaw.com
- and -
William Charles Kenney, Esq.
BILL KENNEY LAW FIRM, LLC
1101 Walnut Street, Suite 102
Kansas City, MO 64106
Telephone: (816) 842-2455
Facsimile: (816) 474-8899
E-mail: bkenney@billkenneylaw.com
The Defendant is represented by:
Brett A. Shanks, Esq.
Jere D. Sellers, Esq.
STINSON LEONARD STREET LLP
1201 Walnut St., Ste. 2900
Kansas City, MO 64106
Telephone: (816) 842-8600
Facsimile: (816) 691-3495
E-mail: brett.shanks@stinson.com
jere.sellers@stinsonleonard.com
GC SERVICES LTD: "Cahill" Sues Over Auto-dialed Collection Calls
----------------------------------------------------------------
Tiffany Cahill, individually and on behalf of all others similarly
situated, Plaintiff, v. GC Services Limited Partnership,
Defendant, Case No. 3:17-cv-01308, (S.D. Cal., June 27, 2017),
seeks statutory damages, injunctive relief, attorneys' fees and
costs under the Telephone Consumers Protection Act.
Defendant is an outsourcing provider of call center management and
collection agency services, offering call center agents to
accommodate various creditors. GC allegedly made the 39 unwanted
autodialed calls to Plaintiff's cellular phone without her
expressed consent. [BN]
Plaintiff is represented by:
Joshua Swigart, Esq.
Yana A. Hart, Esq.
HYDE AND SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022 to 26
Email: Josh@westcoastlitigation.com
yana@westcoastlitigation.com
- and -
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
Email: ak@kazlg.com
GOLD RING: Underpays Cashiers, "Massari" Class Suit Says
--------------------------------------------------------
LUIS MASSARI, on behalf of himself, and those similarly situated,
the Plaintiff, v. GOLD RING CATERING, INC., a Florida corporation,
JOSE A. BACALLAO, and SANDRA BACALLAO, individuals, the
Defendants, Case No. 8:17-cv-01608-VMC-AAS (M.D. Fla., July 3,
2017), seeks to recover damages in excess of $15,000, exclusive of
interest, fees, and costs, for violations of the Fair Labor
Standards Act.
The Plaintiff worked for Defendants from July 2014 through March
23, 2017. Plaintiff's regular job duties included working as
cashier and/or assisting the cashier, taking customer orders at
the front counter, and cooking the food and/or assisting the cook.
Defendants directed or permitted Plaintiff to regularly work in
excess of 40 hours within a work week, but failed to pay him at
least the applicable overtime rate for all such overtime hours
worked.
Gold Ring Catering offers breakfast and lunch spot with a mix of
basic Spanish & Latin American food, including sandwiches.
The Plaintiffs are represented by:
Trenton H. Cotney, Esq.
Benjamin S. Briggs, Esq.
TRENT COTNEY, P.A.
8621 E. Dr. Martin Luther King, Jr. Blvd.
Tampa, FL 33610
Telephone: (813) 579 3278
Facsimile: (813) 902 7612
E-mail: tcotney@trentcotney.com
bbriggs@trentcotney.com
courtfilings@trentcotney.com
GOLF MART: "Arivett" Class Suit Removed to C.D. California
----------------------------------------------------------
The putative class action lawsuit styled Christopher S. Arivett v.
Golf Mart, Inc., et al., Case No. 30-02017-00921971-CU-DE-CXC, was
removed on July 6, 2017, from the Superior Court of the State of
California for the County of Orange to the U.S. District Court for
the Central District of California (Southern Division - Santa
Ana). The District Court Clerk assigned Case No. 8:17-cv-01153-
DOC-DFM to the proceeding.
The lawsuit arose from alleged violations of the Fair Credit
Reporting Act.
Plaintiff Christopher S. Arivett, on behalf of himself, all others
similarly situated, is represented by:
Chaim Shaun Setareh, Esq.
Thomas Alistair Segal, Esq.
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: shaun@setarehlaw.com
thomas@setarehlaw.com
Defendants Golf Mart, Inc., a California corporation; Worldwide
Golf Enterprises, Inc., a California corporation; and Roger Dunn,
Inc., a California corporation, are represented by:
Joseph R. Lordan, Esq.
Daniel H. Qualls, Esq.
LEWIS BRISBOIS BISGAARD AND SMITH LLP
333 Bush Street Suite 1100
San Francisco, CA 94104
Telephone: (415) 362-2580
Facsimile: (415) 434-0882
E-mail: joseph.lordan@lewisbrisbois.com
daniel.qualls@lewisbrisbois.com
HALLIBURTON CO: "Leblanc" Suit Alleges Misclassification
--------------------------------------------------------
BRENT LEBLANC, individually and on behalf of all others similarly
situated, Plaintiffs, v. HALLIBURTON COMPANY, Defendant, Case No.
2:17-cv-00718-KRS-GJF (D.N.M., July 10, 2017), alleges that
instead of paying Plaintiff overtime as required by the Fair Labor
Standards Act, and the New Mexico Minimum Wage Act, Halliburton
paid oilfield personnel a daily rate with no overtime pay and
improperly classified them as independent contractors.
Halliburton is an oil and natural gas exploration and production
company operating worldwide and throughout the United States,
including in New Mexico. LeBlanc worked exclusively for
Halliburton as a directional driller.[BN]
The Plaintiff is represented by:
Richard J. (Rex) Burch, Esq.
Matthew S. Parmet, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Phone: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
Email: mparmet@brucknerburch.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
Email: adunlap@mybackwages.com
HENKEL AG: Faces "Sacchi" Suit in New Jersey Federal Court
----------------------------------------------------------
A class action lawsuit has been filed against Henkel AG & Company
KGaA. The case is captioned as JOHN SACCHI, ("Consumer"),
Individually and on behalf of all others similarly situated, the
Plaintiff, v. HENKEL AG & COMPANY KGaA, HENKEL CONSUMER GOODS
INC., HENKEL CORPORATION, THE DIAL CORPORATION (collectively,
"Henkel"), and DOES 1 through 10, inclusive, the Defendants, Case
No. 3:17-cv-04889-AET-LHG (D.N.J., July 3, 2017). The case is
assigned to the Hon. Judge Anne E. Thompson.
Henkel AG is a German chemical and consumer goods company
headquartered in DÅsseldorf, Germany. It is a multinational
company active both in the consumer and industrial sector.
The Plaintiff is represented by:
Stephen John Simoni, Esq.
LAW OFFICES OF STEPHEN J. SIMONI
55 Ocean Avenue
Monmouth Beach, NJ 07750
Telephone: (917) 621 5795
E-mail: stephensimoni@yahoo.com
HITACHI MAXELL: Nov. 29 Settlement Claims Filing Deadline
---------------------------------------------------------
Brooke Nelson, writing for Reader's Digest, reports that if you
bought one or more phones, laptops, or tablets between January 1,
2000 and May 31, 2011, you could be eligible for a BIG payout.
A class action lawsuit was just filed against Hitachi Maxell, LG,
and NEC, companies that make lithium-ion cylindrical batteries,
Inc. reports. The lawsuit accuses the three manufacturers of
fixing the cost of the batteries, which in turn increased the
sticker price on the devices that used them.
"In other words, individuals and businesses may have paid more for
certain products which contained these lithium-ion batteries," the
lawsuit's website said.
The list of electronics covered under the lawsuit include laptop
PCs, notebooks, netbook computers; mobile phones, smart phones,
tablets, digital audition players; camcorders, cameras; cordless
power tools; and replacement batteries for any of these products.
If you're eligible to cash in, all you need to do is file a brief
form by November 29. The $45 million settlement will be divvied
up among all valid claimants. For just a few minutes of your day,
you're almost guaranteed to get a free check in your mailbox. [GN]
HOOPER'S CRAB: Knox Seeks Unpaid Minimum Wages, OT under FLSA
-------------------------------------------------------------
Casey Knox, on behalf of herself and others similarly situated,
the Plaintiff, v. Hooper's Crab House, Inc., Pete Shepard, Royette
Shepard, Patrick Brady, and Ryan Intrieri, the Defendants, Case
No. 1:17-cv-01853-CCB (D. Md., July 5, 2017), seeks to recover
unpaid minimum wages and overtime wages, liquidated, and statutory
damages pursuant to the Fair Labor Standards Act, the Maryland's
Wage and Hour Law, and the Maryland Wage Payment and Collection
Law.
According to the complaint, by failing to pay statutory minimum
wage that was due to Plaintiff and other similarly situated server
employees, Defendants willfully violated very clear and well-
established minimum wage provision of the FLSA.
The Defendant owns and operates a restaurant in Ocean City,
Maryland.[BN]
The Plaintiff is represented by:
Howard B. Hoffman, Esq.
600 Jefferson Plaza, Suite 304
Rockville, MD 20852
Telephone: (301) 251 3752
Facsimile: (301) 251 3753
HOME HEALTH: "Yusupova" Suit Seeks Unpaid Wages under Labor Law
---------------------------------------------------------------
MAVJUDA YUSUPOVA, individually and on behalf of all other persons
similarly situated who were employed by HOME HEALTH CARE SERVICES
OF NEW YORK INC., the Plaintiffs, v. HOME HEALTH CARE SERVICES OF
NEW YORK INC., the Defendant, Case No. 156350/2017 (N.Y. Sup. Ct.,
July 14, 2017), seeks to recover wages and benefits which
Plaintiffs were statutorily and contractually entitled to receive
pursuant to New York Labor Law.
According to the complaint, the Plaintiff worked 24-hour shifts,
she was required to stay overnight at the residences of
Defendant's clients, and needed to be ready and available to
provide assistance to Defendant's clients at all times. When
Plaintiff worked 24-hour shifts, she was generally not permitted
to leave Defendant's client's residence. Because Defendant's
clients were often elderly and suffering from various health
and mental ailments, they required constant care and the Plaintiff
did not get an opportunity to sleep without any interruption for
five hours at a time. The Defendant required Plaintiff to be on
the premises of Defendant's clients for 24 hours during any given
24-hour shift, which was for the benefit of Defendant. The
Plaintiff did not get a one-hour break for each of three meals per
day. The Plaintiff was forced to eat her meals or snack between
her daily duties, because Defendant's clients needed feeding
assistance and/or constant supervision during traditional
mealtimes and during her 24-hour shifts. The Plaintiff was only
paid for approximately 13 hours of her 24-hours shifts. The
Plaintiff was not paid any hourly rate for the other 11 hours
worked.
Home Healthcare specializes in private duty nursing and home
health aides.[BN]
The Plaintiff is represented by:
Lloyd R. Ambinder, Esq.
LaDonna M. Lusher, Esq.
Milana Dostanitch, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, Seventh Floor
New York, NY 10004
Telephone: (212) 943 9080
Facsimile: (212) 943 9082
E-mail: llusher@vandallp.com
- and -
Gennadiy Naydenskiy, Esq.
NAYDENSKIY LAW GROUP, P.C.
1517 Voohies Ave, 2nd Fl
Brooklyn, NY 11235
Telephone: (212) 808 2224
Facsimile: (866) 261 5478
E-mail: naydenskiylaw@gmail.com
JACKSONVILLE, FL: Faces "Chapman" Suit in Fla. Over ADA Violation
-----------------------------------------------------------------
Martin Chapman, on behalf of himself and on behalf of all others
similarly situated v. City of Jacksonville, Case No. 3:17-cv-
00799-BJD-JRK (M.D. Fla., July 13, 2017), is brought against the
Defendants for violation of the Americans with Disabilities Act.
City of Jacksonville is a city government of Florida. [BN]
The Plaintiff is represented by:
Donna V. Smith, Esq.
WENZEL FENTON CABASSA, PA
1110 N Florida Ave Ste 300
Tampa, FL 33602-3343
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: dsmith@wfclaw.com
JOE FRESH: Judge Tosses $2-Bil. Rana Plaza Collapse Class Action
----------------------------------------------------------------
Hollie Shaw, writing for Financial Post, reports that a proposed
class-action lawsuit seeking $2 billion from Joe Fresh and Loblaw
Cos. Ltd. over the collapse of a Bangladesh garment factory in
2013 has been rejected by an Ontario judge.
In a sometimes scathing decision issued this month, Ontario
Superior Court Justice Paul Perell said the Toronto-based counsel
for three garment workers who were injured in the Rana Plaza
building near Dhaka failed to argue a viable cause of action in
their claim.
In refusing to certify the proposed class action, the judge
criticized the plaintiffs' claim as "bloated with conclusory
statements that simply allege a cause of action as if it was a
material fact" in relation to Loblaw and other defendants'
potential roles in the collapse, which killed more than 1,100 and
injured more than 2,500.
Plaintiff law firm Rochon Genova LLP had argued that Loblaw was
"vicariously liable"for the negligence of its suppliers and sub-
suppliers, Pearl Global and New Wave.
Before the building collapse, Loblaw hired Pearl Global to produce
garments for Joe Fresh. Pearl Global outsourced some of the work
to New Wave, which manufactured garments at Rana Plaza.
The claim of vicarious liability failed because Pearl Global and
New Wave were not agents or employees of Loblaw, nor were they
independent contractors of the sort that can trigger vicarious
liability in the legal sense, Justice Perell wrote.
"New Wave was selling goods, not services or tasks that were part
of Loblaw's enterprise, "he said in the decision. "Loblaw did not
delegate its responsibility for the safety of the employees of New
Wave, because it had no such responsibility." The "exceptional
circumstances" in which an enterprise can be vicariously liable
for the misdeeds of independent contractors were not evident in
this case, Justice Perell added.
"Loblaw had no control over how Pearl Global and New Wave carried
on their manufacturing business or treated their employees."
Also named in the suit were Loblaw's parent company George Weston
Ltd., wholly owned Loblaw subsidiary Joe Fresh Apparel Inc., and
the U.S., France and Bangladesh branches of Bureau Veritas
Consumer Products Services Inc., a company hired by Loblaw to
perform inspections and audits of textile and garment factories.
Loblaw is "pleased" with the ruling, company spokesman Kevin Groh
said in a statement. In June, the retailer and owner of house
apparel brand Joe Fresh renewed its commitment to the global 2013
Accord on Fire and Building Safety in Bangladesh, which
established stricter standards for workplace safety in Bangladesh
factories, Groh added.
"Our three-year renewal will help extend the Accord's good work,
auditing and eliminating building risks in facilities where our
suppliers produce our goods, and putting workers' interests
first."
The company, which paid relief and compensation of some $5 million
to Bangladeshi workers and various social agencies in the wake of
the Rana Plaza disaster, now publicly lists the names of all
factories it uses to produce Joe Fresh products.
Last year, a Bangladeshi court charged 38 people with murder in
that country's worst industrial disaster, and three others were
charged in assisting plaza owner Sohel Rana in attempting to flee
the country after the collapse.
The incident sparked international outrage and retailers and brand
manufacturers faced heightened consumer pressure to expose the
cracks in their supply chains, in particular the sourcing of
garment work to underdeveloped nations with cheap labour and poor
safety standards. [GN]
JPMORGAN CHASE: Faces "Thew" Suit in Central Dist. of California
----------------------------------------------------------------
A class action lawsuit has been filed against JPMorgan Chase Bank.
The case is captioned as Nathan Thew, individually and on behalf
of others similarly situated, the Plaintiff, v. JPMorgan Chase
Bank, N.A., the Defendant, Case No. 5:17-cv-01340-JAK-SP (C.D.
Cal., July 3, 2017). The case is assigned to the Hon. Judge John
A. Kronstadt.
JPMorgan Chase is a leading global financial services firm and one
of the largest banking institutions in the United States, with
operations worldwide.[BN]
The Plaintiff is represented by:
Joshua B Swigart, Esq.
Yana A Hart, Esq.
HYDE AND SWIGART
2221 Camino Del Rio South Suite 101
San Diego, CA 92108
Telephone: (619) 233 7770
Facsimile: (619) 297 1022
E-mail: josh@westcoastlitigation.com
yana@westcoastlitigation.com
- and -
Daniel Guinn Shay, Esq.
DANIEL G SHAY LAW OFFICES
409 Camino Del Rio South Suite 101B
San Diego, CA 92108
Telephone: (619) 222 7429
Facsimile: (866) 431 3292
E-mail: danielshay@tcpafdcpa.com
- and -
Jason A Ibey, Esq.
Seyed Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP APC
245 Fischer Avenue Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400 6808
Facsimile: (800) 520 5523
E-mail: jason@kazlg.com
ak@kazlg.com
LA REINA A: Underpays Workers, "Schafler" Suit Says
---------------------------------------------------
ERIC SCHAFLER, on behalf of himself, and all others similarly
situated, the Plaintiff, v. LA REIN A, INC., a California
corporation; OLD PUEBLO RANCH INC., a California corporation; and
DOES 1 through 50, inclusive, the Defendant, Case No. BC667533
(Cal. Super. Ct., July 3, 2017), seeks to recover all wages earned
for all hours worked under California Labor Code.
The Plaintiff alleges that Defendants are liable to him and other
similarly situated current and former employees for unpaid wages
and other related relief. These claims are based on Defendants'
alleged failures to (1) provide alt rest and meal periods, (2) pay
all wages earned for all hours worked, (3) fairly compete, (4)
provide accurate written wage statements, and (5) timely pay final
wages upon termination of employment. Defendants are also liable
to Plaintiff for retaliation and wrongful termination.
Accordingly, Plaintiff now seeks to recover unpaid wages and
related relief through this class action.
La Reina produces flour tortillas. It provides green onion wraps,
chimichurri wraps, healthy multigrain and chia wraps, uncooked
tortillas, and tortilla chips.
The Plaintiff is represented by:
David G. Spivak, Esq.
Caroline Tahmassian, Esq.
THE SPIVAK LAW FIRM
16530 Ventura Blvd., Ste 3l2
Encino, CA 91436
Telephone (818) 582 3086
Facsimile (818) 582 2561
E-mail: david@spivaklaw.com
carolinc@spivaklaw.com
LEMONIA RESTAURANT: Ananiadis Seeks Minimum Wages, OT under FLSA
----------------------------------------------------------------
JORDAN ANANIADIS, on behalf of himself and others similarly
situated, the Plaintiff, v. LEMONIA RESTAURANT CORP. d/b/a UTOPIA
RESTAURANT, PETER TSOUKALAS, GEORGE KOUTSOSTERGIOS, MOA SABRY, and
NIKKI STOPELAS, the Defendants, Case No. 1:17-cv-05061-ER
(S.D.N.Y., July 5, 2017), seeks to recover unpaid minimum wages,
overtime compensation, confiscated tips, spread-of-hours pay, and
statutory penalties for Defendants' violations of the Fair Labor
Standards Act, the New York Labor Law, and the New York State
Department of Labor regulations.
The Plaintiff brought this case on behalf of similarly situated
co-workers -- i.e. waiter, busboys, runners, and other "wait
staff" -- who work or have worked at Lemonia Restaurant Corp.
d/b/a Utopia Restaurant, a Diner located at 267 Amsterdam.
According to the complaint, Plaintiff and the FLSA collective
plaintiffs are and have been similarly situated, have had
substantially similar job requirements and pay provisions, and are
and have been subject to Defendants' decisions, policies, plans
and common policies, programs, practices, procedures, protocols,
routines, and rules, including willfully failing and refusing to
pay class members the minimum federal or state minimum wage, and
willfully failing and refusing to pay class members one-and-one-
half times their regular hourly rate for work in excess of 40
hours per workweek for work they provided thereafter. The
Plaintiff's claims are essentially the same as those of the FLSA
Collective Plaintiffs.[BN]
The Plaintiff is represented by:
Brian L. Greben, Esq.
LAW OFFICE OF BRIAN L. GREBEN
316 Great Neck Road
Great Neck, NY 11021
Telephone: (516) 304 5357
MEARS DESTINATION: "Rodriguez" Suit Alleges Misclassification
-------------------------------------------------------------
Victor Rodriguez, Ioan Blaj, Sixto delos Santos, Luis F. Duarte,
Erol Hafizbegovic, Angel Crespo, Jose L. Rodriguez, Gregly Wilson,
Hector Medino, Alfredo Rodriquez, Jose Esparra, Jr., Larry Groves,
Fritz Gedeon, Faidrick Joubert, Glenward Williams, Carlos Almonte,
Emilio Hernandez, Luis Orrego, Hance Feliz, Walter Hernandez
Andrade, Jean-Simon Laguerre, Jose Lopez, Hector Flores, Eddie
Diaz, Jose Hernandez Andrade, Ingrid Meinhold, Efrain Oviedo,
Martha Hernandez, Arturo Hernandez, Mario Martinez, Yaimelit
Zerpa, Marilyn Ortiz, Fabio Franco, Stanley Fenelon, Domingo
Gomez, Abidally Azeez, Marquitos Garcia, Simon Sumerlin, for
themselves and similarly situated individuals, Plaintiffs, v.
MEARS DESTINATION SERVICES, INC., d/b/a Mears Transportation
Group, and Paul S. Mears, Jr., James L. Mears, Jonathan P. Mears,
Paul S. Mears, III, James B. Mears, Charles E. Carns, Jr.,
individually and as executives for Mears Destination Services,
Inc., Case No. 6:17-cv-01113-RBD-DCI (M.D. Fla., June 19, 2017),
alleges that Defendants engaged in an illegal and willful scheme
of misclassifying nonexempt, employee drivers as independent
contractors. The case was filed under the Fair Labor Standards
Act.
Defendant operates a transportation company. Plaintiff works as
luxury chauffeur.[BN]
The Plaintiff is represented by:
Carlos J. Burruezo, Esq.
Bertha L. Burruezo, Esq.
BURRUEZO & BURRUEZO, PLLC
941 Lake Baldwin Lane, Suite 102
Orlando (Baldwin Park), FL 32814
Phone: 407 754-2904
E-mail: carlos@burruezolaw.com
bertha@burruezolaw.com
MIDLAND CREDIT: Faces "Knight" Suit Over Illegal Debt Collection
----------------------------------------------------------------
Reneisha Knight, on behalf of herself and all other similarly
situated consumers v. Midland Credit Management Inc., Case No.
2:17-cv-03118-MAK (E.D. Penn., July 13, 2017), seeks to stop the
Defendant's unfair and unconscionable means to collect a debt.
Midland Credit Management Inc. operates a collection agency that
helps consumers resolve past-due debt obligations. [BN]
The Plaintiff is represented by:
Alexander R. Ferrante, Esq.
GOLD & FERRANTE
261 Old York Rd Ste 526
Jenkintown, PA 19046
Telephone: (215) 885-1118
Facsimile: (215) 885-5283
E-mail: aferrante1@verizon.net
MIDLAND CREDIT: Illegally Collects Debt, "Villomil" Suit Claims
---------------------------------------------------------------
Flor Villomil, on behalf of herself and all others similarly
situated v. Midland Credit Management, Inc., Case No. 1:17-cv-
04153 (E.D.N.Y., July 13, 2017), seeks to stop the Defendant's
unfair and unconscionable means to collect a debt.
Midland Credit Management Inc. operates a collection agency that
helps consumers resolve past-due debt obligations. [BN]
The Plaintiff is represented by:
Daniel C. Cohen, Esq.
DANIEL COHEN, PLLC
407 Rockaway Avenue
Brooklyn, NY 11212
Telephone: (646) 645-8482
Facsimile: (347) 665-1545
E-mail: dancohenlaw@gmail.com
MILLER BERNSTEIN: Buckingham Securities Clients Win Class Action
----------------------------------------------------------------
Julius Melnitzer, writing for Financial Post, reports that
the Ontario Superior Court of Justice has found accounting firm
Miller Bernstein responsible for some $10.6 million in losses
sustained by 1,002 retail clients of defunct securities dealer
Buckingham Securities.
"It's very hard to get courts to find that auditors have a duty of
care other than to the entity audited," said Daniel Bach of
Siskinds LLP, who represented Buckingham's clients.
The lawsuit, commenced in 2010, took the form of a class action
against Miller Bernstein. The claim was based on untrue
statements made by Buckingham in its 1999 and 2000 public filings.
Howard Kornblum, a partner at Miller Bernstein, admitted he
audited and filed the false forms. He was disciplined by the OSC
and the Institute of Chartered Accountants but continues to
practise with Miller Bernstein.
After the class was certified, Mr. Bach brought a motion for
summary judgment, which Justice Edward Belobaba granted on July
12.
Historically, Canadian courts, particularly the Supreme Court of
Canada, have been loath to find auditors liable for pure economic
loss to investors in or clients of an audited company. The
leading case, a 1997 Supreme Court of Canada decision called
Hercules Managements Ltd. v. Ernst & Young, generally protects
auditors from liability. The Supreme Court last February heard
another case called Deloitte & Touche v. Livent Inc., but has yet
to release its decision.
But Justice Belobaba concluded that, on the facts of this
particular case, Mr. Kornblum and Miller Bernstein had an
obligation to be mindful of the interests of the securities
dealer's clients "as a matter of simple justice. "The
relationship between the clients and the auditor was sufficiently
foreseeable and proximate to invoke a duty of care, the judge
found.
"My analysis is based on the auditing standards applicable at the
time and the evidence and admissions of the parties and their
experts," Justice Belobaba wrote.
The auditors knew that the false forms were used by the OSC to
police dealers and protect investors. In this case, the false
filings hid the fact that Buckingham had failed to segregate its
assets from those of its clients. Had the forms alerted the OSC
to the non-compliance, no losses may have occurred.
"In short, (Miller Bernstein and Mr. Kornblum) well understood the
consequences to 'its client's clients' if the segregation or
capital deficiency information was misstated (in the forms) --
that a negligent audit of these (forms) could expose the class
members to the very loss that they incurred," Justice Belobaba
wrote. [GN]
MINNESOTA ISD 625: Faces "Kaw" Class Suit
-----------------------------------------
A class action lawsuit has been filed against Independent School
District No. 625. The case is captioned as Lor Ler Kaw, Lor Ler
Hok Koh, Mary Jane Sommerville, and George Thawmoo on behalf of
themselves and all others similarly situated, the Plaintiffs, v.
Independent School District No. 625, the Defendant, Case No. 0:17-
cv-02926-PJS-DTS (D. Minn., July 14, 2017). The case is assigned
to the Hon. Judge Patrick J. Schiltz.[BN]
The Plaintiffs are represented by:
Anupama D Sreekanth, Esq.
Christopher D. Pham, Esq.
Aron J Frakes, Esq.
FREDRIKSON & BYRON, PA
200 S 6th St Ste 4000
Mpls, MN 55402-1425
Telephone: (612) 492 7445
Facsimile: (612) 492 7077
E-mail: asreekanth@fredlaw.com
cpham@fredlaw.com
afrakes@fredlaw.com
MIRACLE MILE: Faces "Guerrero" Suit in Eastern Dist. of New York
----------------------------------------------------------------
A class action lawsuit has been filed against Miracle Mile Auto
Wash, LLC. The case is titled as Blanca Guerrero, individually and
on behalf of others similarly situated, the Plaintiff, v. Miracle
Mile Auto Wash, LLC, as assignee of d/b/a Manhasset Hand Wash &
Detail Center, and Scott "Doe", the Defendants, Case No. 2:17-cv-
04238 (E.D.N.Y., July 17, 2017).
Miracle Mile is a car wash company.[BN]
The Plaintiff appears pro se.
MOVE CONSULTANTS: Diener Seeks Back Wages and Overtime under FLSA
-----------------------------------------------------------------
ROSEMARY DIENER, the Plaintiff, v. MOVE CONSULTANTS, INC, and
JAMES FISCHER, Individually, the Defendant, Case No. 9:17-cv-
80792-RLR (S.D. Fla., July 3, 2017), seeks to recover late-paid
back wages and overtime, and an additional equal amount as
liquidated damages, reasonable attorney's fees and costs under the
Fair Labor Standards.
According to the complaint, the Plaintiff was paid on an hourly
basis; however, on numerous occasions, she was not paid in a
timely manner as described in the FLSA. Moreover, Defendant failed
to pay Plaintiff for her overtime hours worked at time and one
half her regular rate of pay on those occasions when she worked
overtime. On May 1, 2015, through March 17, 2017, Defendant has
violated the provisions of the FLSA, by failing to pay the
Plaintiff and other similarly situated personnel their wages on
many occasions when the wages became due. The Plaintiff and those
similarly situated endured considerable hardships without their
earned pay checks and were required to wait to receive their wages
long after said wages were due to be paid.
Move Consultants is a national corporate relocation consulting
firm in New York City.[BN]
The Plaintiff is represented by:
Martin E. Leach, Esq.
FEILER & LEACH, P.L.
The American Airlines Building
901 Ponce de Leon Blvd., Suite 300
Coral Gables, FL 33134
Telephone: (305) 441 8818
Facsimile: (305) 441 8081
E-mail: mel@flmlegal.com
erodriguez@flmlegal.com
NATIONAL MILK: Andrews Appeals "Edwards" Suit Ruling to 9th Cir.
----------------------------------------------------------------
Objector Christopher Andrews filed an appeal from a court ruling
in the lawsuit titled Matthew Edwards, et al. v. National Milk
Producers Federation, et al., Case Nos. 4:11-cv-04766-JSW, 4:11-
cv-04791-JSW and 4:11-cv-05253-JSW, in the U.S. District Court for
the Northern District of California, Oakland.
As previously reported in the Class Action Reporter, lead
plaintiff Matthew Edwards sued a cadre of dairy giants, including
Land O' Lakes, the National Milk Producers Federation, Dairy
Farmers of America and Agri-Mark, in Federal Court in September
2011.
The dairy producers were accused of conspiring to prematurely
slaughter more than 500,000 cows between 2003 and 2010 to limit
the production of raw milk and drive up prices for yogurt, sour
cream and other dairy products.
The appellate case is captioned as MATTHEW EDWARDS; DANELL
TOMASELLA; JEFFREY ROBB; BOYS AND GIRLS CLUB OF THE EAST VALLEY;
SCOTT COOK; KORY PENTLAND; MARY ANDERSON; JULIE EWALD; SCOTT
WEBER; JENNIFER CLITES; JOHN MURRAY; JONATHAN RIZZO; PAUL THACKER;
LORI CURTIS; SHEILA JACKSON; JOHN PEYCHAL; KATHLEEN DAVIS; BRANDON
STEELE, individually and on behalf of all others similarly
situated, Plaintiffs-Appellees v. CHRISTOPHER ANDREWS, Objector-
Appellant v. NATIONAL MILK PRODUCERS FEDERATION, AKA Cooperatives
Working Together; DAIRY FARMERS OF AMERICA, INC.,; DAIRYLEA
COOPERATIVE INC.; LAND O'LAKES, INC.; AGRIMARK, INC., Defendants-
Appellees, Case No. 17-16459, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- August 16, 2017 -- Transcript shall be ordered;
-- September 15, 2017 -- Transcript shall be filed by court
reporter;
-- October 25, 2017 -- Appellant's opening brief and excerpts
of record shall be served and filed pursuant to FRAP 32 and
9th Cir. R. 32-1;
-- November 27, 2017 -- Appellees' answering brief and
excerpts of record shall be served and filed pursuant to
FRAP 32 and 9th Cir. R. 32-1;
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellees' brief,
pursuant to FRAP 32 and 9th Cir. R. 32-1; and
-- Failure of the appellant to comply with the Time Schedule
Order will result in automatic dismissal of the appeal.
See 9th Cir. R. 42-1.[BN]
NATIONAL MILK: Erwin Appeals Ruling in "Edwards" Suit to 9th Cir.
-----------------------------------------------------------------
Objector Ira Conner Erwin filed an appeal from a court ruling in
the lawsuit entitled Matthew Edwards, et al. v. National Milk
Producers Federation, et al., Case Nos. 4:11-cv-04766-JSW, 4:11-
cv-04791-JSW and 4:11-cv-05253-JSW, in the U.S. District Court for
Northern District of California, Oakland.
As previously reported in the Class Action Reporter, lead
plaintiff Matthew Edwards sued a cadre of dairy giants, including
Land O' Lakes, the National Milk Producers Federation, Dairy
Farmers of America and Agri-Mark, in Federal Court in September
2011.
The dairy producers were accused of conspiring to prematurely
slaughter more than 500,000 cows between 2003 and 2010 to limit
the production of raw milk and drive up prices for yogurt, sour
cream and other dairy products.
The appellate case is captioned as Matthew Edwards, et al. v.
National Milk Producers Federation, et al., Case No. 17-16456, in
the United States Court of Appeals for the Ninth Circuit.[BN]
Plaintiffs-Appellees MATTHEW EDWARDS, DANELL TOMASELLA, JEFFREY
ROBB, BOYS AND GIRLS CLUB OF THE EAST VALLEY, SCOTT COOK, KORY
PENTLAND, MARY ANDERSON, JULIE EWALD, SCOTT WEBER, JENNIFER
CLITES, JOHN MURRAY, JONATHAN RIZZO, PAUL THACKER, LORI CURTIS,
SHEILA JACKSON, JOHN PEYCHAL, KATHLEEN DAVIS and BRANDON STEELE,
individually and on behalf of all others similarly situated, are
represented by:
Steven Nathan Berk, Esq.
BERK LAW PLLC
2002 Massachusetts Avenue NW, Suite 1000
Washington, DC 20036
Telephone: (202) 232-7550
Facsimile: (202) 789-1813
E-mail: steven@berklawdc.com
- and -
Steve Berman, Esq.
Craig R. Spiegel, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
craigs@hbsslaw.com
- and -
Elaine T. Byszewski, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
301 North Lake Avenue, Suite 920
Pasadena, CA 91101
Telephone: (213) 330-7150
E-mail: elaine@hbsslaw.com
- and -
Jeff D. Friedman, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Ave.
Berkeley, CA 94710
Telephone: (510) 725-3000
E-mail: jefff@hbsslaw.com
- and -
Jason Scott Kilene, Esq.
GUSTAFSON GLUEK PLLC
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
E-mail: jkilene@gustafsongluek.com
Objector-Appellant IRA CONNER ERWIN is represented by:
Timothy R. Hanigan, Esq.
LANG, HANIGAN & CARVALHO, LLP
21550 Oxnard Street
Woodland Hills, CA 91367
Telephone: (818) 883-5644
E-mail: trhanigan@gmail.com
Defendant-Appellee NATIONAL MILK PRODUCERS FEDERATION, AKA
Cooperatives Working Together, is represented by:
Kenneth P. Ewing, Esq.
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Telephone: (202) 492-6264
Facsimile: (202) 429-3902
E-mail: kewing@steptoe.com
- and -
Dylan Ruga, Esq.
STALWART LAW GROUP
11620 Wilshire Boulevard, 9th Floor
Los Angeles, CA 90025
Telephone: (310) 954-2000
E-mail: dylan@stalwartlaw.com
Defendant-Appellee DAIRY FARMERS OF AMERICA, INC., is represented
by:
Steven Ross Kuney, Esq.
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, NW
Washington, DC 20005
Telephone: (202) 434-5843
Facsimile: (202) 434-5029
E-mail: skuney@wc.com
- and -
William Todd Miller, Esq.
BAKER & MILLER PLLC
2401 Pennsylvania Avenue NW
Washington, DC 20037
Telephone: (202) 663-7820
Facsimile: (202) 663-7849
E-mail: tmiller@bakerandmiller.com
Defendant-Appellee DAIRYLEA COOPERATIVE INC. is represented by:
Lucy Scott Clippinger, Esq.
Edward R. Conan, Esq.
BOND, SCHOENECK & KING, PLLC
One Lincoln Center
Syracuse, NY 13202
Telephone: (315) 218-8297
Facsimile: (315) 218-8100
E-mail: lsclippinger@bsk.com
econan@bsk.com
- and -
William Farmer, Esq.
FARMER BROWNSTEIN JAEGER LLP
235 Pine Street
San Francisco, CA 94104
Telephone: (415) 962-2877
Facsimile: (415) 520-5678
E-mail: wfarmer@fbj-law.com
Defendant-Appellee LAND O'LAKES, INC., is represented by:
Nathan P. Eimer, Esq.
EIMER STAHL, LLP
224 South Michigan Avenue
Chicago, IL 60604
Telephone: (312) 660-7600
Facsimile: (312) 692-1718
E-mail: neimer@eimerstahl.com
- and -
Matthew Stewart Kahn, Esq.
George Arnold Nicoud, III, Esq.
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street
San Francisco, CA 94105
Telephone: (415) 393-8212
Facsimile: (415) 986-5309
E-mail: MKahn@gibsondunn.com
tnicoud@gibsondunn.com
Defendant-Appellee AGRIMARK, INC., is represented by:
Jill M. O'Toole, Esq.
SHIPMAN & GOODWIN LLP
One Constitution Plaza
Hartford, CT 06103
Telephone: (860) 251-5901
Facsimile: (860) 251-5218
E-mail: jotoole@goodwin.com
NATIONWIDE CREDIT: Faces "Witt" Suit in Eastern Dist. of New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Nationwide Credit,
Inc. The case is styled as Christopher Witt, individually and on
behalf of all others similarly situated, the Plaintiff, v.
Nationwide Credit, Inc., the Defendant, Case No. 2:17-cv-04211
(E.D.N.Y., July 15, 2017).
Nationwide Credit, a collection agency, provides customer
relationship and accounts receivable management services.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
SANDERS LAW, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (516) 203 7600
Facsimile: (516) 281 7601
E-mail: csanders@sanderslawpllc.com
NEW YORK, USA: Second Circuit Appeal Filed in "Lackwood" Suit
-------------------------------------------------------------
Plaintiff Mark Lackwood filed an appeal from a District Court
judgment dated June 12, 2017, in the lawsuit titled Lackwood v.
Stanford, et al., Case No. 16-cv-9345, in the U.S. District Court
for the Southern District of New York (New York City).
The lawsuit is brought over alleged violations of prisoner civil
rights.
Mark Lackwood is currently incarcerated at the Otisville
Correctional Facility, in Otisville, New York.
The Defendants are Tina Stanford, Individually and as Chairperson
of the New York State Board of Parole; G. Hallerdin, individually
and as members of the New York State Board of Parole; S. Thompson,
individually and as members of the New York State Board of Parole;
K. Ludlow, individually and as members of the New York State Board
of Parole; M. Coppola, individually and as members of the New York
State Board of Parole; W. Smith, individually and as members of
the New York State Board of Parole; J. Smith, individually and as
members of the New York State Board of Parole; E. Sharkey,
individually and as members of the New York State Board of Parole;
M. Johnson, individually and as members of the New York State
Board of Parole; Cruz, individually and as members of the New York
State Board of Parole; C. Hernandez, individually and as members
of the New York State Board of Parole; J. Ferguson, individually
and as members of the New York State Board of Parole; J. Crangle,
individually and as members of the New York State Board of Parole;
L. Elovich, individually and as members of the New York State
Board of Parole; E. Alexander, individually and as members of the
New York State Board of Parole; and Anthony J. Annucci,
individually and Acting Commissioner of the New York State
Department of Correction and Community Supervision.
The appellate case is captioned as Lackwood v. Stanford, Case No.
17-2217, in the United States Court of Appeals for the Second
Circuit.
Plaintiff-Appellant Mark Lackwood, on behalf of himself and all
others similarly situated, appears pro se.[BN]
The Defendants-Appellees are represented by:
Barbara D. Underwood, Esq.
NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL
120 Broadway
New York, NY 10271
Telephone: (212) 416-8020
E-mail: barbara.underwood@ag.ny.gov
NEW YORK PHYSICIANS: Kiler Sues over Internet Access Barriers
-------------------------------------------------------------
MARION KILER, on behalf of herself and all others similarly
situated, the Plaintiff, v. NEW YORK PHYSICIANS, LLP, the
Defendant, Case No. 156386/2017 (N.Y. Sup. Ct., July 14, 2017),
seeks to put an end to systemic civil rights violations committed
by Defendant, against the blind in New York State.
According to the complaint, the Defendant is denying blind
individuals throughout New York State equal access to the goods
and services New York Physicians provides to their non-disabled
customers through https://newyorkphysicians.com.
Newyorkphysicians.com provides to the public a wide array of the
goods, services, testimonials, and other programs offered by the
New York Physicians medical practice. Yet, Newyorkphysicians.com
contains numerous access barriers that make it difficult if not
impossible for blind customers to use the website. In fact, the
access barriers make it impossible for blind users to even
complete or make an appointment on the website. New York
Physicians thus excludes the blind from the full and equal
participation in the growing Internet economy that is increasingly
a fundamental part of the common marketplace and daily living.
The Plaintiff is a blind individual. She brings this civil rights
class action against Defendant for failing to design, construct,
and/or own or operate a website that is fully accessible to, and
independently usable by, blind people. Specifically,
Newyorkphysicians.com has many access barriers preventing blind
people to independently navigate and complete an appointment using
assistive computer technology.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Telephone: (212) 465 1180
Facsimile: (212) 465 1181
NORTHLAND GROUP: Faces "Meisels" Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Northland Group Inc.
The case is entitled as Nachman Meisels, on behalf of himself and
all other similarly situated consumers, the Plaintiff, v.
Northland Group Inc., the Defendant, Case No. 1:17-cv-04246
(E.D.N.Y., July 17, 2017).
Northland Group provides accounts receivable management and
collection services to national credit grantors, debt buyers, and
student loan lenders.[BN]
The Plaintiff is represented by:
Maxim Maximov, Esq.
MAXIM MAXIMOV, LLP
1701 Avenue P
Brooklyn, NY 11229
Telephone: (718) 395 3459
Facsimile: (718) 408 9570
E-mail: m@maximovlaw.com
NOVARTIS PHARMACEUTICALS: Direct Purchasers Appeal Case Dismissal
-----------------------------------------------------------------
United Food and Commercial Workers Unions and Employers Midwest
Health Benefit Fund, and Laborers Health and Welfare Trust Fund
for Northern California, individually and on behalf of the Direct
Purchaser Class, appeal to the United States Court of Appeals for
the First Circuit from orders and rulings granting the Defendants'
motion to dismiss pursuant to Rules 12(b)(6) and 12(b)(1) of the
Federal Rules of Civil Procedure: Orders dated June 30, 2017, and
July 6, 2017, entered in the lawsuit styled UNITED FOOD AND
COMMERCIAL WORKERS UNIONS AND EMPLOYERS MIDWEST HEALTH BENEFITS
FUND and LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN
CALIFORNIA, on behalf of themselves and others similarly situated
v. NOVARTIS PHARMACEUTICALS CORP., NOVARTIS AG, AND NOVARTIS
CORPORATION, Case No. 15-cv-12732-ADB, in the U.S. District Court
for the District of Massachusetts.
The Plaintiffs do not believe all claims by all parties in the
case have been finally resolved and, therefore, a final judgment
from which an appeal may be taken has not entered. The Plaintiffs
say they are filing this Notice of Appeal out of an abundance of
caution to preserve all appellate rights in the event any of the
aforesaid orders, decisions, rulings, or verdict is construed as a
final judgment.
As previously reported in the Class Action Reporter on July 19,
2017, Judge Allison D. Burroughs has dismissed the cases captioned
UNITED FOOD AND COMMERCIAL WORKERS UNIONS AND EMPLOYERS MIDWEST
HEALTH BENEFITS FUND and LABORERS HEALTH AND WELFARE TRUST FUND
FOR NORTHERN CALIFORNIA, on behalf of themselves and others
similarly situated v. NOVARTIS PHARMACEUTICALS CORP., NOVARTIS AG,
and NOVARTIS CORPORATION; LOUISIANA HEALTH SERVICE AND INDEMNITY
COMPANY d/b/a BLUE CROSS AND BLUE SHIELD OF LOUISIANA, on behalf
of themselves and others similarly situated v. NOVARTIS
PHARMACEUTICALS CORP., NOVARTIS AG, and NOVARTIS CORPORATION;
AFSCME HEALTH AND WELFARE FUND, on behalf of themselves and others
similarly situated v. NOVARTIS PHARMACEUTICALS CORP., NOVARTIS AG,
and NOVARTIS CORPORATION; MINNESOTA LABORERS HEALTH AND WELFARE
FUND, on behalf of themselves and others similarly situated v.
NOVARTIS PHARMACEUTICALS CORP., NOVARTIS AG, and NOVARTIS
CORPORATION; and PENNSYLVANIA EMPLOYEES BENEFIT TRUST FUND, on
behalf of themselves and others similarly situated v. NOVARTIS
PHARMACEUTICALS CORP., NOVARTIS AG, and NOVARTIS CORPORATION, Case
Nos. 15-cv-12732, 15-cv-13461, 15-cv-13724, 15-cv-13725, 15-cv-
13726 (D. Mass.).
Laborers Health and Welfare Trust Fund for Northern California and
Louisiana Health Service and Indemnity Company d/b/a Blue Cross
and Blue Shield of Louisiana brought state-law claims against
Novartis Pharmaceuticals Corporation, Novartis AG, and Novartis
Corporation, on behalf of themselves and all others similarly
situated, for engaging in an alleged "monopolistic scheme" in
connection with Gleevec, a brand-name prescription drug used to
treat certain types of chronic myeloid leukemia and acute
lymphoblastic leukemia. Specifically, the Plaintiffs alleged that
Novartis, which held the patent rights to Gleevec, engaged in
illegal, anticompetitive conduct designed to delay the entry of
generic forms of the drug into the U.S. market.
The appellate case is captioned as UNITED FOOD AND COMMERCIAL
WORKERS UNIONS AND EMPLOYERS MIDWEST HEALTH BENEFITS FUND;
LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, on
behalf of themselves and others similarly situated Plaintiffs-
Appellants, AFSCME HEALTH AND WELFARE FUND, on behalf of
themselves and others similarly situated; MINNESOTA LABORERS
HEALTH AND WELFARE FUND, on behalf of themselves and others
similarly situated; PENNSYLVANIA EMPLOYEES BENEFIT TRUST FUND, on
behalf of themselves and others similarly situated; LOUISIANA
HEALTH SERVICE INDEMNITY COMPANY, d/b/a Blue Cross Blue Shield of
Louisiana, Plaintiffs v. NOVARTIS PHARMACEUTICALS CORPORATION;
NOVARTIS CORPORATION; NOVARTIS AG Defendants-Appellees, Case No.
17-1714, in the United States Court of Appeals for the First
Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant must complete and return the following forms to
the clerk's office by August 2, 2017, to be deemed timely
filed: Appearance Form, Transcript Report/Order Form and
Docketing Statement;
-- Upon confirmation by the circuit clerk that the record is
complete either because no hearing was held, no transcript
is necessary, or the transcript is on file, the clerk's
office will set the briefing schedule and forward a
scheduling notice to the parties;
-- Within seven days of filing the notice of appeal, appellant
must pay the filing fee to the district court clerk. An
indigent appellant who seeks to appeal in forma pauperis
must file a motion and financial affidavit in the district
court in compliance with Fed. R. App. P. 24. Unless the
court is provided with notice of paying the filing fee to
the clerk of the district court or filing a motion seeking
in forma pauperis status within fourteen days of the date
of this notice, this appeal may be dismissed for lack of
prosecution. 1st Cir. R. 3.0(b);
-- An appearance form should be completed and returned
immediately by any attorney who wishes to file pleadings in
this court. 1st Cir. R. 12.0(a) and 46.0(a)(2). Any
attorney who has not been admitted to practice before the
First Circuit Court of Appeals must submit an application
and fee for admission using the court's Case
Management/Electronic Case Files system prior to filing an
appearance form. 1st Cir. R. 46.0(a). Pro se parties are
not required to file an appearance form; and
-- Dockets, opinions, rules, forms, attorney admission
applications, the court calendar and general notices can be
obtained from the court's Web site at www.ca1.uscourts.gov
The parties' attention is called specifically to these
notices: Notice to Counsel and Pro Se Litigants and
Transcript Notice.[BN]
Plaintiff-Appellant United Food and Commercial Workers Unions and
Employers Midwest Health Benefits Fund is represented by:
Bethany R. Turke, Esq.
Justin N. Boley, Esq.
Kenneth A. Wexler, Esq.
WEXLER WALLACE LLP
55 West Monroe Street, Suite 3300
Chicago, Il 60603
Telephone: (312) 346-2222
Facsimile: (312) 346-0022
E-mail: brt@wexlerwallace.com
jnb@wexlerwallace.com
kaw@wexlerwallace.com
- and -
Jonathan D. Karmel, Esq.
KARMEL LAW FIRM
221 N. LaSalle Street, Suite 1307
Chicago, IL 60601
Telephone: (312) 641-2910
E-mail: jon@karmellawfirm.com
Plaintiffs-Appellants United Food and Commercial Workers Unions
and Employers Midwest Health Benefits Fund, and Laborers Health
and Welfare Trust Fund for Northern California, on behalf of
themselves and others similarly situated, are represented by:
Hannah Schwarzschild, Esq.
Thomas M. Sobol, Esq.
Kristen A. Johnson, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
55 Cambridge Parkway, Suite 301
Cambridge, MA 02142
Telephone: (617) 482-3700
Facsimile: (617) 482-3003
E-mail: hannahs@hbsslaw.com
Tom@hbsslaw.com
kristenj@hbsslaw.com
- and -
J. Gerard Stranch, IV, Esq.
Joe P. Leniski, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
227 Second Avenue North, 4th Floor
Nashville, TN 37201
Telephone: (615) 254-8801
Facsimile: (615) 250-3937
E-mail: gstranch@bsjfirm.com
joeyl@bsjfirm.com
- and -
Michael Gilman Stewart, Esq.
Michael J. Wall, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: mikes@bsjfirm.com
mwall@branstetterlaw.com
- and -
John D. Radice, Esq.
Kenneth Pickle, Esq.
RADICE LAW FIRM, PC
34 Sunset Boulevard
Long Beach, NJ 08008
Telephone: (646) 245-8502
E-mail: jradice@radicelawfirm.com
kpickle@radicelawfirm.com
Plaintiffs AFSCME Health and Welfare Fund, on behalf of themselves
and others similarly situated; Minnesota Laborers Health and
Welfare Fund, on behalf of themselves and others similarly
situated; and Pennsylvania Employees Benefit Trust Fund, on behalf
of themselves and others similarly situated, are represented by:
Diana J. Zinser, Esq.
Jeffrey L. Kodroff, Esq.
John A. Macoretta, Esq.
SPECTOR ROSEMAN & KODROFF, P.C.
1818 Market Street, Suite 2500
Philadelphia, PA 19103
Telephone: (215) 496-0300
Facsimile: (215)( 496-6611
E-mail: dzinser@srkattorneys.com
jkodroff@srkattorneys.com
JMacoretta@srkattorneys.com
- and -
Adam M. Stewart, Esq.
SHAPIRO HABER & URMY LLP
Seaport East
Two Seaport Lane, 6th Floor
Boston, MA 02210
Telephone: (617) 439-3939
Facsimile: (617) 439-0134
E-mail: astewart@shulaw.com
Plaintiff Minnesota Laborers Health and Welfare Fund, on behalf of
themselves and others similarly situated, is represented by:
Devona L. Wells, Esq.
Heidi M. Silton, Esq.
Karen H. Riebel, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue, South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: dlwells@locklaw.com
hmsilton@locklaw.com
khriebel@locklaw.com
Plaintiff Louisiana Health Service and Indemnity Company d/b/a
Blue Cross and Blue Shield of Louisiana is represented by:
David Scott Scalia, Esq.
THE DUGAN LAW FIRM
365 Canal Place, Suite 1000
New Orleans, MA 70130
Telephone: (504) 648-0180
E-mail: dscalia@dugan-lawfirm.com
- and -
Adam M. Stewart, Esq.
SHAPIRO HABER & URMY LLP
Seaport East
Two Seaport Lane, 6th Floor
Boston, MA 02210
Telephone: (617) 439-3939
Facsimile: (617) 439-0134
E-mail: astewart@shulaw.com
Defendants-Appellees Novartis Pharmaceuticals Corporation and
Novartis Corporation are represented by:
Alice C.C. Huling, Esq.
ARNOLD & PORTER KAY SCHOLER LLP
250 West 55th Street
New York, NY 10019-9710
Telephone: (212) 836-8311
E-mail: alice.huling@apks.com
- and -
David Barr, Esq.
Katherine O'Brien, Esq.
KAYE SCHOLER LLP
250 West 55th Street
New York, NY 10019-9710
Telephone: (212) 836-7560
E-mail: david.barr@kayescholer.com
katherine.obrien@kayescholer.com
- and -
Laura Scott Shores, Esq.
Matthew Gibbs, Esq.
KAYE SCHOLER LLP
The McPherson Building
Washington, DC 20005-2367
Telephone: (202) 682-3577
E-mail: laura.shores@kayescholer.com
matthew.gibbs@kayescholer.com
- and -
Mark D. Godler, Esq.
Saul P. Morgenstern, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022
Telephone: (212) 836-7087
Facsimile: (212) 836-6487
E-mail: mark.godler@kayescholer.com
saul.morgenstern@kayescholer.com
Defendants-Appellees Novartis Pharmaceuticals Corporation,
Novartis Corporation and Novartis AG are represented by:
William A. Zucker, Esq.
MCCARTER & ENGLISH, LLP
225 Franklin Street
State Street Bank Building, 2200
Boston, MA 02110
Telephone: (617) 345-7016
Facsimile: (617) 204-8016
E-mail: wzucker@mccarter.com
- and -
Wyley S. Proctor, Esq.
MCCARTER & ENGLISH, LLP
265 Franklin Street
Boston, MA 02110
Telephone: (617) 449-6529
Facsimile: (617) 607-9146
E-mail: wproctor@mccarter.com
Defendant-Appellee Novartis AG is represented by:
Grant J. Esposito, Esq.
MORRISON & FOERSTER LLP
250 West 55th Street
New York, NY 10019
Telephone: (212) 468-8000
Facsimile: (212) 468-7900
E-mail: gesposito@mofo.com
- and -
Jessica L Kaufman, Esq.
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, NY 10104
Telephone: (212) 336-4257
Facsimile: (212) 468-7900
E-mail: jkaufman@mofo.com
OCB BANCORP: "Parshall" Suit Balks at Sierra Bancorp Merger
-----------------------------------------------------------
PAUL PARSHALL, On Behalf of Himself and All Others Similarly
Situated, the Plaintiff, v. OCB BANCORP, DONALD G. SCANLIN, JOHN
W. RUSSELL, DAVID BRUBAKER, GEORGE R. MELTON, MARTIN POPS,
DIETRICH SCHMIDT, WILLIAM B. SECHREST, ESTHER WACHTELL, LAWRENCE
E. WILDE III, and SIERRA BANCORP, the Defendants, Case No. 2:17-
cv-04925 (C.D. Cal., July 5, 2017), seeks to enjoin Defendants and
all persons acting in concert with them from proceeding with,
consummating, or closing a proposed transaction, in the event
defendants consummate the proposed transaction, rescinding it and
setting it aside or awarding rescissory damages.
The case is a class action brought on behalf of the public
stockholders of OCB Bancorp against OCB and its Board of
Directors, to enjoin a proposed transaction announced on April 24,
2017, pursuant to which OCB will be acquired by Sierra Bancor. On
April 24, 2017, the Board caused OCB to enter into an agreement
and plan of merger with Sierra. Pursuant to the terms of the
Merger Agreement, OCB stockholders will receive a number of shares
of the common stock of Sierra equal to $14.00 per OCB common
share, subject to certain adjustments. On June 14, 2017,
defendants filed a Form S-4 Registration Statement with the United
States Securities and Exchange Commission (SEC) in connection with
the Proposed Transaction. The Registration Statement omits
material information with respect to the Proposed Transaction,
which renders the Registration Statement false and
misleading. Accordingly, plaintiff alleges herein that defendants
violated Sections 14(a) and 20(a) of the Securities Exchange Act
in connection with the Registration Statement.
OCB Bancorp is a public corporation with shareholders of all
sizes.[BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9107 Wilshire Blvd, Suite 450
Beverly Hills, CA 90210
Telephone: (310) 208 2800
Facsimile: (310) 209 2348
E-mail: jelkins@weisslawllp.com
- and -
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
Righter Parkway, Suite 120
Wilmington, DE 19803
Telephone: (302) 295 5310
Facsimile: (302) 654 7530
- and -
RM LAW, P.C.
1055 Westlakes Dr., Suite 300
Berwyn, PA 19312
Telephone: (484) 324 6800
OHIO STATE: Matt Finkes Joins Antitrust Class Action
----------------------------------------------------
Clay Hall, writing for ABC-6, reports that former Buckeye football
star Matt Finkes is among the 25 or so players who have joined the
class action lawsuit brought by Chris Spielman against The Ohio
State University.
Mr. Spielman alleges improper use of ex-athletes' likenesses in
placards that were hanging in Ohio Stadium for the last two years
tied to a sponsorship deal with Honda.
The antitrust complaint filed July 14 accuses Ohio State and
talent management giant IMG of using athletes' likenesses in
promotional campaigns that rob the athletes of compensation.
"Your image or likeness and brand is a product that holds value,"
Mr. Finkes told ABC-6 on July 17. Mr. Finkes is employed by Ohio
State but thinks the school needs to compensate the 64 players who
were featured in those signage accompanied by Honda. "Ohio State
can use my image to bolster the program or illustrate the
traditions of the school but when you sell that and profit and
you're not including us (former players) in those discussions I
have a problem."
Mr. Finkes played defensive end for the Buckeyes in the mid-90's
and is among the school's career sack leaders.
Linebacker Chris Spielman played at Ohio State from 1985 to 1987.
He was a two-time All-American and three-time Big Ten player, and
winner of the 1987 Lombardi Award honoring the country's top
defensive player. He set a school record for career solo tackles
with 283.
A major breast cancer research center at Ohio State carries the
name of his late wife, Stefanie Spielman, who died of cancer in
2009. Mr. Spielman has raised 20 million dollars on behalf of
Ohio State and its medical facilities.
The antitrust complaint filed July 14 accuses Ohio State and
talent management giant IMG of using athletes' likenesses in
promotional campaigns that rob the athletes of compensation. [GN]
PEOPLE AGAINST DIRTY: Hammack Appeals Ruling in "Vincent" Suit
--------------------------------------------------------------
Objector Ashley Hammack filed an appeal from a District Court
order dated June 20, 2017, entered in the lawsuit entitled Vincent
v. People Against Dirty, PBC, Case No. 16-cv-6936, in the U.S.
District Court for the Southern District of New York (White
Plains).
The appellate case is captioned as Vincent v. People Against
Dirty, PBC, Case No. 17-2218, in the United States Court of
Appeals for the Second Circuit.
As previously reported in the Class Action Reporter on July 13,
2017, the lawsuit was settled for $2.8 million.
On June 20, Judge Nelson S. Roman of the federal court in White
Plains certified the class action lawsuit and approved the
settlement.
People Against Dirty is a public benefit corporation in San
Francisco that markets cleaning products under the Method and
Ecover brands.
The lawsuit was filed on September 2, 2016, and alleged that
People Against Dirty products uses false and misleading packaging
and labels. Plaintiff Wesley Vincent objected to the use of terms
such as "natural," "nontoxic" and "bio-based," alleging that the
cleaning products actually contained ingredients that are
artificial, synthetic or highly processed.[BN]
Plaintiffs-Appellees Wesley Vincent, individually on behalf of
themselves and all others similarly situated; John Does 1-100,
individually on behalf of themselves and all others similarly
situated; and Noelle Morgante, individually on behalf of
themselves and all others similarly situated, are represented by:
Adam Gonnelli, Esq.
THE SULTZER LAW GROUP
280 Highway 35
Red Bank, NJ 07701
Telephone: (732) 741-4290
Facsimile: (888) 749-7747
E-mail: agonnelli@thesultzerlawgroup.com
Plaintiffs-Appellees Wesley Vincent, individually on behalf of
themselves and all others similarly situated; John Does 1-100,
individually on behalf of themselves and all others similarly
situated; Noelle Morgante, individually on behalf of themselves
and all others similarly situated; and Daniel Richman are
represented by:
Jason P. Sultzer, Esq.
THE SULTZER LAW GROUP
77 Water Street
New York, NY 10005
Telephone: (845) 705-9460
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
Objector-Appellant Ashley Hammack is represented by:
David Sibek, Esq.
464 New York Avenue
Huntington Village, NY 11743
Telephone: (631) 300-9399
PHOENIX FINANCIAL: "Koch" Suit Sues over Unsolicited Phone Calls
----------------------------------------------------------------
BARBARA A. KOCH, on behalf of herself and others similarly
situated, the Plaintiff, v. PHOENIX FINANCIAL SERVICES LLC, the
Defendant, Case No. 8:17-cv-01614-EAK-AAS (M.D. Fla., July 3,
2017), seeks to enjoin Defendant from continuing to place calls to
Plaintiff's cellular telephone number, from placing calls to
consumers' cellular telephone numbers by using an automatic
telephone dialing system or an artificial prerecorded voice
without the prior express consent of the consumers under Telephone
Consumer Protection Act and Fair Debt Collection Practices Act.
According to the complaint, Defendant placed calls in an effort to
contact and collect a debt, in default, allegedly owed by a third
party named Shamika -- who Plaintiff does not know. Plaintiff
informed Defendant that she did not know Shamika, that Defendant
was calling the wrong number, and that Defendant should stop
placing calls to her cellular telephone. Despite informing
Defendant that she did not know Shamika and notwithstanding her
instruction to stop calling, Defendant thereafter placed
additional calls to Plaintiff's cellular telephone number.
Defendant is a debt collection company based in Indianapolis,
Indiana.[BN]
The Plaintiff is represented by:
Michael L. Greenwald, Esq.
James L. Davidson, Esq.
Jesse S. Johnson, Esq.
Aaron D. Radbil, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: 561 826 5477
Facsimile: 561 961 5684
E-mail: mgreenwald@gdrlawfirm.com
jdavidson@gdrlawfirm.com
jjohnson@gdrlawfirm.com
aradbil@gdrlawfirm.com
PJJK RESTAURANT: Faces "Placido" Suit Over Failure to Pay OT
------------------------------------------------------------
Alberto Galeana Placido, Luis Lopez Rojas, and Raymundo Alberto
Galeana, individually and on behalf of other similarly situated
v. PJJK Restaurant Corp., Joseph McKenna, Patricia McGreevey, and
Jill Homorodean, Case No. 1:17-cv-05319 (S.D.N.Y., July 13, 2017),
is brought against the Defendants for failure to pay overtime
wages in violation of the Fair Labor Standards Act.
The Defendants own and operate Blondie's restaurant in New York,
New York. [BN]
Alberto Galeana Placido, Luis Lopez Rojas, and Raymundo Alberto
Galeana are pro se plaintiffs.
PLATINUM HOME: Faces "Lawrence" Suit in Northern Dist. of Ohio
--------------------------------------------------------------
A class action lawsuit has been filed against Platinum Home Helper
Services, Ltd. The case is captioned as Ebonique Lawrence, on
behalf of herself and all others similarly situated, the
Plaintiff, v. Platinum Home Helper Services, Ltd.; Platinum
Rehabilitation Ltd., doing business as: Platinum Home Health
Services; and Marc Vasil, the Defendants, Case No. 1:17-cv-01479-
DAP (N.D. Ohio, July 14, 2017). The case is assigned to the Hon.
Judge Dan Aaron Polster.
Platinum Home is a medicare certified home health care agency in
Mayfield Heights, Ohio.[BN]
The Plaintiff is represented by:
Anthony J. Lazzaro, Esq.
Chastity L. Christy, Esq.
Lori M. Griffin, Esq.
LAZZARO LAW FIRM
920 Rockefeller Bldg.
614 Superior Avenue, W
Cleveland, OH 44113
Telephone: (216) 696 5000
Facsimile: (216) 696 7005
E-mail: anthony@lazzarolawfirm.com
chastity@lazzarolawfirm.com
lori@lazzarolawfirm.com
PROCTER & GAMBLE: DACA Intern Files Discrimination Class Action
---------------------------------------------------------------
Dave Simpson, writing for Law360, reports that a prospective
Procter & Gamble Co. intern filed a class action in Florida
federal court on July 17, claiming the company discriminated
against his DACA immigration status when he was not selected for
its internship program.
David M. Rodriguez, a Venezuelan national authorized to work in
the U.S. under the Deferred Action for Childhood Arrivals
initiative, or DACA, said in the suit that he and other non-
permanent residents were not given equal opportunity in P&G job
applications, a violation of the Civil Rights Act of 1866.
"P&G, a multi-billion dollar American multinational consumer goods
company, denies employment opportunities to entire categories of
individuals authorized to work in the United States based on their
alienage," the suit claims. "Specifically, P&G categorically
denies non-citizen job applicants employment with the company in
the United States if they are not U.S. permanent residents,
refugees, or individuals granted asylum, notwithstanding the fact
that the applicants are authorized to live and work in the United
States."
The July 17 suit seeks unspecified damages, back pay, declaratory
judgment that P&G's practice violates the Civil Rights Act, and a
preliminary and permanent injunction for the company to restore
members of the proposed class to their work positions.
Mr. Rodriguez, a 34-year-old who recently graduated Florida
International University, according to the suit had applied for
the paid internship in the company's finance department with the
help of P&G recruiters.
After submitting his application, he received a pre-screening
questionnaire, which included four questions about his immigration
status. He answered "no" to three questions asking if he had
various specific types of immigration and visa statuses and "no"
to a question asking if he would need sponsorship for U.S.
employment visa status, according to the complaint.
In October 2013, when he didn't hear back about his applications,
he emailed the recruiters to ask about the company's immigration
status criteria.
"Mr. Rodriguez's email explained that he possessed a valid work
permit and did not need employer sponsorship to work lawfully in
the United States," the suit claimed.
Two days later, his rejection letter came. Again, he emailed the
recruiters, this time asking for an explanation. According to the
suit, one responded saying that "per P&G policy, applicants in the
U.S. should be legally authorized to work with no restraints on
the type, duration, or location of employment."
The complaint claims that because Rodriguez is eligible to work
under DACA, P&G's rejection of his application based on the fact
that he's not a U.S. citizen, permanent resident, refugee, or
individual granted asylum constitutes as alienage discrimination.
It's not only those with DACA statuses, like Mr. Rodriguez, who
are being discriminated against, the suit claims.
"For example, P&G's requirements for entering into a work contract
with the company also discriminate against visaholders who are
legally authorized to work in the United States, as well as other
recipients of deferred action, including crime victims and
survivors of severe forms of trafficking," the suit claims.
Representatives for Mr. Rodriguez and Procter & Gamble did not
immediately return requests for comment.
Plaintiffs are represented by Jason S. Mazer --
jmazer@vpl-law.com -- and Cary D. Steklof -- csteklof@vpl-law.com
-- of Ver Ploeg & Lumpkin PA, Patrick David Lopez, Sally J.
Abrahamson, Ossai Miazad and Olivia J. Quinto of Outten & Golden
LLP, and Nina Perales and Thomas A. Saenz of The Mexican American
Legal Defense and Educational Fund.
Counsel information for P&G was not immediately available on
July 17.
The case is Rodriguez v. The Procter & Gamble Company, Case No.
1:17-cv-22652 (S.D. Fla.). The case is assigned to Judge Kathleen
M. Williams. The case was filed July 17, 2017. [GN]
R&L CARRIERS: Faces Class Action Over Unpaid Overtime Wages
-----------------------------------------------------------
Philip Gonzales, writing for South East Texas Record, reports that
hourly paid employees have filed a class-action lawsuit against an
employer, citing alleged violation of workers' compensation acts.
Larry E. Robinson Jr., individually and on behalf of all others
similarly situated, filed a complaint June 9 in the Houston
Division of the Southern District of Texas against R&L Carriers
Shared Services LLC, R&L Carriers Payroll LLC and R&L Carriers
Inc. alleging they violated the Fair Labor Standards Act.
According to the complaint, the plaintiffs allege they regularly
worked over 40 hours per week but were not properly compensated at
1.5 times their regular hourly rate for all hours worked over 40
hours. Instead, they were paid straight time for all hours
worked. The plaintiffs hold the defendants responsible because
they allegedly intentionally failed to pay overtime compensation
for all overtime hours they worked.
The plaintiffs request a trial by jury and seek unpaid overtime
compensations, liquidated damages, attorneys' fees, costs and
expenses, pre- and post-judgment interest and such other lawful
relief. They are represented by Mark Siurek and Patricia Haylon
of Warren & Siurek LLP in Houston.
Houston Division of the Southern District of Texas case number
4:17-cv-01762 [GN]
ROCA CAFE: "Sierra" Suit Moved to Southern District of Florida
--------------------------------------------------------------
The class action lawsuit titled Irma Sierra, and other similarly-
situated individuals, the Plaintiff, v. Roca Cafe, Inc.
doing business as: Cacique Corner, a Florida corporation, and
Reinaldo Rocha, individually, the Defendants, , Case No. 17-
015290- CA 01, was removed on July 14, 2017 from the 11th Judicial
Circuit Court, to the U.S. District Court for the Southern
District of Florida (Miami). The District Court Clerk assigned
Case No. 1:17-cv-22638-JEM to the proceeding. The case is assigned
to the Hon. Judge Jose E. Martinez.[BN]
The Plaintiff is represented by:
Anthony Maximillien Georges-Pierre, Esq.
REMER & GEORGES-PIERRE, PLLC
Court House Tower
44 West Flagler Street, Suite 2200
Miami, FL 33130
Telephone: (305) 416 5000
Facsimile: (305) 416 5005
E-mail: agp@rgpattorneys.com
The Defendants are represented by:
Edilberto O. Marban, Esq.
2655 S. LeJeune Road, Suite 804
Coral Gables, FL 33134
Telephone: (305) 448 9292
Facsimile: (305) 448 9477
E-mail: marbanlaw@gmail.com
SAN DIEGO, CA: Faces "Arundel" Suit in S.D. California
------------------------------------------------------
A class action lawsuit has been filed against San Diego City. The
case is captioned as Eric Arundel, Owen Boyer, Jeff Hayes
Robert Kelsey, Alexis Leftridge, Richard Melvin, Michael Sanders
Debra Smith, Richard Stevenson, and Sheri Pasanen, on behalf of
themselves and all others similarly situated, the Plaintiffs, v.
San Diego, City of, in their official capacity; Kevin Faulconer
Mayor, in their official capacity; David Alvarez, City
Councilmember, in their official capacity; Barbara Bry, City
Councilmember, in their official capacity; Chris Cate, City
Councilmember, in their official capacity; Myrtle Cole, City
Councilmember, in their official capacity; Georgette Gomez, City
Councilmember, in their official capacity; Mark Kersey, City
Councilmember. in their official capacity; Scott Sherman, City
Councilmember, in their official capacity; Chris Ward, City
Councilmember, in their official capacity; Lori Zapf, City
Councilmember, in their official capacity; San Diego Police
Department, City of in their official capacity; Shelley Zimmerman
Police Chief, in their official capacity, and Does 1-20, the
Defendants, Case No. 3:17-cv-01433-BEN-BLM (S.D. Cal., July 17,
2017). The case is assigned to the Hon. Judge Roger T. Benitez.
San Diego is a city on the Pacific coast of California known for
its beaches, parks and warm climate. Immense Balboa Park is the
site of the renowned San Diego Zoo, as well as numerous art
galleries, artist studios, museums and gardens. A deep harbor is
home to a large active naval fleet, with the USS Midway, an
aircraft-carrier-turned-museum, open to the public.[BN]
The Plaintiffs are represented by:
Robert Scott Dreher, Esq.
DREHER LAW FIRM
835 Fifth Avenue, Suite 202
San Diego, CA 92101
Telephone: (619) 230 8828
Facsimile: (619) 687 0136
E-mail: scott@dreherlawfirm.com
Hoa Quach, writing for Times of San Diego, reports that the ten
homeless people who filed the proposed federal class-action
lawsuit on July 17, challenges the city of San Diego's enforcement
of its encroachment ordinance as unconstitutional.
The law prohibits placing objects in the public right-of-way.
Lawyers for the plaintiffs said it has become the city's primary
enforcement tool to address homelessness.
"Talk to nearly anyone on the street, and chances are they have
been cited or arrested for encroachment," said attorney
Scott Dreher.
He said the way the city enforces the law doesn't provide for
equal treatment.
A business owner is given notice and warnings, whereas someone
living on the street is punished on the spot, arrested, and
pressured to sign a stay away order barring them from the area,"
Mr. Dreher said.
He said the law was initially enacted to address the placement of
trash dumpsters.
The City Attorney's Office said its lawyers would review the
complaint and consult with city officials.
The lawsuit, filed at the U.S. District Court in San Diego,
alleges that homeless people can't avoid being targeted by the
law.
"If people are living on the street, where do we expect them to
put themselves and their things?" said attorney Kath Rogers. "The
city is effectively punishing people for being homeless."
The lawyers said that if the lawsuit is successful, the city could
no longer punish people living on the street for placing
belongings on public property when they have no alternative.
They're asking for judicial findings that their clients' right
have been violated, and for the city to be barred from using the
law against the homeless in the future. They also asked that
pending charges against their clients be dropped.
Mr. Dreher said he's been involved in prior cases that resulted in
the city funding a storage center for homeless peoples'
belongings, a ban on police destruction of personal property
during sweeps and halting municipal enforcement of the state's
illegal lodging statute between 9 p.m. and 5:30 a.m. [GN]
SANTANDER CONSUMER: Faces "Ponce" Suit in Middle Dist. of Florida
-----------------------------------------------------------------
A class action lawsuit has been filed against Santander Consumer
USA. The case is captioned as Flor Maria Ponce, on behalf of
herself and others similarly situated, the Plaintiff, v. Santander
Consumer USA, Dallas, Texas, the Defendant, Case No. 6:17-cv-
01298-PGB-TBS (M.D. Fla., July 14, 2017). The case is assigned to
the Hon. Judge Paul G. Byron.
The Defendant specializes in automotive financing for dealers and
consumers.[BN]
The Plaintiff appears pro se.
SIGNET JEWELERS: CEO Retires Amid Gender Discrimination Case
------------------------------------------------------------
Drew Harwell, writing for Washington Post, reports that
Mark Light, the Signet Jewelers chief executive at the center of a
sprawling gender-discrimination case, will retire due to "health
reasons" and be replaced at the end of this month, the company
said on July 17.
Light was named CEO in 2014 and worked for 35 years at the retail-
jewelry conglomerate, best known for its brands Jared the Galleria
of Jewelry and Kay Jewelers. He will be replaced by Virginia
"Gina" C. Drosos, who has served on the company's board since
2012.
Light's tenure has been marked by an ongoing class-action
arbitration case in which 69,000 women who worked for a Signet
subsidiary, Sterling Jewelers, alleged that the company
discriminated against them in pay and promotion practices.
Hundreds of women have filed sworn statements in recent years
alleging that they also faced sexual harassment or discrimination,
and Light and other key executives were accused of promoting women
based upon their responses to sexual demands, attorneys for the
women said in a 2013 filing.
Former Sterling employees alleged in sworn statements and in
interviews with The Washington Post that company leaders had
presided over a culture of sexual "preying" on young saleswomen at
company events. Multiple witnesses told attorneys that they saw
Light watching and joining nude and partially undressed female
employees in a swimming pool at one of the company's annual
meetings of managers, according to the 2013 filing.
The company has said the allegations have no merit and a company
chairman in March dismissed the accusations in the sworn
statements, calling them a "purported parallel universe." The
company has in recent months asked a former federal judge to
review company "policies and practices regarding equal opportunity
and workplace expectations" and established a special committee
focused on "respect in the workplace," the company said.
Asked if the executive change was related to the class-action
case, company spokesman David A. Bouffard said on July 17 that Mr.
Light, 55, had decided to retire "due to his need to address his
health issues."
The company canceled an investor meeting in early June due to
Light's health issues, and he has "required multiple
hospitalizations and a couple of surgical procedures" for his
condition, Mr. Bouffard said. The condition is serious but not
life-threatening, he added, and "it will require time and
attention to ensure complete recovery." Mr. Bouffard did not
offer further details about the condition.
The company declined to make Ms. Drosos or Mr. Light available for
comment. Light said in a statement released by the company on July
17 that "given the company's positive direction and my need to
address some health issues, the board and I agreed that it is a
good time for a transition."
Ms. Drosos formerly served as president and chief executive of
Assurex Health, a "personalized medicine company" founded in Ohio
in 2006. Ms. Drosos said in a statement that she is "committed to
successfully executing our strategic priorities." Mr. Bouffard
said the board "unanimously supported her selection and has
complete confidence in her ability to drive the company forward
and deliver value to our stakeholders."
Mr. Light was a veteran of the jewelry giant, and his father,
Nathan Light, served as chief executive of Sterling Jewelers for
two decades. Mark Light retired as chief executive on July 14,
the same day the board appointed Ms. Drosos to the position,
company filings show. The move is effective at the end of this
month.
Mr. Light earned about $7.4 million in salary, stock and bonuses
in the most recent fiscal year, up from $2.4 million in 2014.
Company filings show that his retirement package will include a
full year of salary and a lump sum of his annual bonus, as well as
$200,000 in health benefits, $975,000 on the second and third
anniversaries of his retirement, $50,000 for retirement-planning
services, and $50,000 for "legal fees incurred in connection" with
his retirement agreement.
Signet is the world's largest diamond-jeweler retailer and runs
nearly 3,600 Kay, Jared and Zales jewelry stores around the world.
But weakening jewelry demand in recent months has led to a decline
in revenue.
The $4 billion company's stock has plunged by more than one-third
over the past year, including a steep drop following a Post report
in February about the former employees' sworn statements. The
company's shares slid about 1 percent in trading on July 17.
Mr. Light's retirement announcement follows a number of high-
ranking exits this year. In May, a Signet executive vice
president, Stuart Lee, and a senior vice president, Clark McEwen,
announced their retirements. Last month, Signet's chief operations
officer, Bryan Morgan, resigned due to "violations of company
policy unrelated to financial matters," the company said in
Securities and Exchange Commission filings.
The class-action case, first filed in 2008, is ongoing and
includes current and former female employees of the company
nationwide. Because the case is in private arbitration, most
filings have not been publicly released. A trial is scheduled for
early next year.
Joseph M. Sellers -- jsellers@cohenmilstein.com -- a partner at
the Cohen Milstein law firm and lead counsel for the case, said on
July 17 that lawyers continue to hear from women who have
complained of mistreatment in the company.
"We look forward to the new CEO making long-needed improvements in
the treatment of women in the workplace," Mr. Sellers said. [GN]
SIMONMED IMAGING: "Ader" Action Seeks Overtime Pay
--------------------------------------------------
Keith Ader and Jeffrey Cochran, on behalf of themselves and all
others similarly situated, Plaintiffs, v. Simonmed Imaging
Incorporated and ABC Entities 1-20, John and Jane Does 1-20.,
Defendants, Case No. 2:17-cv-02085 (D. Ariz., June 29, 2017),
seeks overtime payments due, liquidated and treble damages,
injunctive, equitable and legal relief, reasonable attorneys' fees
along with costs pursuant to Fair Labor Standards Act and
Arizona's wage statutes.
SimonMed provides outpatient medical imaging and radiology
services specializing in diagnostic imaging technologies. It
operates at multiple locations in Arizona, California, Florida,
Nevada and Nebraska. Keith Ader and Jeffrey Cochran were employed
as Modality Service Engineer and MRI Field Engineer respectively.
[BN]
Plaintiff is represented by:
Susan Martin, Esq.
Daniel Bonnett, Esq.
Jennifer Kroll, Esq.
MARTIN & BONNETT, P.L.L.C.
4647 N. 32nd Street, Suite 185
Phoenix, AZ 85018
Telephone: (602) 240-6900
SKM RECYCLING: More Than 70 Residents Join Fire Class Action
------------------------------------------------------------
Ashley Argoon, writing for Herald Sun, reports that more than 70
residents and business owners will sign up for a class action
against a Coolaroo recycling plant that continues to burn.
A class action will pursue against the owners and operators of the
SKM Recycling plant, with Maddens Lawyers determining it would go
ahead.
Class action principal Brendan Pendergast said a "substantial"
number of impacted residents had come forward and a lead plaintiff
had agreed to go on the writ.
With those two matters satisfied, he said the decision had been
made to move forward with the class action.
"Many of the people who have contacted us are very agitated at the
fact this is a repeat event," he said.
"This could have been avoided if the proper systems were put in
place to manage the fire risk."
Maddens Lawyers will seek damages for those impacted by the
Coolaroo blaze, the fourth fire at the Coolaroo SKM Recycling
plant since February.
Hundreds of residents were evacuated from more than 100 Dallas
homes while toxic smoke travelled as far away as Port Phillip Bay.
Businesses were shut down after firefighters closed streets to
tackle the blaze, which continues to burn six days later.
Mr Pendergast said some residents still had not returned to their
Dallas homes.
Despite the MFB lifting the evacuation notice, Mr Pendergast said
the clean-up was ongoing and some residents had not been able to
return because of ash and dust.
The dust had impacted ducted heating at some properties while some
residents had sought medical attention for respiratory problems.
The MFB confirmed the fire was expected to continue burning for a
few more days.
Mr Pendergast said the amount of money sought from the owners and
operators of SKM Recycling at Coolaroo would depend on the number
of people who took part in the class action and their
circumstances.
"I think there is significant level of interest and concern and
it's only constrained by our inability to get the message out to
people," he said.
Helen Spriggs, an asthmatic, plans on joining the class action.
The 25-year-old was evacuated from her Dallas home along with her
mother and five nieces and nephews on July 13 and didn't return
for two days.
She said she has since been diagnosed with a lung infection and
has been prescribed steroids, antibiotics and Ventolin.
"It's affected me really badly, I haven't been able to leave the
house or have a proper conversation," she said.
"You'd think by the second fire they'd have something in order so
it wouldn't happen again."
Maddens Lawyers was set to hold a public meeting for residents and
businesses impacted by the blaze at the Coolaroo Hotel at 6:30
p.m. on July 20.
SKM Recycling did not wish to comment. [GN]
SO. CAL PETROLEUM: Underpays Workers, "Rosales" Suit Says
---------------------------------------------------------
DAVID ROSALES, on behalf of himself, and all others similarly
situated, the Plaintiff, v. SO. CAL PETROLEUM TRANSPORT, INC.,
a California corporation dba SUPERIOR TANK LINES; and DOES 1
through 50, inclusive, he Defendant, Case No.BC667537 (Cal. Super.
Ct., July 5, 2017), seeks to recover all wages earned for all
hours worked under California Labor Code.
The Plaintiff alleges that Defendants are liable to him and other
similarly situated current and former employees for unpaid wages
and other related relief. These claims are based on Defendants'
alleged failures to provide all rest and meal periods, pay all
wages earned for all hours worked at the correct rates of pay,
fairly compete, provide accurate written wage statements, and
timely pay final wages upon termination of employment.
So. Cal Petroleum Transport, Inc., doing business as Superior Tank
Lines, supplies refined petroleum products, gasoline, diesel, and
ethanol.[BN]
The Plaintiff is represented by:
David G. Spivak, Esq.
Caroline Tahmassian, Esq.
THE SPIVAK LAW FIRM
16530 Ventura Blvd., Ste 312
Encino, CA 91436
Telephone (818) 582 3086
Facsimile (818) 582 2561
E-mail: david@spivaklaw.com
caroline@spivaklaw.com
SORRELLI TRUCKING: "Kanan" Suit Moved to N.D. Illinois
-----------------------------------------------------
The class action lawsuit titled Amin Kanan, Individually and on
behalf of those Similarly Situated, the Plaintiff, v. Sorrelli
Trucking, Inc. and International Hauling & Excavating, Inc., the
Defendants, Case No. 2017CH6816, was removed on July 5, 2017 from
the Circuit Court of Cook County, to the U.S. District Court for
Northern District of Illinois - (Chicago). The District Court
Clerk assigned Case No. 1:17-cv-04968 to the proceeding. The case
is assigned to the Hon. Judge Robert M. Dow, Jr.
Sorrelli Trucking is a licensed and bonded freight shipping and
trucking company running freight hauling business from Chicago,
Illinois.[BN]
The Plaintiff is represented by:
Matthew M. Saffar, Esq.
LAW OFFICES OF MATTHEW M. SAFFAR
800 E. Northwest Highway Suite1095
Palatine, IL 60074
Telephone: (847) 259 6647
E-mail: saffarlaw@gmail.com
The Defendants are represented by:
Peter James Gillespie, Esq.
Brian Keith Jackson, Esq.
LANER MUCHIN, LTD.
515 N. State Street, Suite 2800
Chicago, IL 60654
Telephone: (312) 467 9800
E-mail: pgillespie@lanermuchin.com
bjackson@lanermuchin.com
SOUTHERN GLAZER'S: Sales Scheme Illegal, "Nguyen" Suit Says
-----------------------------------------------------------
JAMES C. NGUYEN, individually, and on behalf of all others
similarly situated, the Plaintiff, v. SOUTHERN GLAZER'S WINE AND
SPIRITS, LLC, SOUTHERN WINE & SPIRITS OF AMERICA, INC., the
Defendants, Case No. 5:17-cv-03805-HRL (N.D. Cal., July 5, 2017),
seeks to recover damages, interest, restitution, injunctive and
other equitable relief, an accounting of all monies unlawfully
collected and held by Southern, reasonable attorneys' fees and
costs and disgorgement of all benefits Southern has enjoyed from
its numerous unlawful and/or deceptive business practices.
According to the complaint, the Plaintiff asserts that Southern
knowingly engaged in unfair, unlawful, deceptive, and fraudulent
business practices vis-a-vis a common sales and distribution
scheme that runs afoul of a multitude of California state and
federal unfair competition laws and fraud protection statutes.
Some of the more prominent features of this unlawful scheme
include providing class members' account numbers (granted to them
by Southern) and/or government agency-provided liquor license
numbers to third-parties without class members' knowledge or
consent, and with direct knowledge and/or reason to know that such
numbers would be used by said third-parties to charge alcohol to
class members' accounts, create tax liabilities for class members
and/or otherwise threaten class members' liquor licenses and
business operations.
Southern Glazer's Wine and Spirits of America is the largest wine
and spirits distributor in the United States with operations in 35
states. Southern's portfolio is 45% wine and 55% spirits. [BN]
The Plaintiff is represented by:
Scott Edward Cole, Esq.
Kevin Francis Barrett, Esq.
Teresa Denise Allen, Esq.
Corey Benjamin Bennett, Esq.
SCOTT COLE & ASSOCIATES, APC
1970 Broadway, Ninth Floor
Oakland, CA 94612
Telephone: (510) 891 9800
Facsimile: (510) 891 7030
E-mail: scole@scalaw.com
kbarrett@scalaw.com
tallen@scalaw.com
cbennett@scalaw.com
- and -
Kelley Gelini, Esq.
Wesley Wakeford, Esq.
WAKEFORD GELINI
275 Battery, Suite 1300
San Francisco, CA 94111
Telephone: (415) 578 3510
Facsimile: (415) 294 2890
E-mail: wes@wakefordlaw.com
kelley@wakefordlaw.com
SPEEDPAY INC: Eleventh Circuit Appeal Filed in "Pincus" Suit
------------------------------------------------------------
Plaintiff Caryn Pincus filed an appeal from a court ruling in the
lawsuit titled Caryn Pincus v. Speedpay, Inc., Case No. 9:15-cv-
80164-KAM, in the U.S. District Court for the Southern District of
Florida.
As previously reported in the Class Action Reporter, the case is
about Speedpay Inc.'s alleged ongoing, statewide criminal
enterprise of unlawfully collecting surcharges from Florida
consumers while unlicensed.
The appellate case is captioned as Caryn Pincus v. Speedpay, Inc.,
Case No. 17-13077, in the United States Court of Appeals for the
Eleventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant's Certificate of Interested Persons was due
July 28, 2017, as to Appellant Caryn Pincus; and
-- Appellee's Certificate of Interested Persons is due on or
before August 4, 2017, as to Appellee Speedpay, Inc.[BN]
Plaintiff-Appellant CARYN PINCUS, an individual, on behalf of
herself and all others similarly situated, is represented by:
Patrick Christopher Crotty, Esq.
Sean Martin Holas, Esq.
Scott D. Owens, Esq.
SCOTT D. OWENS, PA
3800 S Ocean Dr., Suite 235
Hollywood, FL 33019
Telephone: (954) 589-0588
Facsimile: (954) 337-0666
E-mail: pccrotty@gmail.com
sean@scottdowens.com
scott@scottdowens.com
- and -
Michael R. Karnuth, Esq.
Keith J. Keogh, Esq.
KEOGH LAW, LTD.
55 W Monroe St., Suite 3390
Chicago, IL 60603
Telephone: (312) 726-1092
Facsimile: (312) 726-1093
E-mail: mkarnuth@keoghlaw.com
Keith@KeoghLaw.com
- and -
Bret L. Lusskin, Esq.
BRET LUSSKIN, P.A.
20803 Biscayne Blvd., Suite 302
Aventura, FL 33180
Telephone: (954) 454-5841
E-mail: blusskin@lusskinlaw.com
Defendant-Appellee SPEEDPAY, INC., a New York corporation, is
represented by:
Eric S. Mattson, Esq.
Lisa E. Schwartz, Esq.
SIDLEY AUSTIN, LLP
1 S Dearborn St.
Chicago, IL 60603
Telephone: (312) 853-7000
E-mail: emattson@sidley.com
lschwartz@sidley.com
- and -
Richard Bec, Esq.
Elio F. Martinez, Jr., Esq.
ESPINOSA TRUEBA MARTINEZ
1428 Brickell, Suite 100
Miami, FL 33131
Telephone: (305) 854-0900
E-mail: rbec@etlaw.com
emartinez@etlaw.com
- and -
Susan H. Boyles, Esq.
Daniel R. Taylor, Esq.
KILPATRICK TOWNSEND & STOCKTON LLP
1001 W 4th St.
Winston-Salem, NC 27101-2400
Telephone: (336) 607-7300
Facsimile: (336) 734-2649
E-mail: Sboyles@kilpatricktownsend.com
Dantaylor@kilpatricktownsend.com
- and -
Joseph S. Dowdy, Esq.
KILPATRICK TOWNSEND & STOCKTON, LLP
4208 Six Forks Rd., Suite 1400
Raleigh, NC 27609
Telephone: (919) 420-1718
E-mail: JDowdy@kilpatricktownsend.com
- and -
Carlos Francisco Concepcion, Esq.
JONES DAY
600 Brickell Ave., Suite 3300
Miami, FL 33131-3311
Telephone: (305) 714-9717
Facsimile: (305) 714-9799
E-mail: cconcepcion@jonesday.com
STRATEGIC HOTELS: "White" Suit Sues over Credit Card Fraud
----------------------------------------------------------
PATRICK WHITE, individually and on behalf of all similarly
situated individuals, the Plaintiff, v. STRATEGIC HOTELS &
RESORTS, LLC, a Delaware limited liability company, FOUR SEASONS
HOTELS LIMITED, a Canada corporation, and DOES 1 through 10,
inclusive, the Defendants, Case No. 17CIV03178 (Cal. Super. Ct.,
July 14, 2017), alleges that Plaintiff White used his Visa credit
card to pay for his hotel stay at the Four Seasons Hotel Silicon
Valley at East Palo Alto. The receipt generated and provided to
him by Defendants contained more than the last five digits of the
credit card account number and the expiration date of his credit
card, in violation of 15 U.S.C. section 1681c(g). The Plaintiff
alleges, for some or all of the time period beginning January I,
2015, if not earlier, through at least April 2017, Defendants have
provided non-compliant credit card receipts through machines that
were provided to customers at the point of sale. Despite having
more than a decade to become compliant with the Fair and Accurate
Credit Transactions Act, Defendants have willfully violated this
law and failed to protect Plaintiff and others similarly situated
against identity theft and credit card fraud by printing more than
the last five digits of the credit card account number or the
expiration date on credit card cardholders' receipts when they
transact business with Defendants.
Strategic Hotels & Resorts, Inc is an equity real estate
investment trust. The firm invests in the real estate markets of
the United States.[BN]
The Plaintiff is represented by:
Kenneth S. Gaines, Esq.
Daniel F. Gaines, Esq.
Alex P. Katofsky, Esq.
Evan S. Gaines, Esq.
GAINES & GAINES, APLC
27200 Agoura Road, Suite 101
Calabasas, CA 91367
Telephone: (818) 703 8985
Facsimile: (818) 703 8984
E-mail: ken@gaineslawfirm.com
daniel@gaineslawfirn1.com
alex@gaineslawfirm.com
evan@gaineslawfirm.com
STRATICON LLC: "Plamondon" Suit Moved to S.D. Florida
-----------------------------------------------------
The class action lawsuit titled Jeremy C. Plamondon, and other
similarly situated individuals, the Plaintiff, v. Straticon, LLC,
a Foreign Limited Liability Company; CHRIS HARDIN, individually;
and JEFF HARDIN, individually, the Defendants, Case No. 17-
013404CA01, was removed on July 14, 2017 from the 11th Judicial
Circuit, to the U.S. District Court for the Southern District of
Florida (Miami). The District Court Clerk assigned Case No. 1:17-
cv-22647-FAM to the proceeding. The case is assigned to the Hon.
Judge Federico A. Moreno.[BN]
The Plaintiff is represented by:
Anthony Maximillien Georges-Pierre, Esq.
REMER & GEORGES-PIERRE, PLLC
Court House Tower
44 West Flagler Street, Suite 2200
Miami, FL 33130
Telephone: (305) 416 5000
Facsimile: (305) 416 5005
E-mail: agp@rgpattorneys.com
The Defendants are represented by:
John Cody German, Esq.
Rebecca Rae Anguiano, Esq.
COLE SCOTT KISSANE PA
9150 South Dadeland Boulevard, Suite 1400
Miami, FL 33156
Telephone: (305) 350 5300
E-mail: Cody.German@csklegal.com
Rebecca.Anguiano@csklegal.com
SUN PHARMACEUTICAL: ArCare Suit Moved to District of New Jersey
---------------------------------------------------------------
The class action lawsuit titled ARCARE, INC., an Arkansas
Corporation, on behalf of itself and all others similarly
situated, the Plaintiff, v. SUN PHARMACEUTICAL INDUSTRIES, INC.,
the Defendant, Case No. MID-L2984-17, was removed on July 14, 2017
from the Superior Court of New Jersey, Middlesex County, to the
U.S. District Court for the District of New Jersey (Trenton). The
District Court Clerk assigned Case No. 3:17-cv-05146-BRM-DEA
to the proceeding. The case is assigned to the Hon. Judge Brian R.
Martinotti.
Sun Pharmaceutical manufactures, markets and/or distributes more
than 141 drugs in the U.S.[BN]
The Plaintiff is represented by:
Diane E. Sammons, Esq.
NAGEL RICE, LLP
103 Eisenhower Parkway
Roseland, NJ 07068
Telephone: (973) 618 0400
E-mail: dsammons@nagelrice.com
The Defendant is represented by:
Brian P. Matthews, Esq.
Diane A. Bettino, Esq.
Paul Jeffrey Bond, Esq.
REED SMITH LLP
Princeton Forrestal Village
136 Main Street, Suite 250
Princeton, NJ 08540
Telephone: (609) 524 2057
E-mail: BMatthews@ReedSmith.com
dbettino@reedsmith.com
pbond@reedsmith.com
SUNRISE CREDIT: Accused of Wrongful Conduct Over Debt Collection
----------------------------------------------------------------
Lauren Gibbons, on behalf of herself and all others similarly
situated v. Sunrise Credit Services Inc., Case No. 2:17-cv-04177-
JFB-GRB (E.D.N.Y., July 13, 2017), seeks to stop the Defendant's
unfair and unconscionable means to collect a debt.
Sunrise Credit Services Inc. provides credit and accounts
receivables management services for credit grantors in the United
States. [BN]
The Plaintiff is represented by:
Mitchell L. Pashkin, Esq.
MITCHELL PASHKIN ATTORNEY AT LAW
775 Park Avenue, Ste. 255
Huntington, NY 11743
Telephone: (631) 335-1107
E-mail: mpash@verizon.net
T&R MARKET: Faces "DeJolie" Class Suit in New Mexico
----------------------------------------------------
A class action lawsuit has been commenced against T&R Market,
Inc., Tancorde Finance, Inc., T&R Tax Service, Inc.
The case is captioned William DeJolie and Sammia DeJolie, on their
own behalf and on behalf of all others similarly situated v. T&R
Market, Inc., Tancorde Finance, Inc., T&R Tax Service, Inc., Case
No. 1:17-cv-00733 (D.N.M., July 13, 2017).
The Defendants own and operate a grocery store in Gallup, New
Mexico. [BN]
The Plaintiff is represented by:
Nicholas H. Mattison, Esq.
FEFERMAN & WARREN
300 Central Ave. SW, Suite 2000W
Albuquerque, NM 87102
Telephone: (505) 243-7773
Facsimile: (505) 243-6663
E-mail: nmattison@swcp.com
TELE PAY: Faces Minimum Wage Class Action in California
-------------------------------------------------------
Wadi Reformado, writing for Northern California Record, reports
that an Orlando woman alleges that she earns less than the minimum
wage for her work with a national telephone sex-talk purveyor and
has filed a class-action complaint.
Anne Cannon filed a complaint on behalf of all others similarly
situated on June 27 in the U.S. District Court for the Central
District of California against Tele Pay USA alleging violation of
the Fair Labor Standards Act.
According to the complaint, the plaintiff has been employed by the
defendant since 2008 as an actor for its telephone sex-talk
business. The plaintiff holds Tele Pay USA responsible because the
defendant allegedly failed to pay minimum wage to the plaintiff,
misclassified them as independent contractors and failed to pay
for overtime work.
The plaintiff requests a trial by jury and seeks overtime pay,
compensatory damages, liquidated damages, interest, a minimum
wages, all legal fees and any other relief as this court deems
just. She is represented by Brian H. Mahany of The Mahany Law Firm
in Milwaukee, Wisconsin; John Bruster Loyd of Jones, Gillaspia and
Loyd in Houston; and Joseph M. Tully of Tully & Weiss in Martinez.
U.S. District Court for the Central District of California case
number 2:17-cv-04740-AB-RAO [GN]
TEVA PHARMA: S Horowitz Attorney Discusses Class Action Ruling
--------------------------------------------------------------
Dovev Apel, Esq. -- doveva@s-horowitz.com -- of S Horowitz & Co.,
in an article for Lexology, reports that preparations of
pharmaceutical companies often constitute a "target" for the
submission of class actions. Thus, for instance, based on the
ground of "damage to autonomy", suits are filed, from time to
time, regarding the information included in the patient leaflet,
or as a consequence of a product recall from the market due to
concern of the preparation being defective. The aforesaid claims
are filed even if no damage is caused to the patient population
(other than damage that is claimed as "denying the right of
choice"), and which by most accounts gives rise to complex
questions in the scientific-medical area.
Sometimes a class action plaintiff acts hastily to submit his
claim while foregoing the need to invest the resources associated
with clarifying the scientific issues, and particularly the need
to support his claim with a valid medical expert opinion. In a
decision that was recently rendered, concerning legal proceedings
in which our firm represented Teva Pharmaceutical Industries Ltd.,
the Tel-Aviv District Court conveyed a clear message to class
action plaintiffs: there are no shortcuts! In the absence of a
medical expert opinion, a motion seeking class action
certification, based on scientific-medical grounds, will be
dismissed in limine.
The decision clarifies and hones the standard by which a class
action ought to comply, and generates a "chilling effect" with
respect to class actions in the area of pharmaceutical
preparations. This effect will help reduce the phenomenon of
abuse of the mechanism of class action lawsuits in the area of
pharmaceuticals and in similar areas that arouse scientific
issues.
A. THE BACKGROUND TO THE DECISION
A motion to approve a class action was filed against Teva in
connection with the purported defect in a preparation manufactured
and marketed by it (hereinafter, respectively, "the Motion" and
"the Preparation"). The claim was based on a "recall" notice
regarding a specific batch of the Preparation, due only to the
concern of the existence of a defect in a small number of bottles.
The Motion also included various claims of the possible
implications of the purported defect in the medical field. The
plaintiff demanded for himself, and for all patients who took the
Preparation, compensation for only pecuniary damage in the sense
of "damage to autonomy" as well as reimbursement of the purchase
price paid for the Preparation. However, the plaintiff refrained
from presenting an evidentiary framework allegedly establishing
his claims in the medical-scientific arena, by means of submitting
a medical expert opinion as required by law.
In these circumstances, Teva petitioned the court seeking for the
dismissal, in limine, of the Certification Motion and the claim.
B. THE DISTRICT COURT'S DECISION
The court accepted Teva's position and held that the claim falls
within the exceptional circumstances that justify dismissal in
limine, even prior to carrying out a preliminary investigation of
the Certification Motion (as distinct, for example, from striking
out the claim in limine, that would have allowed the plaintiff to
submit his claim from anew). The court's decision gives rise to a
number of holdings which have broad implication:
Firstly, the court implemented the basic principle that in the
absence of a medical expert opinion, there is no evidentiary basis
to the plaintiff's claims that he indeed took a defective
Preparation, and thus the basis to the existence of the claimed
right to receive compensation is void. In the absence medical
expert opinion, the Motion is based on circumstantial speculation
that lacks positive proof that the plaintiff indeed consumed the
Preparation and what medical implications can be attributed
thereto.
It stems from the decision that the notice regarding recall of the
Preparation from the market, does not, in and of itself,
automatically establish for a plaintiff a ground for submitting a
class action. These factors receive secondary validity,
particularly, where notice of a recall of products from the market
is done for the sake of caution only, on account of a suspected
defect whose existence cannot be established with certainty.
Secondly, the court held that the Motion is "one example of many"
class actions that are hastily submitted to court, without making
adequate inquiries or appropriate preparations for the legal
proceedings. The court criticized this phenomenon, and ruled that
the source for this practice is a personal motivation of the
representative plaintiff "to be the first to file suit", even at
the cost of not having appropriately tested or having any basis
for the Certification Motion. [GN]
TOP GUARD: "Guerrero" Suit Seeks Unpaid Overtime Wages under FLSA
-----------------------------------------------------------------
JOSSUE GUERRERO, the Plaintiff, v. TOP GUARD PROFESSIONALS, INC.,
a Florida corporation, ORLANDO GARCIA, individually, and YOLANDA
GARCIA, individually, the Defendants, Case No. 1:17-cv-22474-UU
(S.D. Fla., July 3, 2017), seeks to recover unpaid overtime wages,
liquidated damages, reasonable attorney's fee and costs from
Defendants under the Fair Labor Standards Act.
The Plaintiff also requests the Court to authorize concurrent
notice to all persons who were formerly employed by Defendant or
who were so employed during the Liability Period, informing them
of the pendency of this action and their right to opt into this
lawsuit pursuant to the FLSA.
According to the complaint, the Defendants failed to comply with
Title 29 U.S.C. sections 201 - 209, in that Plaintiff and those
similarly situated to Plaintiff performed services for Defendants
for which no provision were made by the Defendants to properly pay
Plaintiffs for those hours worked in excess of 40 hours within a
work week.
Top Guard Security provides uniformed unarmed and armed private
security officer.[BN]
The Plaintiff is represented by:
Brian J. Militzok, Esq.
MILITZOK LAW, P.A.
Wells Fargo Building
4600 Sheridan Street, Suite 402
Hollywood, FL 33021
Telephone: (954) 780 8228
Facsimile: (954) 719 4016
E-mail: bjm@militzoklaw.com
TOYOTA FINANCIAL: Can Arbitrate 2015 Class Action, Judge Rules
--------------------------------------------------------------
Huixin Deng, writing for Auto Finance News, reports that Toyota
Financial Services was granted argument to compel arbitration for
a 2015 class action case, which alleges the captive charged
illegal fees when repossessing leased vehicles, according to a
case ruling outline.
Plaintiff Gregory Thomas -- a resident in San Rafael, Calif. --
filed the putative class action case in June 2015. The suit
claimed violations of California's Consumer Legal Remedies Act and
Unfair Competition Law. Los Angeles Superior Court Judge Jane L.
Johnson granted Toyota's argument to compel arbitration -- which
is a non-judicial, dispute resolution procedure -- finding that
the plaintiff's signed class action waiver is enforceable.
Arbitration is generally a hearing with testimony from witnesses
before one or more neutral persons. At the end of the hearing, the
neutral persons issue a final and binding award regarding all
subject matter submitted.
Thomas alleged Toyota had inflated deficiency balances by charging
"supposedly" overdue lease payments, failing to give "refundable
security deposits" and "adding additional repossession, auction,
and storage charges," according to the complaint report.
Defendant Toyota Motor Credit Corp. -- dba Toyota Financial
Services -- is "taking advantage of this fact [that many consumers
do not have sufficient knowledge and/or mathematical skills to
understand and/or double check the lender's calculations] by
overcharging consumers whose leased automobiles it repossesses,"
Mr. Thomas claimed in the report.
Back in November 2015, Judge Johnson had already issued a written
tentative ruling indicating that she would "grant the motion," as
the captive had provided evidence that Thomas signed a lease
agreement containing an arbitration clause.
In the wake of the U.S. Supreme Court's landmark 2011 ruling in
AT&T Mobility v. Concepcion, the agreements' class-action waiver
is enforceable. However, Judge Johnson -- back in November --
said she would "consider staying the case as requested by Vachon
(who represented Thomas) to allow the California Supreme Court to
rule in the case of McGill v. Citibank NA, in which the high court
can decide whether Citibank can force arbitration of an insurance
consumer class's injunctive relief claims."
Toyota is represented by Donna Wilson -- dlwilson@manatt.com -- of
Manatt Phelps & Phillips. Ms. Wilson declined to comment for this
story. Toyota did not comment by press time. [GN]
TRANSDEV SERVICES: "Scott" Suit Moved to N.D. California
--------------------------------------------------------
The class action lawsuit titled Derrick Scott and Reyna Cuevas, on
behalf of themselves, all others similarly situated, and on behalf
of the general public, the Plaintiffs, v. Transdev Services, Inc.
and Transdev North America, Inc., the Defendants, Case No.
RG17846786, was removed on July 5, 2017 from Alameda County
Superior Court, to the U.S. District Court for the Northern
District of California (San Francisco). The District Court Clerk
assigned Case No. 3:17-cv-03826-LB to the proceeding. The case is
assigned to the Hon. Magistrate Judge Laurel Beeler.
Transdev North America is the largest private sector operator of
multiple modes of transit in North America, providing bus, rail,
paratransit, shuttle, sedan and taxi services.[BN]
The Plaintiffs are represented by:
David Thomas Mara, Esq.
Jamie Kathryn Serb, Esq.
Katharine McCall, Esq.
William David Turley, Esq.
THE TURLEY & MARA LAW FIRM, APLC
7428 Trade Street
San Diego, CA 92121
Telephone: (619) 234 2833
Facsimile: (619) 234 4048
E-mail: dmara@turleylawfirm.com
jserb@turleylawfirm.com
kmccall@turleylawfirm.com
bturley@turleylawfirm.com
The Defendants are represented by:
Paul Michael Gleason, Esq.
Torey Joseph Favarote, Esq.
GLEASON & FAVAROTE LLP
835 Wilshire Blvd., Suite 200
Los Angeles, CA 90017
Telephone: (213) 452 0510
Facsimile: (213) 452 0514
E-mail: pgleason@gleasonfavarote.com
tfavarote@gleasonfavarote.com
TRANSWORLD SYSTEMS: Placeholder Bid for Class Certification Filed
-----------------------------------------------------------------
In the lawsuit styled TINA NYGAARD, on behalf of herself and all
others similarly situated, the Plaintiff, v. TRANSWORLD SYSTEMS,
INC.; a California Corporation; and, JOHN AND JANE DOES NUMBERS 1
THROUGH 25, the Defendants, Case No. 1:17-cv-00934-WCG (E.D.
Wisc.), Ms. Nygaard asks the Court to enter an order certifying a
class of:
"all persons with addresses in the State of Wisconsin, to whom
Transworld Systems, Inc. mailed an initial written collection
communication, which failed to disclose the amount of the debt
being collected was accruing interest and other charges,
during the period beginning July 10, 2016 and ending July 31,
2017."
Excluded from the Class are Defendants, their respective officers,
members, partners, managers, directors and employees, their
respective immediate families, legal counsel for all parties to
this action, and all members of their immediate families.
The Plaintiff further asks the Court that her attorneys, Stern
Thomasson LLP, be appointed counsel for the class.
This case involves a letter Transworld mailed Plaintiff on or
around December 9, 2016 to collect an alleged debt she incurred
for personal medical services. Plaintiff received the Letter in
the ordinary course of mail. The Plaintiff claims Defendants
violated the Fair Debt Collection Practices Act.
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=cRGDYjjK
The Plaintiff is represented by:
Philip D. Stern, Esq.
Heather B. Jones, Esq.
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone: (973) 379 7500
Facsimile: (973) 532 5868
E-Mail: philip@sternthomasson.com
andrew@sternthomasson.com
heather@sternthomasson.com
TWO RIVERS: Winnebago Board May Pursue Class Action
---------------------------------------------------
KIOW reports that the Winnebago County Board of Supervisors have
been contemplating a settlement with Two Rivers Insurance Services
over alleged overcharging of fees between over 20 counties, school
districts, and a public works department. Two Rivers is alleged
to have not disclosed what appear to be hidden consultation fees
they charged over several years to many of their customers who
were the aforementioned entities.
On July 11, the board first held an open session to initially talk
about the settlement which was brokered by the Iowa Insurance
Division. Then the board and County Attorney Adam Sauer went into
a closed session to discuss specifics.
What is at issue is the amount that the county will receive in the
settlement. The county was billed over $80,000 by Two Rivers, but
in the settlement, the county will receive $5,712 and Two Rivers
will keep the nearly remaining $75,000. That does not sit well
with some on the board who are looking for money to offset other
costs that will be or are being incurred by the county in other
areas.
Mr. Sauer tried explain to the board how the Iowa Insurance
Division arrived at the settlement figure for Winnebago County.
Mr. Sauer also explained to the board that it would be best if the
county would talk with other counties affected by the settlement
and have not agreed to the settlement, to see if interest is there
to pursue a class action lawsuit. Several counties, including
Hancock County have been allegedly overcharged over $100,000 and
will receive less that one fifth in restitution from the
settlement.
Hancock County has not signed on to the agreement and has not
addressed the matter after the initial offer from Two Rivers and
the Iowa Insurance Division. Like Winnebago, they are waiting to
see if other counties will enter into a class action lawsuit.
Two Rivers Insurance Services is based out of Illinois and is part
of a larger scale banking and investment firm. They represented
Blue Cross Blue Shield / Wellmark Insurance Company to several
counties and schools in Iowa. When Wellmark learned of the
alleged overcharging, Two Rivers was immediately dropped as a
representative of the company. However, in the most recent
renewal with Wellmark by Winnebago County, a Two Rivers
representative was present at the meeting and presented the
renewal package to the supervisors. Since that time, Supervisor
Terry Durby has moved that the county explore other insurance
options when budget negotiations take place later this year. [GN]
U.S. EQUITIES: Faces "Yentzer" Suit in Southern Dist. of New York
-----------------------------------------------------------------
A class action lawsuit has been filed against U.S. Equities Corp.
The case is titled as Christopher A. Yentzer, On behalf of himself
and all others similarly situated, the Plaintiff, v. Linda Strumpf
and U.S. Equities Corp., the Defendants, Case No. 7:17-cv-05362-CS
(S.D.N.Y., July 14, 2017). The case is assigned to the Hon. Judge
Cathy Seibel.
USA Equities provides real estate services. The Company offers
real estate sales and financing, land development, and property
management.[BN]
The Plaintiff is represented by:
Mitchell L. Pashkin, Esq.
25 Harriet Lane
Huntington, NY 11743
Telephone: (631) 335 1107
Facsimile: (631) 824 9328
E-mail: mpash@verizon.net
VEIN CENTERS: Judge Decertifies TCPA Class Action
-------------------------------------------------
Sam Knef, writing for St. Louis Record, reports that U.S. District
Judge Catherine Perry has decertified a Telephone Consumer
Protection Act (TCPA) class action, finding a lack of proof of
class membership.
Judge Perry issued the ruling July 5 in a case that St. Louis
Heart Center brought against Vein Centers for Excellence, alleging
the marketing firm -- which provides graphic design and other
services to doctors -- sent it and thousands of others "junk
faxes." The case was originally filed in St. Louis County Circuit
Court in 2011 and was removed to the Eastern District of Missouri
in 2012.
According to the ruling, a notice had been sent to potential class
members with only one opt-out being returned.
Heart Center's move for summary judgment followed, as did a
request for statutory damages for 35,211 unsolicited fax
transmissions, which by law could have netted plaintiffs up to
$17.6 million.
Judge Perry denied summary judgment because, "no absent class
member could prove that they were 'sent' a Vein Centers junk fax,
as required by the class definition" based on the evidence
presented, she wrote.
"Although Heart Center provided evidence of the number of
successfully transmitted junk faxes by Vein Centers, there was no
evidence of exactly which fax numbers were successfully sent the
junk faxes, and so the plaintiff class was not entitled to summary
judgment."
Vein Centers also sought summary judgment, or alternatively class
decertification, which Perry granted. She ruled that the case
could proceed to trial with Heart Center as the only named
plaintiff.
"Based on the Eighth Circuit's recent opinion discussing the
'ascertainability' requirement for class certification . . . and
the fact that Heart Center provides no objective criteria or
common evidence for identifying potential class members, the class
in this case will be decertified," Judge Perry wrote.
Judge Perry further ruled that attorneys for the parties should
propose by July 20 a joint proposed schedule for all remaining
steps necessary to resolve the case, including proposed trial
dates and the anticipated length of the trial.
Heart Center is represented by Max G. Margulis of Margulis Law
Group in Chesterfield.
Vein Centers is represented by Don V. Kelly of Evans and Dixon in
St. Louis.
VISITING NURSE: "Brown" Suit Seeks Unpaid Wages under Labor Law
---------------------------------------------------------------
SHATEKQUA BROWN, on behalf of herself and those similarly
situated, the Plaintiff, v. VISITING NURSE SERVICE OF NEW YORK and
NEW PARTNERS, INC. d/b/a PARTNERS IN CARE, the Defendants, Case
No. 156349/2017 (N.Y. Sup. Ct., July 14, 2017), seeks to recover
wages and benefits which Plaintiffs were statutorily and
contractually entitled to receive pursuant to New York Labor Law.
The action is brought on behalf of the Plaintiff Shatekqua Brown
and a putative class of individuals who are citizens of the State
of New York and are presently or were formerly employed by the
Defendants to provide personal care, assistance, health-related
tasks and other home care services to Defendants' clients within
the State of New York.
According to the complaint, the Defendants have maintained a
policy and practice of requiring Plaintiffs to regularly
work in excess of eight hours per day, without providing the
proper hourly compensation for all hours worked, overtime
compensation for all hours worked in excess of 40 hours in any
given week, and "spread of hours" wages compensation.
Founded in 1893 by nursing pioneer Lillian D. Wald and Mary M.
Brewster, the Visiting Nurse Service of New York is one the
largest not-for-profit home- and community-based health care
organization.[BN]
The Plaintiff is represented by:
Lloyd R. Ambinder, Esq.
LaDonna M. Lusherv
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, NY 10004
Telephone: (212) 943 9080
E-mail: lambinder@vandallp.com
llusher@vandallp.com
- and -
Walker G. Harman, Jr., Esq.
Edgar M. Rivera, Esq.
THE HARMAN FIRM, LLP
220 Fifth Avenue, Suite 900
New York, NY 10001
Telephone: (212) 425 2600
E-mail: wharman@theharmanfirm.com
erivera@theharmanfirm.com
VIVINT SOLAR: Faces "Del Llano" Suit in S.D. California
-------------------------------------------------------
A class action lawsuit has been filed against Vivint Solar Inc.
The case is captioned as Victor R. Del Llano, individually and on
behalf of others similarly situated, the Plaintiff, v. Vivint
Solar Inc. and Solar Mosaic Inc., the Defendants, Case No. 3:17-
cv-01429-AJB-MDD (S.D. Cal., July 14, 2017). The case is assigned
to the Hon. Judge Anthony J. Battaglia.
Vivint Solar is an American solar energy company. Founded in 2011
as an offshoot of Vivint home security, Vivint Solar went public
in 2014. Vivint Solar is publicly traded on the New York Stock
Exchange.[BN]
The Plaintiff is represented by:
Asil A Mashiri, Esq.
MASHIRI LAW FIRM
11251 Rancho Carmel Drive, Suite 500694
San Diego, CA 92150
Telephone: (858) 348 4938
Facsimile: (858) 348 4939
E-mail: alexmashiri@yahoo.com
WAL-MART STORES: Faces "Hamilton" Suit in C.D. California
---------------------------------------------------------
The class action lawsuit titled Chelsea Hamilton, individually and
on behalf of all others similarly situated, the Plaintiff, v.
Wal-Mart Stores, Inc., a corporation; Wal-Mart Associates, Inc., a
corporation; and DOES 1 through 50, inclusive, Case No.
CIVDS1711391, was removed on July 14, 2017 from the San Bernardino
County Superior Court, to the U.S. District Court for the Central
District of California (Eastern Division - Riverside). The
District Court Clerk assigned Case No. 5:17-cv-01415 to the
proceeding.
Wal-Mart Stores, doing business as Walmart, is an American
multinational retailing corporation that operates as a chain of
hypermarkets, discount department stores, and grocery stores.[BN]
The Plaintiff appears pro se.
WEB.COM GROUP: Faces "Lira" Suit in Central. Dist. of California
----------------------------------------------------------------
A class action lawsuit has been filed against Web.Com Group, Inc.
The case is captioned as Kathy Lira, individually and on behalf of
all others similarly situated, the Plaintiff, v. WEB.COM GROUP,
INC., a Delaware corporation and Does 1-10 Inclusive,
Case No. 8:17-cv-01210 (C.D. Cal., July 16, 2017).
Web.com Group is a provider of Web services catering to small and
medium-sized businesses. As of December 2014, Web.com had over 3.3
million subscribers. It is headquartered in Jacksonville,
Florida.[BN]
The Plaintiff is represented by:
Scott J Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Suite 800
Newport Beach, CA 92660
Telephone: (949) 706 6464
Facsimile: (949) 706 6469
E-mail: sferrell@pacifictrialattorneys.com
WELLS FARGO: Settles Trainee Class Action for $3.5 Million
----------------------------------------------------------
Mason Braswell, writing for Advisor Hub, reports that Wells Fargo
Advisors has agreed to pay $3.5 million to former employees who
sued the broker-dealer for requiring them to reimburse their
training costs if they sought to work in the financial services
industry within five years of leaving or being fired.
The tentative settlement of the class-action suit also will
require the retail brokerage unit of Wells Fargo Corp. to release
all claims and end collection efforts against former trainees and
to end its reimbursement policies for current and future
participants, according to papers filed on July 13 in federal
court in Chicago. As a condition of employment in Wells' private
client group training program, participants agreed to pay as much
as $45,000 or $55,000 in reimbursement.
People who have already paid the firm for outstanding costs are
entitled to repayment, according to Linda Friedman of the law firm
Stowell & Friedman that was co-counsel on the wage-and-hour case.
The settlement reserves $300,000 for such claims.
"The decision to resolve these matters took into account a number
of factors, including the substantial costs to defend these claims
and a desire to move Wells Fargo Advisors forward without the
distraction of ongoing litigation," Helen Bow, a spokeswoman for
the broker-dealer said in an e-mail.
The four named plaintiffs who filed the training cost lawsuit in
March 2014 alleged violation of state and federal labor laws. They
also claimed that Wells pressured training program participants to
work overtime without pay ("off the clock") during the 31 weeks of
the two-year training program that they did not have a "production
number" entitling them to traditional broker compensation.
The settlement, which awaits court approval, affects some 2,000
individuals who worked at Wells Fargo Advisors between November
2011 and the end of 2016. Some who were in the program as early as
January 2009 are also eligible for payment, depending on the state
where they worked.
"What we were looking primarily was to enjoin the practice and
then recover the lost overtime," Ms. Friedman said.
Wells Fargo neither spent an amount on training candidates that
was "commensurate with the 'training cost' obligation, nor offset
the FA trainees' obligation for the assets and commission revenue
they developed that remained with the firm after their departure,
the plaintiffs argued in seeking support of the settlement.
The agreement with Wells will establish a fund of $3.5 million for
compensation for lost overtime pay, training losses, attorneys'
fees and fund administration costs. All class members will
automatically receive a check based on how many weeks they worked
in non-exempt positions, with a minimum of $100 per person.
Contrary to most wage-and-hour settlements, Wells will not be able
to collect any unusued money in the funds, according to the
papers.
The plaintiffs' lawyers plan to seek 25% of the settlement fund,
or $875,000, as attorney fees, which they say is than the standard
one-third contingent fee negotiated by the plaintiffs. They also
are asking $50,000 in service awards.
Erika Williams, one of the four trainees who brought the lawsuit,
was also a lead plaintiff in a discrimination suit that settled in
January for $35.5 million. She and other African American
financial advisors claimed in that suit that Wells Fargo's
policies, including the training cost reimbursement,
disproportionately affected minorities because they had higher
failure rates in the training programs. [GN]
WEST CORP: Rigrodsky & Long Files Securities Class Action
---------------------------------------------------------
Rigrodsky & Long, P.A., on July 17 disclosed that it has filed a
class action complaint in the United States District Court for the
District of Nebraska on behalf of holders of West Corporation
("West") (Nasdaq:WSTC) common stock in connection with the
proposed acquisition of West by affiliates of Apollo Global
Management, LLC (collectively, "Apollo") announced on May 9, 2017
(the "Complaint"). The Complaint, which alleges violations of the
Securities Exchange Act of 1934 against West, its Board of
Directors (the "Board"), and Apollo, is captioned Scarantino v.
West Corp., Case No. 4:17-cv-03080 (D. Neb.).
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests, please contact
plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at
Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington,
DE 19803, by telephone at (888) 969-4242; by e-mail at info@rl-
legal.com, or at http://rigrodskylong.com/contact-us/.
On May 9, 2017, West entered into an agreement and plan of merger
(the "Merger Agreement") with Apollo. Pursuant to the Merger
Agreement, shareholders of West will receive $23.50 per share in
cash (the "Proposed Transaction").
Among other things, the Complaint alleges that, in an attempt to
secure shareholder support for the Proposed Transaction,
defendants issued materially incomplete disclosures in a proxy
statement (the "Proxy Statement") filed with the United States
Securities and Exchange Commission on June 15, 2017. The
Complaint alleges that the Proxy Statement, which recommends that
West stockholders vote in favor of the Proposed Transaction, omits
material information necessary to enable shareholders to make an
informed decision as to how to vote on the Proposed Transaction,
including material information with respect to West's financial
projections, the analyses performed by West's financial advisor,
and the background of the Proposed Transaction. The Complaint
seeks injunctive and equitable relief and damages on behalf of
holders of West common stock.
If you wish to serve as lead plaintiff, you must move the Court no
later than September 15, 2017. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. Any member of the proposed class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member.
With offices in Wilmington, Delaware and Garden City, New York,
Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com--
regularly prosecutes securities fraud, shareholder corporate, and
shareholder derivative litigation on behalf of shareholders in
state and federal courts throughout the United States. [GN]
WHOLE FOODS: Investors File Securities Class Action
---------------------------------------------------
Jody Barr, writing for KXAN, reports that a group of Whole Foods
Market, Inc. investors is suing the Austin-based grocery retailer
and its prospective buyer, Amazon.com, Inc. over the $13.7 billion
buyout announced in June. In the deal, Amazon would acquire Whole
Foods' 456 stores and take over the organic foods retailer.
The class action suit alleges Whole Foods and Amazon violated two
counts of the Securities Exchange Act and is asking the federal
courts to put a stop the deal. The lawsuit also suggests the
stockholders who are suing were not fully informed of Whole Foods'
decision to sell out.
The investors claim Whole Foods and its leadership left out
important information regarding the company's finances,
essentially lying to the Securities and Exchange Commission about
financial information required to be disclosed annually to the
SEC. The suit claims Whole Foods "misled" shareholders with the
information the company submitted to the SEC.
The suit was filed by an investor named Robert Berg, but includes
other unnamed investors in a class action status.
The suit contends the proxy statements Whole Foods filed on June
16 and 19 "omits material information" concerning the proposed
Amazon deal, "which renders the Proxy Statement false and
misleading," the suit states.
Whole Foods, the lawsuit alleges, failed to include the company's
financial projections and the "financial analysis" put together by
Whole Foods' financial adviser, Evercore Group, LLC. The Proxy
Statement omissions listed in the court filing include:
-- Earnings
-- Interest expense
-- Investment and other income
-- Income taxes
-- Depreciation and amortization
-- Net cash provided by operating activities
-- Capital expenditures
-- Changes in net working capital
-- Earnings per share
-- A reconciliation of all non-GAAP to GAAP metrics
-- Fiscal year 2022 EBITDA and unlevered free cash flow
-- Constituent line items used in calculating 2022 EBITDA and
unlevered cash flow
-- The estimated range of terminal values of Whole Foods
-- Inputs and assumptions underlying the discount range of 7 to
9 percent
By not disclosing the information to the SEC, it prevents people
who have invested money in Whole Foods from establishing a "basis
to project the future financial performance of a company and
allows stockholders to better understand the financial analyses
performed by the company's financial adviser," the filing states.
"The omission of this material information renders the Proxy
Statement false and misleading," Mr. Berg and the others wrote in
the federal filing. The omissions on the proxy statements would
prevent stockholders from being able to make informed decisions
concerning any vote to sell a company, the suit contends.
In count two, the plaintiffs claim Amazon "had the power to
influence and control and did influence and control, directly or
indirectly, the decision making" of Whole Foods. The suit alleges
Amazon would have known about the "false statements" contained in
the proxy statements turned in to the SEC in June.
All other offers refused
The deal between Amazon and Whole Foods will not allow any other
company to enter a bid in the process, essentially guaranteeing
Amazon the sole shot at purchasing Whole Foods. The lawsuit
suggests the $13.7 billion sale amount is an "inadequate
consideration" and "the intrinsic value of the company is
materially in excess of the amount offered" with respect to the
class action group's perceived value of the company.
Under the purchase agreement, stockholders would also not be
allowed to submit any other potential buyer proposals for purchase
under the Amazon deal because of a "no solicitation" agreement
between Whole Foods' leadership and the Amazon purchasers, the
suit states.
Whole Foods would also owe Amazon a "termination fee" of $400
million if any of Whole Foods shareholders were to cause the deal
to fall through, according to the filing.
The suit wants the federal court to kill the deal if it's
finalized.
The plaintiffs are also asking for a proxy statement to be filed
that "does not contain any untrue statements of material fact,"
the filing states. The suing investors are also asking for
attorney's fees.
KXAN has asked Whole Foods and Amazon for a response to the
lawsuit. As of this posting, we have not received those
responses. [GN]
XOLLE DEMO: "Zapeta" Suit Seeks Overtime Wages under FLSA
---------------------------------------------------------
SAMUEL LUX ZAPETA, PEDRO LUX ZAPETA, DOMINGO MENDOZA ZEPETA,
SANTOS MENDOZA ZAPETA, DANIEL ZAVELA MONTERREY, and SANTOS MORALES
LUX, on behalf of themselves and all other persons
similarly situated, the Plaintiffs, v. XOLLE DEMO, LLC, the
Defendant, Case No. 1:17-cv-03998-RRM-PK (E.D.N.Y., July 5, 2017),
seeks to recover overtime wages, overtime premium pay, fees and
costs, liquidated damages and interest pursuant to the Fair Labor
Standards Act and the New York State Labor Law.
According to the complaint, as Laborers, Plaintiffs performed
demolition work and manual labor. The Plaintiffs' work was
performed in the normal course of Defendant's business and
did not involve executive or administrative responsibilities. The
Plaintiffs regularly started work at 7:00 or 8:00 a.m. and worked
until 7 p.m. or later. The Plaintiffs regularly worked more than
40 hours in one calendar week without being paid an overtime rate
equal to one and half of their regular hourly rate after working
the 40 hours.
The Defendant is engaged in the business of demolition,
construction and demolition debris removal, and materials
reclamation.[BN]
The Plaintiffs are represented by:
Fausto E. Zapanta, Esq.
THE LAW OFFICES OF FAUSTO E. ZAPANTA, JR PC
277 Broadway, Suite 206
New York, NY 10007
Telephone: (212) 766 9870
* Akerman Attorney Discusses DOJ's Stance on Class Action Waivers
-----------------------------------------------------------------
Vincent M. Avery, Esq. -- vincent.avery@akerman.com -- of Akerman
LLP, in an article for Lexology, reports that the Department of
Justice (DOJ) has just switched sides in a trio of high profile
arbitration cases now pending before the Supreme Court, joining
with the employers to argue that the National Labor Relations
Board's (NLRB's) ban on the use of class action waivers in
arbitration agreements oversteps its authority and is misguided.
In the wake of the recent explosion in collective and class action
litigation under various federal and state employment statutes,
employers have started to use mandatory arbitration agreements
that not only require employees to forgo litigation and submit
employment-related claims to arbitration, but also compel
employees to waive the right to assert or participate in
collective and class actions. The benefits of utilizing such an
agreement are obvious. First, they prevent one disgruntled
employee from asserting a claim on behalf of others who may not
have pursued such a claim by themselves, but are also not about to
turn down the opportunity to cash in if one of their co-workers is
carrying the load for the group. Second, they also tend to reduce
the attractiveness of an employee's case to plaintiffs' attorneys,
the majority of whom would prefer to be pursuing class or
collective claims in court, with the potential for far larger
payouts and awards of legal fees. (Most employment statutes are
fee-shifting, meaning the defendant will be required to pay the
plaintiff's attorney's fees in the event that plaintiff prevails.)
There is one big problem, however, with using these types of
agreements: namely, NLRB claims that such class and collective
action waivers are invalid, because they infringe on employees'
rights under the National Labor Relations Act (NLRA) to engage in
"concerted activities" for the mutual benefit of each other --
even when the claims in question are asserted under other
employment statutes, such as the Fair Labor Standards Act or Title
VII, and even when the claims arise in a non-unionized workplace.
In fact, over the past five years, the NLRB has mounted an
aggressive assault on these types of class and collective action
waivers, filing multiple complaints against employers all over the
country for using these agreements. These have produced mixed
results, with the Seventh and Ninth Circuit Courts of Appeals
siding with the NLRB, and the Fifth Circuit siding with employers
and upholding the use of collective and class action waivers in
arbitration agreements. In January, the Supreme Court decided
that it would weigh in on this issue in these three conflicting
cases.
Notably, while this issue was being litigated in the lower courts
during the Obama administration, the DOJ had been a steadfast ally
of the NLRB, arguing at each turn that such agreements are invalid
and violate federal labor laws.
That all just changed. On June 16, 2017, the DOJ filed an amicus
brief in the pending Supreme Court cases, in which it said that,
after reconsidering its position, it has "reached the opposite
conclusion" and now believes that the NLRB's position fails to
give due consideration to the federal statutes and policy that
encourage the use of arbitration agreements. Bolstering the
employers' case even further, in its brief, the DOJ relies heavily
on the Supreme Court's 2012 decision in CompuCredit Corp. v.
Greenworld, in which the Court held that, unless a federal statue
expressly prohibits arbitration, claims asserted under the statute
are subject to arbitration -- a standard the DOJ now asserts the
NLRA falls short of satisfying.
If the Supreme Court agrees with the DOJ, it will be a major
victory for employers across the Country, and will greatly reduce
the most current risk of utilizing arbitration agreements with
collective and class action waivers at this time: being hit with a
complaint by the NLRB claiming that, by utilizing such an
agreement, an employer has violated the NLRA. [GN]
* CFPB's New Arbitration Rule Draws Immediate Criticism
-------------------------------------------------------
Hannah Lutz, writing for Auto News, reports that the Consumer
Financial Protection Bureau's new arbitration rule, which drew
immediate criticism from automotive and lending associations and
praise from consumer advocacy groups, may never take effect. But
it's also unlikely to disappear immediately, experts said.
The rule prohibits banks and other financial services companies
from including mandatory arbitration clauses in contracts,
including indirect auto loans. Doing so effectively bars
consumers from pursuing claims of wrongdoing via class-action
lawsuits by forcing consumers to seek relief through individual
arbitration cases.
Critics cited a Consumer Financial Protection Bureau study that
found arbitration provides more relief to consumers than class-
action suits. Those favoring the rule said class-action suits are
a greater deterrent to bad corporate behavior.
The rule could put dealerships and auto lenders at risk for class-
action lawsuits, but it faces roadblocks, said Randy Henrick, an
attorney specializing in consumer-protection and dealership law.
"The rule was so absolute and sweeping that it invites challenges
on multiple fronts," he said. "I don't believe this will see the
light of day."
But even critics of the rule said getting it overturned or rolled
back likely won't happen immediately, unless Congress jumps in.
Even if the bureau's director, Richard Cordray, is fired or
resigns before his term ends next year, there must be a notice and
comment period to roll back a rule, said Michael Benoit, chairman
at the Hudson Cook law firm. A new director appointed by
Republicans couldn't immediately reverse it, he said.
What could Congress do? Mr. Henrick cited the Congressional Review
Act. Within 60 legislative days of the rule's publication in the
Federal Register, Congress can introduce a joint resolution to
disapprove the rule through an expedited process. If Congress
strikes down the rule and the president agrees, the rule is void
and the agency is prohibited from enacting a similar rule unless
authorized by Congress.
Mr. Benoit said dealers, finance companies and trade associations
"need to mobilize and really bang on Congress to use their
authority to overturn it."
Mr. Benoit said consumer advocates likely expect Republicans will
hesitate to overturn the rule and put themselves in electoral
jeopardy, in part because the bureau uncovered financial scandals
such as Wells Fargo's opening unauthorized bank and credit card
accounts in 2011-15. But he notes that many House Republicans are
in relatively safe seats.
"Those who are in questionable seats, does it become a factor in
the re-election campaign? Sure, but a major factor? Probably not,
because there are plenty of other things to harp on, like health
care and tax reform," he said. "For a Congress that has had a
very difficult time getting anything done, this is something they
could do with 51 votes in the Senate." [GN]
* Congress Expected to Override CFPB's New Arbitration Rule
-----------------------------------------------------------
Jeffrey Joseph, writing for Washington Examiner, reports that the
Consumer Financial Protection Bureau is moving forward with its
costly arbitration rule, which would limit the use of class-action
waivers in various consumer agreements.
What does that mean? First announced in 2016, the new mandate
effectively punishes banks and financial institutions by making
them more susceptible to class action lawsuits, which often carry
millions of dollars in costs. The proposed rule would bar these
financial institutions from using arbitration agreements that
prevent consumers from filing or joining class action lawsuits in
court in certain situations.
The proposal encompasses credit card companies, traditional banks,
and different types of lenders, which are disproportionately prone
to costly class actions. It could open the door to widespread
class-action litigation risk for almost all consumer finance
companies that currently utilize arbitration language in contracts
with customers, leaving these companies vulnerable to significant
legal fees and damages--justified or not. In some cases,
companies can face months of legal battles even if they're not at
fault for anything.
In the CFPB's own words, "hundreds of millions of dollars" are at
stake. While the agency paints financial institutions as villains
out to steal consumers' money, the reality is far more nuanced.
When customers enter into arbitration contracts, they simply agree
to take certain kinds of disputes to arbitration rather than
litigating them in court. This does not apply to all disputes, as
liberal activists often claim. And there are already limitations
on corporate power in place. For example, arbitration arguments
can be thrown out if the arbitration authority is found to be
biased against one side of a dispute.
Moreover, arbitration is historically better at compensating
victims faster and with larger awards than class-action lawsuits.
As the American Financial Services Association's Bill Himpler puts
it, "The winner in class-action litigation is almost always the
plaintiff's attorneys, who pocket millions of dollars and leave
the consumer with little to no financial compensation." Plaintiffs
in cases like the ones this arbitration rule would spawn often end
up getting a few dollars for their trouble.
It's curious that Richard Cordray, the CFPB's current director and
likely Democratic gubernatorial candidate in Ohio next year, would
give class-action trial lawyers a regulatory gift of this
magnitude. Trial lawyers are, after all, a key source of revenue
for the Democratic Party and the arbitration ban almost
exclusively benefits them.
Of course, the CFPB's regulatory overreach would be easier to
swallow if the agency was not an unelected, unaccountable
bureaucracy. The CFPB receives its funding as a fixed percentage
of the Federal Reserve's annual budget, exempting the agency from
the normal appropriations process. CFPB Director Richard Cordray
can only be fired by the president and for just cause--a nearly
impossible task in today's day and age.
According to the U.S. Court of Appeals for the District of
Columbia Circuit, the CFPB is "unconstitutionally structured" and
a "gross departure from settled historical practice." As U.S.
Circuit Judge Brett Kavanaugh argues, the agency's structure
"poses a far greater risk of arbitrary decision making and abuse
of power, and a far greater threat to individual liberty, than
does a multi-member independent agency." Even the Center for
Responsible Lending -- a liberal advocacy group and one of the
agency's staunchest supporters -- expressed concern when the
agency was being formed that too much power might be concentrated
in a single director, who may or may not be concerned with
consumers' interests.
Fortunately, Congress is expected to override the arbitration
rule. Sen. Tom Cotton, R-Ark., a member of the Senate Banking
Committee, claims that he is already drafting a resolution to kill
the mandate. Sen. Pat Toomey, R-Pa., vows to take similar steps.
That's good news for anyone who supports checks and balances over
rogue federal agencies and bad policy.
Jeffrey Joseph is a professor at the George Washington University
School of Business.
Thinking of submitting an op-ed to the Washington Examiner? Be
sure to read our guidelines on submissions. [GN]
* Federal Class Action Securities Fraud Filings Hit Record Pace
---------------------------------------------------------------
Federal class action securities fraud filings hit a record pace in
the first half of 2017. Over the past six months, plaintiffs
initiated 226 securities fraud class actions in federal court,
more than in any equivalent period since enactment of the Private
Securities Litigation Reform Act of 1995 (PSLRA).
According to Securities Class Action Filings - 2017 Midyear
Assessment, a new report by Cornerstone Research and the Stanford
Law School Securities Class Action Clearinghouse, the 226 filings
were 135 percent higher than the historical semiannual average of
96 filings between 1997 and 2016.
"The record-setting pace of securities fraud litigation in equity
market trading is causing record-setting head scratching among
many analysts," according to Professor Joseph Grundfest, director
of the Stanford Law School Securities Class Action Clearinghouse.
"Part of the spike is clearly attributable to the migration of
merger claims from state to federal court by plaintiffs looking to
avoid the experienced, skeptical judiciary in Delaware. But
another part of the spike seems attributable to a decline in the
quality of complaints filed by attorneys who have recalibrated
their business strategies to pursue a portfolio of cases with more
remote payoffs because the costs of building such a portfolio
remains low."
Both traditional and M&A-related filings were at record levels.
Traditional filings increased from 95 in the second half of 2016
to 131 in the first half of 2017. At the same time, M&A-related
filings rose from 57 to 95.
"If the litigation rate of traditional securities class actions in
the second half of 2017 equals that of the first half, the annual
rate will nearly double the historical average," said
Dr. John Gould, a senior vice president at Cornerstone Research.
"If one considers M&A filings as well, 2017 is on pace to be more
than double the historical average."
Since 2013, individuals have been appointed lead plaintiff more
often than institutional investors. In contrast, from 2004 to
2012, institutional investors were as or more likely to be
appointed as lead plaintiff as were individuals.
Key Trends:
-- Disclosure Dollar Loss (DDL) rose to $74 billion in the
first half of 2017, 23 percent above the historical semiannual
average. Maximum Dollar Loss (MDL) dropped to $302 billion, on
par with the historical semiannual average.
-- Mega filings declined to 24 percent of DDL and 43 percent of
MDL. There were three mega filings with a DDL of at least $5
billion and eight with an MDL of at least $10 billion.
-- The "race to the courthouse" accelerated. For traditional
filings, the median lag time to file from the end of the class
period was eight days--the shortest lag time since enactment of
the PSLRA.
-- Between 2010 and the first half of 2017, plaintiffs filed 52
Section 11 cases in California state courts. The U.S. Supreme
Court will address the use of state venues for adjudicating class
actions with Section 11 claims in Cyan Inc. v. Beaver County
Employees Retirement Fund.
-- Filings against European firms were almost triple the
historical semiannual average.
-- The number of filings against S&P 500 firms in the first
half of 2017 occurred at an annualized pace of 11.2 percent, the
highest rate since 2002.
-- Pharmaceutical firms were the most common targets of
filings--the number at 2017 midyear already exceeds the full-year
2016 total.
-- Third Circuit filings increased to 47, more than triple the
number of filings in either the first or second half of 2016.
* Republicans Take Steps to Kill CFPB's New Arbitration Rule
------------------------------------------------------------
Lisa Lambert and Pete Schroeder, writing for Reuters, report that
Republicans lawmakers on July 11 started trying to kill a brand-
new U.S. rule prohibiting banks and credit card companies from
requiring customers who open new accounts to sign an agreement
that they will not join a group lawsuit in the event of a dispute.
The Consumer Financial Protection Bureau on July 10 finalized the
new rule banning "mandatory arbitration clauses" requiring
consumers to forego class-action suits and instead settle disputes
in negotiations overseen by arbitrators frequently hired by
companies.
The rule immediately ran into fierce opposition by Wall Street and
Republicans who control both Congress and the White House. They
have long criticized the consumer agency, which is run by a
Democrat, Richard Cordray.
Senator Tom Cotton, a member of the Banking Committee, has already
announced he is drafting a resolution to kill the rule. His fellow
Republican Senator Pat Toomey, chair of the subcommittee on
financial institutions and consumer protection, said he is
considering a similar step.
Republican lawmakers plan to eliminate the rule, using a law that
allows Congress to undo new regulations with simple majority votes
in both chambers and a signature from the president.
Analysts and consumer advocates have said the agency's rule may
survive the Congressional challenge. Still, the U.S. Chamber of
Commerce is contemplating a legal challenge and Trump
administration officials are also looking at ways to kill the
rule.
Isaac Boltansky, a policy analyst for the investment firm Compass
Point Research & Trading, said the rule has a slightly better than
50 percent chance of surviving in Congress.
Joe Valenti, who tracks the issue for the liberal-leaning Center
for American Progress, said the House of Representatives was
unified against the rule, which opponents have argued benefits
class-action lawyers, not consumers.
"It comes down to the Senate," said Mr. Valenti, noting that the
rule would survive if only three Republicans in that chamber
switched sides.
That is possible, said Ed Mierzwinksi, the consumer program
director for the U.S. Public Interest Research Groups. He noted
that Senate Republicans have struggled to gather enough votes for
majorities and the calendar is swollen with pressing legislation
and confirmation hearings.
In addition, Mr. Mierzwinksi said, senators may be leery of
appearing to side with Wall Street against consumers. He noted
that Wells Fargo & Co used clauses in its account-opening
agreements to block customers from suing over its phantom account
scandal.
Supporters of the rule say mandatory arbitration denies citizens
their day in court and is rigged in favor of big firms. They say
litigants banding together in a class-action lawsuit have a better
chance of getting companies to answer publicly for illegal
activities and that fears of such a suit can discourage law
breaking.
The consumer protection agency wrote the rule after conducting a
lengthy, multi-year study of the issue. Opponents of the rule say
the study is flawed and that arbitration is cheaper and faster
than class-action lawsuits and produces better awards for
consumers.
Other Challenges
The Chamber is exploring a prompt legal challenge to the rule,
said Matt Webb, senior vice president for its legal reform
institute.
Another possible challenge could come from the acting comptroller
of the currency, Keith Noreika. He is laying groundwork to invoke
an untested provision of the 2010 Dodd-Frank financial reform law
that allows the council of the country's top financial regulators
to nullify a consumer agency rule if they decide it threatens the
safety and soundness of the banking system.
Rohit Chopra, senior fellow at the Consumer Federation of America
and former CFPB assistant director, said a lawsuit will probably
fail because the law says the agency can restrict arbitration as
long as it hews to its study.
He said the Dodd-Frank provision that the comptroller's office is
looking at was meant to keep risks to the financial system at bay.
"To suggest that this rule would cause a financial crisis is
ridiculous on its face," he said. [GN]
* Recent Court Rulings Muddy Waters on Class "Ascertainability"
---------------------------------------------------------------
Cory L. Andrews of Washington Legal Foundation, in an article for
Forbes, reports that whether federal district courts may certify a
damages class action where no reliable, administratively feasible
method exists for identifying class members is a question that has
long plagued class-action defendants. The need for class
ascertainability is especially dire in low-value consumer class
actions in which manufacturers, distributors, and retailers are
sued over "mislabeled" food, beverages, or other inexpensive
consumer products. Unfortunately, the federal courts of appeals
are sharply and hopelessly divided on whether Rule 23, which
governs class actions in federal courts, includes an implicit
ascertainability requirement.
Many observers -- including WLF -- have high hopes that the US
Supreme Court will mercifully agree to settle the vexing question
of ascertainability next Term by granting certiorari in Conagra
Brands, Inc. v. Brise§o. In the meantime, federal courts of
appeals have continued weighing in on whether an unascertainable
class should be certified under Rule 23. In just the past week,
in fact, the Second and Sixth Circuits have each issued divergent
opinions that further muddy the water on ascertainability.
Before its July 7 opinion in In re Petrobras Securities, No.
16-1914, 2017 WL 2883874 (2d Cir. July 7, 2017), most observers
counted the Second Circuit among those federal appeals courts that
embrace an ascertainability requirement. See, e.g., Brecher v.
Republic of Argentina, 806 F.3d 22, 26 (2d Cir. 2015) (holding
that class plaintiffs must propose an "objective," "readily
identifiable class" that does not "require the kind of
individualized mini-hearings that run contrary to the principle of
ascertainability"). But the panel in Petrobras Securities
"clarified" the Second Circuit's prior decision in Brecher by
essentially abandoning it altogether.
Relying on precedents from other circuits that have rejected an
ascertainability requirement, Petrobras Securities held that "a
freestanding administrative feasibility requirement is neither
compelled by precedent nor consistent with Rule 23. "Expressly
"declining to adopt an administrative feasibility requirement,"
the court purported to "join a growing consensus that now includes
the Sixth, Seventh, Eighth, and Ninth Circuits." In doing so, the
Second Circuit rejected the very ascertainability requirement that
had recently been widely understood to be the law of the circuit
under Brecher.
Only four days later, on July 11, the Sixth Circuit issued an
opinion that appears to move that court outside the "growing
consensus" in which Petrobras had tried to place it. In Sandusky
Wellness Center, LLC v. ASD Specialty Healthcare, Inc., No. 16-
3741, 2017 WL 2953039 (6th Cir. July 11, 2017), the appeals court
rejected the appellant's contention that "difficulties in
identifying class members are not relevant to either
ascertainability or Rule 23(b)(3) predominance." Recognizing that
"courts have been inconsistent in how they have accounted for
difficulties in identifying class members," the panel affirmed the
district court's view that, because class members could not be
readily identified, the class device was not "superior to other
available methods" due to "the likely difficulties in managing a
class action. "While insisting that it "has not outlined a
requirement of ascertainability," the panel nonetheless emphasized
that the Sixth Circuit requires that a class "must be adequately
defined and clearly ascertainable . . . regardless of whether
this concern is properly articulated as part of ascertainability,
Rule 23(b)(3) predominance, or Rule 23(b)(3) superiority."
Whether class identity is characterized as a predominance,
superiority, or ascertainability problem, the Sixth Circuit's
decision in Sandusky Wellness Center is definitely a step in the
right direction. Unfortunately, the Second Circuit's about-face
in Petrobras Securities returns the circuit-split head count on
ascertainability to the status quo ante. Nonetheless, the fluid
uncertainty of this issue among the federal courts of appeals
should provide an additional reason for the Supreme Court to grant
review in Briseno. [GN]
* Skadden Arps Slate Discusses Class Certification Rulings
----------------------------------------------------------
Skadden, Arps, Slate, Meagher & Flom LLP discusses rulings issued
between February 15, 2017, and May 15, 2017. It begins with an
article on the federal judiciary beginning to take notice of
issues surrounding third-party litigation funding and testing new
rules designed to shine a light on the practice.
Developments in Third-Party Litigation Funding
Class Certification Decisions
Decisions Granting Motions to Strike Class Claims/Deny
Certification
Decisions Denying Motions to Strike/Dismiss Class Claims Decisions
Rejecting/Denying Class Certification
Decisions Permitting/Granting Class Certification
Other Class Certification Decisions
Class Action Fairness Act Decisions
Developments in Third-Party Litigation Funding
A burgeoning trend in federal class action practice is the
financing of lawsuits by means of third-party litigation funding
(TPLF), in which companies "invest" in a lawsuit by providing
funding in return for a share of any proceeds. For example, EJF
Capital (based in Arlington, Virginia) has raised hundreds of
millions of dollars to invest in mass tort lawsuits, including
transvaginal mesh and Risperdal litigation. The hedge fund
reportedly is targeting "class-action injury lawsuits" at "hefty
interest rates," with the loans to be repaid by law firms "as they
earn fees from settlements and judgments." "[C]lass actions
[also] make up a significant portion of the cases that [Bay Area-
based Law Finance Group] invests in." "Other firms, like New
York-based Counsel Financial, also market themselves as offering
various kinds of financing to class-action plaintiffs[']
attorneys."
Notably, funders often enter into an agreement with plaintiffs'
lawyers that is not disclosed to class members or to the court,
even though some agreements require that portions of any recovery
by the class be paid to the funder. This fact, and the increasing
prevalence of TPLF arrangements in class actions, raise serious
ethical questions as well as concerns about the named plaintiffs'
adequacy of representation, as funders seek to maximize their own
pecuniary interest in the litigation through their control of key
litigation decisions.
These ethics and adequacy issues were well-illustrated in Gbarabe
v. Chevron Corp., a putative class action arising out of an
explosion on a drilling rig off the coast of Nigeria. In that
case, a two-attorney legal team representing the plaintiffs
acknowledged to the court that they had to seek third-party
funding to advance their case and obtained a number of time
extensions as a result. When funding was apparently obtained but
the plaintiffs refused to disclose its terms, Chevron moved to
compel production. It argued, among other things, that the
information about funding was relevant to adequacy of the class
representatives under Rule 23(a)(4) due to the possibility that
the funding agreement created a conflict of interest with absent
class members. Chevron also argued that the agreement could be
relevant to the suitability of the attorneys as representatives of
the class under Rule 23(g), which requires a court appointing
class counsel to consider "the resources that counsel will commit
to representing the class" and further permits the court to
consider "any other matter pertinent to counsel's ability to
fairly and adequately represent the interests of the class."
The court agreed and ordered production of the funding agreement,
which contained several significant provisions. Specifically, the
agreement referred to a "Project Plan" for the litigation
developed by counsel and the funder with restrictions on counsel
deviation, particularly with respect to hiring only identified
experts. The agreement expressly prohibited the lawyers from
engaging any co-counsel or experts "without [the funder's] prior
written consent."6 Further, the agreement required that counsel
"give reasonable notice of and permit [the funder] where
reasonably practicable, to attend as an observer at internal
meetings, which include meetings with experts, and send an
observer to any mediation or hearing relating to the Claim." The
funding agreement also provided that the lawyers would endeavor to
"recover the maximum possible Contingency Fee"8 and that the
funder would be repaid its $1.7 million investment in the case by
way of a "success fee" of six times that amount ($10.2 million),
to be paid from attorneys' fees plus 2 percent of the total amount
recovered by the putative class members. Thus, apparently without
their knowledge or approval, putative class members would have had
to hand over part of their recovery to the litigation funder.
Provisions like these raise significant ethical concerns and
provided fodder for Chevron's later arguments against class
certification. Ethics rules generally bar attorneys from
representing a client where the representation creates a conflict
of interest (e.g., ABA Model R. Prof'l Conduct 1.7). But all of
these provisions create potentially serious conflicts between the
attorneys and their clients, and the class they sought to
represent. Perhaps most starkly, the attorneys were bound by the
agreement to seek the maximum possible contingency fee, even
though such a requirement could easily become a barrier to
resolving the suit by way of settlement with the defendant. Citing
the same provision, Chevron argued that the limitations imposed on
fees showed that the plaintiffs' counsel could not adequately
represent the class because it was plausible that the class'
interest would be better served by a different fee arrangement.
Ethical rules also generally require an attorney to "abide by a
client's decision whether to settle a matter"(e.g., ABA Model R.
Prof'l Conduct 1.2(a)). But as Chevron argued in opposing class
certification, client control was potentially compromised by the
requirement that the attorneys adhere to the Project Plan. And it
is easy to imagine that internal conflicts over whether to settle
could emerge in light of the provisions requiring substantial
payment back to the funder, which would naturally motivate the
attorneys to hold out for settlements that are high enough to
ensure that they could recover something after the funder's $10.2
million "success fee" was paid out of their fees.
Finally, although Chevron did not address this issue in its
opposition to class certification, ethical rules also generally
impose restrictions that operate as limitations on the sourcing of
funds for third-party funders. The rules generally do not permit
attorneys to share legal fees with nonlawyers, subject to
exceptions that do not apply to third-party funders (e.g., ABA
Model R. Prof'l Conduct 5.4(a)). But in Gbarabe, the agreement
expressly required payment of the funder's "success fee" out of
attorneys' fees. And while a plaintiff can agree to give part of
his or her personal recovery to a funder, an uncertified class of
individuals has no means of granting such consent in advance; and
yet the plaintiffs' attorneys in Gbarabe did just that on the
putative class's behalf by agreeing to pay 2 percent of any
recovery to the funder.
The problem posed by the rights of absent class members is
particularly thorny in this context, as Gbarabe highlights. Class
representatives tend to be among the least sophisticated and
zealous -- plaintiffs' attorneys are often the driving force in
such cases. In Gbarabe, for example, the representative knew
nothing about the details of the funding agreement. Under these
circumstances, it is difficult to see how the plaintiff could be
expected to protect the putative class' interests regarding an
agreement between the attorneys and a third-party funder. And of
course, the class' problems are the defendant's problems because
an unfair funding agreement poses a significant risk that any
final resolution could be overturned by a court or an objector who
learns only at the end of the case that class payments are to be
shaved off to pay exorbitant fees to a funder that has remained
hidden during the course of the litigation.
Ultimately, the district court denied certification in Gbarabe on
several grounds, including adequacy of representation. But it did
not address any of these important issues presented by the
agreement in the case, leaving them for further development by
future cases.
That said, the federal judiciary is beginning to take notice of
these issues and to test new rules designed to shine a light on
this shadowy practice. Indeed, while Gbarabe was being litigated,
the U.S. District Court for the Northern District of California
issued a rule mandating the disclosure of TPLF in all class and
representative actions, providing an important precedent for
making the practice more transparent. The Northern District's
action was taken in the immediate aftermath of a panel discussion
at the court's judicial conference during which TPLF industry
representatives took the position that their investments in class
actions and other litigation should not be disclosed. As one
attorney who studies the litigation funding industry explained,
the Northern District of California rule is "really a harbinger
and a signal that courts . . . need to consider the presence of
third-party financiers in a lawsuit and consider their role."15
Indeed, published reports indicate that the U.S. District Court
for the Eastern District of Texas may also be considering a
disclosure rule.16 Congress may also weigh in on this growing
phenomenon through the Fairness in Class Action Litigation Act of
2017, which passed the House of Representatives in March 2017.
That legislation contains a similar disclosure provision that
would apply to all class actions filed in federal courts
nationwide. And a group of 27 prominent trade associations, state
chambers of commerce and other groups -- led by the U.S. Chamber
Institute for Legal Reform -- has just submitted a petition to the
Committee on Rules of Practice and Procedure of the Administrative
Office of the United States Courts advocating the adoption of a
rule that would require the disclosure of TPLF arrangement in all
civil cases in federal court.
In short, the days of undisclosed TPLF arrangements might soon be
numbered, at least in the class context, giving class members and
defendants alike some hope that the kinds of ethical abuses
illustrated in Gbarabe will never come to fruition.
Class Certification Decisions
In this issue, we cover five decisions granting motions to
strike/dismiss class claims, two decisions denying such motions,
18 decisions denying class certification or reversing grants of
class certification, 28 decisions granting or upholding class
certification, 11 decisions denying motions to remand or reversing
remand orders pursuant to the Class Action Fairness Act (CAFA),
and 17 decisions granting motions to remand or finding no
jurisdiction under CAFA that were issued during the three-month
period covered by this edition.
Decisions Granting Motions to Strike Class Claims/ Deny
Certification
Bates v. Bankers Life & Cas. Co., 848 F.3d 1236 (9th Cir. 2017)
(per curiam)
The U.S. Court of Appeals for the Ninth Circuit (Clifton, Murguia
and Nguyen, JJ.) dismissed the plaintiffs' appeal of the district
court's order striking their class allegations for lack of
jurisdiction. The plaintiffs represented three putative classes
of elderly Oregonians and their successors asserting claims for
breach of contract, fraud and violations of Oregon's financial
abuse statute, arising from the alleged mishandling of their long-
term health care insurance claims. The district court granted the
defendant's motion to strike the class allegations because they
required case-by-case analysis of each claim -- and even with
class discovery, the plaintiffs would not be able to satisfy
either the typicality requirement or any of the Rule 23(b)
requirements -- and held that the decision was final and
appealable under Rule 54(b). The Ninth Circuit disagreed, holding
that a decision to grant a motion to strike class allegations,
like the denial of a motion to certify a case as a class action,
is not a final judgment because it does not terminate the entire
litigation -- the plaintiff can proceed on his individual claim.
Because the plaintiffs did not ask the district court to certify
an order for interlocutory review pursuant to 28 U.S.C. Sec.
1292(b) or file a petition for permission to appeal pursuant to
Rule 23(if), the panel lacked jurisdiction to review the order
striking their class allegations. Monteferrante v. Williams-
Sonoma, Inc., No. 16-10578-MLW, 2017 WL 1064005 (D. Mass. Mar. 20,
2017)
Judge Mark L. Wolf of the U.S. District Court for the District of
Massachusetts granted a motion to strike class allegations in a
putative consumer protection class action where the class
definition included individuals whose claims were barred by the
statute of limitations. The plaintiff alleged that the defendant
retailer violated state law by using zip codes collected at points
of sale to send consumers marketing materials and sought to
represent a class of consumers who received any marketing
materials during the statute of limitations period. The court
concluded that the class definition was overbroad because the
claims accrued when a consumer first received marketing materials,
not every time materials were sent. Accordingly, the court struck
the class allegations but permitted the plaintiff to file an
amended complaint with the class limited to consumers who received
the initial mailing within the limitations period.
Coleman v. Sears Home Improvement Prods. Inc., No. 16-2537, 2017
WL 1064965 (E.D. La. Mar. 20, 2017)
Judge Nannette Jolivette Brown of the U.S. District Court for the
Eastern District of Louisiana granted the defendant's unopposed
motion to strike class allegations in a putative nationwide class
action alleging that the defendant hired "substandard
subcontractor[s]"to install customers' roofs. The plaintiffs
initially opposed the defendant's motion to strike. However, the
plaintiffs later filed a motion to withdraw both their opposition
and their motion to certify the class. The court, in addressing
the defendant's motion to strike, found multiple issues with the
plaintiffs' class claims. First, the court held that the
plaintiffs improperly moved for class certification under a
Louisiana state statute rather than under Federal Rule 23 -- a
violation of the court's local rules. Second, the court held that
the plaintiffs could not satisfy the predominance or commonality
requirements because the overbroad class definition included every
customer who purchased a roof installation from the defendant
throughout the United States regardless of the type of roof
installation deficiencies they suffered, if any. Third, the court
found that the plaintiffs could not satisfy the typicality
requirement because they alleged that the class sustained certain
damages -- i.e., leaky roofs -- that the plaintiffs did not
themselves claim to have suffered. Finally, the court held that
Rule 23's adequacy requirement was not satisfied because the
plaintiffs' attorneys had displayed a lack of competency by
failing to pursue the class claims and because the plaintiffs
themselves would have significantly different interests than the
broad range of class members. Thus, the court granted the
defendant's motion to strike the class allegations.
Hernandez v. State Farm Fire & Cas. Co., No. 16cv200-LAB (JLB),
2017 WL 932198 (S.D. Cal. Mar. 9, 2017)
Judge Larry Alan Burns of the U.S. District Court for the Southern
District of California granted the defendants' motion to strike
the plaintiffs' class allegations asserting fraud, unfair
competition and contractual claims in connection with allegedly
insufficient mitigation services provided under their insurance
policies. The court noted at the outset that the class was
unlikely to obtain injunctive relief because the likelihood of
most of the class members experiencing water damage in their homes
and suffering the same kind of injury was "infinitesimal." In
considering whether a damages class could proceed, the court noted
that "many, perhaps most, class members were provided with
satisfactory mitigation services," which raised concerns about
common causation issues, and that some class members' five-year
warranties had already expired, depriving them of standing to sue.
The court also held that not all the class members used the
mitigation service providers named in the complaint, and thus the
plaintiffs would be required to "name a multitude of new class
representatives" to pursue the claims of class members against
other providers, or abandon those claims, which "undercuts the
rationale for allowing class actions in the first place, and
bespeaks inadequate representation. "Further, the court held,
extensive fact-finding would be required to determine whether:
each class member had a valid claim under their policy, the
defendants made misleading representations to them, the class
members relied on those representations, and the mitigation
services they received were inadequate. Finally, the court noted
that superiority would likely not be satisfied, because damages
would require individual adjudication, and the high value of a
lawsuit meant insureds could and would bring claims on their own
behalf. The court therefore struck the class allegations and
dismissed the action with leave to amend.
Ramirez v. Baxter Credit Union, No. 16-cv-03765-SI, 2017 WL
1064991 (N.D. Cal. Mar. 21, 2017)
Judge Susan Illston of the U.S. District Court for the Northern
District of California granted in part and denied in part the
defendant's motion to strike certain class allegations. The
plaintiff alleged that the defendant misled its members about its
overdraft charge policy and asserted nationwide class claims for,
inter alia, breach of contract, breach of the implied covenant of
good faith and fair dealing, unjust enrichment/restitution and
violation of the Electronic Fund Transfer Act (EFTA). The court
agreed that because EFTA claims are subject to a one-year statute
of limitations, the plaintiff's proposed six-year class period was
facially invalid, and it struck the EFTA class allegations
encompassing a time period in excess of one year prior to the
filing of the action. However, the court refused to strike class
allegations that the defendant did not properly segregate the opt-
in overdraft form in its enrollment agreement because "[i]n this
controverted situation, a finding in the defendant's favor" as to
whether the opt-in form complied with the law "is inappropriate on
the pleadings alone."
Decisions Denying Motions to Strike/ Dismiss Class Claims
Beck v. Stony Hollow Landfill, Inc., No. 3:16-cv-455, 2017 WL
1551216 (S.D. Ohio May 1, 2017)
Judge Thomas M. Rose of the U.S. District Court for the Southern
District of Ohio denied as premature a motion to strike class
allegations in a mass tort air pollution action in which the named
plaintiffs sought to represent a class of property owners within 3
miles of a landfill. Although the defendant principally argued
that individualized issues would preclude certification of the
class, the court concluded that it would be premature to rule on
the viability of the proposed class without further factual
development. O.P. Schuman & Sons, Inc. v. DJM Advisory Grp., LLC,
No. 16-3563, 2017 WL 634069 (E.D. Pa. Feb. 16, 2017)
Judge Juan R. S†nchez of the U.S. District Court for the Eastern
District of Pennsylvania denied the defendants' motions to dismiss
for lack of standing and to strike the plaintiff's proposed class
definition. The plaintiff brought this putative class action
alleging violations of the Telephone Consumer Protection Act based
on receipt of an unsolicited facsimile. While the defendants
argued that the plaintiff lacked Article III standing because the
plaintiff failed to plead a concrete and particularized injury,
the court found that allegations that the defendants' fax caused
loss of paper and toner, utilized the putative class members' fax
machines, cost the plaintiff time and unlawfully interrupted the
putative class members' privacy interests sufficiently alleged
concrete and particularized harm. The court denied the defendants'
motion to strike the plaintiff's proposed class definition on the
ground that it alleged an impermissible fail-safe class, holding
that it was not "readily apparent" whether the plaintiff's class
was fail-safe, and that regardless, the U.S. Court of Appeals for
the Third Circuit had not yet ruled on the permissibility of fail-
safe classes. The defendants also argued that the matter should
be dismissed or stayed pursuant to the first-filed doctrine, as a
substantively similar putative class complaint was filed against
the same defendants in a Florida district court seven months prior
to the plaintiff's case. Judge Sanchez held that the first-filed
rule applied and determined that transfer, rather than dismissal
or stay, was appropriate under 28 U.S.C. Sec. 1404(a), as it would
be in the interests of justice and convenience for the case to
proceed in Florida.
Decisions Rejecting/Denying Class Certification
Ward v. EZCorp, Inc., No. 16-14280, 2017 WL 908194 (11th Cir. Mar.
8, 2017) (per curiam)
The U.S. Court of Appeals for the Eleventh Circuit (Marcus, Julie
Carnes and Black, JJ.) affirmed the district court's order denying
the plaintiff's motion for class certification in this suit
alleging that the defendant pawnbroker and its parent company
violated the Florida Pawnbroking Act by unfairly charging the
plaintiff and others $2 fees when they retrieved pledged property
without their pawn tickets. The plaintiff alleged that the
defendants collected this fee without first obtaining a jointly
signed statement of the loss, destruction or theft of the
pledgor's copy of the pawn ticket, as required by the statute. The
panel agreed with the district court that the plaintiff's proposed
method of identifying class members -- reviewing transactions in
the defendants' customer database -- could not distinguish between
pledgors who were charged the $2 fee in connection with a missing
pawn ticket and pledgors who were charged regardless of presenting
a pawn ticket. The panel also agreed that typicality was not
satisfied because the class definition was broad enough to include
class members who suffered harms different from the plaintiff's
alleged harm.
Webb v. Exxon Mobil Corp., 856 F.3d 1150 (8th Cir. 2017)
The U.S. Court of Appeals for the Eighth Circuit (Riley, C.J.,
Wollman and Benton, JJ.) affirmed the district court's
decertification of a putative class on the basis that the putative
class could not satisfy commonality and predominance. The putative
class, successors in interest to easement contracts, brought suit
alleging that a pipeline's current owners and operators breached
their easement contracts by failing to reasonably operate,
maintain and repair the pipeline. The suit sought rescission of
the easements and the pipeline's removal or replacement or, in the
alternative, damages. After initially granting class
certification, the district court determined that class
certification was improper because, in part, the pipeline was
comprised of individual segments and "[the defendant's] actions,
or inactions, on one individual's land would not necessarily
implicate the interests of other landowners." On review, the panel
of the Eighth Circuit agreed. The plaintiffs argued that Exxon
operates the pipeline uniformly as "one continuous unit, "but
claims for breach of contract would require examination of how
operation of the pipeline affected the plaintiffs. This
examination would vary depending on where the individuals'
property is located, among other factors. In addition, the
plaintiffs could not meet predominance because of each property's
unique features and conditions. Moreover, the proposed class would
join contract, property and tort-based claims based on the law of
four states, potentially "invit[ing] the application of multiple
conflicting state laws." Accordingly, the Eighth Circuit affirmed
the district court's decertification of the putative class.
Leyse v. Lifetime Entm't Servs., LLC, Nos. 16-1133-cv, 16-1425-cv,
2017 WL 659894 (2d Cir. Feb. 15, 2017)
The U.S. Court of Appeals for the Second Circuit (Raggi, Lohier,
Jr. and Droney, JJ.) affirmed the district court's decision
denying certification of a class of individuals who received
prerecorded voicemail messages on their residential telephone
lines from the defendant, allegedly in violation of the Telephone
Consumer Protection Act. The court held that the district court
did not abuse its discretion in finding that the plaintiff could
not establish that the proposed class was ascertainable because
members of the proposed class could not be easily identified. The
plaintiff had proposed to identify class members by soliciting
individual affidavits certifying receipt of the prerecorded calls
accompanied by telephone bills showing subscription to the New
York City residential telephone service. The court explained,
however, that the plaintiff failed to proffer any evidence that
this method was administratively feasible because no list of the
numbers that had received the messages existed, and the proposed
class members could not realistically be expected to recall a
message received several years ago or to have retained any
documentation of receipt.
Slade v. Progressive Sec. Ins. Co., 856 F.3d 408 (5th Cir. 2017)
The U.S. Court of Appeals for the Fifth Circuit (Owen, Graves and
Higginson, JJ.) reversed in part and remanded in part a class
action alleging that the defendant insurance company paid the
putative class members less for their total loss vehicles than
they were entitled to collect under Louisiana law, which requires
that a valuation methodology be "generally accepted" in the
industry. The defendant argued that the plaintiffs' liability and
damages theories did not share the requisite "fit" under Comcast
Corp. v. Behrend, 133 S. Ct. 1426 (2013). The court disagreed,
noting that the plaintiffs' liability theory, i.e., that the
defendant used an improper source to calculate each insured's
vehicle value, aligned with their damages theory, i.e., that a
proper source could be used to prove the plaintiffs' losses. Next,
the defendant argued that by offering to accept the defendant's
vehicle condition score calculation, the plaintiffs had
impermissibly waived unnamed class members' ability to dispute
this computation. Although the court noted that this waiver could
create adequacy of representation issues, it held that remand for
consideration was appropriate because the parties did not argue
this point until the appeal. Finally, the court agreed that it
was improper for the district court to certify a fraud class
action because the Fifth Circuit "has held consistently that . . .
fraud class action[s] cannot be certified when individual reliance
will be an issue. "Thus, the court reversed the district court's
fraud-class decision and remanded the other claims for further
consideration.
Jarzyna v. Home Props., L.P., No. 10-4191, 2017 WL 2061688 (E.D.
Pa. May 15, 2017)
Judge Eduardo C. Robreno of the U.S. District Court for the
Eastern District of Pennsylvania denied the plaintiff's motion to
certify a class of tenants against a residential management
company and debt collection agency, alleging violations of the
Fair Debt Collection Practices Act and other state consumer
protection laws. The court held that the class could not be
certified because it failed to meet the U.S. Court of Appeals for
the Third Circuit's ascertainability requirement. While the
plaintiff claimed the putative class members who were charged the
same illegal fees as the plaintiff and were subjected to the same
uniform collection policies could be identified by the defendants'
software systems, the defendants contended that their computer
systems could not distinguish between tenants subject to various
fees. Finding that the plaintiff failed to present a "reliable
and administratively feasible mechanism for determining whether
putative class members fall within the class definition," Judge
Robreno did not address the other requirements for class
certification under Rule 23.
Cates v. Whirlpool Corp., No. 15-CV-5980, 2017 WL 1862640 (N.D.
Ill. May 9, 2017)
Judge Amy J. St. Eve of the U.S. District Court for the Northern
District of Illinois, after excluding the testimony of the
plaintiffs' expert, denied the plaintiffs' motion for class
certification alleging breach of warranty, consumer fraud and
unjust enrichment related to alleged defects in the defendant's
ovens. The plaintiffs alleged that the ovens suffered from an
inherent defect that caused them to become unusable when the self-
cleaning function was run. However, the plaintiffs' expert
admitted that he did not know what caused an oven to fail during
self-cleaning and admitted that two ovens may fail for different
reasons. Because the plaintiffs failed to tie all of the ovens
together with sufficient evidence of a common defect, the
plaintiffs could not show that their claims arose out of the same
event or course of conduct as all class members. Certification
under Rule 23(b)(2) was also not appropriate because, due to the
lack of classwide proof of a common defect, the class was
insufficiently cohesive. Injunctive relief was not warranted
because the plaintiffs had not shown that monetary damages would
be inadequate. Finally, certification under Rule 23(c)(4) was not
warranted because all of the alleged common questions were
predicated on the existence of a common defect. Accordingly, the
court denied the motion for class certification.
Dolmage v. Combined Ins. Co. of Am., No. 14 C 3809, 2017 WL
1754772 (N.D. Ill. May 3, 2017), 23(f) pet. denied
Chief Judge RubÇn Castillo of the U.S. District Court for the
Northern District of Illinois denied the plaintiff's motion for
class certification in a putative class action alleging breach of
contract for failing to keep her personally identifiable
information private. After collecting the information as part of
issuing an insurance policy, the defendant shared the information
with a third party it had hired to provide support services. The
personally identifiable information, however, was not adequately
secured on the third party's website. On review, the court found
that commonality was not satisfied in part because the proposed
class involved individuals living in more than 25 states, and the
court would have to apply multiple states' laws to determine if
the "Privacy Pledge" was enforceable. Typicality was also not
satisfied because different states' laws would govern the various
claims, including the laws of states other than the named
plaintiff's home state of Iowa. Predominance was likewise not
satisfied because both the enforceability of the contract and
damages would need to be determined on an individual basis.
Accordingly, the court denied class certification.
Butler v. Porsche Cars N. Am., Inc., No. 16-CV-2042-LHK, 2017 WL
1398316 (N.D. Cal. Apr. 19, 2017)
Judge Lucy H. Koh of the U.S. District Court for the Northern
District of California refused to certify a class and subclass of
California purchasers of 2005-08 Porsche 911 vehicles, asserting
claims under California consumer protection statutes arising from
Porsche's failure to disclose alleged design defects in the
vehicles' wiring harnesses. The court focused solely on Rule
23(b)(3)'s predominance requirement. The court observed that the
plaintiff did not show a classwide defect existed, as the
defendant's unrebutted expert evidence isolated the cause as not a
design defect but a unique manufacturing abnormality involving the
crimping of a copper wire, which was indisputably corrected in
vehicles manufactured after January 1, 2008 (meaning that not all
class members were affected). Even if a classwide defect existed,
individualized inquiries were required to determine whether class
members purchased a used vehicle where the faulty harness had been
replaced with the post-2008 harness. Such individuals would
technically be members of a proposed class but suffered no legally
cognizable injury. Finally, the court concluded that the required
elements of exposure to and reliance on Porsche's alleged omission
of the defect was unsuitable for class treatment because the
plaintiff did not explain where Porsche should have disclosed the
defect or what information should have been disclosed. Further,
the plaintiff did not state what Porsche material class members
viewed prior to purchase, or whether class members interacted with
a Porsche representative prior to purchase. Given the range of
purchasing situations across the class, the court had "no basis to
find that all class members were exposed to a Porsche
representation with omissions, or that class members would have
been aware of a disclosure about the defect from Porsche in a
common way had a disclosure been made."
Valenzuela v. Union Pac. R.R. Co., No. CV-15-01092-PHX-DGC, 2017
WL 679095 (D. Ariz. Feb. 21, 2017), vacated in part (Mar. 3,
2017), opinion reinstated, 2017 WL 1398593 (D. Ariz. Apr. 19,
2017), 23(f) pet. pending
The plaintiffs sought certification of a class of past and present
owners of real property adjacent to a railroad right-of-way in
Arizona, operated by defendant Union Pacific Railroad Company and
under which defendant Kinder Morgan operates a pipeline carrying
fuel products. The plaintiffs alleged they are the rightful
owners of the subsurface beneath the right-of-way and brought
claims for trespass, quiet title, ejectment, inverse condemnation,
unjust enrichment, recovery of rents and an accounting. Judge
David G. Campbell of the U.S. District Court for the District of
Arizona denied the plaintiffs' motions for class certification.
The plaintiffs were sufficiently numerous and identified common
questions for adjudication, such as whether the railroad lacked
sufficient property interests in the subsurface to convey property
rights for the pipeline and whether the defendants knew or had
reason to know the railroad did not possess a sufficient ownership
interest in the subsurface to grant rights for the pipeline.
Nevertheless, the court held that typicality, adequacy and
predominance could not be satisfied because liability would only
attach if each class member owned the subsurface of the right-of-
way, and there were never any easements granted for the pipeline,
requiring examination of myriad individual property situations
encompassed in the class. Establishing ownership, the court
concluded, was too fact-intensive in many cases and Kinder Morgan
provided evidence that it sought pipeline easements from adjoining
landowners in the 1950s and 1980s. Moreover, numerous affirmative
defenses such as statute of limitations and adverse possession
gave rise to further individualized issues, precluding
certification of a Rule 23(b)(2) or Rule 23(b)(3) class. In a
later opinion, the court refused to certify an issues class under
Rule 23(c)(4) because the relatively modest amount of trial time
and effort required to litigate the common issues would be greatly
outweighed by the time and evidence required to litigate the
property-specific issues of individual class members. Doing so
would also not resolve liability as to each plaintiff, meaning
that an issues class would not "materially advance the
litigation."
Gazzara v. Pulte Home Corp., No. 6:16-cv-657-Orl-31TBS, 2017 WL
1331364 (M.D. Fla. Apr. 11, 2017)
The plaintiffs in this case alleged that the defendant violated
the Florida Building Code by improperly applying stucco siding
when building their homes, causing the siding to crack. In
denying class certification, Judge Gregory A. Presnell of the U.S.
District Court for the Middle District of Florida first concluded
that the proposed class of homeowners was not clearly
ascertainable because the plaintiffs provided no evidence that the
defendant kept records of which stucco-sided homes from the
relevant time period were built with one of the alleged code
violations. The court also rejected the plaintiffs' self-
identification proposal, reasoning that self-identification would
lead to thousands of administratively unfeasible mini-trials. The
court additionally concluded that the plaintiffs failed to
establish commonality because a finding of improper stucco
application for one home would not establish the same for other
homes, and a finding that improper application of the stucco
caused cracking at one home would likewise not prove the same for
others. Finally, the court held that individualized issues
predominated, including how much damage occurred at a particular
class member's home, what caused the stucco to crack and whether
the home passed inspection (a consideration for the defendant's
affirmative defense).
Brooks v. Darling Int'l, Inc., No. 1:14-cv-01128-DAD-EPG, 2017 WL
1198542 (E.D. Cal. Mar. 30, 2017)
Judge Dale A. Drozd of the U.S. District Court for the Eastern
District of California denied the plaintiffs' motion to certify a
class of owner/occupiers and renters of residential property
living within 1.5 miles of the defendant's rendering plant who
alleged that the plant was infusing their neighborhood with
noxious odors. The court held that the class definition was not
ascertainable because the plaintiffs failed to identify any
logical reason for drawing the physical boundaries at 1.5 miles
from the defendant's rendering plant, but it noted this deficiency
could be cured with scientific testing. The court concluded that
if the class definition deficiency was addressed, the Rule 23(a)
factors would be satisfied. Specifically, the class was
sufficiently numerous and shared common issues, in that their
claims focused on the defendant's behavior and not the behavior of
the potential class members. Further, the named plaintiffs were
typical and adequate because, even if the extent of the alleged
injury varied depending on where each class member lives, the
basic nature of the injury is likely to be the same and
attributable to the same conduct. Finally, the court concluded
that the superiority and predominance requirements of Rule
23(b)(3) could be met if the class definition was revised, as
factual inquiries about the source and extent of the odors were
potentially capable of classwide proof through the use of air
modeling.
In re Fluidmaster, Inc., Water Connector Components Prods. Liab.
Litig., No. 14-cv-5696, 2017 WL 1196990 (N.D. Ill. Mar. 31, 2017)
Judge Robert M. Dow, Jr. of the U.S. District Court for the
Northern District of Illinois denied the plaintiffs' motion for
class certification of a national class alleging violations of the
California Consumers Legal Remedies Act (CLRA), subclasses
alleging a breach of warranty under six states' laws, and
subclasses alleging negligence and strict liability under 11
states' laws. The plaintiffs alleged that the defendant's
plumbing products, flexible inner tubing and coupling nuts used to
connect the supply lines to plumbing fixtures, had two design
defects that ultimately lead to their failure. The court
undertook a choice-of-law analysis and determined that California
law could not be applied nationwide under choice-of-law
principles, defeating the proposed nationwide class. The court
also noted that individualized factual issues predominated with
respect to the plaintiffs' consumer fraud claims, including issues
related to who was exposed to statements about the defendant's
product and what they knew about the product at the time of
purchase. Further, the plaintiffs' price premium damages model was
insufficiently linked to their theory of liability. For these and
other reasons, the plaintiffs' motion for class certification was
denied.
Briggs v. Freeport-McMoran Copper & Gold, Inc., No. CIV-13-1157-M,
2017 WL 1162208 (W.D. Okla. Mar. 28, 2017)
Judge Vicki Miles-LaGrange of the U.S. District Court for the
Western District of Oklahoma denied the plaintiffs' motion to
certify a class of individuals seeking actual and punitive
damages, and injunctive relief in the form of remediation, for
claims arising out of continuous and ongoing pollution and
contamination allegedly caused by the defendants. The court found
that the plaintiffs failed to satisfy the requirements of Rule
23(a) because they did not establish that the class was so
numerous as to make joinder impracticable. The potential class
consisted of the owners of 479 parcels of land who opted out of a
settlement class in related litigation. More than 100 potential
class members had already joined the action, and the plaintiffs
presented no evidence to show geographic dispersion among the
class members. To the contrary, the plaintiffs' expert testified
that the land parcels and ownership were easily ascertained.
Because joinder of the remaining landowners would not be
impracticable, the court refused to certify a class. Separately,
the court noted that even if numerosity had been established,
class certification under Rules 23(b)(2) and 23(b)(3) would have
been inappropriate as the Environmental Protection Agency and an
Oklahoma state agency had continuing jurisdiction over the
remediation efforts, and the claims of nuisance, negligence and
trespass were highly individualized and would have required
individual evidence and proof barring a class action.
Davis v. AT&T Corp., No. 15cv2342-DMS (DHB), 2017 WL 1155350 (S.D.
Cal. Mar. 28, 2017)
The plaintiff sought to certify a nationwide class alleging
willful and negligent violations of the Telephone Consumer
Protection Act on behalf of persons who received a call from the
defendant when they were not customers and where the recipient
indicated that the defendant had reached a "wrong number."
Although the amended complaint had not been accepted for filing,
the plaintiff argued that the class fell within the "narrowing"
exception whereby courts may consider certification of an amended
class if it is narrower than the class alleged in the complaint.
Judge Dana M. Sabraw of the U.S. District Court for the Southern
District of California rejected this contention, holding that the
modification proposed a different class altogether, that
additional discovery would be required and that the defendant
would be prejudiced by addressing the amended class. Judge Sabraw
also held that the amended class failed to satisfy the
requirements of Rules 23(b)(3) and 23(b)(2). Among other things,
the court held that "wrong number"indicators would not resolve the
consent issue, and a complete analysis of the customer status
issue would require an inquiry into each call recipient's
individual circumstances. Furthermore, the plaintiff did not
properly specify the injunctive relief sought. Thus, the court
denied the motion for certification.
Corcoran v. CVS Health, No. 15-cv-03504-YGR, 2017 WL 1065135 (N.D.
Cal. Mar. 21, 2017)
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California refused to certify 11 state
classes seeking damages and injunctive relief for claims under
each state's statutory laws against unlawful and deceptive acts,
common law fraud, negligent misrepresentation, and unjust
enrichment. The plaintiffs alleged that the defendants
overcharged insured patients by submitting falsely inflated drug
prices to pharmacy benefit managers and third-party payer
insurance providers, which resulted in higher copayment
obligations for the plaintiffs. The court held that the
predominance and commonality requirements were not met. A
determination of whether the defendants submitted false prices to
the pharmacy benefit managers would necessarily involve an
individualized analysis of each contract between the defendants
and those managers, and those agreements varied significantly.
Further, the defendants submitted declarations from pharmacy
benefit managers demonstrating their understanding of the pricing
at issue in the action, and the plaintiffs could not address, in a
common manner, how these managers were in some way deceived given
their knowledge and understanding of the program. In dicta, the
court provided guidance on the remaining factors, noting that
certain named plaintiffs were not typical of the classes they
sought to represent due to their purchase history and that the
certification of 11 statewide classes with potentially disparate
statutory and common law claims could undermine the superiority of
a class action.
Gbarabe v. Chevron Corp., No. 14-cv-00173-SI (N.D. Cal. Mar. 13,
2017)
Judge Susan Illston of the U.S. District Court for the Northern
District of California refused to certify a class of Nigerian
residents seeking compensation and punitive damages arising out of
environmental damage that occurred in connection with oil drilling
off the coast of Nigeria. The plaintiff brought claims alleging,
inter alia, gross negligence for damage incurred to the
environment in connection with the defendant's activities in the
area. The court noted that the class definition was inadequate
because the plaintiff did not show that the actual harm occurred
in the proposed geographic area. The court also noted that the
named plaintiff's claims were likely not typical of the proposed
class but did not hold that the plaintiff was atypical in light of
its finding that the adequacy requirement was not met. The named
plaintiff's testimony and discovery responses were evasive and
contradictory, raising "significant, unanswered questions" about
his credibility that rendered him an inadequate named plaintiff.
The court also concluded that the plaintiff's counsel did not
demonstrate that they could adequately represent the proposed
class in the class action given their complete disregard for
scheduling orders, lack of familiarity with procedural rules,
deficient evidence and expert reports, and failure to diligently
prosecute the case. Finally, the court held that the plaintiff
failed to meet Rule 23(b)(3)'s superiority requirement, as many
lawsuits were already filed and pending in Nigeria, and all of the
evidence and witnesses were located in Nigeria. Thus, Judge
Illston denied the motion to certify the proposed class.
Wilmington Sav. Fund Sac's, FSB v. Bus. Law Grp., P.A., No 8:15-
cv-2831-T-36TGW, 2017 WL 1034198 (M.D. Fla. Feb. 22, 2017)
Upon request, condominium and homeowners associations in Florida
must provide their members with estoppel certificates identifying
how much they owe in assessments. Florida law limits a first
mortgagee's liability for the unpaid assessments of his or her
predecessor to an amount known as the "safe harbor." In this
case, the plaintiff filed a class action lawsuit against the
defendant debt collectors for issuing deceptive estoppel
certificates and otherwise demanding payment in excess of the safe
harbor. The plaintiff sought to certify claims for injunctive and
declaratory relief under Rule 23(b)(2) and claims for damages
under Rule 23(b)(3). In denying the plaintiff's motion for class
certification, Judge Charlene Edwards Honeywell of the U.S.
District Court for the Middle District of Florida concluded that
the proposed class was not ascertainable because it required
individualized determinations of whether each member was a first
mortgagee. The court further concluded that commonality was not
satisfied because determining whether the certificates were
deceptive would require individualized inquiries into the requests
made and certificates received. Similarly, the plaintiff could not
establish that the defendants acted or refused to act on grounds
that applied generally to the class, as required to certify a
class under Rule 23(b)(2), because each claim would turn at least
in part on whether the class member provided the defendants with
sufficient information to establish entitlement to the safe
harbor. Finally, the court held that Florida's comprehensive
statutory scheme for resolving these disputes was superior to a
class action, precluding certification under Rule 23(b)(3).
Miller v. Wells Fargo Bank, N.A., No. 1:16-cv-21145-UU, 2017 WL
698520 (S.D. Fla. Feb. 22, 2017), Smith v. U.S. Bank, N.A., No.
1:16-cv-21146-UU, 2017 WL 698530 (S.D. Fla. Feb. 22, 2017)
The plaintiffs in these cases sued the defendant banks alleging
that they charged and collected post-payment interest without
providing adequate disclosures as required by Department of
Housing and Urban Development (HUD) and Federal Housing
Administration regulations. In denying class certification in
both cases, Judge Ursula Unger of the U.S. District Court for the
Southern District of Florida first observed that the proposed
classes were adequately defined and clearly ascertainable because
the parties could readily determine: (1) which borrowers were
entitled to the relevant disclosures; (2) whether the defendants
provided any disclosures; and (3) whether the borrowers actually
paid post-payment interest. Moreover, notwithstanding provisions
in the plaintiffs' fee arrangements with counsel limiting their
ability to settle claims individually, the court held that the
plaintiffs were adequate class representatives because the fee
arrangements did not render their interests antagonistic to those
of the class. Nevertheless, the court refused to certify the
proposed nationwide class because the substantive contract law
applicable to the plaintiffs' claims varied materially from state
to state. The court explained that the inquiry was not whether the
elements of a breach-of-contract claim were uniform across states,
but whether states uniformly allowed borrowers to bring
affirmative breach-of-contract claims for damages based on
violations of HUD regulations incorporated into promissory notes.
Thus, the plaintiffs' chart addressing the former issue was
unhelpful, while the defendants' showing that states approach the
latter issue in three distinct ways demonstrated that common
questions of law and fact did not predominate.
Decisions Permitting/Granting Class Certification
Blow v. Bijora, Inc., 855 F.3d 793 (7th Cir. 2017)
The U.S. Court of Appeals for the Seventh Circuit (Ripple, Kanne
and Rovner, JJ.) affirmed the district court's grant of class
certification and summary judgment in favor of the defendant
retailer. The named plaintiff brought suit alleging that the
retailer violated the Telephone Consumer Protection Act and the
Illinois Consumer Fraud and Deceptive Business Practices Act by
sending advertisements by text message to the class members' cell
phones. The district court certified a class of individuals with
particular Illinois telephone area codes who had received
automated texts from the defendant in the preceding four years.
The district court later granted summary judgment in favor of the
defendant because the plaintiff had failed to show that the
defendant used an automatic telephone dialing system. On appeal,
the defendant argued, among other things, that the class was
improperly certified because determining whether each plaintiff
had consented to the text messages would require a series of mini-
trials, and, thus, commonality was not satisfied. The district
court found, however, that commonality was satisfied because the
claims arose from the same factual circumstances and are evaluated
under the same statute. Further, the defendant produced more than
20,000 pages of customer loyalty cards during discovery. This
created a common issue of "whether the customer loyalty cards
operated to provide consent" to the texts. The Seventh Circuit was
thus "hard-pressed" to find an abuse of discretion in finding
commonality to be satisfied and affirmed the district court's
grant of summary judgment.
Stathakos v. Columbia Sportswear Co., No. 15-cv-04543-YGR, 2017 WL
1957063 (N.D. Cal. May 11, 2017)
Plaintiffs sought certification of a class action for violations
of California consumer protection statutes, asserting that the
defendant retailers engaged in deceptive and misleading labeling
and marketing of merchandise in company-owned outlet stores. Judge
Yvonne Gonzalez Rogers of the U.S. District Court for the Northern
District of California granted summary judgment in favor of the
defendants on the plaintiffs' claims for restitution and
disgorgement of profits, and thus denied certification of a Rule
23(b)(3) damages class. However, the court certified a Rule
23(b)(2) class for injunctive relief. The court held that the
proposed class satisfied the Rule 23(a) requirements of
numerosity, typicality and adequacy. It also found common issues
as to the defendants' uniform pricing methods and reliance
demonstrated in the price tags offered by the plaintiffs as common
evidence that such misrepresentations are likely to mislead
reasonable consumers. Further, the injunctive relief sought --
the discontinued use of reference prices -- would apply to the
entire class. Finally, because damages were only sought under
Rule 23(b)(3) -- which had already been rejected -- the court
concluded that there was no concern that the injunctive relief
sought would be incidental to any damages. Accordingly, it
conditionally certified the proposed class for injunctive relief.
Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., No. 15-CV-6314-
YGR, 2017 WL 1806583 (N.D. Cal. May 5, 2017)
The plaintiffs sought certification of three nationwide classes of
cellphone and residential telephone users for violations of the
Telephone Consumer Protection Act, alleging that the defendants
failed to follow telemarketing procedures or respect the National
Do Not Call Registry. Judge Yvonne Gonzalez Rogers of the U.S.
District Court for the Northern District of California certified
the three proposed classes. The court analyzed the commonality
and predominance requirements together, holding that several
common questions existed as to liability, the use of prerecorded
messages and whether calls were placed to numbers on the registry.
The defendants argued that individualized issues arose as to
consent, whether the calls "promoted" Alarm.com and apportioning
liability. The court concluded that apportionment of liability
issues would not differ from plaintiff to plaintiff, and whether
the calls "promoted" Alarm.com was not an individualized issue,
based on scripts and other evidence establishing "a consistent
approach to making telephone calls" that did not vary
significantly from call to call. To eliminate individualized
consent issues, the court modified the classes to exclude
consumers who provided their telephone numbers to the defendants
before the telemarketing call. The court further held that
numerosity, typicality and adequacy were satisfied, and rejected
the defendants' contention that a class action was not superior in
light of a parallel proceeding that might result in double
recovery for class members, because "any risk of double recovery
could easily be addressed by affording Alarm.com an offset against
any recovery" by the plaintiffs in the parallel action.
Meidl v. Aetna, Inc., No. 15-cv-1319 (JCH), 2017 WL 1831916 (D.
Conn. May 4, 2017), 23(f) pet. pending
The plaintiff in this case alleged that the defendant Aetna
insurance companies improperly adopted and implemented policies to
deny coverage for transcranial magnetic stimulation (TMS) therapy
used to treat depression -- policies codified in Aetna's Clinical
Policy Bulletin 469 (CPB 469). In certifying the class, Judge
Janet C. Hall of the U.S. District Court for the District of
Connecticut first found that 301 claim denial letters containing
references to CPB 469 demonstrated that Aetna had a "uniform
policy" of denying TMS claims under CPB 469 and "strongly
support[ed] the conclusion that a common question exist[ed] as to
whether the creation and enactment of CPB 469 constituted a
violation of ERISA fiduciary duties. "The court rejected the
defendants' argument that commonality was not satisfied because
the class members had different levels of depression and treatment
histories and were denied coverage on different dates, explaining
that each putative class member "suffered the same injury, as
required for commonality," because each putative class member was
denied coverage for TMS based on the same policy. Additionally,
the court rejected the defendants' argument that the named
plaintiff was atypical because his plan's experimental and
investigational provision uniquely asked whether a treatment was
approved by the Food and Drug Administration (FDA). The court
found that although the plans contained varying language, they
"almost uniformly" defined "experimental" and "investigational" as
services not approved by the FDA. Finally, the court held that
certification was appropriate under either Rule 23(b)(1)(A) or
Rule 23(b)(2) because the plaintiff sought injunctive relief and
the defendants had categorically denied coverage for a type of
treatment. Having certified the class under those rules, the
court declined to decide whether certification under Rule 23(b)(3)
would also have been appropriate.
Bond v. Liberty Ins. Corp., No. 2:15-cv-04236-NKL, 2017 WL 1628956
(W.D. Mo. May 1, 2017), 23(f) pet. denied
Judge Nanette K. Laughrey of the U.S. District Court for the
Western District of Missouri granted class certification in a suit
alleging that the defendant insurance company violated its
insurance policy by assessing a deductible on certain actual cash
value (ACV) claims that the plaintiffs contended should not have
been assessed under the terms of the policies. The court
initially granted an unopposed motion to bifurcate the class
action into an initial Rule 23(b)(2) phase followed by a Rule
23(b)(3) phase. The plaintiffs argued that a 23(b)(2) class could
allow the court to determine the defendant's liability under its
insurance policies. The declaratory/injunctive class sought, in
part, an order interpreting the policy language and declaring that
the defendant's application of a deductible to ACV payments was
improper; the court could later consider certifying a 23(b)(3)
monetary damages class based on its earlier liability
determination.
The court held that commonality was satisfied because all claims
revolved around the same question of whether the defendant's
admitted practice of applying deductibles to ACV claims is
permissible under the policy. Typicality was met because all
members of the class were subject to the same base policy
language, and the class was limited to Missouri policyholders
whose claims involved the same legal standards and methods of
contract interpretation. In addition, the class was cohesive
because all class members were subject to the same base policy,
and the defendant undertook a systematic practice regarding the
deductibles and ACV claims. Finally, the court held that this
hybrid approach of certifying a 23(b)(2) class where the relief
may serve as a predicate for later monetary relief under 23(b)(3)
was permissible because the declaratory relief sought was a
"separable and distinct type of relief that w[ould] resolve an
issue common to all class members." Accordingly, the court
granted class certification.
Backer Law Firm v. Costco Wholesale Corp., No. 15-0327- CV-W-SRB,
2017 WL 1907764 (W.D. Mo. Apr. 27, 2017)
Judge Stephen R. Bough of the U.S. District Court for the Western
District of Missouri granted class certification in a suit
alleging that the defendant violated the Telephone Consumer
Protection Act (TCPA) by sending an unsolicited facsimile
advertisement to the plaintiff's business. The plaintiff brought
state claims of conversion, violation of the Missouri Computer
Tampering Act, negligence, and negligence per se. As an initial
matter, the court found the plaintiff had standing because the
TCPA required only the sending of a facsimile, not the receipt of
the facsimile. Ascertainability was also satisfied because the
plaintiff provided a list of class members of 1,552 persons whose
names were derived from a report generated to capture all entries
referencing "faxes and faxing" associated with particular Costco
locations in a four-year period. Commonality was satisfied
because the plaintiff had established that liability can arise
from the transmission of unsolicited fax advertisements.
Typicality was satisfied because Costco had not provided
sufficient evidence that any of the proposed class members had
consented to receiving the faxes, and the complaint was premised
on the same kinds of conduct implicating the same legal theories
and factual assessments. Predominance was also satisfied because
the question whether the defendant violated the TCPA by
transmitting unsolicited fax advertisements to the class
predominated over inquiries affecting individuals members,
including the times the faxes were sent, by which employee and by
which fax machine. Accordingly, the court granted class
certification.
Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., No. 12-CV-2066
(PJS/HB), 2017 WL 1483330 (D. Minn. Apr. 25, 2017)
Judge Patrick J. Schiltz of the U.S. District Court for the
District of Minnesota granted class certification in a case
alleging violations of the Telephone Consumer Protection Act
(TCPA) arising from the plaintiff's receipt of an unsolicited
facsimile advertisement from the defendant laboratory about lead
testing services that lacked a proper opt-out notice. The
plaintiff alleged that the violation of the TCPA tied up the
plaintiff's fax line, wasted paper and ink, forced the plaintiff's
employees to waste time processing the unwanted fax and invaded
the plaintiff's privacy interests. After finding that standing was
satisfied, the court analyzed the requirements for class
certification, keeping in mind that the U.S. Court of Appeals for
the Eighth Circuit had already found commonality and predominance
to be satisfied. Numerosity was met because the fax was sent to
3,256 individuals. Typicality was met because, contrary to the
defendant's argument, the plaintiff was not a "professional
plaintiff." Even if he were, his claims would still be typical of
the class because he received the same fax under the same
circumstances and brought the same claims under the same statute.
Adequacy was a closer call, in part, because the named plaintiff
appeared to show little interest in or commitment to the
litigation. The plaintiff failed to personally appear at the last
settlement conference and appeared to be unprepared for his
deposition. However, the main focus of the adequacy inquiry was
to uncover conflicts of interest between the named parties and the
class they seek to represent, and the court did not identify any
kind of conflict with members of the class. Superiority was also
satisfied because the main question in a TCPA case -- whether a
given fax is an advertisement -- is usually resolved in one
stroke. Accordingly, the court granted class certification.
Chapman v. Tristar Prods., Inc., No. 1:16-CV-1114, 2017 WL 1433259
(N.D. Ohio Apr. 24, 2017)
Judge James S. Gwin of the U.S. District Court for the Northern
District of Ohio granted in part a class certification motion in
an action alleging that the defendant's pressure cookers contained
a design defect that allowed users to open the product while still
pressurized, rendering the product worthless. The plaintiffs
sought to certify a nationwide class asserting express warranty
claims and state subclasses on state-specific tort and products
liability claims. Noting that the parties agreed that the laws of
class members' home states controlled their claims, the court
declined to certify the nationwide class because variations among
the states' express warranty laws would cause individual issues to
predominate. However, the court found that common questions of
state law predominated when that class was narrowed to three
states that agreed on the elements of an express warranty claim
and certified the class as to those three states.
In certifying this narrower class, the court also found that the
named class representatives satisfied typicality and adequacy. As
for typicality, the court held that the fundamental claim asserted
-- the pressure cookers could be opened while still pressurized --
was typical of all class members, even though the defendants'
expert was unable to replicate the plaintiffs' allegations that
the device could be opened without any resistance. As to
adequacy, the defendants argued that the named plaintiffs'
decision to seek only economic damages and waive any personal
injury or property damages could lead to waiver of other class
members' personal injury or property damages claims. To address
this concern, the court added an opt-out provision to allow class
members with such claims to preserve their right to pursue them.
The court then narrowed the proposed multistate implied warranty
subclass to include only purchasers in a single state, finding
that variations in state law would otherwise defeat predominance
and that the plaintiffs had not alleged the manifestation of the
defect, which was a required element in another state that the
plaintiffs sought to certify. The court also declined to certify
some of the remaining states' subclasses on the basis that the
relevant state law required alleged injuries other than economic
damages, and the plaintiffs had waived any claim for personal
injury or property damage.
Pierre v. Midland Credit Mgmt., Inc., No. 16 C 2895, 2017 WL
1427070 (N.D. Ill. Apr. 21, 2017)
Judge Harry D. Leinenweber of the U.S. District Court for the
Northern District of Illinois granted class certification in a
suit brought by a plaintiff alleging that the defendant's debt
collection letters failed to provide necessary disclosures, in
violation of the Fair Debt Collection Practices Act (FDCPA). The
plaintiff alleged that the following statement was misleading:
"The law limits how long you can be sued on a debt. Because of
the age of your debt, we will not sue you for it, we will not
report it to any credit reporting agency, and payment or non-
payment will not affect your credit score. "After finding that
the class had standing and was objectively identifiable, the court
addressed the Rule 23(a) requirements. Commonality was satisfied,
as the case involved a standard form letter where only personal
and account information varied across the 68,000 letters sent to
Illinois residents. The defendant argued that predominance was
not satisfied because the mandatory arbitration provisions and
class action waivers in many of the class members' original credit
agreements required individualized inquiries to determine whether
each class member had an actionable claim. However, the plaintiff
sued Midland for violations of the FDCPA arising out of its
conduct as a debt service, not a related entity that was the
assignee and owner of the class members' underlying debt
obligations. Predominance was met because the central issue in
the case involved the defendant's standardized course of conduct
directed to each class member. Accordingly, the court granted
class certification.
Dover v. British Airways, PLC (UK), No. 12 CV 5567 (RJD) (CLP),
2017 WL 1251083 (E.D.N.Y. Mar. 31, 2017), 23(f) pet. denied
The plaintiffs in this case alleged that the defendant airline
breached its frequent flyer contract by imposing fuel surcharges
on frequent flyer reward flights that were calculated to recoup
previous fuel costs that were only arbitrarily related to their
flights. According to the plaintiffs, "fuel surcharges"
contemplated under the contract instead needed to be
"substantively or temporally relevant to" the present cost of
fuel. In certifying the class, Judge Raymond J. Dearie of the U.S.
District Court for the Eastern District of New York first rejected
the airline's argument that commonality and predominance were not
satisfied because the surcharges varied in structure and amount
over the class period. The court explained that the proper
interpretation of the term "fuel surcharges" was a common question
and that whether the surcharges were in fact arbitrarily assessed
was a central issue that could be decided "in one stroke." The
court additionally held that although several of the proposed
class representatives had failed to initially comply with their
discovery obligations and had credibility issues -- for example,
one putative representative had "gamed the system" to obtain
frequent flyer miles without actually spending money --they were
adequate representatives because these issues were not
"significant." Finally, the court held that the proposed class was
easily ascertainable via the airline's database.
In re Morning Song Bird Food Litig., No. 12cv01592 JAH-AGS, 2017
WL 1191485 (S.D. Cal. Mar. 30, 2017), 23(f) pet. denied
Judge John A. Houston of the U.S. District Court for the Southern
District of California certified a class of consumers asserting a
Racketeer Influenced and Corrupt Organizations Act (RICO) claim
arising out of purchases of a wild bird food product that
contained certain chemicals alleged to be harmful to the birds,
and three subclasses for California, Missouri and Minnesota state
law claims. The requirements of Rule 23(a) were satisfied,
including ascertainability, because the plaintiffs provided an
objective way of ascertaining the purchasers through retail
records during a specified time frame. The court also found the
requirements of Rule 23(b)(3) were satisfied, rejecting the
defendants' claims that the allegations were subject to multiple,
plaintiff-specific defenses and fact-intensive inquiries,
including scientific analysis of the allegations and statute of
limitations grounds. Instead, the plaintiffs demonstrated common
questions of fact and law because the RICO claims focused on a
scheme that affected all class members alike, and the class'
injuries derived from a unitary course of conduct. Similarly, the
state claims involved common questions of law and fact regarding
the deceptiveness and materiality of the defendants' alleged
concealment of their illegal conduct and the illegality of their
product. Thus, the claims involved the same alleged injury,
alleged the same conduct by the defendants and would involve
common proof. Finally, a class action would be superior, given the
costs of an individual action compared to the recovery and the
efficiency of addressing common issues on a classwide basis.
Zeidel v. A&M (2015) LLC, No. 13-cv-6989, 2017 WL 1178150 (N.D.
Ill. Mar. 30, 2017)
Judge Robert M. Dow, Jr. of the U.S. District Court for the
Northern District of Illinois granted the plaintiff's motion for
class certification in a putative class action alleging violation
of the Telephone Consumer Protection Act (TCPA). The plaintiff
alleged that the defendant retailer maintained a policy and
practice of gathering telephone numbers and sending customers text
messages without their prior written consent. The plaintiff's
proposed class included those who received one of three particular
text messages on their cellphones from the defendant without
providing prior express written consent to receive such messages.
The defendant was not "fundamentally opposed" to certification of
a class and only disputed the ascertainability requirement of Rule
23. Numerosity was satisfied, as the defendant sent out the
messages to at least 79,000 unique numbers, and commonality was
satisfied because putative class members were sent substantially
the same message. Additionally, whether the messages were
"advertisements" or "telemarketing" under the TCPA were common
questions. Predominance was met because of the defendant's alleged
uniform practice of sending substantially similar text messages,
policy of collecting phone numbers orally and the alleged lack of
written consent. Ascertainability was also satisfied because the
putative class members could be identified by whether they
received one of the text messages during the relevant date range
and could be excluded from the class if they provided their phone
number through the defendant's website, by texting the defendant
or by filling out a written consent form. The class definition,
however, was modified to reflect these methods of providing
express written consent. Accordingly, the court granted the
plaintiff's motion for class certification.
Erickson v. Elliot Bay Adjustment Co., No. C16-0391JLR, 2017 WL
1179435 (W.D. Wash. Mar. 30, 2017)
Judge James L. Robart of the U.S. District Court for the Western
District of Washington granted certification of a class of
consumers alleging violations of the Fair Debt Collection
Practices Act and two Washington consumer protection statutes
based on the defendant's debt collection attempts. The
requirements of Rule 23(a) were met, as the class consisted of
more than 40 consumers who received collection letters with nearly
identical language, and whether that language was misleading could
be resolved as a matter of law, common to the class. The
defendant's defenses, relating to agreements between the
representative plaintiff and a service provider and his refusal to
accept service in a separate collection lawsuit, were too
speculative to rebut the presumption of typicality. Predominance
and superiority under Rule 23(b)(3) were satisfied, as the court's
determination of whether the form collection letters contained
impermissible statements would generate a dispositive common
answer and predominate over individual questions, and individual
class members would have little incentive to pursue individual
claims given the limited financial recovery available. The court
sua sponte exercised its discretion to modify the class
definition, limiting the proposed class to those who actually read
the allegedly offending letters -- including the allegedly
offending language, so that potential members need not refer to
the complaint to determine membership -- and imposing a one-year
class period to limit member claims to those within the applicable
statute of limitations.
Adair v. EQT Prod. Co., No. 1:10CV00037, 2017 WL 1174024 (W.D. Va.
Mar. 29, 2017), 1292(b) pet. denied
Judge James P. Jones of the U.S. District Court for the Western
District of Virginia certified in part three of five putative
class actions brought against two coalbed methane gas (CBM)
producers, alleging that the producers deprived holders of royalty
payments. The court had previously certified all five classes;
however, the U.S. Court of Appeals for the Fourth Circuit
remanded, holding that complications in resolving gas estate
ownership -- such as heirship, intestacy and title-defect issues -
- "pose[d] a significant administrative barrier to ascertaining
the ownership classes." See EQT Prod. Co. v. Adair, 764 F.3d 347,
359, 371 (4th Cir. 2014). Notably, the Fourth Circuit's decision
aligned it with the Third and Eleventh circuits in requiring a
heightened showing of ascertainability in putative class actions;
the Sixth, Seventh, Eighth and Ninth circuits have refused to
require such a showing.
On remand, the district court explained that events had since
taken place that simplified the ascertainability inquiry,
including the passing of a new Virginia law that required gas-well
operators to identify CBM gas owners by the end of 2015. The court
held that -- even "giv[ing] greater consideration to the
administrative challenges" of identifying class members, as the
Fourth Circuit directed -- all of the proposed classes were now
ascertainable because the Virginia law essentially mandated that
the defendants identify the putative class members. The court's
determinations regarding commonality and predominance, however,
varied with the different putative classes and claims. For
example, the court found that common issues predominated for the
class of "deemed lessors" because they were subject to the same
pooling order, enabling a classwide determination of whether the
defendants' deduction practices were improper. Conversely, the
court found that the class of "individual lessors" could not be
certified because the lessors were bound by individual leases,
necessitating individualized inquiries into whether the defendants
took excessive deductions from each lessor's royalty payments. In
the end, the court certified in part two classes: plaintiffs who
had never received CBM royalties and whose CBM interest were
force-pooled and plaintiffs who had received royalties but claimed
to have been underpaid.
In re Dial Complete Mktg. & Sales Practices Litig., MDL No. 11-md-
2263-SM, 2017 WL 1155736 (D.N.H. Mar. 27, 2017)
Judge Steven J. McAuliffe of the U.S. District Court for the
District of New Hampshire certified a class of purchasers in an
action alleging that the defendant's product packaging
misrepresented the antibacterial properties of its soap. The
court had previously denied the plaintiffs' class certification
motion on the basis that the plaintiffs had not demonstrated that
damages could be calculated on a classwide basis. As part of
their renewed motion for class certification, the plaintiffs
submitted testimony from a new expert regarding his methodology
for quantifying the portion of the product's price attributable to
the allegedly false claims. Although the defendant identified
potential flaws in the expert's methods and calculations, the
court found that the damages model was sufficient to demonstrate
that damages could be calculated on a classwide basis in a manner
consistent with the plaintiffs' theory of liability. Specifically,
the defendant argued that this damages model was unreliable
because it only measured the change in consumer "willingness to
pay" and did not incorporate any analysis of market supply
factors. Therefore, it only measured the change in consumer
demand, not the change in market price. The court disagreed: In an
efficient market, the court said, the marginal consumer's
willingness to pay could be an appropriate measure for determining
price premium.
Navelski v. Int'l Paper Co., No. 3:14cv445/MCR/CJK, 2017 WL
1132569 (N.D. Fla. Mar. 25, 2017)
During a storm described by the court as "extraordinary," a creek
running through the defendant's property overflowed and flooded
some of the plaintiffs' homes. The plaintiffs asserted various
tort claims against the defendant, claiming that the flooding was
caused or exacerbated by a dam that collapsed during the storm
because the defendant failed either to maintain or remove it.
Chief Judge M. Casey Rodgers of the U.S. District Court for the
Northern District of Florida certified a liability-only class of
current and former property owners in subdivisions near the creek
under Rule 23(b)(3). The court observed that the plaintiffs had
alleged common factual questions for which there were common
answers regarding the defendant's maintenance or abandonment of
the dam and whether the flooding was caused or exacerbated by the
dam's collapse. The court also noted that all homes within the
proposed class area experienced stigma damages and/or flooding,
and that individual variations in when class members' homes
flooded or the extent of their damages did not defeat typicality
or adequacy. Finally, notwithstanding the need for property-
specific damages calculations, the court concluded that common
issues predominated because every aspect of liability could be
resolved on a classwide basis. Thus, the court bifurcated the
case and certified a class on the issue of liability only,
reserving damages for separate, individualized proceedings.
Martin v. Monsanto Co., No. ED CV 16-2168-JFW (SPx), 2017 WL
1115167 (C.D. Cal. Mar. 24, 2017)
Judge John F. Walter of the U.S. District Court for the Central
District of California certified a class action of consumers
seeking damages for violations of both federal and California
consumer protections and warranty statutes. The plaintiff
asserted that representations on the label of the defendant's
herbicide products like "Makes Up to [x] Gallons," were deceptive
because mixing the products according to the directions resulted
in fewer gallons than represented. The court held that class
certification was appropriate. Numerosity was easily satisfied,
as the defendant sold hundreds of thousands of products to tens of
thousands of consumers. Moreover, commonality and typicality were
met because the transactions involved the same facts and claims:
namely, the class was exposed to the same statement on similar
products. Finally, the court rejected the defendant's argument
that the plaintiff was inadequate because she was seeking less in
damages than she could obtain pursuant to the consumer guarantee -
- which allows a consumer to obtain a full refund of the product -
- given that members who preferred to obtain a refund could opt
out of the class. The proposed class satisfied Rule 23(b)(3)
because a reasonable consumer could find the statement material,
and the proposed damages calculation, a benefit-of-the-bargain
model, provided a capable measurement of damages on a classwide
basis.
Smith v. Triad of Ala., LLC, No. 1:14-CV-324-WKW, 2017 WL 1044692
(M.D. Ala. Mar. 17, 2017)
The plaintiffs in this case filed a class action lawsuit against
the defendant hospital after a hospital employee stole personal
information from nonhospital patients whose blood came to the lab
from outside health care facilities. The plaintiffs sought to
certify a class of all persons who had their personal health
information stolen, regardless of whether the employee
subsequently used that information to commit fraud or identity
theft. In granting the plaintiffs' motion for class
certification, Chief Judge W. Keith Watkins of the U.S. District
Court for the Middle District of Alabama rejected the defendant's
argument that the class was not ascertainable because it included
persons whose identities were stolen but not affirmatively
misappropriated, finding that the U.S. Court of Appeals for the
Eleventh Circuit has never required a showing of actual misuse to
prove standing. Moreover, although the plaintiffs' implied and
express contractual claims were mutually exclusive under Alabama
law, the court resolved that issue by sua sponte creating
subclasses of patients who had and had not received the
defendant's "notice of privacy practices. "Finally, the court
engaged in a claim-by-claim predominance analysis, observing that
although causation and damages determinations were individualized,
common formation and breach issues predominated the plaintiffs'
contract claims while common duty and breach issues predominated
their negligence claims.
Mednick v. Precor, Inc., No. 14 C 3624, 2017 WL 1021994 (N.D. Ill.
Mar. 16, 2017)
Judge Harry D. Leinenweber of the U.S. District Court for the
Northern District of Illinois certified the plaintiffs' proposed
class for the purpose of determining liability but reserved the
issue of damages for individual hearings. The plaintiffs brought
this class action to remedy unfair and deceptive business
practices related to the defendant's marketing and sale of
treadmills with "touch sensor heart rate" monitoring technology.
The plaintiffs alleged that the touch sensor heart rate monitors
did not provide accurate heart rate readings and sought to recover
for violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act and the equivalent consumer protection
statutes in four other states. The defendant argued that
inaccuracies were driven by individualized factors such as age and
body mass and also argued that its treadmills come with
disclaimers about the monitors' performance. The court noted that
commonality was satisfied, as multiple common questions boiled
down to whether the defendant engaged in representations or
omissions that were likely to deceive a reasonable consumer. The
plaintiffs could not rely on representations made in brochures or
on its website, but the plaintiffs could rely on common
misrepresentations in the graphics on the treadmills themselves
and any material omissions by the defendant. These common
questions, however, did not extend to liability and the amount of
any damages, as the individual recoveries would depend on the
state in which the individuals reside.
Typicality was satisfied because even if the named plaintiffs did
not run on the machines, the point at which the sensors were most
compromised, this did not mean that they could not have been
deceived or injured by the defendant's deceptive advertising.
Finally, predominance was satisfied because the plaintiffs'
damages model could be adjusted to more closely tie to the
plaintiffs' theory that the sensor did maintain some value and was
not worthless. The plaintiffs also narrowed their proposed class
to five states from 10, as the consumer protection statutes of
California, Illinois, Missouri, New York and New Jersey share
sufficient characteristics. Accordingly, the court certified this
Rule 23(b)(3) class.
Korolshteyn v. Costco Wholesale Corp., No. 3:15-cv-709-CAB-RBB,
2017 WL 1020391 (S.D. Cal. Mar. 16, 2017), 23(f) pet. pending
Judge Cathy Ann Bencivengo of the U.S. District Court for the
Southern District of California certified a class of consumers
seeking restitution and punitive damages for violations of
California consumer protection statutes arising from the
defendants' alleged false statements about the health benefits of
their products. The court found that numerosity, typicality and
adequacy were satisfied, rejecting the defendants' argument that
the named plaintiff's Facebook communication with an attorney
friend discussing the deceptiveness of the statements on the
product barred the named plaintiff from adequately serving as
class representative, as she purchased the product before the
conversation. The court also rejected the defendants' arguments
that commonality and predominance were not satisfied because some
people may have derived benefits from the products, that others
purchased the products based on competitor statements and that the
damages model was flawed because it did not take into
consideration whether some class members obtained some value from
the product. Instead, the court noted that the common question
turned on the deceptive statements themselves, that the
deceptiveness of its competitors did not absolve its own deceptive
statements and that the damages model based on the records of
purchases of the products was workable because under the
plaintiff's theory, the product provided no benefit and was thus
valueless. Finally, the court rejected the defendants' arguments
that its offer of a full refund lessened the superiority of the
class action, as such a policy would effectively immunize the
store from any lawsuits, and physically going to the store to seek
a small refund was not superior to obtaining relief as a class.
Langan v. Johnson & Johnson Consumer Cos.,Nos. 3:13-cv-1470 (JAM),
3:13-cv-1471 (JAM), 2017 WL 985640 (D. Conn. Mar. 13, 2017)
Langan involved two putative class actions brought by one
plaintiff alleging deceptive marketing practices related to
Johnson & Johnson's Aveeno line of products. In the first case,
the plaintiff challenged the claim that certain products contained
100 percent naturally sourced sunscreen ingredients and sought to
certify an injunctive class of consumers who had used the
products. In denying certification, Judge Jeffrey Alker Meyer of
the U.S. District Court for the District of Connecticut held that
the plaintiff did not have standing because an injunction
requiring removal of the allegedly misleading claims from the
product labels would not affect her -- she now understood the
products' ingredients and did not intend to buy them again. The
court acknowledged that some courts have reasoned that not
allowing plaintiffs to sue for injunctive relief after becoming
aware of allegedly misleading advertising would defeat the purpose
of consumer protection statutes. The court disagreed, however,
explaining that "[r]egardless of the salutary purpose of consumer
protection statutes, they cannot alter the bedrock requirements
for federal constitutional standing."
In the second case, the plaintiff challenged the claim that
certain baby washes used a natural oat formula and sought to
certify a damages class of plaintiffs who had used the products in
several states (or alternatively, Connecticut). In certifying the
class, the court concluded that commonality and typicality were
met because the question of whether a "reasonable consumer" would
find the product labels deceptive was common to and typical of the
class. The court then rejected the argument that common issues did
not predominate because the plaintiff could not prove that the
allegedly deceptive claim was material to all class members or
that the class members had a common definition of "natural." The
court found that internal documents showing that the defendant
"itself recognized that consumers [were] willing to pay a premium
for natural products" were "powerful evidence" that the allegedly
deceptive labeling was material across the class. The court
further explained that class certification does not require "clone
plaintiffs that all think and perceive exactly alike" and credited
the plaintiff's expert's survey showing that 70 percent of
respondents believed that the baby wash was an all-natural
formula. Finally, the court determined that minor variations in
various states' consumer protection laws did not defeat
predominance. It observed a number of similarities, including that
none of the states' highest courts had required a showing of
individual reliance to prove deception.
Herman v. Seaworld Parks & Entm't, Inc., No. 8:14-cv-3028-MSS-JSS,
2017 WL 1304302 (M.D. Fla. Mar. 10, 2017), appeal pending The
plaintiffs in this case paid for annual passes to the defendant's
theme parks on 12-month installment plans, under which "except for
any passes paid in less than 12 months," the contract would "renew
automatically on a month-to-month basis following the payment
period" until the customer terminated it. The plaintiffs sued for
breach of contract, alleging that the defendant automatically
renewed contracts for which 12 monthly payments were timely made,
violating the renewal provision because customers who timely pay
in 12 monthly installments necessarily meet their obligation in
"less than 12 months. "The plaintiffs also alleged that the
defendant violated the Electronic Fund Transfer Act (EFTA) for
customers who paid using their debit cards because the defendant
was not authorized to transfer funds from their bank accounts
after the first 12 months. In certifying the plaintiffs' breach-
of-contract class and EFTA subclass, Judge Mary S. Scriven of the
U.S. District Court for the Middle District of Florida observed
that class membership was readily ascertainable by reference to
objective criteria, i.e., the number of months over which payments
were made. The court further held that commonality was satisfied
because the phrase "less than 12 months" was not ambiguous, which
enabled the breach of contract issue to be decided classwide
without the need for extrinsic evidence of its meaning. Finally,
the court held that predominance was satisfied even though the
substantive contract law of four states would apply because that
law did not materially vary.
Durant v. State Farm Mut. Auto. Ins. Co., No. 2-15-CV-01710-RAJ,
2017 WL 950588 (W.D. Wash. Mar. 9, 2017)
Judge Richard A. Jones of the U.S. District Court for the Western
District of Washington certified a class of Washington insureds
asserting violations of the Washington Consumer Protection Act and
Washington Insurance Fair Conduct Act, breach of contract and
tortious bad faith handling of insurance claims, alleging that
State Farm wrongfully terminated or limited insurance benefits
because the insureds had attained "maximum medical
improvement"(MMI). Because the putative class was estimated to
involve thousands of claims, numerosity was satisfied. In
addition, the court held that typicality and adequacy were
satisfied, even though each class member's claim arose from unique
individual personal injuries, because the alleged injuries all
arose from the same course of conduct -- denying coverage based on
the MMI standard -- and there was no evidence of conflicts within
the class or with class counsel. The court also found that Rule
23(b)(3)'s predominance and superiority requirements were
satisfied because the common question as to whether State Farm had
engaged in unreasonable, unfair or illegal practices by denying
claims based on the MMI standard was a central issue that would
resolve most of the elements of each claim. The court noted that
calculating damages might necessitate individualized review of
each claim, but that the damages could be calculated based on the
detailed records of each claim and the basis for denial, which
also eliminated concerns about manageability and class member
identification.
Mazzanti v. Gen. Elec. Co., No. 3:13cv1799 (WWE), 2017 WL 923905
(D. Conn. Mar. 7, 2017), 23(f) pet. denied
Judge Warren W. Eginton of the U.S. District Court for the
District of Connecticut certified several liability-only
subclasses of consumers who owned allegedly defective microwave
ovens manufactured by the defendant, but he refused to certify
damages subclasses or a nationwide class seeking declaratory and
injunctive relief under Rule 23(b)(2). The plaintiffs alleged
that defects caused the microwaves' glass doors to shatter,
rendering them unreasonably dangerous and breaching their
warranty. In certifying a multistate liability-only subclass for
claims under the states' consumer protection laws, the court
explained that common questions predominated because these claims
hinged largely on: (1) whether the relevant microwaves all
contained a defect that could cause glass to shatter regardless of
consumer conduct; and (2) whether the defendant knew about the
defect and failed to disclose it. The same could not be said for
damages, however, because predominance was undermined by
individualized inquiries into the various state statutes' remedial
schemes. Similarly, the court certified a Texas implied warranty
subclass on liability because the question of whether consumers
received the benefit of their bargain predominated, but it refused
to certify a damages subclass because it would require
individualized determinations of harm. Finally, the court
deferred ruling on the plaintiffs' motion to certify a nationwide
declaratory and injunctive relief class until after it had
determined liability.
Clark v. Trans Union, LLC, No. 3:15cv391, 2017 WL 814252 (E.D. Va.
Mar. 1, 2017), 1292(b) pet. pending
Judge M. Hannah Lauck of the U.S. District Court for the Eastern
District of Virginia granted the plaintiff's motion for class
certification in a putative class action alleging that the
defendant violated the Fair Credit Reporting Act (FCRA) by sending
consumers credit files that did not "clearly and accurately"
disclose the sources of information for the file. The court first
held that numerosity and ascertainability were easily satisfied
because there would likely be at least 4,000 members in the class
and the defendant admitted to having records that could identify
each of them. Similarly, commonality and predominance were
satisfied because the case would focus on the defendant's conduct,
i.e., whether its policy of not disclosing the sources of public
records information violated the FCRA and whether it acted
willfully in withholding this information. The court also
rejected the defendant's arguments that the plaintiff's claims
were not typical of the class because the facts surrounding her
allegations were unique. The court explained that the plaintiff's
alleged injury -- the defendant's failure to disclose its sources
-- was the same as that of the other class members and would
require the same proof. The court similarly rejected the
defendant's argument that the plaintiff should not represent the
class because her knowledge of the case did not rise to that of
her counsel's. It explained that it is "hornbook law" that a
class representative is entitled to rely upon her lawyer's
expertise. Finally, the court held that superiority was satisfied
because the low value and technical nature of the claims would
likely prevent class members from pursuing individual claims.
Kurtz v. Kimberly-Clark Corp., No. 14-CV-1142, 2017 WL 751231
(E.D.N.Y. Feb. 24, 2017) & Kurtz v. Kimberly-Clark Corp., No. 14-
CV-1142, 2017 WL 1155398 (E.D.N.Y. Mar. 27, 2017), 23(f) pet.
granted
The plaintiffs in two separate but related actions -- Belfiore and
Kurtz -- moved for class certification in this consolidated
proceeding against manufacturers and retailers of moist toilet
wipe products that allegedly falsely labeled the products as
"flushable" when, in fact, they were not flushable and clogged
household plumbing. Judge Jack B. Weinstein of the U.S. District
Court for the Eastern District of New York initially declined to
certify the nationwide class proposed in the Kurtz action. The
court held that Mr. Kurtz failed to demonstrate "the financial or
other capacity to adequately represent a national class,"
highlighting the need for a survey to determine a reasonable
consumer's understanding of the term "flushable" -- a costly
endeavor that Kurtz was admittedly reluctant to undertake. The
court noted, however, that certifying New York consumer classes in
both the Belfiore and Kurtz actions would be appropriate because
the events underlying the plaintiffs' claims and discovery had
taken place there. A month later, the court issued a second
opinion addressing both the Belfiore and Kurtz cases in which it
certified those proposed statewide classes. In so doing, the court
noted that its concern about willingness to finance consumer
surveys was "reduced by dismissal of the national claims" in
Kurtz. The court disagreed with the defendants that commonality
was not met because the term "flushable" was "too amorphous and
idiosyncratic to be the subject of one common definition." The
court found that this representation was "sufficiently
distinctive" and could be isolated from other representations made
on the label. Explaining that the "injury is the purchase price"
under New York consumer protection laws, the court likewise
rejected the defendants' argument that commonality was not
satisfied because payment of a price premium depended on the
purchaser's individual experience with the product after purchase.
In re Stericycle, Inc., No. 13 C 5795, 2017 WL 635142 (N.D. Ill.
Feb. 16, 2017)
Judge Milton I. Shadur of the U.S. District Court for the Northern
District of Illinois granted class certification in a putative
class action brought by plaintiffs alleging breaches of contract
and the covenant of good faith, unjust enrichment, and violations
of consumer fraud and uniform trade practices acts under Illinois
and several other states' laws. The plaintiffs alleged that the
defendant medical waste disposal company violated consumer
contracts by using an automated price increase to increase charges
to some customers without notice or explanation and charge the
plaintiffs for undisclosed fees. The defendant argued that class
certification was inappropriate because of the wide variance in
contract language and client treatment. The court found that a
Rule 23(b)(3) class was proper, as commonality was satisfied
because the plaintiffs' pleadings were enough to establish a
uniform scheme by the defendant with common questions applicable
to the entire class. Each class member had similar contractual
language, and each member was subject to the same type of
automatic price increase. Predominance was satisfied as to both
the breach of contract and Illinois Consumer Fraud Act claims
because both claims stem from the defendant's common practice of
regularly increasing customers' prices in violation of their
contracts through the use of software programming. It was also
satisfied as related to their fraud claim because the plaintiffs
had shown a standardized pattern of misrepresentations, and
damages could be calculated using a common, reliable formula after
resolving the liability questions. The court also certified a
Rule 23(b)(2) class because the defendant's automatic price
increase policy affected all class members, and the defendant's
common conduct meant that it could be enjoined or declared
unlawful only as to all class members or none. Accordingly, the
court certified Rule 23(b)(2) and Rule 23(b)(3) classes.
O'Shea v. Am. Solar Sol., Inc., 318 F.R.D. 633 (S.D. Cal. 2017)
Judge M. James Lorenz of the U.S. District Court for the Southern
District of California certified a nationwide class of individuals
seeking putative damages under the Telephone Consumer Protection
Act (TCPA) for unsolicited telemarketing calls. The court
concluded that the litigation turned on a common question of
whether the predictive dialers utilized by the defendant were an
automatic telephone dialing system under the TCPA. Moreover, the
court held that the named plaintiff's claims were typical of the
class, as he also received the same telemarketing calls as the
proposed class members. Finally, the court held that the
predominance requirement of Rule 23(b)(3) was met, as there was no
applicable good faith defense. The court questioned whether the
defendant could escape TCPA liability by virtue of having an
honest but mistaken belief that it had prior express consent to
make the call, and in any event, not having introduced evidence of
any good faith. Furthermore, the potential for individualized
damages could not defeat the certification of the proposed class,
as damages are set by statute and therefore are less likely to
involve intensive fact finding, and could be easily calculated
based on records maintained by the defendant. Thus, Judge Lorenz
certified the nationwide class.
Other Class Certification Decisions
Landau v. Viridian Energy PA LLC, No. 16-2383, 2017 WL 1232313
(E.D. Pa. Apr. 3, 2017)
Judge Gerald Austin McHugh of the U.S. District Court for the
Eastern District of Pennsylvania granted the defendant's motion to
stay the plaintiff's putative class action alleging violations of
Pennsylvania's Unfair Trade Practices and Consumer Protection Law.
The court held that the "first-filed rule" applied based on the
fact that Viridian was defending four similar actions in the
District of Connecticut. Under the rule, where two courts possess
the same case at the same time, the court in which the action was
filed first must decide it. While the U.S. Court of Appeals for
the Third Circuit had not definitively ruled on the scope of the
first-filed rule, Judge McHugh applied a two-tiered approach in
which, in truly related cases, transfer to the jurisdiction where
the first case was filed is presumed; otherwise, the existence of
a similar case that was filed earlier is a relevant, but not
controlling, factor to consider as part of the Section 1404
transfer analysis. In this case, because the four Connecticut
actions involved different -- though similar -- legal claims and
parties, Judge McHugh conducted a Section 1404 analysis to
conclude that the combination of Pennsylvania's local interest in
trying the case and the presumed interests of the parties in
trying the case in the forum in which they selected outweighed any
public interest in favor of transfer. However, Judge McHugh held
that staying the matter was appropriate due to the possibility of
overlapping classes in Landau and one of the Connecticut actions,
and because the burdens a stay would impose on the plaintiff were
minimal.
Class Action Fairness Act Decisions
Decisions Denying Motions to Remand/Reversing Remand
Orders/Finding CAFA Jurisdiction
Blevins v. Aksut, 849 F.3d 1016 (11th Cir. 2017)
The U.S. Court of Appeals for the Eleventh Circuit (Wilson, Julie
Carnes, JJ., and Hall, district judge sitting by designation)
affirmed the district court's denial of the plaintiffs' motion to
remand. The plaintiffs filed a class action lawsuit in Alabama
state court, alleging that a heart surgeon and various health care
facilities operated a racketeering enterprise through which they
performed and billed for unnecessary heart procedures in violation
of the Racketeer Influenced and Corrupt Organizations Act. After
the defendants removed the action based on federal-question
jurisdiction, the plaintiffs moved to remand, arguing that CAFA
grants state courts exclusive jurisdiction over local federal-
question class actions, or alternatively, that federal courts
should abstain from exercising jurisdiction over local federal-
question class actions. In affirming the district court's decision
that CAFA was inapplicable and therefore did not require remand,
the panel explained that CAFA "grants district courts
jurisdictional power they did not previously have, "although the
local controversy exception "removes their ability to exercise
that specific grant of jurisdiction in certain cases." CAFA does
not, however, "preclude the exercise of any other jurisdictional
power." Thus, nothing in CAFA precluded the district court from
exercising federal question jurisdiction -- a "jurisdictional
power" it derived from an entirely different statute.
Hargett v. RevClaims, LLC, 854 F.3d 962 (8th Cir. 2017)
The U.S. Court of Appeals for the Eighth Circuit (Smith, Bowman
and Shepherd, JJ.) reversed the district court's grant of a motion
to remand the putative class action to state court because,
although the complaint limited the class to "residents "of a
single state, "residents" are not the same as "citizens" under
CAFA's local controversy exception. The plaintiff alleged
violations of Arkansas law related to the practice of at least one
hospital requiring some patients to assign their rights as
Medicaid beneficiaries to the hospital, which in turn contracted
with the defendant to pursue any legal claims the patients may
have related to their injuries in lieu of collecting a reduced but
certain payment from Arkansas Medicaid. Following removal, the
district court found that the local controversy exception of CAFA
-- which applies where, among other requirements, "more than two-
thirds of the proposed plaintiff class(es) are citizens of the
state in which the action was originally filed" -- applied to the
class limited to "Arkansas residents." For clarity, however, the
district court directed the plaintiff to immediately amend her
complaints to restrict the class to Arkansas "citizens. "The
plaintiff filed an amended complaint, and the case was remanded.
On review, the Eighth Circuit found that the citizenship/residency
distinction rooted in law related to 28 U.S.C. Sec. 1332 -- i.e.,
that citizenship requires permanence whereas residency is a more
fluid concept -- also applies to CAFA's local controversy
exception. Therefore, the district court erred when finding that
alleging a class of Arkansas residents was sufficient to satisfy
this CAFA exception. The district court's requirement that the
plaintiff amend her complaint suggested that the court "relied on
guesswork" and "resolved doubt in [the plaintiff's] favor. "The
Eighth Circuit also did not consider the plaintiff's amended
complaint because class citizenship must be determined as of the
date of the pleading giving federal jurisdiction. Accordingly,
the district court's order to remand was reversed and remanded for
further proceedings to determine "through evidence" rather than
"guesswork" or "presumptions" whether the local controversy
exception was satisfied.
Dammann v. Progressive Direct Ins. Co., 856 F.3d 580 (8th Cir.
2017)
The U.S. Court of Appeals for the Eighth Circuit (Benton, Beam and
Murphy, JJ.) affirmed the denial of the plaintiffs' motion to
remand the putative class action to Minnesota state court. The
plaintiffs claimed that the defendant maintained a practice of
selling insurance policies with deductibles that reduced benefit
payments below statutory minimums, thereby violating Minnesota
law. The plaintiffs argued that the district court erred when it
found that the amount in controversy exceeded $5 million.
According to the defendant, approximately 600 individuals fell
within the class. However, when the district court calculated the
amount in controversy, it relied on premiums collected on all
Progressive policies, which included the challenged deductibles.
The plaintiffs argued that this calculation included those
policyholders who had not made claims that led to the application
of the deductibles and was thus overinclusive. On review, the
panel of the Eighth Circuit found that the plaintiffs failed to
show that it is legally impossible for them to recover more than
$5 million. For the purposes of determining the amount in
controversy, the question "is not whether the damages are greater
than the requisite amount, but whether a fact finder might legally
conclude that they are." The plaintiffs offered no evidence to
establish the amount they collectively paid in premiums, and
without such information, the panel could not determine whether it
would be legally impossible for them to recover $5 million.
Accordingly, the panel affirmed the district court's denial of
remand.
Davenport v. Lockwood, Andrews & Newnam, Inc., 854 F.3d 905 (6th
Cir. 2017)
The U.S. Court of Appeals for the Sixth Circuit (Norris,
Batchelder and Gibbons, JJ.) reversed the district court's order
to remand a putative class action for lack of subject matter
jurisdiction, finding that the local controversy exception to CAFA
jurisdiction did not apply because other class actions asserting
the same allegations against some of the same defendants had been
filed in the three years before the action was filed. The
putative class action was one of several negligence actions filed
in Michigan against an out-of-state company hired by the city of
Flint, Michigan, to advise the city regarding its water-treatment
process, and the Sixth Circuit had previously held that the local
controversy exception applied to the first-filed of these actions.
The plaintiffs here argued that the exception's requirement that
no other similar class actions were filed in the last three years
should not apply to class actions filed within a single state,
because the requirement was intended to prevent copycat suits in
multiple forums. However, to the court, such an interpretation was
inconsistent with both the plain language of the statute and
Congress' intent in enacting CAFA to broaden the availability of
diversity jurisdiction in class action suits.
Ramirez v. Vintage Pharm., LLC, 852 F.3d 324 (3d Cir. 2017)
The U.S. Court of Appeals for the Third Circuit (Chagares,
Vanaskie and Krause, JJ.) found federal jurisdiction appropriate
under CAFA and reversed the opinion of the U.S. District Court for
the Eastern District of Pennsylvania that had granted the
plaintiff consumers' motion for remand. The plaintiffs sought
remand of their action against the defendant, a manufacturer of
birth control pills with allegedly defective packaging, on grounds
that they had not filed a "mass action" under CAFA. They argued
that their complaint, which stated that their "claims have been
filed together . . . for purposes of case management on a mass
tort basis," disclaimed an intent to have their cases tried
together. The Third Circuit rejected the plaintiffs' claim that
they did not intend to seek a joint trial, finding the language in
the plaintiffs' complaint to be imprecise and indefinite, holding
that "[w]here, as here, more than 100 plaintiffs file a single
complaint containing claims involving common questions of law and
fact, a proposal for a joint trial will be presumed unless an
explicit and unambiguous disclaimer is included." The court
similarly rejected the plaintiffs' argument that their motion for
admission to the mass tort program was evidence of their intent to
try their claims separately, holding that (1) acceptance to the
mass tort program would not preclude a joint trial, which can take
a variety of forms; and (2) the face of the complaint and
structure of the action were the best indicators of whether
plaintiffs sought a joint trial.
Bradford v. George Wash. Univ., No. 16-858 (RBW), 2017 WL 1383653
(D.D.C. Apr. 18, 2017)
Judge Reggie B. Walton of the U.S. District Court for the District
of Columbia denied the plaintiffs' motion to remand this putative
class action brought by students against their university
alleging, among other things, violations of District of Columbia
Consumer Protection Procedures Act for certain shortcomings and
misrepresentations in their online education. The defendant
asserted that federal jurisdiction under CAFA existed because (1)
the putative class consisted of over 240 members; and (2) the
amount-in-controversy requirement was satisfied because the
plaintiffs sought restitution of all tuition payments, statutory
damages, treble damages, punitive damages and attorneys' fees.
The court held that -- based on a declaration from a senior
university staff member familiar with the university's enrollment,
tuition and attendance records, at least 248 students had paid
some tuition for the online course at issue, with aggregate
tuition totaling $5,911,464.02 -- the defendant established by a
preponderance of the evidence that the CAFA requirements were
satisfied.
Zyda v. Four Seasons Hotels, No. 16-00591 LEK, 2017 WL 1157844 (D.
Haw. Mar. 28, 2017)
Judge Leslie E. Kobayashi of the U.S. District Court for the
District of Hawaii denied the plaintiffs' motion to remand a
putative class action alleging state law violations for failure to
maintain and provide adequate facilities to handle the growing
population and increased usage of the Hualalai Resort, after
making promises regarding membership to induce home purchases. The
plaintiffs argued that the defendants knew or should have known
that the plaintiffs' claims exceeded the $5 million jurisdictional
threshold more than 30 days before they filed their notice of
removal. The plaintiffs pointed to, inter alia, precomplaint
information that the resort was populated by multimillionaires and
billionaires, to certain allegations in the complaint (which did
not contain damages figures) and to documents describing lost
future rental income and an example of how damages could be
calculated in the action. The court reiterated that removal
jurisdiction cannot be established by mere speculation and
conjecture with unreasonable assumptions, and it held that none of
the evidence, individually or collectively, provided the
defendants with enough information to ascertain the amount in
controversy. Thus, the court ruled that the removal was timely and
remand was not warranted.
Millman v. United Techs. Corp., Nos. 1:16-CV-312-PPS-SLC, 1:17-CV-
28-PPS-SLC, 2017 WL 1165081 (N.D. Ind. Mar. 28, 2017)
Judge Philip P. Simon of the U.S. District Court for the Northern
District of Indiana denied the defendants' motion to remand the
putative class action to state court. In two related matters that
Judge Simon consolidated in this same order, the plaintiffs
alleged that chemicals from a manufacturing plant and gas station
entered the soil and groundwater in the surrounding neighborhood.
The Millman case was a putative class action, and the proposed
class consisted of all Indiana citizens within the area impacted
by the contamination. Following removal, the Millman plaintiff
argued that the case should be remanded under the local
controversy exception to CAFA. While consolidation mooted the
plaintiff's motion to remand by providing an additional basis for
federal jurisdiction -- a federal question -- Judge Simon noted
that in any event, he did not believe the local controversy
exception applied to this case. While the contamination was local,
as is the case in many environmental cases, the plaintiff failed
to establish that the nondiverse defendants were defendants from
whom "significant relief" was sought or formed a "significant
basis" for the proposed claims. Instead, the plaintiffs' exhibits
seem to suggest a larger contamination related to the diverse
defendants that affected more residences than the contamination
from the nondiverse defendants. Therefore, even if the court had
to rule on the motion to remand before ruling on the motion to
consolidate, the court's conclusion would have been the same.
Nichols v. Chesapeake Operating, LLC, No. CIV-16-1073-M, 2017 WL
713906 (W.D. Okla. Feb. 23, 2017)
Judge Vicki Miles-LaGrange of the Western District of Oklahoma
denied the plaintiffs' motion to remand the putative class action
to state court. The plaintiff argued that the defendants had not
sufficiently demonstrated that CAFA's minimal diversity
requirement was satisfied. The plaintiff and the defendants
agreed that the defendants were citizens of Oklahoma, but the
defendants argued that Austin College was a member of the
plaintiff's proposed class and also a citizen of Texas. The
plaintiff argued that Austin College was a member of the proposed
class, defined as "Oklahoma Residents," and was in fact a resident
of Oklahoma. The court found that although Austin College met the
putative class' definition of an "Oklahoma Resident," and thus was
a member of the class, it was actually a citizen of Texas. The
discrepancy was due to the fact that the plaintiff's definition of
"Oklahoma Resident" differed from the legal definition of a
resident: The proposed class member definition was an individual
that received royalty payments, 1099 forms and distribution checks
at an Oklahoma address and was a royalty owner in one of the
defendant's Oklahoma wells. Austin College received royalty
payments at its bank address in Oklahoma and thus was an "Oklahoma
Resident" for purposes of determining class membership, although
it was in fact a citizen of Texas.
Lavelle v. State Farm Mut. Auto. Ins. Co., No. 16-1082 (RBW), 2017
WL 706157 (D.D.C. Feb. 22, 2017)
Judge Reggie B. Walton of the U.S. District Court for the District
of Columbia denied the plaintiffs' motion to remand, finding that
the defendant sufficiently demonstrated that CAFA's requirements
for establishing federal jurisdiction were met. The plaintiffs
brought this putative class action against State Farm alleging
that it breached its insurance contracts with its insureds by
failing to pay for the diminished value of the insureds' vehicles
after they were repaired to industry standards, in violation of
state consumer protection laws. While the parties agreed on the
average damages amount per class member, the plaintiffs disputed
State Farm's calculations of class size, the amount of attorneys'
fees and the amount of punitive damages. First, State Farm
offered a declaration supporting its claim that the putative class
consisted of 1,171 members, based on a manual review of a
statistical sample of the claims, a plan proposed by a retained
economist. Given the economist's qualifications and experience,
the court found that defendant met the preponderance of the
evidence standard with respect to the number of putative class
members.
Second, the court rejected the plaintiffs' argument that State
Farm waived the right to include attorneys' fees and punitive
damages in its amount in controversy by failing to put forth
sufficient evidence in its notice of removal, holding that the
notice need only include a "plausible allegation" regarding the
amount in controversy and that evidence establishing the amount is
only required when it is contested by the plaintiff. However,
because State Farm calculated attorneys' fees on a "percentage of
the fund" basis, rather than a lodestar basis under the District
of Columbia Consumer Protection Procedures Act, the court held
that such fees could not be included in calculating the amount in
controversy.
Portnoff v. Janssen Pharm., Inc., No. 16-5955, 2017 WL 708745
(E.D. Pa. Feb. 22, 2017)
Judge Mitchell S. Goldberg of the U.S. District Court for the
Eastern District of Pennsylvania denied consumers' motion to
remand, finding that the consumers' action against the defendant
pharmaceutical company alleging injuries sustained as a result of
ingesting the defendant's drug Invokana was subject to federal
jurisdiction under the mass action provision of CAFA. The court
rejected the plaintiffs' timeliness argument with respect to the
procedural requirement that the action be removed within 30 days.
The plaintiffs further argued that their second petition
contemplated consolidation for pretrial proceedings only and that
the single reference to a joint trial in the conclusion of their
second petition (stating "consolidation for pre-trial and trial
will promote judicial economy") was a "scrivener's error." The
court rejected this argument, holding that, "when assessing a
party's argument that the basis for jurisdiction is founded on a
typographical error, courts within this circuit look to the
relevant document as a whole." The court found the language in
the second petition to be unambiguous, explicit and supported by
the reasoning for consolidation found in the remainder of the
petition.
Decisions Granting Motions to Remand/ Finding No CAFA Jurisdiction
Dunson v. Cordis Corp., 854 F.3d 551 (9th Cir. 2017)
The U.S. Court of Appeals for the Ninth Circuit (Fernandez and
Watford, JJ., and Staton, district judge sitting by designation),
affirmed the district court's remand of eight product liability
actions removed under CAFA's mass action provision. The
plaintiffs requested consolidation "for all pretrial purposes,
including discovery and other proceedings, and the institution of
a bellwether trial process." The court focused on the last
clause, holding that if the parties proposed to try the claims of
a representative plaintiff in a bellwether trial, and the parties
in the other cases agreed to be bound by the outcome, then the
parties had proposed a joint trial for purposes of the mass action
provision. However, proposing a bellwether trial where the
outcome is binding only on the parties involved in the trial
itself, and the result is used for settlement purposes in the
other cases, is not a proposal to try the plaintiffs' claims
jointly because the verdict does not actually resolve any aspect
of the other plaintiffs' claims. The court rejected the
defendant's argument that California Code of Civil Procedure Sec.
1048(a) -- the statute cited by the plaintiffs in requesting
consolidation -- precluded consolidation for purposes of pretrial
proceedings alone and held that the plaintiffs' stated intent to
"avoid the risk of inconsistent adjudications" may have referred
to the prospect of judges rendering conflicting rulings on
dispositive motions, not a bellwether trial. Finally, the
plaintiffs' statement that they were not requesting consolidation
"for purposes of a single trial to determine the outcome for all
plaintiffs" and reference to the role of bellwether trials in
settlement negated any argument that the plaintiffs intended a
bellwether trial with preclusive effect in the other cases. Thus,
the district court correctly held that removal jurisdiction does
not exist under CAFA's mass action provision and properly remanded
the cases to state court.
Life of the S. Ins. Co. v. Carzell, 851 F.3d 1341 (11th Cir. 2017)
The U.S. Court of Appeals for the Eleventh Circuit (Hull, Marcus
and Rosenbaum, JJ.) denied the defendants' petition for an
interlocutory appeal of the district court's order remanding this
action to state court. The plaintiffs brought suit on behalf of
Georgia citizens, asserting a number of state law claims related
to their purchase of certain insurance policies from the
defendants. Both defendants were incorporated in Georgia and
maintained their principal places of business in Florida. In
removing under CAFA, they asserted that their Florida citizenship
created minimal diversity, or alternatively, that some class
members' dual foreign citizenship created minimal diversity. The
district court rejected both arguments, finding that minimal
diversity did not exist because all the plaintiffs and defendants
were citizens of Georgia. The appellate panel agreed, explaining
that for jurisdictional purposes, a corporation is a citizen of
both its state of incorporation and the state where it maintains
its principal place of business, and a corporation may not rely
selectively on one citizenship when its other would destroy
diversity. The panel further explained that because an individual
who is a citizen of both the United States and a foreign country
is deemed only a citizen of the United States for diversity
purposes, the dual citizenship of some Georgia class members did
not create minimal diversity under CAFA.
Jordan v. Bayer Corp., No. 4:17-CV-01330-JAR, 2017 WL 1909059
(E.D. Mo. May 10, 2017)
Judge John A. Ross of the U.S. District Court for the Eastern
District of Missouri granted the plaintiffs' motion to remand the
case to the circuit court of the city of St. Louis, Missouri. The
plaintiffs filed their action seeking damages for injuries
sustained as a result of the implantation and use of Essure, a
contraceptive device manufactured by the defendant. The 99
plaintiffs brought multiple state law claims, including
negligence, negligence per se, negligent misrepresentation and
failure to warn. The defendant removed the case to federal court
on multiple bases, including the mass action provision of CAFA.
The defendant argued that even though this case involved only 99
plaintiffs, the case should be considered with other similar
Essure cases filed in this district to form a single mass action
involving more than 100 plaintiffs. The defendant argued that the
cases contained the same substantive allegations, alleged the same
causes of action, were filed by the same counsel and were filed in
the same jurisdiction. However, the case did not involve the
claims of 100 or more persons, and there was no indication that
the plaintiffs wished to have the case tried jointly. Further, the
defendant's argument had been repeatedly rejected by courts in
this district. Accordingly, CAFA could not form a basis for
subject matter jurisdiction, and the court granted the plaintiffs'
motion to remand.
Adams v. Int'l Paper Co., No. 17-0105-WS-B, 2017 WL 1828908 (S.D.
Ala. May 5, 2017)
In this case, 248 individuals who owned or occupied property near
the defendants' paper manufacturing facility sought relief for
environmental contamination allegedly caused by the defendants'
industrial activities. In their motion to remand, the plaintiffs
argued that the case did not fit the definition of a CAFA "mass
action," and that even if it did, the court should decline to
exercise jurisdiction under CAFA's "local controversy" exception.
Judge William H. Steele of the U.S. District Court for the
Southern District of Alabama granted the plaintiffs' motion to
remand, noting that CAFA's definition of mass action excludes any
civil action in which "all of the claims arise from an event or
occurrence in the State in which the action was filed, and that
allegedly resulted in injuries in that State or in States
contiguous to that State." In determining that the case was not a
"mass action," the court refused to adopt the defendants'
construction of "event or occurrence" as a "truly singular
happening," instead holding that circumstances sharing some
commonality and persisting for a period of time may constitute an
event or occurrence under the statute. Thus, the defendants'
allegedly continuous, multidecade pollution came within the
exception. The court was similarly unpersuaded by the defendants'
argument that the exception did not apply because the plaintiffs
alleged claims for distinct and separate conduct. It explained
that although one defendant manufactured paper and the other
grinded asphalt, all of this conduct involved the continuous
release of pollutants onto the plaintiffs' property. The court
also declined to exercise jurisdiction under the local controversy
exception, finding that the defendant sued for exacerbating the
contamination by grinding asphalt was a citizen of the state where
the action was originally filed, had not been fraudulently joined
and was "a defendant from whom significant relief [was] sought"
and "whose conduct form[ed] a significant basis for the claims
asserted."
Liberty Mut. Fire Ins. Co. v. Ez-Flo Int'l, Inc., No. EDCV-17-228-
MWF (SPx), 2017 WL 1745015 (C.D. Cal. May 3, 2017), 1453(c) pet.
pending
Insurance companies acting as subrogees of their insureds sought
remand of their suit alleging defects in the defendant's water
supply lines. Two of the plaintiff insurance companies had
brought suit on behalf of one insured seeking $412,000, but their
case was consolidated with another action against the same
defendant, brought by 24 insurance companies acting as subrogees
of 111 homeowners seeking $4.2 million in damages, though the
Superior Court did not clarify whether the consolidation was for
pretrial purposes only. After the plaintiffs filed an amended
complaint seeking monetary relief as subrogees for 145 homeowners
for claims totaling $6.6 million, the defendant removed under
CAFA. Judge Michael W. Fitzgerald of the U.S. District Court for
the Central District of California granted the plaintiffs' motion
for remand, holding that the 26 insurance companies did not
satisfy CAFA's "mass action" provision because the phrase "100 or
more persons" in that provision refers to "actual plaintiffs in a
case" -- that is, the 26 insurance companies, not their insureds.
The court further held that the defendant's removal was timely
because it was not clear until the amended complaint was brought
by all plaintiffs that the consolidation was for more than only
pretrial purposes.
Eads v. Kohl's Dep't Stores, Inc., No. 5:16-cv-12642, 2017 WL
1712526 (S.D. W. Va. May 2, 2017), 1453(c) pet. denied
Judge Irene C. Berger of the U.S. District Court for the Southern
District of West Virginia granted a motion to remand this putative
class action in which the plaintiff alleged that the defendants
sent her debt collection letters without a notice that the debt
was time-barred, as required under West Virginia law. In response
to the plaintiff's motion to remand, the defendants submitted a
declaration stating that 1,743 West Virginia accounts contained
time-barred debt, each account's debtholder was sent a collection
letter without a disclaimer and the aggregate balance of those
accounts was approximately $5.7 million. The court found this
insufficient to satisfy CAFA's amount-in-controversy requirement,
explaining that the full account balances were not at stake
because the defendants could not expect to recoup complete
balances for time-barred debt.
MD Haynes, Inc. v. Valero Mktg. & Supply Co.,No. 2:17-CV-6, 2017
WL 1397744 (S.D. Tex. Apr. 19, 2017)
Judge Hilda G. Tagle of the U.S. District Court for the Southern
District of Texas granted the plaintiffs' motion to remand in this
class action alleging that the defendants' negligent conduct
caused municipal tap water to be contaminated. The parties did
not dispute that the case met the threshold requirements for
establishing federal jurisdiction under CAFA. However, the
plaintiffs argued that the case fell within the statute's local
controversy exception because two of the defendants were Texas
citizens. The defendants claimed that remand was improper because
the plaintiffs failed to allege specific facts regarding the
conduct of any local defendant and simply lumped the alleged
conduct of all the defendants together. The court disagreed,
holding that the local controversy exception applied because the
plaintiffs' complaint alleged that the events leading to the
contamination of the water occurred at one of the Texas
defendants' plants. Thus, the court remanded the case to Texas
state court.
McGraw v. GEICO Gen. Ins. Co., No. C16-5876BHS, 2017 WL 744594
(W.D. Wash. Feb. 27, 2017), amended and superseded by 2017 WL
1386085 (W.D. Wash. Apr. 18, 2017), 1453(c) pet. pending
Judge Benjamin H. Settle of the U.S. District Court for the
Western District of Washington granted the plaintiff's motion to
remand its action alleging the defendant failed to pay its
policyholders' diminished value loss under underinsured motorist
coverage. The defendant removed the matter to federal court,
claiming that although the potential class claims amounted to
$4,645,038.66, the $5 million CAFA jurisdictional limit would be
met because the class would be entitled to attorneys' fees. The
defendant cited the U.S. Court of Appeals for the Ninth Circuit 25
percent attorneys' fees benchmark for class actions, the
plaintiff's retainer agreement with her attorney and Olympic
Steamship Co. v. Centennial Insurance Co., 117 Wash. 2d 37 (1991)
(en banc).
In the first remand order, the court rejected the defendant's
reliance on the Ninth Circuit benchmark and the retainer agreement
providing for 33 percent of gross profits to counsel as a basis to
increase the amount in controversy, since these fees would only be
paid out of any settlement or damage award. The court also noted
that under Olympic Steamship, attorneys' fees are awarded when the
insurer improperly denies coverage -- but not when the insurer
merely disputes the value of the claim -- and that the instant
action was a claim dispute, so fees were unavailable. After the
defendant moved for reconsideration, the court amended its remand
order to hold that if the action was indeed a "coverage" dispute,
the issue of coverage triggering the possibility of attorneys'
fees under Olympic Steamship was apparent from the face of the
complaint, and the defendant failed to raise it in its initial
removal action as required. The court also held that despite the
plaintiff's inclusion of the issue of coverage in its complaint,
it was more reasonable to assume that the allegations disputed the
value of the claim and not coverage, thereby rendering Olympic
Steamship fees unavailable altogether.
McLawhorn v. GEICO Indem. Co., No. 8:17-cv-156-T-33AEP, 2017 WL
1277744 (M.D. Fla. Apr. 6, 2017) Judge Virginia M. Hernandez
Covington of the U.S. District Court for the Middle District of
Florida granted the plaintiff's motion to remand in this action,
which involved claims that the defendant failed to provide proper
notice of a bodily injury exclusion in certain insurance policies,
as required by Florida law. The plaintiff sought both a
determination of her coverage and a judgment declaring that the
defendant failed to comply with Florida law. The court held that
the value of the relief sought was too speculative and imprecise
to satisfy CAFA's amount-in-controversy requirement. The court
refused to extrapolate the plaintiff's situation to all putative
class members because everyone was not equally confused about the
extent of their coverage when purchasing insurance. Moreover, the
court explained that it could not estimate the subset of putative
class members who were both confused about their coverage and who
incurred liability for causing a bodily injury in a collision. Nor
could it determine the number of class members who were in
accidents for which bodily injury claims were made against them by
the other driver. Finally, the court found that the value of
declaratory relief was speculative for class members who did not
make claims under their policies. Thus, the value of the relief
sought was not "sufficiently measurable and certain" to satisfy
the amount-in-controversy requirement.
Animal Legal Def. Fund v. Hormel Foods Corp., No. 16-1575 (CKK),
2017 WL 1283411 (D.D.C. Apr. 5, 2017)
Judge Colleen Kollar-Kotelly of the U.S. District Court for the
District of Columbia granted the plaintiff's motion to remand to
state court, holding that diversity jurisdiction was lacking and
class action jurisdiction under CAFA did not apply. The plaintiff
brought this action on behalf of the general public against the
defendant meat producer, alleging violations of the District of
Columbia's consumer protection laws in connection with the
defendant's "Natural Choice "advertising campaign. According to
the court, the plaintiff failed to cite any authority requiring
the plaintiff's case for injunctive relief, brought pursuant to
the consumer protection statutes in D.C. rather than pursuant to
Rule 23, be treated as a "class action." The court also found that
diversity jurisdiction was lacking because it refused to measure
the amount in controversy based on the cost of compliance with the
requested injunctive relief. According to the court, such an
approach would violate the nonaggregation principle, under which
"separate and distinct claims of two or more plaintiffs cannot be
aggregated in order to satisfy the jurisdictional amount
requirement."
Iglesias v. Welch Foods Inc., No. 17-cv-00219-TEH, 2017 WL 1227393
(N.D. Cal. Apr. 4, 2017)
The plaintiff sought remand of a consumer class action that
alleged that the defendants falsely represented that their fruit
snacks did not contain any preservatives in violation of
California consumer protection statutes, arguing that judicial
estoppel prevented the defendants from removing the action under
CAFA. Judge Thelton E. Henderson of the U.S. District Court for
the Northern District of California agreed. Because the defendants
had successfully argued that the plaintiffs in an earlier class
action asserting the same claims in the Eastern District of New
York lacked Article III standing to pursue injunctive relief, the
court held that it was "clearly inconsistent" for the defendants
to now seek removal of the instant plaintiff's claims for
injunctive relief. The court also concluded that allowing the
defendants to obtain federal jurisdiction under CAFA would permit
them to forum shop and obtain an "unfair advantage" by seeking an
outright dismissal of the injunctive relief claim for lack of
Article III standing rather than litigating the claim on the
merits. Because the defendants were judicially estopped from
litigating the case in federal court, the court granted the motion
to remand.
Archavage v. Prof'l Account Servs., Inc., No. 3:16-CV-00319, 2017
WL 1162911 (M.D. Pa. Mar. 29, 2017)
U.S. Magistrate Judge Joseph F. Saporito, Jr. of the U.S. District
Court for the Middle District of Pennsylvania granted the
plaintiff's motion to remand his action brought against the
defendant debt collector for, inter alia, fraud and violations of
Pennsylvania's Unfair Trade Practices and Consumer Protection Law.
Magistrate Judge Saporito found that the defendant failed to prove
diversity of citizenship because defendant PAS, indisputably
incorporated under Tennessee law, failed to contest the
plaintiff's allegation that it had a principal place of business
in Pennsylvania, and the plaintiff limited its putative class to
no more than 100 Pennsylvania citizens. The court further found
that the defendant failed to demonstrate that the amount in
controversy exceeded $5 million, as required by CAFA. The court
looked to the value the defendant placed on the case when it
offered the named plaintiff $8,000 and $11,000 on different
occasions to settle the claim, holding that even multiplying the
proposed settlement amount by 100 potential class members "falls
woefully short of the threshold to invoke federal court
jurisdiction even if attorney's fees and punitive damages were
added in."
Petkevicius v. NBTY, Inc., No. 3:14-cv-02616-CAB-(RBB), 2017 WL
1113295 (S.D. Cal. Mar. 24, 2017)
Judge Cathy Ann Bencivengo of the U.S. District Court for the
Southern District of California sua sponte dismissed the
plaintiff's case for lack of subject matter jurisdiction for
failure to meet the CAFA jurisdictional minimum, holding that a
plaintiff has the same burden to establish CAFA jurisdiction as a
defendant facing a motion to remand from a plaintiff. Both parties
argued that the court had jurisdiction over the plaintiff's
claims, but the court nonetheless held that the plaintiff's
threadbare recitation that the amount in controversy exceeded $5
million was insufficient to establish jurisdiction. The matter
arose from the defendants' allegedly false statements about the
health benefits of its Gingko biloba products. The plaintiff
asserted claims for violations of California consumer protection
laws and breach of express warranty on behalf of a putative
California class of purchasers of the defendants' product. Upon
review of the plaintiff's motion for class certification, the
court concluded that the defendants' California retail sales of
Gingko biloba products when the original complaints were filed
only amounted to $3.2 million. The court rejected the defendants'
invitation to include amounts attributable to a multistate class
already dismissed for lack of standing, because the named
plaintiff never had standing to assert those claims on behalf of
the multistate class and thus the court never had jurisdiction
over those claims. The court further rejected the parties'
contention that the amount-in-controversy should include damages
from purchases after the complaints were filed. Further, the court
held that punitive damages could not be included, as the plaintiff
failed to make even conclusory allegations or provide evidence
justifying a potential punitive award.
Brinkley v. Monterey Fin. Servs., Inc., No. 16cv1103-WQH-WVG, 2017
WL 1094062 (S.D. Cal. Mar. 23, 2017), 1453(c) pet. pending
Judge William Q. Hayes of the U.S. District Court for the Southern
District of California remanded an action brought against a
California corporation pursuant to the home-state exception to
CAFA based on the plaintiff's showing that at least two-thirds of
the proposed class members were also citizens of California. The
plaintiff offered expert analysis to show that at least two-thirds
of the proposed class members were California citizens and invoked
the presumption of "continuing domicile" to establish their
citizenship. The court reasoned that the plaintiff's presumption
of continuing domicile was strengthened by the expert analysis of
additional evidence of voter registration and historical address
information for a randomly selected sample of the class list. The
defendants did not present evidence to rebut the plaintiff's
contention that the average residency of the proposed class
members ranged from 13.5 to 20.91 years. Thus, the plaintiff met
her burden to demonstrate that the home-state exception applied.
Horton v. Jefferson Capital Sys., LLC, No. 5:16-cv-08949, 2017 WL
1095058 (S.D. W. Va. Mar. 22, 2017)
Judge Irene C. Berger of the U.S. District Court for the Southern
District of West Virginia granted the plaintiff's motion to remand
in this suit alleging that the defendants sent debt collection
letters that did not include disclaimers that the debt was time-
barred, as required under West Virginia law. Attempting to show
that CAFA's class size and amount-in-controversy requirements were
met, one defendant submitted a declaration claiming that more than
100 West Virginia accounts received allegedly improper collection
letters and that there were at least 10,000 West Virginia accounts
with time-barred debt (with an aggregate balance over $5.6
million). The court deemed this insufficient. First, with respect
to class size, the court explained that the defendant incorrectly
assumed that injunctive relief would affect all West Virginia
accounts, when in fact the plaintiff's request for debt
cancellation applied only to accountholders who had received
disclaimer-free notices for expired debt -- and the defendant
"provided no information regarding the number of account holders
who fall within the Plaintiff's class definition." Second, with
respect to the amount in controversy, the court disagreed with the
defendant that it could be liable for the face value of the time-
barred accounts, finding instead that the defendant's possible
lost-opportunity costs in ceasing to attempt to collect the debts
constituted the appropriate value for this issue. Thus, the court
determined that the defendant had not shown that CAFA's
requirements were met and remanded the case.
Bekkerman v. California Bd. of Equalization, No. 2:16-cv-00709-
MCE-EFB, 2017 WL 1063608 (E.D. Cal. Mar. 20, 2017)
The plaintiffs brought a consumer class action against cellphone
carriers and various California state entities, alleging that
although they received a discount on their cellphones as part of a
"bundled" package including cellular service from the carrier,
they were charged sales tax based on the unbundled price of the
phone. The plaintiffs argued that the tax code provision imposing
the sales tax was void and sought to force the defendant cellphone
carriers to apply to the defendant State Board of Equalization for
a refund on behalf of the class. After the case was removed by one
of the carriers, the plaintiffs and the state of California sought
remand. Judge Morrison C. England, Jr. of the U.S. District Court
for the Eastern District of California held that the suit was
encompassed by the Tax Anti-Injunction Act, which does not permit
any suit involving state taxes to be maintained in federal court.
The court further held that principles of federal/state comity
mandated that federal courts refrain from entertaining suits that
risk disrupting state tax administration. Finally, the court
rejected the carriers' reliance on CAFA as a basis for federal
jurisdiction due to CAFA's exemption if the "primary defendants"
are state governments or agencies that can raise 11th Amendment
defenses. Noting that the exemption is directed to the defendants
that are the real "targets" of the lawsuit, the court held that
the defendant state entities were the primary defendants because
they charged and collected the allegedly illegal tax and would
have to refund the taxes if the plaintiffs prevailed. Thus, CAFA
could not provide a basis for removing the case to federal court,
and remand was appropriate.
Hamilton v. Raleigh Gen. Hosp., LLC, No. 5:16-CV-10035, 2017 WL
833050 (S.D. W. Va. Mar. 2, 2017)
Judge Irene C. Berger of the U.S. District Court for the Southern
District of West Virginia granted a motion to remand this putative
class action alleging that the defendants overcharged the
plaintiff and others for copies of medical records. The complaint
described the class as "all persons who: (1) requested copies of
their medical records from Defendants and (2) were invoiced for
the services provided by Defendants to obtain their medical
records in excess of the amount allowed by "West Virginia law.
The removing defendant argued that "all persons "should be read
literally, implicating approximately 80,000 statewide requests for
records to any one of the defendants in the relevant time period,
resulting in more than $7 million in invoices and more than $5.5
million in payments. The court agreed with the plaintiff,
however, that when read as a whole, the complaint was brought only
on behalf of patients of Raleigh General Hospital, and separate
records requests to the other defendants were inapposite.
Applying this interpretation of the complaint, the court found
that the amount-in-controversy requirement was not met and
therefore remanded the action. [GN]
* Trump-Appointed Regulator Seeks to Halt CFPB Arbitration Rule
---------------------------------------------------------------
Joseph Lawler, writing for Washington Examiner, reports that a
Trump-appointed bank regulator pressed the Consumer Financial
Protection Bureau on July 17 to halt a rule that would prevent
financial companies from banning class-action lawsuits in
contracts for credit cards and other financial products.
Keith Noreika, the acting comptroller of the currency, requested
that the bureau hold off on the rule until his agency had a chance
to review it to make sure that it would not compromise the safety
and soundness of banks. The CFPB hasn't provided the data
necessary for him to do so, he said.
The rule, finalized recently, would ban the practice of mandatory
arbitration, in which banks require in contracts with customers
that disputes be handled through an arbitration process rather
than through class-action lawsuits.
Congressional Republicans are eager to stop the rule from going
into effect one way or another. Many have sought the ouster of the
bureau's director, Richard Cordray, who was appointed by former
President Barack Obama. Now the rule faces an unusual challenge
from within the executive branch.
While the bureau regulates banks and financial firms for consumer
protection, the Office of the Comptroller of the Currency
regulates banks for safety and soundness and should be given time
to review the rule, Mr. Noreika noted on July 17.
His agency would do so quickly, he added. "A few additional weeks
to address the prudential concerns that I have raised seem a sound
investment," he said. [GN]
*********
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