/raid1/www/Hosts/bankrupt/CAR_Public/170801.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, August 1, 2017, Vol. 19, No. 150
Headlines
1220 MANAGEMENT: "Bell" Seeks Withheld Tips, Claims Retaliation
22ND DISTRICT: Settlement in "Brown" Gets Final Approval
94TH STREET PIZZERIA: "Mendez" Seeks OT, Spread-of-Hours Pay
AMERICAN CORADIUS: "Deutsch" Disputes Vague Collection Letter
AMYRIS INC: Court Stays ADR Deadlines in "Ohren"
ARENA PHARMA: Can Compel Identities of CIs in "Schueneman"
ARMSTRONG FLOORING: "Battrell" Seeks Unpaid Overtime Pay
ASHLEY MADISON: Settlement Inevitable in Data Breach Class Action
ATWOOD OCEANICS: Booth Family Trust Sues Over Shady Merger Deal
ATWOOD OCEANICS: "Carter" Sues Over Shady Merger Deal
AUSTRALIA: Live Cattle Export Ban Class Action Under Way
AUSTRALIA: Indonesian Cattle Ban Sparks Backlash as Trial Starts
AUTO RESCUE: "Huntley" Sues Over Unpaid Minimum, Overtime Wages
AVINGER INC: Court Issues Show Cause Order in "Grotewiel"
AVM ENTERPRISES: Gorss Motels Sues Over Illegally Faxed Ads
BITESQUAD.COM: Motion for Class Certification Withdrawn
BP EXPLORATION: Fleischman Claimants Not Entitled to IEL
CANADA: Faces Class Action Over Whitbourne Child Abuse
CARE CAPITAL: "Gordon" Seeks to Halt Shareholder Vote on Merger
CARE CAPITAL: "Loeb" Seeks to Halt Shareholder Vote on Merger
CARTER HOLT: Homeowners Join Pending Class Action
CASH FUND LLC: Contacted "Hardin" Using Auto-dialer, Says Suit
CENTURYLINK INC: "Garten" Case Removed to D. Nev.
CHIPOTLE MEXICAN: Discovery Deadlines in "Schneider" Extended
CIGNA HEALTH: Court Dismissed Amended Complaint in "Elp" Suit
CIGNA CORP: "de Jesus" Sues Over Unsolicited Telemarketing Calls
CODE 42: "Kissel" Suit Seeks to Certify Settlement Class
CROSSTOWN COURIER: "Arpke" Labor Suit Seeks Unpaid Overtime Pay
CSAA INSURANCE: "Rahim" Suit Seeks to Certify Class of Employees
CULLMAN COUNTY, AL: Faces Class Action Over Bond System
CVS PHARMACY: Bid for Class Certification in "Romulus" Denied
DIAMOND CUT: "Byble" Seeks Unpaid Overtime Wages
DRYSHIPS INC: To Vigorously Defend Securities Class Action
EDDIE BAUER: Heredia Seeks to Certify Class of Store Employees
EL BESO MEXICAN: Court Grants Certification of 3 Classes
ELLEN'S STARDUST: Fights Class Action With Countersuit
ENHANCED RECOVERY: Placeholder Bid for Class Certification Filed
ESTER C COMPANY: Ct. Refuses to Review Denial of Certification
ETW LLC: "Lardin" Seeks Unpaid Overtime Pay
FLEET FINANCIAL: "Bousquet" Hits Auto-dialed Telemarketing Call
FREEDOM MORTGAGE: Court Certified Settlement Classes
GREEN TREE: Bid for Class Certification in "Torno" Suit Denied
GUELPH DENTAL: Faces Class Action Over Sterilization Issues
HALLIBURTON ENERGY: "Guerrero" Stayed Pending Ruling in Morris
HAM FARMS: "Lopez" Labor Suit Seeks Unpaid Wages, Overtime
HANDI-HOUSE MFG: Faces "Brantley" Suit in Southern Georgia
HOOAH SECURITY: "Hunt" Sues Over Unpaid Overtime Wages
HSBC BANK: Must Produce Unredacted HK Wire Transfer Spreadsheets
HUNTINGTON BANCSHARES: 6th Cir. Flips Dismissal of Majestic Suit
INGENIOUS MED: "Chappell" Labor Case Seeks Unpaid Overtime Wages
JAKE PAUL: Neighbors Mull Class Action Over Public Nuisance
JUST BORN: Court Denies Bid to Dismiss "White"
KONA GRILL: Court Denies Bid to Certify Employee Class
KURTIS LOY: Dismissal of Petition vs. Judges Affirmed
KYLE MUEHLHAUSER: Summary Judgment in "Clar" Suit Affirmed
LANTANA LAWN: "Buenaventura" Labor Suit Seeks Unpaid OT Wages
LGI HOMES: Court Denied Aguirre, et al. Bid to Certify Class
LIFE CARE: Court Dismisses "Johnson" Labor Suit with Prejudice
LINCOLN REGIONAL: Worker Sues Over Denied Overtime Pay
LTD FINANCIAL: Placeholder Motion for Class Certification Filed
LUXURY SUITES: Court Approves Settlement in "Sinanyan"
MARTHA STEWART: Court Narrows Claims in "Raden"
MAXIM HEALTHCARE: Court Decertifies FLSA Class in "Gordon"
MDL 2081: Court Narrows Issues in TBR Antitrust Suit
MDL 2672: Court Approves $125MM in Atty Fees, Costs
MEDICAL TRANSPORTATION: Drivers Sue Over Pay Dispute
MERCEDES BENZ: Court Narrows Claims in False Advertising Suit
METAL TECHNOLOGIES: Former Workers Can Amend Suit for Damages
MGM RESORTS: Court Narrows Claims in "Hanson"
MICHIGAN: Court Certifies Class in "McBride"
MIDLAND CREDIT: Court Denied Certification of Illinois Class
MIDLAND FUNDING: Placeholder Bid for Class Certification Filed
NATIONWIDE EVICTION: Class Certification Denied Without Prejudice
NOODLES & CO: Bid to Dismiss "SELCO" Data Breach Suit Granted
NORTH AMERICAN: Can't Compel Arbitration in "McGhee" Suit
NORTHLAND GROUP: Court Certifies Settlement Class in "Hyun" Suit
OP PROPERTY: Wins Bid to Dismiss Calif. Debt Collection Suit
OPTIMUM OUTCOMES: Placeholder Bid for Class Certification Filed
PANERA BREAD: Investor Drops Suit Over $7.5-Bil. Merger
PATHEON NV: "Di" Seeks to Halt Merger with Thermo Fisher
PELLA CORP: Loses Bid to Deny Window Defect Class Certification
PENN NATIONAL: "Hutkai" Suit Seeks Certification of 6 Classes
PENTHOUSE: Strippers File Wage Class Action in Detroit
PROFESSIONAL RADIOLOGY: Dismissal of "Jackson" Suit Reversed
QUICKEN LOANS: Not Engaged in UPL, S.C. Says
R&R MULTI-TRADE: "Sanchez" Seeks Unpaid Overtime Pay
REBECCA ADDUCCI: Certification of Iraqi Nationals Class Sought
REGIS CORP: $1.95M Settlement in "Dearaujo" Gets Final Approval
RIVERSIDE MAZDA: "Haas" Disputes Car Price, Asserts Overcharging
SAFELITE FULFILLMENT: Ontiveros Seeks Certification of 7 Classes
SANTA BARBARA HOSPITALITY: Byrne Seeks to Certify Dancers Class
SCALES 925: T.I. Seeks Dismissal of Ex-Employees' Class Action
SLATER & GORDON: Class Action Head James Higgins Leaves Firm
SONY CORP: Judge Tosses Class Action Over Internet Music Prices
SOULCYCLE: Customers May Get Refunds for Expired Classes
SPACE NY: "Cruz" Alleges Retaliation, Seeks Overtime Pay
STAFFWORKS LLC: Can't Compel Arbitration in "Armenta" Labor Suit
STEIN MART: "Broussard" Suit Seeks to Certify ASM Workers Class
STRATEGIC MATERIALS: Venue of "Caravantes" Moved to E.D. Cal.
SUTHERLAND MORTGAGE: Court Grants Expedited Bid to Certify Class
T&R MARKET: Sued Over Tax Refund Anticipation Loans
TACI INVESTMENTS: "Hankton" Labor Case Seeks Unpaid Overtime
TESORO REFINING: Bid to Dismiss "Azpeitia" Suit Partly Granted
TEXAS: Court Grants Preliminary Injunction in "Cole" Suit
TICKETMASTER: Distributes Free Tickets Under Settlement
TIDAL: Kanye Responds to Life of Pablo Album Claims
TROTT LAW: Bid to Dismiss "Martin" Suit Denied
TWIN ARCHES: Court Grants Final Approval of "Sardina" Settlement
UBER TECH: "Berman" Labor Suit Seeks to Recover Minimum, OT Pay
UBER TECH: Giacomaro Files Suit Over Unsolicited SMS Ads
UBER TECHNOLOGIES: Sued in N.Y. Over Lack of Wheelchair Access
UNITED STATES: Dismissal of Unjust Enrichment Claim Vacated
UNITED STATES: UIA Obtains Favorable Ruling in Class Action
UNITED STATES: Tuskegee Descendants to Seek Settlement Money
VOLKSWAGEN AG: German Exec May Plead Guilty in Emissions Scandal
WAL-MART: Gender Bias Class Action Lead Plaintiff Plaintiff Dies
WELLS FARGO: Hayes Claims Bared by Class Settlement
WELLS FARGO: Rockefeller Claims Barred by Settlement Agreement
WILD PLANET: Settles Sustainable Seas Tuna Class Action
WINDSOR SURRY: Court Denies Class Certification in "Cover" Suit
XACTLY CORP: "Berg" Hit Onerous Merger Deal with Vista Equity
YOUTUBE INC: Sued Over Fraudulent, Anti-Competitive Biz Practices
* California Court Certifies FCRA Class Action
* CFPB Anti-Arbitration Rule Like Recommending Chocolate Sundays
* Class Action Suits vs. Massachusetts Car Dealers on the Rise
* Class Action Waiver Violate NLRA, N.Y. Appeals Court Rules
* FTC Seeks Comments on Class Action Notice Study
* Republican-Led House Votes to Nullify CFPB Arbitration Rule
* SEC Commissioner Open to Mandatory Shareholder Arbitration
*********
1220 MANAGEMENT: "Bell" Seeks Withheld Tips, Claims Retaliation
---------------------------------------------------------------
Lindsay Bell on her own behalf and those similarly situated,
Plaintiffs, v. 1220 Management Group, LLC, MH Employment Services,
LLC and Keith Menin, individually, Defendants, Case No. 1:17-cv-
22479 (S.D. Fla., July 5, 2017), seeks to recover minimum wages,
tip reimbursements, liquidated damages and reasonable attorneys'
fees and costs as well as a claim for retaliation pursuant to the
Fair Labor Standards Act.
Defendants operate a restaurant "Bodega" in Miami-Dade County,
Florida where Plaintiff worked as a non-exempt tipped employee,
serving food and drinks, cleaning tables, bartending and other
non-administrative tasks. Bell was fired allegedly for complaining
about her withheld tips. [BN]
Plaintiff is represented by:
Kevin R. Jackson, Esq.
LAW OFFICES OF KEVIN JACKSON, PA
136 Southeast, Third Avenue
Fort Lauderdale, FL 33316
Phone: (954) 779-2272
Email: kjackason@krjlaw.com
22ND DISTRICT: Settlement in "Brown" Gets Final Approval
--------------------------------------------------------
In the case captioned GILLIAN BROWN, on behalf of herself and all
others similarly situated, Plaintiff, v. 22ND DISTRICT
AGRICULTURAL ASSOCIATION, a State entity; and DOES 1 through 10,
inclusive, Defendants, Case No. 15-cv-02578-DHB (S.D. Cal.), Judge
Louisa S. Porter of the U.S. District Court for the Southern
District of California granted the Plaintiff's final approval
motion and her renewed motion for attorneys' fees.
Pending before the Court are the remaining portions of the
Plaintiff's Motion for Final Approval of Class Action Settlement,
which the Court requested supplemental briefing on in its earlier
final approval order. In that order, the Court requested the
parties file a renewed motion for attorneys' fees addressing (i)
how the settlement should be characterized and (ii) how attorneys'
fees should be calculated depending on the settlement's
characterization. On May 23, 2017, the Plaintiff filed a
supplemental brief addressing the issues raised by the Court. On
May 24, 2017, the Defendant filed its supplemental brief
addressing separate issues.
Judge Porter granted the Plaintiff's Motion for Final Approval of
Class Settlement. She awarded the class counsel $112,421.40 in
attorneys' fees; and awarded the Association $9,195 in cost and
expenses to be paid out of the Common Fund of the Settlement to
the Association and the Settlement Administrator. Pursuant to the
Consent Decree in the parties' Settlement, the Court ordered that
the Association will be compliant with FACTA for all periods of
time going forward from the date of the Settlement's execution
(Sept. 6, 2016).
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/9Mxewk from Leagle.com.
Gillian Brown, Plaintiff, represented by Alex P. Katofsky --
alex@gaineslawfirm.com -- Gaines & Gaines, APLC.
Gillian Brown, Plaintiff, represented by Daniel F. Gaines --
daniel@gaineslawfirm.com -- Gaines & Gaines, APLC.
22nd District Agricultural Association, Defendant, represented by
Craig J. Mariam -- cmariam@grsm.com -- Gordon & Rees LLP, Samuel
Binford Laughlin, Techlaw LLP, Allison J. Fernandez --
afernandez@grsm.com -- Gordon & Rees LLP & Christina Vander Werf -
- cvanderwerf@grsm.com -- Gordon Rees LLP.
22nd District Agricultural Association, Cross Claimant,
represented by Craig J. Mariam, Gordon & Rees LLP.
Solar On Set, LLC, Cross Defendant, represented by Craig McKenzie
Nicholas, Nicholas and Tomasevic.
22nd District Agricultural Association, ThirdParty Plaintiff,
represented by Craig J. Mariam, Gordon & Rees LLP & Samuel Binford
Laughlin, Techlaw LLP.
Solar On Set, LLC, ThirdParty Defendant, represented by Craig
McKenzie Nicholas, Nicholas and Tomasevic.
94TH STREET PIZZERIA: "Mendez" Seeks OT, Spread-of-Hours Pay
------------------------------------------------------------
Monroy Esau Ramos Mendez, individually and on behalf of others
similarly situated, Plaintiff, v. 94th Street Pizzeria Corp,
Formaggio Corporation, Tony Mangano and Rosolino Mangano,
Defendants, Case No. 1:17-cv-04969 (S.D. N.Y., June 30, 2017),
seeks unpaid minimum and overtime wages pursuant to the Fair Labor
Standards Act of 1938 and New York Labor Laws, spread-of-hours,
applicable liquidated damages, interest, attorneys' fees and
costs.
Defendants own, operate and control a "Famous Original Ray's
Pizza" pizzeria franchise located at 1827 2nd Avenue, New York, NY
10128, where Ramos was employed as a counter attendant, cook and
ostensibly as a delivery worker. [BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
AMERICAN CORADIUS: "Deutsch" Disputes Vague Collection Letter
-------------------------------------------------------------
Edmund B. Deutsch, individually and on behalf of all others
similarly situated, Plaintiff, v. American Coradius International,
LLC, Defendant, Case No. 2:17-cv-03889 (E.D. N.Y., June 29, 2016),
seeks damages, attorneys' fees and costs together with other
relief under the Fair Debt Collection Practices Act.
American Coradius is in the business of collecting debts allegedly
owed by consumers.
Plaintiff owes a debt to HSBC for purchases on his credit card,
falling behind on payments owed. Defendant sent a collection
letter that failed to disclose that the balance stated may
increase due to interest, late fees and other fees, whether the
creditor will accept payment of the amount stated in full
satisfaction of the debt if payment is made by a specified date,
the minimum amount Plaintiff owed at the time and the applicable
interest rate as well as the date of accrual of interest, says the
complaint.
Plaintiff is represented by:
Craig B. Sanders, Esq.
BARSHAY SANDERS, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Fax: (516) 706-5055
Email: csanders@barshaysanders.com
AMYRIS INC: Court Stays ADR Deadlines in "Ohren"
------------------------------------------------
Judge William H. Orrick of the U.S. District Court for the
Northern District of California, San Francisco Division, granted
the parties' stipulation to stay ADR deadlines and vacate initial
case management conference in the case captioned KEVIN OHREN,
Individually and on behalf of all others similarly situated,
Plaintiff, v. AMYRIS, INC., JOHN G. MELO, and KATHLEEN VALIASEK,
Defendants, Case No. 3:17-cv-02210-WHO (N.D. Cal.).
The Court issued an Initial Case Management Scheduling Order with
ADR Deadlines on April 20, 2017 which required the parties to meet
and confer regarding initial disclosures, early settlement, ADR
process selection, and discovery plan by July 18, 2017. The Order
required the parties to file a Joint ADR Certification with
Stipulation to ADR Process or Notice of Need for ADR Phone
Conference by July 18, 2017. It states that the last day to
complete initial disclosures or state objections in the Rule 26(f)
Report, file the Case Management Statement and file/serve the Rule
26(f) report is Aug. 1, 2017. The Initial Case Management
Conference is scheduled for Aug. 8, 2017 at 2:00 p.m.
Pursuant to the Securities Exchange Act of 1934 (as amended by the
Private Securities Litigation Reform Act of 1995), on June 19,
2017, Robert E. Lapp, individually, and Daniel Wheeless and
Prettam Modur, as a group, filed competing motions for appointment
as lead plaintiff and approval of selection of counsel, and a
hearing on the motion is set for Aug. 9, 2017. Wheeless and Modur
noticed their non-opposition to Movant Lapp's motion for
appointment as Lead Plaintiff and approval of selection of counsel
on June 28, 2017, and therefore, the parties anticipate the Court
will appoint Movant Lapp as the Lead Plaintiff.
Following appointment of the Lead Plaintiff, an Amended Complaint
will be filed and the Defendants anticipate that they will likely
move to dismiss said Amended Complaint. The filing of a motion to
dismiss the Amended Complaint will require the Lead Plaintiff to
file an opposition, which, in turn, will necessitate a reply from
the Defendants.
Pursuant to the terms of the Securities Exchange Act (as amended
by the PSLRA), all discovery is currently stayed pending
resolution of any motion to dismiss filed by the Defendants.
Movant Lapp and the Defendants, through counsel, have conferred
and agree that the deadlines set forth in the Order should be
stayed pending the Court's disposition of the Defendants'
anticipated motion to dismiss; and they also agree that the
initial case management conference, now set to occur before the
hearing on the appointment of the Lead Plaintiff, should be
vacated.
Based on the parties' stipulation and the good cause described
therein, the Court granted the stipulation. The deadline to meet
and confer regarding initial disclosures, early settlement, ADR
process selection, and discovery plan; and the deadline to file a
Joint ADR Certification with Stipulation to ADR Process or Notice
of Need for ADR Phone Conference; and the deadline to complete
initial disclosures or state objections in the Rule 26(f) Report,
file the Case Management Statement and file/serve the Rule 26(f)
report, are stayed until the Court's disposition of the
Defendants' anticipated motion to dismiss. The initial case
management conference, currently scheduled for Aug. 8, 2017 is
vacated.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/vOZx8K from Leagle.com.
Kevin Ohren, Plaintiff, represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm, P.A..
Amyris, Inc., Defendant, represented by Laurie Carr Mims --
lmims@keker.com -- Keker Van Nes & Peters LLP & Michael D. Celio -
- mcelio@keker.com -- Keker, Van Nest & Peters LLP.
John G. Melo, Defendant, represented by Laurie Carr Mims, Keker
Van Nes & Peters LLP & Michael D. Celio, Keker, Van Nest & Peters
LLP.
Kathleen Valiasek, Defendant, represented by Laurie Carr Mims,
Keker Van Nes & Peters LLP & Michael D. Celio, Keker, Van Nest &
Peters LLP.
Daniel Wheeless, Movant, represented by Laurence M. Rosen, The
Rosen Law Firm, P.A..
Preetam Modur, Movant, represented by Laurence M. Rosen, The Rosen
Law Firm, P.A..
Robert E. Lapp, Movant, represented by Rosemary M. Rivas, Levi &
Korsinsky LLP.
ARENA PHARMA: Can Compel Identities of CIs in "Schueneman"
----------------------------------------------------------
In the case captioned TODD SCHUENEMAN, et al., Plaintiffs, v.
ARENA PHARMACEUTICALS, INC., et al., Defendants, Case No.
10cv1959-CAB (BLM)(S.D. Cal.), the U.S. United States District
Court for the Southern District of California denied the Lead
Plaintiff's Motion to Compel and granted the Defendants' Motion to
Compel Response to Interrogatory No. 8 Relating to Confidential
Witnesses.
The Consolidated Amended Class Action Complaint and the Second
Amended Complaint ("SAC") allege that Arena and its senior
executives violated Section 10(b) and 20(a) of the Securities and
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
making materially false statements and/or omitting to disclose
material facts concerning the safety and the completeness of the
data needed for the U.S. Food and Drug Administration ("FDA")'s
approval of Arena's developmental weight loss drug, Lorcaserin.
As part of Lorcaserin's new drug application to the FDA, Arena was
required to conduct a long-term study of the potential
carcinogenesis on rats ("Rat Study"). By February 2007, the Rat
Study indicated that Lorcaserin caused mammary, brain, skin, and
nerve-sheath tumors, including lethal, malignant mammary and brain
tumors. In September 2007, the FDA told Arena it was concerned
that the Rat Study data reflected potential effects in humans and
that Arena needed to dispel this concern with data on animals and
humans exposed to Lorcaserin.
Arena provided the bi-monthly updates until completion of the Rat
Study and submission of the draft report on the Rat Study to the
FDA on Feb. 3, 2009. Its bi-monthly updates included "initial
reads" of data that were not reviewed by outside pathologists.
The Rat Study concluded that breast tumors developed at all doses,
and that Lorcaserin caused brain tumors as well as many other
malignant tumors. Its final report to the FDA included a peer-
reviewed analysis by "three non-Arena veterinary pathologists" who
concluded there were fewer malignant tumors than Arena initially
reported to the FDA, but there was an apparent increase in
aggressiveness of adenocarcinoma in rats administered Lorcaserin.
The Plaintiffs allege that the data submitted to the FDA failed to
show that the results of the Rat Study were irrelevant to humans.
In December 2009, the Defendants filed Lorcaserin's New Drug
Application ("NDA") and the FDA appointed the Advisory Committee,
comprised of physicians and scientists, to discuss and vote on
whether to recommend FDA approval for Lorcaserin. Investors first
learned about the Rat Study data in September 2010, when the
Advisory Committee voted 9-5 against recommending approval for
Lorcaserin. In October 2010, Arena publicly disclosed that the
FDA completed its review of the NDA and found that it could not
approve the NDA in its present form because it failed to
demonstrate that the Rat Study was irrelevant to humans.
The Plaintiffs allege that the Defendants knew by the beginning of
the Class Period (March 17, 2008 through Jan. 27, 2011) that the
Rat Study indicated that Lorcaserin caused cancer and yet failed
to disclose that information to investors. They further allege
that the negative results of the Rat Study and the FDA's concerns
over the data constituted material facts that should have been,
but were not, disclosed to investors and that instead of
disclosing this information, the Defendants repeatedly falsely
represented that Lorcaserin was safe and made materially false and
misleading representations about non-clinical study results.
Additionally, the Plaintiffs allege that when the
misrepresentations were disclosed and became apparent on the
market, Arena's securities declined precipitously. They allege
that as a result of their purchases of Arena securities during the
Class Period, they suffered economic loss.
Currently before the Court are the Lead Plaintiff's Motion to
Compel, the Defendants' Motion to Compel Response to Interrogatory
No. 8 Relating to Confidential Witnesses, the Defendants'
opposition to the Lead Plaintiff's motion, and the Lead
Plaintiff's opposition to the Defendants' motion.
In addressing the Lead Plaintiff's motion to compel the production
of documents responsive to requests 34-37, the Court finds that
the four document requests are overbroad and seek a large amount
of irrelevant information, and the relevance of the remaining
responsive documents is minimal given the EU medical standards and
the time frames. It also finds that the Lead Plaintiff also fails
to establish that requests 34-37 are proportional to the needs of
this case as required by Fed. R. Civ. P. 26(b)(1). The Court
therefore denied the Plaintiff's motion to compel a response to
RFP numbers 34-37 on the grounds that the requested documents have
little, if any, relevance to the Lead Plaintiff's theory that the
Defendants intentionally withheld information material to the
market's assessment of whether and when the FDA would likely
approve Lorcaserin and are not proportional to the needs of this
case.
As to the Defendants' motion to compel a response to Interrogatory
Number 8, because the identities of the six Confidential
Informants (CIs) listed in the SAC are relevant and do not
implicate protection under the work product doctrine, the Court
granted the Defendants' motion to compel. All that the Defendants
seek are the names, phone numbers, and addresses of the six CIs
described in the SAC. This would expedite the discovery process
by allowing them to focus its depositions immediately on these
important witnesses, rather than having to engage in a costly
process of elimination in which it would take numerous depositions
simply to determine which of the disclosed names are the six CIs.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/y5jlnd from Leagle.com.
Todd Schueneman, Plaintiff, represented by Laurence D. King --
lking@kaplanfox.com -- Kaplan Fox and Kilsheimer.
William Sutliff, Plaintiff, represented by Daniel J. Mogin, The
Mogin Law Firm.
Jean Sutliff, Plaintiff, represented by Daniel J. Mogin, The Mogin
Law Firm.
Arena Investors Group, Plaintiff, represented by Richard M.
Heimann, Lieff Cabraser Heimann and Bernstein LLP.
Anthony Caravella, Plaintiff, represented by Aaron M. Sheanin,
Girard Gibbs LLP.
Carl Schwartz, Plaintiff, represented by Laurence D. King, Kaplan
Fox and Kilsheimer.
Arena Pharmaceuticals, Inc., Defendant, represented by John C.
Dwyer -- dwyerjc@cooley.com -- Cooley, LLP, Koji F. Fukumura --
kfukumura@cooley.com -- Cooley Godward Kronish, Mary Kathryn
Kelley -- mkkelley@cooley.com -- Cooley Godward Kronish, Michael
A. Attanasio -- mattanasio@cooley.com -- Cooley Godward Kronish,
Peter M. Adams -- padams@cooley.com -- Cooley Godward Kronish &
Ryan E. Blair -- rblair@cooley.com -- Cooley Godward Kronish.
Jack Lief, Defendant, represented by John C. Dwyer, Cooley, LLP,
Koji F. Fukumura, Cooley Godward Kronish, Mary Kathryn Kelley,
Cooley Godward Kronish, Michael A. Attanasio, Cooley Godward
Kronish, Peter M. Adams, Cooley Godward Kronish & Ryan E. Blair,
Cooley Godward Kronish.
Dominic P. Behan, Defendant, represented by John C. Dwyer, Cooley,
LLP, Koji F. Fukumura, Cooley Godward Kronish, Mary Kathryn
Kelley, Cooley Godward Kronish, Michael A. Attanasio, Cooley
Godward Kronish, Peter M. Adams, Cooley Godward Kronish & Ryan E.
Blair, Cooley Godward Kronish.
William R. Shanahan, Defendant, represented by John C. Dwyer,
Cooley, LLP, Koji F. Fukumura, Cooley Godward Kronish, Mary
Kathryn Kelley, Cooley Godward Kronish, Michael A. Attanasio,
Cooley Godward Kronish, Peter M. Adams, Cooley Godward Kronish &
Ryan E. Blair, Cooley Godward Kronish.
Christy Anderson, Defendant, represented by John C. Dwyer, Cooley,
LLP, Koji F. Fukumura, Cooley Godward Kronish, Mary Kathryn
Kelley, Cooley Godward Kronish, Michael A. Attanasio, Cooley
Godward Kronish, Peter M. Adams, Cooley Godward Kronish & Ryan E.
Blair, Cooley Godward Kronish.
Chris Georgakopoulos, Movant, represented by Blake M. Harper,
Hulett Harper Stewart LLP & Sarah Weber, Hulett Harper Stewart
LLP.
Larry Sprowl, Movant, represented by Blake M. Harper, Hulett
Harper Stewart LLP & Sarah Weber, Hulett Harper Stewart LLP.
Maxat Amankossov, Movant, represented by Daniel J. Mogin, The
Mogin Law Firm.
David Prince, Movant, represented by Daniel J. Mogin, The Mogin
Law Firm.
Ford L. Williams, Movant, represented by Erik David Peterson,
Kessler Topaz Meltzer & Check, LLP.
Carl Schwartz, Movant, represented by Jeffrey P. Campisi --
jcampisi@kaplanfox.com -- Kaplan, Fox & Kilsheimer, LLP, pro hac
vice,
Laurence D. King, Kaplan Fox and Kilsheimer, Mario Man-Lung Choi -
- mchoi@kaplanfox.com -- Kaplan Fox & Kilsheimer, LLP, Robert N.
Kaplan -- rkaplan@kaplanfox.com -- Kaplan Kilsheimer and Fox &
Robert N. Kaplan, Kaplan, Fox & Kilsheimer, LLP, pro hac vice.
John Lee, Movant, represented by Laurence M. Rosen, The Rosen Law
Firm, P.A..
Babak Ghayour, Movant, represented by Brian O. O'Mara --
bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP.
ARMSTRONG FLOORING: "Battrell" Seeks Unpaid Overtime Pay
--------------------------------------------------------
Rockford Battrell and Abel Torres, on behalf of themselves and all
other similarly situated persons, known and unknown, Plaintiffs,
v. Armstrong Flooring, Inc., Defendant, Case No. 2:17-cv-02150,
(C.D. Ill., June 29, 2017), seeks unpaid back pay owed,
prejudgment interest, statutory damages, reasonable attorneys'
fees and costs incurred in filing this action, injunction
precluding Defendant from violating the Illinois Minimum Wage Law,
and such other and further relief under the Illinois Minimum Wage
Law and the Fair Labor Standards Act.
Armstrong develops and manufactures a myriad of flooring products.
Plaintiff worked at its facility located in Kankakee, Illinois.
Plaintiff seeks overtime pay for attending 15-minute pre-shift
meetings. [BN]
Plaintiff is represented by:
Bradley Manewith, Esq.
Anne K. Schmidlin, Esq.
SIEGEL & DOLAN LTD.
150 North Wacker Drive, Suite 1100
Chicago, IL 60601
Tel. (312) 878-3210
Fax (312) 878-3211
Email: bmanewith@msiegellaw.com
aschmidlin@msiegellaw.com
ASHLEY MADISON: Settlement Inevitable in Data Breach Class Action
-----------------------------------------------------------------
Ed Silverstein, writing for Legaltech News, reports that it does
not come as a surprise to academic experts in legal strategy that
the parent company of the Ashley Madison dating website wanted to
settle the well-publicized case. In fact, William H.J. Hubbard, a
professor at the University of Chicago Law School, said the
"settlement was probably inevitable in this case."
"In a highly publicized, class action lawsuit involving sensitive
information for all parties involved, settlement is basically a
foregone conclusion," Mr. Hubbard told Legaltech News. "The
defendant wants to settle because the data breach was a PR
nightmare, and it wants to put the fiasco in the rearview mirror.
The plaintiffs and class members presumably want as much
confidentiality as possible, too, for obvious reasons. And the
lawyers representing the class, who wield tremendous discretion
and influence, given that the class is a diffuse group of
individuals whose stakes are small relative to the case as a
whole, want to make sure they get paid, and a class action
settlement will inevitably provide for that."
The settlement relates to the class action lawsuit filed following
a data breach and release of personal information from customers
of Ashley Madison, an online dating website owned and operated by
Ruby Life Inc.
As part of the proposed settlement of the pending case in
Missouri, Ruby "denies any wrongdoing" and "the parties have
agreed to the proposed settlement in order to avoid the
uncertainty, expense, and inconvenience associated with continued
litigation, and believe that the proposed settlement agreement is
in the best interest of Ruby and its customers," the company said
in a statement.
"A major benefit of settlement is that it keeps sensitive or
embarrassing information that otherwise might be produced in court
documents or at trial from becoming part of the public record,"
Mr. Hubbard explained. "Even when the embarrassing information is
already in the public domain, ongoing litigation can have the
effect of keeping an event in the news, thereby magnifying
concerns about the rehashing of embarrassing information."
Mr. Hubbard said context is important in the decision to settle.
"For example, preserving a reputation for toughness or for
standing on principle may mean refusing to settle, especially in
well-publicized cases. But when embarrassing material is on the
line, or when a lawsuit arises out of a public relations fiasco
for the defendant, as in this case, I would say settlement becomes
almost imperative," Mr. Hubbard said.
Jon Mills, director of the Center for Governmental Responsibility
at the University of Florida's Levin College of Law, added the
case is "obviously very high profile" and there was a "lot of
incentive to settle." By settling, it also may help prevent more
"public display" of negligence, he said.
Noting the amount announced in the settlement, $11.2 million,
"There may be companies that would consider that a bargain,"
Mr. Mills said.
When asked about the presence of embarrassing information in this
case, Andrew Pollis, a professor at Case Western Reserve
University School of Law, said, "In most cases of cybersecurity
breach, publication of consumers' financial data [e.g., credit-
card information] is more of an annoyance than an embarrassment.
But most juries would be very angry at the company that allowed
the breach to occur and would be predisposed to find in favor of
the consumers and against the company that allowed the breach to
occur.
"In this case, there is an added level of potential embarrassment
given the nature of Ashley Madison's business. But some jurors
might be less sympathetic to the class members given their
willingness to pay for Ashley Madison's services, so that's
actually a risk that might have cut both ways or even tipped
against the plaintiffs. It really would depend a lot on jury
selection, which is always a crapshoot. . . . My sense is that no
one wanted to run the risk of what a jury would do with a case
like this," Mr. Pollis said.
When considering whether to settle, at a basic level, parties
"evaluate the cost of a loss and the chances of a loss. The
product of those two variables is one way to land on a settlement
that makes economic sense, at least from a purely risk-management
standpoint," Mr. Pollis said. "But most settlements involve more
complex dynamics, including attorney fees, business disruption,
adverse publicity/loss of goodwill, risk tolerance, and [depending
on the nature of the case and the litigant] emotional factors."
Adam Hoeflich, a professor at Northwestern School of Law and a
partner at Bartlit Beck Herman Palenchar & Scott, said
Ruby "likely understood that even if they had valid arguments
against class certification and strong defenses regarding
liability, they had genuine risk from litigation given that
customer data had been revealed. While a damages settlement
creates the potential for opt outs, it also creates a meaningful
step toward closure. It may also be that Ruby felt that they
received a fair settlement and a reach chance for closure given
that many of the plaintiffs would not have felt comfortable coming
forward during litigation about the actual harm that they
suffered."
Mr. Hubbard further confirmed that the Ashley Madison case is
different from something like the LabMD case, which involved a
regulatory enforcement action. "The government in an enforcement
action may not be as interested in a monetary settlement in the
same way that a class of plaintiffs would be," Mr. Hubbard said.
[GN]
ATWOOD OCEANICS: Booth Family Trust Sues Over Shady Merger Deal
---------------------------------------------------------------
Booth Family Trust, individually and on behalf of all others
similarly situated, Plaintiff, v. Atwood Oceanics, Inc., George S.
Dotson, Jack E. Golden, Hans Helmerich, Jeffrey A. Miller, James
R. Montague, Robert J. Saltiela and Phil D. Wedemeyer, Defendants,
Case No. 4:17-cv-01995 (S.D. Tex., June 29, 2017), seeks to
preliminarily and permanently enjoin Defendants and their counsel,
agents, employees and all persons acting under, in concert with,
or for them, from proceeding with, consummating, or closing the
acquisition of all outstanding shares of Atwood by Ensco. The
suit further seeks rescissory damages, prejudgment and post-
judgment interest, costs and disbursements of this action,
including reasonable attorneys' and expert fees and expenses,
extraordinary, equitable and/or injunctive relief and such further
relief under the Securities and Exchange Act of 1934.
Ensco, through its wholly owned subsidiary, Echo Merger Sub LLC,
will acquire all of the outstanding shares of Atwood in an all-
stock transaction in which Atwood's stockholders will receive 1.60
shares of Ensco common stock for each share of Atwood common
stock. Proposed transaction has a total transaction value of
approximately $850 million.
The complaint says Defendants failed to disclose earnings,
interest, income taxes, depreciation and amortization, capital
expenditures, stock-based compensation, changes in net working
capital and proceeds from the disposal of assets. This data is
required for shareholders to make an educated vote on the merger.
Atwood is an offshore drilling company engaged in the drilling and
completion of exploration and development wells for others in the
global oil and gas industry. [BN]
Plaintiff is represented by:
Thomas E. Bilek, Esq.
THE BILEK LAW FIRM, L.L.P.
700 Louisiana, Suite 3950
Houston, TX 77002
Tel: (713) 227-7720
- and -
Richard A. Acocelli, Esq.
Michael A. Rogovin, Esq.
Kelly C. Keenan, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Tel: (212) 682-3025
Fax: (212) 682-3010
ATWOOD OCEANICS: "Carter" Sues Over Shady Merger Deal
-----------------------------------------------------
Mary Carter, individually and on behalf of all others similarly
situated, Plaintiff, v. Atwood Oceanics, Inc., George S. Dotson,
Jack E. Golden, Hans Helmerich, Jeffrey A. Miller, James R.
Montague, Robert J. Saltiela and Phil D. Wedemeyer, Defendants,
Case No. 4:17-cv-02013 (S.D. Tex., June 30, 2017), seeks to
preliminarily and permanently enjoin Defendants and their counsel,
agents, employees and all persons acting under, in concert with,
or for them, from proceeding with, consummating, or closing the
acquisition of all outstanding shares of Atwood by Ensco. The
suit further seeks rescissory damages, prejudgment and post-
judgment interest, costs and disbursements of this action,
including reasonable attorneys' and expert fees and expenses,
extraordinary, equitable and/or injunctive relief and such further
relief under the Securities and Exchange Act of 1934.
Ensco, through its wholly owned subsidiary, Echo Merger Sub LLC,
will acquire all of the outstanding shares of Atwood in an all-
stock transaction in which Atwood's stockholders will receive 1.60
shares of Ensco common stock for each share of Atwood common
stock. Proposed transaction has a total transaction value of
approximately $850 million.
The complaint says Defendants failed to disclose earnings,
interest, income taxes, depreciation and amortization, capital
expenditures, stock-based compensation, changes in net working
capital and proceeds from the disposal of assets. This data is
required for shareholders to make an educated vote on the merger.
Atwood is an offshore drilling company engaged in the drilling and
completion of exploration and development wells for others in the
global oil and gas industry. [BN]
Plaintiff is represented by:
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
FARUQI & FARUQI, LLP
685 Third Ave., 26th Fl.
New Yor006B, NY 10017
Telephone: (212) 983-9330
Email: nfaruqi@faruqilaw.com
jwilson@faruqilaw.com
- and -
Joe Kendall, Esq.
Jamie J. McKey, Esq.
KENDALL LAW GROUP, PLLC
McKinney Avenue, Suite 700
Dallas, TX 75204
Tel: (214) 744-3000
Fax: (214) 744-3015 (fax)
Email: jkendall@kendalllawgroup.com
jmckey@kendalllawgroup.com
AUSTRALIA: Live Cattle Export Ban Class Action Under Way
--------------------------------------------------------
The Armidale Express reports that the class action claim trial
against the Commonwealth government over the 2011 snap suspension
of live cattle exports to Indonesia is under way in Sydney.
Lead litigants the Brett Cattle company of Waterloo Station,
Northern Territory, will spearhead the claim against the federal
government in an effort to try and reclaim about $600 million in
losses.
The Australian Farmers Fighting Fund is backing the legal fight by
cattle producers and industry that was initially filed in the
Federal Court in October 2014.
Ongoing efforts by Minter Ellison lawyers to try and settle the
claim with the government, without the case going to trial, have
proven futile. [GN]
AUSTRALIA: Indonesian Cattle Ban Sparks Backlash as Trial Starts
----------------------------------------------------------------
Colin Bettles, writing for Queensland Country Life, reports that
as the trial for the class action claim by cattle producers and
industry -- seeking compensation of up to $600 million -- against
the commonwealth government over the 2011 snap suspension of live
cattle exports to Indonesia goes to trial in Sydney, not everyone
is sympathetic towards the claim.
Largely heading up the public face of the industry's campaign to
seek justice, Northern Territory Cattlemen's Association (NTCA)
CEO Tracey Hayes faced a death threat via email, only a few hours
before opening arguments were due to be heard in the Federal
Court.
Ms Hayes did a television interview on ABC news to explain the
complex case to public and reasoning behind it.
But the reaction to her appearance ignited similar feelings to
those that flooded social media on May 31, 2011, the night the ABC
FourCorners program "A Bloody Business" was aired, which ignited
the vicious public backlash over animal cruelty that underpinned
the sudden ban on trade to Indonesia -- then valued at about $320m
per year -- by the former Gillard government.
An email to Ms Hayes in response to her interview said, "Shame on
you. you people should all be getting held liable for the cruelty
and suffering that you have inflicted and continue to inflict on
cattle. there is no need for live ecport (export). u people
shouldn't be allowed to run your businesses if you refuse to take
responsibility for a cruelty free supply chain. you people are the
ones who have blatant disregard for being decent human beings. you
deserve to suffer in the same way your cattle have and continue to
do. i hope you think about that as you lay in bed trying to sleep.
don't expect any sympathy from me for your cold, callous and evil
ways".
Stating the obvious and downplaying the threat, Ms Hayes said not
everyone had been supportive with their messages, leading up to
the trial starting.
"It can invoke strong feelings of outrage from animal rights
activists and some of those messages are coming through as well,"
she said.
"It reminds me of the outrage that was triggered by the
FourCorners broadcast back in 2011 but I also think about it from
their perspective.
"It's a reminder of how industry needs to focus on what it does
and to continue to improve and to do well and remember animal
welfare is a global issue and a challenge not just for livestock
production but also for companion animals.
"The RSPCA receives tens of thousands of animal abuse reports each
year for cats and dogs and animals that sit on the couch at night
with us so it's not just a challenge for livestock industries but
a challenge for all of us."
The Australasian Meat Industry Employees Union (AMIEU) also issued
a media statement questioning the industry's calculations for the
$600m claim, suggesting it was seeking $100m per week for each of
the six weeks trade was closed, and having also received $100m
from the federal government at the time, in support.
"The industry was only valued at $320 million in June of 2011,
half of the amount being sought as compensation," a statement by
AMIEU Newcastle & Northern NSW Secretary Grant Courtney said.
"This is nothing short of rank hypocrisy from a super-rich
industry of high-earning, tax-dodging millionaires.
"They ship their cattle off overseas in cramped terrible
conditions on leaky ships stocked by underpaid visa workers,
deliver them to overseas abattoirs where they are horribly
treated, and pocket the massive profits -- all the while helping
themselves to millions in government handouts."
"Thanks to government subsidies and rich lobbyists, it's now
bounced back and continues to destroy Australian meatworking jobs.
"Live export is just a modern-day pyramid scheme -- designed to
make a small amount of people very rich while a lot of other
people lose out.
"Meanwhile, tens of thousands of Australian meat workers, their
families and their communities are suffering. It's unacceptable
and it's disgusting."
But the NTCA says the calculation of losses included those
incurred by other industries and businesses directly and
indirectly -- like trucking and shipping through demurrage -- and
losses caused by the sudden downturn in income in the north due to
the trade halt, and the meat worker union statement was
misleading.
But Ms Hayes said there had also been strong public interest in
the lead up to the class action case starting and "most of it has
been supportive".
"I think the Australian psyche is still very about a 'fair go' and
they've felt minister Ludwig's decision at the time was the wrong
decision and it sends all of the wrong signals to our
international trading partners and raises questions our trust and
reliability as a provider of protein -- all those types of
things," she said.
"it's destabilising and settling for business and industry.
"I've received many messages of support in the past 24 hours
wishing as well so we're feeling quietly confident leading into
the trial starting."
Ms Hayes said, after first filing documents in the court in late
2014, to commence the legal action, and seeking to settle out of
court unsuccessfully with the former Labor government and the
current Coalition, the trial had been "a long time coming".
"We feel a sense of relief that we're finally here and we finally
have the opportunity to get some closure for the northern cattle
industry and also for other industries that are watching this case
closely and sitting back thinking, 'thank goodness this never
happen to us, how can it happen to any industry and let's hope it
doesn't happen again in the future'," she said.
Ms Hayes said the core legal argument that would shape the outcome
of the industry's claim was malfeasance of public office.
"If we're successful it will be the first time a claim has been
brought successfully against a minister," she said.
"Essentially it's a decision made legally but with the misuse and
potential abuse of power.
"We believe it wasn't completely necessary for the minister to
completely ban the export of cattle to Indonesia -- a few days
after the first decision, which was the appropriate and right
decision.
"We believe time should have been taken to investigate the supply
chains.
"There were supply chains functioning well that were compliant
with acceptable welfare standards and as a minister for an
industry it is their responsibility to ensure that if they're
going to make a decision that's going to make the obvious impact
that it had, they leave no stone unturned when they're
investigating the pros and cons of that decision and that simply
wasn't done.
"The second decision was not about animal welfare -- it was about
the political survival of a minority and government and that's why
we're here."
The initial part of the trial is expected to see legal argument
regarding the disclosure of documents by the defence including
tens of thousands of emails linked tp private accounts used at the
time by the then minister, linked to a decommissioned email server
at the Department of Agriculture.
Ms Hayes said a decision wasn't expected in the first part of the
trial that's scheduled to end on July 28.
"We don't we don't expect Justice Rares to make his decision until
December," she said.
"The trial part of the claim has been broken into two parts.
"The first part will be to establish liability then we'll be back
in December to discuss the quantum of losses and discussions
around compensation."
The Brett Cattle company of Waterloo Station in the NT are lead
litigants for the claim that's being backed by the Australian
Farmers Fighting Fund and using Minter Ellison lawyers.
Members of the Brett family have also called for the former Labor
Agriculture Minister Joe Ludwig to face cross-examination as a
witness during the court proceedings, to justify the reasons for
him signing the second control order in June 2011 that suspended
trade for up to six months to Indonesia.
The story Anger surfaces as class action trial starts for
Indonesian cattle ban first appeared on Farm Online. [GN]
AUTO RESCUE: "Huntley" Sues Over Unpaid Minimum, Overtime Wages
---------------------------------------------------------------
Bryant Huntley, individually and on behalf of all others similarly
situated, Plaintiff, v. Auto Rescue Of Fairfax, LLC, Defendant,
Case No. 8:17-cv-01811 (D. Md., June 30, 2017), seeks minimum
wages and/or overtime for hours greater than forty worked in a
week, liquidated and multiple damages including double damages
under the Fair Labor Standards Act and treble damages under the
Maryland Wage and Hour Law, post-judgment assignment of attorney's
fees and costs and any other relief.
Defendant provides roadside assistance services in the mid-
Atlantic region, which includes Virginia, Maryland and Washington,
D.C., to motorists whose vehicles have suffered a mechanical
failure that leaves the driver stranded. Plaintiff worked as a
roadside assistance technician and disputes being classified as an
independent contractor. [BN]
Plaintiff is represented by:
Andrea Gold, Esq.
TYCKO & ZAVAREEI LLP
1828 L St. NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
Facsimile: (202) 973-0950
Email: agold@tzlegal.com
- and -
Shanon J. Carson, Esq.
Sarah R. Schalman-Bergen, Esq.
Eric Lechtzin, Esq.
Alexandra K. Piazza, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
Email: scarson@bm.net
sschalman-bergen@bm.net
elechtzin@bm.net
apiazza@bm.net
- and -
David M. Blanchard, Esq.
Daniel C. Tai, Esq.
BLANCHARD & WALKER, PLLC
221 N. Main Street, Suite 300
Ann Arbor, MI 48104-1166
Telephone: (734) 929-4313
Facsimile: (888) 929-5833
Email: blanchard@bwlawonline.com
tai@bwlawonline.com
- and -
Michael K. Yarnoff, Esq.
KEHOE LAW FIRM
1500 JFK Blvd., Suite 1020
Philadelphia, PA 19102
Telephone: (215) 792-6676
Facsimile: (215) 990-0701
Email: myarnoff@kehoelawfirm.com
AVINGER INC: Court Issues Show Cause Order in "Grotewiel"
---------------------------------------------------------
In the case captioned LINDSAY GROTEWIEL, Individually and on
Behalf of All Others Similarly Situated, Plaintiff, v. AVINGER,
INC., JEFFREY M. SOINSKI, MATTHEW B. FERGUSON, DONALD A. LUCAS,
JOHN B. SIMPSON, JAMES B. McELWEE, JAMES G. CULLEN, THOMAS J.
FOGARTY, CANACCORD GENUITY, INC., COWEN AND COMPANY LLC,
OPPENHEIMER & CO., BTIG, STEPHENS INC., AND DOES 1 through 25,
inclusive, Defendants, Case No. 17-cv-03400-CW (N.D. Cal.), the
U.S. District Court for the Northern District of California
ordered the parties to show cause why the Court should not remand
this action for the reasons set forth in the order granting the
motions to remand in the related Olberding and Gonzalez cases.
On May 22, 2017, the Plaintiff filed a class action complaint in
San Mateo County Superior Court against the Defendants, alleging
violations of the Securities Act of 1933. The Defendants removed
the action to this Court on June 12, 2017. On June 19, 2017, this
Court granted the parties' joint motion to relate this case to
Olberding v. Avinger, No. 17-cv-03398, and Gonzalez v. Avinger,
No. 17-cv-03401.
The Plaintiffs in Olberding and Gonzalez filed motions to remand,
but the Plaintiff did not do so. On June 28, 2017, the Court set
a coordinated briefing schedule for the related cases. The Court
ordered that the Plaintiff could join in the motions to remand
filed in Olberding and/or Gonzalez and also file a separate, non-
repetitive motion no later than July 3, 2017. The Court also
provided that the Plaintiff could seek additional time. The
Plaintiff has not responded to this order, moved to remand, or
filed anything in response to the motions to remand filed in
Olberding and Gonzalez. Now, the Court filed an order granting
the motions to remand in Olberding and Gonzalez.
The Court held that it has the duty to consider its own
jurisdiction sua sponte. Accordingly, within 14 days after the
date of the Order, all parties in this action are ordered to show
cause why the Court should not remand this action for the reasons
set forth in the order filed granting the motions to remand in the
related Olberding and Gonzalez cases. If the Defendants file a
response to the order, the Plaintiff may file a reply to that
response within seven days after the Defendants' filing. Instead
of filing a separate response to the order to show cause, any
party may file a notice incorporating by reference the arguments
raised in one or more briefs filed in the related cases. Absent
further Court order, the Court will rule based on the parties'
papers, without a hearing.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/LN4Fyb from Leagle.com.
Lindsay Grotewiel, Plaintiff, represented by Albert Y. Chang,
Bottini and Bottini, Inc..
Lindsay Grotewiel, Plaintiff, represented by Francis A. Bottini,
Jr., Bottini & Bottini, Inc. & Yury A. Kolesnikov, Bottini and
Bottini, Inc..
Avinger, Inc., Defendant, represented by Benjamin Jon Tolman --
btolman@wsgr.com -- Wilson Sonsini Goodrich Rosati, Doru Gavril --
dgavril@wsgr.com -- Wilson Sonsini Goodrich and Rosati & Inacio
Evaristo Salceda -- isalceda@wsgr.com -- Wilson Sonsini Goodrich &
Rosati.
Jeffrey M. Soinski, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Doru Gavril, Wilson Sonsini
Goodrich and Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
Matthew B. Ferguson, Defendant, represented by Benjamin Jon
Tolman, Wilson Sonsini Goodrich Rosati, Doru Gavril, Wilson
Sonsini
Goodrich and Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
Donald A. Lucas, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Doru Gavril, Wilson Sonsini
Goodrich and Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
John B. Simpson, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Doru Gavril, Wilson Sonsini
Goodrich and Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
James B. McElwee, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Doru Gavril, Wilson Sonsini
Goodrich and Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
James G. Cullen, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Doru Gavril, Wilson Sonsini
Goodrich and Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
Thomas J. Fogarty, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Doru Gavril, Wilson Sonsini
Goodrich and Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
Canaccord Genuity, Inc., Defendant, represented by Michael A.
Mugmon -- michael.mugmon@wilmerhale.com -- Wilmer Cutler Pickering
Hale and Dorr LLP, Harry Hanson -- harry.hanson@wilmerhale.com --
Wilmer Cutler Pickering Hale and Dorr LLP, John F. Batter, III --
john.batter@wilmerhale.com -- Attorney at Law & Rebecca Denise
Kline -- rebecca.kline@wilmerhale.com -- WilmerHale.
Cowen and Company, LLC, Defendant, represented by Michael A.
Mugmon, Wilmer Cutler Pickering Hale and Dorr LLP, Harry Hanson,
Wilmer Cutler Pickering Hale and Dorr LLP, John F. Batter, III,
Attorney at Law & Rebecca Denise Kline, WilmerHale.
AVM ENTERPRISES: Gorss Motels Sues Over Illegally Faxed Ads
-----------------------------------------------------------
Gorss Motels, Inc., individually and as the representative of a
class of similarly-situated persons, Plaintiff, v. A.V.M.
Enterprises, Inc., Defendant, Case No. 3:17-cv-01078 (D. Conn.,
June 29, 2017), seeks actual monetary loss or the sum of five
hundred dollars for each violation of the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention Act
of 2005; treble damages; pre-judgment interest; costs and such
further relief.
Defendants have sent and continue to send, unsolicited
advertisements via facsimile transmission to the Plaintiff,
causing undue wear and tear on the recipients' fax machines and
requiring additional labor to attempt to discern the source and
purpose of the unsolicited message. [BN]
The Plaintiff is represented by:
Brian J. Wanca, Esq.
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Email: rkelly@andersonwanca.com
Bwanca@andersonwanca.com
- and -
Aytan Y. Bellin, Esq.
BELLIN & ASSOCIATES LLC
85 Miles Avenue
White Plains, NY 10606
Tel: (914) 358-5345
Fax: (212) 571-0284
Email: aytan.bellin@bellinlaw.com
BITESQUAD.COM: Motion for Class Certification Withdrawn
-------------------------------------------------------
In the lawsuit styled Old Town Pizza of Lombard, Inc., the
Plaintiff, v. BiteSquad.com, LLC, et al., the Defendants,
Case No. 1:17-cv-03082 (N.D. Ill.), the Hon. Judge Rebecca R.
Pallmeyer entered an order withdrawing a motion for class
certification.
According to the docket entry made by the Clerk on July 24, 2017,
individual claims are dismissed with prejudice and class
allegations without prejudice. Status hearing set for August 8,
2017, is stricken. The civil case is terminated.
A copy of the Docket Entry is available at no charge at
http://d.classactionreporternewsletter.com/u?f=glcVjznk
BP EXPLORATION: Fleischman Claimants Not Entitled to IEL
--------------------------------------------------------
In the case captioned IN RE: DEEPWATER HORIZON. LAKE EUGENIE LAND
& DEVELOPMENT, INCORPORATED; ET AL, Plaintiffs, v. BP EXPLORATION
& PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP,
P.L.C., Defendants-Appellees, v. KEVIN S. SMITH; SOLOMON J.
FLEISCHMAN; JOHN C. KELLY, Claimants-Appellants, No. 16-30547 (5th
Cir.), the United States Court of Appeals, Fifth Circuit, affirmed
the district court's judgment that the Settlement Program does not
compensate the requested compensation.
In the aftermath of the Deepwater Horizon oil spill, BP
Exploration & Production, Inc., BP America Production Co., and BP,
PLC negotiated with representatives of a proposed class action.
The accord that was reached resulted in the Economic and Property
Damages Settlement Agreement, which the district court approved.
The Settlement Agreement designates an Economic and Property
Damages Class, consisting of varying individuals and entities
within certain geographic areas who suffered damages in varying
categories. One damage category is the Economic Damage Category,
which compensates the "[l]oss of income, earnings or profits
suffered by Natural Persons or Entities as a result of the
Deepwater Horizon Incident."
The Agreement divides the Economic Damage Category into Business
Economic Loss (BEL) claims and Individual Economic Loss (IEL)
claims. Business claimants file BEL claims for lost business
profits, and individuals file IEL claims for lost employment
earnings. Both BEL and IEL claimants must be within the class and
satisfy certain causation requirements.
Claimants are owners and employees of the architectural firm,
Fleischman & Garcia, located within a geographic area covered by
the Settlement. They are the sole owners of the firm.
Fleischman, the firm's chief executive officer and chairman,
submitted a BEL claim for lost profits on behalf of the firm, and
each Claimant also submitted separate IEL claims for lost wages.
The Court-Supervised Settlement Program (CSSP), which administers
the Agreement, awarded the firm a substantial amount. The CSSP
later denied each Claimant's IEL claim.
The Claimants appealed to the internal Appeal Panel established by
the Agreement, which also denied relief. The Claimants then
requested discretionary review by the district court, pursuant to
the Settlement Agreement. The district court denied the request
for review, and the Claimants appealed to the Fifth Circuit, which
consolidated the appeals.
The Fifth Circuit, in an unpublished per curiam opinion, concluded
that the district court had abused its discretion by denying
review. The Court noted that "the issues in this case have and
will come up repeatedly" and that Appeal Panels had reached
"varying conclusions" on the question. Because it determined that
the "question of contract interpretation presented in these
appeals would be best addressed first by the district court
charged with administering the Agreement," the Fifth Circuit
vacated and remanded the case.
On remand, the district court affirmed the decisions of the Appeal
Panels to deny Claimants' IEL claims. Claimants again appealed.
Claimants argued that nothing in the Settlement Agreement bars the
CSSP from compensating a business owners and officers through IEL
claims after their business has received compensation through a
BEL claim.
The Fifth Circuit disagreed. The Court found that the Settlement
Agreement, when read as a whole, does not allow this double
compensation. The Court explained that the BEL framework, by
compensating the business for the owners' lost wages through the
fixed-cost designation of their wages, precludes compensating
those same owners for the same wages through an IEL claim.
A full-text copy of the Court's July 19, 2017 opinion is available
at https://is.gd/qN35bw from Leagle.com.
Defendant-Appellee is represented by Don Keller Haycraft --
dkhaycraft@liskow.com -- James M. Garner, Martha Y. Curtis, James
Andrew Langan -- andrew.langan@kirkland.com -- Richard Cartier
Godfrey -- richard.godfrey@kirkland.com -- Kevin Michael McGlone,
Elizabeth A. Larsen, Jeffrey Bossert Clark, Sr. --
jeffrey.clark@kirkland.com -- Martin R. Martos, II --
martin.martos@kirkland.com
Claimant-Appellant is represented by Joseph F. Rice --
jrice@motleyrice.com -- Kevin Robert Dean -- kdean@motleyrice.com
-- Lisa Marie Saltzburg -- lsaltzburg@motleyrice.com -- Frederick
Curtis Baker -- fbaker@motleyrice.com
CANADA: Faces Class Action Over Whitbourne Child Abuse
------------------------------------------------------
VOCM reports that a class action lawsuit has been issued against
the provincial government for abuse suffered by boys and girls who
were abused as children in the province's custodial facilities.
Lawyer Lynn Moore says the abuse of children in Whitbourne was
brought to the attention of Government officials in 1955, but
instead of protecting children, she says the government knowingly
allowed children in its care and custody to be violated sexually,
physically and emotionally. The statement of claim says
government failed in its duty to these children and put its own
interests first.
Even into the 1970's, Ms. Moore says the boys' home in Whitbourne
would not allow social workers into the facility.
She says it's very similar to Mount Cashel. She says a lot more
problems came to light at the 1988 Hughes Inquiry than Mount
Cashel.
The information uncovered by the lawyers at Morris Martin Moore
reveals cycles of suppression and concealment interspersed with
disclosures of abuse. These disclosures include: the Magisterial
Inquiry in 1955, the Hughes Inquiry in 1988, and the conviction in
1972 of a former employee. Sexual and physical abuse of children
in custodial facilities in NL was rampant.
There were boys' homes, girls' homes and training schools on
Portugal Cove Road, Waterford Bridge Road, one in Torbay,
Pleasantville and Whitbourne, and, in the early fifties, one on
Bell Island. She says children were abused in a horrific way.
Once Government files its defence, lawyers for the women and men
will ask the court to certify the case as a class action.
Anyone who witnessed or experienced child abuse at one of these
institutions is asked to call Morris Martin Moore. [GN]
CARE CAPITAL: "Gordon" Seeks to Halt Shareholder Vote on Merger
---------------------------------------------------------------
Jeffrey Gordon, individually and on behalf of all others similarly
situated, Plaintiff, v. Care Capital Properties, Inc., Douglas
Crocker II, Ronald G. Geary, John S. Gates, Jr., John L. Workman,
Dale Anne Reiss, Jeffrey A. Malehorn and Raymond J. Lewis,
Defendants, Case 1:17-cv-00859 (D. Del., June 29, 2017) seeks to
enjoin Defendants and all persons acting in concert with them from
proceeding with the shareholder vote on the proposed merger or
consummating the proposed merger between Care Capital Properties
and Sabra Health Care, among other things. The suit also seeks
damages, reasonable allowance for attorneys' and experts' fees and
such other and further relief under the Securities Exchange Act of
1934.
Each outstanding share of Care Capital common stock will be
exchanged for 1.123 common shares of Sabra with an implied value
of $29.96 per share based on Sabra's closing price on May 5, 2017.
Plaintiff alleges that the merger plan fails to provide sufficient
information for shareholders to assess the share valuation.
Care Capital Properties is a healthcare real estate investment
trust, which focuses primarily on the post-acute sector, which
includes nursing facilities and other healthcare assets operated
by private providers. [BN]
Plaintiff is represented by:
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
FARUQI & FARUQI, LLP
685 Third Ave., 26th Fl.
New Yor006B, NY 10017
Telephone: (212) 983-9330
Email: nfaruqi@faruqilaw.com
jwilson@faruqilaw.com
- and -
Michael Van Gorder, Esq.
FARUQI & FARUQI, LLP
20 Montchanin Road, Suite 145
Wilmington, DE 19807
Tel: (302) 482-3182
Email: mvangorder@faruqilaw.com
CARE CAPITAL: "Loeb" Seeks to Halt Shareholder Vote on Merger
-------------------------------------------------------------
Roger Loeb, individually and on behalf of all others similarly
situated, Plaintiff, v. Care Capital Properties, Inc., Douglas
Crocker II, Ronald G. Geary, John S. Gates, Jr., John L. Workman,
Dale Anne Reiss, Jeffrey A. Malehorn and Raymond J. Lewis,
Defendants, Case No. 1:17-cv-00866 (D. Del., June 30, 2017) seeks
to enjoin Defendants and all persons acting in concert with them
from proceeding with the shareholder vote on the proposed merger
or consummating the proposed merger between Care Capital
Properties and Sabra Health Care. The suit also seeks damages,
reasonable allowance for attorneys' and experts' fees and such
other and further relief under the Securities Exchange Act of
1934.
Each outstanding share of Care Capital common stock will be
exchanged for 1.123 common shares of Sabra with an implied value
of $29.96 per share based on Sabra's closing price on May 5, 2017.
Plaintiff alleges that the merger plan fails to provide sufficient
information for shareholders to assess the share valuation.
Care Capital Properties is a healthcare real estate investment
trust, which focuses primarily on the post-acute sector, which
includes nursing facilities and other healthcare assets operated
by private providers. [BN]
Plaintiff is represented by:
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Tel: (302) 295-531
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
CARTER HOLT: Homeowners Join Pending Class Action
-------------------------------------------------
Rob Stock reports Clair Kirby is one of a large number of
homeowners taking legal action, with the help of overseas backers,
against Carter Holt Harvey for supplying a faulty exterior
cladding that deteriorates over time and leaves a house
susceptible to leakage.
Midwife Clair Kirby is used to keeping her emotions in control in
the most stressful of moments.
But she is reduced to tears speaking of the leaks in her home,
which she blames on the Shadowclad cladding made by Carter Holt
Harvey.
Kirby is one of several hundred homeowners to sign up for the
"book build" of a possible class action law suit against the
building product manufacturer by entrepreneurial Auckland lawyer
Adina Thorn, and action Carter Holt Harvey says it will defend.
"We're not young anymore. We're heading towards a time when we
will want to retire, and we've lost pretty much whatever equity we
had in the house," Kirby says.
"We basically have a piece of land and a property that's only
worth the land value. You are stuck in a situation where you
either have to remediate, or you sell at a loss."
If they do sell at a loss, they will be left with mortgage debt
and no house. They'd never be able to buy again, Kirby says.
She bought the two-storey, three-bedroom house in the rapidly-
growing town of Pukekohe near Auckland with her partner Steve, a
nurse, in 2010.
It was just three years' old.
Soon after they moved in leaks started in the garage, which they
thought was a roofing issue, but as more of the Shadowclad
cladding warped, and pulled away from the house frame, letting
water in, they realised they had joined the legion of homeowners
in leaky buildings.
"There a lot of splitting of the boards, a lot of delamination.
Boards that should be straight now curve outwards, or they have a
wave effect to them, and that's generally all over the house,
certainly where the prevailing weather is," Kirby says.
She believes in one sense, she's lucky. The property does not yet
have a mold problem.
Thorn said the merits of the class action lawsuit, should it go
ahead, turn on the suitability of Shadowclad as a building
product.
"Carter Holt Harvey absolutely deny all allegations against it.
This case really turns on this board, and whether this board works
or doesn't work."
"The building surveyors say the glue breaks down, they split
apart, warps, and water gets in," says Thorn.
"This is exactly the same claim that the Ministry of Education are
suing Carter Holt Harvey for in relation to 880 school buildings
across New Zealand," Thorn said.
Kim Shannon, head of Education Infrastructure at the Ministry
said that case was still progressing.
"We are waiting to be notified of a Court-ordered case management
conference, which we anticipate will be in the next two months,"
Shannon said.
"For over 25 years Carter Holt Harvey has been proud to
manufacture and supply Shadowclad cladding product to the New
Zealand market," Carter Holt Harvey said in a statement.
"Recently Adina Thorn, an Auckland based lawyer, has been
appealing to owners of buildings clad in Shadowclad to register
interest in a potential class action against CHH."
"This is surprising because Adina Thorn has never sought to
discuss concerns about Shadowclad with CHH."
"Carter Holt Harvey believes Shadowclad is fit for purpose.
However, if consumers have any concerns about Shadowclad they
should contact CHH directly so that it can investigate the issue
and identify the cause of the problem," it said.
"CHH always acts responsibly to repair and/or replace any product
that is subject to a manufacturing defect."
"To date, no legal proceedings have been commenced by Adina Thorn
against CHH."
But, it said: "CHH will defend a class action if one is pursued."
People signing up to the book build come from all across the
country, but mainly residential homes, Thorn says, and some
holiday houses.
Advertising and doing a "book build" for class action lawsuits is
a relatively new business model in New Zealand.
Litigation funding developed as an industry in the UK and US, with
deep-pocketed investors funding entrepreneurial lawyers able to
take multi-million actions on behalf of hundreds, sometimes
thousands of people unable to afford to take on big companies in
court themselves.
"You actually can't do anything on your own," said Thorn. [GN]
CASH FUND LLC: Contacted "Hardin" Using Auto-dialer, Says Suit
--------------------------------------------------------------
Tenley Hardin, individually and on behalf of all others similarly
situated, Plaintiff, v. Cash Fund, LLC, and Does 1 through 10,
inclusive, and each of them, Defendant, Case No. 2:17-cv-04846
(C.D. Cal., June 30, 2017), seeks damages and any other available
legal or equitable remedies resulting from violations of the
Telephone Consumer Protection Act and related regulations,
specifically the National Do-Not-Call provisions, thereby invading
Plaintiff's privacy.
Defendant is an online business loan company. Plaintiff, whose
number is in the do-not-call registry, claims to have received
calls from Cash Fund from an auto-dialer and incurred a charge on
her phone bill. [BN]
Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780,
Woodland Hills, CA 91367
Phone: (877) 206-4741
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
mgeorge@toddflaw.com
abacon@toddflaw.com
CENTURYLINK INC: "Garten" Case Removed to D. Nev.
-------------------------------------------------
The case captioned David H. Garten, individually, and on behalf of
all others similarly situated, Plaintiff, v. Centurylink, Inc.,
Centurylink Communications, LLC, Centurylink Public
Communications, Inc. and Centurylink Sales Solutions, Inc.,
Defendants, Case No. A-17-757179-C filed in the District Court for
Clark County, Nevada, on June 20, 2017, was removed to the United
States District Court for the District of Nevada on
June 29, 2017 under Case No. 2:17-cv-01794.
Garten is a CenturyLink customer for their internet service. He
claims to be unjustly charged for services that he did not avail
of and/or did not agree to. [BN]
Plaintiff is represented by:
Mark J. Geragos, Esq.
Ben J. Meiselas, Esq.
GERAGOS & GERAGOS A PROFESSIONAL CORPORATION LAWYERS
Historic Engine Co. No. 28
644 South Figueroa Street
Los Angeles, CA 90017-3411
Telephone (213) 625-3900
Facsimile (213) 232-3255
Email: Geragos@Geragos.com
Defendant is represented by:
Tamara Beatty Peterson, Esq.
PETERSON BAKER, PLLC
10001 Park Run Drive
Las Vegas, NV 89145
Telephone: 702.786.1001
Facsimile: 702.786.1002
Email: tpeterson@petersonbaker.com
CHIPOTLE MEXICAN: Discovery Deadlines in "Schneider" Extended
-------------------------------------------------------------
In the case captioned MARTIN SCHNEIDER, SARAH DEIGERT, LAURIE
REESE, THERESA GAMAGE, TIFFANIE ZANGWILL, and NADIA PARIKKA,
Individually and on Behalf of All Others Similarly Situated,
Plaintiffs, v. CHIPOTLE MEXICAN GRILL, INC., a Delaware
Corporation, Defendant, Case No. 4:16-cv-02200-HSG (KAW) (N.D.
Cal.), Judge Haywood S. Gilliam of the U.S. District Court for the
Northern District of California, Oakland Division, granted the
Plaintiffs' motion to extend the discovery deadlines.
The fact discovery deadline is extended from July 21, 2017 to Aug.
4, 2017.
The expert designation deadline is extended from July 28, 2017 to
Aug. 11, 2017.
The expert rebuttal designation deadline is extended from Sept. 1,
2017 to Sept. 15, 2017.
The expert discovery deadline is extended from Oct. 6, 2017 to
Oct. 13, 2017.
All other dates remain as currently set.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/VfvuYW from Leagle.com.
Martin Schneider, Plaintiff, represented by Donald R. Hall --
dhall@kaplanfox.com -- Kaplan Fox and Kilsheimer, pro hac vice.
Martin Schneider, Plaintiff, represented by Frederic S. Fox --
ffox@kaplanfox.com -- Kaplan Fox & Kilsheimer, pro hac vice, Linda
M. Fong -- lfong@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP,
Mario Man-Lung Choi -- mchoi@kaplanfox.com -- Kaplan Fox &
Kilsheimer LLP, Matthew B. George -- mgeorge@kaplanfox.com --
Kaplan Fox & Kilsheimer LLP & Laurence D. King --
lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP.
Sarah Deigert, Plaintiff, represented by Donald R. Hall, Kaplan
Fox and Kilsheimer, pro hac vice, Frederic S. Fox, Kaplan Fox &
Kilsheimer, pro hac vice, Linda M. Fong, Kaplan Fox & Kilsheimer
LLP, Mario Man-Lung Choi, Kaplan Fox & Kilsheimer LLP, Matthew B.
George, Kaplan Fox & Kilsheimer LLP & Laurence D. King, Kaplan Fox
& Kilsheimer LLP.
Theresa Gamage, Plaintiff, represented by Donald R. Hall, Kaplan
Fox and Kilsheimer, pro hac vice, Frederic S. Fox, Kaplan Fox &
Kilsheimer, pro hac vice, Linda M. Fong, Kaplan Fox & Kilsheimer
LLP, Mario Man-Lung Choi, Kaplan Fox & Kilsheimer LLP, Matthew B.
George, Kaplan Fox & Kilsheimer LLP & Laurence D. King, Kaplan Fox
& Kilsheimer LLP.
Nadia Parikka, Plaintiff, represented by Donald R. Hall, Kaplan
Fox and Kilsheimer, pro hac vice, Frederic S. Fox, Kaplan Fox &
Kilsheimer, pro hac vice, Linda M. Fong, Kaplan Fox & Kilsheimer
LLP, Mario Man-Lung Choi, Kaplan Fox & Kilsheimer LLP, Matthew B.
George, Kaplan Fox & Kilsheimer LLP & Laurence D. King, Kaplan Fox
& Kilsheimer LLP.
Chipotle Mexican Grill, Inc., Defendant, represented by Charles C.
Cavanagh -- ccavanagh@messner.com -- Messner Reeves, Adam M.
Royval -- aroyval@messner.com -- Messner Reeves, Allison Dodd --
adodd@messner.com -- Messner Reeves, Jacqueline Raquel Guesno --
jguesno@messner.com -- Messner Reeves, Kristina M. Wright --
kwright@messner.com -- Messner Reeves & Sascha Von Mende Henry --
shenry@sheppardmullin.com -- Sheppard Mullin Richter & Hampton
LLP.
CIGNA HEALTH: Court Dismissed Amended Complaint in "Elp" Suit
-------------------------------------------------------------
In the lawsuit styled STEVEN W ELP, on behalf of him self and al1
others similarly situated, the Plaintiff, v. CIGNA HEALTH AND LIFE
INSURANCE COMPANY, NEXTERA ENERGY, LLC, NEXTEM ENERGY, EMPLOYEE
HEALTH AND WELFARE PLAN , and THE EMPLOYEE BENEFIT PLAN
ADMNISTRATIVE COMMITTEE, the Defendants, Case No. 9:17-cv-80237-
DMM (S.D. Fla.), the Hon. Donald Middlebrooks entered an order:
1. granting motion to dismiss by Defendants NextaEra Energy,
Inc., the NextEra Energy, Inc. Employee Hea1th and Welfare
Plan, and Employee Benetst Plans Administrative Committee;
2. granting motion to Dismiss filed by Defendant Cigna Health
and Life Insurance Company; and
3. dismissing the amended complaint without Prejudice.
Judge Middlebrooks said, "The Parties debate several threshold
issues that 1 do not consider in this order. Therefore, I assume
arguendo that NextEra and Cigna are proper defendants; that
Plaintiff exhausted the administrative appeals process; that his
son is not a necessary and indispensible party who must be joined;
and that the Committee's denial of benefits is subject to de novo
review. Even under this scenario, Plaintiffs Parity Act claim is
fundamentally defective. The Plaintiff maintains that the Plan's
term s impermissibly create a separate and nonquantitative
limitation on specific mental health benefits. The Amended
Complaint cites the Plan's language regarding the medical
necessity standard and concedes that the Plan covers mental health
and substance abuse treatments. Working around this concession,
Plaintiff alleges that the Committee denied coverage for Second
Nature's services based exclusively on the exclusion for a1l
wilderness-related treatment without regard to the services'
medical necessity."
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=BxWh5YUN
CIGNA CORP: "de Jesus" Sues Over Unsolicited Telemarketing Calls
----------------------------------------------------------------
Crystal de Jesus, individually and on behalf of all others
similarly situated, Plaintiff, v. Cigna Corp., Defendants, Case
No. 6:17-cv-01208 (M.D. Fla., June 29, 2017), seeks injunctive
relief, statutory damages and reasonable allowance for plaintiff's
attorneys' and experts' fees and such other and further relief
under the Telephone Consumers Protection Act.
Cigna Corporation is a global health services organization whose
products include medical, dental, disability, life and accident
insurance and related products and services offered through its
various subsidiaries and affiliates. Plaintiff began receiving
automated, prerecorded voice calls made by Cigna on her cellular
telephone, thus incurring charges. [BN]
Plaintiff is represented by:
Scott D. Owens, Esq.
SCOTT D. OWENS, P.A.
3800 S. Ocean Dr., Ste. 235
Hollywood, FL 33019
Tel: (954) 589-0588
Fax: (954) 337-0666
Email: scott@scottdowens.com
- and -
Eric W. Kem, Esq.
2233 NW 41St St., Suite 700-H
Gainesville, FL 32606
Telephone: (352) 275-7151
Facsimile: (844) 536-3476
Email: ekern@kemlawfirm.com
CODE 42: "Kissel" Suit Seeks to Certify Settlement Class
--------------------------------------------------------
In the lawsuit captioned JORDAN KISSEL, individually and on behalf
of all others similarly situated, the Plaintiff, v. CODE 42
SOFTWARE, INC., a Delaware corporation; and DOES 1 - 10,
inclusive, the Defendants, Case No. 8:15-cv-01936-JLS-KES (C.D.
Cal.), Mr. Jordan Kissel will move the Court on August 24, 2017
for an Order:
1. granting preliminary approval of a Settlement Agreement;
2. for settlement purposes only, certifying a proposed
Settlement Class;
3. appointing Scott J. Ferrell, David W. Reid, and Victoria C.
Knowles of Pacific Trial Attorneys, APC as Class Counsel;
4. appointing Plaintiff Jordan Kissel as the Class
Representative;
5. approving the Parties' proposed notice program, including
the proposed forms of notice, and direct that notice be
disseminated;
6. appointing JND Class Action Administrator as Settlement
Administrator, and direct JND to carry out the duties and
responsibilities of the Settlement Administrator;
7. approving the Parties' proposed monetary settlement benefit
to the Settlement Class, approve the procedures set forth
in the Settlement Agreement for the qualifications of Class
Members, approve the method for Class Members to exclude
themselves from the Settlement Class, and for Class Members
to object to the Settlement;
8. staying all non-settlement related proceedings pending
Final Approval of the Settlement Agreement; and
9. setting a Final Approval Hearing and other dates in
connection with the final approval of the Settlement
Agreement.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=VaI45e4P
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
Richard H. Hikida, Esq.
David W. Reid, Esq.
Victoria C. Knowles, Esq.
PACIFIC TRIAL ATTORNEYS
4100 Newport Place, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706 6464
Facsimile: (949) 706 6469
E-mail: sferrell@pacifictrialattorneys.com
rhikida@pacifictrialattorneys.com
dreid@pacifictrialattorneys.com
vknowles@pacifictrialattorneys.com
CROSSTOWN COURIER: "Arpke" Labor Suit Seeks Unpaid Overtime Pay
---------------------------------------------------------------
Steven Arpke, individually and on behalf of all others similarly
situated, Plaintiff, v. Crosstown Courier, Inc., Defendant, Case
No. 1:17-cv-00185 (E.D. Tenn., June 29, 2017), seeks monetary
damages, liquidated damages, prejudgment interest, civil penalties
and costs, including reasonable attorney's fees, as a result of
failing to pay overtime compensation for the hours in excess of
forty hours in a single week under the Fair Labor Standards Act.
Defendant's primary business purpose is to provide delivery
services where Plaintiff was employed by Defendant as a courier
and misclassified as an independent contractor. [BN]
Plaintiff is represented by:
Frank P. Pinchak, Esq.
Donna J. Mikel, Esq.
BURNETTE, DOBSON & PINCHAK
711 Cherry Street
Chattanooga, TN 37402
Phone: (423) 266-2121
Fax: (423) 266-3324
Email: fpinchak@bdplawfirm.com
dmikel@bdplawfirm.com
CSAA INSURANCE: "Rahim" Suit Seeks to Certify Class of Employees
----------------------------------------------------------------
in the lawsuit titled NASIR RAHIM and GLENN BEARDEN, et al., on
behalf of themselves and others similarly situated, the
Plaintiffs, v. CSAA INSURANCE SERVICES, INC., et al., the
Defendants, Case No. 5:17-cv-00220-W (W.D. Okla.), the Plaintiffs
ask the Court to:
1. conditionally certify a class of:
"current and former employees of the Defendants, who worked
for the Defendants during any period between February 28,
2014, and the present";
2. approve Plaintiffs' notice and opt-in forms;
3. allow Plaintiffs to begin sending the notices and opt-in
forms to the putative plaintiffs; and,
4. request Defendants to produce the identity, address and
year of birth of all Homeowner Field Specialists who worked
during any period between February 28, 2014, and the
present
Plaintiffs brought this action on behalf of themselves and other
similarly-situated current and former employees of the Defendants
to recover unpaid overtime wages and available damages under the
Fair Labor Standards Act and in the interest of judicial economy
and avoiding prejudice to the claims of putative class members.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=ik48mdEV
The Plaintiff is represented by:
Mark Hammons, Esq.
Amber L. Hurst, Esq.
HAMMONS, GOWENS, HURST & ASSOCIATES
325 Dean A. McGee Avenue
Oklahoma City, OK 73102
Telephone: (405) 235 6100
Facsimile: (405) 235 6111
E-mail: amber@hammonslaw.com
- and -
Kwame T. Mumina, Esq.
Cynthia D'Antonio, Esq.
GREEN, JOHNSON, MUMINA & D'ANTONIO
400 N. Walker, Suite 100
Oklahoma City, OK 73102
Telephone: (405) 702 7228
Facsimile: (405) 702 6898
E-mail: kmumina@gjmlawyers.com
cynthia@gjmlawyers.com
The Defendants are represented by:
Adam Childers, Esq.
Mary P. Snyder, Esq.
CROWE & DUNLEVY
Braniff Building
324 N. Robinson Ave., Suite 100
Oklahoma City, OK 73102
Telephone: (405) 235 7700
Facsimile: (405) 239 6651
E-mail: adam.childers@crowedunlevy.com
mary.snyder@crowedunlevy.com
CULLMAN COUNTY, AL: Faces Class Action Over Bond System
-------------------------------------------------------
Cullman Times reports that with a federal lawsuit over criminal
bond-setting practices pending against several high-ranking law
enforcement and judicial officers in Cullman County, most of the
defendants are declining comment, preferring to let the case play
out through their attorneys.
But at least one defendant -- Cullman County Sheriff Matt Gentry -
- has shown a willingness to talk publicly about the class-action
suit, filed by local attorney Tommy Drake, Esq., on behalf of a
handful of defendants involved in local drug trafficking cases.
Filed June 7 in the U.S. District Court for the Northern District
of Alabama, the suit accuses officers of Alabama's 32nd judicial
circuit -- composed solely of Cullman County's court system -- of
setting fixed bond amounts that favor wealthier criminal suspects,
while punishing poorer ones.
"When it comes to the specifics, of course I can't talk about
those," said Gentry. "But it's important to realize that, in the
way that we set bond for people who have been arrested on drug
trafficking, sexual abuse, or anything else, we are operating
within the law as it has been written by the Alabama Legislature."
The lawsuit accuses the defendants of violating, or being
complicit in the violation of, the 8th Amendment (which forbids
excessive bail and excessive fines for those accused of a crime)
and the 14th Amendment (which forbids states from using the law to
"deprive any person of life, liberty, or property, without due
process") to the U.S. Constitution.
The suit names Gentry as a defendant, along with Cullman County
Circuit Judges Martha Williams and Greg Nicholas, District Judges
Kim Chaney and Rusty Turner, Circuit Clerk Lisa McSwain, Clerk
Magistrates Amy Black and Joan White, Alabama Administrative
Office of Courts officer Randy Helms, and County Commissioners
Kenneth Walker, Garry Marchman and Kerry Watson.
The complaint accuses the defendants of permitting the ongoing
operation of a bonding "scheme" for criminal defendants --
particularly accused drug traffickers, who face a standard
property bond of $1 million if arrested in Cullman County.
Under the state's rules of criminal procedure, bond on a charge of
felony drug trafficking or manufacturing can be set anywhere from
$5,000 all the way up to $1.5 million.
According to the lawsuit, Cullman County's use of a "one-size-
fits-all" bond schedule, which set bond on trafficking charges at
$1 million, unfairly keeps poorer defendants in jail awaiting a
court date, while allowing wealthier defendants to "purchase their
freedom."
From the complaint:
"In Cullman County, arrestees face two possible outcomes depending
on their wealth status. Wealthy arrestees purchase their freedom
by paying an arbitrary amount set by a magistrate relying upon a
bail schedule and a policy adopted by the office of the Clerk.
Poor arrestees simply remain stuck behind bars because they cannot
afford to pay the Clerk/Magistrates [sic] pre-determined sum of
one million dollars ($1,000,000.00), set in every drug trafficking
case. If a person is charged with more than one offense, the fixed
amount for each offense is added together to determine the total
amount of bail required for release. Those arrestees who are too
poor to afford to pay excessive bail remain in jail because of
their poverty. In Defendant's wealth based [sic] detention scheme,
the sole criteria [sic] determining whether a pretrial arrestee
walks free or sits in jail is the amount of money he or she has."
Gentry takes issue with the thinking that underpins that argument,
emphasizing that, in setting $1 million property bonds for drug
trafficking arrestees, Cullman County is well within the $5,000-
$1.5 million trafficking bond range established by the Alabama
Rules of Criminal Procedure.
"You can only set bond within the range that the Legislature has
set forth, and that is what we do," he said.
"The law is already set up to benefit the criminal; it's not set
up to benefit the victims in our community. My thought, as
sheriff, is this: it's our job to keep criminals off the street,
and we will do everything in our power, that's within the law, to
do that. We're operating within the law, and it's been that way
for many years."
In Cullman County, booking deputies at the Cullman County
Detention Center follow a predetermined bond list, complete with
criminal charges and their corresponding, locally-set bond
amounts, to set the appearance bonds for most probable-cause
arrestees.
Each amount varies according to the criminal charge in question.
But, unless a criminal allegation deals with an extreme act or
involves some other unusual complexity, two suspects accused of
the same crime typically must pay the same amount of money (in the
case of a cash bond), or pledge the same amount of property value
(in the case of a property bond), to bond out.
Not all Alabama judicial circuits follow Cullman County's approach
of adhering to a standardized bond schedule.
Magistrates at the Morgan County Circuit Clerk's Office, for
example, only set minimum legal bond amounts, and only for
misdemeanor cases. It's up to a judge to set bond on felony
charges, or to exceed the minimum bond on misdemeanor charges.
Gentry noted that, in cases involving allegations of especially
heinous acts, bond in Cullman County is typically set even higher
than the "standard" amount set forth in the bond schedule.
"One of the things that we do -- and it operates within the law --
is, when someone is arrested for, let's say, a sex offense or
maybe higher-level drug trafficking, we will request from the
court a cash bond, or a higher bond that fits within the scope of
the state's prescribed bond range," he said.
"That holds people accountable to coming back for their appearance
at court -- which is the whole purpose of having a bond." [GN]
CVS PHARMACY: Bid for Class Certification in "Romulus" Denied
-------------------------------------------------------------
Judge Rya W. Zobel denied the plaintiffs' Amended Motion for Class
Certification in the case captioned DAVID ROMULUS, CASSANDRA
BEALE, NICHOLAS HARRIS, ASHLEY HILARIO, ROBERT BOURASSA, and ERICA
MELLO, on behalf of themselves and all other persons similarly
situated, v. CVS PHARMACY, INC., Civil Action No. 13-10305-RWZ (D.
Mass.).
Cassandra Beale, Nicholas Harris, Ashley Hilario, Robert Bourassa,
and Erica Mello, former Shift Supervisors at CVS Pharmacy, Inc.,
alleged that they were required to remain in the store during
their meal breaks when no other managerial employees were present
and that they were not paid for this time. Based on these
allegations, they claimed CVS violated the Massachusetts Wage Act,
Mass. Gen. Laws, ch. 149, section 148, and the Massachusetts
overtime statute, Mass. Gen. Laws, ch.151, sections 1A & 1B. The
plaintiffs sought certification under Federal Rule of Civil
Procedure 23(b)(3) of the following two classes:
(1) All CVS Shift Supervisors who worked for an hourly wage
in Massachusetts between July 25, 2008 and May 14, 2013
and were not paid for meal breaks during which CVS
required them to remain in the store, for recovery of
wages for unpaid meal breaks during that period (the
First Class); and
(2) All CVS Shift Supervisors who worked for an hourly wage
in Massachusetts between May 15, 2013 and the date of
final judgment and who were not paid for meal breaks
during which CVS required them to remain in the store,
for recovery of wages for unpaid meal breaks during that
period (the Second Class, or together with the First
Class, the Classes).
Judge Zobel explained that evaluating plaintiffs' claims depends
upon the answers to two questions:
-- First, were putative class members required to remain in
the store during meal breaks?
-- Second, if putative class members did so, were they
required to clock-out?
Plaintiffs' maintained that CVS' policies allow both questions to
be answered in the affirmative. However, the judge found that
plaintiffs are not alleging that any individual policy is per se
illegal; rather that these policies were implemented in a way
leading to an illegal practice. The judge noted that examining
the policies on their face does not lead to affirmative answers.
To the extent plaintiffs implicitly alleged a common practice that
was illegal, Judge Zobel held their evidence is insufficient to
resolve these inquiries on a class-wide level. Therefore, the
judge concluded that neither of the proposed classes satisfies the
commonality requirement.
A full-text copy of Judge Zobel's July 12, 2017 memorandum of
decision is available at https://is.gd/wgk9cd from Leagle.com.
David Romulus, Cassandra Beale, Nicholas Harris, Robert Bourassa,
Ashley Hilario, Plaintiffs, represented by Thomas V. Urmy, Jr. --
turmy@shulaw.com -- Shapiro Haber & Urmy LLP, Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Patrick J.
Vallely -- pvallely@shulaw.com -- Shapiro Haber & Urmy LLP.
Erica Mello, Plaintiff, represented by Thomas V. Urmy, Jr.,
Shapiro Haber & Urmy LLP & Patrick J. Vallely, Shapiro Haber &
Urmy LLP.
CVS Pharmacy, Inc., Defendant, represented by Christiana L. Signs,
Greenberg Traurig, LLP, pro hac vice, Emily Hannigan Bryan,
Greenberg Traurig, LLP, James N. Boudreau, Greenberg Traurig LLP,
John F. Farraher, Jr., Greenberg Traurig LLP & Justin F. Keith,
Greenberg Traurig LLP.
DIAMOND CUT: "Byble" Seeks Unpaid Overtime Wages
------------------------------------------------
Edward Byble, on behalf of himself and all others similarly
situated, v. Diamond Cut Lawn & Landscape, LLC c/o Joseph Glinski
III and Joseph Glinski, Defendants, Case No. 2:17-cv-00578, (S.D.
Ohio, June 30, 2017), seeks minimum wages and/or denied overtime,
liquidated damages, costs and disbursements and reasonable
allowances for fees of counsel and experts, reimbursement of
expenses and such other and further relief under the Ohio Minimum
Fair Wage Standards Act and the federal Fair Labor Standards Act.
Diamond is into professional lawn and landscape services as well
as construction services. Byble was employed as a laborer and
landscaper. [BN]
Plaintiff is represented by:
Chris P. Wido, Esq.
THE SPITZ LAW FIRM, LLC
25200 Chagrin Boulevard, Suite 200
Beachwood, OH 44122
Phone: (216) 291-4744
Fax: (216) 291-5744
Email: chris.wido@spitzlawfirm.com
DRYSHIPS INC: To Vigorously Defend Securities Class Action
----------------------------------------------------------
DryShips Inc. on July 18 disclosed that on July 14, 2017, a
purported class action complaint was filed in the United States
District Court for the Southern District of New York (No. 1:17-cv-
05368(JFK)) by Maxime Hodges on behalf of himself and all others
similarly situated against the Company and two of its executive
officers. The complaint alleges that the Company and two of its
executive officers violated Sections 10(b) and/or 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
DryShips and its management believe that the complaint is without
merit and plan to vigorously defend themselves against the
allegations. [GN]
EDDIE BAUER: Heredia Seeks to Certify Class of Store Employees
--------------------------------------------------------------
In the lawsuit captioned STEPHANIE HEREDIA, as an individual and
on behalf of all others similarly situated, the Plaintiff, v.
EDDIE BAUER LLC, a Delaware limited liability company; and DOES 1
through 50, inclusive, the Defendant, Case No. 5:16-cv-06236-BLF
(N.D. Cal.), the Plaintiff will move the Court on October 12,
2017, for an order:
1. certifying a class of:
"all current and former non-exempt retail store employees
who were employed by Defendant in the State of California
at any time from September 28, 2012, through the present;
2. finding Plaintiff Stephanie Heredia to be an adequate
representative and certifying her as the Class
representative; and
3. finding Plaintiff's counsel and their respective firms,
Larry W. Lee and Kristen M. Agnew of Diversity Law Group,
P.C., and William L. Marder of Polaris Law Group LLP as
adequate class counsel and certifying them as class
counsel.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=yzp4RAlN
The Plaintiff is represented by:
Larry W. Lee, Esq.
Kristen M. Agnew, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa Street, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488 6555
Facsimile: (213) 488 6554
E-mail: lwlee@diversitylaw.com
kagnew@diversitylaw.com
- and -
William L. Marder, Esq.
POLARIS LAW GROUP LLP
501 San Benito Street, Suite 200
Hollister, CA 95023
Telephone: (831) 531 4214
Facsimile: (831) 634 0333
E-mail: bill@polarislawgroup.com
EL BESO MEXICAN: Court Grants Certification of 3 Classes
--------------------------------------------------------
In the lawsuit titled EDUARDO ESTEVES, et al., the Plaintiffs, v.
EL BESO MEXICAN RESTAURANTE, LLC, et al., the Defendants, Case No.
2:15-cv-00484-LA (E.D. Wisc.), the Hon. Judge Lynn Adelman entered
an order granting conditional certification of:
Collective Server Class:
"all persons who worked at the El Beso restaurant located at
5030 S. 74th Street in Greenfield, Wisconsin as a Server at
any time since September 19, 2012";
Collective Busser/Expeditor Class:
"all persons who worked at the El Beso restaurant located at
5030 S. 74th Street in Greenfield, Wisconsin as a Busser
and/or Expeditor at any time since September 19, 2012; and
Collective Cooks/Dishwasher Class:
"all persons who worked at the El Beso restaurant located at
5030 S. 74th Street in Greenfield, Wisconsin as a Cook and/or
Dishwasher at any time since September 19, 2012".
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=gge0WtBT
The Court said, "Defendants shall identify and produce to
Plaintiff's Counsel a list containing the first name, last name,
last known street address, city, state, zip code, phone number,
date of birth, and dates of employment, and positions held (i.e.
Cook, Busser, Dishwasher, Expeditor, and/or Server) of all persons
who have been employed by Defendants as a Cook, Busser,
Dishwasher, Expeditor, and/or Server at any time since September
19, 2012, no later than 15 business days after the date of this
Order. The class list will be produced to Plaintiff's Counsel as
an excel spreadsheet with each field of information identified
above as a separate column. The Plaintiffs shall be permitted to
send the agreed-upon Notice of Right to Join Lawsuit to all
individuals within the collective class and that consent forms
postmarked within forty-five days after the first mailing of the
Notice will be considered timely."
ELLEN'S STARDUST: Fights Class Action With Countersuit
------------------------------------------------------
Melissa Klein, writing for New York Post, reports they've got
trouble -- with a capital "T."
Manhattan prosecutors are probing whether dozens of show tune-
singing servers at Ellen's Stardust Diner altered checks and tap-
danced off with the cash.
The owners of the famed Broadway tourist trap claim 59 former
employees "engaged in a prolonged pattern of stealing money" to
the tune of nearly $400,000 in a scheme known in the restaurant
industry as "soda shuffling" or the "floating drink," according to
court papers.
The servers -- actors and actresses who would belt out Broadway
standards in between slinging cheeseburgers and shakes -- made off
with a few hundred dollars to tens of thousands of dollars each
before they were finally canned, according to a Manhattan federal
court countersuit.
One waiter, an actor name Zechariah "Zech" Azazi, allegedly "stole
at least $38,167.34" during a four-year period, the papers charge.
Abby Burke allegedly pocketed $18,069.17 over six years.
The servers and other staffers in the complaint worked at the
restaurant for years, coming and going in between landing roles on
Broadway, summer stock or cruise ships.
The 1950s-themed restaurant opened in 1987 and moved to its
current location at the corner of 51st Street in 1995. It was an
instant hit, at least with tourists who stood on long lines for a
table inside where they dined on comfort-food classics like
meatloaf and listen to live renditions of hits from "Hamilton"
"Les Mis" or "Grease."
The "Stardusters," as they call themselves, strut on the backs of
the red-vinyl booths and toss out straws to the diners, who are
also showered in confetti.
But the servers say the family atmosphere at the eatery that
changed in early 2016 when a new management team came on board.
The Stardusters began a union-organizing effort that they contend
angered management and the restaurant's owner, Ken Sturm, and led
to mass firings in September 2016 and January 2017.
The axed workers publicized their firings on social media using
the hashtag #StardustFamilyUnited.
But the owners' new countersuit shows that the firings came two
months after Ellen's says it was tipped off to the "soda
shuffling" scheme by an employee.
It brought in consultants who reviewed 10 years worth of records
and the diner's computerized point of sale system that tracked
each server's daily activity, court papers say.
In order to rip off the restaurant, a server would record a
commonly ordered item such as a soda in the computer system and
present the customer with the correct check, according to court
papers. After the diner paid, the server would remove the item
from the order in the computer system by shifting it to someone
else's bill. The server would pocket the cash difference between
the real and doctored bills.
The same soda or coffee would travel from bill to bill throughout
the day as the server would grab the money each time, legal papers
charge.
The diner "has turned its findings over to the Manhattan District
Attorney's office and is cooperating with its investigation of the
matter," Patrick McCarthy, a lawyer for Ellen's, told The Post.
The DA's office declined to comment.
Meanwhile, the diner's countersuit is the legal retort to a class-
action lawsuit filed by workers in December 2016.
The employees' suit contends that Ellen's wrongfully required
servers to share their tips with other workers, failed to pay them
overtime and, in some cases, withheld a portion of their tips.
Ben Dictor, a lawyer for the group, said Ellen's owners are
serving up the theft accusations "to chill other people's
participation" in the class-action lawsuit.
He said three fired workers won the right to collect unemployment
because the state Unemployment Insurance Appeal Board did not buy
the contention that they were stealing from Ellen's.
Another federal suit filed in April by four moms who work at the
restaurant contends that the diner did not provide a proper place
for them to pump breast milk.
The workers formed a group called Stardust Family United and call
themselves a union although they never sought federal
certification to be the collective bargaining representative of
the diner's employees.
A National Labor Relations Board hearing is set for September to
decide whether the workers were canned for cause or as payback for
union organizing activity. [GN]
ENHANCED RECOVERY: Placeholder Bid for Class Certification Filed
----------------------------------------------------------------
In the lawsuit entitled CARLOS VEGA, Individually and on Behalf of
All Others Similarly Situated, the Plaintiff, v. ENHANCED RECOVERY
COMPANY, LLC, the Defendant, Case No. 2:17-cv-01029 (E.D. Wisc.),
the Plaintiff asks the Court to enter an order certifying a
proposed class in this case, appointing the Plaintiff as its
representative, and appointing Ademi &
O'Reilly, LLP as its Counsel, and for such other and further
relief as the Court may deem appropriate.
The Plaintiff further asks the Court to stay this class
certification motion until an amended motion for class
certification is filed, and that the Court grant the parties
relief from the local rules' automatic briefing schedule and
requirement that Plaintiff file a brief and supporting documents
in support of this motion.
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit in Damasco instructed plaintiffs to file a certification
motion with the complaint, along with a motion to stay briefing on
the certification motion until discovery could commence. Damasco
v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled,
Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015).
As this motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
a one paragraph, single page motion to certify and stay should
suffice until an amended motion is filed, the Plaintiffs contend.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=544hAt5e
The Plaintiff is represented by:
Shpetim Ademi, Esq.
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Denise L. Morris, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482 8000
Facsimile: (414) 482 8001
E-mail: sademi@ademilaw.com
jblythin@ademilaw.com
meldridge@ademilaw.com
dmorris@ademilaw.com
ESTER C COMPANY: Ct. Refuses to Review Denial of Certification
--------------------------------------------------------------
In the case captioned PATRICK HUGHES and NAFISE NINA HODJAT,
individually and on behalf of all others similarly situated,
Plaintiffs, v. THE ESTER C COMPANY, NBTY, INC., and NATURESMART,
LLC, Defendants, No. 12-CV-0041 (PKC)(E.D. N.Y.). Judge of the
U.S. District Court for the Eastern District of New York denied
the Plaintiffs' motion for reconsideration of the order denying to
certify a nationwide class, as well as their motion to certify
California and Missouri subclasses.
The Plaintiffs bring this putative class action against the
Defendants, alleging that the Defendants' labeling of their
"Ester-C" vitamin C supplements as "The Better Vitamin C" is
unlawful, deceptive, and misbranded. By Order dated Sept. 30,
2016, the Court denied the Plaintiffs' motion to certify a
nationwide class, as well as their motion to certify California
and Missouri subclasses.
In the Order, the Court ruled that the Plaintiffs had not
satisfied the requirements to certify a class or any subclass
under Federal Rule of Civil Procedure 23. With respect to the
Plaintiffs' proposed nationwide class, the Court ruled that state-
to-state differences in governing legal standards defeated
predominance, thus precluding certification. In addition, with
respect to the proposed nationwide class and both proposed
subclasses, the Court ruled that: (i) the Plaintiffs did not
satisfy the implied ascertainability requirement of class
certification under Rule 23(b)(3); and (ii) they did not satisfy
the predominance requirement of class certification under Rule
23(b) because they failed to establish a damages methodology that
would reliably measure damages on a class-wide basis in a manner
consistent with Plaintiffs' theory of liability.
Before the Court is the Plaintiffs' motion for reconsideration of
the Order. As a preliminary matter, the Plaintiffs have not asked
for reconsideration of the Court's denial of their request to
certify a nationwide class. Instead, they challenge the Court's
decision not to certify their proposed California or Missouri
subclasses. As their primary argument, the Plaintiffs contend
that the Court's ascertainability and predominance holdings were
premised on a misapprehension of the factual record in this case.
According to them, the Court was incorrect in stating that over
150 companies, including the Defendants, marketed and sold Ester-C
products bearing 'The Better Vitamin C' label." The Plaintiffs
contend that this factual error caused the Court to erroneously
find that Plaintiffs failed to satisfy the ascertainability and
predominance requirements of Rule 23.2. The Plaintiffs also argue
that the Court's predominance holding is directly contrary to
controlling Second Circuit authority. As a fallback argument,
they contend that, rather than deny their certification motion
with prejudice, the Court should have allowed them to file a
renewed motion for class certification, either to pursue an
alternative theory of liability or to seek certification of an
"issue" class pursuant to Rule 23 (c)(4).
In their opposition brief, the Defendants acknowledge that the
Order contained a factual misstatement regarding the number of
licensed 'Ester-C' products that bore the 'Better Vitamin C'
slogan. They argue, however, that the Court's misapprehension of
the record on this point was immaterial to the Court's ultimate
holding with respect to class certification.
The Court held that it has given the Plaintiffs more than
sufficient opportunity to define and seek certification of a class
under Rule 23. In the years of litigation in this action, they
did not once suggest that they would seek to certify an issue
class under Rule 23(c)(4). Having already denied two motions for
class certification, it declined to consider a third certification
motion, even if it were narrowed to seek certification of an
"issue" class. For these reasons, the Court denied the
Plaintiffs' motion for reconsideration of the Court's order
denying class certification. By Aug. 11, 2017, the parties will
submit a joint letter proposing a briefing schedule for any
anticipated motions for summary judgment concerning the
Plaintiffs' individual claims.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/j0yMqM from Leagle.com.
Patrick Hughes, Plaintiff, represented by George Volney Granade,
II, Reese LLP.
Patrick Hughes, Plaintiff, represented by Kim Richman, Reese
Richman LLP, Michael Robert Reese, Reese Richman LLP, Alvin C.
Paulson, Becker, Paulson, Hoerner & Thompson, P.C., Jeffrey A.
Leon, Quantum Legal LLC, pro hac vice, Kevin T. Hoerner, Becker,
Paulson, Hoerner & Thompson, P.C., Patrick J. Sheehan --
psheehan@whatleykallas.com -- Whatley Drake & Kallas LLC & Zachary
A. Jacobs, Complex Litigation Group LLC.
Nafise Nina Hodjat, Plaintiff, represented by George Volney
Granade, II, Reese LLP, Michael Robert Reese, Reese Richman LLP,
Alvin C. Paulson, Becker, Paulson, Hoerner & Thompson, P.C.,
Jeffrey A. Leon, Quantum Legal LLC, pro hac vice, Kevin T.
Hoerner, Becker, Paulson, Hoerner & Thompson, P.C., Patrick J.
Sheehan, Whatley Drake & Kallas LLC & Zachary A. Jacobs, Complex
Litigation Group LLC.
The Ester C Company, Defendant, represented by Michelle Waller
Cohen -- mcohen@pbwt.com -- Patterson Belknap Webb & Tyler LLP,
Steven Alan Zalesin -- sazalesin@pbwt.com -- Patterson, Belknap,
Webb & Tyler LLP, Jackson Taylor Kirklin -- jtkirklin@pbwt.com --
Patterson Belknap Webb & Tyler LLP & Jonah Moses Knobler --
jknobler@pbwt.com -- Patterson Belknap Webb & Tyler.
NBTY, Inc., Defendant, represented by Michelle Waller Cohen,
Patterson Belknap Webb & Tyler LLP, Steven Alan Zalesin,
Patterson, Belknap, Webb & Tyler LLP, Jackson Taylor Kirklin,
Patterson Belknap Webb & Tyler LLP & Jonah Moses Knobler,
Patterson Belknap Webb & Tyler.
Naturesmart, LLC, Defendant, represented by Michelle Waller Cohen,
Patterson Belknap Webb & Tyler LLP, Steven Alan Zalesin,
Patterson, Belknap, Webb & Tyler LLP, Jackson Taylor Kirklin,
Patterson Belknap Webb & Tyler LLP & Jonah Moses Knobler,
Patterson Belknap Webb & Tyler.
ETW LLC: "Lardin" Seeks Unpaid Overtime Pay
--------------------------------------------
Jackie Lardin and Lacie Carter, and all others similarly situated,
Plaintiff, v. ETW, LLC and Gregg Kuehnel, Defendant, Case No.
9:17-cv-80789 (S.D. Fla., June 30, 2017), seeks overtime
compensation, liquidated damages, reasonable attorney's fees,
costs and expenses of this action and such other and further
relief under the Fair Labor Standards Act.
ETW operates West Boca Veterinary Center in Boca Raton Florida
where Plaintiffs worked as technicians. [BN]
Plaintiff is represented by:
Richard D. Tuschman, Esq.
RICHARD D. TUSCHMAN P.A.
8551 W. Sunrise Blvd., Suite 303
Plantation, FL
Telephone: (281) 885-8844
Facsimile: (281) 885-8813
Email: rtuschman@gtemploymentlawyers.com
FLEET FINANCIAL: "Bousquet" Hits Auto-dialed Telemarketing Call
---------------------------------------------------------------
Courtney Bousquet, individually and on behalf of all others
similarly situated, Plaintiff, v. Fleet Financial, Inc.,
Defendant, Case No. 1:17-cv-01584 (D. Colo., June 29, 2017), seeks
actual and statutory damages; an injunction requiring Defendant to
cease all unsolicited calling activities; an award of reasonable
attorneys' fees and costs; and such other and further relief for
violation of the Telephone Consumer Protection Act.
Fleet Financial, Inc. (d/b/a iLendingDirect) is a national finance
and insurance marketing firm that specializes in auto refinancing.
Plaintiff claims to have received unsolicited telemarketing calls
from the Defendant. [BN]
Plaintiff is represented by:
W. Lewis Garrison, Jr., Esq.
Christopher Hood, Esq.
Mark Ekonan, Esq.
HENINGER GARRISON DAVIS, LLC
2224 First Avenue North
Birmingham, AL 35203
Tel: (205) 326-3336
Fax: (205) 326-3332
Email: lewis@hgdlawfirm.com
chood@hgdlawfirm.com
mark@hgdlawfirm.com
- and -
James F. McDonough, III, Esq.
Travis Lynch, Esq.
HENINGER GARRISON DAVIS, LLC
3621 Vinings Slope, Suite 4320
Atlanta, GA 30339
Tel: (404) 996-0869
Fax: (205) 326-3332
Email: jmcdonough@hgdlawfirm.com
tlynch@hgdlawfirm.com
FREEDOM MORTGAGE: Court Certified Settlement Classes
----------------------------------------------------
In the lawsuit captioned Christopher Cruckshank, on behalf of
himself and all others similarly situated, the Plaintiff, v.
Freedom Mortgage Corporation, the Defendant, Case No. 2:16-cv-
00011-AYS (E.D.N.Y.), the Court certified Settlement Classes:
a. Class A consisting of (a) all individuals (b) with a New
York address (c) who were sent a letter from Freedom to
Plaintiffs' motion for preliminary approval (d) which was
Not returned as undeliverable (e) on or after a date one
year prior to the filling of this action and or before
August 30, 2016, (f) concerning a mortgage loan that
Freedom began servicing while the mortgage loan was in
default (g) where the letter in question either (1) only
listed the unpaid principal balance of the debt or (2)
failed to disclose that Freedom was a debt collector or
(3) failed to disclose that the letter was an attempt to
collect a debt or (4) otherwise allegedly violated
FDCPA or the Real Estate Settlement Procedures Act.
b. Class B consisting of (a) all individuals (b) with a New
Jersey address (c) who were sent a letter from Freedom in
a form materially identical or substantially similar to
Plaintiffs' Motion for Preliminary Approval (d) which was
not returned as undeliverable (e) on or after a date one
year prior to the filing of this action and on or before
August 30, 2016, (f) concerning a mortgage loan that
Freedom began servicing while the mortgage loan was in
default (g) where the letter in question either (1) only
listed the unpaid principal balance of the debt or (2)
failed to disclose that Freedom was a debt collector or
(3) failed to disclose that the letter was an attempt to
collect a debt or (4) otherwise allegedly violated the Fair
Debt Collection Practices Act or the Real Estate Settlement
Procedures Act".
As the term defined in the Agreement, Freedom shall make these
payments:
Class Recovery:
Freedom will create a notional fund of $268,000 (Settlement
Fund), which the Settlement Administrator will distribute
pro rata among the Class Members who did not exclude
themselves and who returned an Approved Claim, Claimants
will receive a pro rata share of the Settlement Fund by the
check. Checks issued to Claimants will void 60 days from
the date of issuance. If any portion of the Settlement Fund
remains after the voids date on the Claimants' checks,
these remaining funds will be returned to Freedom.
No Claimant will be entitled to receive an award from the
Settlement Fund of more than $1,000,000 dollars, which
amount represents the maximum statutory damages available
to individuals under FDCPA.
Relief to Plaintiffs:
Freedom shall pay $1,000,000 to Christopher Cruckshank for
his statutory damages plus and additional $1,500,000 as an
incentive award for his representation of Class A.
Freedom shall pay $1,000,000 to Jonbu Adebo for his
statutory damages plus additional $1,500.00 as an incentive
award for his representation of Class B.
Attorneys' Fees and Costs:
Freedom shall pay Law Offices of Gus Michael Farinella, PC,
$50,000.00 for their attorneys' fees and costs incurred in
the action. Law Offices of Gus Michael Farinella, PC shall
not request any additional fees or costs from Freedom or
any members of either of the Settlement Classes.
Upon payment of the foregoing, Freedom shall have no
further obligation with respect to any other costs or Class
Counsels' fees, costs, and expenses, or the fees, costs, or
expenses of any other attorney on behalf of Plaintiffs or
any member of either of the Settlement Classes.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=4Lt1pqQh
GREEN TREE: Bid for Class Certification in "Torno" Suit Denied
--------------------------------------------------------------
Judge Andrew P. Gordon denied the motion for class certification
filed in the case captioned CRYSTAL TORNO, Plaintiff, v. GREEN
TREE SERVICING, LLC, et al., Defendants, Case No. 2:15-cv-01018-
APG-PAL (D. Nev.).
Crystal Torno sought to certify two classes, one against Green
Tree Servicing, LLC and the other against Federal National
Mortgage Association ("Fannie Mae"). Torno alleged these
defendants recorded an affidavit of authority to conduct a
foreclosure sale that falsely stated Green Tree had the power of
sale. Torno sought to certify a class of homeowners for whom
Green Tree recorded an affidavit of authority identifying itself
as the current beneficiary of record when it had already assigned
the deed of trust to a third party prior to recording the notice
of default to which the affidavit was attached. Torno sought to
certify a similar class of homeowners for whom Fannie Mae caused a
false affidavit executed by Green Tree to be recorded. The
defendants opposed class certification on numerous grounds.
Judge Gordon denied the motion for class certification because
Torno has not met her burden of showing that common issues
predominate.
"Considering the balance between individual and common issues,
Torno has not shown that the initial inquiry of whether a pre-
notice assignment was effective can be established with common
proof, as opposed to an individualized inquiry in each case. She
also has not demonstrated that awards of statutory damages and
attorney's fees are capable of classwide resolution as opposed to
an individualized good cause evaluation for each class member
given their specific circumstances," the judge said.
In sum, the judge found that Torno has not presented evidence
sufficient for him to find the proposed classes are "sufficiently
cohesive to warrant adjudication by representation" and that class
treatment will "achieve economies of time, effort, and expense,
and promote . . . uniformity of decision as to persons similarly
situated, without sacrificing procedural fairness or bringing
about other undesirable results."
A full-text copy of Judge Gordon's July 12, 2017 order is
available at https://is.gd/AimZF7 from Leagle.com.
Crystal Torno, Plaintiff, represented by Amanda L. Stevens --
astevens@baileykennedy.com -- Bailey Kennedy, LLP, David H.
Krieger, Haines & Krieger, LLC, Dennis L. Kennedy --
dkennedy@baileykennedy.com -- Bailey Kennedy, George Haines,
Haines and Krieger, LLC, Leoncio A. Gil, III --
lgil@cdklawfirm.com -- Craddock, Davis & Krause, LLP & Paul C.
Williams -- pwilliams@baileykennedy.com -- Bailey Kennedy, LLP.
Green Tree Servicing, LLC, Federal National Mortgage Association,
Defendants, represented by Jacob D. Bundick, Greenberg Traurig,
LLP, Jennifer L. Gray, Greenberg Traurig, LLP, pro hac vice,
Leslie A.S. Godfrey, Greenberg Traurig, LLP, Tami D. Cowden,
Greenberg Traurig, Michael R. Hogue, Greenberg Traurig, LLP & Mark
E. Ferrario, Greenberg Traurig.
GUELPH DENTAL: Faces Class Action Over Sterilization Issues
-----------------------------------------------------------
Ryan Flanagan and Abigail Bimman, writing for CTV Kitchener,
report that there's still no word on when a Guelph dental clinic
closed for the past three weeks due to sterilization issues will
reopen -- and now it's facing a legal challenge as well.
The Eramosa Road practice known as both Guelph Dental Associates
and Growing Smiles has been closed since late June.
A public health inspector -- called in to investigate after a
young Guelph Dental Associates patient developed a bacterial
infection -- found that the clinic wasn't properly sanitizing its
equipment.
As of July 18, nothing had been said publicly about when the
clinic might reopen. Public health authorities have said it will
only happen once they are certain the clinic will abide by proper
sterilization practices.
While the clinic remains closed, an Oakville-based lawyer has
started the process of filing a class-action lawsuit against it.
Gary Will of Will Davidson LLP says he has signed up three Guelph
Dental Associates patients, and believes hundreds more will
eventually join up.
"What we will seek to do is hold the dental clinic accountable for
its (wrongdoing) and get compensation for people who have been put
through enormous unnecessary stress," lawyer Gary Will said in an
interview.
In theory, all of the practice's 3,600 patients would be eligible
for the lawsuit.
A claim will be brought forward, after which the lawsuit will need
a court approval before it can move ahead. Will says the suit
will be seeking millions of dollars in damages. [GN]
HALLIBURTON ENERGY: "Guerrero" Stayed Pending Ruling in Morris
--------------------------------------------------------------
In the case captioned LUIS GUERRERO, on behalf of himself, all
others similarly situated, and on behalf of the general public,
Plaintiffs, v. HALLIBURTON ENERGY SERVICES, INC.; and DOES 1-100,
Defendants, No. 1:16-cv-1300-LJO-JLT (E.D. Cal.), Judge Lawrence
J. O'Neill of the U.S. District Court for the Eastern District of
California granted the Defendant's motion to stay and held in
abeyance the Defendant's motion to compel arbitration until the
Supreme Court issues its decision in Morris v. Ernst & Young, LLP.
This is a putative class action lawsuit brought by the Plaintiff
who was formerly employed by the Defendant, seeking to represent a
class composed of all persons who are employed or have been
employed by the Defendant in the State of California as hourly,
Non-Exempt truck workers, industrial truck workers, industrial
truck drivers, industrial vehicle drivers, industrial workers,
and/or other similar job designations and titles during the period
of the relevant statute of limitations, and several derivative
sub-classes. The Plaintiff alleges that the Defendant violated
provisions of the California Labor Code, Business and Professions
Code, and several of the Industrial Welfare Commission's Wage
Orders for at least four years prior to the 2016 filing of this
action in failing to pay all straight time wages, failing to pay
overtime, failing to pay all wages due at the time of termination,
and for unfair business practices.
The Court previously adjudicated two of the Defendant's motions
pursuant to Federal Rule of Civil Procedure 12(b)(6), and provided
the Plaintiff with one final opportunity to amend the deficiencies
it identified in his first amended complaint. The Plaintiff
subsequently filed the SAC, and Defendant answered. Now before
the Court are (i) the Defendant's motion to compel individual
arbitration and (ii) the Defendant's protective motion to stay
pending a Supreme Court decision, or alternatively, pending
appellate review of any denial of the Defendant's pending motion
to compel.
Notwithstanding its position that Morris does not apply in this
case, the Defendant argues that the Court should stay this case
pending the Supreme Court's decision in Morris because its
position is that neither party would be harmed by a stay and
because a stay would further the interests of judicial economy and
efficiency. The Plaintiff opposes, contending that he and the
putative class would suffer prejudice if the Court stays the case,
that the Defendant has not shown that it would be harmed absent a
stay, and that the duration of the requested stay is improper.
The Court has determined that Morris controls in this case. This
determination is also relevant to one of the considerations it
must undertake in adjudicating the Defendant's motion to stay this
case -- the orderly course of justice measured in terms of the
simplifying or complicating issues, proof, and questions of law
which could be expected to result from a stay. Regardless of
whether the Supreme Court affirms or overrules Morris, the issues
before the Court will be simplified. The McElrath court's
observation applies in this case -- if the Supreme Court reverses
Morris, the Court is likely to grant the Defendant's motion to
compel arbitration, and if the Supreme Court affirms Morris, the
Court is likely to deny this motion. The Court therefore finds
that the judicial economy factor weighs in favor of granting a
stay.
The Court also considered, under CMAX, Inc. v. Hall, the damage to
the Plaintiff if the stay is granted, and the hardship that the
Defendant will suffer if the stay is denied. Overall, the CMAX
factors incline the Court to grant the Defendant's motion to stay
this case pending the Supreme Court's decision in Morris. While
the Plaintiff has demonstrated that he and the putative class
members could be harmed by this stay, the hardship to all parties
in moving forward with class litigation at this juncture and the
orderly course of justice ultimately persuade the Court to
exercise its discretion and stay this case.
For these reasons, the Court granted the Defendant's motion to
stay and held in abeyance the Defendant's motion to compel
arbitration until the Supreme Court issues its decision in Morris.
Within 14 days of the Supreme Court's decision in Morris, the
parties must file a joint status report of how they wish to
proceed in light of that decision.
A full-text copy of the Court's July 21, 2017 memorandum decision
and order is available at https://is.gd/vRpG8F from Leagle.com.
Luis Guerrero, Plaintiff, represented by David Thomas Mara, Turley
& Mara Law Firm, APLC.
Luis Guerrero, Plaintiff, represented by Jamie Kathryn Serb --
jserb@turleylawfirm.com -- Turley & Mara Law Firm, APLC, Jessica
Renee Corrales, Turley Law Firm, APLC, Jill Marie Vecchi, Turley &
Mara Law Firm, APLC, Katharine McCall, Turley Law Firm & William
Turley -- bturley@turleylawfirm.com -- Turley & Mara Law Firm,
APLC.
Halliburton Energy Services, Inc., Defendant, represented by Amy
Elaine Beverlin -- abeverlin@mcguirewoods.com -- McGuireWoods LLP,
Sabrina Alexis Beldner -- sbeldner@mcguirewoods.com -- McGuire
Woods LLP, Sylvia Jihae Kim -- skim@mcguirewoods.com --
Mcguirewoods Llp & Matthew C. Kane -- mkane@mcguirewoods.com --
McGuire Woods LLP.
HAM FARMS: "Lopez" Labor Suit Seeks Unpaid Wages, Overtime
----------------------------------------------------------
Adan Lopez, Francisco Mendez, Ezequiel Aburto-Hernandez, Elena
Rafael-Peralta, Jose Pablo Sandoval-Montalvo, And Jose Jimenez-
Olivarez, Alejandro Martinez-Mendez, on behalf of themselves and
other similarly situated persons, Plaintiff, v. Ham Farms, LLC,
Ham Produce, LLC, Ismael Pacheco, Pacheco Contractors, Inc., Hugo
Martinez, Gutierrez Harvesting, LLC, Roberto Torres-Lopez, 5G
Harvesting, LLC, Rodrigo Gutierrez-Tapia, Sr. and Cirila Garcia-
Pineda, Defendants, Case No. 2:17-cv-30 (E.D. N.C., June 30,
2017), claims unpaid wages at the overtime and/or the minimum rate
required by the Fair Labor Standards Act, liquidated damages for
failure to pay all wages when due and other related violations of
the Migrant and Seasonal Agricultural Worker Protection Act and
the North Carolina Wage and Hour Act.
Plaintiffs are migrant farm workers who harvested sweet potatos at
Ham Farms in Greene County, North Carolina. They were brought in
by farm labor contractors Cirila Garcia-Pineda, Rodrigo Gutierrez-
Tapia and Gutierrez Harvesting, LLC. [BN]
The Plaintiff is represented by:
Robert J. Willis, Esq.
LAW OFFICE OF ROBERT J. WILLIS, P.A.
P.O. Box 1828
Pittsboro, NC 27312
Tel: (919)821-9031
Fax: (919)821-1763
488 Thompson Street
Pittsboro, NC 27312
Email: rwillis@rjwillis-law.com
HANDI-HOUSE MFG: Faces "Brantley" Suit in Southern Georgia
----------------------------------------------------------
Leroy Brantley, Jr., Harold H. Hicks, Roger Smith and Shon Butler,
on their own behalf and on behalf of all others similarly
situated, Plaintiffs, v. Handi-House Mfg. Co., Handi-House
Financial Corporation and Handi-House Rent to Own, LLC as well as
James Akridge, John Wilkerson, Donald Flanders, Stephanie Flanders
and Brenda Monroe Williamson, Defendants, Case No. 6:17-cv-00089
(S.D. Ga., June 29, 2017), seeks to recover damages, minimum
wages, liquidated damages, reasonable attorneys' fees and cost
resulting from common law usury and for violation of the
Thirteenth Amendment to the United States Constitution, the
Racketeer Influenced and Corrupt Organizations Act, Georgia
Industrial Loan Act, Georgia Payday Lending Act, Georgia Minimum
Wage Law and Fair Labor Standards Act.
Plaintiffs are African-American males employed by the Defendant in
various stages of construction and manufacturing of portable
buildings at the Defendant's manufacturing plant located in
Swainsboro, Emanuel County, Georgia.
According to the complaint, Plaintiffs were coerced to take cash
loans of $20.00 cash, allowing Defendants to withhold their
paychecks and subsequently tender in cash the difference between
that paycheck and $26.00, rounded in Defendants' favor. Defendants
charge their employees $6.00 interest for every week-long loan of
$20.00, they are charging an effective weekly interest rate of
30%. This brings down their net pay to below mandated minimum wage
rates.
Hicks expressed interest in working as a truck driver for Handi-
House, but was told that they do not hire black drivers.
Plaintiffs are represented by:
V. Sharon Edenfield, Esq.
Joe E. Mathews, Jr., Esq.
EDENFIELD, COX, BRUCE & CLASSENS, P.C.
115 Savannah Ave.
P.O. Box 1700
Statesboro, GA 30459
Telephone: (912) 764-8600
Facsimile: (912) 764-8862
Email: sharri@edenfieldlaw.com
matt@edenfieldlaw.com
- and -
John J. Czura, esq.
JOHN J. CZURA P.C.
3602 Wheeler Road
Augusta, GA 30909
Telephone: (706) 868-5254
Email: john@czuralaw.com
- and -
Travers W. Paine, III, Esq.
TRAVERS W. PAINE III, P.C.
560 Ninth Street
Augusta, GA 30901
Telephone: (706) 922-3548
Facsimile: (706) 922-3549
Email: tpaine@painefirm.com
- and -
Jeffrey F. Peil, Esq.
Charles T. Huggins, Jr., Esq.
CHARLES T. HUGGINS, JR., P.C.
7013 Evans Town Center Blvd., Suite 502
Evans, GA 30809
Telephone: (706) 210-9063
Facsimile: (706) 210-9282
Email: jpeil@hugginsfirm.com
cthjr@hugginsfirm.com
HOOAH SECURITY: "Hunt" Sues Over Unpaid Overtime Wages
------------------------------------------------------
Henry Hunt, on behalf of himself and all other similarly situated
employees, Plaintiffs, v. Hooah Security Services, LLC and Rick
Bailey, Defendants, Case No. 2:17-cv-02449 (W.D. Tenn., June 29,
2017), seeks unpaid overtime compensation, liquidated damages,
interest and attorneys' fees and costs pursuant to the Fair Labor
Standards Act.
Defendants operate a security company based out of Knoxville
Tennessee where Plaintiff worked from approximately May 12, 2017,
until approximately June 11, 2017. [BN]
The Plaintiff is represented by:
Emily S. Emmons, Esq.
GILBERT RUSSELL McWHERTER SCOTT BOBBITT PLC
341 Cool Springs Blvd, Suite 230
Franklin, TN 37067
Telephone: (615) 354-1144
Email: eemmons@gilbertfirm.com
HSBC BANK: Must Produce Unredacted HK Wire Transfer Spreadsheets
----------------------------------------------------------------
The United States District Court for the Central District of
California issued an Order denying Defendant's Motion for
Reconsideration in the case captioned RAMIRO GIRON; NICOLAS J.
HERRERA; and ORLANDO ANTONIO MENDEZ, Plaintiffs, v. HSBC BANK USA,
N.A.; and DOES 1 through 100, inclusive, Defendants, Case No.
2:15-cv-08869-ODW(JCx)(C.D. Cal.).
The order in question requires HBUS to produce unredacted
spreadsheets disclosing the names and information of individuals
whose wire transfers went through HBUS as an intermediary to Hong
Kong. Not wanting to comply with the order, HBUS moves this Court
to reconsider the Magistrate Judge's decision.
This case arises from a pyramid scheme where investors were
allegedly defrauded. After United States authorities shut down
the operation, the schemers began directing investors to wire
money to Hong Kong instead. As a result, Plaintiffs sued the Hong
Kong and United States banks that they allege participated in
those wire transfers.
A district court has authority to modify or vacate a magistrate
judge's order where it has been shown that the order is clearly
erroneous or contrary to law. The clearly erroneous standard
applies to the magistrate judge's findings of fact, and it is
significantly deferential, requiring a definite and firm
conviction that a mistake has been committed.
The Court determines that the portion of Magistrate Judge
Chooljian's discovery order at issue constitutes a question of
law. As such, the Court reviews de novo whether Plaintiffs are
entitled to information relating to individuals whose wire
transfers to Hong Kong used HBUS as an intermediary.
In their original motion to compel, Plaintiffs argue, inter alia,
that the requested information will establish the existence of a
class. They note that failing to allow such precertification
discovery has been considered an abuse of discretion in the Ninth
Circuit.
HBUS, in contrast, insists that Plaintiffs' only basis for seeking
this information is to search for new class representatives given
that the current named plaintiffs did not execute wire transfers
using HBUS as an intermediary. In its motion for reconsideration,
HBUS cites cases it argues hold that class representatives without
standing cannot use discovery to recruit replacement class
representatives.
In reviewing this issue de novo, the Court sees no question that
this information is relevant and discoverable. De novo review
means the court must consider the matter as if no decision
previously had been rendered
Moreover, even if Plaintiffs really are seeking the information
for the purpose of recruiting new class representatives, the Ninth
Circuit has indicated that blocking such discovery requests is
within a district court's discretion, not that it is required.
Deciding this issue on the basis of whether Plaintiffs are seeking
new class representatives is premature, as there has not been a
determination that the current class representatives are not
viable.
The Court is satisfied that disclosure of the un-redacted wire
transfer spreadsheets does not raise privacy issues that overcome
the relevance of the information. Based on these considerations,
the Court finds that Magistrate Judge Chooljian's order was not
contrary to law.
The Court Denies HBUS's motion for reconsideration.
A full-text copy of the District Court's July 20, 2017 Opinion is
available https://is.gd/gdc0Ad from Leagle.com.
Ramiro Giron, Plaintiff, represented by Christopher H. Hagen --
chris@wardhagen.com -- Ward and Hagen LLP.
Ramiro Giron, Plaintiff, represented by Julio J. Ramos --
ramosfortrustee@yahoo.com -- Law Offices of Julio Ramos, Peter
Conrad Ward, -- pcw@wardhagen.com -- Ward and Hagen LLP & Steven
M. Nunez,3333 Camino Del Rio South, San Diego, CA 92108 Ward and
Hagen LLP.
Nicolas J. Herrera, Plaintiff, represented by Christopher H.
Hagen, Ward and Hagen LLP, Julio J. Ramos, Law Offices of Julio
Ramos, Peter Conrad Ward, Ward and Hagen LLP & Steven M. Nunez,
Ward and Hagen LLP.
Orlando Antonio Mendez, Plaintiff, represented by Christopher H.
Hagen, Ward and Hagen LLP, Julio J. Ramos, Law Offices of Julio
Ramos, Peter Conrad Ward, Ward and Hagen LLP & Steven M. Nunez,
Ward and Hagen LLP.
HSBC Bank USA, N.A., Defendant, represented by Camille A. Cameron
-- camille.cameron@katttenlaw.com -- Katten Muchin Rosenman LLP,
Stuart M. Richter -- stuart.richter@kattenlaw.com -- Katten Muchin
Rosenman LLP & Gregory S. Korman -- greg.korman@kattenlaw.com --
Katten Muchin Rosenman LLP.
HUNTINGTON BANCSHARES: 6th Cir. Flips Dismissal of Majestic Suit
----------------------------------------------------------------
The United States Court of Appeals, Sixth Circuit, issued an
Opinion reversing the District Court Order granting Defendant's
Motion to Dismiss the case captioned MAJESTIC BUILDING
MAINTENANCE, INC., Plaintiff-Appellant, v. HUNTINGTON BANCSHARES
INCORPORATED, d/b/a The Huntington National Bank, Defendant-
Appellee, No. 16-4342 (6th Cir.). The case is remanded to the
District Court to allow Plaintiff an opportunity to amend the
complaint and conduct discovery.
Plaintiff Majestic Building Maintenance, Inc., appeals from the
order entered by the district court granting the motion to dismiss
of Defendant Huntington Bancshares, Inc., d/b/a The Huntington
National Bank, dismissing all of Plaintiff's claims against
Defendant for violating the Uniform Commercial Code, whereby
Defendant refused to assume liability for monies paid out of
Plaintiff's bank account on four fraudulent checks.
Plaintiff specializes in commercial cleaning services. In November
2010, Plaintiff, through its president, Luther McNeil (McNeil),
opened a business checking account with Defendant and received a
"Master Services Agreement" that contained the rules and
regulations for business accounts.
McNeil opened the account at a computer repair shop with
assistance from a representative of Defendant. After opening the
account, McNeil ordered hologram checks from a third party as a
protective measure to avoid fraudulent activity on Plaintiff's
account.
On November 24, 2014, McNeil noticed four unauthorized checks that
had been debited from Plaintiff's account totaling $3,973.96. The
unauthorized checks did not contain the hologram that McNeil
ordered for Plaintiff's business account checks, and the check
numbers on the fraudulent checks were duplicative of checks that
Plaintiff had already written and that Defendant had properly
paid.
Defendant to request reimbursement for the fraudulent checks
debited from Plaintiff's account. Defendant responded in a letter
stating that "reasonable care was not used in declining to use our
Check Positive Pay/Reverse Positive Pay services, which
substantially contributed to the making of the forged item(s), and
that [a]s a result, we will not reimburse you for these
unauthorized/forged item(s)."
Plaintiff filed a putative class action complaint in district
court pursuant to the Class Action Fairness Act of 2005 (CAFA),
alleging that Defendant: (1) breached its obligations under U.C.C.
Section 4-401, codified at O.R.C. Section 1304.30(A), when it made
unauthorized payments from four fraudulent checks that were not
properly payable; and (2) unreasonably shifted all liability to
Plaintiff and improperly disclaimed its responsibility to act in
good faith and exercise ordinary care by incorporating such terms
and standards into the Agreement, in violation of U.C.C.
The district court granted Defendant's motion to dismiss.
The district court held that Defendant is not liable for the loss
associated with the cashing of the unauthorized checks on
Plaintiff's account because the Agreement does not violate Section
1304.03(A) or Section 1304.30(A).
The district court concluded that the Agreement is not manifestly
unreasonable and does not absolve Defendant of its duties to act
in good faith and exercise ordinary care because several
provisions in the Agreement plainly reaffirm [Defendant's] duties
to act in good faith and exercise ordinary care.
The district court thus found that the terms and conditions of the
Agreement which shifted liability to Plaintiff for any fraudulent
activity occurring on its account did not violate Section
1304.03(A) or Section 1304.30(A), and pursuant to the Agreement,
Defendant was not liable for Plaintiff's loss.
Plaintiff argues that Defendant violated Section 1304.03(A) by
disclaiming all responsibility through its Agreement.
Plaintiff further argues that Defendant violated Section
1304.30(A) by charging Plaintiff for four unauthorized checks.
Section 1304.30(A) provides that a bank may charge a customer's
account for an item that is properly payable from that account.
Relevant Legal Principles
Section 1304.03(A) explains that the effect of the provisions of
this chapter may be varied by agreement, but the parties to the
agreement cannot disclaim a bank's responsibility for its lack of
good faith or failure to exercise ordinary care or limit the
measure of damages for the lack or failure.
Notwithstanding, the parties may determine by agreement the
standards by which the bank's responsibility is to be measured if
those standards are not manifestly unreasonable.
Sufficiency of Plaintiff's Allegations
Plaintiff argues that Defendant violated Sec. 1304.03(A) by
attempting to absolve itself of its duties to exercise ordinary
care and act in good faith by inserting the contested provision
into the Agreement.
The district court dismissed Plaintiff's contention on the basis
that other provisions in the Agreement plainly reaffirm
[Defendant's] duties to act in good faith and exercise ordinary
care. The district court thus concluded that because other
provisions in the Agreement purportedly acknowledge Defendant's
duties of ordinary care and good faith, the provision at issue
does not run afoul of Section 1304.03(A).
The Sixth Circuit finds that the district court erroneously and
prematurely dismissed Plaintiff's putative class action complaint.
First and foremost, Plaintiff properly alleged that the provision
at issue violates Section 1304.03(A) because it unreasonably
disclaims Defendant's basic duties of ordinary care and good
faith. In order to survive Defendant's motion to dismiss,
Plaintiff must allege that the standards regulating Defendant's
responsibility to monitor Plaintiff's account for fraudulent
activity were manifestly unreasonable.
Plaintiff states a plausible claim that such standards are
unreasonable; Plaintiff contends that the contested provision
essentially allows Defendant to proclaim that it is not
responsible for any unauthorized transaction that occurs on
Plaintiff's account.
Secondly, the district court's brief analysis of the other
provisions in the Agreement was unnecessary. Plaintiff's dispute
was not with the other provisions in the Agreement that the
district court discussed in its opinion. The complaint
specifically challenged the provision related to Defendant's fraud
prevention services and that provision's absolute disclaimer of
liability.
Again, Plaintiff states a plausible claim that it is unreasonable
for the provision at issue to disclaim Defendant's basic duties if
the customer does not enroll in and pay extra for the unspecified
fraud prevention services.
Third, some of the district court's findings are not supported by
the record. The district court stated that "the complaint does not
allege that Defendant breached its duties in processing the four
forged checks. This holding is erroneous.
Paragraph 99 of the complaint alleges that Defendant breached its
obligation to Plaintiff under the UCC when it made unauthorized
payments and charged $3,973.96 against Plaintiff's account upon a
fraudulent presentment of the altered checks. The complaint
identifies the bases for Defendant's breach by specifically
alleging that the four unauthorized checks were obviously altered,
out of sequence, and did not match Plaintiff's typical checks.
Contrary to what the district court found, the Sixth Circuit finds
that the language in the complaint expressly alleges that
Defendant breached its duties to Plaintiff when it credited the
four forged checks against Plaintiff's account.
In conclusion, the Sixth Circuit finds that Plaintiff has alleged
facts that, if accepted as true, would be sufficient to state a
claim to relief that is plausible on its face. Because the
U.C.C., and by implication the O.R.C., expressly forbids a bank
from disclaiming all of its liability to exercise ordinary care
and good faith, Plaintiff's complaint survives Defendant's motion
to dismiss. Therefore, the Sixth Circuit holds that the district
court erred in dismissing Plaintiff's complaint.
The Sixth Circuit reverses the district court's order of dismissal
and remands with instructions to allow Plaintiff an opportunity to
amend the complaint and conduct discovery.
A full-text copy of the Sixth Circuit's July 20, 2017, Opinion is
available at https://is.gd/6580Cz from Leagle.com.
ARGUED: Troy J. Doucet -- troy@doucet.law.com -- DOUCET &
ASSOCIATES, CO., L.P.A., Dublin, Ohio, for Appellant.
Lisa M. Ghannoum -- lghannoum@bakerlaw.com -- BAKER & HOSTETLER
LLP, Cleveland, Ohio, for Appellee.
ON BRIEF: Troy J. Doucet, Zachary T. Donovan, DOUCET & ASSOCIATES,
CO., L.P.A., Dublin, Ohio, for Appellant.
Lisa M. Ghannoum, Brett A. Wall, Esq. -- bwall@bakerwall.com --
Kenneth G. Prabucki, Esq. -- kprabucki@bakerlaw.com -- BAKER &
HOSTETLER LLP, Cleveland, Ohio, for Appellee.
INGENIOUS MED: "Chappell" Labor Case Seeks Unpaid Overtime Wages
----------------------------------------------------------------
Sunnie Chappell, individually and on behalf of others similarly
situated, Plaintiff, v. Ingenious Med, Inc., Defendant, Case No.
1:17-cv-02444 (N.D. Ga., June 29, 2017), seeks to recover overtime
pay, liquidated damages, prejudgment interest, costs and
attorney's fees under the Fair Labor Standards Act.
Defendant is a technology company that provides, among other
services and/or products, technical support for software/platforms
used by medical providers throughout the country where Plaintiff
works at their location at 400 Galleria Parkway SE, Suite 1600,
Atlanta, Georgia, 30339, as a Tier 1 Product Support Specialist.
[BN]
Plaintiff is represented by:
Jerilyn E. Gardner, Esq.
Marcus G. Keegan, Esq.
Jerilyn E. Gardner, Esq.
KEEGAN LAW FIRM, LLC
2987 Clairmont Road NE, Suite 225
Atlanta, GA 30329
Tel: (404)842-0333
Fax: (404)920-8540
Email: mkeegan@keeganfirm.com
jgardner@keeganfirm.com
JAKE PAUL: Neighbors Mull Class Action Over Public Nuisance
-----------------------------------------------------------
Sam Gutelle, writing for Tube Filter, reports that as the wild
rager depicted in "It's Everyday Bro" makes clear, Jake Paul likes
to have a good time all the time.
The social star, who has more than 8.5 million subscribers on
YouTube and is the leader of a growing posse of influencers dubbed
Team 10, knows how to entertain himself and his rapidly increasing
fanbase, but there's at least one group that's not interested in
joining the party: Paul's neighbors.
The news team at Los Angeles station KTLA5 has shared a video
detailing the fraught relationship between Paul and the other
residents who live on his West Hollywood street, the latter of
whom may sue the top creator if he does not cut out his antics.
So, what's it like to live next to Jake Paul at the Team 10 house?
As KTLA5 reports, it involves constant noise, commotion, and being
forced to bear witness to a number of at-home pranks of escalating
potential danger. In one stunt, he lit furniture on fire in his
empty pool, creating a conflagration that rose above his roof.
Meanwhile, on the street, Paul's fans -- many of whom are tween
and teen girls affectionally called "Paulers" -- congregate in
hopes of meeting their favorite star. Paul hasn't kept his
address a secret and the resulting attention from his admirers has
been plentiful.
And how does Paul respond to the criticism from his neighbors? As
he is a caricature of a self-absorbed online video star, he
decided to "dab on them haters," performing the dance move in
front of KTLA5's cameras before contributing to one of the best
Vine memes ever.
But if his exploits persist, Paul may need to stop dancing for a
bit in order to mount a legal defense. KTLA5 noted that his
neighbors will soon meet with city officials. Based off the
advice they receive, they could launch a class action lawsuit that
would look to declare Paul as a public nuisance.
Paul doesn't seem to be too worried about that threat, though. In
fact, he's taunting the neighbors just a touch on Twitter.
Regardless of the outcome, you can rest assured Paul will welcome
and exploit the added attention. And other legal challenges
aside, I don't know whether he can also be held accountable for
the crime of releasing a song as bad as "It's Everyday Bro," but
if that charge can work its way into the case, I'd happily serve
as a witness for the prosecution. [GN]
JUST BORN: Court Denies Bid to Dismiss "White"
----------------------------------------------
Judge Nanette K. Laughrey of the U.S. District Court for the
Western District of Missouri, Central Division, denied the
Defendant's motion to dismiss the case captioned DARYL WHITE, JR.,
Individually and on behalf of all others similarly situated,
Plaintiffs, v. JUST BORN, INC., Defendan, Case no.: 2:17-cv-04025-
C-NKL (W.D. Mo.).
Just Born manufactures Hot Tamales(R) and Mike and Ike(R) candies
which are regularly sold at grocery stores, convenience stores,
and other food retail outlets throughout Missouri and the rest of
the United States. White bought opaque, cardboard containers of
the candies for about $1 apiece at a Dollar Store in Missouri, for
his personal use. His lawsuit focuses on Just Born's packaging of
the candies.
White alleges that he attached importance to the size of the candy
boxes, and was misled to believe that he was purchasing more
Product than was actually received. He alleges that boxes are
uniformly under-filled or slack-filled; the slack-filled space
serves no purpose; and had he known the boxes were substantially
slack-filled, he would not have purchased the products or would
have purchased them on different terms. He alleges that he
suffered an ascertainable loss as a result of Just Born's unlawful
conduct because the actual value of the Products as purchased was
less than the value of the Products as represented. White alleges
that he would likely purchase the Products in the future if the
Products complied with applicable laws.
White filed this lawsuit in state court as a putative class
action. In Count I, he claims a violation of the Missouri
Merchandising Practices Act ("MMPA") for a Missouri Consumer
Subclass, and he requests injunctive relief and damages under the
statute. Count II is a claim for unjust enrichment brought on
behalf of All Classes (class members in all states who purchased
the products), in which White requests restitution or disgorgement
of Just Born's economic enrichment. Just Born removed the action
to Federal court.
Just Born moves to dismiss Count I for four reasons: (i) a
reasonable consumer would not be deceived by the packaging; (ii)
slack-fill is not by itself impermissible under federal or state
law, violation of food-labeling regulations does not support a
finding of liability under the MMPA, and White does not
sufficiently allege that the slack-fill is non-functional or
deceptive; (iii) White lacks standing to pursue injunctive relief;
and (iv) White fails to state an ascertainable injury under the
MMPA. In addition, Just Born argues that Count II for unjust
enrichment should be dismissed because Count I fails to state a
claim.
Judge Laughrey held that the analysis consistent with Missouri law
leads to the conclusion that White has plausibly alleged a claim
under the MMPA and that reasonableness is an issue of fact, which
cannot be resolved on a motion to dismiss. White has also
sufficiently alleged scienter for purposes of the allegation that
Just Born omitted material facts. With respect to the allegation
of an ascertainable loss, Judge Laughrey said White sufficiently
alleges that the packaging was misleading and that he did not
obtain what he bargained for, thus she has plausibly alleged an
ascertainable loss under the MMPA. As to standing to pursue
injunctive relief under Count I, as discussed, White has, at this
stage of the litigation, adequately alleged entitlement to
injunctive relief. Therefore, Judge Laughrey denied Just Born's
motion to dismiss the request for injunctive relief.
Judge Laughrey concluded that White states a claim under the MMPA.
It is generally permissible to pursue alternative theories at the
pleading stage, and courts generally permit unjust enrichment
claims to proceed alongside a properly-pled MMPA claim.
Therefore, Count II will not be dismissed for mootness.
Accordingly, Judge Laughrey denied the Defendant's motion to
dismiss.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/H4NLUP from Leagle.com.
Daryl White, Jr, Plaintiff, represented by Scott A. Kamber, pro
hac vice.
Daryl White, Jr, Plaintiff, represented by Stephen F. Gaunt,
Steelman, Gaunt & Horsefield & David L. Steelman, Steelman, Gaunt
& Horsefield.
Just Born, Inc., Defendant, represented by Alan L. Rupe --
Alan.Rupe@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith,
Eric Y. Kizirian, Lewis Brisbois Bisgaard & Smith --
Leo.Bautista@lewisbrisbois.com -- pro hac vice & Leo A. Bautista -
- Eric.Kizirian@lewisbrisbois.com -- Lewis Brisbois Bisgaard &
Smith, pro hac vice.
KONA GRILL: Court Denies Bid to Certify Employee Class
------------------------------------------------------
In the lawsuit styled MIGUEL CEDENO, Individually, and on behalf
of All Others Similarly Situated, the Plaintiffs, v. KONA GRILL,
INC. and KONA MACADAMIA, INC., the Defendants, Case No. 8:17-cv-
01039-JSM-AEP (M.D. Fla.), the Hon Judge James S. Moody, Jr.
entered an order denying Plaintiff's request to conditionally
certify a nationwide collective action of:
"all current and former employees of Kona Grill, Inc. after
June 1, 2014, who worked overtime but were not paid overtime
wages, and who held the following positions: sous chef,
assistant general manager of restaurant, assistant manager of
restaurant, site development manager, lease administrator,
development procurement manager, facilities manager,
purchasing/facilities coordinator, project designer, manager
of architecture, accounts payable manager, accountant, senior
manager of tax, manager of IT, senior tax analyst, marketing
manager, marketing coordinator, applications system support
analyst, recruiter, training manager, and training
coordinator".
The Court said, "Tellingly, neither Plaintiff, nor Ethelbah,
identify a single individual who desires to join this action. They
also fail to even state that they are aware of other Kona
employees who desire to opt-in this action. And no individuals
have filed notices of consent to join this action. The failure to
identify other interested employees is particularly glaring when
one considers the size of the proposed class, which encompasses
employees working in 46 different restaurant locations. Even
though the threshold to conditionally certify a class is low, it
is not invisible. Accordingly, Plaintiff's motion fails on this
basis. However, even if Plaintiff had provided sufficient evidence
that other employees desire to opt-in this action, Plaintiff fails
to establish that the employees are similarly situated. Typically,
conditional certification involves a group of employees who share
the same job title and duties, like (in the restaurant context) a
class of servers, bartenders, or food runners. Plaintiff's
proposed class includes twenty-one different job titles that are
completely unrelated with respect to their duties, compensation,
supervision, location, and exemption classification. The only
similarity is that the twenty-one job titles were allegedly
misclassified as exempt. But this is too broad."
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=cgglxljX
KURTIS LOY: Dismissal of Petition vs. Judges Affirmed
-----------------------------------------------------
In the case captioned ERIC M. MUATHE, et al., Appellants, v.
HONORABLE KURTIS LOY, et al., Appellees, No. 116,284 (Ark. App.),
the Court of Appeals of Kansas affirmed the district court
decision dismissing the Appellants petition against the Appellees
and imposing sanctions in the form of filing restrictions against
them.
On July 22, 2015, the Appellants filed a class action petition for
injunctive relief against several district judges, several senior
judges, the disciplinary administrator, the attorney general, and
several attorneys. The petition also named the Kansas Commission
on Judicial Qualifications Panels "A" and "B" as Defendants but
did not identify any of the members of the panels by name.
In the petition, the Appellants requested that a permanent
injunction be entered disqualifying the Appellee Judges from
participating in court actions in which their impartiality might
reasonably be questioned and for the appointment of an independent
oversight committee to investigate the appellants ethical
complaints against the Appellees. Because of the nature of the
case, Chief Justice Lawton Nuss assigned Senior Judge Jack Burr to
hear the case.
Over the next several months, each of the Appellees sought to have
the action dismissed. On Sept. 28, 2015, several of the Appellees
filed a motion for sanctions against the Appellants. These
Appellees argued that the Appellants had a history of filing
frivolous lawsuits and requested that filing restrictions be
placed on the Appellants.
Ultimately, the Appellants filed a voluntary dismissal of this
action on March 21, 2016. On April 4, 2016, the Appellants filed
a motion for a change of judge, a motion for a continuance, and a
motion to withdraw their voluntary dismissal.
The district court considered all of these motions at a hearing
held on April 18, 2016. The senior judge noted that the action
was dismissed upon filing of the notice of dismissal and found no
reason to reinstate the action. In denying the motion, the senior
judge noted that the motion did not indicate any reason why he
should be disqualified and also found it to be procedurally barred
because it was filed outside the time period set for in K.S.A. 20-
311f. After noting that the Appellants did not appear to oppose
the motion, the senior judge found that they had not done
meaningful legal research in filing this action. Moreover, he
found that the various Appellants had filed multiple other cases
that could be considered frivolous or harassing. Thus, he
concluded that it would be appropriate to impose reasonable filing
restrictions.
At the request of assistant attorney general Stephen Phillips, the
senior judge did not include Noah Day in the filing restrictions.
Evidently, Day had reached an agreement with the attorney general
to dismiss the three small claims cases he had filed because they
were similar to claims that he had asserted in federal court. As
such, the senior judge also dismissed Day's small claims cases,
and Day has not appealed from that decision. The assistant
attorney general had removed Day from the list of parties upon
whom filing restrictions were being imposed.
The Appellants appeal from the district court's decision
dismissing their petition against the Appellees and imposing
sanctions in the form of filing restrictions against them.
On appeal, the Appellants contend that the district court lost
jurisdiction to impose sanctions after they had voluntarily
dismissed their lawsuit. This Court agrees that they had the
right to voluntarily dismiss their lawsuit pursuant to K.S.A. 2016
Supp. 60-241(a) (1) and -- to their credit -- they did so.
Nevertheless, the district court still had the authority to rule
on a motion for sanctions that was filed prior to the dismissal.
Thus, this Court concluded that the district court did not lose
its jurisdiction to rule on the pending motion for sanctions filed
by the Appellees.
The Appellants also challenge the sanctions that were imposed by
the district court. Based on this Court's review of the record,
it finds that there is substantial evidence to support the
decision reached by the senior judge to impose sanctions.
Furthermore, it sees nothing in the record to suggest that the
imposition of sanctions to be arbitrary, capricious, or
unreasonable under the unique circumstances presented.
Accordingly, it finds no abuse of discretion or error of law in
the district court's imposition of the filing restrictions on the
Appellants.
The Appellants also contend that the district court failed to rule
on their objections to the journal entry prepared by the assistant
attorney general and submitted to the district court pursuant to
Supreme Court Rule 170. According to the record on appeal, this
Court finds that Rule 170 was appropriately followed in this case.
The assistant attorney general filed a Rule 170 notice stating
that he had served the appellants with the proposed journal entry.
He then submitted the proposed journal entry and the Appellants'
objections to the district court. In turn, the district court
decided to enter the journal entry as submitted. Thus, this Court
does not find that the district court erred in entering the
journal entry without a hearing to resolve the dispute between the
parties regarding its contents.
The Appellants argue that it was improper for the district court
to dismiss the small claims cases filed by Day at the same hearing
in which it heard the pending motions in this case. None of the
issues relating to the small claims actions filed by Day are
properly before this Court on appeal. Because the Appellants were
not parties to the small claims actions, they lack standing to
challenge the rulings in those cases.
In addition, the Appellants contend that the assistant attorney
general who represents the judges who are named as parties to this
case has a conflict of interest. This Court says the Appellants
do not support their argument with any authority other than citing
several rules of professional responsibility. Moreover, they do
not show how these rules are applicable in this case. Thus, this
Court does not find that the Appellants' argument on this issue to
be persuasive.
Finally, the Appellants contend that it is an abuse of discretion
for a Judge to hear or determine the legal sufficiency of a change
of judge motion filed against the same Judge. A review of the
record reveals that they filed a motion to change judge pursuant
to K.S.A. 20-311d. In turn, the senior judge initially ruled on
the motion when he heard the other pending motions in this case.
As such, this Court finds that the district judge followed the
appropriate procedure as set forth in the statute.
For these reasons, this Court affirmed the district court's
decision.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/LjPf1V from Leagle.com.
Eric M. Muathe, James Beckley, Jr., Kasey King, and Travis
Carlton, appellants pro se.
Stephen Phillips -- smp@hpsslaw.com -- assistant attorney general,
and Derek Schmidt, attorney general, for appellees Honorable
Kurtis Loy, Honorable Andrew Wachter, Honorable Robert Fleming,
Honorable Lori Fleming, Honorable Jeffry Jack, Honorable Oliver
Kent Lynch,
Honorable Janice Russell, Honorable Richard Smith, Honorable John
Sanders, Stanton Hazlett, and Tim Grillot.
Shon D. Qualseth -- shon.qualseth@trqlaw.com -- and Whitney
Casement -- wcasement@gseplaw.com -- assistant attorneys general,
and Derek Schmidt, attorney general, for appellees Kansas Judicial
Qualifications Panels A and B.
KYLE MUEHLHAUSER: Summary Judgment in "Clar" Suit Affirmed
----------------------------------------------------------
The Court of Special Appeals of Maryland affirmed the judgment of
the circuit court in the case captioned FELICIA M. BARLOW CLAR, ET
AL., v. KYLE MUEHLHAUSER, ET AL., No. 0851, September Term, 2016
(Md. Ct. Spec. App.).
On March 24, 2015, appellants, Felicia M. Barlow Clar, Jennifer
Kalita, and Bernice Bangs, filed a class action complaint against
appellees, Kyle Muehlhauser and The Rams Head at Savage Mill LLC
(RHSM), in the Circuit Court for Howard County, alleging intrusion
upon seclusion through visual surveillance with prurient intent,
breach of contract, negligence, and violations of Md. Code (2002,
2012 Repl. Vol.), Criminal Law Article (CL) section 3-902 et seq.
On October 30, 2015, appellants filed an amended class action
complaint, adding a claim for intentional infliction of emotional
distress against both appellees and claims for negligent hiring,
retention, supervision, selection and qualification, and negligent
entrustment against RHSM.
On April 4, 2016, appellants filed a second amended class action
complaint that added appellees, Restaurant Management LLC (RM) and
The Rams Head Group (RHG), as defendants. That same day,
appellants also filed a motion for class certification, which
appellees opposed. Thereafter, appellees filed a motion for
summary judgment.
Following a motions hearing on June 2, 2016, the circuit court
denied appellants' motion for class certification and granted
summary judgment in appellees' favor. An order reflecting the
court's rulings was entered on June 7, 2016.
On appeal, appellants first argued that the circuit court erred in
granting summary judgment because "factual disputes render the
factual intrusion and surveillance questions appropriate for jury
consideration." Specifically, appellants aver that Muehlhauser's
assertion of the Fifth Amendment in response to numerous
questions, coupled with other relevant evidence, "required [the
court] to draw the adverse inferences against [him] that he
secretly recorded women (including Appellants) using the women's
restroom of the Rams Head Tavern on dates between January 1, 2011
and May 9, 2014." Similarly, they asserted that evidence that
Muehlhauser deleted 12 of the 16 video files identified by HCPD
constituted spoliation, which also allowed the circuit court to
draw adverse inferences against him. Lastly, appellants contended
that all of the corporate appellees are liable for Muehlhauser's
alleged misconduct.
In response, appellees argued that the circuit court properly
granted summary judgment. According to Muehlhauser, the court
correctly determined that there was no evidence to support
appellants' claims. Agreeing with Muehlhauser that appellants
were unable to "demonstrate this threshold requirement," the
corporate appellees assert that, as a result, the Special Appeals
Court need not address appellants' causes of action against the
corporate appellees.
It was undisputed that none of the appellants were at Rams Head
Tavern on May 9, 2014, the only date on which there exists
evidence that Muehlhauser placed a video camera inside a restroom
in the establishment. Appellants also admitted that "they are not
in possession of a video depicting them in the interior of a
restroom inside any of the Rams Head locations," and that they
have no "personal knowledge demonstrating the existence of [such]
video."
Because appellants failed to demonstrate that they were videotaped
while using the restroom at Rams Head Tavern or that a video
recording device was present while they used that restroom, the
appellate court found that their claims for intrusion upon
seclusion, breach of contract, negligence, violations of CL
section 3-902 et seq., and intentional infliction of emotional
distress fail. Consequently, the appellate court held that their
claims for negligent hiring, retention, supervision, selection and
qualification, and negligent entrustment against RHSM also fail.
Thus, the appellate court found that the circuit court properly
granted summary judgment in favor of all appellees.
As the appellate court has concluded that the circuit court
properly granted summary judgment in favor of appellees, it held
that its disposition of that issue renders moot appellants'
challenge to the court's denial of their motion for class
certification.
A full-text copy of the Court's July 12, 2017 opinion is available
at https://is.gd/0KovNY from Leagle.com.
LANTANA LAWN: "Buenaventura" Labor Suit Seeks Unpaid OT Wages
-------------------------------------------------------------
Griceldo Leonides-Buenaventura, and all others similarly situated,
Plaintiff, v. Lantana Lawn Care L.L.C. and Steve Herring,
Defendants, Case No. 3:17-cv-01740 (N.D. Tex., June 30, 2017),
requests double damages and reasonable attorney fees from
Defendants, jointly and severally, pursuant to the Fair Labor
Standards Act for all overtime wages still owing along with court
costs, interest and any other relief.
Plaintiff worked for Defendants as a landscaper and laborer from
September 12, 2014 through June 14, 2017. [BN]
Plaintiff is represented by:
Robert Manteuffel, Esq.
J.H. Zidell, Esq.
Robert L. Manteuffel, Esq.
Joshua A. Petersen, Esq.
J.H. ZIDELL, P.C.
6310 LBJ Freeway, Ste. 112
Dallas, TX 75240
Tel: (972) 233-2264
Fax: (972) 386-7610
Email: zabogado@aol.com
rlmanteuffel@sbcglobal.net
josh.a.petersen@gmail.com
LGI HOMES: Court Denied Aguirre, et al. Bid to Certify Class
------------------------------------------------------------
In the lawsuit entitled LORRIE SELBY AND SONIA AGUIRRE, the
Plaintiffs, v. LGI HOMES CORPORATE, LLC, the Defendant, Case No.
4:17-cv-00100-ALM-KPJ (E.D. Tex.), the Hon. Judge Kimberley C.
Priest Johnson entered an order denying Lorrie Selby and Sonia
Aguirre's motion to certify class.
The Court said, "On July 18, 2017, Plaintiffs and Defendant LGI
Homes Corporate, LLC filed a joint motion to certify Class and
agreed notice to opt-in members. Thus, for the foregoing reasons,
the Court finds Plaintiffs' motion is denied as moot. The Court
ordered that the hearing set on August 10, 2017, at 2:00 p.m. is
cancelled."
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=FxBCMYMN
LIFE CARE: Court Dismisses "Johnson" Labor Suit with Prejudice
--------------------------------------------------------------
Judge Cormac J. Carney of the U.S. District Court for the Central
District of California granted the parties' stipulation to dismiss
with prejudice the case captioned SHANNON JOHNSON, individually
and on behalf of all others similarly situated; J CAROLE CHERRY,
individually and on behalf of all others similarly situated;
NICOLE SENESAC, individually and on behalf of all others similarly
situated, Plaintiffs, v. LIFE CARE CENTERS OF AMERICA, INC., a
Tennessee corporation, Defendant, Case No. 2:15-cv-02594-CJC-PLA
(C.D. Cal.).
The Court has received and reviewed the Joint Stipulation to
Dismiss the Class Action Complaint. Because there has been no
class certified in this action, no court approval is necessary for
the voluntary dismissal of the action. Therefore, the Plaintiffs'
individual claims in the Class Action Complaint are dismissed with
prejudice. All of the Plaintiffs' putative class claims on behalf
of the alleged putative class members are dismissed without
prejudice.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/gjCidA from Leagle.com.
Shannon Johnson, Plaintiff, represented by Tyler J. Belong, Hogue
and Belong APC.
Shannon Johnson, Plaintiff, represented by Jeffrey L. Hogue --
jhogue@hoguebelonglaw.com -- Hogue and Belong APC.
J Carole Cherry, Plaintiff, represented by Tyler J. Belong, Hogue
and Belong APC & Jeffrey L. Hogue, Hogue and Belong APC.
Nicole Senesac, Plaintiff, represented by Tyler J. Belong, Hogue
and Belong APC & Jeffrey L. Hogue, Hogue and Belong APC.
Life Care Centers of America Inc, Defendant, represented by
Elizabeth Staggs Wilson -- estaggs-wilson@littler.com -- Littler
Mendelson PC, John Kevin Lilly -- klilly@littler.com -- Littler
Mendelson PC, Michelle Rapoport -- mrapoport@littler.com --
Littler Mendelson PC & Rachael Sarah Lavi -- rlavi@littler.com --
Littler Mendelson PC.
LINCOLN REGIONAL: Worker Sues Over Denied Overtime Pay
------------------------------------------------------
Lori Pilger, writing for Lincoln Journal Star, reports that a
longtime Lincoln Regional Center employee has filed a lawsuit
against the state alleging he and other workers at regional
centers across the state are being denied overtime pay they've
earned.
Lincoln resident Brian Lasalle named the State of Nebraska, the
Department of Health and Human Services, as well as each of the
state's regional centers in Lincoln, Hastings and Norfolk, and the
Beatrice State Developmental Center.
In a complaint filed in U.S. District Court, his attorney,
Kathleen Neary, said Lasalle has worked as a security specialist
and medication aide at the state psychiatric hospital since 1993.
Starting in July 2016, he and other hourly rate employees at
state-run hospitals have been denied pay for earned and approved
paid time off if the hours were combined with hours of paid time
off that exceeded 40 hours in a week.
In other words, if Lasalle worked 32 hours Monday through
Thursday, took eight hours of paid leave Friday, then was required
to work eight hours Saturday, the state would only pay him for 40
hours, not 48, Neary said.
She believes the same practice is in place at the Hastings and
Norfolk regional centers and at BSDC and goes against the current
union contract.
Denying Lasalle and others who are in the same situation the right
to use paid vacation leave or sick leave "has resulted and will
continue to result in harm and actual loss of negotiated job-
related benefits to the employee(s)," Neary wrote in the lawsuit.
She said the defendants are willingly violating Nebraska law.
Specifically, she alleges it is a violation of the Nebraska Wage
Payment and Collection Act.
The state has a policy of not commenting on open lawsuits and
hasn't yet responded to the case in court other than to ask for
the case, originally filed in Lancaster County District Court, to
be moved to federal court.
Neary is seeking to have the case certified as a class-action
lawsuit and is asking a judge to declare the conduct a violation
of workers' rights, to order the state to stop the practice and to
compensate workers for the wages due, plus interest. [GN]
LTD FINANCIAL: Placeholder Motion for Class Certification Filed
---------------------------------------------------------------
In the lawsuit captioned JACQUELINE OLSON, Individually and on
Behalf of All Others Similarly Situated, the Plaintiff, v. LTD
FINANCIAL SERVICES, LP, the Defendant, Case No. 2:17-cv-01028
(E.D. Wisc.), the Plaintiff asks the Court to enter an order
certifying a proposed class in this case, appointing the Plaintiff
as its representative, and appointing Ademi &
O'Reilly, LLP as its Counsel, and for such other and further
relief as the Court may deem appropriate.
The Plaintiff further asks the Court to stay this class
certification motion until an amended motion for class
certification is filed, and that the Court grant the parties
relief from the local rules' automatic briefing schedule and
requirement that Plaintiff file a brief and supporting documents
in support of this motion.
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit in Damasco instructed plaintiffs to file a certification
motion with the complaint, along with a motion to stay briefing on
the certification motion until discovery could commence. Damasco
v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled,
Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015).
As this motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
a one paragraph, single page motion to certify and stay should
suffice until an amended motion is filed, the Plaintiffs contend.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=JGjHr6eB
The Plaintiff is represented by:
Shpetim Ademi, Esq.
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Denise L. Morris, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482 8000
Facsimile: (414) 482 8001
E-mail: sademi@ademilaw.com
jblythin@ademilaw.com
meldridge@ademilaw.com
dmorris@ademilaw.com
LUXURY SUITES: Court Approves Settlement in "Sinanyan"
------------------------------------------------------
The United States District Court for the District of Nevada issued
an Order granting parties' joint motion for an Order for
provisional approval of proposed settlement agreement in the case
captioned ALICE SINANYAN, an individual; JAMES KOURY, an
individual and trustee of the Koury Family Trust; and SEHAK TUNA,
an individual, on behalf of themselves and others similarly
situated, Plaintiffs, v. LUXURY SUITES INTERNATIONAL, LLC, a
Nevada limited liability company; RE/MAX PROPERTIES, LLC, a Nevada
limited liability company; JETLIVING HOTELS, LLC, a Nevada limited
liability company; and DOES 1 through 100, inclusive, Defendants,
Case No. 2:15-cv-00225-GMN-VCF (D. Nev.).
This action involves claims brought by Alice Sinanyan (Sinayan)
and Jim Koury (), individually and on behalf of a putative class
of approximately 347 condominium owners, against property rental
manager Luxury Suites International, LLC (LSI) and its predecessor
Re/Max Properties, LLC (Re/Max).
Plaintiffs allege that LSI violated its contractual, statutory,
and common law duties by failing to disclose its collection of a
resort fee from rental guests, and the parties have now reached a
settlement.
Pending before the Court is the Joint Motion for an Order, filed
by both parties requesting that the Court grant provisional
approval of the proposed settlement agreement and preliminarily
certify Plaintiffs' proposed class action for purposes of
settlement.
The Motion contends, inter alia, that the Court should (1) certify
the proposed Putative Class and (2) grant preliminary approval of
the Proposed Settlement. The Ninth Circuit has declared that a
strong judicial policy favors settlement of class actions.
However, a class action may not be settled without court approval.
The court must determine whether the proposed settlement is
fundamentally fair, adequate, and reasonable.
The Court finds that Plaintiffs have has met the numerosity,
commonality, typicality, and adequacy requirements under Rule
23(a) as well as the certification requirements under Rule 23(b).
Numerosity
Courts have held that numerosity is satisfied when the class size
exceeds forty members. he Putative Class consists of approximately
347 unit owners who contracted with LSI for rental management of
their units during the relevant period. Therefore, the Court can
safely conclude that the Putative Class is sufficiently numerous
such that the joinder of each member would be impracticable.
Commonality
A class has sufficient commonality `if there are questions of fact
and law which are common to the class.
Here, the Amended Complaint raises several common questions of law
and fact, including (1) whether LSI failed to disclose the resort
fee to the Putative Class and (2) whether LSI failed to treat the
resort fee as gross rental revenue. If Plaintiffs continued to
press this action, the answers to these questions would result in
class-wide resolution of the claims asserted. Therefore, the Court
finds that Plaintiffs have satisfied the commonality requirement.
Typicality
Typicality refers to the nature of the claim or defense of the
class representative, and not to the specific facts from which it
arose or the relief sought.
Plaintiffs contracted with LSI for rental management of their
condominium units at The Signature and allegedly failed to receive
their portion of resort fees collected by LSI from rental guests.
Thus, the named Plaintiffs' claims and the nature of their alleged
losses are sufficiently similar to the Putative Class's claims and
alleged losses to be considered typical.
Adequacy of Representation
In Hanlon, the Ninth Circuit identified two issues for determining
the adequacy of representation: (1) whether the named plaintiffs
and their counsel have any conflicts of interest with other class
members; and (2) whether the named plaintiffs and their counsel
will prosecute the action vigorously on behalf of the class.
In the instant case, Plaintiffs seek appointment of Wolf, Rifkin,
Shapiro, Schulman & Rabkin, LLP, (Counsel) as class counsel. There
is nothing in the record suggesting that Plaintiffs or Counsel
have any conflict of interest with other absent class members.
Plaintiffs' claims thus appear completely aligned with [that] of
the class, and there is no conflict apparent at this stage.
Rule 23(b)
This case satisfies Rule 23(b)(3)'s requirements. The common
questions of whether Plaintiffs and the Putative Class were
entitled to a share of the resort fee and whether LSI had a duty
to disclose that it was collecting resort fees predominate over
any individual questions. Moreover, adjudicating this matter as a
class action is a superior approach to resolving the instant
controversy because it avoids the dangers of duplicative
litigation and the unfairness of inconsistent judgments.
Preliminary Approval of the Proposed Settlement
Prior to formal class certification, there is an even greater
potential for a breach of fiduciary duty owed the class during
settlement. Accordingly, such agreements must withstand an even
higher level of scrutiny for evidence of collusion or other
conflicts of interest than is ordinarily required under Rule 23(e)
before securing the court's approval as fair.
Proposed Class Members' Share of the Settlement
Under the Proposed Settlement, the amount to be paid to the entire
Putative Class will not exceed 50% of the total Settlement Amount,
which itself represents roughly 10% of the Putative Class's
maximum estimated damages. [I]t is well-settled law that a cash
settlement amounting to only a fraction of the potential recovery
does not per se render the settlement inadequate or unfair.
Proposed Award of Attorneys' Fees
Here, Plaintiffs seek an award of attorney's fees in the amount of
$131,250.00, or 25 percent of the common fund. Finding the
percentage requested by Plaintiffs not unreasonable, the Court
approves the attorneys' fee request on a preliminary basis.
Treatment of Class Representatives
The Proposed Settlement provides for class representative payments
of $20,000.00 to Sinanyan and $10,000 to Koury. Without
satisfactory elaboration on these points, the Court will reduce
Plaintiffs' incentive awards following the final fairness hearing
to a reasonable amount.
Proposed Class Notice and Administration
A class action settlement notice is satisfactory if it generally
describes the terms of the settlement in sufficient detail to
alert those with adverse viewpoints to investigate and to come
forward and be heard.
The Court finds that the notice and exclusion from proposed by
Plaintiffs meets the requirements of Federal Civil Procedure Rule
23(c)(2)(B) and that the proposed mail delivery is also
appropriate in these circumstances.
Motion for an Order is Granted.
A full-text copy of the District Court's July 20, 2017 Opinion is
available https://is.gd/rm2edV from Leagle.com.
Alice Sinanyan, Plaintiff, represented by Don Springmeyer --
dspringmeyer@wrslawyers.com -- Wolf, Rifkin, Shapiro, Schulman and
Rabkin, LLP.
Alice Sinanyan, Plaintiff, represented by Justin C. Jones, Jones
Lovelock, 400 S 4th Street, Suite 500, Las Vegas, NV 89101 & Royi
Moas -- rmoas@wrslawyers.com -- Wolf, Rifkin, Shapiro, Schulman &
Rabkin, LLP.
James Koury, Plaintiff, represented by Don Springmeyer, Wolf,
Rifkin, Shapiro, Schulman and Rabkin, LLP, Justin C. Jones, Jones
Lovelock & Royi Moas, Wolf, Rifkin, Shapiro, Schulman & Rabkin,
LLP.
Luxury Suites International, LLC, Defendant, represented by Amy R.
Lancaster, Law Offices of Gary P. Sinkeldam APC , 844 E Sahara
AveLas Vegas, NV 89104-3017, Erin L.
Plunkett,eplunkett@ranallilawyers.com -- Law Office of Gary P.
Sinkeldam, Gary Sinkeldam, Law Office of Gary P. Sinkeldam --844 E
Sahara Ave; Las Vegas, Nevada 89104 -- John Scott Burris --
j.scott.burris@wilsonelser.com -- Wilson Elser Moskowitz Edelman &
Dicker & Reuben H. Cawley, Wilson, ElserMoskowitz, Edelman &
Dicker LLP-- 300 South 4th Street, 11th Floor, Las Vegas, NV 89101
Jab Affiliates, LLC dba Las Vegas Suites, Defendant, represented
by Kevin E. Beck, Beck Pingel3137 East Warm Springs Road, Suite
100, Las Vegas, NV 89120& Steven R. Dunn, Dunn Firm, P.C., pro hac
vice.12801 North Central ExpresswaySuite H 250Dallas, TX 75243-
1716
JetLiving Hotels, LLC, Defendant, represented by Andrew M.
Legolvan, Dentons US LLP & Craig J. Mariam -- cmariam@grsm.com --
Gordon & Rees LLP.
MARTHA STEWART: Court Narrows Claims in "Raden"
-----------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division, issued an Order granting in part and
denying in part the Defendants' Motion to Dismiss the case
captioned ALICE RADEN and BOBBIE MOORE, individually and on behalf
of all others similarly situated, Plaintiffs, v. MARTHA STEWART
LIVING OMNIMEDIA, INC., a Delaware Corporation, and MEREDITH
CORPORATION, an Iowa Corporation, Defendants. Case No. 16-12808.
Plaintiffs Alice Raden and Bobbie Moore, Plaintiffs, filed this
class action complaint alleging that Defendants Martha Stewart
Living Omnimedia, Inc. and Meredith Corporation Defendants
violated Michigan's Personal Privacy Protection Act,(PPPA) and
were unjustly enriched by disclosing sensitive and statutorily
protected information to third parties.
Presently before the court is Defendants' motion to dismiss, filed
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).
Applicable Standard
Where a Rule 12(b)(1) motion contains a factual attack, the court
need not construe the allegations in the non-moving party's favor
because the burden of proving jurisdiction is on the party
asserting it. Moreover, it is recognized that a party faced with a
Rule 12(b)(1) motion to dismiss may not rest on the truth of the
facts asserted in its pleadings.
When a defendant moves for a motion to dismiss under both Rule
12(b)(1) and (b)(6), the court should consider the 12(b)(1) motion
first because the 12(b)(6) motion is moot if subject matter
jurisdiction does not exist.
Plaintiffs Raden and Moore are prior subscribers to Martha Stewart
Living, a magazine owned and operated by Defendants. Raden
purchased her one-year subscription to the magazine. Moore
purchased her most recent subscription to Martha Stewart Living
from Defendants in May 2015. Both Raden and Moore did not give
Defendants permission or prior notice that their personal reading
information would be disclosed to data mining companies or
unrelated third party companies.
Plaintiffs contend that this disclosure of information violates
their rights under the PPPA. Further, Plaintiffs allege that
Defendants profited from the disclosures of their personal reading
information by selling their information to third parties.
Plaintiffs filed a class action complaint on behalf of all
Michigan residents who purchased a subscription to Martha Stewart
Living magazine.
Defendants' motion makes two arguments: (1) Plaintiffs lack
standing to make a claim because they have suffered no actual
injury and (2) Plaintiffs' unjust enrichment claim fails because
they have not lost anything of value.
Standing
To establish standing, a plaintiff must show that: (1) he has
suffered an injury in fact that is concrete and particularized and
actual or imminent"; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.
This Court recognizes that the PPPA gives Plaintiffs a legally
protected interest in the privacy of their reading choices.
Therefore, the Court finds that Plaintiffs have standing to sue.
Michigan Personal Privacy Protection Act
The PPPA provides that a person engaged in the business of selling
at retail, renting, or lending books or other written materials
shall not knowingly disclose to any person, other than the
customer, a record or information that personally identifies the
customer as having purchased, leased, rented, or borrowed those
materials from the person engaged in the business.
The amended PPPA, by the Michigan legislature in Senate Bill 490,
states that an individual who suffers actual damages as a result
of a violation of this act may bring a civil action against the
person that violated this act and may recover both of the
following:(a) The customer's actual damages, including damages for
emotional distress (b)Reasonable costs and attorney fees.
Defendants argue that Senate Bill 490 replies retroactively, and
therefore Plaintiffs are unable to proceed with their suit without
actual damages.
Plaintiffs disagree, and contend that Senate Bill 490 should not
be applied retroactively. At least two cases resolved in this
district agree with Plaintiff and held that Senate Bill 490 is not
retroactive.
The reading of the statute makes clear the statute went into
effect on July 31, 2016. At the top of Senate Bill 490, the
effective date is listed as July 31, 2016. Plaintiffs filed their
complaint on July 31, 2016 -- the day the amended PPPA went into
effect.
Therefore, the amended PPPA is the controlling version of the
statute in this matter and Plaintiffs are bound by the amended
act's statutory requirements.
Under the amended PPPA, an individual can only recover monetarily
if they have suffered from actual damages. In their complaint,
Plaintiffs do not allege any actual damages from Defendants'
alleged disclosure of their information.
Therefore, this Court dismisses Count I of Plaintiffs' complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Unjust Enrichment
An unjust enrichment claim under Michigan law requires proof of
the following: (1) receipt of a benefit by the defendant from the
plaintiff and (2) an inequity resulting to the plaintiff because
of the retention of the benefit by the defendant.
Plaintiffs have adequately pled a claim for unjust enrichment.
Defendants alleged disclosures of Plaintiffs' information led to a
benefit for Defendants monetary gain from selling the information
to third parties.
Defendants' motion to dismiss is Granted in part as to Count I and
Denied in part as to Count II, Count I of Plaintiffs' complaint is
dismissed.
A full-text copy of the District Court's July 20, 2017 Opinion is
available http://tinyurl.com/y9qxodupfrom Leagle.com.
Alice Raden, Plaintiff, represented by Benjamin Scott Thomassen --
bthomassen@edelson.com -- Edelson PC.
Alice Raden, Plaintiff, represented by Eve-Lynn Rapp --
erapp@edelson.com -- Edelson PC, Henry M. Scharg & Ari J. Scharg -
- ascrag@edelson.com -- Edelson P.C.
Bobbie Moore, Plaintiff, represented by Benjamin Scott Thomassen,
Edelson PC, Eve-Lynn Rapp, Edelson PC, Henry M. Scharg & Ari J.
Scharg, Edelson P.C..
Martha Stewart Living Omnimedia, Inc., Defendant, represented by
Andrew M. Harris -- Andrew.harris@kitch.com -- Kitch, Drutchas,
Wagner, Valitutti & Sherbrook.
Meredith Corporation, Defendant, represented by Jacob A. Sommer --
jake@zwellgin.com -- Zwillgen, PLLC, Lara F. Phillip --
lara.phillips@honigman.com -- Honigman, Miller & Nury R. Siekkinen
-- nury@zwillgen.com -- ZwillGen PLLC.
MAXIM HEALTHCARE: Court Decertifies FLSA Class in "Gordon"
----------------------------------------------------------
In the case captioned MARKISHA GORDON, v. MAXIM HEALTHCARE
SERVICES, INC., Civil Action No. 13-7175 (E.D. Pa.), Judge R.
Barclay Surrick of the U.S. District Court for the Eastern
District of Pennsylvania (i) granted the Defendant's motion to de-
certify the conditionally certified class; (ii) denied the
Plaintiff's motion to certify a class under the Pennsylvania Wage
Payment and Collection Law ("WPCL"); and granted the Defendant's
motion for summary judgment.
This is a purported class action brought under the Fair Labor
Standards Act ("FLSA") and the WPCL. Gordon brings claims on
behalf of herself and others similarly situated against her former
employer, the Defendant. She alleges that Maxim failed to timely
pay her and other home healthcare aides for hours worked.
On April 9, 2014, Gordon filed an Amended Class Action Complaint,
asserting claims for violations of the FLSA and WPCL. She alleges
that the Defendant failed to pay its external employees, such as
Gordon and the other proposed class members, on its regularly-
scheduled payday for work performed during the corresponding pay
period, as required by the FLSA and WPCL.
On July 15, 2014, a Memorandum and Order were entered granting in
part and denying in part the Defendant's Motion to Dismiss the
Amended Complaint. The Court dismissed Gordon's claim under the
WPCL as to any wages due and payable on or before April 9, 2011,
based on the statute of limitations. Maxim's motion to dismiss
was denied in all other respects.
On Dec. 11, 2014, the Plaintiff's Motion for Conditional
Certification with regard to her claims under the FLSA was
granted. Judge Bartle granted conditional class certification
only as to all home healthcare aides employed by Maxim in
Pennsylvania and who are paid beyond scheduled pay dates that fall
on or after April 10, 2011.
Gordon filed the instant Motion for Class Certification on June 8,
2015. The Defendant filed a Response in Opposition and Motion to
De-Certify Conditionally Certified Collective Action Class on Feb.
5, 2016. Gordon filed a Reply and the Defendant also filed a
Reply in support of its Motion to De-Certify. Maxim then filed a
Motion for Summary Judgment, to which the Plaintiff filed a
Response, and the Defendant filed a Reply.
The Court held that the Plaintiffs have failed to meet the
typicality and commonality factors, the predominance requirement
of Rule 23(b)(3), and to establish the superiority requirement of
Rule 23(b)(3). Given the individual inquiries that are associated
with each payment made to each external employee on their damages
model, managing this case as a class action would be untenable.
There is simply no common proof presented to the Court that
supports the Plaintiff's theory of liability or damages.
Accordingly, the Court denied the Plaintiff's request to certify
her claims under the WPCL as a class action under Rule 23.
Noting the light burden placed on the Plaintiffs at the
conditional class certification phase, Judge Bartle concluded that
the Plaintiff had made a modest factual showing that remote
employees worked under a common policy applicable to all home
healthcare aides which resulted in a systematic failure by Maxim
to meet the FLSA requirement of timely payment. The Court finds
that a significant amount of discovery occurred subsequent to
Judge Bartle's decision granting conditional class certification
of the FLSA class. Based upon its thorough review of that
discovery and the entire record before it, the Court is persuaded
that decertification is warranted. Accordingly, the Defendant's
motion to de-certify the conditionally certified class is granted
by the Court.
As to the Defendant's motion for summary judgment, the Court finds
that the Plaintiff's entire Memorandum in opposition to summary
judgment relies on evidence related to the other opt-in
Plaintiffs. She fails to point to any evidence specifically about
herself as the Named Plaintiff representative. In addition,
despite testifying that the services she provided to clients would
be stated specifically in her weekly notes, she failed to submit
any of those notes as evidence in opposition to summary judgment.
The Plaintiff has failed point to a genuine dispute as to any
material fact with respect to the services she provided to
clients, and whether those services qualify under the
companionship services exemption of the FLSA. Based upon her own
testimony, the Plaintiff provided exclusively companionship
services to Maxim clients. As a result, the Court says Defendant
Maxim is entitled to judgment as a matter of law with respect to
Plaintiff Gordon's claims under the FLSA. Thus, the Defendants'
motion for summary judgment is granted by the Court.
A full-text copy of the Court's July 21, 2017 memoradum is
available at https://is.gd/KYVQ33 from Leagle.com.
MARKISHA GORDON, Plaintiff, represented by CHRISTOPHER G. HAYES,
LAW OFFICES OF CHRISTOPHER G. HAYES.
MARKISHA GORDON, Plaintiff, represented by DANIEL C. LEVIN --
dlevin@lfsblaw.com -- LEVIN SEDRAN & BERMAN, WILLIAM T. WILSON --
wtw@becounsel.com -- BAILEY & EHRENBERG PLLC & D. AARON RIHN,
PEIRCE LAW OFFICES.
MAXIM HEALTHCARE SERVICES, INC., Defendant, represented by LINCOLN
O. BISBEE -- lincoln.bisbee@morganlewis.com -- MORGAN LEWIS &
BOCKIUS, SARAH E. BOUCHARD -- sarah.bouchard@morganlewis.com --
MORGAN LEWIS & BOCKIUS LLP, AMANDA C. DUPREE --
amanda.dupree@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP &
PETER DAVID LARSON -- david.larson@morganlewis.com -- MORGAN LEWIS
& BOCKIUS LLP.
MDL 2081: Court Narrows Issues in TBR Antitrust Suit
----------------------------------------------------
Judge Jan E. Dubois of the U.S. District Court for the Eastern
District of Pennsylvania denied in part and granted in part the
motion for summary judgment filed by Ortho-Clinical Diagnostics,
Inc., in the case captioned IN RE BLOOD REAGENTS ANTITRUST
LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS, MDL No. 2081,
Master File No. 09-MD-2081 (E.D. Pa.).
In the multi-district litigation consolidating 33 separate civil
antitrust actions, the plaintiffs, purchasers of traditional blood
reagents (TBRs) alleged that defendants, the two leading producers
of blood reagents -- Ortho and Immucor, Inc. -- conspired to
unreasonably restrain trade and commerce in violation of section 1
of the Sherman Antitrust Act, 15 U.S.C. section 1. Plaintiffs
alleged that Ortho and Immucor conspired to raise prices on TBRs
three times during the class period -- in 2001, 2005, and 2008.
In September 2012, plaintiffs and Immucor reached a settlement.
Ortho, the sole remaining defendant, filed a Motion for Summary
Judgment. In its motion, Ortho argued that:
(1) plaintiffs have not established a basis to apply a per
se antitrust standard,
(2) prices were not raised in parallel in 2005 and 2008,
(3) plaintiffs have not presented sufficient traditional
conspiracy evidence to survive summary judgment, and
(4) the statute of limitations bars plaintiffs' claim for
antitrust damages for purchases made prior to May 18,
2005.
Ortho contended that plaintiffs' claim should be subject to the
Rule of Reason standard, not the per se standard, because
plaintiffs have "[i]n substantial part . . . abandoned their
initial price-fixing theory."
Judge Dubois concluded that plaintiffs have not abandoned their
conspiracy allegations as Ortho contends. The judge will thus
apply a per se standard because plaintiffs alleged an ongoing
conspiracy and are required to present evidence that tends to
exclude the possibility that the price increases were the product
of interdependent conduct in order to survive summary judgment.
Ortho did not contend that the 2001 price increase by Ortho and
Immucor was not parallel. However, it did argue that plaintiffs
have not proffered evidence of parallel pricing as to the 2005 and
2008 price increases. Judge Dubois disagreed and concluded that
plaintiffs' evidence raises a genuine dispute of material fact as
to whether the 2005 and 2008 price increases constitute parallel
conduct.
The judge next considered each of the "plus factors" -- motive to
enter into a conspiracy, actions contrary to interest, and
evidence implying a traditional conspiracy -- in turn.
Judge Dubois concluded that plaintiffs have presented sufficient
evidence to establish that Ortho had a motive to engage in a
price-fixing conspiracy from 2001 to 2008. The judge concluded
that all of the price increases were actions contrary to Ortho's
interest.
Judge Dubois also determined that plaintiffs have produced
sufficient traditional conspiracy evidence to tend to exclude the
possibility that the 2001 price increase was the product of
interdependence as opposed to the product of a price-fixing
conspiracy. However, considering plaintiffs' evidence in its
entirety, the judge concluded that plaintiffs have not produced
sufficient evidence to survive summary judgment as to the 2005 and
2008 price increases. The judge found that plaintiffs'
allegations of pretextual explanations by Ortho and Immucor for
price increases, in particular the 2005 and 2008 increases, are
insufficient to raise an inference of conspiracy.
Finally, Ortho argued that, as a matter of law, recovery of
antitrust damages for plaintiffs' purchases prior to May 18, 2005
is barred by the applicable four-year statute of limitations under
the Sherman Act. Ortho contended that plaintiffs:
(1) were or should have been aware of the facts underlying
their claims prior to the expiration of the statute of
limitations period and
(2) did not exercise reasonable diligence.
However, plaintiffs invoked the fraudulent concealment doctrine in
an effort to toll the statute of limitations and recover damages
that would otherwise be deemed unrecoverable.
Judge Dubois found that those arguments present genuine dispute of
material facts sufficient to require denial of the Motion for
Summary Judgment on the issue of fraudulent concealment.
In summary, Judge Dubois denied Ortho's Motion for Summary
Judgment as to plaintiffs' claims based on the 2001 price increase
but granted the Motion as to plaintiffs' claims based on the 2005
and 2008 price increases. The judge also denied the Motion as to
the issue of fraudulent concealment, allowing plaintiffs' claims
based on the 2001 price increase to proceed to trial.
A full-text copy of Judge Dubois' July 19, 2017 memorandum is
available at https://is.gd/iekhXw from Leagle.com.
MDL 2672: Court Approves $125MM in Atty Fees, Costs
---------------------------------------------------
Judge Charles R. Bryer of the U.S. District Court for the Northern
District of California granted the Plaintiffs' motion for
attorneys' fees and costs relating to the 3.0-liter Settlement in
the case captioned IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING,
SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order
Relates To: Dkt. No. 3396, MDL No. 2672 CRB (JSC) (N.D. Cal.).
This MDL includes actions brought by consumers, dealers,
investors, and government agencies against Volkswagen based on its
use of a defeat device in nearly 600,000 TDI diesel engine
vehicles sold in the United States from 2009 through 2015. After
months of intensive negotiation, the Class Counsel for owners and
lessees of 3.0-liter TDI diesel engine vehicles reached a
Settlement with Volkswagen on Feb. 10, 2017, which the Court
approved on May 17, 2017. The Settlement requires Volkswagen to
provide Class Members with benefits conservatively valued at $902
million.
At the time of final approval, the Class Counsel had not moved for
fees and costs, though they submitted a statement that they would
seek no more than $245 million in combined attorneys' fees and
out-of-pocket costs related to the Settlement. On June 30, 2017,
the Class Counsel submitted its application for $121 million in
attorneys' fees and $4 million in costs. If awarded, Volkswagen
has agreed to pay the Class Counsel's fees and costs in addition
to the benefits provided to Class Members.
Interested parties had 14 days to submit responses or objections
to Class Counsel's motion. No responses or objections were filed.
Having considered the relevant briefing, the Court finds that the
Class Counsel's requested fees are equivalent to 13.4% of the
Settlement value and represent an appropriate fee award in this
case, and the requested costs are reasonable.
The Court therefore awarded the Class Counsel $121 million in
attorneys' fees and $4 million in costs, to be allocated by the
Plaintiffs' Lead Counsel among the PSC firms and additional
counsel performing common-benefit work pursuant to the terms of
Pretrial Order Nos. 7 and 11.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/7G0qFB from Leagle.com.
Nicholas Benipayo, Plaintiff, represented by Robert B. Carey --
rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice.
Nicholas Benipayo, Plaintiff, represented by Steve W. Berman --
steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice
& Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol
Shapiro LLP, pro hac vice.
David Fiol, Plaintiff, represented by William M. Audet, Audet &
Partners, LLP, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP,
Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of
Peter Fredman, Robert B. Carey, Hagens Berman Sobol Shapiro LLP,
pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP,
pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro
LLP, pro hac vice.
Nadine Bonda, Plaintiff, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G.
Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP.
Brian Connelly, Plaintiff, represented by Thomas G. Shapiro.
Nicholas Allen, Plaintiff, represented by Caleb Marker --
caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice &
Charles S. Zimmerman -- charles.zimmerman@zimmreed.com --
Zimmerman Reed, PLLP, pro hac vice.
Brett Alters, Plaintiff, represented by Elizabeth J. Cabraser,
Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff
Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser,
Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser
Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser
Heimann & Bernstein, LLP, Tana Lin -- tlin@kellerrohrback.com --
Keller Rohrback LLP & Todd A. Walburg, Lieff, Cabraser, Heimann,
Bernstein.
Donald Ardine, Plaintiff, represented by Amy Williams-Derry --
awilliams-derry@kellerrohrback.com -- Keller Rohrback L.L.P., Dean
Noburu Kawamoto -- dkawamoto@kellerrohrback.com -- Keller Rohrback
LLP, Derek William Loeser -- dloeser@kellerrohrback.com -- Keller
Rohrback, LLP, Gretchen Freeman Cappio --
gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice,
Lynn L. Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback
L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Annie Argento, Plaintiff, represented by Amy Williams-Derry,
Keller Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP,
Derek William Loeser, Keller Rohrback, LLP, Gretchen Freeman
Cappio, Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko, Keller
Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP.
Arkansas State Highway Employees Retirement System, Plaintiff,
represented by Jai K. Chandrasekhar -- jai@blbglaw.com --
Bernstein Litowitz Berger Grossmann LLP, pro hac vice, James A.
Harrod -- jim.harrod@blbglaw.com -- Bernstein Litowitz Berger
Grossmann LLP, Matthew I. Henzi -- mhenzi@swappc.com -- Sullivan,
War, Niki L. Mendoza, Bernstein Litowitz Berger & Grossmann LLP,
Ross M. Shikowitz -- ross@blbglaw.com -- Bernstein Litowitz Berger
Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law
Offices of Susan R. Podolsky.
Volkswagen Group of America, Inc., Defendant, represented by Amie
Adelia Vague, Lightfoot Franklin & White, Casey Erin Lucier,
McGuireWoods LLP, Charles J. Baker, III, Womble Carlyle Sandridge
and Rice, Colin Hampton Tucker, Rhodes Hieronymus Jones Tucker &
Gable, Dana Woodrum Lang, Womble Carlyle Sandridge and Rice, David
M. Eisenberg, Baker, Sterchi, Cowden & Rice, LLC, Elizabeth L.
Deeley, Kirkland & Ellis LLP, Henry Buist Smythe, Jr., Womble
Carlyle Sandridge and Rice, Howard Feller, McGuireWoods LLP, Hugh
J. Bode, Reminger & Reminger Co LPA, J. Randolph Bibb, Jr., Lewis,
Thomason, King, Krieg & Waldrop, P.C., James K. Toohey, Johns &
Bell LTD, Jeffrey L. Chase, Chase Kurshan Herzfeld & Rufin LLC,
Jeffrey S. Rugg, Brownstein Hyatt Farber Schreck, LLP, Jennifer
Marino Thibodaux, Gibbons PC, John W. Cowden, Baker, Sterchi,
Cowden & Ric, LLC-KCMO, John W. Cowden, Baker Sterchi Cowden and
Rice LLC, John L. Hone, Lipshultz and Hone Chtd, John H. Tucker,
Rhodes Hieronymus Jones Tucker & Gable, Kerry R. Lewis, Rhodes
Hieronymus Jones Tucker & Gable, Kurt E. Lindquist, II, Womble
Carlyle Sandridge & Rice, PLLC, Larry Martin Roth, Rumberger, Kirk
& Caldwell, PA, Michael D. Begey, Rumberger, Kirk & Caldwell, PA,
Michael R. McDonald, Gibbons PC, Natalie Marie Lefkowitz, Chase
Kurshan Herzfeld & Rubin LLC, Ronald G. DeWald, Lipshultz and Hone
Chtd, Russ Ferguson, Womble Carlyle Sandridge & Rice LLP, Ryan
Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Sara
Anne Ford, Lightfoot Ffanklin & White LLC, Seth Abram Schaeffer,
McGuireWoods LLP, Thomas R. Valen, Gibbons PC, William L. Boesch,
Sugarman Rogers Barshak & Cohen, Adam K. Bult, Brownstein Hyatt
Farber Schreck, Allison Rachel McLaughlin, Wheeler Trigg O'Donnell
LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew
R. Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Anne Katherine Guillory,
Dinsmore & Shohl LLP, April L. Watson, Sessions, Fishman & Nathan,
Benjamin K. Reitz, Brownstein Hyatt Farber Schreck, Blake Adam
Gansborg, Wheeler Trigg O'Donnell, LLP, Brett R. Leland, Verrill
Dana LLP, Brian C. Langs, Johnson & Bell LTD, C. Vernon Hartline,
Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Carine M.
Williams, Sullivan & Cromwell LLP, pro hac vice, Caroline M.
Tinsley, BAKER AND STERCHI, LLC, Charles William McIntyre, Jr.,
McGuireWoods LLP, Charles Pendleton Mitchell, Rumberger Kirk &
Caldwell, Christine Kingston, Nelson Mullins Riley & Scarborough
LLP, Christopher Edward Tribe, McGuireWoods LLP Gateway Plaza, Dan
R. Larsen, Dorsey and Whitney LLP, Darrell L. Barger, Hartline
Dacus Barger Dreyer LLP, David L. Ayers, Watkins and Eager PLLC,
David A. Barry, Esq., Sugarman Rogers Barshak & Cohen, David N.
May, Bradshaw Fowler Proctor & Fairgrove, David M.J. Rein,
Sullivan & Cromwell LLP, David T. Schaefer, Dinsmore & Shohl LLP,
Edward W. Hearn, JOHNSON & BELL, PC, Elena Lalli Coronado,
Sullivan and Cromwell, Elizabeth Righton Johnson, Balch & Bingham
LLP, Emily Anne Ellis, Brownstein Hyatt Farber Shreck, Eric R.
Burris, Brownstein Hyatt Farber Schreck, Erin Patricia Mead,
Thorn, Gershon, Tymann & Bonanni, LLP, Gail Ponder Gaines, Barber
Law Firm PLLC, Garrett L. Boehm, Jr., Johnson & Bell LTD, Harlan
I. Prater, IV, Lightfoot, Franklin & White, Hugh Brown McNatt,
McNatt, Greene & Peterson, J. Gordon Cooney, Jr., Morgan Lewis &
Bockius LLP, James L. Hollis, Balch & Bingham, Jeffrey L. Chase,
Herzfeld & Rubin PC, Jimmy B. Wilkins, WATKINS & EAGER, Jo E.
Peifer, Lavin, O'Neil, Ricci, Cedrone & DiSipio, John David Ayers,
WATKINS & EAGER, PLLC, John D. Donovan, Jr., Ropes and Gray LLP,
John Alan Knox, Williams Kastner & Gibbs, John Garrett McCarthy,
Sullivan and Cromwell LLP, pro hac vice, John Thomas Prisbe,
Venable LLP, Jonathan M. Hoffman, MB Law Group, LLP, Joy Goldberg
Braun, Sessions, Fishman, Nathan & Israel, Kenneth Abrams, McGuire
Woods LLP, Kevin P. Polansky, Nelson Mullins Riley & Scarborough
LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Mark A.
Weissman, Herzfeld & Rubin, P.C., pro hac vice, Mary E. Bolkcom,
Hanson Bolkcom Law Group, Ltd., Matthew A. Schwartz, Sullivan and
Cromwell LLP, pro hac vice, Melissa Fletcher Allaman, Nelson,
Mullins, Riley & Scarborough, LLP, Meredith J. McKee, Womble
Carlyle Sandridge & RIice, PLLC, Meredith J. McKee, Womble Carlyle
Sandridge & Rice, Michael Thad Allen, Day Pitney LLP-HTFD, Michael
B. Gallub, Herzfeld and Rubin, pro hac vice, Michael E. Hale,
Barber Law Firm PLLC, Michael L. O'Donnell, Wheeler Trigg
O'Donnell, LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP,
Michael A. Yoshida, MB Law Group, LLP, Mickey W. Greene, Hanson
Bolkcom Law Group, Ltd., Miranda Hanley, Smith Welch Webb & White,
LLC, Ningur Akoglu, Herzfeld & Rubin PC, Patricia Rodriguez
Britton, Nelson Mullins Riley Scarborough LLP, Patrick Demetrios
Grindlay, Paul T. Collins, Nelson Mullins Riley & Scarborough LLP,
pro hac vice, Paul E.D. Darsow, Hanson Bolkcom Law Group, Ltd.,
Paul D. Williams, Day Pitney LLP-Htfd-CT, Richard White Crews,
Jr., Hartline Dacus Barger Dreyer LLP, Righton Johnson, Robert J.
Giuffra, Jr., Sullivan and Cromwell LLP, Ryan P. McCarthy, Morgan,
Lewis & Bockius LLP, Ryan A. Morrison, Dinsmore & Shohl LLP, S.
Keith Hutto, Nelson Mullins Riley & Scarborough, Sarah Motley
Stone, Womble Carlyle Sandridge & Rice, PLLC, Sharon L. Nelles,
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, pro hac vice, Shawn P. George, George & Lorensen, Stanley
Abbott Roberts, McGuireWoods LLP, Stephen D. Bell, Dorsey &
Whitney LLP, Steve S. Tervooren, Hughes Gorski Seedorf Odsen &
Tervooren LLC, Stuart A. Drake, Kirkland and Ellis LLP, pro hac
vice, Suhana S. Han, Sullivan and Cromwell LLP, pro hac vice,
Sverker K. Hogberg, Sullivan & Cromwell LLP, Thomas R. Ferguson,
III, Womble Carlyle Sandridge & Rice, PLLC, Thomas W. Purcell, MB
Law Group LLP, William B. Monahan, Sullivan and Cromwell LLP, pro
hac vice & William Henry Wagener, Sullivan and Cromwell LLP, pro
hac vice.
Audi AG, Defendant, represented by Elizabeth L. Deeley, Kirkland &
Ellis LLP, Matthew H. Marmolejo, Mayer Brown LLP, Michael H.
Steinberg, Sullivan & Cromwell, LLP, Andrew Brian Clubok, Kirkland
& Ellis, pro hac vice, Andrew R. Levin, Sugarman, Rogers, Barshak
& Cohen, P.C., Brett R. Leland, Verrill Dana LLP, David M.J. Rein,
Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP,
Garrett L. Boehm, Jr., Johnson & Bell LTD, J. Gordon Cooney, Jr.,
Morgan Lewis & Bockius LLP, James K. Toohey, Johns & Bell LTD,
John Thomas Prisbe, Venable LLP, Laura Kabler Oswell, Sullivan &
Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP,
Ryan P. McCarthy, Morgan, Lewis & Bockius LLP, Sharon L. Nelles,
Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell
LLP, Stephen D. Bell, Dorsey & Whitney LLP, Stuart A. Drake,
Kirkland and Ellis LLP, pro hac vice & William B. Monahan,
Sullivan and Cromwell LLP.
Volkswagen AG, Defendant, represented by Elizabeth L. Deeley,
Kirkland & Ellis LLP, Matthew H. Marmolejo, Mayer Brown LLP,
Michael H. Steinberg, Sullivan & Cromwell, LLP, Andrew Brian
Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman,
Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.J. Rein,
Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John
D. Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan
& Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP,
Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake,
Kirkland and Ellis LLP, pro hac vice & William B. Monahan,
Sullivan and Cromwell LLP.
Audi of America LLC, Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Andrew R. Levin, Sugarman Rogers
Barshak & Cohen, PC, Andrew R. Levin, Sugarman, Rogers, Barshak &
Cohen, P.C., Brett R. Leland, C. Vernon Hartline, Jr., Hartline
Dacus Barger Dreyer LLP, pro hac vice, Cheryl A. Bush, Bush,
Seyferth & Paige, PLLC, David A. Barry, Esq., Sugarman Rogers
Barshak & Cohen, David M.J. Rein, Sullivan & Cromwell LLP, Laura
Kabler Oswell, Sullivan & Cromwell LLP, Michael R. Williams, Bush
Seyferth & Paige PLLC, Ritchie E. Berger, Esq., Dinse, Knapp &
McAndrew, P.C., Robert J. Giuffra, Jr., Sullivan and Cromwell LLP,
Sharon L. Nelles, Sullivan & Cromwell LLP, Stephen D. Bell, Dorsey
& Whitney LLP, W. Scott O'Connell, Nixon Peabody LLP, pro hac vice
& William B. Monahan, Sullivan and Cromwell LLP.
Volkswagen Group of America, a New Jersey corporation, Defendant,
represented by P. Arley Harrel, Williams Kastner & Gibbs, PLLC,
Gerard Cedrone, Lavin, O'Neil Ricci Cedrone & DiSipio, Kenneth
Abrams, McGuire Woods LLP, Laura Kabler Oswell, Sullivan &
Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP.
Audi of America, Inc., Defendant, represented by Matthew H.
Marmolejo, Mayer Brown LLP, Carine M. Williams, Sullivan &
Cromwell LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth &
Paige, PLLC, Colin H. Tucker, Rhodes Hieronymus Jones Tucker &
Gable, David M.J. Rein, Sullivan & Cromwell LLP, pro hac vice,
John H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, Laura
Kabler Oswell, Sullivan & Cromwell LLP, Melissa Fletcher Allaman,
Nelson, Mullins, Riley & Scarborough, LLP, Michael R. Williams,
Bush Seyferth & Paige PLLC, Robert J. Giuffra, Jr., Sullivan and
Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP.
Dr. Ing. h.c.F. Porsche AG, Defendant, represented by Abby L.
Parsons, King & Spalding LLP, Adam G. Sowatzka, King & Spalding
LLP, Alexander K. Haas, King & Spalding LLP, Andrew R. Levin,
Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.
Fine, King, Spaulding Law Firm, G. Stewart Webb, Jr., Venable LLP,
Garrett L. Boehm, Jr., Johnson & Bell LTD, J. W. Codinha, Nixon
Peabody, LLP, James K. Toohey, Johns & Bell LTD, James K. Vines,
King & Spalding, John Thomas Prisbe, Venable LLP, Joseph Eisert,
King & Spalding LLP, Kenneth Yeatts Turnbull, King & Spalding LLP,
Matthew A. Goldberg, DLA Piper LLP, pro hac vice, Matthew A.
Holian, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Sheldon T.
Bradshaw, KING & SPALDING, Sonya R. Braunschweig, DLA Piper LLP,
W. Scott O'Connell, Nixon Peabody LLP, pro hac vice & William F.
Kiniry, Jr., DLA Piper LLP, pro hac vice.
David Antellocy, Defendant, represented by Thomas Eric Loeser,
Hagens Berman Sobol Shapiro LLP, pro hac vice.Scott Moen,
Defendant, represented by Peter B. Fredman, Law Office of Peter
Fredman, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac
vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro
hac vice.
Porsche AG, Defendant, represented by Alexander K. Haas, King &
Spalding LLP, Christina Courtney Sheehan, Modrall Sperling Roehl
Harris & Sisk PA, Joseph Eisert, King & Spalding LLP, Laura Kabler
Oswell, Sullivan & Cromwell LLP, Matthew A. Goldberg, DLA Piper
LLP, Nathan P. Heller, DLA Piper LLP, Susan Miller Bisong, Modrall
Sperling Roehl Harris & Sisk PA & William F. Kiniry, Jr., DLA
Piper LLP.
Robert Bosch GmbH, Defendant, represented by Matthew D. Slater,
Cleary Gottlieb Steen and Hamilton LLP, pro hac vice, Carmine D.
Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, pro hac vice
& David Lloyd Anderson, Sidley Austin LLP.
Bay Ridge Volvo-American, Inc, Defendant, represented by Natalie
Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC.
Audi USA, Defendant, represented by Laura Kabler Oswell, Sullivan
& Cromwell LLP.
MEDICAL TRANSPORTATION: Drivers Sue Over Pay Dispute
----------------------------------------------------
Samantha Liss, writing for St. Louis Post-Dispatch, reports that
drivers who provided transportation for Medicaid patients in the
District of Columbia allege in a class-action lawsuit that Lake
St. Louis-based MTM is failing to pay them minimum wages and
overtime.
Three drivers from the D.C. area are listed as plaintiffs in the
case, filed July 13 in federal court in the District of Columbia.
The three drivers worked for different subcontractors of MTM,
which are not listed as defendants.
MTM, or Medical Transportation Management, contracts with states
to transport Medicaid recipients to health-care appointments.
"MTM does not pay any drivers, all drivers are paid by the
transportation provider that employs them, furthermore, MTM does
not dictate the drivers' hours or their breaks," MTM said in a
statement provided to the Post-Dispatch.
The lawsuit alleges that MTM's current two-year contract with D.C.
is worth more than $85 million. [GN]
MERCEDES BENZ: Court Narrows Claims in False Advertising Suit
-------------------------------------------------------------
In the case captioned STEVE FERRARI, ET AL., Plaintiffs, v.
MERCEDES BENZ USA, LLC, ET AL., Defendants, Case No. 17-cv-00018-
YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District
Court for the Northern District of California (i) granted the
Motion of Speedway Motorsports, Inc. ("SMI") to Dismiss on grounds
of lack of personal jurisdiction; and (ii) granted in part and
denied in part, with leave to amend, the motions of Mercedes-Benz
USA, LLC ("MBUSA"), Autobahn, Inc. and Automotive, Inc. to dismiss
under Rule 12(b)(6).
The Plaintiffs bring this action against the Defendants Autobahn
on behalf of a putative class and allege claims for fraud;
trespass to chattel; negligent misrepresentation; negligence;
violation of California's False Advertising Law, Business &
Professions Code section 17500; and violation of California's
Unfair Competition Law, Business & Professions Code section 17200.
The action was filed in San Mateo Superior Court on Dec. 20, 2016.
MBUSA removed the action to this Court under the Class Action
Fairness Act. The Plaintiffs filed their First Amended Complaint
("FAC") on Jan. 25, 2017, adding an additional claim for relief
for certified pre-owned vehicle ("CPO") fraud. Because the claims
in the FAC, aside from the CPO Fraud and trespass to chattel
claim, were nearly identical to those alleged a prior action
dismissed by this Court, Ferrari, et al. v. Autobahn, Inc., et
al., Case No. 4:15-cv-04379-YGR, the instant action was related
and reassigned to the undersigned.
The Defendants have each filed a motion to dismiss on grounds of
failure to state a plausible claim against them. Defendant SMI
also moves under Rule 12(b)(1) of the Federal Rules of Civil
Procedure on the grounds that the Court lacks personal
jurisdiction over it.
The Court finds that the evidence in the record does not support a
finding of either general or specific jurisdiction over SMI in
this Court. The Plaintiffs do not dispute this fact, but rather
offer other facts which they contend establish personal
jurisdiction over SMI. They contend that SMI is "connected" with
a California company that distributes zMAX; that bottles of zMAX
include the statement "recommended by" SMI; and SMI is listed as
holder of the copyright on the zmax.com website. None of these
contacts is sufficient to find that SMI is subject to this Court's
jurisdiction. The Plaintiffs' arguments do not support specific
jurisdiction in the face of evidence that SMI does not make or
sell that product. Further, their assertion that SMI's CEO owned
or owns property in California likewise does not support general
or specific jurisdiction here. Consequently, the Court granted
without leave to amend SMI's motion to dismiss for lack of
jurisdiction. The Court does not reach the additional pleading
deficiencies raised by SMI. Defendant SMI is dismissed.
With respect to the Motion of MBUSA to Dismiss under Rule
12(b)(6), the Court granted in part and denied in part MBUSA's
motion. On the first claim for relief, the motion is denied on
the grounds of failure to allege a false or misleading statement
attributable to MBUSA. On the third and fifth claims, the motion
is granted with leave to amend to allege the basis for liability
against MBUSA. On the fourth claim, the Court granted the motion
on the grounds that the claim does not sufficiently allege
reliance and injury. However, the Plaintiffs have satisfactorily
alleged the nature of the misrepresentations and that they are
actionable, such that the other grounds argued are denied. On the
sixth claim, the motion is granted with leave to amend by the
Court to permit the Plaintiffs to allege the elements of
cognizable negligence claim, including a basis for claiming MBUSA
had a duty to exercise control over Autobahn's and Sonic's
conduct. On the derivative seventh and eighth claims, the motion
is granted with leave to amend to allege the basis for MBUSA's
liability, consistent with the fraud-based claims against it.
As to Autobahn's and Sonic's motions to Dismiss under Rule
12(b)(6), the Court granted them in part and denied in part. On
the first claim for relief, the motion is granted with leave to
amend on statute of limitations grounds only. The allegations
otherwise are sufficient to state a claim for fraud. On the
second, third, and fifth claims, the motion is denied. On the
fourth claim, the motion is granted with leave to amend on the
grounds that the Plaintiffs have not sufficiently alleged reliance
or injury. On the sixth claim, the motion is granted with leave to
amend to permit the Plaintiffs to allege the elements of
cognizable negligence claim, including the basis for claiming duty
and breach, as to Autobahn and Sonic. On the derivative seventh
and eighth claims, the motion is granted with leave to amend to
allege the basis for these Defendants' liability, consistent with
the fraud-based claims against them. However, the motion is
denied by the Court on the additional grounds of lack of standing
for prospective relief, raised by Autobahn.
The Plaintiffs will file their amended complaint no later than
Aug. 8, 2017. They will lodge with the Court a redline document
comparing the original to the amended complaint at the time of its
filing. Defendants MBUSA, Autobahn, and Sonic will file their
responses 14 days thereafter. They are advised that they may not
renew arguments rejected in the Order without a proper basis for
so doing.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/fQV6pq from Leagle.com.
Steve Ferrari, Plaintiff, represented by Herman Franck, Franck and
Associates.
Steve Ferrari, Plaintiff, represented by Elizabeth Betowski --
elizabeth.francklaw@gmail.com -- Franck and Associates.
Mike Keynejad, Plaintiff, represented by Herman Franck, Franck and
Associates & Elizabeth Betowski, Franck and Associates.
Patricia Rubin, Plaintiff, represented by Herman Franck, Franck
and Associates & Elizabeth Betowski, Franck and Associates.
Hooshang Jowza, Plaintiff, represented by Herman Franck, Franck
and Associates & Elizabeth Betowski, Franck and Associates.
Celso Frazao, Plaintiff, represented by Herman Franck, Franck and
Associates & Elizabeth Betowski, Franck and Associates.
Renuka Narayan, Plaintiff, represented by Herman Franck, Franck
and Associates & Elizabeth Betowski, Franck and Associates.
Gertrud Frankrone, Plaintiff, represented by Herman Franck, Franck
and Associates & Elizabeth Betowski, Franck and Associates.
Ernest Salinas, Plaintiff, represented by Herman Franck, Franck
and Associates & Elizabeth Betowski, Franck and Associates.
Kalkhusan Sareen, Plaintiff, represented by Herman Franck, Franck
and Associates & Elizabeth Betowski, Franck and Associates.
Mercedes Benz USA, LLC, Defendant, represented by Robert B. Hawk -
- robert.hawk@hoganlovells.com -- Hogan Lovells US LLP, Helen Yiea
Trac -- helen.trac@hoganlovells.com -- Hogan Lovells US LLP &
James Niles Tansey -- james.tansey@hoganlovells.com -- Hogan
Lovells US LLP.
Sonic Automotive, Inc., Defendant, represented by Bruce Grant Nye,
The Scali Law Firm, Georges A. Haddad, Adams Nye Becht LLP &
Matthew Mark Schroeder, Adams Nye Becht LLP.
Autobahn, Inc., Defendant, represented by Bruce Grant Nye, The
Scali Law Firm, Georges A. Haddad, Adams Nye Becht LLP & Matthew
Mark Schroeder, Adams Nye Becht LLP.
METAL TECHNOLOGIES: Former Workers Can Amend Suit for Damages
-------------------------------------------------------------
In the case captioned FANNIE KOLISH AND KEVIN GRAVES, Plaintiffs,
v. METAL TECHNOLOGIES, INC., Defendant, No. 2:16-cv-00145-JMS-MJD
(S.D. Ind.), Magistrate Judge Mark J. Dinsmore of the U.S.
District Court for the Southern District of Indiana, Indianapolis
Division, granted the Plaintiffs' motion for leave to file an
amended complaint to add a claim for the Defendant's alleged
practice of illegal time card rounding.
This is an action under the Fair Labor Standards Act ("FLSA") and
Indiana Wage Payment Statute for unpaid wages caused by the
Defendant's alleged treatment of recorded breaks of twenty minutes
or less as uncompensated time. Kolish, one of two Plaintiffs,
worked for Metal Technologies at its Bloomfield, Indiana
manufacturing facility from Sept. 11, 2014 until her voluntary
resignation in April 2015. Graves, the other Plaintiff, worked
for Metal Technologies at the same facility from February 2012
until his voluntary resignation at the end of October 2013. The
Defendant manufactures different types of automobile parts at its
Bloomfield plant.
Kolish filed her original complaint on April 27, 2016 and Graves
was granted permission to intervene on Oct. 24, 2016. At the time
of the filing of the original complaint, the Plaintiffs were
members of a class action and FLSA collective action, captioned
Weil v. Metal Technologies, Inc., to recover alleged unpaid wages
and overtime compensation from alleged non-neutral rounding of
time clock punches by Metal Technologies. Their theory is that
Metal Technologies rounds time down from employees' time records
to its benefit, thus failing to compensate the Plaintiffs for
their actual hours worked.
In Weil, the plaintiffs moved for partial summary judgment on the
issue of liability regarding wage deduction and timekeeping claims
including the non-neutral rounding claims. They argued that there
was no genuine issue of material fact because the time cards
conclusively established Metal Technologies' liability for the
illegal rounding. Metal Technologies moved to decertify the
class, contending that the class members were not similarly
situated.
First, with regard to the Weil plaintiffs' motion for summary
judgment, the Court found that the "threshold issue" was whether
the time cards conclusively established their actual work. It
found, in light of evidence that the time cards did not completely
and accurately reflect their work hours, that the time card
records alone could not conclusively establish the hours actually
worked by the employees. The Court further concluded that genuine
disputes of material fact exist regarding the issue of liability
on the Plaintiff's FLSA and IWPA claims, and therefore their
Motion for Partial Summary Judgment is denied.
Second, Metal Technologies moved to decertify the class.
Regarding this issue, the Court concluded that, because the time
records could not conclusively establish liability, the plaintiffs
had not demonstrated adequate similarity to support class
certification. Rather, each plaintiff would have to rely on
distinct evidence demonstrating that she was actually working
during the uncompensated time. Following the decertification
order on May 26, 2017 in Weil, Kolish and Graves moved this Court
to add the non-neutral rounding claim to their complaint in this
case.
The Court said that Weil clearly held that Kolish and Graves may
not rely solely upon the time cards to establish liability in this
case. But Kolish and Graves have explained that they will offer
corroborating evidence to support their claims. Whether they will
be able to unearth sufficient evidence to prove their claims is a
distinct question from whether they may attempt to do so. The
Court cannot say based on Weil that Kolish and Graves' attempt to
do so is futile, and Metal Technologies makes no other argument
that amendment would be improper. Thus, given the liberal
amendment standards set forth in Rule 15(a)(2), the Court granted
the Plaintiffs' Motion. The Clerk is directed to docket their
First Amended Complaint for Damages filed as of the date of the
Order.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/kckg4q from Leagle.com.
FANNIE M. KOLISH, Plaintiff, represented by Robert F. Hunt, HUNT
HASSLER LORENZ & KONDRAS LLP.
FANNIE M. KOLISH, Plaintiff, represented by Robert Peter Kondras,
Jr., HUNT HASSLER KONDRAS & MILLER LLP.
KEVIN GRAVES, Plaintiff, represented by Robert Peter Kondras, Jr.,
HUNT HASSLER KONDRAS & MILLER LLP.
METAL TECHNOLOGIES, INC., Defendant, represented by Melissa K.
Taft -- Melissa.Taft@jacksonlewis.com -- JACKSON LEWIS P.C &
Michael W. Padgett -- PadgettM@jacksonlewis.com -- JACKSON LEWIS
P.C.
MGM RESORTS: Court Narrows Claims in "Hanson"
---------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order granting in part and denying
in part Defendants' Motion to Dismiss the case captioned DAVID
HANSON, individually and on behalf of all others similarly
situated, Plaintiff, v. MGM RESORTS INTERNATIONAL, et al.,
Defendants, Case No. C16-1661-RAJ. (W.D. Wash.) and denied
Plaintiff's Motion for Extension to File Motion for Certification.
This matter comes before the Court on Defendants MGM Resorts
International (MGM) and Costco Wholesale Corporation's (Costco)
Motion to Dismiss and Plaintiff David Hanson's Motion for
Extension of Time to File a Motion for Class Certification.
MGM sells gift cards that are redeemable at MGM's casinos,
resorts, and affiliates.
Costco is among the locations where MGM gift cards are available
for purchase. Hanson purchased 140 MGM gift cards from a Costco in
Seattle, Washington.
A monthly maintenance fee of $2.50 will be deducted from your card
balance after eighteen months of no activity from the date printed
on the front of the card. Notwithstanding these representations,
MGM began assessing a $2.50 monthly inactivity fee twelve months
after he purchased the gift cards.
Hanson filed this action against MGM and Costco on behalf of
himself and similarly situated consumers who purchased MGM gift
cards and incurred the same or similar inactivity fees. He alleges
(1) a claim against MGM for breach of contract; (2) a claim
against MGM and Costco for violation of the Electronic Funds
Transfer Act (EFTA),(3) a claim against Costco for violation of
Washington's Consumer Protection Act (CPA), (4) a claim against
MGM for violation of Nevada's Deceptive Trade Practices Act
(DTPA),(5) a claim against MGM for breach of express warranty; and
(6) a claim against Costco for breach of express warranty.
MGM and Costco move to dismiss Hanson's first, third, fourth,
fifth, and sixth claims. In the alternative, they move to strike
the proposed Nevada DTPA and Washington CPA classes.
Hanson opposes Defendants' motion. Hanson also moves to extend the
deadline for filing a motion for class certification.
Legal Standard
Rule 12(b)(6) permits a court to dismiss a complaint for failure
to state a claim. The complaint avoids dismissal if there is any
set of facts consistent with the allegations in the complaint that
would entitle the plaintiff to relief.
Nevada DTPA Claim (Fourth Claim)
Defendants contend that Hanson cannot bring a claim under Nevada's
DTPA because he does not live in Nevada and he did not purchase
the MGM gift cards there. Hanson contends that he may assert the
DTPA claim even though he lacks connections to Nevada.
In opposing the motion, he emphasizes that Nevada is where MGM is
headquartered, making it plausible that MGM's wrongful conduct
arose there and providing him standing to assert a claim based on
Nevada state law.
Where a representative plaintiff is lacking for a particular
state, all claims based on that state's laws are subject to
dismissal.
Here, Hanson is the only representative. He does not allege
residency in Nevada and he does not allege to have purchased MGM
gift cards there -- rather, he alleges that he is a Washington
resident and that Washington is where he bought the gift cards.
Because Hanson is the only representative and the gift card
transaction did not occur in Nevada, the Court Dismisses the
Nevada DTPA claim.
Contract, CPA, and Warranty Claims (First, Third, Fifth, and Sixth
Claims)
Defendants' effort to show that Hanson did not sustain damages is
unpersuasive. Defendants rely on evidence of transaction histories
to claim that they have reimbursed all inactivity fees charged
against Hanson's 140 MGM gift cards.
To rely upon Defendants' documents claiming that they refunded the
inactivity fees would run afoul of this principle because Hanson's
complaint does not necessarily rely on those documents. The Court
Denies Defendants' motion to dismiss as to Hanson's contract, CPA,
and warranty claims.
Motion to Strike Washington CPA Class
Defendants contend that, to the extent Hanson's CPA claim survives
this motion, the Court should strike his proposed Washington CPA
class as overbroad.
The Court agrees with Hanson that it would be premature to strike
his proposed Washington CPA class. Without discovery, the Court
has no way of knowing whether proposed class members actually
purchased an MGM gift card meeting the class criteria outside of
Washington state.
The Court Denies Defendants' alternative motion to strike.
The Court Grants in part and Denies in part Defendants' Motion to
Dismiss. Having deferred the entry of a case schedule pending the
resolution of this motion to dismiss, the Court Denies as moot
Hanson's Motion for Extension of Time to File a Motion for Class
Certification.
A full-text copy of the District Court's July 20, 2017 Opinion is
available at http://tinyurl.com/y82hsrgtfrom Leagle.com.
David Hanson, Plaintiff, represented by Eve-Lynn Rapp --
erapp@edelson.com -- EDELSON PC, pro hac vice.
David Hanson, Plaintiff, represented by Kevin Arnold Bay --
kbay@tousley.com -- TOUSLEY BRAIN STEPHENS, Kim D. Stephens --
kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS & Stewart R.
Pollock -- spollock@riker.com -- EDELSON PC, pro hac vice.
MGM Resorts International, Defendant, represented by Aravind
Swaminathan -- aswaminathan@orrick.com -- ORRICK HERRINGTON &
SUTCLIFFE LLP & Melanie D. Phillips -- mphillips@orrick.com --
ORRICK HERRINGTON & SUTCLIFFE LLP.
Costco Wholesale Corporation, Defendant, represented by Aravind
Swaminathan, ORRICK HERRINGTON & SUTCLIFFE LLP & Melanie D.
Phillips, ORRICK HERRINGTON & SUTCLIFFE LLP.
MICHIGAN: Court Certifies Class in "McBride"
--------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division, issued an Order granting Plaintiff's
Motion for Class Certification in the case captioned Mary Ann
McBride, et al., Plaintiffs, v. Michigan Department of
Corrections, et al., Defendant. Case No. 15-11222. (E.D. Mich.)
Plaintiffs filed this putative class action on March 31, 2015. The
matter was referred to Magistrate Judge David R. Grand for all
pre-trial proceedings.
Magistrate Judge Grand issued a Report and Recommendation ("R&R")
wherein he recommends that the Court Grant Plaintiffs' Motion for
Class Certification.
The time for filing objections to the R&R has expired and the
docket reflects that neither party has filed objections to the
R&R. The Court hereby adopts.
That Plaintiffs' Motion for Class Certification is Granted.
The Court certifies the following class: "all deaf and hard of
hearing individuals in the custody of the MDOC (whether now or in
the future), who require hearing-related accommodations, including
but not limited to interpreters, hearing devices, or other
auxiliary aids or services, to communicate effectively and/or to
access or participate in programs, services, or activities
available to individuals in the custody of the MDOC."
A full-text copy of the District Court's July 20, 2017 Opinion is
available https://is.gd/6n1Zbu from Leagle.com.
Mary Ann McBride, Plaintiff, represented by Abraham Singer --
abraham.singer@kitch.com -- Kitch Drutchas Wagner Valitutti &
Sherbrook.
Mary Ann McBride, Plaintiff, represented by Andrew D. Lazerow --
alazerow@cov.com -- Covington & Burling LLP, Megan E. Gerking,
--mgerking@cov.com--Covington & Burling LLP, Philip J. Levitz,
-- plevitz@cov.com -- Covington & Burling LLP, Stephen Curtis
Bartenstein -- sbartenstein@cov.com --, Covington & Burling LLP &
Chris E. Davis, Michigan Protection and Advocacy Service.
Brian Stanley Wittman, Plaintiff, represented by Abraham Singer,
Kitch Drutchas Wagner Valitutti & Sherbrook, Andrew D. Lazerow,
Covington & Burling LLP, Megan E. Gerking, Covington & Burling
LLP, Philip J. Levitz, Covington & Burling LLP, Stephen Curtis
Bartenstein, Covington & Burling LLP & Chris E. Davis, Michigan
Protection and Advocacy Service.
Ralph Williams, Plaintiff, represented by Abraham Singer, Kitch
Drutchas Wagner Valitutti & Sherbrook, Andrew D. Lazerow,
Covington & Burling LLP, Megan E. Gerking, Covington & Burling
LLP, Philip J. Levitz, Covington & Burling LLP, Stephen Curtis
Bartenstein, Covington & Burling LLP & Chris E. Davis, Michigan
Protection and Advocacy Service.
Michigan Department of Corrections, Defendant, represented by
Allan J. Soros, Michigan Department of Attorney General, Gary L.
Grant, Michigan Attorney General's Office, James E. Long, Michigan
Department of Attorney General, Jeanmarie Miller, State of
Michigan & Robert J. Jenkins, Michigan Department of Attorney
General.
Daniel H Heyns, represented by Allan J. Soros, Michigan Department
of Attorney General.
Daniel H Heyns, Defendant, represented by Gary L. Grant, Michigan
Attonrey General's Office, James E. Long, Michigan Department of
Attorney General, Jeanmarie Miller, State of Michigan & Robert J.
Jenkins, Michigan Department of Attorney General.
Thomas Finco, Defendant, represented by Allan J. Soros, Michigan
Department of Attorney General, Gary L. Grant, Michigan Attonrey
General's Office, James E. Long, Michigan Department of Attorney
General, Jeanmarie Miller, State of Michigan & Robert J. Jenkins,
Michigan Department of Attorney General.
Randall Treacher, Defendant, represented by Allan J. Soros,
Michigan Department of Attorney General, Gary L. Grant, Michigan
Attonrey General's Office, James E. Long, Michigan Department of
Attorney General, Jeanmarie Miller, State of Michigan & Robert J.
Jenkins, Michigan Department of Attorney General.
Anthony Stewart, Defendant, represented by Allan J. Soros,
Michigan Department of Attorney General, Gary L. Grant, Michigan
Attonrey General's Office, James E. Long, Michigan Department of
Attorney General, Jeanmarie Miller, State of Michigan & Robert J.
Jenkins, Michigan Department of Attorney General.
Jeffrey Woods, Defendant, represented by Allan J. Soros, Michigan
Department of Attorney General, Gary L. Grant, Michigan Attonrey
General's Office, James E. Long, Michigan Department of Attorney
General, Jeanmarie Miller, State of Michigan & Robert J. Jenkins,
Michigan Department of Attorney General.
Cathleen Stoddard, Defendant, represented by Allan J. Soros,
Michigan Department of Attorney General, Gary L. Grant, Michigan
Attonrey General's Office, James E. Long, Michigan Department of
Attorney General, Jeanmarie Miller, State of Michigan & Robert J.
Jenkins, Michigan Department of Attorney General.
Edward Burley, Interested Party, Pro Se.
MIDLAND CREDIT: Court Denied Certification of Illinois Class
------------------------------------------------------------
In the lawsuit styled DANIEL HERNANDEZ, on behalf of himself and
all others similarly situated, the Plaintiff, v. MIDLAND CREDIT
MANAGEMENT, INC., the Defendant, Case No. 1:15-cv-11179 (N.D.
Ill.), the Hon. Judge Joan B. Gottschall denied class
certification of:
"all persons in the State of Illinois to whom, during the one
year prior to the filing of Plaintiff's Complaint and
continuing through the resolution of this matter, Defendant
sent one or more letters or other communications similarly
[sic] in the form of the October 5th Letter in an attempt to
collect a non-business debt, which letter was not returned as
undeliverable by the Postal Service".
The Court said, "Because plaintiff has failed to show that the
proposed class's composition is ascertainable using objective
criteria, the court ends its Rule 23 analysis and denies
plaintiff's motion to certify. A status conference is set for
August 2, 2017, at 9:30 a.m."
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=3zmPgrmZ
MIDLAND FUNDING: Placeholder Bid for Class Certification Filed
--------------------------------------------------------------
In the lawsuit styled MARY T. JANETOS, and JONATHAN HUSER
on behalf of themselves and the class members described below, the
Plaintiffs, v. MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT,
INC. and ENCORE CAPITAL GROUP, INC., the Defendants, Case No.
1:17-cv-04490 (N.D. Ill.), the Plaintiffs ask the Court seek to
certify a class that consists of:
"(a) all individuals with Illinois addresses, (b) to whom a
letter was sent on behalf of defendants to collect a debt, (c)
which debt was a credit card where the last payment had been
made more than 5 years prior to the letter, (d) which letter
offered a settlement or a payment plan, and (e) did not state
that any payment may restart the statute of limitations, (f)
which letter was sent on or after June 14, 2016 (one year
prior to the filing of this action) and on or before July 5,
2017 (21 days after the filing of this action)".
The Plaintiffs further ask the Court that Edelman, Combs,
Latturner & Goodwin, LLC be appointed counsel for the class.
The case arises out of Defendants' use of collection letters,
which offer to settle debt that is time-barred without disclosing
that any payment may restart the statute of limitations.
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=Cg1Axf8H
The Plaintiffs are represented by:
Daniel A. Edelman, Esq.
Cathleen M. Combs, Esq.
James O. Latturner, Esq.
Cassandra P. Miller, Esq.
Corey J. Varma, Esq.
EDELMAN, COMBS, LATTURNER & GOODWIN, LLC
20 S. Clark St, Suite 1500
Chicago, IL 60603
Telephone: (312) 739 4200
Facsimile: (312) 419 0379
NATIONWIDE EVICTION: Class Certification Denied Without Prejudice
-----------------------------------------------------------------
In the lawsuit captioned DAN RUSSELL, Individually and on Behalf
of All Others Similarly Situated, the Plaintiff, v. NATIONWIDE
EVICTION, LLC, the Defendant, Case No. 4:17-cv-00008 (S.D. Tex.),
the Hon. Gray H. Miller entered an order denying without prejudice
Russell's motion for conditional class certification of:
"all court representatives employed by Nationwide Eviction,
LLC, within the past three years".
The Court said, "Russell may file a renewed motion for conditional
certification with supporting affidavits or other
evidence that other similarly situated individuals want to opt in
to the lawsuit within 20 days of the date of this motion".
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=WlAlaJ78
NOODLES & CO: Bid to Dismiss "SELCO" Data Breach Suit Granted
-------------------------------------------------------------
In the case captioned SELCO COMMUNITY CREDIT UNION, MIDWEST
AMERICA FEDERAL CREDIT UNION, VERIDIAN CREDIT UNION, and KEMBA
FINANCIAL CREDIT UNION, on behalf of themselves and a class of
similarly situated financial institutions, Plaintiffs, v. NOODLES
& COMPANY, Defendant, Lead Civil Action No. 16-cv-02247-RBJ,
Consolidated with No. 16-cv-02497-RBJ., 16-cv-02632-RBJ (D.
Colo.), Judge R. Brooke Jackson of the U.S. District Court for the
District of Colorado granted the Defendant's motion to dismiss the
Plaintiffs' amended consolidated complaint.
In early 2016 hundreds of the Defendant's restaurants suffered a
cyberattack targeting customers' credit and debit card
information. The Plaintiffs are four credit unions whose
cardholders' information might have been compromised by the data
breach. They allege that because of the breach they have had to
cancel and reissue affected cards, close and reopen the
corresponding accounts, respond to cardholders' inquiries about
the breach, monitor accounts for fraudulent charges, investigate
such charges, and refund cardholders for any unauthorized charges
that went through. They also claim to have lost revenue due to
their cardholders' decrease in credit and debit card usage after
the breach was publicized.
In September 2016, Plaintiff SELCO filed suit against the
Defendant for its alleged failure to prevent the data breach. Two
months later this case was consolidated with two other actions,
and on Nov. 30, 2016, the Plaintiffs filed an amended consolidated
class action complaint. This complaint seeks to bring an action
for negligence, negligence per se, and declaratory relief for the
Plaintiffs individually and on behalf of all other similarly
situated financial institutions. They have filed a motion for
appointment of interim class counsel, and they recently renewed
this motion. On Jan. 17, 2017, the Defendant filed a motion to
dismiss.
On the merits, the Defendant argues that the duties of care it
allegedly breached stem not from an independent duty, but from the
series of contracts governing the Plaintiffs' payment-card
networks. Both Visa and MasterCard have sets of rules that
directly regulate issuing banks and acquiring banks. These rules
are passed on through issuing banks' agreements with cardholders
and acquiring banks' agreements with merchants. The bank card
associations' rules require merchants like the Defendant to abide
by certain procedures in handling cardholders' financial
information. Most relevant here, Visa's and MasterCard's rules
require merchants to comply with the Payment Card Industry Data
Security Standard ("PCI DSS") which consists of the list of best
practices for data security in the payment card industry. The
Court finds the duties identified by the Plaintiffs are not
independent of the Defendant's contractual obligation to comply
with the PCI DSS.
In sum, the Court held that the duties allegedly breached were
contained in the network of interrelated contracts, and the
economic loss rule applies. The Plaintiffs' negligence and
negligence per se claims are thus dismissed. Since the
Plaintiffs' substantive claims fail, their request for declaratory
relief must also be dismissed. Therefore, the Court granted the
Defendant's motion to dismiss ad dismissed with prejudice the
Plaintiffs' Amended Consolidated Class Action Complaint. As the
prevailing party, the Defendant is awarded its reasonable costs
pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1. The
Plaintiffs' Renewed Motion for Appointment of Interim Class
Counsel is mooted.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/LLDeAQ from Leagle.com.
SELCO Community Credit Union, Plaintiff, represented by Brian C.
Gudmundson -- brian.gudmundson@zimmreed.com -- Zimmerman Reed,
P.L.L.P..
SELCO Community Credit Union, Plaintiff, represented by Charles
Hale Van Horn -- cvanhorn@bfvlaw.com -- Berman Fink Van Horn,
P.C., Erin Green Comite, ScottScott, Attorneys at Law, LLP, Gary
F. Lynch -- glynch@carlsonlynch.com -- Carlson Lynch Sweet Kilpela
& Carpenter LLP, James J. Pizzirusso -- jpizzirusso@hausfeld.com -
- Hausfeld, LLP, Jamisen A. Etzel -- jetzel@carlsonlynch.com --
Carlson Lynch Sweet Kilpela & Carpenter LLP, Karen Hanson Riebel -
- khriebel@locklaw.com -- Lockridge Grindal Nauen P.L.L.P., Kate
M. Baxter-Kauf -- kmbaxter-kauf@locklaw.com -- Lockridge Grindal
Nauen P.L.L.P., Stephen John Teti, Scott & Scott, LLP, Swathi
Bojedla -- sbojedla@hausfeld.com -- Hausfeld, LLP & Joseph Peter
Guglielmo, Scott+Scott, Attorneys at Law, LLP.
MidWest America Federal Credit Union, Consol Plaintiff,
represented by Brian C. Gudmundson, Zimmerman Reed, P.L.L.P.,
Charles Hale Van Horn, Berman Fink Van Horn, P.C., Erin Green
Comite, Scott+Scott, Attorneys at Law, LLP, Gary F. Lynch, Carlson
Lynch Sweet Kilpela & Carpenter LLP, Jamisen A. Etzel, Carlson
Lynch Sweet Kilpela & Carpenter LLP, Joseph Peter Guglielmo,
ScottScott, Attorneys at Law, LLP, Karen Hanson Riebel, Lockridge
Grindal Nauen P.L.L.P., Kate M. Baxter-Kauf, Lockridge Grindal
Nauen P.L.L.P. & Stephen John Teti, Scott & Scott, LLP.
Veridian Credit Union, Consol Plaintiff, represented by Brian C.
Gudmundson, Zimmerman Reed, P.L.L.P., Erin Green Comite,
ScottScott, Attorneys at Law, LLP, Gary F. Lynch, Carlson Lynch
Sweet Kilpela & Carpenter LLP, Jamisen A. Etzel, Carlson Lynch
Sweet Kilpela & Carpenter LLP, Joseph Peter Guglielmo, ScottScott,
Attorneys at Law, LLP, Karen Hanson Riebel, Lockridge Grindal
Nauen P.L.L.P., Kate M. Baxter-Kauf, Lockridge Grindal Nauen
P.L.L.P. & Stephen John Teti, Scott & Scott, LLP.
KEMBA Financial Credit Union, Consol Plaintiff, represented by
Brian C. Gudmundson, Zimmerman Reed, P.L.L.P. & Bryan L.
Bleichner, Chestnut & Cambronne, P.A..
KEMBA Financial Credit Union, Consol Plaintiff, represented by
Charles Hale Van Horn, Berman Fink Van Horn, P.C..
KEMBA Financial Credit Union, Consol Plaintiff, represented by
Gary F. Lynch, Carlson Lynch Sweet Kilpela & Carpenter LLP,
Jamisen A. Etzel, Carlson Lynch Sweet Kilpela & Carpenter LLP,
Karen Hanson Riebel, Lockridge Grindal Nauen P.L.L.P., Stephen
John Teti, Scott & Scott, LLP & Joseph Peter Guglielmo,
ScottScott, Attorneys at Law, LLP.
Noodles & Company, Defendant, represented by Paul Gregory
Karlsgodt -- pkarlsgodt@bakerlaw.com -- Baker & Hostetler, LLP &
Xakema Henderson -- xhenderson@bakerlaw.com -- Baker & Hostetler,
LLP.
NORTH AMERICAN: Can't Compel Arbitration in "McGhee" Suit
---------------------------------------------------------
In the case captioned GERALD McGHEE, An Individual, On Behalf of
Himself and All Others Similarly Situated, Plaintiff, v. NORTH
AMERICAN BANCARD, LLC, Defendant, Case No. 17-CV-0586-AJB-KSC
(S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court
for the Southern District of California denied the Defendant's
motion to compel arbitration.
Defendant NAB is the provider of mobile credit card processing
services called "PayAnywhere." McGhee, a merchant, acquired a
card reader from NAB, but never used it. After more than one
year, NAB began deducting a monthly non-use fee from McGhee's bank
account. Despite contacting NAB to stop the charges and demand a
refund, NAB continued to charge him for several months and has
refused to issue him a refund.
McGhee instituted this lawsuit on March 24, 2017, by filling the
class action complaint. He brings this nationwide putative class
action on behalf of all persons in the United States charged a Fee
as a result of obtaining NAB's Card Reader beginning at the start
of the applicable statute of limitations period and ending on the
date as determined by the Court. On May 15, 2017, NAB filed the
instant motion to compel arbitration, asserting that McGhee agreed
to arbitrate his claims when he signed up for NAB's services.
McGhee filed an opposition, and NAB replied.
Based on this arbitration clause, NAB argues that because McGhee
clicked the box stating he accepted the Terms and Conditions, he
agreed to binding arbitration. Judge Battaglia finds that
McGhee's act of checking the box indicating he read and agreed to
the Terms and Conditions indicated his assent to the Terms and
Conditions located on the page that that hyperlink takes him to,
specifically, the "PayAnywhere Terms and Condition of Merchant
Service Agreement." To the extent NAB seeks to hold McGhee to the
Pay Anywhere User Agreement and the arbitration clause contained
therein, Judge Battaglia finds there was no assent to that
agreement's provisions; thus, there is no valid agreement to
compel arbitration of these claims. Therefore, he denied NAB's
motion to compel arbitration.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/4hSKne from Leagle.com.
Gerald McGhee, Plaintiff, represented by Alex M. Tomasevic --
atomasevic@nicholaslaw.org -- Nicholas and Tomasevic LLP.
Gerald McGhee, Plaintiff, represented by Craig McKenzie Nicholas -
- cnicholas@nicholaslaw.org -- Nicholas and Tomasevic.
Gerald McGhee, Plaintiff, represented by Eric A. LaGuardia,
LaGuardia Law.
Gerald McGhee, Plaintiff, represented by Shaun A. Markley --
smarkley@nicholaslaw.org -- Nicholas & Tomasevic LLP.
North American Bancard, LLC, Defendant, represented by Matthew
Murray, Michelman & Robinson LLP & Peter L. Steinman --
psteinman@mrllp.com -- Michelman & Robinson LLP.
NORTHLAND GROUP: Court Certifies Settlement Class in "Hyun" Suit
----------------------------------------------------------------
In the lawsuit titled HYUN SOON CHUNG, on behalf of herself and
those similarly situated, the Plaintiff, v. NORTHLAND GROUP INC.;
and JOHN DOES 1 to 10, the Defendants, Case No. 2:15-cv-06246-SCM
(D.N.J.), the Hon. Judge Steven C. Mannion entered an order:
1. preliminarily approving a class settlement where Plaintiff
has alleged violations of the Fair Debt Collection
Practices Act
2. certifying a settlement class for settlement purposes:
"all consumers residing in the State of New Jersey, to whom
Defendant Northland Group Inc. sent a collection letter;
which letter (a) was dated August 17, 2014 through and
including August 17, 2015, (b) was seeking to collect a
consumer debt allegedly owed to US Bank, N.A., and (d) was
sent in a windowed envelope such that the account number
associated with the debt was visible from outside the
envelope"; and
3. appointing a Settlement Administrator, approving Plaintiff
as Settlement Class Representative, and appointing The Wolf
Law firm, LLC and the Kim Law firm LLC as Settlement Class
Counsel.
The Defendant shall fund the bank account to be established by the
Settlement Administrator in the amount of $4,697.92 within seven
days from the date this Order is entered. Within 30 days of the
date of this Order, the Settlement Administrator shall mail each
Settlement Class member their check according to the formula and
process set forth in the Settlement Agreement. Funds from uncashed
checks shall be paid as a cy pres award to "Civil Justice Clinic"
at Rutgers School of Law - Newark, Center for Law
and Justice. For efforts on behalf of the Class and to settle
individual claims, Defendant shall pay $4,000.00 to Plaintiff,
Hyun Soon Chung in the manner set forth in paragraph 9 of the
Settlement Agreement within seven days of the date of this Order.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=HJPyHYSa
OP PROPERTY: Wins Bid to Dismiss Calif. Debt Collection Suit
------------------------------------------------------------
The United States District Court for the Central District of
California issued an Order granting Defendants' Motion to Dismiss
the case captioned NICOLE YATOOMA, individually and on behalf of
all others similarly situated, Plaintiff, v. OP PROPERTY
MANAGEMENT LP; APARTMENT INVESTMENT AND MANAGEMENT COMPANY D/B/A/
PALAZZO AT PARK LA BREA; AIMCO PARK LA BREA HOLDINGS, LLC; LA PARK
LA BREA A, LLC; and DOES 1-20, inclusive, and each of them,
Defendants, Case No. 2:17-cv-02645 ODW (SSx) (C.D. Cal.).
Before the Court is Defendants OP Property Management LP,
Apartment Investment and Management Company d/b/a Palazzo at Park
La Brea (Aimco), Aimco Park La Brea Holdings, LLC, and LA Park La
Brea A, LLC's (LA Park), Defendants' Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss in this debt collection case.
Plaintiff and her husband lease an apartment in the Palazzo at
Park La Brea. First Amended Complaint (FAC) LA Park owns the
Palazzo and Aimco manages the property.
Aimco's agent sent an email to Plaintiff and a number of other
residents on behalf of LA Park reminding them to pay their rent,
which was due on October 1, and thanking them if they had already
paid. The email did not conceal the recipients' names.
Plaintiff filed a first amended class action complaint alleging
violations of the federal Fair Debt Collection Practices Act
(FDCPA) and California's Rosenthal Act (FAC). Defendants filed
the instant motion to dismiss. The motion is now fully briefed and
ready for decision.
Legal Standard
A court may dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for lack of a cognizable legal theory or
insufficient facts pleaded to support an otherwise cognizable
legal theory. To survive a motion to dismiss, a complaint, inter
alia, need only satisfy the minimal notice pleading requirements
of Rule 8(a)(2) a short and plain statement of the claim.
Dismissal of Certain Defendants
Plaintiff indicates that OP Property Management LP and Aimco Park
La Brea Holdings, LLC were not involved with the alleged acts and
may be appropriately dismissed. As such, the Court dismiss this
matter as to those two Defendants with prejudice.
Plaintiff's FDCPA Claim Fails Because Defendants Are Not Debt
Collectors
There are three threshold requirements to allege an FDCPA claim:
(1) the plaintiff must be a `consumer'; (2) the defendant must be
a debt collector'; and (3) the defendant must have committed some
act or omission in violation of the FDCPA.
Neither LA Park nor Aimco falls within the FDCPA's narrow
definition of debt collector. The primary function of these two
companies is property management not debt collection. The fact
that property owners/managers collect rent from tenants, and in
some instances past due rent, as part of their broader duties does
not make them debt collectors.
Neither LA Park nor Aimco can be a debt collector because, as the
property owner and property manager, respectively, they originated
the lease from which the alleged debt arises. the Court Dismisses
Plaintiff's FDCPA claim without leave to amend.
Plaintiff's Rosenthal Act Claim Fails Because the Parties Did Not
Engage in a Consumer Credit Transaction.
The Rosenthal Act is California's analog to the FDCPA.
This act concerns consumer debt, which is defined as money,
property or their equivalent, due or owing or alleged to be due or
owing from a natural person by reason of a consumer credit
transaction.
A consumer credit transaction is a transaction between a natural
person and another person in which property, services or money is
acquired on credit by that natural person from such other person
primarily for personal, family, or household purposes.
Payment of monthly rent is not a consumer credit transaction
within the statutory definition of the term. The Court also frowns
upon Plaintiff's attempt to portray the grace period as a consumer
credit transaction. Transaction commonly refers to a business
deal; an act involving buying and selling or an exchange.
Defendant voluntarily and unilaterally allowed Plaintiff a few
extra days to pay her rent without receiving, or expecting to
receive, anything in return. This generous act simply cannot be
construed as a consumer credit transaction.
The Court Grants Defendants' motion to dismiss.
A full-text copy of the District Court's July 20, 2017 Opinion is
available at http://tinyurl.com/ydf439lufrom Leagle.com.
Nicole Yatooma, Plaintiff, represented by Todd M. Friedman, Todd M
Friedman Law Offices PC.111 West Jackson Blvd., Suite 1700,
Chicago, IL 60604
OP Property Management LP, Defendant, represented by Tania Kim
Cardoso -- tcardoso@hollenbecklaw.com -- Hollenbeck and Cardoso
LLP, Marissa Ronk -- ronk@wtotrial.com -- Wheeler Trigg O Donnell
LLP, pro hac vice, Michael T. Williams -- williams@wtotrial.com --
Wheeler Trigg O'Donnell LLP, pro hac vice & Linda Tracey
Hollenbeck -- lhollenbeck@hollenbecklaw.com -- Hollenbeck and
Cardoso LLP.
Apartment Investment and Management Company, Defendant,
represented by Tania Kim Cardoso, Hollenbeck and Cardoso LLP,
Marissa Ronk, Wheeler Trigg O Donnell LLP, pro hac vice, Michael
T. Williams, Wheeler Trigg O'Donnell LLP, pro hac vice & Linda
Tracey Hollenbeck, Hollenbeck and Cardoso LLP.
AIMCO Park La Brea Holdings, LLC, Defendant, represented by Tania
Kim Cardoso, Hollenbeck and Cardoso LLP, Marissa Ronk, Wheeler
Trigg O Donnell LLP, pro hac vice, Michael T. Williams, Wheeler
Trigg O'Donnell LLP, pro hac vice & Linda Tracey Hollenbeck,
Hollenbeck and Cardoso LLP.
LA Park La Brea A, LLC, Defendant, represented by Linda Tracey
Hollenbeck, Hollenbeck and Cardoso LLP, Tania Kim Cardoso,
Hollenbeck and Cardoso LLP, Marissa Ronk, Wheeler Trigg O Donnell
LLP, pro hac vice & Michael T. Williams, Wheeler Trigg O'Donnell
LLP, pro hac vice.
Does, Defendant, represented by Linda Tracey Hollenbeck,
Hollenbeck and Cardoso LLP.
OPTIMUM OUTCOMES: Placeholder Bid for Class Certification Filed
---------------------------------------------------------------
In the lawsuit entitled MARY NEUMER, Individually and on Behalf of
All Others Similarly Situated, the Plaintiff, v. OPTIMUM OUTCOMES,
INC., the Defendant, Case No. 2:17-cv-01027 (E.D. Wisc.), the
Plaintiff asks the Court to enter an order certifying a proposed
class in this case, appointing the Plaintiff as its
representative, and appointing Ademi & O'Reilly, LLP as its
Counsel, and for such other and further relief as the Court may
deem appropriate.
The Plaintiff further asks the Court to stay this class
certification motion until an amended motion for class
certification is filed, and that the Court grant the parties
relief from the local rules' automatic briefing schedule and
requirement that Plaintiff file a brief and supporting documents
in support of this motion.
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit in Damasco instructed plaintiffs to file a certification
motion with the complaint, along with a motion to stay briefing on
the certification motion until discovery could commence. Damasco
v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled,
Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015).
As this motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
a one paragraph, single page motion to certify and stay should
suffice until an amended motion is filed, the Plaintiffs contend.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=Ed6OI3ev
The Plaintiff is represented by:
Shpetim Ademi, Esq.
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Denise L. Morris, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482 8000
Facsimile: (414) 482 8001
E-mail: sademi@ademilaw.com
jblythin@ademilaw.com
meldridge@ademilaw.com
dmorris@ademilaw.com
PANERA BREAD: Investor Drops Suit Over $7.5-Bil. Merger
-------------------------------------------------------
Jon Hill, writing for Law360, reports that an investor in Panera
Bread Co. has agreed to end his proposed class action against the
fast-casual restaurant chain over alleged shortcomings in its
disclosures surrounding its $7.5 billion acquisition by JAB
Holding, according to a dismissal stipulation filed in Missouri
federal court on July 14.
Investor John Remorenko had accused Panera of violating federal
securities law by issuing an allegedly incomplete proxy statement
in June in connection with the JAB deal, but according to July
14's stipulation, Panera provided additional disclosures about the
deal in a supplemental filing with the U.S. Securities and
Exchange Commission two weeks after Remorenko brought his suit.
"Plaintiff believes and contends that the supplemental disclosures
were material and mooted the meritorious claims set forth in
plaintiff's class action complaint," the stipulation said.
Remorenko claimed in his June 2 complaint against Panera and its
top officers and directors that the chain's June 1 proxy statement
omitted key information about certain financial projections,
potential conflicts of interest, and events leading up to the JAB
deal, which was announced in April. These omissions made the
filing "materially incomplete and misleading," Remorenko said.
The investor then followed up on June 14 with a bid to block a
scheduled shareholder vote on the deal unless or until the chain
made additional disclosures. Such a move was necessary, Remorenko
told the court, so that investors would not be forced to suffer
"irreparable harm" by being "forced to cast an uninformed and/or
misinformed vote."
Two days later, Panera filed its supplement with the SEC,
prompting Remorenko to withdraw his injunction bid as moot.
Remorenko indicated in July 14's stipulation that he would seek
attorneys' fees and expenses from Panera through negotiation.
"Plaintiff's counsel may assert a claim for attorneys' fees and
expenses in connection with the common benefit provided to
Panera's stockholders as a result of the filing of the
supplemental disclosures," the stipulation said, adding that
Remorenko plans to petition the court to award fees and expenses
if negotiations are unsuccessful.
Panera investors approved the chain's proposed merger agreement
with consumer-goods-focused investment firm JAB Holdings on July
11. Under the terms of the transaction, which is expected to
close, JAB is set to pay $315 per share, in cash, to pick up
Panera.
Counsel for Remorenko did not immediately return a request for
comment late on July 14.
Representatives and counsel for Panera were also not immediately
available for comment late on July 14.
Remorenko is represented by James J. Rosemergy, Esq. of Carey
Danis & Lowe and Donald J. Enright, Esq. -- denright@zlk.com --
and Elizabeth K. Tripodi, Esq. -- etripodi@zlk.com -- of Levi &
Korsinsky LLP.
Panera is represented by Lawrence C. Friedman, Esq. of Thompson
Coburn LLP.
The case is Remorenko v. Panera Bread Co. et al., case number
4:17-cv-01610, in the U.S. District Court for the Eastern District
of Missouri. [GN]
PATHEON NV: "Di" Seeks to Halt Merger with Thermo Fisher
--------------------------------------------------------
Di Ma, individually and on behalf of himself and all others
similarly situated, Plaintiff, v. Patheon N.V., Paul S. Levy,
James C. Mullen, Daniel Agroskin, Philip Eykerman, William B.
Hayes, Stephan B. Tanda, Hugh C. Welsh, Hans Peter Hasler, Pamela
Daley, Jeffrey P. Mcmullen, Gary P. Pisano and Charles Cogut,
Defendants, Case No. 1:17-cv-04979 (S.D. N.Y., June 30, 2017),
seeks to enjoin defendants and all persons acting in concert with
them from proceeding with, consummating, or closing the
acquisition of Patheon N.V. by Thermo Fisher Scientific Inc. and
its wholly-owned subsidiary, Thermo Fisher (CN) Luxembourg S.a
r.l., rescinding it and setting it aside or awarding rescissory
damages in the event defendants consummate the said merger. The
suit further seeks costs of this action, including reasonable
allowance for plaintiff's attorneys' and experts' fees and such
other and further relief under the Securities Exchange Act of
1934.
The merger agreement provides for a termination fee payable by
Patheon to Thermo Fisher if the merger is terminated, thus
precluding other bidders from making successful competing offers
for the Company. The merger's solicitation statement failed to
disclose income loss from continuing operations, repositioning
expenses, interest expense, foreign exchange losses, refinancing
expenses, acquisition and integration costs, gains and losses on
sale of capital assets, income taxes, impairment charges,
remediation costs, depreciation and amortization, stock-based
compensation expense, consulting costs related to operational
initiatives, purchase accounting adjustments and acquisition-
related litigation expenses, says the complaint.
Patheon is a global provider of pharmaceutical development and
manufacturing services with approximately 9,100 employees and
contractors worldwide, providing comprehensive, integrated and
customizable set of solutions to help customers of all sizes
satisfy complex development and manufacturing needs at any stage
of the pharmaceutical development cycle. [BN]
Plaintiff is represented by:
Christopher J. Kupka, Esq.
LEVI & KORSINSKY, LLP
30 Broad Street, 24th Floor
New York, NY 10004
Tel: (212) 363-7500
Fax: (212) 363-7171
Email: ckupka@zlk.com
- and -
Donald J. Enright, Esq.
LEVI & KORSINSKY LLP
Elizabeth K. Tripodi, Esq.
1101 30th Street, N.W., Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
Facsimile: (202) 333-2121
Email: denright@zlk.com
etripodi@zlk.com
PELLA CORP: Loses Bid to Deny Window Defect Class Certification
---------------------------------------------------------------
In the case captioned IN RE: PELLA CORPORATION ARCHITECT AND
DESIGNER SERIES WINDOWS MARKETING, SALES PRACTICES AND PRODUCTS
LIABILITY LITIGATION, No. 2:14-mn-00001-DCN (D. S.C.), Judge of
the U.S. District Court for the District of South Carolina,
Charleston Division, denied the Defendant's motion to deny class
certification in all remaining cases.
The Plaintiffs in this consolidated multi-district litigation are
owners of certain Pella Architect Series and Designer Series
Windows manufactured between 1997 and 2007 ("Windows"). They
allege that the Windows suffer from a common design defect and
that this defect is exacerbated by the use of inadequate, or
inadequately applied, wood treatment and preservative. They have
filed a number of class action complaints in separate
jurisdictions based on these allegations, which have been referred
to this Court for coordinated or consolidated pretrial
proceedings.
In November of 2015, the Plaintiffs moved for class certification
in three cases. One of these cases was dismissed before the court
could rule on class certification, leaving only Romig v. Pella
Corp., Case No. 2:14-cv-0433-DCN ("Romig") and Naparala v. Pella
Corp., Case No. 2:14-cv-3465-DCN ("Naparala"). In both cases, the
Plaintiffs' claims were winnowed down to a single breach of
express warranty claim. They correspondingly narrowed their class
definition to current or former owners of structures containing
the subject Windows who made a claim under Pella's Limited
Warranty. They argued that the Windows suffer from a defective
water management system comprised of three distinct failure paths
that permit water intrusion, and that the class should be
certified for the purposes of resolving this common defect issue.
On June 3, 2016, the Court issued orders denying class
certification in both Romig and Naparala. These orders relied on
substantially similar reasoning, holding that (i) when the
Plaintiffs' breach of warranty claims were considered in their
entirety, individual issues predominated over the common defect
issue under Federal Rule of Civil Procedure 23(b)(3); and (ii)
even if the class could escape the predominance inquiry by seeking
certification on just the defect issue, certification was still
inappropriate under the superiority requirement of Rule 23(b)(3).
It highlighted the individualized inquiries that would be required
to assess causation of each class member's damages and to resolve
Pella's affirmative defenses -- particularly with respect to the
statute of limitations.
The Court also noted that the nature of Plaintiffs' breach of
warranty claims made these causation issues particularly
problematic because, at least in certain cases, they would be
required to prove that their initial warranty claim was caused by
the defect in addition to proving causation of damages.
Pella filed the instant motion on July 15, 2016, arguing that the
principles laid down in the Court's recent class certification
orders should be applied to all remaining class actions in this
MDL. The Plaintiffs filed a response to this motion on Aug. 12,
2016, and Pella replied on Aug. 26, 2016. A hearing was held on
Sept. 8, 2016.
The Court held that it need not decide whether it is possible to
preemptively deny class certification motions in other cases.
However, to the extent such relief is available, it is convinced
that it should only be granted in rare circumstances and only
after the Defendant has made an exceptionally strong showing that
future motions for class certification would be futile. Any
ambiguities in the Romig and Naparalla orders or inferences about
future class certification motions must therefore be resolved in
the Plaintiffs' favor.
The Court concluded that there are enough ways in which the
remaining cases in this MDL might be distinguished from Romig and
Pella. It does not mean to suggest that it believes any of the
issues that might distinguish future motions for class
certification would be meritorious. It offers no such opinion.
Instead, the Court simply finds that, because some potential
arguments have not been fully explored, it would be, at best,
imprudent -- if not unconstitutional -- to deny the remaining
Plaintiffs the opportunity to advance such arguments. For these
reasons, the Court denied Pella's motion to deny class
certification.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/HHQbtH from Leagle.com.
Pella Corporation Architect and Designer Series Windows Marketing,
Sales Practices and Products Liability Litigation, In Re,
represented by John P. Mandler, Faegre, Baker Law Firm.
Pella Corporation Architect and Designer Series Windows Marketing,
Sales Practices and Products Liability Litigation, In Re,
represented by Shane A. Anderson, Faegre Baker Daniels.
Plaintiff's Lead Counsel, Plaintiff, represented by Daniel K.
Bryson -- dan@wbmllp.com -- Whitfield Bryson & Mason LLP &
Jonathan Shub -- jshub@kohnswift.com -- Kohn Swift and graft, pro
hac vice.
Plaintiff's Liaison Counsel, Plaintiff, represented by Justin
O'Toole Lucey, Justin O'Toole Lucey Law Firm.
Pella Corporation, Defendant, represented by Amy R. Fiterman --
amy.fiterman@FaegreBD.com -- Faegre Baker Daniels LLP, pro hac
vice, G. Mark Phillips -- mark.phillips@nelsonmullins.com --
Nelson Mullins Riley and Scarborough, John P. Mandler, Faegre,
Baker Law Firm, Michael Tucker Cole -- mike.cole@nelsonmullins.com
-- Nelson Mullins Riley and Scarborough, John A. Roberts --
john.roberts@FaegreBD.com -- Faegre Baker Daniels, Kevin L. Morrow
-- kevin.morrow@FaegreBD.com -- Faegre Baker Daniels, Mark J.
Winebrenner -- joe.winebrenner@FaegreBD.com -- Faegre Baker
Daniels & Shane A. Anderson -- shane.anderson@FaegreBD.com --
Faegre Baker Daniels.
PENN NATIONAL: "Hutkai" Suit Seeks Certification of 6 Classes
-------------------------------------------------------------
In the lawsuit styled MARY E. HUTKAI, and ALEXIS I. BAUMAN, both
individually, and on behalf of all others similarly situated, the
Plaintiffs, v. PENN NATIONAL GAMING, INC., et al., the Defendants,
Case No. 4:16-cv-00906-NKL (W.D. Mo.), the Plaintiffs seek
conditional collective action certification of the following
collectives:
Nationwide Rounding Policy Collective:
"all hourly non-exempt employees who worked at PNG's
subsidiary properties or casinos in the United States at any
time from three years prior to the filing of the Complaint
until December 1, 2016 and who (1) clocked-in and clocked-out
on a timeclock and (2) whose time was tracked using Kronos
Workforce Central software. This definition excludes employees
working at Hollywood Casino Hotel & Raceway Bangor, Hollywood
Casino Gulf Coast at Bay St. Louis, Boomtown Casino Biloxi,
and Hollywood Casino at Penn National Race Course
(Mountainview)";
Nationwide Tip Credit Policy Collective:
"all hourly non-exempt tipped employees who worked at PNG's
subsidiary properties or casinos in the United States at any
time from three years prior to the filing of the Complaint
until January 1, 2017 and (1) who were paid a direct hourly
wage that was less than the federal minimum wage at that time,
(2) for whom PNG and/or its subsidiary casino claimed a tip
credit against their obligation to pay that person the federal
minimum wage, and (3) who had the amount of that tip credit
change during that timeframe. This definition excludes
employees working at Hollywood Casino Kansas Speedway";
Hollywood Kansas Speedway Tip Credit Policy Collective:
"all hourly non-exempt tipped employees who worked at
Hollywood Casino Kansas Speedway at any time from three years
prior to the filing of the Complaint until January 1, 2017 and
who (1) were paid a direct hourly wage that was less than the
federal minimum wage at that time and (2) for whom PNG and/or
Hollywood Casino Kansas Speedway claimed a tip credit against
their obligation to pay that person the federal minimum wage";
Hollywood Kansas Speedway Miscalculated Regular Rate Collective:
"all hourly non-exempt tipped employees who worked at
Hollywood Casino Kansas Speedway at any time from three years
prior to the filing of the First Amended Complaint until May
1, 2017 who (1) were paid a direct hourly wage that was less
than the federal minimum wage at that time and (2) for whom
PNG and/or Hollywood Casino Kansas Speedway claimed a tip
credit against their obligation to pay that person the federal
minimum wage".
The Plaintiffs aldo seek to certify these class definitions as
class actions:
Argosy Riverside Missouri Unjust Enrichment Class:
"all hourly non-exempt employees who worked at Argosy
Riverside at any time from five years prior to the filing of
the Complaint until December 1, 2016 and who (1) clocked-in
and clocked-out on a timeclock and (2) whose time was tracked
using Kronos Workforce Central software"; and
Hollywood Kansas Speedway Kansas Wage Payment Act Class:
"all hourly non-exempt employees who worked at Hollywood
Kansas Speedway at any time from three years prior to the
filing of the First Amended Complaint until December 1, 2016
and who (1) clocked-in and clocked-out on a timeclock and (2)
whose time was tracked using Kronos Workforce Central
software";
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=tdTW6Om5
The Plaintiffs filed suit against the Defendants, alleging that
Defendants had a policy and practice of failing to properly pay
Plaintiffs, and similarly situated employees, overtime and/or
minimum wage in violation of the Fair Labor Standards Act,
Missouri law, and Kansas law.
The Plaintiffs are represented by:
George A. Hanson, Esq.
Alexander T. Ricke, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714 7100
Facsimile: (816) 714 7101
E-mail: hanson@stuevesiegel.com
ricke@stuevesiegel.com
- and -
Kelly L. McClelland, Esq.
Kenneth E. Cox, Esq.
Ryan L. McClelland, Esq.
McCLELLAND LAW FIRM
The Flagship Building
200 Westwoods Drive
Liberty, MO 64068-1170
Telephone: (816) 781 0002
Facsimile: (816) 781 1984
E-mail: kmcclelland@mcclellandlawfirm.com
kcox@mcclellandlawfirm.com
ryan@mcclellandlawfirm.com
PENTHOUSE: Strippers File Wage Class Action in Detroit
------------------------------------------------------
Deadline Detroit Business reports that strip club owner
Alan Markovitz has had his share of headlines. He's been shot and
wounded at his clubs twice over the years; once by a stripper.
He's the author of an autobiography, and he was the star for one
season of an HBO/Cinemax reality show called "Topless Prophet."
Now, Mr. Markovitz, who owns the Penthouse Club and The Coliseum
strip clubs on 8 Mile Road in Detroit, is once again making
headlines.
Current and former strippers at those clubs filed a class action
suit in U.S. District Court in Detroit alleging that he
intentionally misclassified employees as independent contractors
and not only circumvented federal wage laws by failing to pay them
minimum wage, but forced them to pay him to dance there, Metro
Times reports. He also forced them to share tips with other
employees.
"In 2010, Markovitz authored an autobiography where he describes
the clubs he owns (or has owned in the past) and admits to the
unlawful policies and practices he uses to pay the Class members
which are at issue in this lawsuit," the lawsuit says.
Mr. Markovitz settled a similar suit by dancers at the same clubs
in 2014 for an undisclosed sum, reports Violet Ikonomova of Metro
Times. [GN]
PROFESSIONAL RADIOLOGY: Dismissal of "Jackson" Suit Reversed
------------------------------------------------------------
In the case captioned BARBARA JACKSON, individually and on behalf
of all others similarly situated, Plaintiff-Appellant, v.
PROFESSIONAL RADIOLOGY INC.; M.D. BUSINESS SOLUTIONS, INC.;
CONTROLLED CREDIT CORPORATION, Defendants-Appellees, No. 16-4171
(6th Cir.), Judge Bernice Bouie Donald of the U.S. Court of
Appeals for the Sixth Circuit affirmed the district court's grant
of a judgment on the pleadings and reversed the district court's
grant of PRI's and MDB's motion to dismiss.
On April 7, 2014, Jackson was injured in an automobile accident
and taken by ambulance to University Hospital West Chester. She
informed University Hospital that she had health insurance
coverage through United Healthcare, a health insurance
corporation. While at University Hospital, Jackson received
treatment from PRI which uses M.D. Business Solutions, Inc.
("MDB") to provide billing services. Professional Radiology, Inc.
("PRI") did not submit treatment charges to United Healthcare.
MDB instead sent a letter to Jackson seeking a payment of $1,066
for the balance of her account for services provided by PRI and
requesting that Jackson's attorney sign a letter of protection
against any settlement of judgment that would prevent Jackson's
account from being sent to collections.
This letter was followed by two similar letters.
When Jackson did not make a payment, her account was turned over
to Controlled Credit Corp. ("CCC"), which sent a letter to Jackson
requesting payment of the balance of $1,066. Jackson advised CCC
that she was represented by counsel. Jackson's attorney
eventually negotiated a payment to CCC in the amount of $852 in
full and final settlement of the charges for the treatment
provided by PRI.
However, on June 11, 2015, PRI and/or MDB again contacted Jackson
to inform her that she still owed $3.49 on her account. Jackson
paid that amount and then brought a class action against CCC, PRI,
and MDB for violation of Ohio Rev. Code Section 1751.60(A).
The class action alleged that Ohio Rev. Code Section 1751.60(A)
prohibits directly billing patients who have health insurance for
medical treatment when the healthcare provider has a contract with
the patient's health insurer to accept the health insurance.
Jackson brought the following claims on behalf of the class: (i)
breach of contract, (ii) breach of third-party beneficiary
contract, (iii) violation of the Ohio Consumer Sales Practices
Act, (iv) violation of the Fair Debt Collection Practices Act, (v)
fraud, (vi) conversion, (vii) unjust enrichment, and (viii)
punitive damages. CCC moved for judgment on the pleadings under
Federal Rules of Civil Procedure 12(c) and PRI and MDB moved to
dismiss for failure to state a claim under Federal Rules of Civil
Procedure 12(b)(6).
The district court granted both motions, and Jackson filed this
appeal.
The primary question on appeal is whether the Appellees'
collection of medical bills from the Appellant was conduct
prohibited by Ohio Revised Code Section 1751.60. Judge Donald
held that because CCC is not subject to Ohio Rev. Code Section
1751.60, he affirmed the district court's grant of a judgment on
the pleadings. Because PRI and MDB's collection efforts sought
payment directly from the Appellant, there was a violation of Ohio
Rev. Code Section 1751.60 and Judge Donald reversed the district
court's grant of PRI and MDB's motion to dismiss.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/aPHZQd from Leagle.com.
ARGUED: C. David Ewing, EWING & WILLIS, PLLC, Louisville,
Kentucky, for Appellant.
H. Toby Schisler -- toby.schisler@dinsmore.com -- DINSMORE &
SHOHL, LLP, Cincinnati, Ohio, for Appellees Professional Radiology
and M.D. Business Solutions.
David B. Shaver, SURDYK, DOWD & TURNER CO., L.P.A., Dayton, Ohio,
for Appellee Controlled Credit.
ON BRIEF: C. David Ewing, EWING & WILLIS, PLLC, Louisville,
Kentucky, Gary F. Franke, Michael D. O'Neill --
mdoneill@martinsquires.com -- GARY F. FRANKE CO. LPA, Cincinnati,
Ohio, for Appellant.
H. Toby Schisler, Jason R. Goldschmidt --
jason.goldschmidt@dinsmore.com -- DINSMORE & SHOHL, LLP,
Cincinnati, Ohio, for Appellees Professional Radiology and M.D.
Business Solutions.
David B. Shaver, Jeffrey C. Turner, SURDYK, DOWD & TURNER CO.,
L.P.A., Dayton, Ohio, for Appellee Controlled Credit.
QUICKEN LOANS: Not Engaged in UPL, S.C. Says
--------------------------------------------
The Supreme Court of South Carolina issued a declaratory judgment
in the case captioned Vance L. Boone, Thelma Boone, Travis G.
Messex, Theresa S. Messex, Brian Johnson, and Kelli Johnson, on
behalf of themselves and all others similarly situated,
Petitioners, v. Quicken Loans, Inc. and Title Source, Inc.,
Respondents, Opinion No. 27727 (S.C.).
In their complaint, Vance L. and Thelma Boone, Travis G. and
Theresa S. Messex, and Brian and Kelli Johnson (collectively
"Homeowners"), alleged the residential mortgage refinancing model
implemented by Quicken Loans, Inc. and Title Source, Inc. in
refinancing the Homeowners' mortgage loans constitutes
unauthorized practice of law (UPL). In addition to seeking
declaratory relief, Homeowners' complaint also sought class
certification and requested class relief.
The Supreme Court referred the matter to a Special Referee to take
evidence and issue a report containing proposed findings of fact
and recommendations to the Court regarding the UPL issue, as well
as on the issues of class certification and class relief.
Following an evidentiary proceeding during which the parties
submitted extensive testimony and documentary evidence, the
Special Referee issued a report proposing various factual findings
and recommending that the Court declare that Quicken Loans and
Title Source engaged in UPL but opining that neither class
certification nor class relief were appropriate under the
circumstances.
Quicken Loans and Title Source took exception to the Special
Referee's proposed findings of fact and UPL recommendation.
Homeowners took exception to Special Referee's recommendation that
class certification and class relief were unwarranted under the
circumstances.
The Court found the record in this case shows licensed South
Carolina attorneys were involved at every critical step of these
refinancing transactions, as required by the Court's precedents.
The Court also found that requiring more attorney involvement
would not effectively further its stated goal of protecting the
public from the dangers of UPL. The Court therefore respectfully
rejected the Special Referee's conclusion that Quicken Loans and
Title Source committed UPL. Because the Court rejected the
finding of UPL, it did not address the parties' remaining
exceptions, including Homeowners' request that the Court declare
their mortgages void and certify this case as a class action.
A full-text copy of the Court's July 19, 2017 ruling is available
at https://is.gd/WPYQQe from Leagle.com.
Charles L. Dibble -- charles@belserpa.com -- of Dibble Law
Offices, of Columbia, Steven W. Hamm --
shamm@richardsonplowden.com -- of Richardson Plowden & Robinson,
P.A., of Columbia; C. Bradley Hutto, of Williams & Williams, of
Orangeburg and Daniel Webster Williams, of Bedingfield & Williams,
of Barnwell, for Petitioners/Respondents.
Benjamin Rush Smith, III -- rush.smith@nelsonmullins.com -- Allen
Mattison Bogan -- matt.bogan@nelsonmullins.com -- and Carmen
Harper Thomas -- carmen.thomas@nelsonmullins.com -- all of Nelson
Mullins Riley & Scarborough LLP, of Columbia, and Jeffrey B.
Morganroth -- jmorganroth@morganrothlaw.com -- of Morganroth &
Morganroth, PLLC, of Birmingham, MI, pro hac vice, for
Respondents/Petitioners.
R&R MULTI-TRADE: "Sanchez" Seeks Unpaid Overtime Pay
----------------------------------------------------
Victor Garcia Sanchez, on behalf of himself and on behalf of all
others similarly situated, Plaintiff, v. R&R Multi-Trade
Construction Services, LLC, Defendant, Case No. 4:17-cv-00469
(E.D. Tex., June 29, 2017), seeks overtime compensation,
liquidated damages, reasonable attorney's fees, costs and expenses
of this action and such other and further relief under the Fair
Labor Standards Act.
R & R Multi-Trade Construction Services LLC provides construction
services to the hospitality and commercial interior industries.
Plaintiff worked for Defendant on a remodeling project of the
Westin Hotel in Las Vegas, Nevada from approximately February of
2017 to June of 2017. [BN]
Plaintiff is represented by:
Beatriz Sosa-Morris, Esq.
SOSA-MORRIS NEUMAN ATTORNEYS AT LAW
5612 Chaucer Drive
Houston, TX 77005
Telephone: (281) 885-8844
Facsimile: (281) 885-8813
Email: BSosaMorris@smnlawfirm.com
REBECCA ADDUCCI: Certification of Iraqi Nationals Class Sought
--------------------------------------------------------------
In the lawsuit captioned USAMA JAMIL HAMAMA, et al., the
Petitioners and Plaintiffs, v. REBECCA ADDUCCI, et al., the
Respondents and Defendants, Case No. 2:17-cv-11910-MAG-DRG (E.D.
Mich.), the Petitioners/Plaintiffs ask the Court to certify a
class defined as:
"all Iraqi nationals in the United States who had final orders
of removal on June 24, 2017, and who have been, or will be,
detained for removal by U.S. Immigration and Customs
Enforcement (ICE)".
The Petitioners further ask the Court to appoint Petitioners'
counsel as class counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=hAWh7TQn
The Plaintiff is represented by:
Kimberly L. Scott, Esq.
MILLER, CANFIELD, PADDOCK & STONE, PLC
ACLU Fund of Michigan
101 N. Main St., 7th Floor
Ann Arbor, MI 48104
Telephone: (734) 668 7696
E-mail: scott@millercanfield.com
REGIS CORP: $1.95M Settlement in "Dearaujo" Gets Final Approval
---------------------------------------------------------------
In the case captioned JESSICA DEARAUJO, individually and on behalf
of others similarly situated, Plaintiffs, v. REGIS CORPORATION, a
Minnesota corporation; SUPERCUTS CORPORATE SHOPS, INC., a
Minnesota corporation; and DOES 1 through 99, inclusive,
Defendants, No. 2:14-cv-01408-KJM-DB (E.D. Cal.), Judge Kimberly
J. Mueller of the U.S. District Court for the Eastern District of
California granted the Plaintiffs' unopposed motion for final
approval of class action settlement, an incentive award and an
award of attorneys' fees and costs.
The Defendant Supercuts Corporate Shops, Inc. is a wholly owned
subsidiary of Defendant Regis.
Plaintiff Kaelan worked for the Defendants as a stylist beginning
in 2008, was promoted to District Leader from on or about December
2010 through September 2012, and then served as the Regional Human
Resources Manager from September 2012 until about 2014. She
asserts five claims: (i) failure to indemnify necessary
expenditures; (ii) failure to provide accurate wage statements;
(iii) failure to timely pay wages; (iv) violations of the
California Unfair Competition Law (UCL); and (v) penalties under
the Private Attorneys General Act of 2004 (PAGA).
Plaintiff Dearaujo worked for the Defendants as a stylist
beginning on July 23, 2008, and was promoted to Salon Manager on
or about March 1, 2009. She is currently employed with defendants
as a Salon Manager in Modesto, California. She asserts six
claims: (i) failure to provide meal periods; (ii) failure to
authorize and permit rest periods; (iii) failure to provide
accurate wage statements; (iv) failure to reimburse necessary
expenditures; (v) violations of the UCL; and (vi) penalties under
PAGA.
To support their claims, the Plaintiffs alleged the Defendants
required them to use their car for bank runs and errands, and to
use their personal cell phones for the Defendants' benefit without
reimbursement. They also alleged they were often required to work
"off the clock" during a scheduled meal or rest period.
The Plaintiffs filed their original class action complaints in
Stanislaus County Superior Court against Regis on May 8, 2014, and
Regis removed the actions to this Court on June 11, 2014. On
April 15, 2015, by joint stipulation, the Plaintiffs filed the
operative first amended complaints, which added Supercuts as a
Defendant. On May 11, 2015, the Defendants filed answers to the
first amended complaints. On Dec. 2, 2015, the Court granted the
parties' request to consolidate the two actions.
In the meantime, the Court had set a hearing on a motion for class
certification but the parties first reached preliminary settlement
after a full day of private mediation on June 15, 2015, Hawkins
Attorneys' Fees. The Plaintiffs filed a motion for preliminary
approval of class settlement on May 5, 2016, and the Defendants
filed a statement of non-opposition to the motion on June 3, 2016.
The Court preliminary approved the settlement on June 19, 2016 and
conditionally certified the following classes: (i) all persons
employed by defendants as an Area Supervisor, District Leader, or
Senior District Leader in California at any time from May 8, 2010
through the date of preliminary approval of the settlement, and
who do not opt out of the Class Action Settlement Agreement; and
(ii) all hourly non-exempt persons employed by the Defendants as a
Shift Manager or Salon Manager in California at any time during
the same Settlement Class Period, and who do not opt out of the
Settlement.
Under the parties' settlement agreement, the Defendants agree to
pay a gross settlement amount ("GSA") of $1,950,000. The GSA is
inclusive of all individual class settlement payments, enhancement
awards, settlement class counsel's fees and costs, PAGA penalty
payments, and all administration costs. The settlement amount
does not include the Defendants' share of applicable payroll taxes
for wage payments made to Settlement Class Members under the
settlement; the Defendants bear that cost separately.
Upon approval, the GSA of $1,950,000 will be distributed as
follows: (i) the total enhancement amount paid to Named Plaintiffs
will be $30,000, with $15,000 for each Named Plaintiff; (ii) the
class administrator will receive $17,000; (iii) the PAGA payment
is $10,000, $7,500 of which will go to the California Labor
Workforce Development Agency as its 75% share of PAGA penalties,
with $2,500 distributed to the class on a pro rata basis; (iv) the
class counsel will receive $650,000, or 33% of the GSA; and (v)
the amount paid to class counsel for litigation expenses will be
$18,036.70. After deducting these distributions from the GSA, the
settlement amount available to putative class members will be
$1,227,463.30 ($1,950,000 - $722,536.70).
In sum, the Court finds that the Plaintiffs satisfy Rules 23(a)
and 23(b), and final approval of the class is appropriate.
Accordingly, the Court granted final certification of the classes.
The Court also finds that relevant factors weigh in favor of final
approval of the class settlement. In conclusion, the Court (i)
awarded an incentive payment of $15,000 to Ms. Kaelen and $5,000
to Ms. Dearaujo, for a combined total of $20,000; (ii) awarded
$17,000 to the class administrator; (iii) approved the PAGA
payment of $7,500 to be distributed to the California Labor
Workforce Development Agency; (iv) approved the attorneys' fees in
the amount of $650,000; and (v) approved the litigation expenses
in the amount of $18,036.70. No later than 14 days after the date
of the Order, the claims administrator will disburse the
attorneys' fees and costs. The Clerk of the Court is directed to
close this case.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/hwIBTu from Leagle.com.
Jessica Dearaujo, Plaintiff, represented by James Ross Hawkins --
James@jameshawkinsaplc.com -- James Hawkins APLC.
Jessica Dearaujo, Plaintiff, represented by Sean Sasan Vahdat --
sean@vahdatlaw.com -- Law Offices Of Sean S. Vahdat & Associates.
Amymarie Kaelan, Plaintiff, represented by James Ross Hawkins,
James Hawkins APLC & Sean Sasan Vahdat, Law Offices Of Sean S.
Vahdat & Associates.
Regis Corporation, Defendant, represented by Catherine M. Dacre --
cdacre@seyfarth.com -- Seyfarth Shaw LLP, Daniel C. Whang --
dwhang@seyfarth.com --Seyfarth Shaw LLP & Michael Anderson
Wahlander -- mwahlander@seyfarth.com -- Seyfarth Shaw LLP.
Supercuts Corporate Shops, Inc., Defendant, represented by
Catherine M. Dacre, Seyfarth Shaw LLP, Daniel C. Whang, Seyfarth
Shaw LLP & Michael Anderson Wahlander, Seyfarth Shaw LLP.
RIVERSIDE MAZDA: "Haas" Disputes Car Price, Asserts Overcharging
----------------------------------------------------------------
Kip Haas, individually, and on behalf of all others similarly
situated, Plaintiff, v. Riverside Mazda, Truecar, Inc. and Does 1-
100, Inclusive, Defendants, Case No. 5:17-cv-01327 (C.D. Cal.,
June 30, 2017), seeks damages, attorneys' fees and costs together
with such other relief for violation of the California False
Advertising Act and the Unfair Competition Law of the California
Business and Professions Code.
Mr. Haas claims to have a guaranteed purchase price of $21,839 on
the 2016 Mazda Mazda 3i Grand Touring 5-Door Automatic from
Riverside Mazda through the TrueCar website. However, Plaintiff
was charged an additional $4,000 for dealer fees, low-jack, window
tint, fabric care and dealer markup.
Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
Adrian R. Bacon, Esq.
Thomas E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St. Suite 780,
Woodland Hills, CA 91367
Phone: (877) 206-4741
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
mgeorge@toddflaw.com
abacon@toddflaw.com
twheeler@toddflaw.com
SAFELITE FULFILLMENT: Ontiveros Seeks Certification of 7 Classes
----------------------------------------------------------------
In the lawsuit styled YADIR A. ONTIVEROS, as an individual, and on
behalf of all others similarly situated, the Plaintiff, v.
SAFELITE FULFILLMENT, INC., a Delaware Corporation; SAFELITE
GROUP, INC., a Delaware Corporation; SAFELITE GLASS CORP., a
Delaware Corporation; and DOES 1 through 10, the Defendants, Case
No. 2:15-cv-07118-DMG-RAO (C.D. Cal.), the Plaintiff will move the
Court on September 29, 2017, in Department 8C of the United States
District Court for the Central District of California, for an
order certifying seven California-only classes consisting of non-
exempt employees of Safelite Fulfillment Inc.
The seven classes that Plaintiff seeks to certify are defined as
follows:
Class 1a (PPP Incentive Plan Class - Unpaid Rest Periods):
"all current and former non-exempt employees of Safelite who
worked in California as a Technician, and who were paid
pursuant to Safelite's PPP Incentive Plan, during the time
period September 9, 2011 through April 9, 2017";
Class 1b (PPP Incentive Plan Class - Unpaid Non-Productive Time):
"all current and former non-exempt employees of Safelite who
worked in California as a Technician, and who were paid
pursuant to Safelite's PPP Incentive Plan, during the time
period June 4, 2013 through April 9, 2017";
Class 1c (PPP Incentive Plan Class - Wage Statements):
"all current and former non-exempt employees of Safelite who
worked in California as a Technician, and who were paid
pursuant to Safelite's PPP Incentive Plan, during the time
period September 9, 2014 through April 9, 2017";
Class 2a (Wage Statement Class - Meal Period Premium):
"all current and former non-exempt employees of Safelite who
worked in California, and were paid a meal period premium
payment, during the time period September 9, 2014 to the
present";
Class 2b (Wage Statement Class - Installation Bonus):
"all current and former non-exempt employees of Safelite who
worked in California, earned an Installation Bonus and worked
overtime hours during the corresponding time period that the
Installation Bonus was earned, during the time period
September 9, 2014 to the present";
Class 3a (Unpaid Overtime Class - Artificial Dilution of Regular
Rate):
"all current and former non-exempt employees of Safelite who
worked in California, and who in the same time period: (i)
were paid a meal period premium payment as "regular" hours
worked; and (ii) earned any form of incentive pay;4 and (iii)
worked overtime hours, during the time period September 9,
2011 to the present (but limited to the time period of June 4,
2013 to the present for those individuals who worked as
Technicians or Windshield Repair Specialists)"; and
Class 3b (Unpaid Overtime Class - Underpaid Double-time Premium):
"all current and former non-exempt employees of Safelite who
worked in California, and who in the same time period: (i)
earned any form of incentive pay; and (ii) worked doubletime
hours, during the time period September 9, 2011 to the present
(but limited to the time period of June 4, 2013 to the present
for those individuals who worked as Technicians or Windshield
Repair Specialists).
The Plaintiff also moves the Court to enter an Order:
1. appointing Plaintiff Yadir A. Ontiveros as representative
of the Classes;
2. appointing Paul K. Haines, Tuvia Korobkin, Fletcher W.
Schmidt, and Sean M. Blakely, of Haines Law Group, APC as
Class Counsel; and
3. authorizing Plaintiff to send Notice to all absent Rule 23
Class Members.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=2MAZGdE2
The Plaintiff is represented by:
Paul K. Haines, Esq.
Tuvia Korobkin, Esq.
Fletcher W. Schmidt, Esq.
HAINES LAW GROUP, APC
2274 E. Maple Ave.
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2228
E-mail: phaines@haineslawgroup.com
tkorobkin@haineslawgroup.com
fschmidt@haineslawgroup.com
SANTA BARBARA HOSPITALITY: Byrne Seeks to Certify Dancers Class
---------------------------------------------------------------
In the lawsuit captioned LAUREN BYRNE, on behalf of herself and
all others similarly situated, the Plaintiff, v. SANTA BARBARA
HOSPITALITY SERVICES, INC., THE SPEARMINT RHINO COMPANIES
WORLDWIDE, INC., SPEARMINT RHINO CONSULTING WORLDWIDE, INC., and
SANTA BARBARA HOSPITALITY SERVICES, LLC, the Defendants, Case No.
5:17-cv-00527-JGB-KK (C.D. Cal.), the Plaintiff Lauren will move
the Court on August 21, 2017, to conditionally certify a
collective action of similarly situated current and former exotic
dancer employees pursuant to the Fair Labor Standards Act.
The Plaintiff makes this Motion on the grounds that there exist
other individuals similarly situated to her who were (1)
misclassified as "members" of various LLCs (such as Defendant
Santa Barbara Hospitality Services, LLC) purporting to have an
ownership interest in Defendants' Spearmint Rhino branded clubs
throughout the country and (2) not paid at the federally-mandated
minimum wage rate and similarly denied overtime premium pay as a
result of Defendants' Santa Barbara Hospitality Services, Inc.;
The Spearmint Rhino Companies Worldwide, Inc.; Spearmint Rhino
Consulting Worldwide, Inc.; and Santa Barbara Hospitality
Services, LLC failure to pay any wages whatsoever to exotic
dancers at its Spearmint Rhino branded clubs. The existence of
these similarly situated individuals justifies conditional
certification of a collective action pursuant to the FLSA.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=apXgoXi4
The Plaintiff is represented by:
Todd Slobin, Esq.
Ricardo J. Prieto, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621 2277
Facsimile: (713) 621 0993
E-mail: tslobin@eeoc.net
rprieto@eeoc.net
- and -
Melinda Arbuckle, Esq.
BARON & BUDD, P.C.
15910 Ventura Boulevard, Suite 1600
Encino, CA 91436
Telephone: (818) 839 6506
Facsimile: (818) 986 9698
E-mail: marbuckl@baronbudd.com
SCALES 925: T.I. Seeks Dismissal of Ex-Employees' Class Action
--------------------------------------------------------------
AllHipHop reports that T.I. stated that his former restaurant,
Scales 925, was one of his worst business ventures, and now we see
it's still haunting him!
OH MY! Rapper T.I. continues to deny that he screwed his former
Scales 925 restaurant employees out of their owed, regular and
overtime wages.
T.I. believes that the employees' class action suit is so bogus,
that he actually wants it thrown out.
Tip claims that he played no active role in the day-to-day
operations of the restaurant and venue. He even goes on to say
that the business venture made him under $500k. Damn.
According to TheJasmineBrand, T.I. has responded to the class
action suit denying that he had any control over the restaurant's
operations.
Tip claims that he wasn't in charge of hiring or firing employees,
and he took no part in setting employees wages and work schedules.
T.I. denies being the one to employ any of these individuals, and
he does not believe he should be sued along with the other
defendants.
Apparently Tip had no involvement past the initial hiring of the
head chef and picking the location and the menu.
The Atlanta rapper demanded that he be dismissed from the class
action suit, and that his ex-employees not be awarded a dime! [GN]
SLATER & GORDON: Class Action Head James Higgins Leaves Firm
------------------------------------------------------------
David Marin-Guzman, writing for Australian Financial Review,
reports that the exodus of senior talent from troubled law firm
Slater & Gordon is threatening to turn into a flood, with the
firm's head of general law James Higgins and its national union
relationship manager Emma Walters both quitting the firm.
The high-profile resignations come on the heels of the shock
departure of long-standing industrial relations head Marcus
Clayton and have fuelled concerns the listed law firm is at risk
of losing major union clients, including the Construction,
Forestry, Mining and Energy Union.
Sources have described the loss of Mr Higgins, who is renowned for
driving Slaters' super class action strategy and has a long family
history with the firm, as "catastrophic" due to his key client
relationships.
Mr Higgins, who is husband to Victorian Labor MP Jane Garrett and
a former adviser to state premiers Steve Bracks and John Brumby,
was the principle source of the firm's political work.
Meanwhile, Ms Walters is the partner of CFMEU Victorian secretary
John Setka and was one of the main reasons for Slaters maintaining
the CFMEU's work.
Slaters did not respond to requests for comment before deadline
and the CFMEU Victorian branch declined to comment on whether it
would keep using the law firm.
Higgins like 'royalty'
Lawyers at the left-wing law firm are understood to be unhappy
about working for a hedge fund after New York-based Anchorage
Capital Group took control in a long-awaited restructure.
The debt for equity swap was intended as a fix for the firm's
heavy debts after its ill-fated foray into the United Kingdom that
destroyed billions of dollars in shareholder funds.
However, the resignations of its most senior legal talent have
introduced a new headache for the firm.
The departure of Mr Higgins in particular is a major symbolic loss
for the firm, with sources describing him as "royalty" given that
both his parents worked there in the 1970s.
His father, the revered late Mike Higgins, worked at the firm for
almost two decades and was behind the first asbestosis cases
before becoming a judge.
The Australian Financial Review could not confirm whether the
three resignations were connected but sources said that Mr Higgins
was close to Mr Clayton, who had acted as a mentor for the younger
lawyer and worked on industrial cases with him.
Sources said Mr Clayton may be setting up his own firm in line
with the actions of Slaters' top class action lawyers and its
Victorian head of medical negligence who all quit in the last
three months.
Slaters' national facilities and administration manager
Deborah Potas is also understood to have resigned.
The departures come as Slaters co-founder Peter Gordon started
advertising jobs for his firm Gordon Legal and is understood to
have approached Slaters lawyers about working for him.
Gordon Legal is effectively a shell company at the moment and its
website is "currently under redevelopment".
But the job advertisements suggest Mr Gordon, along with former
Slaters partner Paul Henderson, is seeking to turn it back into a
full-working law firm.
Mr Gordon and Mr Henderson could not be reached for comment. [GN]
SONY CORP: Judge Tosses Class Action Over Internet Music Prices
---------------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that a Manhattan
federal judge on July 18 said consumers accusing several big music
companies of conspiring to inflate prices of music sold over the
Internet and on compact discs cannot pursue their claims in class
actions.
U.S. District Judge Loretta Preska's 89-page decision is a victory
for Sony Corp, Vivendi SA's Universal Music Group, Warner Music
Group and various affiliates in the 11-year-old lawsuit, which the
judge said has been delayed by extensive disputes over evidence.
Consumers accused the defendants of taking unfair advantage of
their 80 percent share of the U.S. market for online music, and
that by making such music "less attractive" to buy were able to
drive up CD prices.
But the judge said individual questions would "quickly overwhelm"
issues common to the potential millions of people who could be
represented in a nationwide class action.
She said this was particularly true given the likelihood that a
"significant percentage" of potential class members might have
"unclean hands" because they downloaded music illegally.
"As defendants have stated succinctly during this litigation, 'a
plaintiff may not complain that one hand is being overcharged
while the other hand is robbing the store,'" Judge Preska wrote.
Lawyers for the plaintiffs did not immediately respond to requests
for comment.
Class actions let plaintiffs pursue claims in groups and
potentially obtain larger recoveries than if they were forced to
sue individually, which can prove too expensive.
The judge also refused to certify nine separate damages classes
for consumers from eight U.S. states and the District of Columbia,
saying differences among states' laws would make class action
litigation "unmanageable."
Judge Preska also largely rejected an effort to exclude testimony
from two antitrust experts retained by the plaintiffs and rejected
an effort to exclude testimony from a computer forensics expert
retained by the defendants.
The case is In re: Digital Music Antitrust Litigation, U.S.
District Court, Southern District of New York, No. 06-md-01780.
[GN]
SOULCYCLE: Customers May Get Refunds for Expired Classes
--------------------------------------------------------
Courtney Vinopal, writing for Washingtonian, reports that many
SoulCycle riders in DC share the experience of saving their
pennies, purchasing a package of classes, and scheduling them out.
But then plans to sweat off 45 minutes are upended because the
passes have expired.
"This happened to me last year, just as I was about to register
for a class on 14th Street last year. My balance was gone,
without so much as a heads-up from SoulCycle," Ms. Vinopal said.
"But I got an email saying that I might be able to get $25 to $50
back, either in SoulCycle credits or cash. The email was in
reference to a federal class-action suit against the fitness
company that was preliminarily approved June 22 by a judge in
California."
For years, SoulCycle has profited off expired packages that
customers use to purchase classes, called "series." Rather than
buy seats directly, SoulCycle requires that customers purchase
these "series" certificates -- even for just a single ride --
which are then redeemed for actual reservations. When certificates
expire, the company does not offer refunds, and customers lose
their remaining balance.
When Los Angeles resident Rachel Cody realized in 2015 that a one-
class "series" she had purchased had expired after 30 days, she
sued. Ms. Cody claimed that SoulCycle's short expiration periods
violated the Credit Card Accountability Responsibility and
Disclosure Act, which mandates that gift cards cannot have an
expiration date shorter than five years. The plaintiff also
accused SoulCycle of inducing customers to buy more expensive
packages with longer shelf lives -- a $780 30-class package is
good for a year, for instance -- but still failing to offer
warnings when those series are about to expire.
While SoulCycle's business practices make it easy for customers to
lose money, they're hardly unheard of in the cut-throat world of
fitness chains. In January, Bloomberg reported that the average
monthly health club fee paid by gym-goers had increased 17 percent
in the past two years, caused in part by a response to competition
from boutique gyms like SoulCycle. The money made by selling
series has worked in SoulCycle's favor-S-1 records filed with the
Securities and Exchange Commission indicate that the cycling giant
made $25 million from series certificates in 2014 alone, although
it's unclear what portion of that revenue came from expired
packages that went unused.
The class-action suit, which seeks damages for Cody and all other
customers affected by the "unlawful expiration date" of the series
certificates, reached a proposed settlement in April. SoulCycle
tried to dismiss the case by arguing that series certificates
should not be considered gift cards, but was unsuccessful.
If Cody, et al. v. SoulCycle Inc. survives the final hearing in
October, SoulCycle customers who had series certificates that
expired before they were used will receive up to $50 in credits to
the cycling studio. They can also elect to take this money in
cash.
Neither the attorneys involved in the case nor a representative
from SoulCycle had responded to requests for comment. An employee
at the front desk of SoulCycle's West End location said she could
not comment on the suit, but did note that customers can extend
their series certificates if they realize their balance is about
to expire.
Still, word of the lawsuit is spinning around SoulCycle's famously
loyal customer base. Amanda Kerbel, who was heading into a
Tuesday-morning session, said she and her friends had recently
been talking about the case after some of them received the email
notice about it. Ms. Kerbel -- said she's gone to SoulCycle in
New York and DC since high school -- said she's had only good
experiences with the company.
"They have really good customer service; they're very good about
it," she said, noting that the studios she attends in DC tend to
be understanding of last-minute conflicts, and allow her to
reschedule past the standard deadline if necessary. "If I wake up
late or get sick, I just call, and they always give me my bike
back."
One of the mantras that SoulCycle proudly displays on its
Pinterest board is that "there is no CHANGE without CHALLENGE." It
seems the company took the saying to heart with this particular
challenge, as there is a noticeable addition to the Terms and
Conditions today that wasn't there in the months before Rachel
Cody sued: Section C, titled "Class Action Waiver," states that
"the arbitration of any Dispute . . . shall be conducted on an
individual, not a class-wide basis," and that "the arbitrator of
any Dispute between us may not consolidate more than one person's
claims." [GN]
SPACE NY: "Cruz" Alleges Retaliation, Seeks Overtime Pay
--------------------------------------------------------
Moises Cruz, Saul Soto, Victor Tapia and Juan Dejesus,
individually and on behalf of others similarly situated,
Plaintiffs, v. Space NY 50th St LLC, Eden Ballroom LLC, Antonio
Piacquadio, Carlo Seneca, Michael Geniton and David Mundo,
Defendants, Case No. 1:17-cv-04936 (S.D. N.Y., June 29, 2017),
seeks unpaid compensation, liquidated damages and prejudgment
interest, attorneys' fees and costs pursuant to the Fair Labor
Standards Act and New York Labor Law.
Defendants jointly operate a dance club hosting music events
located at 637 W. 50th Street, New York, NY 10019. Plaintiff Cruz
worked as a porter while Soto, Tapia and De Jesus worked as
handymen and barbacks. Cruz was allegedly terminated for
complaining about his overtime wages. [BN]
Plaintiff is represented by:
Kerry E. Connolly, Esq.
CONNOLLY LAW
One Battery Park Plaza, 32nd Floor
New York, NY 10004
Tel: (212) 372-7333
Fax: (917) 591-4858
Email: kconnolly@connollylaw.us.com
STAFFWORKS LLC: Can't Compel Arbitration in "Armenta" Labor Suit
----------------------------------------------------------------
In the case captioned FLORA ARMENTA, individually and on behalf of
others similarly situated, Plaintiff, v. STAFFWORKS, LLC,
Defendant, Case No. 17-cv-00011-BAS-NLS (S.D. Cal.), Judge Cynthia
Bashant of the U.S. District Court for the Southern District of
California denied the Defendant's motion to compel arbitration,
strike class claims, and stay litigation.
The Plaintiff sought job placement through the Defendant, a
staffing agency that places applicants with various client
companies.
Prior to being assigned to work for a client company, applicants
visit the Defendant's office to fill out initial paperwork and
participate in a brief interview to determine the applicant's
skillset and desired employment. When the Plaintiff visited the
Defendant's office, she received and signed a one-page Mandatory
Arbitration Agreement.
The Plaintiff later commenced this putative class and collective
action against the Defendant under the Fair Labor Standards Act
("FLSA") and California labor law. At the heart of her claims is
the allegation that the Defendant failed to pay her and those
similarly situated, resulting in the underpayment of wages in
violation of the FLSA and California labor law. Based on the
Agreement, the Defendant now moves to compel arbitration of the
Plaintiff's individual claims, strike her class claims, and stay
this action pending the outcome of arbitration.
Judge Bashant held that Section 7 of the NLRA affords the
Plaintiff the right to engage in concerted activity, and Section 8
forbids the Defendant from interfering with this right. Based on
Morris v. Ernst & Young, LLP, an employer violates Section 8 when
it limits employees to pursuing employment claims in one forum and
precludes them from acting in concert in that forum. Although
there is no express concerted action waiver in the Agreement, the
Defendant's attempt to compel arbitration and strike class claims
is an attempt to limit the Plaintiff to arbitration and prevent
her from acting in concert in arbitration. To do so would violate
her Section 7 rights. Because the Defendant is seeking to enforce
the Agreement in violation of Section 8, Judge Bashant finds the
Agreement to be illegal and unenforceable. In light of the
foregoing, he denied the Defendant's motion to compel arbitration,
strike class claims, and stay litigation.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/VQmQXj from Leagle.com.
Flora Armenta, Plaintiff, represented by Alex M. Tomasevic --
atomasevic@nicholaslaw.org -- Nicholas and Tomasevic LLP.
Flora Armenta, Plaintiff, represented by Craig McKenzie Nicholas -
- cnicholas@nicholaslaw.org -- Nicholas and Tomasevic, David
Gerald Greco, Nicholas & Tomasevic, LLP, Kelsey Dale McCarthy --
kelsey@glicklawgroup.com -- Glick Law Group, P.C. & Noam Glick,
Glick Law Group, P.C..
Staffworks, LLC, Defendant, represented by E. Joseph Connaughton,
III -- jconnaughton@paulplevin.com -- Paul Plevin Sullivan and
Connaughton, Nicholas P. Banegas -- nbanegas@paulplevin.com --
Paul, Plevin, Sullivan & Connaughton, LLP & Aaron Alan Buckley --
abuckley@paulplevin.com -- Paul Plevin Sullivan and Connaughton.
STEIN MART: "Broussard" Suit Seeks to Certify ASM Workers Class
---------------------------------------------------------------
In the lawsuit captioned Bryan Broussard Jr. and Marylyn Clarke,
Individually and on Behalf of All Others Similarly Situated, the
Plaintiffs v. Stein Mart, Inc., the Defendant, Case No. 4:16-cv-
03247 (S.D. Tex.), the Plaintiffs ask the Court to:
1. conditionally certify a proposed collective;
"ASMs who worked at Stein Mart from November 8, 2013 to
October 2016";
2. order Stein Mart to produce a computer-readable data file
containing the names, last known mailing addresses, last
known telephone numbers, last known personal and work email
addresses, social security numbers, and work locations for
all collective members;
3. authorize Plaintiffs to mail and email the proposed Notice
and Consent to Join Form and Reminder Postcard to the
collective;
4. authorize Plaintiffs to create a website where members of
the FLSA collective can review the notice and join the
case; and
5. order Stein Mart to post the notice in its break rooms and
include the notice in ASMs' pay envelopes or other method
of delivery of their paycheck information as may be
applicable
According to the complaint, the Defendant misclassifies their
Assistant Store Managers (ASMs) as exempt and fails to pay them
overtime compensation for hours worked in excess of 40 hours per
workweek, in violation of the Fair Labor Standards Act, even
though ASMs spent the majority of their workdays performing non-
exempt, retail clerk duties such as: cashiering; basic customer
service; returns; stocking; inventory cleaning; folding, tagging
and hanging clothes; and operational/clerical duties. Through this
Motion, Plaintiffs, who worked in 12 store locations in five
different states, seek to protect the rights of hundreds of ASMs
across the country.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=86WLkadq
The Plaintiffs are represented by:
Marc S. Hepworth, Esq.
David A. Roth, Esq.
Charles Gershbaum, Esq.
Rebecca Predovan, Esq.
HEPWORTH, GERSHBAUM & ROTH, PLLC
192 Lexington Avenue, Suite 802
New York, NY 10016
Telephone: (212) 545 1199
Facsimile: (212) 532 3801
- and -
Melissa Moore, Esq.
Curt Hesse, Esq.
MOORE & ASSOCIATES
Lyric Center
440 Louisiana Street, Suite 675
Houston, TX 77002
Telephone: (713) 222 6775
Facsimile: (713) 222 6739
The Defendant is represented by:
Leonard V. Feigel
Kevin E. Hyde
FOLEY & LARDNER LLP
One Independent Drive, Suite 1300
Jacksonville, FL 32202-5017
E-mail: lfeigel@foley.com
khyde@foley.com
- and -
James A. Collura, Jr.
BRADLEY ARANT BOULT CUMMINGS LLP
700 Milam, Suite 1300
Houston, TX 77002
Telephone: (832) 871 5081
E-mail: jcollura@bradley.com
STRATEGIC MATERIALS: Venue of "Caravantes" Moved to E.D. Cal.
-------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order granting Defendant's Motion to Transfer
Venue in the case captioned PEDRO CARAVANTES, on behalf of himself
and others similarly situated, Plaintiff, v. STRATEGIC MATERIALS,
INC., a corporation; and Does 1 to 100, inclusive, Defendants, No.
2:17-cv-01147-MCE-GGH (E.D. Cal.).
Through the present action, Plaintiff alleges that his former
employer, Strategic Materials, Inc., failed to pay certain wages
owed him and further failed to provide the rest and meal periods
required by the California Labor Code.
Plaintiff's complaint, was removed to this Court on May 31, 2017,
on grounds that because Plaintiff purports to bring this matter
not only on his own behalf but also on behalf of all others
similarly situated, his lawsuit comes within the purview of the
Class Action Fairness Act of 2005. See 28 U.S.C. Section 1332(d).
Defendant now moves to either dismiss Plaintiff's Complaint, or
alternatively to change venue of the proceeding, pursuant to 28
U.S.C. Sections 1404 and 1406(a), on grounds that both the events
and circumstances at issue herein occurred in Los Angeles,
California. Defendant further filed a Motion to Compel
Arbitration on grounds that Plaintiff entered into an enforceable
arbitration agreement.
Plaintiff filed Statements of Non-Opposition both to Defendant's
Motion for Change of Venue and to its Motion to Compel
Arbitration.
Defendant's Motion to Transfer Venue is Granted.
Because venue in this district appears improper, however, the
Court declines to rule on Defendant's Motion to Compel Arbitration
and accordingly Denies that Motion.
A full-text copy of the District Court's July 20, 2017 Opinion is
available https://is.gd/yvShWD from Leagle.com.
Pedro Caravantes, Plaintiff, represented by Andrea Leigh
Rosenkranz, Lavi & Ebrahimian, LLP.8889 West Olympic Boulevard,
Suite 200, Beverly Hills, CA 90211
Phones: 310-734-0170
Pedro Caravantes, Plaintiff, represented by Joseph Lavi, Lavi &
Ebrahimian, LLP. 8889 West Olympic Boulevard, Suite 200, Beverly
Hills, CA 90211 Phones: 310-734-0170
Strategic Materials, Inc., Defendant, represented by Lena Kae Sims
-- lsims@littler.com -- Littler Mendelson, P.C.
SUTHERLAND MORTGAGE: Court Grants Expedited Bid to Certify Class
----------------------------------------------------------------
In the lawsuit titled WILLIAM RAPP, LARRY EGGETT, Individually and
on behalf of all others similarly situated, the Plaintiffs, v.
SUTHERLAND MORTGAGE SERVICES, INC., the Defendant, Case No. 4:17-
cv-01010 (S.D. Tex.), the Hon. Judge Nancy Atlas entered an order
granting Plaintiffs' expedited motion to conditionally certify a
collective action and to issue notice.
The Court said, "Defendant has advised the Court via email dated
July 19, 2017, that it no longer opposes the Motion, that the
parties have agreed to the language of the proposed notice, and
that the proposed notice has been sent to potential class
members."
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=b9UQ6Hnw
T&R MARKET: Sued Over Tax Refund Anticipation Loans
---------------------------------------------------
Andrew Westney, writing for Law360, reports that a New Mexico
couple who are members of the Navajo Nation on July 13hit a
company and two subsidiaries with a proposed class action,
alleging that they preyed on consumers in and around the tribe's
reservation by charging secret fees and hiding the true interest
rate for loans tied to consumers' tax refunds.
In their complaint on July 13, William and Sammia DeJolie said
they were seeking to represent a class of more than 1,000 who
received tax refund anticipation loans since November 2014 from
T&R Market Inc. and two companies it owns, Tancorde Finance Inc.
and T&R Tax Service Inc., at a group of T&R stores in Gallup, New
Mexico.
The tax refund anticipation loans, or RALs, that the DeJolies and
others received from T&R are secured by federal tax refunds, and
the companies "compounded the inherently predatory nature of tax
refund anticipation loans by engaging in widespread and
intentional deception of their customers," in violation of the
federal Truth in Lending Act and the New Mexico Unfair Practices
Act, according to the complaint.
The DeJolies took out a loan that had a stated 264 percent annual
percentage rate, but the companies' misrepresentation of fees
disguised that the true interest rate on the loan was 385 percent
-- an approach repeated with other recipients, they said.
"In all of its tax refund anticipation loans to thousands of
customers, including plaintiffs, defendants imposed hidden
charges, deceptively understated the APR and engaged in other
unlawful and deceptive conduct," according to the complaint.
The companies have made RALs to many northwest New Mexico
residents living on or near the Navajo Nation's reservation, the
couple said. Gallup is located near the Arizona state line, west
of Albuquerque.
In all the RALs it offered since Nov. 1, 2014, T&R violated the
TILA when it "uniformly underdisclosed" the finance charges
customers owed and the APR, the DeJolies said.
The companies also illegally collected fees out of customers' tax
refunds beyond what was allowed in their standard contract,
according to the complaint.
The DeJolies took out a loan in November that was secured by their
anticipated federal tax refund, and they agreed to return to T&R
Tax Service a few months later to let the company prepare their
tax return and take repayment of the loan from the actual refund.
The companies' failure to include a document fee in its disclosed
finance charge made the APR for the loan look lower than it
actually turned out to be, and hidden charges that were later
revealed drove up the APR further, according to the complaint.
The couple filed claims for conversion, willful breach of
contract, unjust enrichment and civil conspiracy, on top of their
TILA and New Mexico Unfair Practices Act claims.
Representatives for the parties were not immediately available to
comment on July 14.
The DeJolies are represented by Nicholas Mattison, Esq. and
Richard N. Feferman, Esq. -- consumer@nmconsumerwarriors.com --
of Feferman Warren & Mattison.
Counsel information for T&R Market was not immediately available
on July 14.
The case is DeJolie et al. v. T&R Market Inc. et al., case no.
1:17-cv-00733, in the U.S. District Court for the District of New
Mexico. [GN]
TACI INVESTMENTS: "Hankton" Labor Case Seeks Unpaid Overtime
------------------------------------------------------------
Dominique Hankton and Willie Ray Davis, individually and on behalf
of all other similarly situated current and former employees,
Plaintiffs, v. Taci Investments, Inc., Kamal P. Singh, Sanjay
Mehra, Mohammad H. Tily and Refeick Ali, individually, Defendant,
Case No. 2:17-cv-06441 (E.D. La., July 1, 2017), seeks to recover
overtime pay, liquidated damages, prejudgment interest, costs and
attorney's fees under the Fair Labor Standards Act.
TACI is a KFC, Taco Bell and Long John Silver's franchisee and
operates restaurants in several states across the southeastern
United States, including Texas, Louisiana, Alabama, Florida,
Georgia, South Carolina and North Carolina. Hankton was previously
employed by TACI as an Assistant Manager at TACI's KFC restaurants
in New Orleans, Gonzales and Baton Rouge, Louisiana. Davis was
previously employed by TACI as an Assistant Manager at TACI's KFC
restaurants in Baton Rouge, Louisiana. [BN]
Plaintiff is represented by:
Kenneth C. Bordes, Esq.
KENNETH C. BORDES, ATTORNEY AT LAW, LLC
2725 Lapeyrouse St.
New Orleans, LA 70119
Tel: (504) 588-2700
Fax: (504) 708-1717
Email: kcb@kennethbordes.com
- and -
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
Paula R. Jackson, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Tel: (901) 754-8001
Fax: (901) 759-1745
Email: gjackson@jsyc.com
rbryant@jsyc.com
pjackson@jsyc.com
TESORO REFINING: Bid to Dismiss "Azpeitia" Suit Partly Granted
--------------------------------------------------------------
Judge Jon S. Tigar of the U.S. District Court for the Northern
District of California granted in part and denied in part the
Defendants' Motion to Dismiss the case captioned CHRIS AZPEITIA,
et al., Plaintiffs, v. TESORO REFINING & MARKETING COMPANY LLC, et
al., Defendants, Case No. 17 -cv-00123-JST (N.D. Cal.).
The Plaintiffs bring a putative class action asserting several
claims under California wage laws and related statutes against
Defendants. The Named Plaintiffs are or were employed as
operators at the Defendants' Golden Eagle facility located in
Martinez, California, and the Defendants' Los Angeles Refinery,
located in Carson and Wilmington, California. Because the oil
refining and distribution process requires constant monitoring,
operators work a continuous 12-hour shift and are required to
remain on duty during the entire shift.
The gravamen of the Plaintiffs' complaint is that the Defendants
do not authorize or permit them to take off-duty rest breaks for
every four-hour work period or major fraction thereof, as mandated
by law.
The Plaintiffs assert the following four causes of action under
California law: (i) violations of California Labor Code section
226.7 and California's Industrial Welfare Commission ("IWC") Wage
Order 1-2001 for failure to provide rest periods; (ii) violation
of Labor Code section 226 for failure to provide accurate written
wage statements; (iii) violation of California's Private Attorney
General Act ("PAGA"); and (iv) violation of California's Unfair
Competition Law ("UCL").
On April 14, 2017, the Defendants moved to dismiss the Plaintiffs'
First Amended Complaint ("FAC"), asserting that the Plaintiffs'
state law claims are preempted by section 301 of the Labor
Management Relations Act ("LMRA") and that several of their
derivative claims are deficiently pled. On April 26, 2017, the
parties filed a stipulation requesting to direct the Defendants'
Motion to Dismiss to the Plaintiffs' soon-to-be-filed Second
Amended Complaint ("SAC"), which the Court granted. The
Plaintiffs filed their SAC on May 3, 2017 to add allegations that
they had administratively exhausted their PAGA claims.
The Defendants advance two primary arguments in support of their
motion: (i) the Plaintiffs' claims are preempted by section 301 of
the LMRA because they require interpretation of the Collective
Bargaining Agreements ("CBAs"); and (ii) the Plaintiffs'
derivative claims fail to state a viable claim for relief.
The Court concludes that while the Defendants place numerous CBAs
before the Court, none of them forms the basis of the Plaintiffs'
claims. In other words, the Plaintiffs' claims involve rights
conferred upon an employee by virtue of state law, not by a CBA.
Because the right to rest breaks is independently rooted in state
law, and the right to an uninterrupted rest break is clear, it is
not substantially dependent on the analysis of a CBA, section 301
preemption does not apply.
The Defendants contend that the Plaintiffs' Labor Code section 226
claim should be dismissed because wage statements need not include
unearned wages. This Court has previously held that payments
awarded under Labor Code section 226.7 in respect of missed meal
periods are properly classified as wages. The Defendants attempt
to distinguish Parson v. Golden State, LLC on the ground that the
Plaintiffs' claim there arose under Labor Code Section 204, which
concerns the timing of wage payments, rather than under Labor Code
Section 226, which concerns the content of wage statements. But
they do not explain how this distinction matters, or why such
payments should be considered "wages" in one context but not the
other. Accordingly, the Court declined the Defendants' invitation
to reconsider its prior ruling in Parson and instead concluded
that the payments required by section 226.7 should be considered
wages, and that the Plaintiffs may therefore bring a derivative
claim under section 226. Thus, the Court denied the Defendants'
motion to dismiss Plaintiffs' section 226 claim.
The Defendants assert that they cannot predicate their UCL claims
on Labor Code section 226 violations. They base their argument
regarding section 226 claims on the same reasoning as their
argument about section 226.7 -- an argument the Court rejected.
However, the Plaintiffs do not respond to this part of the
Defendants' motion, and it is unclear to the Court what UCL relief
the Plaintiffs could seek for a 226 violation. The Court
accordingly took the Plaintiffs' silence as a concession, and
granted the Defendants' motion on this ground.
The Plaintiffs' UCL claim seeks an order of disgorgement of all
profits gained by operation of the unfair business practices. The
Defendants argue that such a request is improper and not permitted
by the UCL. The Plaintiffs do not oppose the Defendants' argument
on this claim. The Court agrees with the Defendants. Thus, the
Court granted the Defendants' motion to dismiss the Plaintiffs
request for disgorgement of profits under the UCL.
The Defendants raise two issues with respect to the Plaintiffs'
PAGA claims. First, they assert that because the Plaintiffs
failed to fulfill PAGA's mandatory exhaustion requirements prior
to filing suit, the claims must be dismissed. Second, they
contend that because the Plaintiffs' Labor Code section 226 and
226.7 claims already provide for penalties, the Plaintiffs may not
recover additional penalties under PAGA. The Court disagrees.
Because the Plaintiffs amended their complaint to allege
exhaustion, failing to exhaust prior to filing suit is not fatal
to their claim; and because Labor Code section 226.7 does not
provide for civil penalties, the Plaintiffs state a viable claim
for recovery of civil penalties for 226.7 violations under PAGA.
Therefore, the Court denied the Defendants' motion to dismiss
Plaintiffs' PAGA claims.
For the foregoing reasons, the Court granted the Defendants'
motion to dismiss with regard to the Plaintiffs' UCL claim under
Labor Code section 226 and their claim for disgorgement under the
UCL; and denied in all other respects. Because the Court
concluded that amendment would be futile, dismissal is without
leave to amend. The Defendants' requests for judicial notice are
granted by the Court.
A full-text copy of the Court's July 21, 2017 order is available
at https://is.gd/YKXhj8 from Leagle.com.
Chris Azpeitia, Plaintiff, represented by Jay Edward Smith,
Gilbert & Sackman, A Law Corporation.
Chris Azpeitia, Plaintiff, represented by Cornelia Dai, Hadsell
Stormer & Renick, LLP, Randy R. Renick, Hadsell Stormer & Renick,
LLP & Joshua Finley Young, Gilbert & Sackman, A Law Corporation.
Antonio Garcia, Plaintiff, represented by Jay Edward Smith,
Gilbert & Sackman, A Law Corporation, Cornelia Dai, Hadsell
Stormer & Renick, LLP, Randy R. Renick, Hadsell Stormer & Renick,
LLP & Joshua Finley Young, Gilbert & Sackman, A Law Corporation.
Eileen Foster, Plaintiff, represented by Jay Edward Smith, Gilbert
& Sackman, A Law Corporation, Cornelia Dai, Hadsell Stormer &
Renick, LLP, Randy R. Renick, Hadsell Stormer & Renick, LLP &
Joshua Finley Young, Gilbert & Sackman, A Law Corporation.
Samantha West, Plaintiff, represented by Jay Edward Smith, Gilbert
& Sackman, A Law Corporation, Cornelia Dai, Hadsell Stormer &
Renick, LLP, Randy R. Renick, Hadsell Stormer & Renick, LLP &
Joshua Finley Young, Gilbert & Sackman, A Law Corporation.
Tesoro Refining & Marketing Company LLC, Defendant, represented by
Michael Warner Kopp, Seyfarth Shaw LLP, Timothy Michael Rusche,
Seyfarth Shaw LLP & William James Dritsas, Seyfarth Shaw LLP.
Tesoro Logistics GP, LLC, Defendant, represented by Michael Warner
Kopp -- mkopp@seyfarth.com -- Seyfarth Shaw LLP, Timothy Michael
Rusche -- trusche@seyfarth.com -- Seyfarth Shaw LLP & William
James Dritsas -- wdritsas@seyfarth.com -- Seyfarth Shaw LLP.
Michael Singer, Miscellaneous, represented by Michael David Singer
-- msinger@ckslaw.com -- Cohelan Khoury & Singer.
Jinetra Bonner, Miscellaneous, represented by Michael David
Singer, Cohelan Khoury & Singer.
TEXAS: Court Grants Preliminary Injunction in "Cole" Suit
---------------------------------------------------------
In the case captioned KEITH COLE, et al, Plaintiffs, v. BRYAN
COLLIER, et al, Defendants, Civil Action No. 4:14-CV-1698 (S.D.
Tex.), Judge Keith P. Ellison found that a preliminary injunction
should issue to ensure that prisoners at the Wallace Pack Unit are
not deprived of their Eighth Amendment right to be free of cruel
and unusual punishment.
The lawsuit was filed on June 19, 2014. Initially, Plaintiffs
consisted of four men -- David Bailey, Marvin Yates, Keith Cole
and Nicholas Diaz -- incarcerated at the Pack Unit. The Pack Unit
is a Type-I Geriatric prison, which means it is a single-level
facility with wheelchair accommodations.
Plaintiffs have sued Bryan Collier, the Executive Director of
Texas Department of Criminal Justice (TDCJ), and Robert Herrera,
the warden of the Pack Unit, under 42 U.S.C. section 1983,
alleging that the conditions of confinement in the Pack Unit
violate Plaintiffs' Eighth Amendment right to be safe from
conditions of confinement that cause a substantial risk of serious
injury or death. A smaller subset of the plaintiffs -- those who
claim to have a disability -- also alleged that TDCJ is violating
its right to be reasonably accommodated under the Americans with
Disabilities Act (ADA) and Rehabilitation Act (RA).
Plaintiffs moved for class certification, and in May 2016, the
Court held a four-day evidentiary hearing. On June 14, 2016, the
Court granted Plaintiffs' motion for class certification,
certifying a general class and two subclasses. Around the same
time, Plaintiffs also moved for a preliminary injunction requiring
the Pack Unit to provide safe drinking water, to adopt a formal
policy to address the dangers of heat waves, to monitor regularly
the temperatures inside the Pack Unit, and to amend its policy
regarding respite areas -- locations that prisoners can go to for
relief from the heat. The Court considered evidence on the Motion
during the four-day evidentiary hearing. On June 21, 2016, the
Court entered a preliminary injunction ordering the Pack Unit to
provide water that conformed to the Environmental Protection
Agency (EPA) maximum contaminant level requirements for arsenic.
Soon thereafter, the Court denied Defendants' Motion for Summary
Judgment.
On May 1, 2017, Plaintiffs filed a motion for a second preliminary
injunction, and on May 22, 2017, Defendants responded. The Court
held a nine-day hearing in June 2017. Plaintiffs asked the Court
to order TDCJ to lower the indoor temperatures at the Pack Unit to
below 88 degrees for the summer of 2017. They contended that the
extreme heat they endure at the Pack Unit is dangerous and
damaging to their health, and that Defendants' mitigation measures
are wholly inadequate to counter the high temperatures. As a
result, Plaintiffs claim, the heat creates an unconstitutional
condition of confinement. If the Court fails to order Pack Unit
to lower the temperatures, Plaintiffs request various forms of
alternate relief, including mandating three hours of scheduled
respite time, installing portable "cooling units" in the inmate
housing areas, monitoring each person's water consumption, and
requiring medical staff to conduct "wellness checks" for heat-
sensitive people. Defendants argued, primarily, that the
mitigation measures they have implemented since 2015 have
eradicated any potential constitutional violation caused by the
heat in the Pack Unit.
Judge Ellison found that although no heat-related deaths have been
reported at the Pack Unit, at least 23 men have died because of
heat at TDCJ facilities from 1998 to today. The judge found that
a preliminary injunction should issue to ensure that prisoners at
the Pack Unit are not deprived of their Eighth Amendment right to
be free of cruel and unusual punishment.
Judge Ellison ordered that:
-- Defendants correct the numerous problems with the
existing respite program identified by the Court in this
opinion;
-- Defendants lower the temperature in the housing areas of
heat-sensitive inmates;
-- Defendants install window screens, with gauges that block
insects, in the windows of the housing areas;
-- Defendants develop a heat wave policy for the Pack Unit;
-- Defendants propose remedies that conform to the Court's
order within 15 days.
A full-text copy of Judge Ellison's July 19, 2017 memorandum and
opinion is available at https://is.gd/fzw77u from Leagle.com.
Marvin Ray Yates, Keith Cole, Plaintiffs, represented by Wallis
Anne Nader, Texas Civil Rights Project, David Anthony James,
Edwards Law, Jeremy L. Doyle -- doyle@reynoldsfrizzell.com --
Reynolds Frizzell LLP, Michael C. Singley, Edwards Law, Nathan M.
Smith -- nate@bnsklaw.com -- Reynolds Frizzell LLP, Scott Charles
Medlock, Edwards Law, Wayne Krause Yang, Texas Civil Rights
Project & Jeffrey S. Edwards, The Edwards Law Firm.
Jackie Brannum, Richard Elvin King, Fred Wallace, Plaintiffs,
represented by David Anthony James, Edwards Law, Jeremy L. Doyle,
Reynolds Frizzell LLP, Michael C. Singley, Edwards Law, Nathan M.
Smith, Reynolds Frizzell LLP, Scott Charles Medlock, Edwards Law,
Wallis Anne Nader, Texas Civil Rights Project & Jeffrey S.
Edwards, The Edwards Law Firm.
Lavar John Santee, Plaintiff, represented by David Anthony James,
Edwards Law, Jeffrey S. Edwards, The Edwards Law Firm, Jeremy L.
Doyle, Reynolds Frizzell LLP, Scott Charles Medlock, Edwards Law &
Wallis Anne Nader, Texas Civil Rights Project.
Michael Denton, Plaintiff, represented by Jeffrey S. Edwards, The
Edwards Law Firm & Wallis Anne Nader, Texas Civil Rights Project.
Bryan Collier, Roberto M Herrera, Texas Department of Criminal
Justice, Defendants, represented by Amanda Marie Kates --
abaer@mirickoconnell.com -- Office of the Attorney General, C.
Daniel DiLizia, Office of the Attorney General, Craig Michael
Warner, Office of the Attorney General, Daniel Christopher
Neuhoff, Office of the Attorney General, Darren Lee McCarty, Derek
Josef Kammerlocher, Office of the Attorney General, Leah Jean
O'Leary, Office of the Attorney General & Matthew J. Greer, Texas
Attorney General.
Ariel Dulitzky, Movant, represented by Esteban Soto, Office of the
Attorney General of Texas.
TICKETMASTER: Distributes Free Tickets Under Settlement
-------------------------------------------------------
Daniel Adrian Sanchez, writing for Digital Music News, reports
that in 2003, Curt Schlesinger filed a class action lawsuit
against Ticketmaster. The lawsuit alleged that Ticketmaster had
failed to fully disclose all aspects of its UPS and order
processing fees. The ticketing giant settled the case back in
2013, and opened a large number of free tickets to fans.
The ticketing giant first made a massive disbursement of free
tickets last year. Now, it's happening all over again.
Basically, if you purchased ANY Ticketmaster tickets from
ticketmaster.com between the dates of October 21st, 1999 and
February 27th, 2013 then you are part of the 'class' in this class
action lawsuit.
As part of its settlement, Ticketmaster has issued 'Ticket
Vouchers' to class members. Class members will also receive a $5
UPS discount code, along with a $2.25 discount code for future
ticket purchases. The discount codes will remain valid until June
2020.
So, how can I redeem my free tickets?
To get started, you will need your ticketmaster.com username and
login. So try to remember it, or use ticketmaster.com's password
recovery feature (you may have more than one logins). Last ditch
effort, try to call Ticketmaster's support. But find those
usernames and passwords, even if you haven't logged in for years!
Once you log in (provided you purchased during the specific
timeframe), your past purchases will be listed. Your discount
codes, UPS discount codes, and ticket vouchers will be listed
under the "Active Vouchers" section within your account.
It's all located here:
https://www.ticketmaster.com/member/vouchers
Then, find a concert in your area that you like (FAST)?
Once you've found the vouchers, simply visit the eligible event
list here. But warning: these shows are going fast!
Upon finding an eligible event, simply select the event and click
on the Redeem button. During the checkout process, look for a
"Voucher Code" link. Then, enter your Ticket Voucher code.
Finally, continue and complete the transaction.
Each voucher = 2 GA tickets.
The Live Nation settlement website reads,
"Each Ticket Voucher is redeemable for two (2) general admission
tickets to select events at Live Nation owned or operated venues
within the United States. Please note, each Ticket Voucher is
valid for a single, one-time use."
Other details.
Ticket Voucher redemption will be made available on a "first-come,
first-served basis." You can use a maximum of two Ticket Vouchers
(a total of 4 tickets) at any eligible Live Nation event. The
vouchers are available for a single, one-time use.
Also, each class member may receive a maximum of 17 discount codes
for Ticketmaster.com purchases made during the class period. So
if you were going to Ticketmaster shows every night in the early
2000s, they're going to cap your free tickets.
As of this writing, there are 344 shows across different US
cities. And growing! [GN]
TIDAL: Kanye Responds to Life of Pablo Album Claims
---------------------------------------------------
Mitch Findlay, writing for Hot News Hip Hop, reports that Kanye
must be feeling like Pablo.
Kanye West's The Life Of Pablo has been a divisive album from the
jump, but it's rare that an album elicits a class action lawsuit
against the creator. Last year, fans banded together to sue Kanye
West and Tidal on the basis that West "conned" them into believing
The Life Of Pablo would be exclusively available through Tidal.
However, the album was also available on basically every other
streaming service, which led to many newfound Tidal members
feeling slighted.
According to TMZ, Kanye has recently struck back against the
claims, reinforcing the idea that Pablo is a "living breathing
changing creative expression." Therefore, the new versions are
distinctly different from the original, which has only been
accessible on Tidal. Despite alleged tweets that Pablo would
never appear on Apple Music, Kanye feels as if the loophole is
enough to get him off the hook.
Due to the evolving nature of Pablo's artistic scope, Kanye feels
as if the project is exempt from such a rigid lawsuit. [GN]
TROTT LAW: Bid to Dismiss "Martin" Suit Denied
----------------------------------------------
In the case captioned BRIAN J. MARTIN, YAHMI NUNDLEY, and KATHLEEN
CADEAU, Plaintiffs, v. TROTT LAW, P.C. and DAVID A. TROTT,
Defendants, Case No. 15-12838 (E.D. Mich.), Judge David M. Lawson
granted in part and denied in part the plaintiffs' motion for
judgment on the pleadings or to strike certain affirmative
defenses. The judge also denied David Trott's motion to dismiss
or for summary judgment.
Brian Martin, Yahmi Nundley, and Kathleen Cadeau, as members of a
putative class, alleged that the defendants violated the Fair Debt
Collection Practices Act (FDCPA) and the Michigan Regulation of
Collection Practices Act (RCPA) by sending certain letters to
these consumers in an effort to foreclose their residential
mortgages.
The plaintiffs filed a motion for judgment on the pleadings or to
strike, directed at various affirmative defenses asserted by
defendants Trott Law, P.C. and David Trott in their respective
answers to the second amended complaint. The plaintiffs argued
that the defendants' recitals of various pro forma or vestigial
affirmative defenses in their answers to the second amended
complaint are either defective as a matter of law, based on the
Court's previous ruling on their motions to dismiss, or fail to
disclose any discernible factual basis for the defenses.
Judge Lawson found that although some of the defendants'
affirmative defenses are demonstrably insufficient, most of them
are properly raised. The judge concluded that the Court has
subject matter jurisdiction over the named plaintiffs' claims
against defendant David Trott. Judge Lawson also ordered that the
plaintiffs' motion for judgment on the pleadings or to strike
certain affirmative defenses is granted in part and denied in
part. The following affirmative defenses raised by defendant
Trott Law were stricken: failure to state a claim; estoppel,
waiver, consent, laches and/or unclean hands; regulated person.
The following affirmative defenses raised by defendant David Trott
were also stricken: failure to state a claim; estoppel; laches;
regulated person. The motion was denied in all other respects.
Defendant David Trott also filed a motion to dismiss or for
summary judgment arguing that the Court does not have subject
matter jurisdiction under the Class Action Fairness Act (CAFA),
and the plaintiffs lack standing to pursue claims against him
individually.
Judge Lawson, however, found that Trott has not explained any
reason why he could not have timely raised his arguments at the
very outset of the case. The judge found that there is no basis
in the record to apply CAFA's home state exception based on
Trott's tardy request.
Judge Lawson also held that the injury to the plaintiffs'
statutory rights alleged in the case is sufficient to make out a
concrete and particularized injury, and that nothing more is
required. The judge explained that, as the Supreme Court has
explicitly recognized, there is no requirement in the FDCPA, or in
Article III jurisprudence, that a plaintiff must in every case
allege some form of direct pecuniary loss in order to establish a
sufficiently concrete injury to support standing.
The judge thus concluded that the plaintiffs adequately have made
out an "injury" to their statutory rights under state law, which
parallel those guaranteed under the FDCPA.
It is further ORDERED that the motion to dismiss or for summary
judgment by defendant David Trott [dkt. #89] is DENIED.
A full-text copy of Judge Lawson's July 12, 2017 opinion and order
is available at https://is.gd/BsJVgn from Leagle.com.
Brian J Martin, Yahmi Nundley, Plaintiffs, represented by Daniel
R. Karon -- dkaron@karonllc.com -- Karon LLC, Diana Gjonaj, Weitz
Luxenberg, P.C., Paul F. Novak, Weitz & Luxenberg, P.C. & Andrew
J. McGuinness -- drewmcg@topclasslaw.com
Kathleen Cadeau, Plaintiff, represented by Diana Gjonaj, Paul F.
Novak, Weitz & Luxenberg, P.C. & Andrew J. McGuinness.
Trott Law P.C., Doreen Hoffman, represented by Charity A. Olson,
Olson Law Group & Timothy B. Myers, Olson Law Group.
David A. Trott, Defendant, represented by Bruce L. Segal --
bsegal@honigman.com -- Honigman, Miller, & Joseph Aviv --
javiv@honigman.com -- Honigman, Miller.
Ellen Coon, Respondent, represented by Charity A. Olson, Olson Law
Group.
TWIN ARCHES: Court Grants Final Approval of "Sardina" Settlement
----------------------------------------------------------------
The United States District Court for the District of Colorado
issued an Order granting Plaintiffs' Unopposed Motion for Final
Approval of Collective Action Settlement in the case captioned
MARISOL SARDINA A/K/A ALEJANDRA ARREDONDO, et al., individually
and on behalf of others similarly situated, Plaintiffs, v. TWIN
ARCHES PARTNERSHIP, LTD, et al., in their individual and corporate
capacities, Defendants. Civil Action No. 15-cv-00054-REB-KLM.
(Colo. Dist.)
This matter is before me on the Plaintiffs' Unopposed Motion for
Final Approval of Collective Action Settlement.
After notice was delivered to potential members of the collective
action, people opted in to the case as members of this Fair Labor
Standards Act ("FLSA") collective action. After discovery was
exchanged, the parties participated in mediation. Ultimately, the
parties agreed to the settlement for which they now seek final
approval.
Approval of a proposed settlement of a FLSA collective action is
not appropriate unless the case properly may proceed, and be
settled, as a FLSA collective action. A collective action under
the FLSA may be maintained only by and among employees who are
similarly situated.
The plaintiffs allege, inter alia, they were not paid properly for
work in excess of forty hours in a work week, were not paid
properly for work they were required to perform when off of the
clock, and were not paid properly for mandatory work-related
activities at the beginning and end of their shifts.
The defendants have not come forward with evidence that shows the
plaintiffs are not similarly situated in terms of their employment
with the defendants and the policies applicable to the plaintiffs
as employees. Nothing in the record indicates that the employment
settings of the plaintiffs are so disparate that a collective
action is not proper.
The settlement agreement appears, inter alia, to be fair,
reasonable, and adequate. The settlement agreement is the product
of intensive, arms-length negotiations involving experienced
counsel who are well-versed in employment law, class action
litigation procedures, and the legal and factual issues of this
case. Sufficient disputed questions of law and material fact exist
that make the outcome of a trial on the merits uncertain.
The attorney fees payment reflected in the Unopposed Motion for
Attorneys' Fees and Costs, an important aspect of the settlement
agreement, appears to be fair, reasonable, and adequate. Thus, I
approve the settlement preliminarily.
In the motion for final approval, the plaintiffs give no
indication that all members of this collective action have been
given notice of the proposed settlement, including the proposed
payment of attorney fees to counsel for the plaintiffs. In
addition, the record does not show that members of the collective
action have been provided an opportunity to object to the
settlement.
The Court directs counsel for the plaintiffs, in consultation with
counsel for the defendants, to develop a brief proposed form of
notice of the settlement to be directed to all members of the
collective action. In addition, the Court directs that the notice
specifies a particular date by which any objections to the
settlement must be filed with the court.
That the Plaintiffs' Unopposed Motion for Final Approval of
Collective Action Settlement is granted in part.
A full-text copy of the District Court's July 20, 2017 Opinion is
available https://is.gd/YzDnW2 from Leagle.com.
Marisol Sardina, Plaintiff, represented by Colleen Therese
Calandra -- colleen@ramoslaw.com-- Ramos Law, LLC.
Marisol Sardina, Plaintiff, represented by Jessica L.
Derakhshanian,--Jessica@ramoslaw.com-- Ramos Law, LLC.
Columba Rodriguez, Plaintiff, represented by Colleen Therese
Calandra, Ramos Law, LLC & Jessica L. Derakhshanian, Ramos Law,
LLC.
Margarita Herrera, Plaintiff, represented by Colleen Therese
Calandra, Ramos Law, LLC & Jessica L. Derakhshanian, Ramos Law,
LLC.
Angelica Lugo, Plaintiff, represented by Colleen Therese Calandra,
Ramos Law, LLC & Jessica L. Derakhshanian, Ramos Law, LLC.
Blanca Avila, Plaintiff, represented by Colleen Therese Calandra,
Ramos Law, LLC & Jessica L. Derakhshanian, Ramos Law, LLC.
Jessica Morales Tavera, Plaintiff, represented by Colleen Therese
Calandra, Ramos Law, LLC & Jessica L. Derakhshanian, Ramos Law,
LLC.
Patricia Alejandre Garcia, Plaintiff, represented by Colleen
Therese Calandra, Ramos Law, LLC & Jessica L. Derakhshanian, Ramos
Law, LLC.
Maria Quinones M., Plaintiff, represented by Colleen Therese
Calandra, Ramos Law, LLC & Jessica L. Derakhshanian, Ramos Law,
LLC.
Rosaura Zavala, Plaintiff, represented by Colleen Therese
Calandra, Ramos Law, LLC & Jessica L. Derakhshanian, Ramos Law,
LLC.
Lorena (I) Estrada, Defendant, represented by Bruce Charles
Anderson -- banderson@fisherphillips.com -- Fisher & Phillips,
LLP, Darin L. Mackender -- dmackender@fisherphillips.com -- Fisher
& Phillips, LLP & Kaitlin Fox Hinkle --
kfoxhinkle@fisherphillips.com -- Fisher & Phillips, LLP.
Cliff (I) Pete, Defendant, represented by Bruce Charles Anderson,
Fisher & Phillips, LLP, Darin L. Mackender, Fisher & Phillips, LLP
& Kaitlin Fox Hinkle, Fisher & Phillips, LLP.
Twin Arches Partnership, LTD, Defendant, represented by Darin L.
Mackender, Fisher & Phillips, LLP & Kaitlin Fox Hinkle, Fisher &
Phillips, LLP.
Cliff Pete, Defendant, represented by Kaitlin Fox Hinkle, Fisher &
Phillips, LLP.
Lorena Estrada, Defendant, represented by Kaitlin Fox Hinkle,
Fisher & Phillips, LLP.
UBER TECH: "Berman" Labor Suit Seeks to Recover Minimum, OT Pay
---------------------------------------------------------------
Andrew Michael Berman, Eugene Rodriguez, Jerod Slay, Kennan Vales,
Dawit Gebremariam, Aladdin Afia, Khalil Anibou, Hargeweyni Dawit,
Marshall Devon Isom, Richard Schusterman, Ashagari Habtegabriel,
Michael Leyzerzon, Romale Walker, Sammy Ibok, Gary Lassin, Glen
Dewalt, Chan Zulfiquar, Robert Nieto and Theophilus Duckett,
individually, and on behalf of all others similarly-situated,
Plaintiffs, v. Uber Technologies, Inc., Defendants, Case No. 4:17-
cv-02011 (S.D. Tex., June 30, 2017) seeks to recover all unpaid
wages/compensation, liquidated damages, statutory damages,
attorney's fees and costs owed under the Fair Labor Standards Act.
Uber Technologies, Inc. is a Delaware corporation headquartered at
1455 Market Street, San Francisco, California, 94103. Plaintiffs
are Uber drivers. Uber allegedly misclassifies its drivers as
contractors, not employees, thus denying them basic employee
benefits.
The Plaintiff is represented by:
Ross A. Sears II, Esq.
SEARS & CRAWFORD, LLP
1200 Rothwell Street
Houston, TX 77002
Telephone: (713) 223-3333
Facsimile: (713) 223-3331
Email: ross@searscrawford.com
- and -
Loren G. Klitsas, Esq.
KLITSAS & VERCHER P.C.
550 Westcott, Suite 550
Houston, TX 77007
Telephone: 713-862-1365
Facsimile: 713-862-1465
Email: klitsas@kv-law.com
- and -
Daniel J. Goldberg, Esq.
THE GOLDBERG LAW OFFICE, PLLC
2006 Commonwealth Street
Houston, TX 77006
Telephone: (713) 942-0600
Facsimile: (713) 942-0601
Email: DJG@LawGoldberg.com
- and -
Kevin R. Michaels, Esq.
888 W. Sam Houston Pkwy. S., Suite 226
Houston, TX 77042
Telephone: (281) 496-9889
Facsimile: (281) 496-4211
Email: kmichaels@michaelslaw.net
UBER TECH: Giacomaro Files Suit Over Unsolicited SMS Ads
--------------------------------------------------------
Donna Giacomaro, on behalf of herself and others similarly
situated, Plaintiff, v. Uber Technologies Inc., Defendant(s), Case
No. 1:17-cv-03923 (E.D. N.Y., June 30, 2017), seeks actual and
trebled damages and such other and further relief, as well as
costs, expenses and disbursements of this action for violation of
the Telephone Consumer Protection Act of 1991.
Uber Technologies, Inc. is a Delaware corporation headquartered at
1455 Market Street, San Francisco, California, 94103. It develops,
markets and operates the Uber car transportation and food delivery
mobile app. Uber allegedly sent SMS ads to the Plaintiff's mobile
phone, thus incurring charges.
Plaintiffs are represented by:
Edward B. Geller, Esq.
M. HARVEY REPHEN & ASSOCIATES. P.C.
15 Landing Way
Bronx, NY 10464
Phone: (914)413-6783
UBER TECHNOLOGIES: Sued in N.Y. Over Lack of Wheelchair Access
--------------------------------------------------------------
Reuters reports that a disability rights group is suing Uber over
charges that the ride-hailing service violates New York City human
rights laws by failing to ensure that enough of its vehicles are
accessible to physically disabled riders.
According to the class action complaint filed on July 18 in
New York, Uber does offer wheelchair-accessible rides through the
service it calls UberWAV, but less than 100 vehicles in Uber's NYC
fleet provide this.
The proposed class-action complaint accused Uber of "pervasive and
ongoing discrimination" because people in wheelchairs can use only
a few dozen of its more than 58,000 vehicles in the city.
Given Uber's growing popularity, this "substantially undermines"
the benefits of New York City's prior commitment to make half of
its yellow taxis wheelchair-accessible by 2020, the complaint
said.
"Riders either face very long wait times or can't get rides at
all," Rebecca Serbin, a staff attorney for Disability Rights
Advocates, said in an interview. "The human rights law reflects
the City Council's commitment to accessibility. Uber is
flagrantly violating that law."
No comment from Uber, which had yet to review the complaint filed
in state Supreme Court in Manhattan at the time of the Reuters
scoop.
The complaint was filed by Brooklyn Center for Independence for
the Disabled (BCID), Disabled in Action of Metropolitan New York,
and the Taxis for All Campaign, and demands that Uber implement a
plan "to ensure full and equal access to its services for riders
who require accessible transportation."
The case is 'Brooklyn Center for Independence for the Disabled et
al v. Uber Technologies Inc et al, New York State Supreme Court,
New York County.'[GN]
UNITED STATES: Dismissal of Unjust Enrichment Claim Vacated
-----------------------------------------------------------
In the appeals case captioned JOHN W. BOYD, JR., Appellant, v.
KILPATRICK TOWNSEND & STOCKTON, et al., Appellees, Nos. 15-CV-
0692, 15-CV-1043 (D.C. App.), Appellant John W. Boyd, Jr., seeks
reversal of the trial court orders granting motions to dismiss
brought under Superior Court Rule 12 b)(6) by appellees Kilpatrick
Townsend & Stockton, LLP, and Dennis M. Gingold.
Appellant argues that the trial court erred by (1) dismissing his
claims for unjust enrichment against both appellees as time-
barred; (2) dismissing his claim for quantum meruit (breach of an
implied-in-fact contract) against Gingold as time-barred; and (3)
determining that appellant had failed to state facts sufficient to
establish a claim for breach of an implied-in-fact contract
against Kilpatrick Townsend.
Appellees Kilpatrick Townsend, an international law firm, and
Gingold, a sole practitioner, represented the Native American
plaintiffs in Cobell v. Salazar, a class action lawsuit against
the United States Department of the Interior for mismanagement of
trust funds. In December 2009, the Cobell plaintiffs and the
plaintiffs in a separate class action lawsuit against the United
States Department of Agriculture concerning past discrimination
against black farmers, Pigford v. Vilsack, reached a joint
settlement agreement with the Government.
John Loving, a government relations advisor at Kilpatrick
Townsend, contacted appellant and requested his assistance in
lobbying for the passage of the Claims Resolution Act (CRA), the
funding bill for the Cobell and Pigford plaintiffs. Mr. Loving
"asked [appellant] to use his extensive contacts . . . to drum up
the necessary support for the . . . legislation." Appellant and
Mr. Loving did not discuss appellant's fees or any specific tasks
to be performed.
After appellant learned that the Pigford litigation team did not
plan to pay him for the services he allegedly rendered for them
concerning the CRA's passage, he filed a lawsuit.
The District Court had dismissed his complaint against the Pigford
counsel, appellant filed his complaint against appellees in the
Superior Court of the District of Columbia. Subsequently,
appellees filed motions to dismiss for failure to state a claim
upon which relief could be granted under Super. Ct. Civ. R. 12
(b)(6). The trial court granted those motions in separate orders
on June 11, 2015.
Regarding Gingold's motion to dismiss, the trial court determined
that, assuming appellant's allegations were true, he had
sufficiently pled claims for unjust enrichment and breach of an
implied-in-fact contract. However, the trial court determined that
appellant's claims against Gingold were time-barred under the last
rendition of services test because appellant's work for Gingold
had ended, at the latest, on December 8, 2010, when President
Obama signed the CRA into law.
The trial court noted that appellant had not delivered a bill to
the defendants during the time period he lobbied for the passage
of the CRA or "within a reasonable time after his services ended.
Regarding Kilpatrick Townsend's motion to dismiss, the trial court
concluded that appellant had presented, as he had regarding
Gingold, sufficient facts to state a claim for unjust enrichment
against it; however, unlike appellant's claim against Gingold, had
not done so for breach of an implied-in-fact contract because
appellant had failed to adequately allege that Gingold or anyone
else had acted as an authorized representative of Kilpatrick
Townsend with the authority to bind it to an agreement.
The District of Columbia Court of Appeals addressed three
questions: (1) whether the trial court erred in dismissing
appellant's unjust enrichment claims against both appellees as
time-barred; (2) whether the trial court erred in dismissing
appellant's claim against Gingold for breach of an implied-in-fact
contract as time-barred; and (3) whether the trial court erred in
dismissing appellant's claim against Kilpatrick Townsend for
breach of an implied-in-fact contract.
The D.C. Appeals Court turn first to determining whether the trial
court erred in holding that appellant's claims for unjust
enrichment were time-barred and, if so, when these claims actually
accrued.
An unjust enrichment occurs when (1) the plaintiff conferred a
benefit on the defendant; (2) the defendant retains the benefit;
and (3) under the circumstances, the defendant's retention of the
benefit [without paying] is unjust.
In News World Communications, the D.C. App. expressly did not
reach the question of when the statute of limitations for the
plaintiff's unjust enrichment claim would have begun to run if she
had rendered her last service to the defendant but had not
demanded and subsequently been refused payment.
The D.C. App. concluded that the statute of limitations for her
unjust enrichment claim commenced when her last service ha[d] been
rendered and compensation ha[d] been wrongfully withheld.
However, in this case, appellant did not send appellees an invoice
during the time he rendered services for them or in the 40 months
that elapsed after President Obama signed the CRA into law but
before he filed his lawsuit. Thus, assuming that appellant is
entitled to compensation, the question remains of when the
withholding of that compensation became unjust.
There remains the question of what was a reasonable amount of time
by which appellant should have regarded the fact that appellees
did not pay him for his services to be a rejection of any such
claim, and the related question of whether or when such a failure
ripened into unjust enrichment claim of appellees.
These questions are complicated by appellant's failure to make any
express demand for payment until he sent appellees a draft copy of
his complaint in April 2014. They are fact-bound questions that
the trial court upon remand must resolve in the manner we describe
below.
Accordingly, the D.C. App. vacates the trial court's grant of
appellees' motions to dismiss appellant's claims for unjust
enrichment and remand for further proceedings consistent with this
opinion.
The D.C. App. addresses the dismissal of appellant's claim for
breach of an implied-in-fact contract against Gingold.
Although the D.C. App. recognizes that appellant may argue in
connection with his claim of unjust enrichment that appellees'
enrichment did not become unjust until the U.S. District Court
awarded them attorneys' fees on July 27, 2011. The D.C. App. notes
that in appellant's complaint, he made no specific allegation that
appellees promised to pay him once they received their attorneys'
fees, but instead alleged only that Gingold said that they would
address the issue once the named plaintiff decided the appropriate
amount to pay appellant.
Appellant could have made a claim for the services he had rendered
on the day the CRA was signed into law. However, he did not file
his complaint until May 2014, some 41 months later. Thus, the D.C.
App. concludes that the trial court did not err in the way that it
applied the last rendition of services test to appellant's claim
for breach of an implied-in-fact contract against Gingold, and
affirm the dismissal of this claim as time-barred.
Next, the D.C. App. addresses appellant's argument that the trial
court erred in dismissing his claim for breach of an implied-in-
fact contract against Kilpatrick Townsend on the basis that he had
failed to allege adequately that Gingold or anyone else had acted
as Kilpatrick Townsend's authorized agent to bind it to an
agreement with appellant.
First, appellees did not enter into an agency relationship merely
by acting as co-counsel in Cobell. Despite the facts that
appellees worked together on the case and Kilpatrick Townsend
allowed Gingold to use some of its office space during the course
of the litigation, appellees acted in the service of their
clients, not of each other.
Appellant does not provide any legal authority suggesting that co-
counsel for a party on a case invariably enters into an agency
relationship, and his conclusory allegations offer no plausible
reason why attorneys from separate firms or practices who work
together to represent a party in a single case should be
considered as agents of one another.
The D.C. App. perceives no error in the trial court's conclusion
that the complaint did not adequately allege that appellees here
were in an agency relationship.
The D.C. App. concludes that the trial court did not err in
determining that the complaint did not adequately allege that
appellees maintained an agency relationship with one another.
Accordingly, because Gingold did not possess the authority to bind
Kilpatrick Townsend to a contractual obligation, and because
appellant fails to allege any other basis upon which Kilpatrick
Townsend breached an implied-in-fact contract with appellant, the
trial court did not err in determining that appellant failed to
state a claim for breach of an implied-in-fact contract against
Kilpatrick Townsend.
A full-text copy of the D.C. App.'s July 20, 2017 Opinion is
available at https://is.gd/NpU8KR from eagle.com
Keith Lively -- klively@dbmlawgroup.com -- for appellant.
Charles Davant, IV -- cdavant@wc.com -- with John K. Villa --
jvilla@wc.com -- and Roy S. Awabdeh, Williams & Connolly LLP, for
appellee Kilpatrick Townsend & Stockton, LLP.
Alan L. Balaran for appellee Dennis M. Gingold.1111 19th St NW Fl
12Washington, DC 20036-3654
UNITED STATES: UIA Obtains Favorable Ruling in Class Action
-----------------------------------------------------------
Emily Lawler, writing for Mlive, reports that the Michigan Court
of Appeals, in an opinion issued on July 18, ruled those accused
of unemployment fraud by a computer system did not sue quickly
enough to be eligible for damages.
Between Oct. 2013 and Aug. 2015 the state's Unemployment Insurance
Agency used a computer system to determine fraud. It would send
notices to a little-used internal message center, and
automatically found fraud to exist when those who were accused did
not respond.
From there the state could assess a 400 percent fine on any fraud
it had alleged and take the money through wage garnishments or
seizure of tax refunds.
Some of those affected brought a class-action lawsuit against the
state asking for damages including full repayment plus interest
for all the state had seized. The lawsuit was filed in 2015, but
the state argued it was not timely because it didn't come within
six months of the event.
While plaintiffs argued the harm occurred when garnishments
started, the state argued the harm occurred, and the six month
clock started ticking, when claimants were issued notices of their
alleged fraud and informed they could no longer collect
unemployment.
The Court of Appeals agreed with the latter.
"Accordingly, where plaintiffs did not institute their action
until September 9, 2015, their claims were not filed in compliance
with MCL 600.6431(3), 'within 6 months following the happening of
the event giving rise to the cause of action,'" the court wrote in
an opinion signed by judges Michael Gadola, Patrick Meter and
Karen Fort Hood.
The court remanded the case back to the lower court, requiring it
to grant a summary disposition in favor of the UIA.
Jennifer Lord, an attorney representing the plaintiffs, said after
a hearing not one of her clients has seen a full reimbursement.
She plans an appeal.
"We will absolutely appeal this unjust result. The Court of
Appeals is asking the citizens of the State of Michigan to live in
a hypothetical world, where they must (willy nilly) file lawsuits
before they have even been harmed. Because if you accept the
Court of Appeals decision, a citizen would have to sue before ever
experiencing an injury," Lord said.
"We are disappointed that the Court of Appeals took this approach.
If it continues, citizens will have absolutely no recourse when
the State violates their constitutional rights. We are committed
to making sure that does not happen and will continue to fight
this unjustice as long as it takes."
Wanda Stokes, director of the Talent Investment Agency that
oversees the UIA, said in a statement the agency continued to
review cases and issue refunds.
"While we agree with the court's decision, it does not change the
ongoing focus at the Talent Investment Agency (TIA) regarding the
review of our unemployment insurance cases and improving customer
service and integrity," Ms. Stokes said. [GN]
UNITED STATES: Tuskegee Descendants to Seek Settlement Money
------------------------------------------------------------
Jay Reeves, writing for WMC Action, reports that descendants of
hundreds of black men who were left untreated for syphilis during
an infamous government study want a judge to give them any money
remaining from a $9 million legal settlement over the program.
The head of an organization for descendants of the Tuskegee
Syphilis Study said the money could help fund college scholarships
the group provides, and members would like to develop a memorial
garden dedicated to the men.
Some of the funds also could go to a county-owned museum located
in Tuskegee that has separately requested the funds, but the
decision should be up to the descendants, said Lillie Tyson Head,
president of the Voices of our Fathers Legacy Foundation.
"It was meant to go to the descendants in the first place," Head,
who lives in Virginia, said in an interview on July 14.
The Voices group has sent a letter to U.S. District Judge Myron
Thompson asking him to withhold a decision on the money until they
have time to hire a lawyer and file documents in the long-running,
class-action lawsuit over the study.
Fred Gray, an attorney who heads the museum and represented study
participants in the lawsuit, said he had not seen the group's
letter and declined comment on the request. Gray has requested the
money for the Tuskegee Human and Civil Rights Multicultural
Center, which includes an exhibit about the study and a memorial
to the men.
Beginning in 1932 in the impoverished, segregated South,
government medical worker in rural Alabama withheld treatment from
unsuspecting black men infected with syphilis so doctors could
track the disease and dissect their bodies afterward. Finally
revealed by The Associated Press in 1972, the study ended and the
men sued, resulting in the settlement.
More than 6,000 heirs of the roughly 600 men who were involved in
the study received settlement payments through the decades, court
officials say, but an undisclosed amount remains in court-
controlled accounts. Court officials say they can't find
additional descendants, if any exist. All the men who participated
in the study are dead.
The amount of money at stake hasn't been made public, but court
documents describe it as a "relatively small" amount of interest
earnings.
The Trump administration has filed documents saying any unclaimed
settlement money should revert to the government under terms of
the original settlement, reached in 1975. [GN]
VOLKSWAGEN AG: German Exec May Plead Guilty in Emissions Scandal
----------------------------------------------------------------
Ed White, writing for The Associated Press, reports that a German
Volkswagen executive who has been in a Michigan jail for months
plans to plead guilty in the company's U.S. emissions scandal, a
court spokesman said on July 25.
Oliver Schmidt, former manager of a VW engineering office in
suburban Detroit, will appear in federal court on Aug. 4. His
lawyers disclosed the plan during a brief conference with a judge,
spokesman David Ashenfelter said.
Mr. Schmidt is one of many VW employees charged in a scheme to
cheat emission rules on nearly 600,000 diesel vehicles, but most
are in Germany and out of reach of U.S. authorities. He's been in
custody since January when he was arrested while on vacation in
Miami before he could return to Germany.
VW admits using software to get around diesel emission standards.
Mr. Schmidt is charged with conspiracy and fraud. He's accused of
lying to U.S. regulators by saying technical problems -- not
sneaky software -- were to blame for the difference in emissions
in road and lab tests.
A message seeking comment was left for Mr. Schmidt's lawyer.
"I'm unable to comment on what the terms of the plea agreement
might be," said Gina Balaya, a spokeswoman for prosecutors.
VW pleaded guilty in March and agreed to pay $4.3 billion in
criminal and civil penalties, on top of billions more to buy back
cars. U.S. District Judge Sean Cox has refused to release Schmidt
on bond, saying he might flee.
WAL-MART: Gender Bias Class Action Lead Plaintiff Plaintiff Dies
----------------------------------------------------------------
Kristin J. Bender, writing for Fox Business, reports that the Wal-
Mart greeter who took the retail giant all the way to the U.S.
Supreme Court in the largest gender bias class-action lawsuit in
U.S. history has died.
A niece, Rita Roland, says Betty Dukes died July 10 at her home in
Antioch, California.
She was 67.
The San Francisco Bay Area woman was the lead plaintiff in Dukes
v. Wal-Mart. The 2001 lawsuit alleged the company violated the
1964 Civil Rights Act, which made it illegal for employers to
discriminate on the basis of race, creed or gender.
Dukes claimed Wal-Mart systemically paid women less than male
counterparts and promoted men to higher positions at faster rates
than women. The case reached the U.S. Supreme Court in 2011,
where it was dismissed.
Dukes worked for Wal-Mart until last year. [GN]
WELLS FARGO: Hayes Claims Bared by Class Settlement
---------------------------------------------------
The Superior Court of New Jersey, Appellate Division, issued an
Opinion affirming District Court's Order granting Defendant's
Motion for Summary Judgment in the case captioned WELLS FARGO
BANK, N.A., Plaintiff-Respondent, v. LAURIE JANE HAYES, her heirs,
devisees, and personal representatives and his/her, their, or any
of their successors in right, title and interest; Mr. Hayes,
husband of Laurie Jane Hayes, his heirs, devisees, and personal
representatives and his/her, their, or any of their successors in
right, title and interest, Defendants-Appellants, No. A-1065-15T1
(N.J. Super. App. Div.).
Defendant Laurie Jane Hayes refinanced a mortgage on her residence
by executing an adjustable rate mortgage and note in favor of
World Savings Bank, FSB, predecessor in interest of plaintiff
Wells Fargo Bank, N.A.
Hayes procured the loan through the bank's Pick-a-Payment program.
Defendant defaulted on the loan in March 2008 and thereafter
sought a loan modification in 2009. Although it is unclear when
defendant actually completed the application for the Home
Affordable Modification Program, Wells Fargo notified her in 2013
that it denied her request.
The United States District Court for the Northern District of
California certified a class of plaintiffs that included defendant
as a member. A settlement of the class action lawsuit was reached
on December 10, 2010.
The stipulation also provided that it was the sole and exclusive
remedy of Settlement Class Members against any Released Entity,"
including Wells Fargo, relating to any and all Alleged Claims.
Further, the parties agreed the court would retain "exclusive and
continuing jurisdiction over the Lawsuit, the Parties, and the
class members. On May 17, 2011, the district court entered final
approval of the class settlement and further retained "continuing
jurisdiction to interpret and enforce the settlement agreement."
Defendant never opted out of the settlement. Several months later,
she received a settlement check for $178.04.
While the class action was pending in federal court, defendant
filed a complaint in the Law Division against Wachovia Mortgage,
FSB (Wachovia), another predecessor in interest of Wells Fargo,
alleging fraud, consumer fraud and other statutory violations.
OnMarch 14, 2014, the judge granted Wachovia summary judgment.
Defendant appealed.
The N.J. App. Div. affirmed the trial court's summary judgment,
concluding that defendant's participation in the class action
settlement precluded her suit against Wachovia.
In Hayes v. Wachovia Mortg, Judge Katz granted Wells Fargo's
motion in part, enforcing the Settlement Agreement and concluding
a number of defendant's origination-based affirmative defenses
should be dismissed.
Judge Katz concluded the Settlement Agreement was clear and
unambiguous, and, since defendant never opted out of the
settlement, she was bound by its terms. The judge determined he
should accord full faith and credit to the Settlement Agreement.
Our courts give full faith and credit to class action judgments of
other jurisdictions if the class members have been accorded
procedural due process rights.
Under the terms of the Settlement Agreement, defendant agreed
never to assert any and every actual or potential known or unknown
claim, liability, right, demand, suit, matter, obligation, damage,
loss or cost, action or cause of action, of every kind and
description regardless of the type or amount of relief or damages
against Wells Fargo.
A full-text copy of the N.J. App. Div.'s July 20, 2017, Opinion is
available at https://is.gd/q0bhq5 from Leagle.com.
Joshua W. Denbeaux -- 366 Kinderkamack Rd, Westwood, NJ 07675 --
argued the cause for appellant (Denbeaux & Denbeaux, attorneys;
Mr. Denbeaux, on the brief).
Henry F. Reichner -- hreichner@reedsmith.com -- argued the cause
for respondent (Reed Smith, L.L.P., attorneys; Mr. Reichner, on
the brief).
WELLS FARGO: Rockefeller Claims Barred by Settlement Agreement
--------------------------------------------------------------
The Superior Court of New Jersey, Appellate Division, issued an
Opinion affirming the Order of the District Court denying
Defendants' Motion for Summary Judgment in the case captioned
WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. ALFRED G.
ROCKEFELLER, his heirs, devisees, and personal representatives and
his/her, their, or any of their successors in right, title and
interest, ANNETTE ROCKEFELLER, his wife, her heirs, devisees, and
personal representatives and his/her their, or any of their
successors in right, title and interest, DISCOVER BANK,
Defendants-Appellants, No. A-2322-15T2 (N.J. App. Div.)
Defendants appeal from a final judgment of foreclosure.
This appeal arises from the following facts. In December 2006,
defendants executed and delivered an adjustable rate Pick-a-
Payment mortgage note to World Savings Bank, FSB (WSB).
In August 2007, a class action lawsuit was filed in the United
States District Court for the Northern District of California
against several banks including WSB, Wachovia, and plaintiff,
Wells Fargo Bank, N.A.
The plaintiffs alleged that the defendant banks violated certain
state and federal laws in the origination of the Pick-A-Payment
mortgage loans and inadequately disclosed the loans' potential
for, among other things, negative amortization.
In March 2010, defendants and Wells Fargo entered into a loan
modification agreement, which changed the principal balance of
their loan to $434,969.83 and required bi-weekly interest-only
payments beginning at $906.19, with a starting interest rate of
2.50 per cent.
In September 2010, defendants failed to make the payment due and
went into default. In January 2011, Wells Fargo provided
defendants notice of its intent to foreclose by certified and
first class mail. Defendants did not thereafter cure the default.
The parties in the federal class action settled the matter, and on
May 17, 2010, the federal district court approved the settlement
agreement. The settlement agreement covered claims or defenses
based upon the origination of the Pick-a-Payment loans.
Settlement Class C included borrowers who still had their Pick-a-
Payment mortgage loans and whose mortgage payments were sixty or
more days past due, as of December 16, 2010. Defendants were
included within Settlement Class C.
The settlement agreement stated that Wells Fargo would not have
any obligation to offer a loan modification to any settling class
member who did not qualify under the HAMP or MAP2R guidelines. The
federal district court retained jurisdiction to consider whether
Wells Fargo or any other defendant bank complied with the terms of
the agreement.
Wells Fargo filed a complaint for foreclosure in the trial court.
Wells Fargo filed a motion to strike defendant's answer and
affirmative defenses, based on the settlement of the federal class
action litigation.
The Chancery Division judge granted plaintiff's motion for the
reasons stated in a letter opinion. The judge found that plaintiff
had established a prima facie case for foreclosure, and
defendants' defenses and counterclaims were barred by the federal
class action settlement. The court filed a final judgment of
foreclosure.
This appeal followed.
On appeal, defendants raise the following arguments:
(1) the court incorrectly characterized the counterclaims and
affirmative defenses as an attack upon the original Pick-a-Payment
mortgage rather than as claims arising under the subsequent
agreements.
(2) the court erred by dismissing the claims under the CFA.
(3) the trial court should have vacated the final judgment
pursuant to Rule 4:50-1(a), because the judgment was premature,
they were denied the right to discovery, and they were unable to
fully defend their rights.
(4) the loan modification that Wells Fargo gave to defendants
in March 2010 was unconscionable.
The N.J. App. Div. has carefully considered defendants' arguments
and concludes that they are without sufficient merit to warrant
discussion in a written opinion. The N.J. App. Div. affirms the
final judgment substantially for the reasons stated in Judge's
letter opinion.
They contend that claims based on Wells Fargo's alleged post-
settlement actions are not barred by the federal class action
settlement. The N.J. App. Div. disagrees.
Judge Contillo correctly noted that the federal class action
settlement was incorporated in a judgment of the federal court,
which plaintiff is entitled to enforce in the absence of fraud or
other compelling circumstances. It is undisputed that defendants
never opted out of the settlement. The federal class action
settlement clearly resolves defendants' claims and defenses
pertaining to the origination of their Pick-a-Payment loan.
Moreover, defendants claimed that Wells Fargo violated the federal
class action settlement because Wells Fargo had not provided them
with a second loan modification. The federal class action
settlement expressly provides that borrowers who had already
received a loan modification are not eligible for a new loan
modification. It is undisputed that Wells Fargo and defendant had
entered into a loan modification in March 2010.
Defendants did not allege that the March 2010 loan modification
agreement violated the CFA. Defendants only asserted claims
regarding the original Pick-a-Payment loan and Wells Fargo's
alleged wrongful refusal to offer them another loan modification.
We decline to consider defendants' contention that the March 2010
loan modification violated the CFA because defendants raised this
argument for the first time on appeal.
A full-text copy of the Superior Court's July 20, 2017 Opinion is
available at https://is.gd/IrDwVOfrom Leagle.com.
Montell Figgins, attorney for appellants. Academy Street, Suite
601Newark, NJ 07102-4302
Reed Smith LLP, attorneys for respondent (Henry F. Reichner --
hreichner@reedsmith.com -- of counsel and on the brief).
WILD PLANET: Settles Sustainable Seas Tuna Class Action
-------------------------------------------------------
Joe Ducey, writing for ABC15, reports that all of these are either
settled class action lawsuits where you may qualify for money, or
they are investigations where you may be able to take part. None
of the companies involved in settlements claim any wrongdoing:
Wild Planet, Sustainable Seas Tuna Class Action Settlement
Consumers who purchased tuna sold under the brands Wild Planet or
Sustainable Seas can claim up to $29 Thanks to a class action
settlement resolving claims that the cans were under filled.
More information on the settlement is available at:
https://is.gd/7FbTQj
Heart Surgery Infection Class Action Investigation
The FDA, CDC and hospitals around the country have been warning
open heart surgery patients that they may have been exposed to
bacteria that can cause a life-threatening infection, thanks to
contaminated equipment. Such devices are used by 250,000 open-
heart patients during bypass surgeries every year. About 60
percent of those devices that are currently in use at hospitals
around the country have been linked to potentially deadly
infections. The devices may have been in the United States since
2006, the FDA said.
More information on this investigation is available at:
https://is.gd/lHaiEn
Optical Disk Drive Class Action Settlement
If you purchased a desktop computer, laptop computer, game
console, camcorder or other consumer electronic device between
2003 and 2008, chances are you qualify for this settlement.
Eligible Class Members can claim up to $10 per device if it
contained an optical disk drive. But hurry -- the deadline is
August 1.
More information on the settlement is available at:
https://is.gd/Dky6TB
VW, Audi Airbag Recall Class Action Investigation
Volkswagen and Audi have recalled hundreds of thousands of
vehicles made between 2002 and 2017 due to defective airbags that
can explode and shoot shrapnel into occupants, seriously injuring
or even killing them. The automakers are now under scrutiny for
failing to notify vehicle owners in a timely manner and for
failing to help owners with costs associated with fixing their
vehicles.
More information on this investigation is available at:
https://is.gd/Fo4Dwt
Instaflex Joint Support Supplement Class Action Settlement
Did you purchase Instaflex Joint Support? You may be eligible to
claim $15 per bottle (up to $105 per household) thanks to a class
action settlement resolving allegations that these bottles were
labeled with false and misleading claims. Class Members who did
not purchase a bottle of the Instaflex glucosamine sulfate
supplement but paid shipping and handling to receive a sample are
entitled to a payment of $5.
More information on this settlement is available at:
https://is.gd/v3Qrnr
[GN]
WINDSOR SURRY: Court Denies Class Certification in "Cover" Suit
---------------------------------------------------------------
In the lawsuit styled MCLANE COVER, the Plaintiff, v. WINDSOR
SURRY COMPANY, et al., the Defendants, Case No. 3:14-cv-05262-WHO
(N.D. Cal.), the Hon. Judge William H. Orrick entered an order:
1. denying Plaintiffs' motion to certify a class;
2. granting Windsor's motion to exclude Brown's testimony only
with regard to Brown's opinions that the Windsor warranty
is "unconscionable" and does not provide consumers with
"adequate protection" and that the development of
WindsorONE+ evidences that Windsor "understood" the flaws
in its design of WindsorONE.
3. granting Windsor's motion to exclude Smulski's testimony
only with regard to Smulski's opinions as to why Windsor
created WindsorONE+, how a reasonable consumer would
interpret Windsor's warranty, and what a reasonable
consumer's expectations would be.
4. denying Windsor's motions to exclude in all other respects.
A case management conference is set for August 22, 2017 at 2:00
p.m. The parties shall file a Joint Case Management Statement on
August 15, 2017, setting forth their proposal(s) for the remaining
case schedule.
Judge Orrick said, "This case is about WindsorONE trim board, a
wood trim board product that defendants Windsor Surry and Windsor
Mill (together "Windsor") have manufactured and sold since 1997
for various interior and exterior applications in building
construction. Plaintiff Cover, who purchased WindsorONE to use as
exterior trim board on his Rhode Island residence, alleges that
WindsorONE is inherently defective because it is made of untreated
Radiata Pine, a wood with no natural rot resistance, and therefore
rots prematurely. He brings claims for breach of express and
implied warranties as well as for negligence under Rhode Island
law, and seeks to certify a class of "all persons or entities in
the state of Rhode Island who own or owned homes, apartments,
offices, buildings, or other structures on which WindsorONE is or
was installed on the exterior." Windsor opposes the motion,
asserting that Cover has failed to demonstrate Rule 23(a)'s
requirements of numerosity, commonality, typicality, and adequacy;
has failed to show that common questions predominate and that a
class action is superior under Rule 23(b)(3); and that
certification is not otherwise appropriate under Rule 23(b)(2) or
(c)(4). It also brings three Daubert motions to challenge Cover's
experts' opinions. Although most of the issues raised in the
Daubert motions lack merit, plaintiffs have failed to demonstrate
that the class is sufficiently numerous and that class treatment
is superior. As a result, I deny plaintiffs' motion for class
certification under Rule 23(b)(3). Plaintiffs' request to certify
common questions under Rule (c)(4) is denied for the same reasons.
Plaintiffs' request to certify a subclass under Rule 23(b)(2) is
denied as the class lacks a representative and because the
plaintiffs primarily seek monetary relief.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=HcwEctBw
XACTLY CORP: "Berg" Hit Onerous Merger Deal with Vista Equity
-------------------------------------------------------------
Robert Berg, on behalf of himself and all others similarly
situated, Plaintiff, v. Xactly Corporation, Christopher W.
Cabrera, John P. Ward, Jr., David W. Pidwell, Neal Dempsey, Gerald
S. Casilli, Earl E. Fry, Carol Mills, Lauren Flaherty, Scott
Mcgregor, Excalibur Parent LLC, Excalibur Merger Sub, Inc. and
Vista Equity Partners Fund VI, L.P., Defendants, Case No. 4:17-cv-
03783 (N.D. Cal., June 30, 2017), seeks to preliminarily and
permanently enjoin Defendants and their counsel, agents, employees
and all persons acting under, in concert with, or for them, from
proceeding with, consummating, or closing the acquisition of
Xactly by affiliates of Vista Equity Partners Fund VI, L.P. The
suit further seeks rescissory damages, prejudgment and post-
judgment interest, costs and disbursements of this action,
including reasonable attorneys' and expert fees and expenses,
extraordinary, equitable and/or injunctive relief and such further
relief under the Securities and Exchange Act of 1934.
Stockholders of Xactly will receive $5.32 in cash and 0.2309 of a
share in the newly combined company for each share they own.
Plaintiff alleges that the Company will be acquired for an
inadequate consideration. Defendants have also locked up the
transaction and have precluded other bidders from making
successful competing offers for the Company, says the complaint.
Xactly is a provider of enterprise-class, cloud-based, incentive
compensation solutions for employee and sales performance
management. [BN]
Plaintiff is represented by:
Rosemary M. Rivas, Esq.
LEVI & KORSINSKY LLP
44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: (415) 291-2420
Facsimile: (415) 484-1294
Email: rrivas@zlk.com
- and -
Brian D. Long, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
(302) 295-5310
YOUTUBE INC: Sued Over Fraudulent, Anti-Competitive Biz Practices
-----------------------------------------------------------------
Ethan Baron, writing for Spokesman, reports Google and YouTube
can't tell the difference between promoting terrorism and
rekilling the undead, a new lawsuit claims.
Google and its video-streaming service are accused in the lawsuit
of choking off the revenue stream from Zombiegoboom, a YouTube
channel focused on using guns, saws, axes and other weapons to
slaughter attacking zombies.
Many of the videos, including "Homemade Zombie Killing Potato
Cannon" and "Can a 10 Year Old Kill a Zombie?" have hundreds of
thousands to millions of views.
The legal action arose in a controversy over extremist content on
YouTube. Google has taken a multimillion-dollar hit because
YouTube advertisers, including major companies such as AT&T,
Verizon and Johnson & Johnson, pulled their ads after a newspaper
report revealed ads were being paired with videos promoting
terrorism and anti-Semitism.
But in an effort to comfort and win back advertisers, Google set
up an ineffective screening algorithm and a secretive video-rating
system that led to Zombiegoboom losing its ads, the lawsuit filed
July 13 claims.
The two Arkansas men who own Zombiegoboom say in the lawsuit that
they were making $10,000 to $15,000 a month from the channel,
before the changes slashed their revenue by 90 percent to 95
percent.
"This was despite the fact that viewership of creative content
posted by Zombiegoboom remained steady," said the lawsuit, which
seeks class-action status.
The plaintiffs, James Sweet and Chuck Mere, claim that their
channel was getting 6 million to 10 million views per month,
"roughly equivalent to the number of views that a popular
television show on cable would receive."
After the changes, Sweet and Mere "were not even being paid enough
to cover the costs of making their content, due to their videos
being demonetized," they claim.
YouTube had provided no warning of impending changes or new terms
that channels had to abide by, the lawsuit alleges.
"The only such communication received by Plaintiffs focused on
YouTube's desire to demonetize hate speech," the lawsuit says.
YouTube would not comment on the lawsuit.
The men lost tens of thousands of dollars in revenue as a result
of the changes and YouTube ignored requests by the men for a
review of their situation, the lawsuit alleges.
The lawsuit seeks certification as a class-action covering any
U.S. YouTube content providers who have uploaded material since
2006, and whose videos were available for viewing on YouTube
between March 1 -- when the changes purportedly began -- and the
present.
Sweet and Mere accuse Google and YouTube of unfair, fraudulent and
anti-competitive business practices. They are seeking unspecified
damages.
YouTube in June issued a blog post concerning the changes to ad
eligibility for videos. Not eligible is material with "hateful
content," "inappropriate use of family entertainment characters"
and "demeaning content." [GN]
* California Court Certifies FCRA Class Action
----------------------------------------------
Rod M. Fliegel, Esq. -- rfliegel@littler.com -- and Jennifer L.
Mora, Esq. -- jmora@littler.com -- of Littler Mendelson PC, in an
article for Lexology, report that as Littler has reported, the
number of class action lawsuits against employers alleging
violations of the Fair Credit Reporting Act (FCRA) has continued
to spike. Most lawsuits proceed in federal court, but the FCRA
allows plaintiffs to file in either federal or state court. On
July 13, 2017, a class action was certified in state court in Los
Angeles. The suit alleges violations of the FCRA's disclosure and
notice provisions. The state court judge did not decide any
issues of liability, but rather that those questions can be
decided in one proceeding on behalf of the class members. The
court's opinion serves as another reminder of the importance of
vigilance with regard to FCRA compliance.
The FCRA
The FCRA is the federal law that regulates employer use of
"consumer reports," more commonly known as "background checks" or
"background reports." Before an employer may obtain a consumer
report from a consumer reporting agency, typically the employer
must make a "clear and conspicuous" written disclosure to the
consumer (which could be a job applicant or employee), in a
document consisting "solely" of the disclosure, that a consumer
report may be obtained. The consumer must provide written
authorization before the employer may obtain a consumer report for
employment purposes. If the employer takes adverse action against
the consumer based in whole or in part on information contained in
the report, the employer must provide the consumer with a pre-
adverse action notice, which must include a copy of the report and
any necessary disclosures (e.g., the FCRA Summary of Rights).
During the last few years, the number of federal class action
lawsuits against employers alleging hyper-technical non-compliance
with the FCRA has skyrocketed. The class action suits challenging
the employer's background check disclosures tend to target
disclosures that are included within the employer's job
application, or if separate from the job application, that include
alleged impermissible ("extraneous") text, such as a release of
liability in favor of the employer, the background company, or
both. In the context of the pre-adverse action notice, the
lawsuits tend to allege that the employer never provided the
consumer with a copy of the report or made the final employment
decision before allowing the consumer a meaningful opportunity to
consider the information in the report.
The Decision
The named plaintiff was convicted of battery in 1998. That
conviction ultimately was expunged from his record in 2010.
According to the plaintiff, although the employer hired him in
2011 and scheduled him for orientation, the employer reversed
course and told him not to report for orientation after the
background report it obtained inaccurately reported a 2010 battery
conviction. The employer allegedly placed a "no-hire
recommendation" in the plaintiff's file one day after receiving
the inaccurate background report from its background check vendor.
The plaintiff did not learn about the issue until he called the
employer to check the status of his application. He then
submitted a dispute with the background check vendor. Although the
employer learned about the corrected report, it no longer had a
need for the plaintiff's services as a seasonal worker. The
plaintiff sued, alleging violations of the FCRA and sought
certification of two separate classes.
First, the plaintiff claimed that the employer's background check
disclosure violated the FCRA because it included a statement that
the applicant "fully understand[s] that all employment decisions
are based on legitimate non-discriminatory reasons." This class
consisted of approximately 42,000 putative class members.
According to the plaintiff, this language is an "implied liability
waiver," which is the type of language that plaintiffs' attorneys
have railed against, with success, for the last few years.1
The plaintiff also claimed the employer failed to provide pre-
adverse action notices before taking adverse action against job
applicants. This class consisted of approximately 715 putative
class members. According to the court, the plaintiff had
presented evidence that the employer had a "uniform practice of
sending" the pre-adverse action notice after rendering a "no hire"
adjudication. In fact, one employer witness testified that this
was "normal protocol" for the company. In granting class
certification on this issue, the court noted that the primary
common question at issue could easily be answered for each class
member: did he or she receive a pre-adverse action notice and
summary of rights before the employer made its final decision?
Next Steps for Employers
Given that the FCRA allows for statutory damages ranging between
$100 and $1,000 per violation, the court's decision to grant
certification in this case should serve as a wake-up call for all
employers. There has been an uptick of courts granting
certification in similar cases. Thus, employers should arrange
for a privileged review of their background check consent forms. A
thorough review of these forms may help avoid the types of claims
raised in an emerging line of cases that take issue with an
employer's inclusion of text beyond the minimum necessary for FCRA
disclosures.
In addition to the disclosure and authorization requirements, the
FCRA requires employers to follow certain requirements if it
intends to take "adverse action" against the applicant or employee
based in whole or in part on the contents of the report.
Employers should implement procedures to help ensure that adverse
action notices are timely sent. Employers should also consider
how to best record personnel decisions such that, if necessary,
the employer can prove that the reason an applicant was rejected
was entirely because of a poor interview, failure to provide
requested follow-up information, a positive drug test, dishonesty
in the application process, etc., rather than based -- even in
part -- on the background report itself.
Employers also should continue to be mindful of their obligations
under state and local ban the box laws. [GN]
* CFPB Anti-Arbitration Rule Like Recommending Chocolate Sundays
----------------------------------------------------------------
Bruce Fein, writing for Huffington Post, reports the Consumer
Finance Protection Bureau's anti-arbitration rule to facilitate
expensive class action litigation to resolve consumer finance
disputes in lead-footed courts is like a doctor recommending
Chocolate Sundays to treat obesity.
After March 2018, the CFPB rule would prohibit mandatory
arbitration clauses in consumer finance contracts that would
preclude customer participation in class action lawsuits. Congress
should not tarry in voiding the rule within the 60 day window and
expedited procedures of the Congressional Review Act (CRA).
Litigation is deadweight to the economy. It is typically vexing
and exorbitantly costly to the litigants. Renowned federal circuit
judge Learned Hand remarked: "I must say that as a litigant, I
should dread a lawsuit beyond almost anything short of sickness
and death." Ambrose Bierce in The Devil's Dictionary defined a
lawsuit "as a machine which you go into as a pig and come out of
as a sausage."
Class actions logarithmically multiply the vexations and costs of
ordinary lawsuits. A plaintiff class size may reach tens of
millions and expose the defendant to potentially crippling
liability. The costs of notifying and communicating with such huge
numbers put class actions out of reach for any but jumbo-sized law
firms excited by the prospects of huge legal fees. They often
settle class actions to enrich themselves but leave the class
plaintiffs in the lurch.
Settlement of the Bank of Boston class action is exemplary. The
class attorneys walked away with approximately $9 million in fees
while class members had their accounts credited between a paltry
$2.19 and $8.76. To add insult to injury, their accounts were also
debited for up to $91 to cover the costs of the settlement, i.e.,
plaintiffs; and defendants' attorneys' fees and litigation costs.
The outrage is fully described in Kamilewitz v. Bank of Boston
Corporation (United States Court of Appeals for the Seventh
Circuit, August 8, 1996),
The number of civil lawsuits filed annually approximates a
staggering 15 million. Delay is both pervasive and costly. And
justice delayed is justice denied.
Arbitration agreements were conceived to obviate the expense and
protracted nature of court litigation.
In a typical agreement, the parties agree to arbitrate disputes in
private according to streamlined, inexpensive procedures congruent
with the magnitude of the plaintiff's injury. Arbitrators are
selected according to the rules the American Arbitration
Association. Like Portia in The Merchant of Venice, arbitrators
enjoy wide discretion to season justice with mercy. Their
decisions cannot be appealed absent extraordinary improprieties.
Life moves on with arbitration. But it is characteristically stuck
in the past with lawsuits.
The CFPB's anti-arbitration rule is a symptom of chronic
congressional irresponsibility. Congress routinely gives birth to
politically unaccountable regulatory agencies, endows them with
sweeping legislative power, and then complains when their
offspring misbehave. It is comparable to a parent giving an
intoxicated child car keys at night and then bemoaning the
inevitable car accident that ensues.
The 2010 Dodd-Frank legislation established the CFPB to be headed
by a single director and to be funded by the independent Federal
Reserve Board outside the customary appropriations process. The
director cannot be removed by the President except for cause. That
extraordinary unaccountability for a single director of an agency
was held unconstitutional by the United States Court of Appeals
for the District of Columbia Circuit in PHH Corp. v. CFPB (October
11, 1996).
Article I of the Constitution entrusts "[a]ll legislative powers
herein granted in a Congress of the United States." Members of
Congress are elected to discharge that responsibility and to
defend their handiwork, not to seek refuge from their constituents
by cowardly handing over their legislative duties to unelected
executive branch agencies.
Accordingly, after Congress voids the CFPB's anti-arbitration rule
under the CRA, it should next abolish the CFPB root and branch as
a constitutional excrescence. [GN]
* Class Action Suits vs. Massachusetts Car Dealers on the Rise
--------------------------------------------------------------
JD Supra reported that spurred by a recent change in a
Massachusetts wage and hour regulation, plaintiffs' attorneys are
aggressively pursuing class action lawsuits seeking unpaid
overtime premium pay on behalf of car salespeople across the
Commonwealth.
In Massachusetts, successful wage and hour lawsuits entitle
plaintiffs to not only unpaid wages, but also automatic treble
damages (i.e. three times owed wages) and a payment of their
reasonable attorney's fees. As a result, this recent trend poses
significant risks to Massachusetts car dealers.
It has long been an accepted industry practice for car dealerships
to pay their sales employees on a 100% commission basis.
Typically, these employees receive a "recoverable draw" on a
weekly basis against which earned commissions are credited, with
successful sales employees earning wages far and above the draw.
Under federal law, these sales employees are exempt and thus, are
not entitled to overtime premium pay. Under Massachusetts law,
however, the sales employees are nonexempt. Accordingly,
dealerships apply the draw and/or commissions to cover any wages
for both minimum wage and any overtime hours worked for in a given
week.
The crux of these recent class action lawsuits is a disputed
interpretation of a change to a Massachusetts wage and hour
regulation as applied to this widespread pay plan practice. In
early 2015, the following language was added to the definition of
"Overtime Rate": "Whether a nonexempt employee is paid on an
hourly, piece work, salary, or any other basis, such payments
shall not serve to compensate the employee for any portion of the
overtime rate for hours worked over 40 in a work week." 454 CMR
27.03(3) (emphasis added). Sales employees, and their attorneys,
interpret the regulation's new language to prohibit any crediting
or applying of the draw or commission payments toward overtime
premium pay. In short, the current spate of class action lawsuits
claim that sales employees should receive premium pay separately
and in addition to the draw and commissions -- even if the draw
and commissions comfortably cover every hour worked (at minimum
wage for hours up to 40, and at time and a half for hours over
40). With a current $11 an hour minimum wage, the sales employees,
on a class wide basis, are seeking $16.50 for each overtime hour
worked. Due to the automatic treble damages in Massachusetts, the
amount sought for each salesperson increases to a whopping $49.50
an hour for each overtime hour worked every week. [GN]
* Class Action Waiver Violate NLRA, N.Y. Appeals Court Rules
------------------------------------------------------------
Daniel Wiessner, writing for Reuters, reports that a divided
New York state appeals court on July 18 ruled for the first time
that class action waivers in employment agreements violate the
National Labor Relations Act, but said the U.S. Supreme Court will
soon have the final say on the contentious issue.
The Manhattan-based Appellate Division, First Department, in a
3-2 decision revived a proposed wage-and-hour class action against
New York Life Insurance Co by former sales agents, saying it
agreed with federal appeals courts that have said the waivers
interfered with workers' organizing rights. New York Life is
represented by Morgan Lewis & Bockius. [GN]
* FTC Seeks Comments on Class Action Notice Study
-------------------------------------------------
Barbara S. Mishkin, Esq., of Ballard Spahr, in an article for
Consumer Finance Monitor, reports that as part of its "Class
Action Fairness Project," the FTC is seeking comment on its plans
to use an Internet panel to conduct research on class action
notices. According to the FTC's Federal Register notice, the
project "strives to protect injured consumers from settlements
that provide them with little to no benefit and to protect
businesses from the incentives such settlements may create for the
filing of frivolous lawsuits." Actions taken by the FTC as part
of the project include monitoring class actions and filing amicus
briefs or intervening in appropriate cases; coordinating with
state, federal, and private groups on important class action
issues; and monitoring the progress of legislation and class
action rule changes. Comments in response to the FTC's notice
will be due on or before August 17, 2017.
In 2015, the FTC announced its plans to study whether consumers
receiving class action notices understand the process and
implications for opting out of a settlement, the process for
participating in a settlement, and the implications for doing
nothing (Notice Study). It also announced that it planned to
conduct a study to determine what factors influence a consumer's
decision to participate in a class action settlement, opt out of a
class action settlement, or object to the settlement (Deciding
Factors Study).
In the new notice, the FTC states that as part of the Notice
Study, it proposes to conduct an Internet-based consumer research
study to explore consumer perceptions of class action notices.
Using notices sent to class members in various nationwide class
action settlements and "streamlined versions designed by the FTC
staff," the study will focus on notices sent to individual
consumers via email and will examine whether variables such as the
sender's email address and subject line impact a consumer's
perception of and willingness to open an email notice. The FTC
plans to send an Internet questionnaire to participants drawn from
an Internet panel with nationwide coverage maintained by a
consumer research firm that operates the panel.
While the FTC plans to assess consumer comprehension of the
options conveyed by the notice, including the process for
participating in the settlement and the implications of consumer
choice, in the Notice Study, it no longer plans to examine whether
consumers understood the implications of opting out of a
settlement, According to the FTC, it has determined that the opt-
out issue is more appropriately addressed in the Deciding Factors
Study.
In November 2015, the FTC issued orders to eight claims
administrators requiring them to provide information on their
procedures for notifying class members about settlements and the
response rates for various methods of notification. While the FTC
notes that it has used data obtained through the orders to inform
the Notice Study and that such data will also be used to inform
its Deciding Factors Study, it does not provide any information
about what such data revealed. We had commented that the response
rate data provided to the FTC by the claims administrators was
expected to show extremely low response rates (i.e., less than 5
percent) in most cases, providing support for critics of the
CFPB's proposed rule to prohibit providers of certain consumer
financial products and services from using a pre-dispute
arbitration agreement that contains a class action waiver.
That rule has now been finalized and like the CFPB's proposed
rule, is based on the CFPB's view that consumers obtain more
meaningful relief through class actions than in arbitration. Low
average response rates would be further evidence that the CFPB's
premise is incorrect and arbitration is more beneficial to
consumers than class actions. [GN]
* Republican-Led House Votes to Nullify CFPB Arbitration Rule
-------------------------------------------------------------
Kevin Freking, writing for The Associated Press, reports that
targeting government regulations, the Republican-led House on July
25 voted to nullify a rule that would let consumers join together
to sue their banks or credit card companies rather than use an
arbitrator to resolve a dispute.
The repeal resolution passed by a vote of 231-190, almost entirely
along party lines.
The Consumer Financial Protection Bureau finalized the rule just
two weeks ago. It bans most type of mandatory arbitration
clauses, which are often found in the fine print of contracts
governing the terms of millions of credit card and checking
accounts.
Republican lawmakers, cheered on by the banking sector and other
leading business groups, wasted no time seeking to undo the rule
before it goes into effect next year. They'll succeed if they can
get a simple majority of both chambers of Congress to approve the
legislation and President Donald Trump to sign it.
The numbers are likely on their side, just as they were earlier
this year when Republicans led efforts to upend 14 Obama-era
rules.
GOP lawmakers described the rule as a bad deal for consumers but a
big win for trial lawyers. They said the average payout for
participants in a class-action lawsuit was just $32 in the
financial disputes the consumer bureau studied.
"How is that pro-consumer?" asked Rep. Keith Rothfus, R-Pa., the
resolution's sponsor.
Meanwhile, Mr. Rothfus said the average payout for the attorneys
in the class-action cases amounted to nearly $1 million.
Democratic lawmakers fought to keep the rule. They said they're
not opposed to arbitration. It just shouldn't be the only option
consumers have. They said the point of participating in a class-
action lawsuit is generally to pursue relief from small financial
injuries -- the kind that would not be worth the time and expense
for someone to take to an arbitrator. Sen. Elizabeth Warren,
D-Mass., said that when a whole lot of people get hurt in the same
way, they should have a chance to join together to seek redress.
"If you're going to cheat people, there's going to be some
accountability," Sen. Warren said during a news conference with
Democratic leaders in the House. "That's what this provision is
all about."
Democratic lawmakers framed the debate as Republicans sticking up
for powerful financial companies at the expense of consumers who
often are outgunned and outmanned in their disputes with banks and
other creditors. Minority Leader Nancy Pelosi, D-Calif., said
during the debate that across the Capitol, Republican lawmakers
were voting to begin debate on health care legislation that she
said would shatter the health care of millions of Americans
without regard for the consequences.
"Every chance they get, they stack the deck against America's
working families," Pelosi said of the Republican lawmakers.
Republicans described arbitration as a superior option for
consumers and said that the Consumer Financial Protection Bureau's
action could force banks to hold greater reserves to prepare for
future litigation. That money would be better spent being loaned
to small businesses and families, they said.
To show that arbitration works, they highlighted how the average
payout in the arbitration cases the bureau studied was more than
$5,300.
The consumer protection bureau found that consumers tended to seek
relief through arbitration when they believed they were out
thousands of dollars. The agency found only a couple dozen cases
a year when consumers filed arbitration claims against financial
services companies to pursue an amount of $1,000 or less.
The consumer protection agency also estimated that the cost of
complying with the new rule would be less than $500 million
annually for banks. Meanwhile, the agency also said that banks
generated more than $171 billion in profits in 2016.
Every Democratic lawmaker voted no, while every Republican, except
Rep. Walter Jones of North Carolina, voted yes.
The American Bankers Association urged the Senate to go along with
the House.
"In class-action lawsuits, the spoils go overwhelmingly -- and
sometimes exclusively -- to a small group of highly motivated
trial lawyers who specialize in filing a large volume of often
frivolous litigation," said Rob Nichols, the trade group's
president and chief executive officer.
The consumer advocacy group Public Citizen criticized the repeal
vote.
"Unfair clauses hidden in the fine print of consumer contracts may
be the single most pernicious tactic that the financial industry
uses to escape accountability for cheating, conning, fleecing,
defrauding and plundering consumers," said
Lisa Gilbert, a vice president at Public Citizen.
* SEC Commissioner Open to Mandatory Shareholder Arbitration
------------------------------------------------------------
Alison Frankel, writing for Reuters, reports that this could be
the start of something huge: Securities and Exchange Commissioner
Michael Piwowar said in a speech on July 24 to the Heritage
Foundation that the SEC is open to the idea of allowing companies
contemplating initial public offerings to include mandatory
shareholder arbitration provisions in corporate charters. If
Mr. Piwowar's statements, first reported by Reuters colleague
Sarah Lynch, mark a new SEC policy on mandatory arbitration, they
could be the beginning of the end of securities fraud class
actions.
That's a big if, of course. Mandatory arbitration of shareholder
claims isn't a new idea. In fact, as law professor Barbara Black
has written, it's been kicking around since the late 1980s, when
the U.S. Supreme Court ruled in Shearson v. McMahon and a
successor case that securities brokerages could enforce mandatory
arbitration agreements with customers. Ms. Frankel first wrote
about the prospect of companies requiring shareholders to
arbitrate their claims in 2013, after the Supreme Court ruled in
American Express v. Italian Colors that arbitration agreements
trump plaintiffs' power to enforce statutory rights through class
actions.
Despite that precedent, the SEC has long insisted that
corporations cannot impose arbitration on shareholders because
mandatory arbitration provisions would violate anti-waiver clauses
in federal securities laws. The agency emphatically affirmed that
position in two different contexts in 2012. When the private
equity fund Carlyle floated the possibility of an individual
shareholder arbitration clause as part of its initial public
offering in early 2012, the SEC informed the fund that it would
not accelerate its registration statement. Carlyle ended up
dropping the mandatory arbitration provision.
Meanwhile, shareholders advised by University of Michigan law
professor Adam Pritchard proposed bylaw amendments at three
companies -- Google, Pfizer and Gannett -- that would have
required shareholders to arbitrate federal securities claims.
Pfizer and Gannett, according to Pritchard, sought to exclude the
mandatory arbitration proposals from a shareholder vote. Pfizer
asked the SEC to bless the exclusion. In response, the SEC agreed
with Pfizer that "implementation of the proposal would cause the
company to violate the federal securities laws." (Google
shareholders, according to Pritchard, voted down the mandatory
arbitration proposal.)
So Mr. Piwowar's comments to the conservative Heritage Foundation,
encouraging companies to "come to us to ask for relief to put in
mandatory arbitration into their charters," seems to represent a
different view of the law and public policy than the SEC has
previously espoused. The SEC is operating with only three
commissioners at the moment: Mr. Piwowar, who is a Republican,
Republican chair Jay Clayton and Democratic commissioner Kara
Stein.
It's not clear whether Clayton is aligned with Mr. Piwowar on
mandatory arbitration. As Sarah N. Lynch reported July 17,
Clayton did not specifically mention the provisions in a speech
about boosting IPOs. But the SEC chair did invite companies to
petition the SEC for exemptions from disclosure requirements. Mr.
Piwowar, according to Lynch's account, put mandatory arbitration
provisions into the same broad category of cooperation between the
SEC and companies weighing whether to go public.
"This is important for the signal it's sending," said professor
Adam Zimmerman of Loyola Law School. "Piwowar is sending up a
flare -- this might be okay with us."
Ms. Frankel talked to six securities law professors on July 18
about the implications of mandatory shareholder arbitration
provisions. Most said a pro-arbitration Supreme Court would
likely uphold the legality of such provisions. And though Jill
Fisch of the University of Pennsylvania suggested that state
legislators might try to act to prohibit corporations from
requiring shareholders to arbitrate disputes, much as Delaware
lawmakers squelched loser-pays provisions in 2015, Michigan's
Pritchard said the Federal Arbitration Act would probably pre-empt
a state law disfavoring arbitration.
If the SEC allows companies going public for the first time to
require shareholder arbitration, companies that are already public
won't be far behind in imposing the requirement. And that, the
profs agreed, will hamper shareholder class actions in state and
federal court. If businesses can avoid securities class actions,
they will.
It's true that companies have not tried to defy the SEC and test
their right to impose individual arbitration on shareholders. To
the contrary: When Pritchard's clients tried to bring mandatory
arbitration proposals to shareholders, Pfizer and Gannett vetoed
the proposals.
But Mr. Pritchard said SEC approval would change corporations'
calculus. "No one wants to be first," he said. "No one wants to
be the test case."
If the SEC backs mandatory arbitration provisions, the only big
impediment for corporations contemplating them would be market
reaction. Will big institutional investors balk at waiving their
right to sue? Columbia professor John Coffee predicted that the
combination of non-voting shares and mandatory arbitration clauses
would have a price impact on companies going public. But Penn
prof Fisch said it might be hard for pension funds to steer clear
of corporations with mandatory arbitration provisions because of
index fund investments. Mr. Pritchard, as a supporter of the
clauses, said he believes investors will pay more for shares of
companies that don't face the cost of defending securities class
actions.
Law professors are divided on the policy consequences of forcing
shareholders into individual arbitration. The primary policy
question is deterrence: Are companies more likely to engage in
misconduct if they don't face the risk of accountability in the
public forum of a courtroom?
New York University professor Jennifer Arlen told me they are.
Arbitration, she said, is a private forum. "If you take
shareholder suits out of the light of day and put them in a dark
closet, you lose the deterrent effect," she said. "The very
reasons why some corporations would like the ability to require
shareholders to arbitrate securities fraud claims are the reasons
why it would be bad public policy to allow them to do so."
Big investors will still have the means and motive to bring
claims. They can afford the upfront costs of arbitration and
their losses may justify individual proceedings. Michigan's
Pritchard said the risk of those individual arbitrations is enough
to deter corporate misconduct.
But even if large institutional investors bring individual
arbitrations against misbehaving corporations, said Boston
University professor David Webber, author of the 2015 study
Shareholder Litigation Without Class Actions, small shareholders
would be left in the cold. "The SEC is supposed to be about
shareholder protection," Mr. Webber said. "To the extent
possible, it should not be fostering policies that harm certain
investors. The SEC is supposed to level the playing field."
Mr. Piwowar's comments are sure to spark more of the debate Ms.
Frankel just touched upon here. Securities class actions survived
their last existential crisis, when the Supreme Court reconsidered
fraud on the market theory in 2014. Their next one may be in the
offing. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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