/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170817.mbx C L A S S A C T I O N R E P O R T E R Thursday, August 17, 2017, Vol. 19, No. 162 Headlines 7-ELEVEN: Faces Class Action Over "Pop Tax" Collection 36 TOYAMA: "Basurto" Suit Seeks to Recover Unpaid Wages A-1 SYSTEMS: Class Action Over Hail Damage Solicitation Okayed ALLEGHENY, PA: Faces Class Action Over Disability Benefits ALLSEC TECHNOLOGIES: "Lipsey" Suit Alleges Misclassification ALLSTATE FIRE: Bid to Compel Arbitration of Coverage Claims Denied AMERICAN RESIDENTIAL: "Searle" Alleges Non-payment of OT Work ANGIE'S LIST: Oct. 6 Deadline for Lead Plaintiff Bid ASHLEY MADISON: Jan. 2 Settlement Claims Filing Deadline Set ATHENE ANNUITY: Faces "Hughes" Suit Over Terms of GLWB Rider BAYER AG: Judge to Decide on VitaCraves Class Suit Dismissal Bid BAYERISCHE MOTOREN: Faces "Briscoe" Suit Over Emission Cheating BEHR PROCESS: "Meyers" Sues Over DeckOver False Ad BROOKLYN EVENTS: Class Action to Challenge "Ban the Box" Law BUILDERS DISBURSEMENTS: Navarro Hits Illegal Telemarketing Calls C.L. WILLIAMS: Faces "Barber" Lawsuit Alleging FLSA Violation CAL-MAINE FOODS: 3rd Cir. Appeal over Class Cert. Ruling Pending CAPFUSION LLC: Menichiello Seeks to Certify 2 Classes Under TCPA CENTENE CORP: Still Faces Federal Securities Suit in Missouri CHICAGO BRIDGE: "Jones" Suit Claims "9/80" Pay Plan Unlawful CLEARWATER, ID: Commissioners Approve AG's Defense in Class Action COMMONWEALTH BANK: Class Action Mulled Over Money Laundering Probe CONVERGENT OUTSOURCING: Faces "Constantine" Suit Under FDCPA CONVERGYS CORP: Class Action Waivers Enforceable, Court Rules CSK AUTO: "Aguilar" Suit Alleges Cal. Labor Law Violations CVS HEALTH: NASP Responds to Class Action Over PBMs Collusion DAIICHI SANKYO: Faces Lawsuits Over Benicar Side Effects DAVID PURKEY: Court Denied Bid to Certify Class in "Shell" Suit DIRECTV LLC: Faces "Guice" Lawsuit Alleging FLSA Violation DIRECTV LLC: Seeks 11th Cir. Review of Decision in "Cordoba" Suit DITECH FINANCIAL: Faces "Nelson" Suit Over SCRA Interest Rate Cap EXPRESS SCRIPTS: Bid to Substitute Class Representative Denied EXPRESS SCRIPTS: Review Sought on Class Status Denial in "Brady" EXPRESS SCRIPTS: Still Faces Putative Securities Class Lawsuit EXPRESS SCRIPTS: Bid to Dismiss ERISA Class Suit Still Ongoing EXPRESS SCRIPTS: Still Faces "Klein" Suit over EpiPen Products EXPRESSWAY DELIVERIES: Faces "Munoz" Suit Under Cal. Labor Code DEMOCRATIC NAT'L: Media Mum on Class Action v. Wasserman Schultz FAGRON INC: Bobo's Drugs Moves for Class Certification Under TCPA FOUNDATION MEDICINE: Faces "Mahoney" Securities Class Action FREDERICK-THOMPSON: "Al-Anazi" Suit Seeks to Certify Class G5IVE LLC: Faces "Martinez" Lawsuit Alleging FLSA Violation GENERAL MOTORS: 100 Putative Class Actions Pending in US, Canada GENERAL MOTORS: Appeal from Shareholder Class Settlement Pending GENERAL MOTORS: Ontario Court Affirms 2015 Ruling in Dealers Suit GENERAL MOTORS: Still Faces Class Lawsuits on Emission Standards GENERAL MOTORS: Takata Airbag Inflators Class Actions Ongoing GERBER PRODUCTS: Wants Suit Over Good Start Gentle Formula Tossed GLOBAL EXCHANGE: Faces "Askin" Suit Alleging Violation of TCPA GLOBALSCAPE INC: Block & Leviton Files Securities Class Action GNC: Judge Dismisses Class Action Over Website GOOGLE INC: Fired Software Engineer Files Pay Gap Class Action GOOGLE INC: Altshuler Berzon Mulls Gender Pay Class Action GOOGLE INC: Judge Okays $22.5MM AdWords Class Action Settlement GOOGLE INC: 60+ Women May Join Pay Disparity Class Action GREAT WALL SUPERMARKET: Rivera Sues over Unpaid Meal Breaks GROUPON INC: Faces Class Action Over ADA Violation GUARDNOW INC: "Colding" Suit Seeks to Recover Unpaid Wages HARRIS COUNTY, TX: Irsan Seeks to Certify Class of Muslim Inmates HOME CAPITAL: Settlement Approval Hearing Set for Aug. 21 HOME QUALITY: Faces "Blundell" Lawsuit Alleging FLSA Violation HONEYWELL SAFETY: Class Certification in "McKnight" Suit Denied IFCO SYSTEMS: Former Workers Seek Unpaid Vacation Pay JACKSONVILLE, FL: Responds to Fairway Oaks Residents' Class Suit JASON NATURAL: Sept. 18 Shampoo Settlement Claims Filing Deadline JETSMARTER INC: Conditional Certification Granted in "Lamey" Suit JUI LI ENTERPRISE: Court Certifies 17 Classes in Fond Du Lac Suit KIEWIT INFRASTRUCTURE: Zayerz Moves for Class Certification KINDER MORGAN: Landowners' Appeal on Class Status Bid Underway KINDER MORGAN: Purported Class Litigation on EPB Merger Underway KINDER MORGAN: Interlocutory Appeal in Wisconsin Suit Granted KING BUFFET: Faces "Yu" Lawsuit Alleging FLSA, NYLL Violations KONA SUSHI: "Boots" Files Suit Over Tip Pooling Scheme KORONET PIZZA: Martinez Sues Over Unpaid Minimum and OT Wages LEACHVILLE, AR: Faces "Crocker" Suit Under FLSA, Ark. Wage Law LIBERTY POWER: Faces "Kreke" Lawsuit Alleging Violation of TCPA LIFE CARE: Faces "Lavrenyuk" Suit Under New York Labor Laws LIVANOVA PLC: Faces Class Action Over Heater-Cooler Units MAGIC TOUCH: "Matamoros" Labor Suit Claims Unpaid Overtime Pay MAM ENTERPRISES: Faces "Mckeever" Suit Under FLSA, Ill. Wage Law MIDLAND FUNDING: Wiitanen's Bid to Certify Denied as Premature NATIONAL OILWELL: Moreno Seeks to Certify Welders/Mechanics Class NATIONWIDE EVICTION: Renewed Bid for Class Certification Sought NISSAN MOTOR: Settles Takata Airbag Class Action for $97.7M NISSAN NORTH AMERICA: Auker Appeals Ruling in "Batista" Suit OLIO RESTAURANTS: Faces "Carrera" Suit Under FLSA, NY Labor Law PACIFIC BELLS: Hodges Claims Unpaid for Off-the-Clock Work PCL CONSTRUCTION: Down Creek Claims Lost Income from Power Outage POLARIS INDUSTRIES: Sept. Hearing Set on Bid to Drop Class Suit POSTMATES INC: "Niles" Suit Removed to Mass. Federal Court POWER ULTRA: Lawyers Tapped to Represent Mass Shooting Victims PREMIER COURIER: Faces "Lumley" Suit over Unpaid Minimum Wages PRUDENTIAL RETIREMENT: Class Action Status Denied in ERISA Case REDBACK COIL: Faces "Laney" Lawsuit Alleging FLSA Violation RELIANCE TRUST: "Nistra" Suit Seeks to Certify Class RIZNO INC: TCPA Class Certification Sought in Brite Bite Suit ROCKET FUEL: Haines Claims Shortchanged in Onerous Merger Deal SANOFI-AVENTIS: Taxotere Class Action Investigation Opened SEE'S CANDY: California Judge Nixes Mislabeling Class Action SPA CITY STEAKS: Thompson Moves to Certify Tipped Employees Class SPEEDWAY OFFICE: Innovative Accounting's Certification Bid Denied SPOTIFY INC: December 1 Settlement Approval Hearing Set SWIFT TRANSPORTATION: Class Status Denied in "McKinsty" Lawsuit SWIFT TRANSPORTATION: "Fritsch" Plaintiffs Seek Class Status SWIFT TRANSPORTATION: "Julian" Class Certification Still Pending SWIFT TRANSPORTATION: Trial on "Slack" Class Suit Set for Sept. SWIFT TRANSPORTATION: "Garza" Suit to Proceed in Maricopa County SWIFT TRANSPORTATION: Appeal on "Sheer" Suit Pending in 9th Cir. SWIFT TRANSPORTATION: Merits Discovery in "Banks" Suit Underway SWIFT TRANSPORTATION: Court Denies "Anderson" Class Status Bid T ROWE PRICE: Still Faces Potential Class Suit on ERISA Breaches TD AMERITRADE: District Judge Affirms Dismissal of Class Lawsuit TEXAS DE BRAZIL: Haynes Claims Website Not Accessible to Blind TRANSWORLD SYSTEMS: Class Cert. Bid Due Sept. 1 in "Ferris" Case UNITED STATES: Al Obaidy Appeals USDC-CASF Order to Ninth Circuit UNITED STATES: "Nio" Suit Seeks to Certify Selected Reserve Class VANTIV INTEGRATED: Aug. 26 Class Action Settlement Hearing Set VITAMIN SHOPPE: Faces Class Action Over Weight Loss Supplement VL FUNDING: "McHarris" Suit Removed to E.D. New York W&T OFFSHORE: Faces "Fontenot" Suit Alleging Misclassification WATERSTONE MORTGAGE: Fails to Pay Loan Originators, Werner Claims WELLS FARGO: "Miller" Suit Seeks to Certify Collective Action WELLS FARGO: "Hancock" Sues Over Collateral Protection Insurance WEYERHAEUSER CO: Berger & Montague Files TJI Joists Class Action WILMINGTON TRUST: Brown Files Suit Over Henny Penny Share Buy * Class Actions Over Data Collection Methods Surge * German Politicians Argue Over Adoption of US-Style Class Action * Pillsbury Winthrop Attorneys Discuss CFPB Arbitration Rule ********* 7-ELEVEN: Faces Class Action Over "Pop Tax" Collection ------------------------------------------------------ Jonathan Bilyk, writing for Cook County Record, reports that add 7-Eleven to the list of retailers now facing a class action lawsuit over the collection of Cook County's controversial so-called "pop tax". On Aug. 9, lawyers Thomas Zimmerman, Sharon Harris, Matthew De Re, Nickolas Hagman and Maebetty Kirby, all of the Zimmerman Law Offices, of Chicago, filed suit in Cook County Circuit Court on behalf of named plaintiff Kelly Tarrant against 7-Eleven Corp. The lawsuit alleges the convenience store chain improperly charged Tarrant, of Chicago, Cook County's one-cent-per-ounce sweetened beverage tax, even though she filled her Super Big Gulp cup with unsweetened coffee. That purchase, the lawsuit asserts, should have been exempt from the tax. Instead, Ms. Tarrant was allegedly made to pay an additional 28 cents on her drink purchase. According to the complaint, Ms. Tarrant was told by store employees and later by a manager that "the tax is programmed in the 7-Eleven Store Information System and that the system automatically charges the sweetened beverage tax to all beverages purchased in Gulp cups, regardless of whether the beverage is subject to the sweetened beverage tax." The lawsuit seeks to expand the action to include all others who may have been similarly charged the tax when they purchased an unsweetened beverage at a Cook County 7-Eleven store in the last seven days. The complaint estimates the number of additional plaintiffs could number in the "many thousands." The lawsuit asks the court to award the plaintiffs actual damages, plus attorney fees. Zimmerman's and Ms. Tarrant's lawsuit is the third such class action lawsuit filed in the last five days against retailers over the collection of the tax. The tax took effect Aug. 2, about a month after the county had intended it to do so. Other lawsuits have targeted Walgreens and local McDonald's franchisees. However, collection and enforcement of the tax was delayed by about a month as a Cook County judge weighed a legal challenge launched by a group of Cook County grocers and the Illinois Retail Merchants Association trade group. Among other allegations, the retailers argued the ordinance enacting the tax was poorly written and would leave retailers exposed to class action lawsuits and other litigation over the collection of the tax. The county and the judge, however, brushed aside those concerns, with the judge particularly calling such concerns "merely speculation." In the wake of the rollout of the tax, some Cook County Board members have introduced new measures to repeal the tax. Those measures will be considered at the county board's September meeting. Cook County Board President Toni Preckwinkle, who championed the tax and cast the tie-breaking vote to enact the ordinance establishing the tax, has estimated the tax could bring in as much as $200 million in additional revenue for the county. As the fate of the pop tax hung in the balance in court in July, Ms. Preckwinkle laid off hundreds of county workers, saying the inability to collect nearly $17 million from the pop tax forced the layoffs to make up for the purported budgetary shortfall. The plaintiff's attorneys in the case are no strangers to such class action lawsuits. The Zimmerman Law Offices have brought numerous lawsuits targeting, among others: online attorney directory Avvo, for allegedly misappropriating the personal information of lawyers listed on their site; the makers of grated Parmesan cheese, for allegedly including cellulose in the cans marked "100 percent cheese;" Peet's Coffee, for allegedly not pouring enough French press coffee into customers' cups; United Airlines, for allegedly breaching a contract by placing customers and their checked bags on different aircraft; the Illinois Lottery, for not paying winners amid the state's budget crisis; Sears, for allegedly charging sales tax on purchases of digital television converter boxes bought with federal vouchers; and the makers of Templeton Rye whiskey, for allegedly misleading customers into thinking their whiskey was made in the small town of Templeton, Iowa. Zimmerman's website indicates the firm specializes in consumer fraud litigation and class actions, touting settlements of as much as $62 million for a variety of consumer fraud cases involving skin cream, newspaper advertising, improperly charged cell phone fees and more. [GN] 36 TOYAMA: "Basurto" Suit Seeks to Recover Unpaid Wages ------------------------------------------------------- ISAURO MORALES BASURTO and RUBEN PEREZ VAZQUEZ, individually and on behalf of others similarly situated, Plaintiffs, against 36 TOYAMA SUSHI INC. (d/b/a ATOYAMA SUSHI), ATOYAMA SUSHI CORP. (d/b/a ATOYAMA SUSHI), FENG LI, and PING CAO Defendants, Case No. 1:17-cv-05702 (S.D.N.Y., July 27, 2017), alleges that Plaintiffs are primarily employed as delivery workers, but they are required to spend a considerable part of their work day performing non- tipped, non-delivery duties. Plaintiffs have allegedly worked for Defendants in excess of 40 hours per week, without appropriate compensation for the hours over 40 per week that they have worked. Rather, Defendants have failed to maintain accurate recordkeeping of the hours worked and have failed to pay Plaintiffs appropriately for any hours worked over 40, either at the straight rate of pay or for any additional overtime premium. Further, Defendants have failed to pay Plaintiffs the required "spread of hours" pay for any day in which they have worked over 10 hours per day. Defendants own, operate, or control a Japanese restaurant. Plaintiffs are primarily employed as delivery workers.[BN] The Plaintiffs are represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Fax: (212) 317-1620 A-1 SYSTEMS: Class Action Over Hail Damage Solicitation Okayed -------------------------------------------------------------- Claims Journal reports that contractors acting as public adjusters illegally could face class action lawsuits, according to a new decision by a Texas appeals court. The finding could result in a pool of 3000 affected customers of A-1 Roofing. The decision stems from an underlying case involving damage to the plaintiffs' roof due to a May 2011 hailstorm. The plaintiffs notified their insurance carrier and signed a contract with A-1 (also known as Lon Smith Roofing and Construction) for roof replacement in the amount of $33,769.50. The plaintiffs received $18,926.69 from their homeowners' insurer and paid that amount to A-1. To collect the balance owed, A-1 filed suit against the plaintiffs, obtaining a default judgment. The plaintiffs challenged the default judgment and obtained a judgment voiding it. A-1 appealed. The plaintiffs then filed a declaratory judgment against the roofer, indicating the contract was null and void since it wasn't licensed to act as a public adjuster. They also alleged violations under Texas' Deceptive Trade Practices Act and requested class certification for both claims. According to the court, all class actions must satisfy four threshold requirements contained in the Texas Rule of Civil Procedure 42(a): (1) numerosity ("the class is so numerous that joinder of all members is impracticable"); (2) commonality ("there are questions of law or fact common to the class"); (3) typicality ("the claims or defenses of the representative parties are typical of the claims or defenses of the class"); and (4) adequacy of representation ("the representative parties will fairly and adequately protect the interests of the class") According to the court, "Class-action treatment is particularly useful in this situation because it will determine the propriety of the behavior of the party opposing the class in a single action." The decision should cause roofers and other contractors to reconsider their solicitation tactics. Steve Badger -- sbadger@zelle.com -- a partner with Zelle LLP's Dallas office, said the primary reason for the dramatic increase in the number of hail claims in Texas are contractors that inject themselves into the claims process. He said they solicit homeowners using door hangers, call centers, and other means to aggressively market to homeowners with the promises of a free roof. Mr. Badger said the homeowner then signs an agreement giving the contractor the right to negotiate the insurance claim and install the roof for the amount of the insurance proceeds. These types of contracts are a favorite among storm chaser contractors who travel city-to-city looking for work after hail events, said Badger. There are even seminars and entire conferences that teach contractors how to market to homeowners using these contracts. Mr. Badger brought attention to the issue of mounting hail claims in a 2015 article published by Claims Journal, "The Emerging Hail Risk: What the Hail is Going On?" "The problem is that this entire business model is flat-out illegal," said Mr. Badger, who noted that Texas law has been very clear that roofing contractors are not allowed to negotiate insurance claims. The public adjuster licensing statute in was enacted in 2005 to curtail the unauthorized practice of public adjusting (UPPA) among contractors. "The problem is so bad that a second statute was passed in 2013 stating the very same thing," Mr. Badger said. "Both statutes contain criminal penalties for violators." Despite the two laws, there is little enforcement against the practice. "Literally, every day I receive calls about contractors engaged in UPPA, both from insurance companies and homeowners. I routinely report contractors to the Texas Department of Insurance. The TDI will send a letter telling the contractor to stop. But that's all that happens. There is no criminal enforcement. For every contractor I turn in, there are 25 others out there violating the law with no repercussions," Badger said. Insurers are under no obligation to negotiate with contractors and Mr. Badger often advises insurers to simply ignore them. "The sad calls I receive are the ones from homeowners who have unwittingly signed-up with these contractors and only later realize their contractors are hucksters," Mr. Badger said. "These homeowners believe they are stuck in the contract, as the contracts typically contain a penalty provision requiring the homeowner to pay 20-40 percent of the insurance proceeds to the contractor if the contract is canceled." Mr. Badger, who has been a vocal advocate against the rampant fraud he sees surrounding hail claims, said he could easily employ a team of lawyers that do nothing else but respond to calls related to contractor schemes. "I have a dozen pro bono cases in the office right now where we are helping homeowners get out of these contracts," he said. "But the toughest calls are from homeowners who have had their insurance proceeds ripped off after signing up with storm chaser contractors who never came back to put on their roofs. There is very little we can do to help these homeowners." Keys is an important decision, he said. "Finally, the contractor is at risk. With this decision, there is now a strong body of case law in Texas helping consumers fight back," Mr. Badger said. "The homeowner is no longer stuck in the contract. The homeowner can now argue that the contract is void, illegal and unenforceable and simply walk away from it." Mr. Badger is hopeful that the threat of lawsuits and class actions will cause contractors to think twice before engaging in UPPA. "This opinion is a game changer. Under this decision, Lon Smith has to return all payments it has received from every single one of its homeowner clients who signed one of these illegal contracts. Every single dollar paid must be returned. That will be millions of dollars," Mr. Badger said. "Now, every contractor in Texas who has employed this illegal scheme is at risk of similar lawsuits." Even if this decision deters contractors from engaging in this of type illegal conduct, Mr. Badger said storm chasers and scammers will continue to operate under the radar and perpetuate the scheme. "We'll continue to knock these off one at a time," said Mr. Badger. "But only when the Texas legislature finally realizes that we must have roofing contractor licensing and regulation, will Texas homeowners finally be protected from these crooks and frauds. The Court of Appeals case is Lon Smith & Associates, Inc. and A-1 Systems, Inc., DBA Lon Smith Roofing and Construction v. Joe Key and Stacci Key. [GN] ALLEGHENY, PA: Faces Class Action Over Disability Benefits ---------------------------------------------------------- WPXI News reports that a former employee filed the lawsuit because she's demanding changes to the retirement board when it comes to doling out disability pensions. Susan Donohue needs a cane just to walk down the hallway with her attorneys. She was at their office the Aug. 9 filing a civil lawsuit against the retirement board of Allegheny County. "Frustrating, discouraging and just like wow this really happened," Ms. Donohue said. Ms. Donohue worked for the Allegheny County court system for 30 years. Several years ago, she began having severe back pain. Her doctor eventually determined she could no longer work, so she applied for disability retirement. The county denied it. She says she was fired after they couldn't find a job to accommodate her. The lawsuit she filed on Aug. 9 claims the retirement board failed to establish guidelines and standards for awarding disability pensions, calling the system irrational and arbitrary. "It's wrong, it's unfair and it's unconstitutional," said Tybe Brett, Donohue's attorney. Ms. Donohue and her attorneys also say that one doctor the retirement board hired came to two different conclusions. "One said she could work with accommodations and one said she was totally and permanent disabled, based on the same examination, so what's going on here," Mr. Brett said. The goal of the lawsuit, they say, is not only to get Donohue the money she deserves, but to force the board to make wholesale changes. "To require the pension board to publish and articulate clear standards for when someone can receive disability pension benefits that they've contributed to for their entire employment," another attorney, Tim O'Brien said. What's even more troubling, her attorneys say, is that the Social Security Administration awarded her disability benefits. Meanwhile, the retirement board says there are guidelines in place and that they are preparing to address the lawsuit in court. [GN] ALLSEC TECHNOLOGIES: "Lipsey" Suit Alleges Misclassification ------------------------------------------------------------ MONROE LIPSEY, on behalf of himself and other similarly situated employees, Plaintiff, vs. ALLSEC TECHNOLOGIES, INC., a Texas Corporation, Defendant, Case No. 3:17-cv-01915-D (N.D. Tex., July 18, 2017), alleges that despite working more than forty (40) hours per week, Defendant failed to pay Plaintiff and those similarly situated AML workers overtime compensation at a rate of time and a half their regular rate of pay for the hours they worked over forty in each workweek. Allegedly, Defendant has misclassified Plaintiff and those similarly situated Anti-Money Laundering Financial Transactions Specialist (AMLs) employees as independent contractors under the FLSA and failed to pay Plaintiff and those similarly situated AML workers proper overtime premium compensation for all overtime hours worked each week. Defendant -- http://www.allsectech.com/about.php-- provides business process solutions across various industry verticals. Defendant provided these services to Standard Chartered Bank among other institutions in Irving, Texas, where Defendant employed Plaintiff and other similarly situated workers to perform the physical work. Plaintiff is an AML Financial Transactions Specialist. [BN] The Plaintiff is represented by: Clara H. Saafir, Esq. THE WITHERSPOON LAW GROUP, PLLC 1717 McKinney Avenue, Suite 700 Dallas, TX 75202 Phone: (214) 773-1133 Fax: (972) 696-9982 Email: saafir@twlglawyers.com - and - C. Ryan Morgan, Esq. Carlos V. Leach, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 14th Floor P.O. Box 4979 Orlando, FL 32802-4979 Phone: (407) 420-1414 Fax: (407) 245-3401 Email: RMorgan@forthepeople.com - and - Andrew. R. Frisch, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Fax: (954) 327-3013 E-mail: AFrisch@forthepeople.com ALLSTATE FIRE: Bid to Compel Arbitration of Coverage Claims Denied ------------------------------------------------------------------ Bill Wichert, writing for Law360, reports that a New Jersey federal judge on Aug. 9 shot down an Allstate unit's bid to force a putative class action over unpaid medical benefits into arbitration, rejecting the insurer's argument that state law allowed it to take such action without an arbitration agreement between the parties. U.S. District Judge Anne E. Thompson denied the motion from Allstate Fire and Casualty Insurance Co. to compel arbitration of claims made by an insured and a surgical center, saying there was neither an arbitration agreement nor notice that the parties could be forced to arbitrate the matter. "Both the Federal Arbitration Act and New Jersey policy express a preference for resolution by arbitration," Judge Thompson said in her written opinion. "However, both are predicated on a formal agreement between the parties or notice that they may be forced to submit a dispute to arbitration." "As there is no agreement or notice in this case, the court will decline to compel arbitration," the judge added. Plaintiffs Juan Gonzalez and Ambulatory Surgical Center of Somerset launched the proposed class action against Allstate in September in connection with claims that the insurer has unlawfully denied coverage for a surgery Gonzalez underwent at the facility in March 2015. The surgery was related to injuries Gonzalez sustained in an August 2011 car accident in Jefferson Township, New Jersey, court documents state. At the time of the accident, Gonzalez was insured by an auto policy issued by Allstate in Pennsylvania, court documents state. Allstate has refused to reimburse the surgical center for the procedure, because the code assigned to Gonzalez's surgery was not listed in New Jersey's auto medical fee schedule for such payments, court documents state. The plaintiffs have asserted that the procedure is still payable at reasonable rates pursuant to New Jersey insurance regulations. Gonzalez and the surgical center are seeking liability and damages on behalf of two proposed classes: individuals insured by Allstate who were injured in car accidents and are entitled to automobile medical benefits under New Jersey law, and ambulatory surgical facilities that performed procedures for which there are no codes listed in the fee schedule and for which Allstate has refused payment, according to the judge's opinion. The plaintiffs seek declaratory judgment that Allstate must pay for those procedures, and assert related claims for breach of contract, breach of implied covenant of good faith and fair dealing, and violation of the New Jersey Consumer Fraud Act, the opinion said. While there is no arbitration agreement between the parties, Allstate sought to compel arbitration based on the state's "Deemer Statute" and an arbitration provision within the New Jersey Automobile Insurance Cost Reduction Act, which provides for personal injury protection, or PIP, coverage, according to the judge's opinion. Under the Deemer Statute, an out-of-state insured is entitled to the PIP coverage required under New Jersey law when the covered vehicle is involved in a New Jersey accident. The arbitration provision states that disputes regarding the recovery of medical benefits provided under PIP coverage "may be submitted to dispute resolution on the initiative of any party to the dispute." Based on the Deemer Statute, Allstate argued that "the entire PIP statute applies to an out-of-state insured who received coverage in New Jersey pursuant to the statute," and that thus the insurer could require arbitration under the arbitration provision, according to the opinion. But Judge Thompson found that the plain text of the Deemer Statute "only provides for coverage of out-of-state insured who are insured by insurers authorized to transact or transacting automobile insurance business in New Jersey." "It does not incorporate other aspects of the PIP statute," the judge said. The judge also pointed to the differences between the Allstate matter and the New Jersey Appellate Division's 1996 decision in State Farm Mut. Auto. Ins. Co. v. Crocker, which also dealt with the application of the arbitration provision to an out-of-state insured who utilized medical care in New Jersey. In Crocker, the appellate court found that the insured could compel the insurance company to arbitrate based on that provision, even though the Deemer Statute did not specifically incorporate the arbitration clause, Judge Thompson said. But to be subject to the statute, the insurer had to be authorized to transact or transacting an automobile insurance business in New Jersey, the judge said. "Therefore, the insurance company had notice that it could be compelled to arbitrate. That is distinct from the present case, in which the insurer seeks to compel arbitration based on the New Jersey statute," Judge Thompson said. "The out-of-state insured might have no notice that it could be compelled to arbitrate." The judge added, "Therefore, based on the text of the relevant statement and the interpreting case law, it is unclear that the arbitration provision permits insurers to compel arbitration based on the Deemer Statute with out-of-state insureds who utilize in- state coverage." Charles Kannebecker, an attorney representing the plaintiffs, told Law360 on Aug. 9, "Allstate calculated that it could avoid responsibility by terminating the single action to determine its fault, thereby forcing every insured and every medical provider to incur the time, expense, delay and fees of hundreds of separate individual claims in arbitration." "The court properly refused Allstate's attempts and now Allstate will be held accountable for all of its conduct," Kannebecker added. Counsel for Allstate did not immediately respond to a request for comment on Aug. 9. The plaintiffs are represented by Charles Kannebecker. Allstate is represented by David J. D'Aloia and Marc E. Wolin of Saiber LLC. The case is Ambulatory Surgical Center of Somerset and Juan Gonzalez v. Allstate Fire Casualty Insurance Co., Case No. 3:16-cv-05378 (D.N.J.). The case is assigned to Judge Anne E. Thompson. The case was filed September 2, 2016. [GN] AMERICAN RESIDENTIAL: "Searle" Alleges Non-payment of OT Work -------------------------------------------------------------- CARL SEARLE, individually and on behalf of all others similarly situated, Plaintiffs, vs. AMERICAN RESIDENTIAL SERVICES, LLC, dba ARS/RESCUE ROOTER, ROBERT ANCHANDO, JUSTIN FRYE, TRACY KENNEDY, and DOES 1 THROUGH 100, Defendants, Case No. RG 17867995 (Cal. Super., County of Alameda, July 17, 2017), alleges that Defendants have had a consistent policy of (1) permitting, encouraging and/or requiring its non-exempt service technician employees, including the Plaintiff and Class Members, to work in excess of eight hours per day and in excess of forty hours per week without paying them overtime compensation at the correct rate, as required by California's wage and hour laws, (2) willfully failing to provide Plaintiff and Class Members with statutorily mandated meal and rest periods, (3) willfully failing to pay compensation (including unpaid overtime) in a prompt and timely manner to the Plaintiff and those Class Members whose employment with Defendants terminated, (4) willfully failing to indemnify employees for expenditures or losses in discharge of duties or obedience to instructions, as required by California Labor Code, and (5) failing to provide complete and accurate wage statements as required by California Labor Code. AMERICAN RESIDENTIAL SERVICES, LLC, doing business as ARS/Rescue Rooter, provides heating, air conditioning (AC), indoor air quality, plumbing, drain cleaning, and sewer line services to residential and light commercial customers in the United States. The Plaintiff is a non-exempt service technician employee.[BN] The Plaintiff is represented by: Matthew Righetti, Esq. John Glugoski, Esq. Michael Righetti, Esq. RIGHETTI GLUGOSKI, P.C. 456 Montgomery Street, Suite 1400 San Francisco, CA 94104 Phone: (415) 983-0900 Fax: (415) 397-9005 - and - Zachary Crosner, Esq. Michael Crosner, Esq. CROSNER LEGAL, P.C. 1112100 Wilshire Blvd., Ste. 650 Los Angeles, CA 90025 Phone: (310) 496-5818 Fax: (310) 510-6429 ANGIE'S LIST: Oct. 6 Deadline for Lead Plaintiff Bid ---------------------------------------------------- Rigrodsky & Long, P.A. on Aug. 7 disclosed that it has filed a class action complaint in the United States District Court for the Southern District of Indiana on behalf of holders of Angie's List, Inc. ("Angie's List") common stock in connection with the proposed acquisition of Angie's List by IAC/InterActiveCorp and ANGI Homeservices Inc. ("IAC") announced on May 1, 2017 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against Angie's List, its Board of Directors (the "Board"), and IAC, is captioned Parshall v. Angie's List, Inc., Case No. 1:17-cv-02418-WTL-MJD (S.D. Ind.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington, DE 19803, by telephone at (888) 969-4242; by e-mail at info@rl- legal.com; or at http://rigrodskylong.com/contact-us/. On May 1, 2017, Angie's List entered into an agreement and plan of merger (the "Merger Agreement") with IAC. Pursuant to the Merger Agreement, shareholders of Angie's List will receive $8.50 in cash for each share of Angie's List stock they own (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a Form S-4 Registration Statement (the "Registration Statement") filed with the United States Securities and Exchange Commission on June 30, 2017. The Complaint alleges that the Registration Statement, which recommends that Angie's List stockholders vote in favor of the Proposed Transaction, omits material information necessary to enable shareholders to make an informed decision as to how to vote on the Proposed Transaction, including material information with respect to Angie's List financial projections, the analyses performed by Angie's List's financial advisors, and the background of the Proposed Transaction. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of Angie's List common stock. If you wish to serve as lead plaintiff, you must move the Court no later than October 6, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. With offices in Wilmington, Delaware and Garden City, New York, Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com-- regularly prosecutes securities fraud, shareholder corporate, and shareholder derivative litigation on behalf of shareholders in state and federal courts throughout the United States. [GN] ASHLEY MADISON: Jan. 2 Settlement Claims Filing Deadline Set ------------------------------------------------------------ Angie Koehle, writing for abc15, reports that even cheaters get a break once in a while. Ashley Madison, the website that enables extramarital affairs settled a lawsuit in its 2015 security breach. If you were signed up on the site on or before July 20, 2015, you may be able to claim between $19 to $3,500 from the class action settlement. The settlement was reached after the company was accused of failing to protect users' personal information from being hacked. Hackers posted the information online. According to Top Class Actions: The class action settlement also addresses allegations that the company falsely advertised that its "full delete" or "paid delete" services would "remove all traces of your usage." Plaintiffs also alleged the company used conversation-stimulating software known as "bots" or "engagers" to communicate with real users, giving them the false impression that they were engaging with real people. This caused some Ashley Madison users to purchase spending credits to communicate with the fake profiles. The deadline to file a claim is January 2, 2018. [GN] ATHENE ANNUITY: Faces "Hughes" Suit Over Terms of GLWB Rider ------------------------------------------------------------ JON BRUCE HUGHES, individually and on behalf of all others similarly situated, Plaintiffs, vs. ATHENE ANNUITY & LIFE ASSURANCE COMPANY, Defendant, Case No. 1:17-cv-02702-LMM (N.D. Ga., July 18, 2017), alleges that Defendant caused material harm to Plaintiff and the proposed class by improperly reducing and/or calculating the Lifetime Withdrawal Percentage based on the age of individuals who are not identified as Annuitants, joint or otherwise, under the terms of the "Guaranteed Lifetime Withdrawal Benefit" (GLWB) Rider. Defendant Athene Annuity & Life Assurance Company is a life insurance company. Plaintiff purchased a single premium deferred annuity from Defendant with a GLWB Rider. [BN] The Plaintiff is represented by: Rodney E. Miller, Esq. MCCALLUM, METHVIN & TERRELL, P.C. 2201 Arlington Avenue, South Birmingham, AL 35205 Phone: (205) 939-0199 Fax: (205) 939-0399 BAYER AG: Judge to Decide on VitaCraves Class Suit Dismissal Bid ---------------------------------------------------------------- David Hutton, writing for Legal Newsline, reports that Judge Phyllis J. Hamilton recently oversaw a hearing on Bayer's motion to dismiss a class action lawsuit that claims the company misrepresented the number of multivitamins that are contained in bottles of One A Day VitaCraves chewable vitamin supplements. The hearing was held July 12 at the U.S. District Court for the Northern District of California. Plaintiff Daniel Goldman filed a response to the motion to dismiss the class action suit, claiming that the companies violate the consumer protection laws of several states with the misinformation of the number of days' worth of vitamins contained in the bottles. Mr. Goldman had filed the initial class action complaint in February against the companies. In its motion to dismiss, Bayer contends that Mr. Goldman's claims are baseless. According to Mr. Goldman's complaint, Bayer markets and sells numerous multivitamin products under the One A Day brand. It also displays the number of vitamins contained in each bottle or box prominently on the bottom right corner of the front label. The VitaCraves, adult multivitamin supplements in a chewable, fruit-flavored gummy form, are marketed in at least 10 different types. Mr. Goldman purchased One A Day VitaCraves in December at two outlets, one in New York and another in California. He claims he relied on the labels, which led him to believe he was receiving twice as many days' supply of vitamins than the bottles actually contained. In the complaint, Mr. Goldman maintains that most consumers purchasing a bottle of VitaCraves would understand they should take one each day. As a result, each bottle would contain the number of days' worth of vitamins equal to the number of gummies in each bottle. However, that is not the case. Each product in the One A Day VitaCraves line requires the consumer to take two gummies per day, not just one, to get a full serving. As a result, consumers are only receiving half the supply of gummies that they would likely expect from the One A Day brand, the plaintiff claims. While a bottle containing 70 gummies would be expected to last 70 days, it actually is only a 35-day supply, he says. In the motion to dismiss, Bayer argued that the "California statutory count fail to state a claim." Citing Williams v. Gerber Products Co., Mr. Goldman's objection to Bayer's motion to dismiss noted that courts and others in the U.S. Court of Appeals for the Ninth Circuit routinely deny motions to dismiss in light of Williams. "Despite the overwhelming body of case law showing that factual issues should not be decided on a motion to dismiss, defendants cite several cases that represent the rare situation where it is possible to conclude as a matter of law at the pleading stage that no reasonable consumer could be misled by the advertising in question," the response noted. "But these cases are simply fringe cases where it was manifestly and objectively impossible for the representation to be deceptive." The defendants also cited two cases -- Brady v. Bayer AG and Howard v. Bayer Corp., which Goldman's objection deemed had been incorrectly decided. Both the Brady and Howard orders held that no reasonable consumer could be misled by the labels at issue here because "a reasonable consumer of any medicine or medicine-like substance such as vitamins would not stop with the brand name," and "there are no allegations of misrepresentations by defendant other than the brand name." Mr. Goldman is represented by Wolf Haldenstein Adler Freeman & Herz LLP. [GN] BAYERISCHE MOTOREN: Faces "Briscoe" Suit Over Emission Cheating --------------------------------------------------------------- GABRIEL BRISCOE, et al., individually and on behalf of all others similarly situated, Plaintiff, v. BAYERISCHE MOTOREN WERKE AG, BMW NORTH AMERICA, LLC, VOLKSWAGEN AG, VOLKSWAGEN GROUP OF AMERICA, INC., AUDI AG, AUDI OF AMERICA, LLC, DR. ING. H.C. F. PORSCHE AG, PORSCHE CARS OF NORTH AMERICA, INC., DAIMLER AG, and MERCEDES-BENZ USA, LLC, Defendants, Case No. 3:17-cv-04320 (N.D. Cal., July 28, 2017), accuses Defendants of colluding to limit their competitive advantages over one another by agreeing to identical or very similar standards, by agreeing to limit technological development or by sharing technology, by covering for each other's emission cheating and lowering development and supplier costs. Together, Volkswagen, Audi, Porsche, Daimler, and BMW are known as the German Five, the oldest and largest auto manufacturers in Germany.[BN] The Plaintiff is represented by: Jeffrey Lewis, Esq. KELLER ROHRBACK L.L.P. 300 Lakeside Drive, Suite 1000 Oakland, CA 64612 Phone: (510) 463-3900 Fax: (510) 463-3901 Email: jlewis@kellerrohrback.com - and - Lynn Lincoln Sarko, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Phone: (206) 623-1900 Fax: (206) 623-3384 Email: lsarko@kellerrohrback.com BEHR PROCESS: "Meyers" Sues Over DeckOver False Ad -------------------------------------------------- GLEN MEYERS, individually and on behalf of all others similarly situated, Plaintiff, vs. BEHR PROCESS CORP., BEHR PAINT CORP., and MASCO CORP., Defendants, Case No. 3:17-cv-04040 (C.D. Cal., July 18, 2017), alleges that Defendants falsely marketed their patio and deck product branded as DeckOver as a durable and long-lasting alternative to paint and stains, capable of extending the life of surfaces. And yet, DeckOver performs worse than cheaper options and requires hours of scraping, scrubbing, and sanding to remove it, says the complaint. Plaintiff seeks an order forcing Behr to stop the alleged deceptive conduct and provide appropriate remuneration to affected consumers. BEHR PROCESS CORP. is a supplier of architectural paint and exterior wood care products. [BN] The Plaintiff is represented by: Michael F. Ram, Esq. Susan S. Brown, Esq. ROBINS KAPLAN LLP 2440 West El Camino Real Mountain View, CA 94040 Phone: (650) 784-4040 Fax: (650) 784-4041 Email: mram@robinskaplan.com Email: sbrown@robinskaplan.com - and - Jeffrey B. Cereghino, Esq. Matt J. Malone, Esq. ROCK LAW LLP 101 Montgomery Street, Suite 1800 San Francisco, CA 94111 Phone: (415) 433-4949 Email: jbc@rocklawcal.com Email: mjm@rocklawcal.com BROOKLYN EVENTS: Class Action to Challenge "Ban the Box" Law ------------------------------------------------------------ Thomas Ahearn, writing for Employment Screening Resources, reports that a class action lawsuit filed in a New York federal court on August 4, 2017, could be the first of its kind to challenge alleged violations by employers of a New York City "Ban the Box" law called the Fair Chance Act (FCA), according to a press release from employment law firm Outten & Golden LLP, which filed the suit along with the nonprofit organization Youth Represent. The press release states that the lawsuit claims the defendants -- Brooklyn Events Center, LLC (doing business as Barclays Center), Levy Restaurants, Inc., and Professional Sports Catering LLC -- "used flawed and discriminatory criminal history screening policies and practices" to deny employment to otherwise qualified job applicants in violation of the Ban the Box law. Lead plaintiff, Felipe Kelly, applied for a job at Barclays Center -- home of the Brooklyn Nets of the National Basketball Association (NBA) and the New York Islanders of the National Hockey League (NHL) -- in 2016. He claims the defendants did not hire him after a background check, never said why, and did not give him the "Fair Chance Notice" required by the Ban the Box law. The lawsuit claims Kelly was unaware of what information was being reported on him, unable to review the information for accuracy and completeness, review the arguments of defendants as to why they believed his conviction barred him from employment, or explain why he thought he was still entitled to employment and include any evidence of rehabilitation and good conduct. "Federal and New York state laws require that job applicants with criminal histories be provided with the same criminal history information relied on by the prospective employer so they might evaluate that information, ensure it is accurate, and even if it is accurate explain why they nonetheless are qualified for employment," said Christopher M. McNerney of Outten & Golden. Outten & Golden LLP and Youth Represent will seek to have the case certified as a class action that covers proposed classes of affected job applicants since October 27, 2015. The case is Felipe Kelly, et al., v. Brooklyn Event Center, et al., Class Action Complaint No. 1:17-cv-04600 in the U.S. District Court for the Eastern District of New York. As reported earlier by ESR News, the New York City Commission on Human Rights amended rules to establish definitions and procedures applying to the FCA that took effect in October of 2015 to amend the provisions regarding unlawful discrimination on the basis of criminal history against job applicants and employees. The amended rules took effect on August 5, 2017. Ban the Box refers to removing the box on job applications that applicants are asked to check if they have criminal records. According to the National Employment Law Project (NELP), 29 states and over 150 cities and counties have Ban the Box laws. A 2011 study by NELP estimated that nearly 65 million people in the United States -- more than one in four adults -- had a criminal record. "The purpose of Ban the Box is to give ex-offenders a fair chance at obtaining employment," says Attorney Lester Rosen, founder and CEO of Employment Screening Resources(R) (ESR). "By removing the criminal history question, supporters claim job applicants can be sure that they will not be automatically excluded from consideration for a job because of past mistakes." Mr. Rosen, author of "The Safe Hiring Manual," adds: "Ban the Box does not mean there can never be a background check but instead prevents an early knock-out punch before ex-offenders have the opportunity to be considered on individual merits. Employers can still conduct criminal background checks, but Ban the Box delays this screening until later in the hiring process." [GN] BUILDERS DISBURSEMENTS: Navarro Hits Illegal Telemarketing Calls ---------------------------------------------------------------- Carolyn Navarro, individually and on behalf of all others similarly situated, Plaintiffs, v. Builders Disbursements, Inc. and Does 1 through 10, Defendant, Case No. 2:17-cv-05838 (C.D. Cal., August 7, 2017), seeks statutory damages and injunctive relief resulting from violations of the Telephone Consumer Protection Act. Plaintiff has received numerous solicitation calls from Defendant within a 12-month period in its attempt to market its services. Navarro's number is on the national Do-Not-Call registry. Builders Disbursements Inc. -- http://www.bdiinc.info/-- provides comprehensive and professional assistance to construction lenders with the disbursement of construction loans. [BN] 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 C.L. WILLIAMS: Faces "Barber" Lawsuit Alleging FLSA Violation ------------------------------------------------------------- CARLTON BARBER, on behalf of himself and all other persons similarly situated, known and unknown, Plaintiff, vs. C.L. WILLIAMS ENTERPRISES, INC., and CHARLES WILLIAMS, a Michigan for- profit company and owner of said Michigan for profit company, Defendants, Case No. 5:17-cv-12429-JCO-SDD (E.D. Mich., July 27, 2017), alleges that Plaintiff was compensated for 40 hours a week in the year 2015, regardless of how many hours he actually worked. Because Plaintiff worked more than 8 hours per day, Plaintiff Barber was not compensated for all the hours that he worked in violation of the Fair Labor Standards Act. Defendants provide home healthcare. Plaintiff Barber worked as a care giver for Defendant C.L. Williams Enterprises and Defendant Williams from 2013 to 2016.[BN] The Plaintiff is represented by: Bryan Yaldou, Esq. Omar Badr, Esq. THE LAW OFFICES OF BRYAN YALDOU, PLLC 23000 Telegraph, Suite 5 Brownstown, MI 48134 Phone: (734) 692-9200 Fax: (734) 692-9201 Email: bryan@yaldoulaw.com CAL-MAINE FOODS: 3rd Cir. Appeal over Class Cert. Ruling Pending ---------------------------------------------------------------- Cal-Maine Foods, Inc. disclosed in its Form 10-K filed on July 24, 2017, with the U.S. Securities and Exchange Commission for the fiscal year ended June 3, 2017 that the plaintiffs filed a petition with the Third Circuit asking the court to hear an appeal of a June 27 order denying their renewed motion for injunctive class certification. The Company and other defendants have filed a response on July 21, 2017 with the Third Circuit opposing the plaintiffs' petition. Since September 25, 2008, the Company has been named as one of several defendants in numerous antitrust cases involving the United States shell egg industry. In some of these cases, the named plaintiffs allege that they purchased eggs or egg products directly from a defendant and have sued on behalf of themselves and a putative class of others who claim to be similarly situated. In other cases, the named plaintiffs allege that they purchased shell eggs and egg products directly from one or more of the defendants but sue only for their own alleged damages and not on behalf of a putative class. In the remaining cases, the named plaintiffs are individuals or companies who allege that they purchased shell eggs indirectly from one or more of the defendants -- that is, they purchased from retailers that had previously purchased from defendants or other parties -- and have sued on behalf of themselves and a putative class of others who claim to be similarly situated. The Judicial Panel on Multidistrict Litigation consolidated all of the putative class actions (as well as certain other cases in which the Company was not a named defendant) for pretrial proceedings in the United States District Court for the Eastern District of Pennsylvania. The Pennsylvania court organized the putative class actions around two groups (direct purchasers and indirect purchasers) and named interim lead counsel for the named plaintiffs in each group. The Direct Purchaser Putative Class Action The direct purchaser putative class cases were consolidated into In re: Processed Egg Products Antitrust Litigation, No. 2:08-md- 02002-GP, in the United States District Court for the Eastern District of Pennsylvania. As previously reported, in November 2014, the Court approved the Company's settlement with the direct purchaser plaintiff class and entered final judgment dismissing with prejudice the class members' claims against the Company. The Indirect Purchaser Putative Class Action The indirect purchaser putative class cases were consolidated into In re: Processed Egg Products Antitrust Litigation, No. 2:08-md- 02002-GP, in the United States District Court for the Eastern District of Pennsylvania. On April 20-21, 2015, the Court held an evidentiary hearing on the indirect purchaser plaintiffs' motion for class certification. On September 18, 2015, the Court denied the indirect purchaser plaintiffs' motion for class certification of 21 separate classes seeking damages under the laws of 21 states, holding that the plaintiffs were not able to prove that their purported method for ascertaining class membership was reliable or administratively feasible, that common questions would predominate, or that their proposed class approach would be manageable in a single trial. In addition to barring any right to pursue a class monetary remedy under state law, the Court also denied indirect purchaser plaintiffs' request for certification of an injunctive-relief class under federal law. However, the court allowed the indirect purchaser plaintiffs to renew their motion for class certification seeking a federal injunction. The plaintiffs filed their renewed motion to certify an injunctive- relief class on October 23, 2015. The Company joined the other defendants in opposing that motion on November 20. The plaintiffs filed their reply memorandum on December 11, 2015, and on March 7, 2017, the Court heard arguments on the renewed motion for injunctive class certification. On June 27, 2017, the Court denied plaintiffs' renewed motion for injunctive class certification. The plaintiffs also filed a petition with the United States Court of Appeals for the Third Circuit, asking the court to hear an immediate appeal of the trial court's denial of the motion to certify 21 state-law damages classes. On December 3, 2015, the Third Circuit entered an order staying its consideration of the plaintiffs' request for an immediate appeal of the damages-class ruling pending the trial court's resolution of the plaintiffs' renewed motion to certify an injunctive-relief class. On July 11, 2017 the plaintiffs filed a petition with the Third Circuit asking the court to hear an appeal of the June 27 order denying plaintiffs' renewed motion for injunctive class certification. On July 21, 2017, the Company joined other defendants in a response filed with the Third Circuit opposing the plaintiffs' petition. The Non-Class Cases Six of the cases in which plaintiffs do not seek to certify a class have been consolidated with the putative class actions into In re: Processed Egg Products Antitrust Litigation, No. 2:08-md- 02002-GP, in the United States District Court for the Eastern District of Pennsylvania. The court granted with prejudice the defendants' renewed motion to dismiss the non-class plaintiffs' claims for damages arising before September 24, 2004. On July 2, 2015, the Company filed and joined several motions for summary judgment that sought either dismissal of all of the claims in all of these cases or, in the alternative, dismissal of portions of these cases. On July 2, 2015, the non-class plaintiffs filed a motion for summary judgment seeking dismissal of certain affirmative defenses based on statutory immunities from federal antitrust law. The Court heard oral argument on the motions for summary judgment on February 22 and 23, 2016. On September 6, 2016, the Court granted the defendants' motion for summary judgment against the plaintiffs' claims arising from their purchases of egg products, dismissing those claims with prejudice. On September 9, 2016, the Court granted in part the Company's motion for summary judgment on liability, dismissing as a matter of law the plaintiffs' allegations of a side agreement to cease construction of new facilities and ruling that the plaintiffs' allegations against United Egg Producers (UEP) animal-welfare guidelines must be evaluated at trial under the rule of reason. On September 12, 2016, the Court granted in part the Company's motion for summary judgment on damages, ruling that plaintiffs cannot recover damages on purchases of eggs from non-defendants and cannot recover any relief on eggs and egg products produced or sold in Arizona after October 1, 2009, the date that Arizona mandated that all eggs sold or produced in that state must be produced in compliance with the 2008 version of the UEP animal- welfare guidelines. On September 13, 2016, the Court granted in part the plaintiffs' motion for summary judgment as to the applicability of the Capper- Volstead defense, ruling that United States Egg Marketers (an industry cooperative of which the Company is a member) may invoke the defense at trial but that UEP (another industry cooperative of which the Company is a member) cannot. The Capper-Volstead defense is a defense pursuant to the Capper-Volstead Act (the Co- operative Marketing Associations Act), enacted by Congress in 1922, which gives certain associations of farmers certain exemptions from antitrust laws. On October 4, 2016, certain direct action plaintiffs (Kraft Food Global, Inc., General Mills, Inc., Nestle USA, Inc., and The Kellogg Company) filed an appeal to the United States Court of Appeals for the Third Circuit from the District Court's Order dated September 6, 2016, granting defendants' motion for summary judgment and dismissing with prejudice all claims based on the purchase of egg products. These plaintiffs filed their opening brief on March 7, 2017. The defendants filed their response brief on April 20. These plaintiffs filed their reply brief on May 18. The court of appeals heard oral argument on July 11, 2017, but has not issued a ruling. On November 22, 2016, the non-class plaintiffs filed a motion asking the Court to hold a status conference and asking the court to set the non-class cases for trial in June of 2017. The parties in all of the remaining class and non-class cases submitted several different proposed trial schedules to the court, and a status conference was held on February 9, 2017. A trial date has not yet been set. Allegations in Each Case In all of the cases described above, the plaintiffs allege that the Company and certain other large domestic egg producers conspired to reduce the domestic supply of eggs in a concerted effort to raise the price of eggs to artificially high levels. In each case, plaintiffs allege that all defendants agreed to reduce the domestic supply of eggs by: (a) agreeing to limit production; (b) manipulating egg exports; and (c) implementing industry-wide animal welfare guidelines that reduced the number of hens and eggs. The named plaintiffs in the remaining indirect purchaser putative class action seek treble damages under the statutes and common-law of various states and injunctive relief under the Sherman Act on behalf of themselves and all other putative class members in the United States. Although plaintiffs allege a class period starting in October, 2006 and running "through the present," the Court denied the plaintiffs' motion to certify classes seeking damages under the laws of 21 states and denied without prejudice the plaintiffs' motion to certify an injunctive-relief class, although the plaintiffs have filed a renewed motion to certify an injunctive-relief class. Five of the original six non-class cases remain pending against the Company. The principal plaintiffs in these cases are: The Kroger Co.; Publix Super Markets, Inc.; SUPERVALU, Inc.; Safeway, Inc.; Albertsons LLC; H.E. Butt Grocery Co.; The Great Atlantic & Pacific Tea Company, Inc.; Walgreen Co.; Hy-Vee, Inc.; and Giant Eagle, Inc. In four of these remaining non-class cases, the plaintiffs seek treble damages and injunctive relief under the Sherman Act. In one of those four cases, the plaintiffs purchased only egg products, and as noted above, the Court dismissed with prejudice all claims arising from the purchase of egg products. On October 4, 2016, the four plaintiffs in that case (Kraft Food Global, Inc., General Mills, Inc., Nestle USA, Inc., and The Kellogg Company) appealed that decision to the United States Court of Appeals for the Third Circuit. In the fifth remaining non- class case, the plaintiff seeks treble damages and injunctive relief under the Sherman Act and the Ohio antitrust act (known as the Valentine Act). The Pennsylvania court has entered a series of orders related to case management, discovery, class certification, summary judgment, and scheduling. The Court has also denied all four motions that the plaintiffs filed to exclude testimony from certain expert witnesses retained by the defendants. The Pennsylvania court has not set a trial date for any of the Company's remaining consolidated cases (non-class and indirect purchaser cases). As noted above, the court held a hearing on the parties' proposed trial schedules but has not yet set a trial date. Cal-Maine Foods, Inc. produces, grades, packages, markets, and distributes shell eggs. The Company was founded in 1957 and is based in Jackson, Mississippi. CAPFUSION LLC: Menichiello Seeks to Certify 2 Classes Under TCPA ---------------------------------------------------------------- The Plaintiff in the lawsuit titled Joseph Menichiello, Individually and On Behalf Of All Others Similarly Situated v. CAPFUSION LLC, RYAN SULLIVAN, and DOES 1 through 10, inclusive, and each of them, Case No. 8:17-cv-00717-JVS-KES (C.D. Cal.), moves the Court to certify two classes under the Telephone Consumer Protection Act: (1) All persons within the United States who received any solicitation/telemarketing telephone calls from Defendant to said person's cellular telephone made through the use of any automatic telephone dialing system or an artificial or prerecorded voice and such person had not previously consented to receiving such calls within the four years prior to the filing of this Complaint; and (2) All persons within the United States registered on the National Do-Not-Call Registry for at least 30 days, who had not granted Defendants prior express consent nor had a prior established business relationship, who received more than one call made by or on behalf of Defendants that promoted Defendants' products or services, within any twelve-month period, within four years prior to the filing of the complaint. Mr. Menichiello also moves the Court for his appointment as Class Representative, and for appointment of his attorneys as Class Counsel. The Court will commence a hearing on March 12, 2018, at 1:30 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kubdq3hy The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com CENTENE CORP: Still Faces Federal Securities Suit in Missouri ------------------------------------------------------------- Centene Corporation continues to defend itself against a federal securities class action currently pending in Missouri, according to the Company's Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. In November 2016, a putative federal securities class action was filed against the Company and certain of its executives in the U.S. District Court for the Central District of California. In March 2017, the court entered an order transferring the matter to the U.S. District Court for the Eastern District of Missouri. The plaintiffs in the lawsuit allege that the Company's accounting and related disclosures for certain liabilities acquired in the acquisition of Health Net violated federal securities laws. Centene said, "The Company denies any wrongdoing and is vigorously defending itself against these claims. Nevertheless, this matter is subject to many uncertainties and the Company cannot predict how long this litigation will last or what the ultimate outcome will be, and an adverse outcome in this matter could potentially have a materially adverse impact on our financial position and results of operations." Centene Corporation operates as a diversified and multi-national healthcare enterprise that provides programs and services to under-insured and uninsured individuals in the United States. It operates through two segments, Managed Care and Specialty Services. The Company provides its services through primary and specialty care physicians, hospitals, and ancillary providers. Centene Corporation was founded in 1984 and is headquartered in St. Louis, Missouri. CHICAGO BRIDGE: "Jones" Suit Claims "9/80" Pay Plan Unlawful ------------------------------------------------------------ BONNIE R. JONES, on behalf of herself and all others similarly situated, Plaintiff, vs. CHICAGO BRIDGE & IRON COMPANY (DELAWARE) a/k/a CB&I and CB&I STONE & WEBSTER, INC., Defendant, Case No. 3:17-cv-00424 (W.D.N.C., July 18, 2017), alleges that Defendant's current and former hourly employees were denied overtime compensation pursuant to an unlawful "9/80" pay plan. According to the case, under a lawful 9/80 pay plan, employees work nine days in a two-workweek period, but not more than forty hours in either week. The two-workweek period is scheduled so that employees work four 9-hour days, followed by an 8-hour day. Employees then work four 9-hour days the next week. For a 9/80 pay plan to comply with the FLSA, the workweek must end at the midpoint of the 8-hour day. When implemented properly, the first four hours worked during the 8-hour day fall into one workweek and the second four hours worked during the 8-hour day fall into the next workweek. The result is that the hours worked in both workweeks will not exceed 40. Defendant's workweek violates the FLSA because it begins on a Monday and ends on a Sunday. Under Defendant's 9/80 pay plan, the 8-hour day is every other Friday. As a result, employees work 36 hours one workweek and 44 hours the next workweek, but are only paid for 80 total hours of pay, with no overtime premium for the 4 hours of overtime worked during the 44-hour workweek, says the complaint. The case alleges violation of the Fair Labor Standards Act, as well as for violations of the North Carolina Wage and Hour Act. CHICAGO BRIDGE & IRON COMPANY is a conglomerate engineering, procurement and construction (EPC) company. The proposed class is composed of current and former hourly employees of the Defendants. [BN] The Plaintiff is represented by: Philip J. Gibbons, Jr., Esq. STEPHAN ZOURAS, LLP 15720 Brixham Hill Avenue, Suite 331 Charlotte, NC 28277 Email: Pgibbons@stephanzouras.com - and - Ryan F. Stephan, Esq. James B. Zouras, Esq. Andrew C. Ficzko, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, IL 60601 Email: Rstephan@stephanzouras.com Jzouras@stephanzouras.com Aficzko@stephanzouras.com CLEARWATER, ID: Commissioners Approve AG's Defense in Class Action ------------------------------------------------------------------ Clearwater Tribune reports that the Idaho Attorney General's Office proposed to represent Clearwater County amongst many other counties in the state, in a class action lawsuit filed by convicted sex offenders claiming requirements of the sex offender registry are unconstitutional. Clayne Tyler, Clearwater County Prosecutor, explained to Commissioners that plaintiffs are asking for a ruling on the constitutionality of the registry. They are not requesting compensation for damages. Mr. Tyler said he didn't expect there to be any cost to Clearwater County to have the attorney general represent the defendants. [GN] COMMONWEALTH BANK: Class Action Mulled Over Money Laundering Probe ------------------------------------------------------------------ Patrick Durkin and Katie Walsh, writing for Australian Review, report that the Commonwealth Bank may face a class action from investors, following revelations the board failed to disclose a money laundering investigation for over two years, which triggered a $5.5 billion collapse in the bank's share price when the regulator launched its case. Class action lawyers are circling the CBA saga as more information emerges about what the executives and board knew and when. Treasurer Scott Morrison met with CBA chairman Catherine Livingstone on Aug. 8 and the Treasurer has taken advice from Australian Securities and Investments Commission chairman Greg Medcraft who is also investigating taking action over CBA's disclosure. The threat of a major shareholder class action poses a further headache for the CBA which is already facing a multi-billion dollar penalty, on top of the board's self-imposed response including a $40 million technology upgrade, $85 million to strengthen the bank's "know-your-customer" processes and cutting executives short-term bonuses. "It should not have taken the issuing of court proceedings by AUSTRAC and media reporting of that, for the bank to own up to such serious and troubling allegations by one of its regulators," class action law firm Phi Finney McDonald said. The three founding partners of the new firm, which was launched this month, previously headed Slater and Gordon's class actions practices in Australia and the UK. "The bank has known about AUSTRAC's investigation for two years. That investigation included AFP raids last year. The matters raised by AUSTRAC must be of substance since, when they were raised with CBA by AUSTRAC, CBA responded by lodging over 50,000 threshold transaction notifications, well after they should have done so," the firm said. Board knew but failed to disclose Before launching the class action, lawyers said they will monitor AUSTRAC's pending Federal Court action to piggy back off any evidence uncovered during the case. That may provide an extra incentive for the bank to seek an early settlement with the regulator, however one litigation funder said they would "eat their hat" if no class action emerged. The other precondition is for shareholders to suffer a loss. CBA's share price has recovered some ground from its 4 per cent fall on Aug. 4 but some investors believe the market response showed there was a material non-disclosure which would make the shareholder class action worthwhile. "I see this as a failure of timely disclosure of a material event as evidenced by the share price reaction," Velocity Trade senior banking analyst Brett Le Mesurier said. One leading corporate lawyer who advises company boards said the likely shareholder action would turn on the knowledge of the CBA board. CBA chairman Catherine Livingstone revealed at the bank's full year results on Aug. 9 that the board was aware of transaction reporting issues with its smart ATMs in the second half of 2015. 'You can't disclose every notice' CBA CEO Ian Narev argues the bank is constantly flooded with regulatory requests and if it disclosed everything, the market would be overwhelmed and confused. "All major financial institutions have a raft of notices from very active regulators, as you would hope they would, and you simply can't make disclosure every time you get notices from regulators or you would be making disclosures every day," Mr Narev said. "Our view would be these things didn't come anywhere near it in the form they came at the time." AUSTRAC allege CBA became aware of a systems error which meant transactions larger than $10,000 were not being reported on June 16, 2014. The problems affected 778,370 accounts with $8.91 billion deposited in the bank's smart ATMs before it was fixed. The investigation led to police raids on CBA premises in April last year and dozens of international arrests. The lawyer said four disclosure questions would be key to any shareholder class action: the bank's failure to make a provision in their accounts or a contingent liability note, the failure to inform the market under continuous disclosure provisions and excluding any detail about the issue in remuneration reports for senior executives. [GN] CONVERGENT OUTSOURCING: Faces "Constantine" Suit Under FDCPA ------------------------------------------------------------ DEBBIE CONSTANTINE, individually and on behalf of all others similarly situated, Plaintiff, v. CONVERGENT OUTSOURCING, INC., a WASHINGTON CORPORATION AND PINNACLE CREDIT SERVICES, LLC, a MINNESOTA LIMITED LIABILITY COMPANY, Defendants, Case No. 5:17-cv- 01259-HNJ (N.D. Ala., July 27, 2017), alleges that Defendants' form debt collection letter violated the Fair Debt Collection Practices Act because it failed to state that Convergent, the original creditor, or any of the related entities listed on the reverse side of the letter could not also sue on the debt, and that Convergent and the original creditor could not also make a credit report about the debt; moreover, by stating that Pinnacle "will not" sue or credit report, rather than it "cannot" sue or credit report, the letter implied that Pinnacle still had the option to take those actions, and that it was simply choosing not to do so. Defendant acts as a debt collector.[BN] The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Phone: (708) 974-2900 Fax: (708) 974-2907 Email: davephilipps@aol.com Email: mephilipps@aol.com - and - Ronald C. Sykstus, Esq. BOND, BOTES, SYKSTUS, TANNER & EZZELL, P.C. 225 Pratt Avenue Huntsville, AL 35801 Phone: (256) 539-9899 Fax: (256) 713-0237 Email: Rsykstus@bondnbotes.com CONVERGYS CORP: Class Action Waivers Enforceable, Court Rules ------------------------------------------------------------- John Council, writing for Texas Lawyer, reports that in a major win for employers, the U.S. Court of Appeals for the Fifth Circuit has shot down a National Labor Relations Board ruling forcing the Convergys Corp. to stop requiring its job applicants to sign class action waivers that prevent them from suing the company. The recent 2-1 decision in Convergys v. NLRB rejects the board's finding that the Ohio-based customer management company violated worker rights to self-organize under the National Labor Relations Act by requiring potential employees to sign class action waivers. The background to the Aug. 7 decision is as follows. Convergys requires job applicants to sign an agreement that they will not "lead, join or serve as a member or group of persons" bringing a claim against the company. A Convergys employee later complained to the NLRB about the class action waiver. While the board noted that the Fifth Circuit had allowed for class action waivers in arbitration agreements in its 2013 decision in D.R. Horton v. NRLB, it still rejected Convergys' waiver requirement noting that it sought to distinguish its decision from Horton by recognizing a broad "right of employees to join together to improve their terms and conditions of employment through litigation." Convergys appealed the decision to the Fifth Circuit. And the threshold question for the appellate court was whether Section 7 of the NRLA, which guarantees the right to self-organize and collective bargain and "to engage in other concerted activities for the purpose of . . . other mutual aid or protection," also contemplates an employees' right to participate in class actions. In her majority decision, Judge Jennifer Elrod wrote that class action waivers are allowed and that the court has previously ruled in Horton that an employee's use of class actions or class action procedures is not a substantive right. "After our decision in Horton, the idea that Section 7 protects a substantive right to participate in class and collective actions is still more firmly foreclosed," Judge Elrod wrote. "Simply put, the board's position that Section 7 guarantees a substantive right of employees to participate in class and collective actions against their employers is contrary to our binding precedent." Judge Elrod also noted that the U.S. Supreme Court is set to consider whether employer arbitration agreements that can ban them from pursuing class action claims violates federal labor laws this year in NRLB v. Murphy Oil. "In the meantime, however, we must apply our circuit's binding precedent," Judge Elrod wrote. Senior Judge Patrick Higginbotham dissented to decision, noting that Convergys' case is different from previous Fifth Circuit decisions allowing class action waivers. "Although this court has held time and again that such waivers are permissible, one important distinction makes the waiver in this case different: there is no arbitration agreement," Judge Higginbotham wrote. Without being contained in an arbitration provision, which is shielded by the powerful Federal Arbitration Act that favors alternative dispute resolution over litigation, a bare class action waiver violates the NRLA, he wrote. "The language of Section 7 cannot be plainer: class and collective actions are 'other concerted activities for the purpose of . . . mutual aid or protection," Judge Higginbotham wrote. "Because such actions are rights protected by Section 7, employers cannot interfere with them by forcing employees to waive them. I would enforce the board's orders, and so I dissent." Jennifer Rose Asbrock, a member Frost Brown Todd who represents Convergys, did not return a call for comment. Neither did Gregoire Sauter, a NLRB lawyer who represents the board on appeal. [GN] CSK AUTO: "Aguilar" Suit Alleges Cal. Labor Law Violations ---------------------------------------------------------- ADRIAN AGUILAR, individually and on behalf of all others similarly situated, Plaintiffs, v. CSK AUTO, INC., O'REILLY AUTOMOTIVE STORES, INC., and DOES 1-10, inclusive, Defendants, Case No. 3:17- cv-04263-JCS (N.D. Cal., July 27, 2017), alleges that Plaintiffs have been injured by CSK's failure to provide proper rest breaks as required by California law, failure to furnish accurate wage statements, and failure to timely pay all wages due upon termination of employment. For these injuries, Plaintiffs seek damages and penalties, as well as interest, attorney's fees, costs, and injunctive relief, all under California law, including: California Labor Code, Industrial Wage Commission Wage Order; California Code of Civil Procedure; and California Business & Professions Code. The Proposed Class consists of all non-exempt employees working at any CSK store in California at any time during the Class Period, excluding persons holding the job position of Store Manager or an equivalent position. CSK AUTO, INC. provides retail sale of new automobile tires, batteries, and other automobile parts and accessories.[BN] The Plaintiff is represented by: Randall B. Aiman-Smith, Esq. Reed W.L. Marcy, Esq. Hallie Von Rock, Esq. Carey A. James, Esq. Brent A. Robinson, Esq. AIMAN-SMITH & MARCY PROFESSIONAL CORPORATION 7677 Oakport St., Suite 1150 Oakland, CA 94621 Phone: (510) 817-2711 Fax: (510) 562-6830 Email: ras@asmlawyers.com rwlm@asmlawyers.com hvr@asmlawyers.com caj@asmlawyers.com bar@asmlawyers.com CVS HEALTH: NASP Responds to Class Action Over PBMs Collusion ------------------------------------------------------------- A new class-action lawsuit filed against CVS Health alleges that the company knowingly colludes with third party pharmacy benefit managers (PBMs) to increase profits and drive up the cost of generic prescription drugs. Following the lawsuit's filing on Aug. 7 in the District Court of Rhode Island, the National Association of Specialty Pharmacy's Executive Director, Sheila Arquette, released the following statement: "Fraud, waste and abuse is one of the single most important drivers of escalating costs in any business, and healthcare is no exception. Especially in matters of life or death -- like healthcare -- fraud, waste and abuse of any kind should not be tolerated. Escalating healthcare costs consistently ranks as one of the top things keeping Americans up at night, and the effects reach beyond patients, as well as the healthcare providers and pharmacies that work to keep them as healthy as possible. Unfortunately, the current market dynamics and lack of transparency make it very difficult for patients and healthcare providers to navigate the increasingly complex healthcare and drug delivery system. NASP will continuing working with Washington, individual states, and others in the healthcare delivery channel to institute reforms that will not only benefit patients and healthcare providers, but taxpayers alike. We are at the table, eager to find actionable solutions to ensure the highest quality care and patient satisfaction possible, especially when it comes to providing affordable medications and support services for patients, their families and caregivers as they work to manage tough conditions. We hope big PBMs will join us at the table, so we can work together to contain prescription drug costs. More transparency from big PBMs, along with others in the prescription drug supply chain, are critical to this important effort." Specialty Pharmacy provides medications to treat patients with serious, chronic, rare, progressive, or debilitating or fatal if left untreated or undertreated. According to the Drug Channels Institute and other sources, specialty pharmacy drugs will represent 44% of the U.S. drug spend by the year 2020. Examples of illnesses that require specialty medications include cancer, hepatitis C, infectious disease, infertility, Crohn's disease, rheumatoid arthritis, psoriasis, HIV/AIDS, multiple sclerosis, Cystic Fibrosis, organ transplantation, human growth hormone deficiencies, hemophilia, and other bleeding disorders. Direct and Indirect Remuneration (DIR) fees | One of the challenges facing the industry right now is: how to help CMS and Congress stop big PBMs from imposing unfair and opaque DIR fees that increase prescription drug costs for seniors and crush specialty pharmacy's ability to provide the care that sick seniors need. DIR fees are increasingly egregious and impose negative consequences by inflating prescription drug costs for the sickest, most vulnerable seniors -- the very patients the Medicare Part D program was designed to protect. Not only that, DIR fees threaten the specialty pharmacies that serve the unique needs of patients living with complex, life-altering, and often life-threatening diseases. National Association for Specialty Pharmacy (NASP) | NASP was founded in 2012 and is the only national trade association that represents specialty pharmacy, serving as the leading educational resource and national advocate for specialty pharmacy healthcare professionals and patients alike. In addition to providing medications to severely ill patients, specialty pharmacy also features support programs and services to ensure patients maximize the benefit from their medication, therapies and services, working to ease the treatment burden for patients, families and caregivers as they work to manage these tough conditions. NASP will convene its fifth annual conference from Sept. 18 to Sept. 20 in Washington, D.C., kicking off with a keynote speech from healthcare veteran and former Lilly USA President Alex Azar, followed by two days of thought-provoking discussions on the state of specialty pharmacy (RSVP to nasp@skdknick.com). [GN] DAIICHI SANKYO: Faces Lawsuits Over Benicar Side Effects -------------------------------------------------------- Angie Koehle, writing for abc15, reports that have you ever taken hypertension medications Benicar HCT, Azor or Tribenzor? They've been linked to severe gastrointestinal problems that mimic the symptoms of celiac disease, leading some users to be misdiagnosed as having the autoimmune disorder. According to Top Class Actions: Benicar side effects can cause severe and chronic diarrhea, substantial weight loss, sprue-like enteropathy, villous atrophy, and other GI problems. These complications may develop months to years after taking Benicar, leaving some users unaware that their GI problems were caused by the drug. Lawsuits accuse drug makers of failing to adequately research the potential side effects of Benicar and provide sufficient warnings about the risks. If you suffered severe GI problems after taking Benicar, you may have a legal claim. [GN] DAVID PURKEY: Court Denied Bid to Certify Class in "Shell" Suit --------------------------------------------------------------- In the lawsuit styled DAVID SHELL, et al., the Plaintiffs, v. DAVID PURKEY, et al., the Defendants, Case No. 3:17-cv-00059-TAV- HBG (E.D. Tenn.), the Hon. Judge Thomas A. Varlan entered an order denying Plaintiffs' motion to certify class without prejudice. The Court noted that in a report and recommendation, Judge Guyton recommended that plaintiffs' Motion to Certify Class be denied with leave to refile after the parties have completed the discovery necessary to properly consider the merits of class certification. The Court further noted that there have been no timely objections to the R&R, and enough time has passed since the filing of the R&R to treat any objections as having been waived. See 28 U.S.C. section 636(b)(1); Fed. R. Civ. P. 72. After a careful review of the matter, the Court agreed with Magistrate Judge Guyton's recommendations, which the Court adopted and incorporates into its ruling. As such, the Court accepted in whole the R&R. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=YvkgoWpx DIRECTV LLC: Faces "Guice" Lawsuit Alleging FLSA Violation ---------------------------------------------------------- ROBERT GUICE, STEVEN SCOTT, THOMAS PEDICORD, BERNARD TYNDALE, RANDY COLLIER, BENJAMIN HAYNES, ZACHARY LAUDERMAN, ANTHONY DA VIS, SHANE HARRIS, BRIAN ELLIOTT, DAVID CROWLEY, COREY MARSH, ANDREW SINCLAIR, ATOY WILLIAMS, DAVE CRAWFORD, STEVE DICKSON, KENNETH PRESS, ERICK COLLINS, ANTONIO RUFFIN, ERIK WOLD, BRANDON WATSON, NICHOLAS AMBROSO, MARIO ROMERO, MICHAEL ERICKSON, GENE JOHN, MICHAEL LOGEMAN, FRANKLIN VELASQUEZ, CLIFTON RICE, JUSTIN HOLMAN, CARLOS BELTRE PEREZ, OLUW ASE UN OGUNWUNMI, DANNY HILL, JOSEPH FAERBER, DANIEL BLANKENSHIP, CHAD MEDUKAS, LARRY VANVLEET, PATRICK GORMAN, ALAN JACOBSON, RICHARD MUELLER, KEITH LEITZINGER, DAVID CROWLEY, TYRONE RASMUSSON, AARON HUNT, and JOHN PAGEL, Plaintiffs, v. DIRECTV, LLC and DIRECTSAT, USA, LLC, Defendants, Case No. 2:17-cv-03379-PD (E.D. Pa., July 28, 2017), alleges that Defendants paid Plaintiffs on a piece-rate basis that did not properly compensate them for all of the hours they worked. Plaintiffs seek to recover unpaid wages and other applicable remedies under the Fair Labor Standards Act. DIRECTV, LLC is registered to conduct business in Pennsylvania, operates warehouses, offices, and separate retail locations in Pennsylvania, and promotes, markets, and sells its satellite television service in this district. Plaintiffs worked as satellite television installation and service technicians.[BN] The Plaintiffs are represented by: George A. Hanson, Esq. Crystal R. Cook, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Phone: 816-714-7100 Fax: 816-714-7101 Email: hanson@stuevesiegel.com Email: cook@stuevesiegel.com - and - Bradford B. Lear, Esq. Todd C. Werts, Esq. LEAR WERTS LLP 2003 W. Broadway, Ste. 107 Columbia, MO 65203 Phone: 573-875-1991 Fax: 573-875-1985 Email: lear@learwerts.com Email: werts@learwerts.com DIRECTV LLC: Seeks 11th Cir. Review of Decision in "Cordoba" Suit ----------------------------------------------------------------- Defendant DIRECTV, LLC, filed an appeal from a court ruling in the lawsuit entitled Sebastian Cordoba v. DirecTV LLC, et al., Case No. 1:15-cv-03755-MHC, in U.S. District Court for the Northern District of Georgia. As previously reported in the Class Action Reporter on July 28, 2017, a Georgia federal judge certified a class action accusing DirecTV of making illegal telemarketing calls to names on the National Do Not Call Registry, saying the class has demonstrated common claims and standing to bring them. In an order, U.S. District Judge Mark H. Cohen held that unsolicited telephone calls are an invasion of privacy under the Telephone Consumer Protection Act that constitute a concrete injury necessary to demonstrate Article III standing, noting that an injury can be intangible and still be considered "concrete." "Just as a junk fax renders a fax machine temporarily unavailable, a call placed in violation of the TCPA -- whether or not a person has taken any affirmative steps to avoid it, like requesting placement on a caller's [internal] DNC list -- deprives its recipient of time, mental energy and privacy," Judge Cohen said. The appellate case is captioned as DIRECTV, LLC v. Sebastian Cordoba, Case No. 17-90020, in the United States Court of Appeals for the Eleventh Circuit.[BN] Plaintiff-Respondent SEBASTIAN CORDOBA, individually and on behalf of all others similarly situated, is represented by: Michael Joseph Boyle, Jr. Matthew R. Wilson, Esq. MEYER WILSON CO., LPA 1320 Dublin Road, Suite 100 Columbus, OH 43215 Telephone: (614) 224-6000 Facsimile: (614) 224-6066 E-mail: mboyle@meyerwilson.com mwilson@meyerwilson.com - and - Douglas I. Cuthbertson, Esq. Daniel M. Hutchinson, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson St., 8th Floor New York, NY 10113 Telephone: (212) 355-9500 E-mail: dcuthbertson@lchb.com dhutchinson@lchb.com Jonathan D. Selbin, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: jselbin@lchb.com - and - Jonathan David Grunberg, Esq. L. Lin Wood, Esq. Nicole Jennings Wade, Esq. G. Taylor Wilson, Esq. L. LIN WOOD, PC 1180 West Peachtree Street, Ste. 2400 Atlanta, GA 30309 Telephone: (404) 891-1402 Facsimile: (404) 506-9111 E-mail: jgrunberg@linwoodlaw.com lwood@linwoodlaw.com nwade@linwoodlaw.com twilson@linwoodlaw.com - and - Matthew M. Wilkins, Esq. Stephen A. Yaklin, Esq. KING & YAKLIN, LLP 192 Anderson Street, Suite 125 Marietta, Georgia 30060 Telephone: (770) 424-9235 Facsimile: (770) 424-9239 E-mail: mwilkins@kingyaklin.com syaklin@kingyaklin.com Defendant-Petitioner DIRECTV, LLC, individually and as successor through merger to DIRECTV, Inc., is represented by: Ava Conger, Esq. John P. Jett, Esq. KILPATRICK TOWNSEND & STOCKTON, LLP 1100 Peachtree St., Suite 2800 Atlanta, GA 30309 Telephone: (404) 815-6500 E-mail: aconger@kilpatricktownsend.com jjett@kilpatricktownsend.com - and - Hans J. Germann, Esq. John E. Muench, Esq. Andrew John Pincus, Esq. Kyle J. Steinmetz, Esq. MAYER BROWN, LLP 1999 K St. NW Washington, DC 20006 Telephone: (202) 263-3000 Facsimile: (202) 263-5220 E-mail: hgermann@mayerbrown.com jmuench@mayerbrown.com apincus@mayerbrown.com ksteinmetz@mayerbrown.com - and - Kara W. Ong, Esq. CINGULAR WIRELESS, LLC 5565 Glenridge Connector NE, Suite 1700 Atlanta, GA 30342-4756 Telephone: (404) 236-6000 DITECH FINANCIAL: Faces "Nelson" Suit Over SCRA Interest Rate Cap ----------------------------------------------------------------- BRIAN S. NELSON, on behalf of himself and all others similarly situated, Plaintiffs, vs. DITECH FINANCIAL, LLC, Defendant, Case No. 3:17-cv-05582 (W.D. Wash., July 28, 2017), was brought pursuant to the Servicemembers Civil Relief Act (SCRA) of 2003, on behalf of a class of current and former servicemembers whose statutory rights to a 6% interest rate cap under the SCRA have been violated in connection with mortgage loans incurred by them and their spouses before they were called to active service. The lawsuit challenges Defendant Ditech Financial, LLC's policy or practice of refusing to apply the Servicemembers Civil Relief Act's 6% interest rate cap for periods of military service, including with respect to those periods preceding the transfer of the servicing rights on those loans to Defendant. Defendant Ditech Financial, LLC is a mortgage company that lends and services residential mortgages throughout the United States. Plaintiff Brian S. Nelson is a retired Major from the Army National Guard.[BN] The Plaintiff is represented by: Matthew Z. Crotty, Esq. CROTTY & SON LAW FIRM, PLLC 905 W. Riverside Ave. Ste. 409 Spokane, WA 99201 Phone: (509) 850-7011 Email: matt@crottyandson.com - and - R. Joseph Barton, Esq. BLOCK & LEVITON LLP 1735 20th Street, NW Washington, DC 20009 Phone: 202-734-7046 Email: jbarton@blockesq.com - and - Vincent Cheng, Esq. BLOCK & LEVITON LLP 610 16th Street, Suites 214-16 Oakland CA 94612 Phone: 415-968-8999 Email: vincent@blockesq.com - and - Thomas G. Jarrard, Esq. LAW OFFICE OF THOMAS JARRARD, PLLC 1020 N. Washington St. Spokane, WA 99201 Phone: (425) 239-7290 Email: TJarrard@att.net EXPRESS SCRIPTS: Bid to Substitute Class Representative Denied -------------------------------------------------------------- Express Scripts Holding Company disclosed in its Form 10-Q filed on July 25, 2017, with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that the plaintiffs' request to substitute the proposed class representatives in the case styled Jerry Beeman, et al. v. Caremark, et al. has been denied. The Company said, "Plaintiffs allege that ESI and the other defendants failed to comply with statutory obligations to provide California clients with the results of a bi-annual survey of retail drug prices. On November 14, 2016, the district court denied plaintiffs' motion for class certification, holding that the proposed class representatives and counsel were inadequate to represent a class. Plaintiffs' request to substitute the proposed class representatives was denied on June 9, 2017." Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States, Canada, and Europe. It operates in two segments, PBM and Other Business Operations. It was formerly known as Aristotle Holding, Inc. and changed its name to Express Scripts Holding Company in April 2012. The Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Review Sought on Class Status Denial in "Brady" ---------------------------------------------------------------- Express Scripts Holding Company disclosed in its Form 10-Q filed on July 25, 2017, with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that the plaintiffs in the Brady Enterprises case are seeking reconsideration of a previously denied request for class certification. In Brady Enterprises, Inc., et al. v. Medco Health Solutions, Inc., and North Jackson Pharmacy, Inc., et al. v. Express Scripts, Inc., et al., the plaintiffs assert claims for violation of the Sherman Antitrust Act. The court has entered an order denying class certification in the Brady case and decertifying the class against ESI and Medco in the North Jackson case. The Brady plaintiffs have filed a motion requesting reconsideration of the court's denial of class certification. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States, Canada, and Europe. It operates in two segments, PBM and Other Business Operations. It was formerly known as Aristotle Holding, Inc. and changed its name to Express Scripts Holding Company in April 2012. The Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Still Faces Putative Securities Class Lawsuit -------------------------------------------------------------- Express Scripts Holding Company continues to face a putative class action related to purchasers of the Company's common stock between February 2015 and March 2016, according to the Company's Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The case is styled In re Express Scripts Holdings Company Securities Litigation. The Company said, "Plaintiff filed this putative securities class action complaint on behalf of all persons or entities that purchased or otherwise acquired the Company's publicly traded common stock between February 24, 2015 and March 21, 2016 and alleges the Company and named individuals violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 by carrying out a scheme to defraud the investing public. Plaintiff seeks compensatory damages in favor of plaintiff and other class members, attorneys' fees and costs, and equitable relief." Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States, Canada, and Europe. It operates in two segments, PBM and Other Business Operations. It was formerly known as Aristotle Holding, Inc. and changed its name to Express Scripts Holding Company in April 2012. The Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Bid to Dismiss ERISA Class Suit Still Ongoing -------------------------------------------------------------- Express Scripts Holding Company's unit, Express Scripts, Inc. (ESI), filed its reply brief on July 21, 2017 in response to the plaintiff's opposition to the motion to dismiss a consolidated class action case regarding alleged violations of the Employee Retirement Income Security Act of 1974 (ERISA), according to the Company's Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The case is styled In re Express Scripts/Anthem ERISA Litigation, and it consolidates other cases, namely: John Doe One and John Doe Two v. Express Scripts, Inc. and Karen Burnett, Brendan Farrell, and Robert Shullich v. Express Scripts, Inc. and Anthem, Inc. The plaintiffs filed a Second Amended Consolidated Class Action Complaint on behalf of health plan beneficiaries who are enrolled in health care plans that are insured or administered by Anthem. Plaintiffs allege that the Company and Anthem breached fiduciary duties and otherwise violated their legal obligations under ERISA, that ESI engaged in mail fraud, wire fraud and other racketeering activity through its invoicing system with Anthem, that ESI breached its contract with Anthem, that plaintiffs are entitled to equitable relief under theories including unjust enrichment, that ESI violated unfair and deceptive trade practices statutes, that Anthem breached the covenant of good faith and fair dealing implied in health plans, and that ESI violated the anti- discrimination provisions of the Affordable Care Act. In support of the claim, the plaintiff adopts many of the allegations made by Anthem, Inc. in a separate proceeding. The plaintiffs seek compensatory damages, declaratory relief, equitable relief and attorneys' fees and costs. On June 9, 2017, plaintiffs filed a brief in opposition to the motion to dismiss and ESI filed its reply brief on July 21, 2017. Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States, Canada, and Europe. It operates in two segments, PBM and Other Business Operations. It was formerly known as Aristotle Holding, Inc. and changed its name to Express Scripts Holding Company in April 2012. The Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESS SCRIPTS: Still Faces "Klein" Suit over EpiPen Products -------------------------------------------------------------- Express Scripts Holding Company is facing lawsuit filed by Elan and Adam Klein, et al. related to the price of EpiPen products, according to the Company's Form 10-Q filed on July 25, 2017, with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The case is styled Elan and Adam Klein, et al. v. Prime Therapeutics, LLC; Express Scripts Holding Co.; Express Scripts, Inc.; and CVS Health Corp. The Company stated, "Plaintiffs allege that defendants violated legal obligations under ERISA by negotiating increasingly large rebates from Mylan, which allegedly caused an increase in the price of EpiPen products. Plaintiffs further allege that defendants retained a significant portion of rebates, rather than passing them on to class members (who are participants in, or beneficiaries of, health insurance plans governed by ERISA who purchased EpiPen products)." Express Scripts Holding Company operates as a pharmacy benefit management (PBM) company in the United States, Canada, and Europe. It operates in two segments, PBM and Other Business Operations. It was formerly known as Aristotle Holding, Inc. and changed its name to Express Scripts Holding Company in April 2012. The Company was founded in 1986 and is headquartered in Saint Louis, Missouri. EXPRESSWAY DELIVERIES: Faces "Munoz" Suit Under Cal. Labor Code --------------------------------------------------------------- ADONAY MUNOZ, individually and on behalf of all others similarly situated, Plaintiff, v. EXPRESSWAY DELIVERIES, INC., a California corporation; and DOES 1 through 50, inclusive, Defendant, Case No. BC668867 (Cal. Super., County Of Los Angeles, July 17, 2017), alleges violation of the California Labor Code, specifically pertaining to meal period, minimum wage and overtime, rest period, pay during employment, wages due at separation of employment, issuance of accurate itemized wage statements, and reimbursement for necessary business expenditures. It also alleges violation of the California Business and Professions Code. Defendant is a perishable products transport company. Plaintiff was employed in a non-exempt hourly position.[BN] The Plaintiff is represented by: Kevin Mahoney, Esq. AnnaR. Salusky, Esq. Derek R. Guizado, Esq. Keren B. Serrano, Esq. MAHONEY LAW GROUP, APC 249 E. Ocean Blvd., Ste. 814 Long Beach, CA 90802 Phone: (562) 590-5550 Fax: (562) 590-8400 Email: kmahonev@mahoney-law.net asalusky@mahonev-law.net dguizado@mahoney-law.net kserrano@mahoney-law.net DEMOCRATIC NAT'L: Media Mum on Class Action v. Wasserman Schultz ---------------------------------------------------------------- Nancy Smith, writing for Sunshine State News, reports that why is there so little media attention given the class-action lawsuit filed June 28 accusing the Democratic National Committee (DNC) and the Florida congresswoman who chaired it, Debbie Wasserman Schultz, of fraud for skewing the party's primaries to benefit Hillary Clinton? The accusations haven't come from Republicans, either. Wasserman Schultz piqued the ire of 150 Democratic voters and donors who are still outraged, still feel Wasserman Schultz cheated them. It's a drama playing out in U.S. District Court in Broward County, where the Dems' accusations specifically run to accusing their party and Wasserman Schultz of breach of fiduciary duty, negligence, unjust enrichment, and negligent misrepresentation for secretly helping Clinton get the presidential nomination over Vermont Senator Bernie Sanders. "But you don't hear a peep in the press," retired Miami broker and Sanders supporter Edmond Ross told Sunshine State News. "Despite the requirements in the Charter, and in spite of the multiple public declarations of neutrality and impartiality with respect to the Democratic primary process, the DNC was not neutral," a 35-page complaint states. "To the contrary, the DNC was biased in favor of one candidate -- Hillary Clinton -- from the beginning and throughout the process. The DNC devoted its considerable resources to supporting Clinton above any of the other Democratic candidates. Through its public claims to being neutral and impartial, the DNC actively concealed its bias from its own donors as well as donors to the campaigns of Clinton's rivals, including Bernie Sanders." The scandal broke when leaked DNC electronic mail showed the DNC favored and backed Clinton instead of Sanders during the primary. Wasserman Schultz resigned in disgrace as DNC chair, was publicly blasted by Sanders supporters and didn't gavel in the party convention last summer in Philadelphia. The Sun-Sentinel wrote it was a hurricane-force controversy over leaked emails that showed the DNC under Wasserman Schultz was helping Clinton while Sanders was still a contender for the Democratic presidential nomination. In the article, the veteran congresswoman from the city of Weston indicated she stepped down as DNC chair to focus on "making sure everyone knows that Hillary Clinton would make the best president." Democrats suing her insist the congresswoman violated DNC's charter and bylaws that say the party chair "shall exercise impartiality and evenhandedness" and "shall be responsible for ensuring that the officers and staff of the DNC maintain impartiality and evenhandedness." Wasserman Schultz also made public declarations vowing to run a neutral primary, according to the lawsuit, while she and the DNC pushed for Clinton from the start of the 2016 presidential election cycle. The complaint cites a leaked internal DNC document dated May 26, 2015 listing a plan to provide a contrast between "GOP field and HRC [Hillary Rodham Clinton]" as well as the use of "specific hits to muddy the waters around ethics, transparency and campaign finance attacks on HRC." The DNC and Wasserman Schultz had actual knowledge of the wrongfulness of the conduct, the lawsuit says, adding that the conduct was so reckless it constituted a conscious disregard for the rights of the plaintiffs. In the absence of media interest, the attorneys representing the class, a husband-and-wife team from Miami who supported Sanders, created a website where all documents related to the case are posted as well as courtroom illustrations and information on hearings. The docket is extensive and dates back to June 2016 when the complaint was filed. Says Judicial Watch, "This is a valuable tool because, unlike state cases, federal court records are not available to the public for free and must be purchased through the government's online system known as Public Access to Court Electronic Records (PACER). The database is most commonly used by attorneys and journalists (though not in this case) to research federal criminal, civil and bankruptcy cases. Having access to dozens of documents related to this case is a true bonus, especially since there's been no local or national media coverage." Judicial Watch, a 501(c)(3) nonprofit watchdog organization, is monitoring the case and circulating press releases on pertinent developments. This case is in addition to a more recent scandal in which Wasserman Schultz is embroiled, involving her top information technology aide, Imran Awan, who was recently arrested on bank- fraud charges at the airport while trying to flee to his native Pakistan. Mr. Awan had just wired $283,000 from the Congressional Federal Credit Union to Pakistan, according to news reports, and he had been fired by other members of Congress -- but not by Wasserman Schultz -- after getting busted stealing computers and data systems months earlier. [GN] FAGRON INC: Bobo's Drugs Moves for Class Certification Under TCPA ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned BOBO'S DRUGS, INC. d/b/a DAVIS ISLANDS PHARMACY, a Florida corporation, individually and as the representative of a class of similarly-situated persons v. FAGRON, INC., FAGRON ACADEMY, LLC, FAGRON PROFESSIONAL SERVICES, LLC, FAGRON HOLDING USA, LLC, and B&B PHARMACEUTICALS, INC., Case No. 8:17-cv-01862-CEH-TBM (M.D. Fla.), moves for an order certifying this class: Each person sent one or more telephone facsimile messages from Fagron or B&B Pharmaceuticals promoting pharmaceutical products or educational services from the Fagron Academy Compounding Technical Services [FACTS] but did not inform recipients that to opt out of receiving further faxes they must identify the telephone number of the telephone facsimile machine to which their opt-out request relates, that a request must be made to the telephone number, facsimile number, Web site address or email address identified in the sender's facsimile advertisement, and that an opt-out request will be valid until the recipient subsequently provides express invitation or permission to the sender, in writing or otherwise, authorizing advertisements by fax. Bobo's Drugs informs the Court it filed the Motion soon after the filing of its Class Action Complaint in order to avoid an attempt by the Defendants to moot its individual claims in the class action. However, Bobo's Drugs asserts, additional discovery is necessary for the Court to determine whether to certify the class the Plaintiff seeks to represent. As a result, Bobo's Drugs will seek leave to pursue class discovery as soon as practicable. The case involves common fact questions about the Defendants' fax campaign and common legal questions under the Telephone Consumer Protection Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=OQvxsLEw The Plaintiff is represented by: Phillip A. Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. LaSalle St., Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@bockhatchllc.com FOUNDATION MEDICINE: Faces "Mahoney" Securities Class Action ------------------------------------------------------------ MARC F. MAHONEY, individually and on behalf of all others similarly situated, Plaintiff, vs. FOUNDATION MEDICINE, INC., MICHAEL J. PELLINI, STEVEN KAFKA and JASON RYAN, Defendants, Case No. 1:17-cv-11394 (D. Mass., July 28, 2017), is a securities class action on behalf of all purchasers of Foundation common stock between February 26, 2014 and November 3, 2015, inclusive. Allegedly, during the Class Period, the Company made positive statements regarding the reimbursement process for its tumor tests by Medicare, claimed to be on track for obtaining Medicare coverage, and provided strong 2015 financial guidance, causing the price of its common stock to trade at fraud-inflated prices. On July 29, 2015, the Company finally disclosed that it was not making the strides obtaining coverage it had claimed to have been making during the Class Period and that in reality, Foundation would receive no Medicare payments in 2015 for its tumor profiling tests, due to a delay in receiving a local coverage determination from its regional Medicare Administrative Contractor. As a result of the delay, the Company slashed its 2015 financial guidance which, unbeknownst to investors, was based on an assumption that Medicare approval was going to be obtained in 2015. Defendant Foundation, based in Cambridge, Massachusetts, develops, manufactures and sells genomic analysis diagnostics for solid and circulating cancers.[BN] The Plaintiff is represented by: Theodore M. Hess-mahan, Esq. HUTCHINGS BARSAMIAN MANDELCORN, LLP 110 Cedar Street, Suite 250 Wellesley Hills, MA 02481 Phone: 781/431-2231 Fax: 781/431-8726 Email: thess-mahan@hutchingsbarsamian - and - Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 S. Service Road, Suite 200 Melville, NY 11747 Phone: (631) 367-7100 Fax: (631) 367-1173 - and - Nicholas I. Porritt, Esq. Adam M. Apton, Esq. Adam C. McCall, Esq. LEVI & KORSINSKY LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 Fax: (202) 333-2121 FREDERICK-THOMPSON: "Al-Anazi" Suit Seeks to Certify Class ---------------------------------------------------------- In the lawsuit captioned ABDALLAH AL-ANAZI, SADAQA NATIONAL, INC., ANTHONY COLEMAN, and RALPH ROSS, individually and on behalf of all others similarly situated, the Plaintiffs, v. FREDERICK-THOMPSON COMPANY d/b/a FTI, and BILL THOMPSON TRANSPORT INC., the Defendants, Case No. 5:15-cv-12928-JEL-RSW (E.D. Mich.), the Plaintiffs ask the Court to enter an order: 1. certifying a class of: "all independent owner-operators who leased a vehicle/tractor to Bill Thompson Transport, Inc., and/or FTI pursuant to a Lease Agreement and whose agreements were in effect at any time within 4 years prior to the date this action was filed or any time after this action was filed"; and 2. appointing Plaintiffs' counsel as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=5zr2y4sX The Plaintiffs are represented by: John C. Philo, Esq. Anthony D. Paris, Esq. SUGAR LAW CENTER FOR ECONOMICAL & SOCIAL JUSTICE 4605 Cass. Ave., 2nd Floor Detroit, MI 48201 Telephone: (313) 993 4505 Facsimile: (313) 887 8470 E-mail: jphilo@sugarlaw.org tparis@sugarlaw.org The Defendants are represented by: Jack W. Schulz, Esq. Elizabeth A. Gotham, Esq. SCHULZ GOTHAM PLC PO Box 44855 Detroit, MI 482244 Telephone: (313) 246 3590 E-mail: jackwschulz@gmail.com - and - Martin J. Leavitt, Esq. Paul E. Robinson, Esq. SULLIVAN & LEAVITT, PC P.O. Box 5490 Northville, MI 48167 Telephone: (248) 349 3980 E-mail: mjl@sullivanleavitt.com pr@sullivanleavitt.com G5IVE LLC: Faces "Martinez" Lawsuit Alleging FLSA Violation ----------------------------------------------------------- JOALIE MARTINEZ, on her own behalf and on behalf of others similarly situated, Plaintiff, vs. G5IVE, LLC, a FLORIDA LIMITED LIABILITY COMPANY, and ANTONIO BRYANT, an individual, Defendants, Case No. 1:17-cv-22857-CMA (S.D. Fla., July 28, 2017), alleges that throughout the Relevant Time Period, Plaintiff and those similarly situated were not paid an hourly wage but instead were only paid a share of the tips collected, in violation of the Fair Labor Standards Act. Further, throughout the Relevant Time Period, Plaintiff and Class Members were required to share their tips with non-tipped employees, such as management and owners. Defendant G5IVE owns and operates the club G5IVE. Plaintiff and the proposed collective action members were employed as adult entertainers.[BN] The Plaintiff is represented by: Robert W. Brock II, Esq. LAW OFFICE OF LOWELL J. KUVIN 17 East Flagler Street, Suite 223 Miami, FL 33131 Phone.: 305.358.6800 Fax: 305.358.6808 Email: robert@kuvinlaw.com legal@kuvinlaw.com GENERAL MOTORS: 100 Putative Class Actions Pending in US, Canada ---------------------------------------------------------------- General Motors Company is facing 100 putative class actions currently pending in various courts in the U.S. and Canada related to the Company's product recalls in 2014, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017 In 2014, the Company announced various recalls relating to safety and other matters. Those recalls included recalls to repair ignition switches that could under certain circumstances unintentionally move from the "run" position to the "accessory" or "off" position with a corresponding loss of power, which could in turn prevent airbags from deploying in the event of a crash. The Company said, "Through July 17, 2017, we were aware of over 100 putative class actions pending against GM in various courts in the U.S. and Canada alleging that consumers who purchased or leased vehicles manufactured by GM or General Motors Corporation had been economically harmed by one or more of the recalls announced in 2014 and/or the underlying vehicle conditions associated with those recalls (economic-loss cases). In general, these economic-loss cases seek recovery for purported compensatory damages, such as alleged benefit-of-the-bargain damages or damages related to alleged diminution in value of the vehicles, as well as punitive damages, injunctive relief and other relief. There are also two civil actions brought by state governmental entities relating to the recalls that seek civil penalties and injunctive relief for alleged violations of state laws." General Motors Company (GM) designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. It operates through GM North America, GM Europe, GM International Operations, GM South America, and GM Financial segments. The Company was founded in 1897 and is based in Detroit, Michigan. GENERAL MOTORS: Appeal from Shareholder Class Settlement Pending ---------------------------------------------------------------- General Motors Company is awaiting court action on an appeal from a May 2016 decision, which approved a settlement of a putative shareholder class action in Michigan, according to the Company's Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017 The Company said, "In the putative shareholder class action filed in the United States District Court for the Eastern District of Michigan (Eastern District) on behalf of purchasers of our common stock from November 17, 2010 to July 24, 2014 (Shareholder Class Action), the lead plaintiff, the New York State Teachers' Retirement System, alleged that GM and several current and former officers and employees made material misstatements and omissions relating to problems with the ignition switch and other matters in SEC filings and other public statements. On May 23, 2016 the Eastern District entered a judgment approving a class-wide settlement of the Shareholder Class Action for US$300 million. One shareholder has filed an appeal of the decision approving the settlement." No further updates were provided in the Company's SEC report. General Motors Company (GM) designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. It operates through GM North America, GM Europe, GM International Operations, GM South America, and GM Financial segments. The Company was founded in 1897 and is based in Detroit, Michigan. GENERAL MOTORS: Ontario Court Affirms 2015 Ruling in Dealers Suit ----------------------------------------------------------------- General Motors Company disclosed in its Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017 that on July 4. 2017, the Court of Appeals for Ontario has affirmed the Superior Court's July 2015 judgment with regard to GM Canada in a case initiated by former Canadian dealers. On February 12, 2010, a claim was filed in the Ontario Superior Court of Justice against GM Canada on behalf of a purported class of over 200 former GM Canada dealers (the Plaintiff Dealers) which had entered into wind-down agreements with GM Canada. In May 2009, in the context of the global restructuring of GM's business and the possibility that GM Canada might be required to initiate insolvency proceedings, GM Canada offered the Plaintiff Dealers the wind-down agreements to assist with their exit from the GM Canada dealer network and to facilitate winding down their operations in an orderly fashion. The Plaintiff Dealers allege that their Dealer Sales and Service Agreements were wrongly terminated by GM Canada and that GM Canada failed to comply with certain disclosure obligations, breached its statutory duty of fair dealing and unlawfully interfered with the Plaintiff Dealers' statutory right to associate in an attempt to coerce the Plaintiff Dealers into accepting the wind-down agreements. The Plaintiff Dealers seek damages and assert that the wind-down agreements are rescindable. The Plaintiff Dealers' initial pleading makes reference to a claim "not exceeding" 750 million Canadian Dollars, without explanation of any specific measure of damages. On March 1, 2011 the court approved certification of a class for the purpose of deciding a number of specifically defined issues. A number of former dealers opted out of participation in the litigation, leaving 181 dealers in the certified class. On July 8, 2015 the Ontario Superior Court dismissed the Plaintiff Dealers' claim against GM Canada. The court also dismissed GM Canada's counterclaim against the Plaintiff Dealers for repayment of the wind-down payments made to them by GM Canada as well as for other relief. On July 4, 2017, the Court of Appeals for Ontario affirmed the Superior Court's judgment with regard to GM Canada. The Company said, "It is possible that the Plaintiff Dealers may seek leave to appeal to the Supreme Court of Canada. We cannot estimate the range of reasonably possible loss in the event of liability as the case presents a variety of different legal theories, none of which GM Canada believes are valid." General Motors Company (GM) designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. It operates through GM North America, GM Europe, GM International Operations, GM South America, and GM Financial segments. The Company was founded in 1897 and is based in Detroit, Michigan. GENERAL MOTORS: Still Faces Class Lawsuits on Emission Standards ---------------------------------------------------------------- General Motors Company continues to defend itself against several putative class actions in the U.S. and Canada related to violations of emission standards, according to the Company's Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017 The Company said, "There are several putative class actions pending against GM in federal courts in the U.S. and in the Provincial Courts in Canada alleging that various vehicles sold including model year 2011-2016 Duramax Diesel Chevrolet Silverado and GMC Sierra vehicles, violate federal and state emission standards. "GM also faces a series of additional lawsuits based primarily on allegations in the Duramax suit, including putative shareholder class actions claiming violations of federal securities law. "At this early stage of these proceedings, we are unable to provide an evaluation of the likelihood that a loss will be incurred or an estimate of the amounts or range of possible loss." General Motors Company (GM) designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. It operates through GM North America, GM Europe, GM International Operations, GM South America, and GM Financial segments. The Company was founded in 1897 and is based in Detroit, Michigan. GENERAL MOTORS: Takata Airbag Inflators Class Actions Ongoing ------------------------------------------------------------- General Motors Company continues to defend against several putative class actions in the U.S. and Canada related to Takata airbag inflators, according to the Company's Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The Company said, "Through July 17, 2017, we were aware of one putative class action pending against GM in federal court in the U.S., one putative class action in Mexico and four putative class actions pending in various Provincial Courts in Canada arising out of allegations that airbag inflators manufactured by Takata are defective. At this early stage of these proceedings, we are unable to provide an evaluation of the likelihood that a loss will be incurred or an estimate of the amounts or range of possible loss. "In addition, the New Mexico Attorney General initiated litigation against Takata and numerous automotive manufacturers, including GM. However, on June 13, 2017 the parties filed a stipulation of dismissal without prejudice as to all claims against GM brought by the New Mexico Attorney General." General Motors Company (GM) designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. It operates through GM North America, GM Europe, GM International Operations, GM South America, and GM Financial segments. The Company was founded in 1897 and is based in Detroit, Michigan. GERBER PRODUCTS: Wants Suit Over Good Start Gentle Formula Tossed ----------------------------------------------------------------- Todd Barnett, writing for Legal Newsline, reports that Gerber Products Co. has asked a federal judge for the dismissal of a class action lawsuit brought earlier this year over Good Start Gentle formula. The suit, brought in Chicago federal court, states Gerber damaged consumers by charging higher prices for its Good Start Gentle formula, which was allegedly falsely advertised as reducing the risk of infant allergies and being endorsed by the Food and Drug Administration (FDA). Gerber argues the suit should be dismissed because the lead plaintiff, Linda Hobbs, failed to make a plausible claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Gerber also claims Hobbs did not provide enough evidence to prove Gerber's advertising claims were misleading (and thereby a breach of express warranty) and failed to sufficiently plead her common law claim of fraudulent misrepresentation. On May 10, Ms. Hobbs, who acted as a babysitter and daily caretaker for a number of her nieces and nephews, filed a class action complaint against Gerber and its parent company, Nestle (as Nestle Nutrition, Nestle Infant Nutrition, and Nestle Nutrition North America), alleging that Gerber "falsely advertised [GSG] as the first and only infant formula to reduce the occurrence of allergies generally, as well as the first and only infant formula endorsed by the FDA." Ms. Hobbs alleges she and other consumers affected by the company's advertising "were injured by [Gerber's] unlawful conduct and are entitled to actual, statutory, and punitive damages, restitution, interest, and the reimbursement of attorneys' fees." Ms. Hobbs' suit is one of several similar suits launched by consumers and government agencies around the country over the past few years. Most notably, the Federal Trade Commission launched a suit in October 2014 alleging Gerber engaged in deceptive practices through falsely advertising GSG's anti-allergy benefits and its supposed FDA endorsement. At the same time, the FDA sent Gerber a warning letter alleging its advertising violated federal law, causing the company to make changes to the GSG label and alter some of its advertising claims. In its memorandum on June 22, Gerber denied Ms. Hobbs' claims that the company's advertising violated the ICFA, breached express warranty, and caused fraudulent misrepresentation. Gerber asserted that "all three claims hinge on the allegation that Gerber's advertising is false," yet the company claimed that Hobbs "failed to plead any facts supporting this allegation of falsity," concluding that, "Since scientific evidence exists that supports Gerber's advertising, the advertising cannot be false (and any express warranty cannot have been breached) as a matter of law mandating dismissal of plaintiff's claims." [GN] GLOBAL EXCHANGE: Faces "Askin" Suit Alleging Violation of TCPA -------------------------------------------------------------- JOSHUA ASKIN, individually and on behalf of all others similarly situated, Plaintiffs, vs. GLOBAL EXCHANGE VACATION CLUB, GLOBAL EXCHANGE DEVELOPMENT CORP., GLOBAL VACATIONS MARKETING CORP., RESORT VACATIONS, INC., RICHARD SARGENT; DOES 1-10, ABC CORPORATIONS 1-10, ZYZ, LLC's 1-10 Defendants, Case No. 3:17-cv- 01530-JLS-JLB (S.D. Cal., July 28, 2017), accuses Defendants of negligently or intentionally contacting Plaintiff on Plaintiff's cellular telephone in an attempt to sell vacations to Plaintiff over the phone, in violation of the Telephone Consumer Protection Act, thereby seriously invading Plaintiff's privacy. GLOBAL EXCHANGE VACATION CLUB -- http://www.globalexchangevacation.com/-- offers global luxury vacations.[BN] The Plaintiff is represented by: Dante T. Pride, Esq. THE PRIDE LAW FIRM 2831 Camino Del Rio S., Ste. 104 San Diego, CA 92108 Phone: 619-516-8166 Fax: 619-785-3414 Email: dpride@pridelawfirm.com GLOBALSCAPE INC: Block & Leviton Files Securities Class Action -------------------------------------------------------------- Block & Leviton LLP, a securities litigation firm representing investors nationwide, on Aug. 9 disclosed that it has filed a class action lawsuit against GlobalSCAPE, Inc. (NYSE: GSB) and certain of its officers and directors for violations of the federal securities laws. If you purchased or otherwise acquired Global securities during the Class Period described below and have questions about your legal rights or possess information relevant to this lawsuit, please contact attorney Bradley Vettraino at (617) 398-5600, by email at bradley@blockesq.com, or by visiting www.blockesq.com/gsb. On August 7, 2017, after trading had closed, Global disclosed that its audit committee has been "conducting an investigation" into certain transactions in the fourth quarter of 2016" and that the Company "intends to effect a restatement of its previously issued financial statements through filing an amended Annual Report on Form 10-K for the year ended December 31, 2016 and an amended Quarterly Report on Form 10-Q for the quarter ended March 31, 2017." On this news, Global's share price fell 17.66% to close at $3.87 on August 8, 2017, causing millions in losses to investors. The lawsuit, brought on behalf of investors who purchased or otherwise acquired Global securities between January 26, 2017 and August 7, 2017, inclusive (the "Class Period") alleges that throughout the Class Period, the defendants made false and/or misleading statements and/or failed to disclose that: (i) Global overstated the reported amounts of accounts receivable as of December 31, 2016, and license revenue for the three months and year ended December 31, 2016, by approximately $403,000 and $396,000, respectively, resulting in the overstatement of the Company's revenues for those periods by the same amounts; (ii) the Company's total current assets and total assets were overstated by $292,000; (iii) the Company's total stockholder equity and total liabilities and stockholders' equity were overstated by $217,000 and $292,000, respectively; (iv) the Company lacked adequate internal controls over financial reporting; and (v) that as a result, Global's publicly disseminated financial statements were materially false and misleading. If you wish to serve as a lead plaintiff, you must move the Court no later than October 9, 2017. As a member of the class, you may seek to file a motion to serve as a lead plaintiff or take no action and remain an absent class member. If you wish to become involved in the litigation or have questions about your legal rights, please contact attorney Bradley Vettraino at (617) 398- 5600, by email at bradley@blockesq.com. Confidentiality to whistleblowers or others with information relevant to this investigation is assured. Block & Leviton LLP -- http://www.blockesq.com-- is a Boston- based law firm representing investors nationwide. The firm's lawyers have collectively been prosecuting securities cases on behalf of individual and institutional investors for over 50 years, and have recovered billions of dollars on their behalf. Block & Leviton's investigations into corporate wrongdoing were recently covered by the New York Times. The lawsuit is pending in the Western District of Texas and is captioned Giovagnoli v. GlobalSCAPE, Inc., et al., No. 5:17-cv- 00753. The courthouse is located at 2450 State Hwy. 118 Alpine, Texas 79830. [GN] GNC: Judge Dismisses Class Action Over Website ---------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that a Pennsylvania federal judge has dismissed a nascent class action against vitamin and nutritional supplement chain GNC alleging the company's website violated New Jersey state consumer law. U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania ruled that New Jersey resident Samantha Pasciolla didn't have constitutional standing to file New Jersey Truth-in- Consumer Contract, Warranty and Notice Act claims against Pittsburgh-based GNC. Ms. Pasciolla alleged that the website's terms and conditions violate the TCCWNA's Sections 15 and 16, which prohibit a seller from offering or entering into a contract with a consumer that "includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by state or federal law" and "no consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the state of New Jersey." Judge Hornak said that Ms. Pasciolla failed to show that she suffered a concrete injury from the terms and conditions of GNC's website. Judge Hornak noted that courts have consistently held that standing is not established if a plaintiff can't prove his or her rights were violated by terms and conditions. The judge pointed to the New Jersey federal court case Rubin v. J. Crew Group. In that case, the plaintiff purchased items on the J. Crew website, but didn't claim anything was wrong with her purchases. Nor did she claim that she relied upon the terms and conditions, or that they worked against her. The judge in that case held that the plaintiff had pleaded only procedural violations. "This court reaches the same conclusion in this case," Judge Hornak said. "Here, as in Rubin, the plaintiff alleges that she purchased a product on the defendant's website and that the terms of the T&C are contrary to the TCCWNA. However, she does not claim that she was dissatisfied with her purchase, that the T&C deceived her or that the T&C prevented her from asserting any of her rights." "In fact, the plaintiff does not even allege that she read the T&C," he continued. "As in Rubin, 'the genesis of [the] plaintiffs lawsuit "is seeking only to bring the [T&C] into accord with what she believes New Jersey law requires, not to actually bring a suit or recover damages which she believes are unlawfully barred" by [the T&C].'" GNC's attorney, Mark Golen of Gordon & Rees, did not respond to a request for comment. Ms. Pasciolla's lawyer, R. Bruce Carlson -- bcarlson@carlsonlynch.com -- of Carlson Lynch Sweet & Kilpela, said in an email, "I would note that the dismissal was without prejudice and that we are evaluating our options consistent with Judge Hornak's analysis." [GN] GOOGLE INC: Fired Software Engineer Files Pay Gap Class Action -------------------------------------------------------------- Kara Swisher, writing for Recode, reports that Google is getting it from both sides of the ever more contentious debate over gender inequity in Silicon Valley -- on one side for taking decisive action against what the search giant deemed sexist language by a staffer and on the other for allegations that it pays women less than men. First, James Damore -- the software engineer Google fired on Aug. 7 for penning a controversial memo about biological reasons why women did not succeed in tech compared to men. He appears to have filed a complaint with the National Labor Relations Board, claiming the search giant retaliated against him unfairly. Mr. Damore was let go as the result of a piece he posted on Google message boards that posited, among other things, that women were not biologically suited to do tech and that the company had a left-leaning bias that prevented contrary discussions. Titled "Google's Ideological Echo Chamber," Mr. Damore started off with a benign tone: "I value diversity and inclusion, am not denying that sexism exists, and don't endorse using stereotypes. When addressing the gap in representation in the population, we need to look at population level differences in distributions. If we can't have an honest discussion about this, then we can never truly solve the problem." But then, he went on in detail and way off the rails for Google: "I'm simply stating that the distribution of preferences and abilities of men and women differ in part due to biological causes and that these differences may explain why we don't see equal representation of women in tech and leadership." What followed was a list of those differences, including a claim that women were more social and artistic and could not take the stress of high-pressure jobs. Hence, he wrote that women suffered more than men from "neuroticism," or higher anxiety and lower stress tolerance. Google execs took days to respond, but soon several top execs weighed in decrying Mr. Damore's memo. Finally, Google CEO Sundar Pichai wrote a memo to staff, with a clear message: "To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK. It is contrary to our basic values and our Code of Conduct, which expects 'each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination.'" Mr. Damore was then fired for violating those internal company rules. He later told the New York Times that he had filed with the NLRB over the dismissal: "Before being fired, Mr. Damore said, he had submitted a complaint to the National Labor Relations Board claiming that Google's upper management was 'misrepresenting and shaming me in order to silence my complaints.' He added that it was 'illegal to retaliate' against an N.L.R.B. charge." Sources not authorized to speak at Google said the company only learned of the action via the media report and not before it fired him. And, indeed, the actual complaint was only filed on Aug. 8 -- alleging "Coercive Statements (Threats, Promises of Benefits, etc.)" by a Los Angeles-based law firm, Paul Hastings. There is a letter attached that is not available as yet. Meanwhile, a San Francisco law firm has been advertising on Facebook and online since mid-July, seeking female employees of the company to join what appears to be a class-action lawsuit over gender pay gaps at the company. The Equal Pay for Google Women ad was posted by Altshuler Berzon LLP and James M. Finberg. It noted: You might be a victim of discrimination if you: -- Currently work at Google; or -- Worked at Google within the last 3 years. AND -- You work or worked for Google in California. -- You work or worked in an Information Technology, Product Development, Programmer or Technology Support position. Mr. Finberg confirmed the firm was looking into filing a case against Google and had already been contacted by 70 women. "We are looking into the evidence," he said in an interview. "And we think there is a factual basis for the claims that women were paid less than men for the same work at Google." Along with all the lawyers attacking Google, the federal government and the company are engaged in an ongoing legal battle. The Labor Department has alleged that Google has a gender gap in pay, a charge the company has denied. Google has also declined to provide some information asked for by the government, although it has handed over 329,000 documents, including detailed compensation information. But it refused to give the Labor Department contact information from 25,000 employees and more than 15 years of compensation records, claiming it was a risk to privacy. A judge recently agreed with Google, noting the government demands were "over-broad, intrusive on employee privacy, unduly burdensome and insufficiently focused on obtaining the relevant information." But Google, like many tech companies, most definitely has an issue with diversity, as evidenced by recent employee statistics: Men make up almost 70 percent of the staff and a full 80 percent of the technical employees. [GN] GOOGLE INC: Altshuler Berzon Mulls Gender Pay Class Action ---------------------------------------------------------- David Ruiz, writing for The Recorder, reports that local plaintiffs firm Altshuler Berzon is gathering kindling for a potential class action against Google Inc., with dozens of current and former female employees claiming their male counterparts made more money. The news comes weeks after a judge told Google to hand over more data for a U.S. Department of Labor audit that invoked the specter of gender pay discrimination, and just days after an internal, employee-written memo gained notoriety for its denouncement of Google's "arbitrary" approach to gender diversity. James Finberg, who is representing the former and current Google employees in the potential suit, said in a phone interview on Aug. 9 that he first gained interest in Google's internal issues during the company's fight with the Office of Federal Contract Compliance Programs, a workplace discrimination auditing arm of the Labor Department. Before an administrative law judge in San Francisco, OFCCP regional solicitor Janet Wipper testified that her agency found "systemic compensation disparities against women pretty much across the entire workforce," in a partial analysis of Google's employee compensation data. Janet Herold, another regional solicitor with OFCCP, later told Wired that a "preliminary analysis showed 6 to 7 standard deviations between pay for men and women in nearly every job classification." That surprised Mr. Finberg. "We looked and said, 'Wow, that's pretty serious,'" Mr. Finberg said, adding that the likelihood of such statistical deviations happening randomly is one in 100 million. "We were interested in hearing women's experiences." The law firm put a public post on Facebook on July 10, Mr. Finberg said. He said the firm received 70 responses in a couple of weeks. The firm also has a website advertisement asking other women to come forward if they have experienced what they believe is gender pay discrimination at Google. Mr. Finberg said he plans to file his class action by the end of the month, and that the number of women covered by the lawsuit will balloon far past 70. He said some of his clients will sue under the California Fair Pay Act, which was amended at the start of the year to include language that prohibits employers from unfairly paying a new hire based on prior pay alone. Mr. Finberg said that testimony in the Labor Department hearing showed that Google uses prior salary as one of several factors when determining the pay of "industry hires," meaning employees hired not immediately out of college. Even if Google doesn't know the gender of its employees, that practice can disfavor women, Mr. Finberg said. "We know from studies that women make less than men in America, so if you use prior pay to set salary, you'll institutionalize gender pay discrimination," Mr. Finberg said. "The California law was amended recently and it makes it crystal clear that what I just described is illegal." A Google representative did not respond to direct questions about the class action or if outside counsel has been selected, but instead forwarded a recent post by Google CEO Sundar Pichai in response to a separate issue regarding a memo drafted by a former engineer that has roiled Google's campus. The representative also forwarded an April 11 post written by Eileen Naughton, vice president of people operations, about Google valuing equal pay among men and women. With claims of gender discrimination, allegations of an internal "bro-culture" polluting the hallways and wall-to-wall, it seems that Google is having an Uber moment. [GN] GOOGLE INC: Judge Okays $22.5MM AdWords Class Action Settlement --------------------------------------------------------------- Ross Todd, writing for The Recorder, reports that a federal judge in San Jose, California, has signed off on a $22.5 million deal Google Inc. reached in a long-running class action accusing the company of overcharging certain customers using its AdWords keyword advertising program. Plaintiffs filed suit in 2008 accusing the search giant of inappropriately placing ads on error pages and so-called "parked domains," or sites that have been registered for future use or to protect against cybersquatters. U.S. District Judge Edward Davila of the Northern District of California signed off on the truce on Aug. 7, which includes a little more than $6 million in attorney fees for class counsel at Schubert Jonckheer & Kolbe, even though only about 7 percent of the nearly 1.1 million class members submitted claims. Davila noted in the August 7 order that the case wound its way up to the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court before landing back in his courtroom and settling. Davila initially declined to certify a class in 2012, finding that plaintiffs couldn't easily provide proof of the restitution amount due each class member because of the complex way AdWords set prices. But Judge Davila's class certification decision was reversed in 2015 by the Ninth Circuit, which found the judge erred by conflating the question of liability with the difficulty of calculating restitution awards for individual class members. Restitution, the appellate court found, is available on a classwide basis once a class representative has made a "threshold showing of liability" under the applicable law. Google asked the U.S. Supreme Court to weigh in, but the high court denied the company's cert petition in June 2016. The terms of the deal approved on August 7 were hashed out with the help of mediation from retired U.S. District Judge Layn Phillips, who's been periodically involved since 2011, according to court filings. Plaintiffs are set to receive 100 percent of the amount they claim they overpaid, if total claims are less than the total settlement fund. If more than $100,000 is left after distributions, the settlement provides for active AdWords users who didn't submit claims to be given an account credit based on the amount they spent on ads placed on parked domains and error pages during the class period. Davila signed off on $6.075 million in fees for class counsel, or 27 percent of the settlement fund. The amount was a hair lower than the $6.5 million the lawyers at Schubert Jonckheer requested. Davila wrote the slightly lower amount "properly accounts for the risk involved, the significant amount of work done, and the lower- than-typical participation rate." Google was represented by counsel from Cooley. Cooley's Michael Rhodes and a Google spokeswoman declined to comment on Aug. 8 on the deal. Noah Schubert, who represents the class, said in an email on Aug. 8 that his firm is "gratified by this excellent result for millions of AdWords advertisers." "It has been a hard-fought nine-year case including an important victory in the Ninth Circuit." [GN] GOOGLE INC: 60+ Women May Join Pay Disparity Class Action --------------------------------------------------------- Sam Levin, writing for The Guardian, reports that more than 60 current and former Google employees are considering bringing a class-action lawsuit alleging sexism and pay disparities against women, as the technology giant wrestles with a deepening crisis over alleged discrimination. James Finberg, the civil rights attorney working on the possible legal action on behalf of the female employees, told the Guardian they contend they have earned less than men at Google despite equal qualifications and comparable positions. Others, he said, have struggled in other ways to advance their careers at Google due to a "culture that is hostile to women". The Silicon Valley company is reeling from the leak over the weekend of a male software engineer's 10-page manifesto criticizing diversity initiatives and arguing that men may occupy more leadership roles than women in tech due to "biological" differences. The document, which was widely condemned as misogynistic and scientifically inaccurate, prompted Google to eventually fire the author, James Damore, and reignited debate about discrimination and sexual harassment that critics say is rampant in the technology industry. A class-action gender discrimination suit would build on a case brought by the US Department of Labor (DoL), which is arguing that Google systematically underpays women and recently convinced a judge to force the company to hand over a portion of the company's salary records. Google is vehemently denying that its salaries are discriminatory. However, Mr. Finberg, who said he had interviewed about half of the 60 women who may be part of his lawsuit, said their testimony indicated there were clear disparities and prejudices that hurt women at the Mountain View company. "They are concerned that women are channeled to levels and positions that pay less than men with similar education and experience," Mr. Finberg said. Despite similar positions and qualifications, he said, some women said they made less than male counterparts in salaries, bonuses and stock options. Several women he interviewed have said they make about $40,000 less than male colleagues doing the same work, with one woman saying she makes two-thirds of a male peer's salary. Of the more than 60 women who have reached out to the attorney in the last three weeks, about half still work for Google, according to Mr. Finberg, who said that more than a dozen claimed that discrimination played a role in their decision to leave the company. One former senior manager who recently left Google told the Guardian she repeatedly learned of men at the same level as her earning tens of thousands of dollars more than her, and in one case, she said she had a male employee join her team with a higher salary despite the fact that she was his superior. "It's demoralizing," said the worker, who requested anonymity for fear of retribution. "There's something subconsciously that happens where you do start to question the value that you're adding to the company." The manager said that dealing with frequent sexism in the workplace and helping other women navigate the discrimination they were facing took a toll on her and contributed to her decision to quit. "After a while, it just became exhausting," she said. "It takes emotional energy that builds up over time." Mr. Finberg argued that when men get higher compensation in the form of base salary and stocks, "the big initial disparity turns into a larger and larger disparity every year". "I felt like I wasn't playing the game in the 'boys' club' environment," said another woman who worked for two years as a user experience designer and recently left Google. She said she regularly dealt with sexist remarks, such as comments about her looks, and that she felt it was discriminatory when she was denied a promotion despite her achievements and large workload. "I was watching male coworkers progress at a faster rate than myself. It was really disturbing," said the designer, who also requested anonymity. A Google spokesperson declined to comment on the pending class action. However, in reference to the women considering legal action, the spokesperson said: "Sixty people is a really small sample size." He added: "There are always going to be differences in salary based on location, role and performance, but the process is blind to gender." The women's stories bolster the claims of labor department officials, who have said that a preliminary analysis found that women face "extreme" pay discrimination across the company and have recently raised concerns that Google's strict confidentiality agreements are discouraging employees from speaking up. While the labor department has not released details of its analysis or the scale of the pay gap it claims to have uncovered, its regional solicitor recently said that the agency's initial audit has founded six to seven standard deviations between pay rates for men and women across the company. What that means is that there is a one in 100m chance that the observed disparity is occurring randomly or by chance, said Janice Madden, a University of Pennsylvania sociology professor who has served as an expert witness in class-action employment cases. If there are two standard deviations, the labor department considers the disparity statistically significant. The former Google manager said it was upsetting to hear about the disparity. "It just makes me feel a little sick," she said. "That's a lot of missed income for me personally and the people on my team." The Google spokesperson said the company could not comment on the standard deviations because it had not seen the labor department's analysis. Mr. Finberg said he hoped a class-action case could have a ripple effect in the industry. "Google is not alone in Silicon Valley," he said. "The goal of the case is to not only get Google to change its practices, but to encourage other Silicon Valley companies to change their pay practices as well." [GN] GREAT WALL SUPERMARKET: Rivera Sues over Unpaid Meal Breaks ----------------------------------------------------------- Erazmo Alvarenga Rivera, on behalf of himself and other similarly situated, Plaintiffs, v. Great Wall Supermarket of Maryland, Inc., Defendant, Case No. 8:17-cv-02233 (D. Md., August 4, 2017), seeks an injunction prohibiting Defendants from engaging in future violations of the Fair Labor Standards Act minimum wage provisions, damages for all unpaid overtime wages, liquidated damages, reasonable counsel fees and costs of this lawsuit and such further and appropriate relief under the Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law. Defendant operates a supermarket located at 700 Hungerford Drive, Rockville, Maryland 20850 where Plaintiff worked as a cook and general laborer from 2013 through July 12, 2017. He claims to have worked through his designated meal break but was uncompensated for this. [BN] Plaintiff is represented by: Gregg C. Greenberg, Esq. Roy Lyford-Pike, Esq. ZIPIN, AMSTER, & GREENBERG, LLC 8757 Georgia Ave., Suite 400 Silver Spring, MD 20910 Office: (301) 587-9373 Fax: (240) 839-9142 Email: ggreenberg@zagfirm.com rlpike@zagfirm.com GROUPON INC: Faces Class Action Over ADA Violation -------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a man with spina bifida has accused Groupon of discrimination for not offering comparable products accessible to those with disabilities alongside other offered deals, including discounted hotel stays and football tickets. Andrew Huzar said he was trying to purchase a Groupon Getaway Deal on July 30, 2015, for a stay at a Red Lion Hotel in Harrisburg, Penn., but discovered the website offered no options for rooms that incorporated accessibility features for people with physical difficulties. He emailed Groupon to inquire about wheelchair- accessible rooms, and though the company responded promptly, the answer was negative. "I'm sorry, unfortunately handicap-accessible rooms are not available," Groupon wrote via email, per the complaint. Though he said that experience discouraged him from researching future Groupon hotel discounts, he encountered a similar roadblock with a July 21, 2016, offer to buy tickets for up to three New York Jets games at MetLife stadium in New Jersey. Again, he said Groupon was not selling any tickets designated as being accessible via wheelchair, not did it "have any method for patrons with disabilities to purchase tickets." "Providing accessible purchasing options" through the website, Mr. Huzar alleged, "is readily achievable, reasonably feasible and easily accomplished, and would not place an undue burden on" Groupon. He further stipulated the Groupon "website serves as a nexus or conduct for individuals to obtain access to places of public accommodation and is directly linked to places of public accommodation." Groupon Inc. is headquartered in Chicago. Mr. Huzar formally alleged Groupon had violated Title III of the Americans with Disabilities Act, as well as the company's ticket sales provision intended to establish equal opportunity for purchasing accessible seating through the same methods of distribution as general tickets, "including telephone service, in- person ticket sales at the facility or third-party ticketing services." He said Groupon "including telephone service, in-person ticket sales at the facility or third-party ticketing services" and also "has absolutely zero accessible options for patrons with disabilities who want to purchase accessible tickets to Jets games or other in-person sporting events." The complaint outlined two classes -- one for those with disabilities who wanted or tried to purchase public event tickets through Groupon, and a second for those who tried to buy travel arrangements. Both classes are believed to have tens of thousands of members, the complaint indicated. In addition to class certification, Mr. Huzar wants the court to declare Groupon's policies to be in violation of the ADA, to order injunctions forcing ADA compliance and to give him an incentive award "for the time, burden and difficulty of bringing and maintaining this action," as well as legal fees. Representing Mr. Huzar in the matter, and putative class attorneys, are lawyers from Bizer & DeReus, of New Orleans, and the Law Office of Charles E. McElvenny, Chicago. [GN] GUARDNOW INC: "Colding" Suit Seeks to Recover Unpaid Wages ---------------------------------------------------------- RAHEEME COLDING, an individual, on behalf of himself, and on behalf of all persons similarly situated, Plaintiff, vs. GUARDNOW, INC., a CALIFORNIA CORPORATION, Defendant, Case No. 1:17-at-00576 (E.D. Cal., July 27, 2017), alleges that Defendant classified Plaintiff as a non-exempt employee paid on an hourly basis and entitled to meal and rest periods. In connection with his employment application, plaintiff completed defendant's standard application materials. Among other things, these application materials included a background investigation disclosure and consent form. To date, Defendant has not fully paid Plaintiff the compensation still owed to him or any penalty wages owed to him under California Labor Code. DEFENDANT provides on-demand security guard services to businesses and individual customers. PLAINTIFF worked for DEFENDANT in California as a Security Guard.[BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK LLP 2255 Calle Clara La Jolla, CA 92037 Phone: (858)551-1223 Fax: (858) 551-1232 HARRIS COUNTY, TX: Irsan Seeks to Certify Class of Muslim Inmates ----------------------------------------------------------------- In the lawsuit titled Ali Mahmood Awad Irsan, SPN00872773, the Plaintiff, V. SHERIFF ED GONZALEZ, et al., the Defendants, Case No. 4:17-cv-01434 (S.D. Tex.), the Plaintiff asks the Court to certify a class of: "all Muslim inmates currently detained in the Harris County Sheriff's Jail (HCSOJ) and all Muslims to be detained in the HCSOJ in the future." The Plaintiff alleges violations of the Religious Land Use and Institutionalized Person Act, in connection with the conditions of confinement for all Muslim inmates currently detained in the Harris County Sheriff's Jail (HCSOJ) and all Muslims to be detained in the HCSOJ in the future. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=lXzEHYWr The Plaintiff appears pro se. HOME CAPITAL: Settlement Approval Hearing Set for Aug. 21 --------------------------------------------------------- Home Capital Group Inc. (TSX: HCG) on Aug. 9 disclosed that the Ontario Securities Commission ("OSC") issued an order approving the previously announced settlement of an enforcement proceeding commenced in April 2017 regarding the Company's disclosure in 2014 and 2015. The Company entered into two agreements which comprise a global settlement of the OSC proceeding and related class action with each settlement being conditional on the approval of the other. The order approving the OSC settlement is effective only upon the final court approval of the class action settlement. A hearing to consider approval of the class action settlement is scheduled for August 21, 2017. Pursuant to the terms of the settlement agreement with the OSC, Home Capital will not be making any further statements on this matter outside of the approval proceedings. About Home Capital Group Inc. Home Capital Group Inc. is a public company, traded on the Toronto Stock Exchange (HCG), operating through its principal subsidiary, Home Trust Company. Home Trust is a federally regulated trust company offering residential and non-residential mortgage lending, securitization of insured residential mortgage products, consumer lending and credit card services. In addition, Home Trust offers deposits via brokers and financial planners, and through its direct to consumer deposit brand, Oaken Financial. Home Trust also conducts business through its wholly owned subsidiary, Home Bank. Licensed to conduct business across Canada, Home Trust has offices in Ontario, Alberta, British Columbia, Nova Scotia, Quebec and Manitoba. [GN] HOME QUALITY: Faces "Blundell" Lawsuit Alleging FLSA Violation -------------------------------------------------------------- SABRINA A. BLUNDELL and ALICIA K. MORGAN, on behalf of themselves and all others similarly situated, Plaintiffs, v. HOME QUALITY CARE HOME HEALTH CARE, INC., d/b/a BETHANY HOME HEALTH SERVICES; BRADLEY P. LASSITER; and WYNDALL S. LANDERS, Defendants, Case No. 3:17-cv-01990-L (N.D. Tex., July 27, 2017), accuses the Defendants of failing to pay Plaintiffs and the putative collective action members: (a) time and one-half their respective regular rates of pay for all hours worked over 40 during each seven day workweek for the time period they were employed by Defendants within the maximum limitations period allowed by the Fair Labor Standards Act, and (b) all minimum wages owed and/or liquidated damages owed relative to failure to timely pay all minimum wages owed. Bethany provides healthcare services for patients in their own home setting. Blundell was employed by Defendants as an office staff member in support of Defendants' home health business operations.[BN] The Plaintiff are represented by: Ben K. DuBose, Esq. Greg W. Lisemby, Esq. DUBOSE LAW FIRM, PLLC 4310 North Central Expressway Dallas, TX 75206 Phone: (214) 389-8199 Fax: (214) 389-8399 Email: bdubose@duboselawfirm.com Email: glisemby@duboselawfirm.com - and - Allen R. Vaught, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Phone: (214) 521-3605 Fax: (214) 520-1181 Email: avaught@baronbudd.com HONEYWELL SAFETY: Class Certification in "McKnight" Suit Denied --------------------------------------------------------------- In the lawsuit entitled BARBARA MCKNIGHT and SHEILA ANDERSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, the Plaintiffs, v. HONEYWELL SAFETY PRODUCTS USA, INC.; et al., the Defendants, Case No. 1:16-cv-00132-S-PAS (D.R.I.), the Hon. Judge William E. Smith entered an order denying Plaintiffs' motion for conditional certification without prejudice. The Court said, "After reviewing Plaintiffs' Motion, Defendants' objection, the exhibits submitted by both parties, the R&R, and Plaintiffs' objection, the Court agrees with the Magistrate Judge's analysis and recommendation that Plaintiffs' Motion be denied without prejudice to refiling after further discovery has been completed. Plaintiffs' argument emphasizing the lenient standard for the preliminary showing required at this first tier of the two-tier approach to conditional class certification pursuant to 29 U.S.C. section 216(b) is well-taken. But, the Court finds that Plaintiffs' objection simply re-summarizes the statements in their declarations and the substantive corporate policies submitted as exhibits and concludes that Plaintiffs have not yet shown that other "buyers" employed by Defendants are or were similarly situated to Plaintiffs. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=KY7Yux8x IFCO SYSTEMS: Former Workers Seek Unpaid Vacation Pay ----------------------------------------------------- WHITNEY SYKES, on behalf of herself and all other persons similarly situated, known and unknown, Plaintiff, v. IFCO SYSTEMS US, LLC. Defendant, Case No. 2017-CH-09695 (Ill. Cir., July 17, 2017), alleges that Plaintiff and other similarly situated employees were not paid for all vacation pay they had accrued upon termination of their employment. Plaintiff seeks to certify this claim as a class action pursuant to the Illinois Code of Civil Procedure. IFCO SYSTEMS US, LLC operates a national supply and logistics business that delivers fruits and vegetables to retailers in Illinois, including Cook, County and in other states. Plaintiff was hired by IFCO to work at one of Defendant's warehouses.[BN] The Plaintiff is represented by: Alvar Ayala, Esq. Christopher J Williams, Esq. WORKERS' LAW OFFICE PC 53 W. Jackson Blvd., Suite 701 Chicago, IL 60605 Phone: (312) 795-9121 JACKSONVILLE, FL: Responds to Fairway Oaks Residents' Class Suit ---------------------------------------------------------------- Francesca Amiker, writing for News4Jax, reports that an attorney representing Fairway Oaks residents, who have been fighting for years to get repairs to what they call poorly built homes, said the city of Jacksonville and Habitat for Humanity of Jacksonville have responded to a class action lawsuit he filed in May on the residents' behalf. Since May 2016, the News4Jax I-TEAM has been digging into reports that show the area in Northwest Jacksonville in which HabiJax chose to build the 85 homes in 2000 is near a landfill that might not have been lined in the 1950s. Within five years of the homes being built by HabiJax and 10,000 volunteers in 17 days, residents said that they noticed their homes were shaking and unsettled, and homeowners also began complaining about cracked slabs, sinking, mold and termites. But HabiJax has claimed that homeowners' "complaints stem from lack of maintenance and not from poor construction." Despite that assertion, Fairway Oaks residents were given hope as they watched multiple City Council members, the mayor and even a state senator tour their sinking homes earlier this year, but to no avail. Attorney Jack Krumbein, of Krumbein Law PLLC & The Strems Law Firm, has only been working with the Fairway Oaks residents for a few months, but he's already brought them more hope than anyone who has stepped into their sinking and cracking homes. "The homeowners are excited. They are energized. They are some of the strongest people that I've ever met," Mr. Krumbein said. "They are individuals that have endured a difficult time in their lives, and they need resolution." Mr. Krumbein, who was initially contacted by Fairway Oaks Homeowners Association president Nathaniel Borden, took a step toward that resolution when he filed a 51-page class action lawsuit outlining 12 different counts against both the city and HabiJax earlier this year. He said both parties have responded, filing motions to dismiss, which he described as "very interesting." Mr. Krumbein said that in their response, HabiJax and the city claim the statute of limitations to file a lawsuit has expired, but Mr. Krumbein said several agreements that would extend that time frame were negotiated by his clients' previous attorneys. He said the city and HabiJax failed to include that information in their motions. The case is set for its first hearing in January, and Mr. Krumbein said it's important that it moves quickly. "I guess my biggest concern is the amount of time it's going to take," Mr. Krumbein said. "Fortunately, we have a system that allows for a judge to make a decision without a jury. It's really the ultimate form of society governing itself." He said he doesn't plan on backing down and that he will prevail. He's already in the written discovery process and has received affidavits from nearly 60 residents, all saying they were not told the homes were built on potentially contaminated land. The residents are asking for undisclosed damages in the suit. Mr. Krumbein said he is grateful to Jacksonville Area Legal Aid for stepping in when it did, because if it had not, the situation would have been lost. But he wishes a lawsuit had been filed earlier. What the lawsuit alleges In the lawsuit, count one alleges there was a breach of contract by HabiJax. It says the residents were sold properties built on a former city dump and that those homes are not habitable. The lawsuit also claims negligence, stating that had the city and HabiJax informed residents about the properties they were purchasing, they would have never experienced damages. Another count in the lawsuit is negligent misrepresentation by HabiJax. It states HabiJax represented that the houses met reasonable standards of quality and habitability but that HabiJax knew or should have known that its representation of the quality of houses being sold to the plaintiffs wasn't right. The lawsuit goes on to say that HabiJax concealed or left out important facts. Mr. Krumbein said that sometimes people have to be able to call for a stranger's help, the same way one would call family, and that was the call he received from Borden. "It's a complaint that fundamentally involves breach of contract, negligence and various other accounts, including misrepresentation," Mr. Krumbein said. "This is about justice."[GN] JASON NATURAL: Sept. 18 Shampoo Settlement Claims Filing Deadline ----------------------------------------------------------------- Angie Koehle, writing for abc15, reports that the makers of JASON brand shampoo and body wash settled a false advertising lawsuit. The plaintiffs alleged JASON Natural Products Inc. and The Hain Celestial Group claimed that some of their personal care products did not contain the chemical sodium lauryl sulfate, or SLS -- a chemical that may cause adverse health effects ranging from skin, eye and respiratory tract irritation to dermatitis. The deadline to file a claim is September 18, 2017 for anyone who purchased the product between August 17, 2011 and June 2, 2017. You may be eligible to claim up to $40. [GN] JETSMARTER INC: Conditional Certification Granted in "Lamey" Suit ----------------------------------------------------------------- The Hon. Beth Bloom grants the Plaintiffs' motion to conditionally certify Fair Labor Standards Act collective action and to authorize notice to potential class members in the lawsuit entitled GRACE LAMEY, et al. v. SERGEY PETROSSOV and JETSMARTER, INC., Case No. 0:17-cv-61217-BB (S.D. Fla.). The Plaintiffs' Motion is granted subject to the terms and conditions of the parties' stipulation, which the Court approves. The collective action is conditionally certified as a class of: "All current and former Shuttle Experience Managers who have worked for JetSmarter, Inc. at any locations throughout the United States at any time between July, 2015 and the present without being paid overtime compensation for all hours worked in excess of Forty (40) hours per week." The Defendants are ordered to deliver to the Plaintiffs' Counsel a list in the form of an Excel spreadsheet containing the full names, last known addresses, telephone numbers, and personal e-mail addresses of the putative class members. After receiving all information from the Defendants, the Plaintiffs' Counsel is authorized to facilitate the issuance of notice to the individuals in the conditionally certified class and shall do so within a reasonable time from delivery. The Plaintiffs will have until September 1, 2017, to send the Class Notice and "Consent to Become Party Plaintiff" form to all members of the putative class. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=PCYLTXJm JUI LI ENTERPRISE: Court Certifies 17 Classes in Fond Du Lac Suit ----------------------------------------------------------------- The Hon. Lynn Adelman entered a decision and order in the lawsuit titled FOND DU LAC BUMPER EXCHANGE, INC., on behalf of itself and others similarly situated v. JUI LI ENTERPRISE COMPANY, LTD. et al., Case No. 2:09-cv-00852-LA (E.D. Wisc.), directing the Clerk of Court to enter default against Defendants Auto Parts Industrial, Inc. and Cornerstone Auto Parts LLC. Judge Adelman also granted the indirect purchaser plaintiffs' motion for class certification. Pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, these statewide-damages classes are certified: (1) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Arizona between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (2) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Arkansas between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (3) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in California between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (4) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Florida between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (5) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Iowa between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (6) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Massachusetts between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (7) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Michigan between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (8) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Minnesota between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (9) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Nebraska between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (10) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in New Mexico between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (11) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in New York between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (12) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in North Carolina between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (13) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in North Dakota between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (14) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in South Dakota between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; (15) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Tennessee between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale; and (16) All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in Wisconsin between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale. Judge Adelman also certified this nationwide-injunction class: All third-party payors that paid or reimbursed others for the purchase of aftermarket sheet metal automotive parts indirectly purchased in the United States between January 1, 2003, and September 4, 2009, from one or more of defendants, for end use and not sale or resale. Fireman's Fund Insurance Co. and National Trucking Financial Reclamation Services, LLC are appointed as representative parties for each above-certified class. Ben Barnow, Esq., and Erich P. Schork, Esq., of Barnow and Associates, P.C.; Michael L. Roberts, Esq., of the Roberts Law Firm; Kevin P. Caraher, Esq., and Peter L. Crema, Jr., Esq., of Cozen O'Connor; Derek G. Howard, Esq., of the Howard Law Firm; and Daniel R. Karon, Esq., of Karon LLC are appointed as class counsel for each above-certified class. The indirect purchaser plaintiffs' motion to enforce a settlement agreement with Defendants Auto Parts Industrial, Inc. and Cornerstone Auto Parts LLC is denied. The Plaintiffs brought the action alleging that the Defendants, manufacturers of aftermarket sheet metal parts, conspired to artificially inflate and fix prices on AMSM parts in violation of federal and state antitrust and common law. AMSM parts are used to replace parts of cars and other motor vehicles, such as hoods, doors, and fenders, when they are worn or damaged. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=vhobXKD0 The Plaintiffs are represented by: Ben Barnow, Esq. Erich P. Schork, Esq. BARNOW AND ASSOCIATES, P.C. One North LaSalle Street, Suite 4600 Chicago, IL 60602 Telephone: (312) 621-2000 Facsimile: (312) 641-5504 E-mail: b.barnow@barnowlaw.com e.schork@barnowlaw.com - and - Michael L. Roberts, Esq. ROBERTS LAW FIRM, P.A. 20 Rahling Circle Little Rock, AR 72223 Telephone: (501) 821-5575 E-mail: mikeroberts@robertslawfirm.us - and - Kevin P. Caraher, Esq. Peter L. Crema, Jr., Esq. COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Telephone: (215) 665-2729 E-mail: kcaraher@cozen.com pcrema@cozen.com - and - Derek G. Howard, Esq. HOWARD LAW FIRM 42 Miller Avenue Mill Valley, CA 94941 Telephone: (415) 432-7192 Facsimile: (415) 524-2419 E-mail: derek@derekhowardlaw.com - and - Daniel R. Karon, Esq. KARON LLC 700 W. St. Clair Ave., Suite 200 Cleveland, OH 44113 Telephone: (216) 622-1851 E-mail: dkaron@karonllc.com KIEWIT INFRASTRUCTURE: Zayerz Moves for Class Certification ----------------------------------------------------------- The Plaintiff in the lawsuit styled PETER ZAYERZ, individually and on behalf of all others similarly situated v. KIEWIT INFRASTRUCTURE WEST CO.; and DOES 1 through 20, inclusive, Case No. 2:16-cv-06405-PSG-PJW (C.D. Cal.), asks the Court for an order granting class certification. The Court will commence a hearing on October 2, 2017, at 1:30 p.m., to consider the Motion. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=4PXtLIEn The Plaintiff is represented by: Kashif Haque, Esq. Samuel A. Wong, Esq. Jessica L. Campbell, Esq. Ali S. Carlsen, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 E-mail: khaque@aegislawfirm.com swong@aegislawfirm.com jcampbell@aegislawfirm.com acarlsen@aegislawfirm.com KINDER MORGAN: Landowners' Appeal on Class Status Bid Underway -------------------------------------------------------------- An appeal filed by a group of private landowners in California related to the denied request for class certification remains pending in the 9th Circuit Court of Appeals, according to Kinder Morgan, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. Company subsidiary SFPP, L.P. and Union Pacific Railroad Company (UPRR) have been engaged in a proceeding to determine the extent, if any, to which rent payable by SFPP for the use of pipeline easements on rights-of-way held by UPRR should be adjusted pursuant to existing contractual arrangements for the ten-year period beginning January 1, 2004 (Union Pacific Railroad Company v. Santa Fe Pacific Pipelines, Inc., et al, Superior Court of the State of California, County of Los Angeles, Case No. BC319170). In September 2011, the trial judge determined that the annual rent payable as of January 1, 2004 was US$14 million, subject to annual consumer price index increases. SFPP appealed the judgment. In addition, as part of the second ten-year rent setting period, in 2013, UPRR demanded the payment of US$22.3 million in rent for the first year of the next ten-year period beginning January 1, 2014, which SFPP rejected. On November 5, 2014, the Court of Appeals issued an opinion which reversed the judgment, including the award of prejudgment interest, and remanded the matter to the trial court for a determination of UPRR's property interest in its right-of-way, including whether UPRR has sufficient interest to grant SFPP's easements. UPRR filed a petition for review to the California Supreme Court which was denied. In July 2017, UPRR and SFPP reached a settlement of the rental disputes on terms that are confidential and within the right-of- way liability previously recorded for back rent. After the decision by the California Court of Appeals which held that UPRR does not own the subsurface rights to grant certain easements and may not be able to collect rent from those easements, a purported class action lawsuit was filed in 2015 in California federal court by private landowners in California who claim to be the lawful owners of subsurface real property allegedly used or occupied by UPRR or SFPP. Substantially similar follow-on lawsuits were filed and are pending in federal courts by landowners in Nevada, Arizona and New Mexico. These suits, which are brought purportedly as class actions on behalf of all landowners who own land in fee adjacent to and underlying the railroad easement under which the SFPP pipeline is located in those respective states, assert claims against UPRR, SFPP, KMGP, and Kinder Morgan Operating L.P. "D" for declaratory judgment, trespass, ejectment, quiet title, unjust enrichment, inverse condemnation and accounting arising from defendants' alleged improper use or occupation of subsurface real property. Plaintiffs' motions for class certification were denied by the federal district courts in Arizona and California, and plaintiffs are pursuing an appeal to the 9th Circuit Court of Appeals. The New Mexico and Nevada lawsuits have been stayed. SFPP views these cases as primarily a dispute between UPRR and the plaintiffs. UPRR purported to grant SFPP a network of subsurface pipeline easements along UPRR's railroad right-of-way. SFPP relied on the validity of those easements and paid rent to UPRR for the value of those easements. Kinder Morgan, Inc. operates as an energy infrastructure company in North America. It operates through Natural Gas Pipelines, CO2, Terminals, Products Pipelines, and Kinder Morgan Canada segments. The Company was formerly known as Kinder Morgan Holdco LLC and changed its name to Kinder Morgan, Inc. in February 2011. Kinder Morgan, Inc. was founded in 1936 and is headquartered in Houston, Texas. KINDER MORGAN: Purported Class Litigation on EPB Merger Underway ---------------------------------------------------------------- Kinder Morgan, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that a purported class action suit is ongoing related to a merger agreement with El Paso Pipeline Partners, L.P. (EPB). In April 2017, a purported class action suit was filed in the Delaware Court of Chancery by a former EPB unitholder on behalf of a class of former unaffiliated unitholders of EPB, seeking to challenge the US$9.2 billion merger of EPB into a subsidiary of KMI as part of a series of transactions in November 2014 whereby KMI acquired all of the outstanding equity interests in KMP, KMR, and EPB that KMI and its subsidiaries did not already own. The suit alleges that the merger consideration did not sufficiently compensate EPB unitholders for the value of three derivative suits concerning drop down transactions which the derivative plaintiff lost standing to pursue after the merger and which the present suit now alleges were collectively worth as much as US$700 million. The suit claims that the alleged failure to obtain sufficient merger consideration for the drop down lawsuits constitutes a breach of the EPB limited partnership agreement and the implied covenant of good faith and fair dealing. The suit also asserts claims against KMI and certain individual defendants for allegedly tortiously interfering with and/or aiding and abetting the alleged breach of the limited partnership agreement. Defendants have moved to dismiss the suit. The Company said, "We continue to believe that both the merger and the drop down transactions were appropriate and in the best interests of EPB, and we intend to defend this lawsuit vigorously." Kinder Morgan, Inc. operates as an energy infrastructure company in North America. It operates through Natural Gas Pipelines, CO2, Terminals, Products Pipelines, and Kinder Morgan Canada segments. The Company was formerly known as Kinder Morgan Holdco LLC and changed its name to Kinder Morgan, Inc. in February 2011. Kinder Morgan, Inc. was founded in 1936 and is headquartered in Houston, Texas. KINDER MORGAN: Interlocutory Appeal in Wisconsin Suit Granted ------------------------------------------------------------- Kinder Morgan, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that the 9th Circuit Court of Appeals has granted the plaintiff's request for an interlocutory appeal of a district court's ruling, which denied a bid for class certification in a Wisconsin class action related to price reporting matters. Beginning in 2003, several lawsuits were filed by purchasers of natural gas against El Paso Corporation, El Paso Marketing L.P. and numerous other energy companies based on a claim under state antitrust law that such defendants conspired to manipulate the price of natural gas by providing false price information to industry trade publications that published gas indices. Several of the cases have been settled or dismissed. The remaining cases, which are pending in Nevada federal district court, were dismissed, but the dismissal was reversed by the 9th Circuit Court of Appeals. The U.S. Supreme Court affirmed the 9th Circuit Court of Appeals in a decision dated April 21, 2015, and the cases were then remanded to the Nevada federal district court for further consideration and trial, if necessary, of numerous remaining issues. On May 24, 2016, the district court granted a motion for summary judgment dismissing a lawsuit brought by an industrial consumer in Kansas in which approximately US$500 million in damages has been alleged. That ruling has been appealed to the 9th Circuit Court of Appeals. Tentative settlements have been reached in class actions originally filed in Kansas and Missouri, which settlements are subject to final court approval. In the remaining case, a Wisconsin class action in which approximately US$300 million in damages has been alleged against all defendants, the district court denied plaintiff's motion for class certification. The 9th Circuit Court of Appeals granted plaintiff's request for an interlocutory appeal of this ruling. The Company said, "There remains significant uncertainty regarding the validity of the causes of action, the damages asserted and the level of damages, if any, which may be allocated to us in the remaining lawsuits and therefore, our legal exposure, if any, and costs are not currently determinable." Kinder Morgan, Inc. operates as an energy infrastructure company in North America. It operates through Natural Gas Pipelines, CO2, Terminals, Products Pipelines, and Kinder Morgan Canada segments. The Company was formerly known as Kinder Morgan Holdco LLC and changed its name to Kinder Morgan, Inc. in February 2011. Kinder Morgan, Inc. was founded in 1936 and is headquartered in Houston, Texas. KING BUFFET: Faces "Yu" Lawsuit Alleging FLSA, NYLL Violations -------------------------------------------------------------- ZHAOHUA YU, on behalf of himself and others similarly situated, Plaintiff, v. KING BUFFET IN SPRINGVILLE, INC. d/b/a King Buffet, XIU YAN ZHANG, and WEN JUAN PAN, Defendants, Case No. 1:17-cv- 00656 (E.D.N.Y., July 17, 2017), alleges that Defendants have willfully and intentionally committed widespread violations of the Fair Labor Standards Act and New York Labor Law by engaging in a pattern and practice of failing to pay their employees, including Plaintiff, minimum wage and overtime compensation for all hours worked over forty (40) each workweek. Plaintiff further alleges pursuant to NYLL and New York Codes, Rules and Regulations Sec. 146 (NYCRR) that he is entitled to recover from the Defendants: (1) unpaid minimum wage compensation, (2) unpaid overtime compensation, (3) unpaid "spread of hours" compensation, (4) liquidated damages equal to the sum of unpaid minimum wage, unpaid overtime, unpaid "spread of hours," in the amount of twenty five percent under NYLL, and one hundred percent after April 9, 2011 under NY Wage Theft Prevention Act, (5) up to five thousand dollars ($5,000) per Plaintiff for Defendants' failure to provide a Time of Hire Notice detailing rates of pay and payday, (6) up to five thousand dollars ($5,000) per Plaintiff for Defendants' failure to provide a paystub that accurately and truthfully lists employee's hours along with the name, employer's name, employer's address and telephone number, employee's rate or rates of pay, any deductions made from employee's wages, any allowances claimed as part of the minimum wage, and the employee's gross and net wages for each pay day, (7) 9% simple prejudgment interest provided by NYLL, (8) post-judgment interest, and (9) attorney's fees and costs. Plaintiff YU was employed by Defendants as a fry wok at King Buffet.[BN] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard, Suite 119 Flushing, NY 11355 Phone: (718) 762-1324 Email: johntroy@troypllc.com KONA SUSHI: "Boots" Files Suit Over Tip Pooling Scheme ------------------------------------------------------ MITCHELL BOOTS, individually and on behalf of the PROPOSED RULE 23 CLASS, Plaintiff, v. KONA SUSHI, INC. d/b/a KONA GRILL, Defendant, Case No. 0:17-cv-03401-PAM-SER (D. Minn., July 27, 2017), accuses Defendant of unlawfully requiring, coercing, and participating in a gratuity/tip pooling scheme in violation of the Minnesota Fair Labor Standards Act; and of improperly retaining a portion of server and bartender gratuities and by an artifice, which requires directly tipped employees to pay into a tip pool from their own personal cash property, for the benefit of other employees and Defendant. Defendant owns and operates 45 restaurants in 23 states and Puerto Rico. Plaintiff Mitchell Boots was employed by Defendant as a server and occasional bartender.[BN] The Plaintiff is represented by: Robert R. Hopper, Esq. Matthew L. McMullen, Esq. ROBERT R. HOPPER & ASSOCIATES, LLC 333 South 7th Street, Suite 2450 Minneapolis, MN 55402 Phone: (612) 455-2199 Fax: (612) 455-1689 Email: Robert.hopper@robertrhopper.com KORONET PIZZA: Martinez Sues Over Unpaid Minimum and OT Wages ------------------------------------------------------------- VIRGINIO MARTINEZ, JORGE MALDONADO and JULIO MARTINEZ, individually and on behalf of others similarly situated, Plaintiffs, against KORONET PIZZA CORP. (d/b/a KORONET PIZZA), HRISTINA MANIKIS and PETER MANEKES, Defendants, Case No. 1:17-cv- 05457 (S.D.N.Y., July 18, 2017), alleges that Plaintiffs regularly have worked for Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation. Rather, Defendants failed to maintain accurate records of hours worked and have failed to pay Plaintiffs appropriately for any hours worked over 40, either at the straight rate of pay or for any additional overtime premium. Further, Defendants have failed to pay Plaintiffs the required "spread of hours" pay for any day in which they have worked over 10 hours per day. The case raises claims of violations of the Fair Labor Standards Act and New York Labor Law. Koronet Pizza is a pizzeria. Plaintiff works as a pizza maker. [BN] The Plaintiffs are represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 LEACHVILLE, AR: Faces "Crocker" Suit Under FLSA, Ark. Wage Law -------------------------------------------------------------- ZAKKERY CROCKER and BRANDON WOMACK, individually and on behalf of all others similarly situated, Plaintiffs, vs. CITY OF LEACHVILLE, ARKANSAS, Defendant, Case No. 3:17-cv-00191-DPM (E.D. Ark., July 27, 2017), is a result of Defendant's alleged policy and practice of failing to pay Plaintiffs and other similarly situated individuals proper overtime compensation under the Fair Labor Standards Act, and the Arkansas Minimum Wage Act. Defendant City of Leachville, Arkansas, operates the City of Leachville Police Department where Plaintiffs were employed. Plaintiffs were employees of a public agency employed in law enforcement activities.[BN] The Plaintiffs are represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Phone: (501) 221-0088 Fax: (888) 787-2040 Email: josh@sanfordlawfirm.com LIBERTY POWER: Faces "Kreke" Lawsuit Alleging Violation of TCPA --------------------------------------------------------------- ALLEN KREKE, individually and on behalf of others similarly situated, Plaintiff, v. LIBERTY POWER HOLDINGS LLC, a DELAWARE LIMITED LIABILITY COMPANY, Defendant, Case No. 3:17-cv-00808 (S.D. Ill., July 28, 2017), alleges that in violation of the Telephone Consumer Protection Act, Defendant called Plaintiff and other putative class members on their cellular telephone lines using an artificial or prerecorded voice without their prior express consent and called Plaintiff and other putative class members on their cellular telephone lines more than once in a 12-month period despite those lines being on the national Do Not Call registry. Defendant supplies retail electricity to residential, business and government customers.[BN] The Plaintiff is represented by: Anthony G. Simon, Esq. Anthony R. Friedman, Esq. THE SIMON LAW FIRM, P.C. 800 Market Street, Suite 1700 Saint Louis, MO 63101 Phone: 314.241.2929 Fax: 314.241.2029 Email: asimon@simonlawpc.com afriedman@simonlawpc.com LIFE CARE: Faces "Lavrenyuk" Suit Under New York Labor Laws ----------------------------------------------------------- OLENA LAVRENYUK, individually and on behalf of all other persons similarly situated, Plaintiffs, v. LIFE CARE SERVICES, INC., Defendant, INDEX NO. 156393/2017 (N.Y. Sup., County Of New York, July 17, 2017), alleges that Defendant has maintained a policy and practice of requiring Plaintiffs to regularly work in excess of ten hours per day, without providing the proper hourly compensation for all hours worked, overtime compensation for all hours worked in excess of 40 hours in any given week, and "spread of hours" compensation. The case was filed pursuant to New York Labor Law, the New York Public Health Law, and the New York City Administrative Code. Life Care Services is primarily engaged in providing nursing and home health aide services at the residences of its clients. The Plaintiff is a home health care attendant.[BN] The Plaintiff is represented by: Lloyd R. Ambinder, Esq. LaDonna M. Lusher, Esq. Milana Dostanitch, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, NY 10004 Phone: (212) 943-9080 Fax: (212) 943-9082 Email: lambinder@vandallp.com llusher@vandallp.com LIVANOVA PLC: Faces Class Action Over Heater-Cooler Units --------------------------------------------------------- Roopal Luhana, writing for The Legal Examiner, reports that an Iowa woman filed on May 31, 2017, a new class action lawsuit against 3T heater-cooler manufacturer LivaNova PLC, previously Sorin Group Deutschland GMBH. The case was filed in the U.S. District Court for the District of Iowa. The plaintiff claims that during open-heart surgery, she was exposed to potentially fatal bacteria from a contaminated 3T heater-cooler unit, which was used to keep her warm during surgery. She seeks to represent more than 4,100 class members who are or were citizens of the state of Iowa at the time of their exposure. The class members' claims total more than $5 million. Plaintiff Claims All Class Members Exposed to Potentially Fatal Bacteria According to her complaint, the plaintiff had open-heart surgery on June 19, 2016. The surgeons used a 3T heater-cooler system during her surgery, exposing her to M. chimaera and/or M. abscessus, which are subspecies of nontuberculous mycobacterium (NTM). She alleges that the defendants manufactured and sold the 3T heater-cooler system used in her and in other class members' surgeries. The University of Iowa Hospitals and Clinics (UIHC) announced on February 2, 2016, that about 1,500 of its patients had undergone major heart, lung, or liver surgeries between January 1, 2012 and January 22, 2016 with the Sorin 3T heater-cooler systems. All had been exposed to these rare and potentially fatal bacteria via the Sorin 3T heater-cooler systems that were used to regulate blood temperature. On August 29, 2016, Mercy Medical Center announced that 2,600 of its patients who had gone through open-heart surgery between July 1, 2012 and July 1, 2016, had also been exposed to the same rare and potentially fatal bacteria. Both hospitals advised patients to watch for certain symptoms of an NTM infection, including rapid weight loss, fatigue, fever, and muscle pain. Certain NTM bacterium is slow-growing, which means that the infection can take months or even years post-surgery for any symptoms to show up. These infections can also be resistant to common antibiotics, and treatment can be intensive and long. Infections that are detected early can be often be successfully treated with a series of antibiotics, but late diagnosis can increase the risk of death, particularly in patients with weakened immune systems. CDC & FDA Advise Caution with Contaminated 3T Heater-Cooler Units The Centers for Disease Control and Prevention (CDC) has linked these and other related hospital infections to the Sorin 3T heater-cooler system because some units were contaminated with the bacteria at the manufacturing site. In surgery, water from inside the device is aerosolized and pushed into the operating room by the device's fan. Bacteria from the aerosolized water can then settle on the patient's exposed organs as they are undergoing surgery. Infections similar to those reported in the U.S. were also reported in Switzerland, Germany, and the Netherlands. In October 2016, the FDA issued a safety communication warning that surgery with these devices had been linked to dangerous NTM infections. The plaintiff seeks certification for the class action lawsuit stating that common questions of law and fact exist to all class members. [GN] MAGIC TOUCH: "Matamoros" Labor Suit Claims Unpaid Overtime Pay -------------------------------------------------------------- Lilliam Matamoros, and similarly situated individuals, Plaintiffs, v. Magic Touch Professional Cleaning LLC, and David Perez, individually, Defendants, Case No. 2:17-cv-05828 (D. N.J., August 7, 2017), seeks to recover unpaid overtime compensation, liquidated damages, costs and reasonable attorneys' fees under the provisions of the Fair Labor Standards Act and the New Jersey State Wage and Hour Law. Magic Touch, headquartered in Paterson, Passaic County, New Jersey, is a cleaning company that operates throughout the tri state area. Matamoros was employed by Defendants as a full time cleaner from May 2014, until approximately June 29, 2017. [BN] Plaintiff is represented by: Jodi J. Jaffe, Esq. Andrew I. Glenn, Esq. JAFFE GLENN LAW GROUP, P.A. 301 N. Harrison Street, Suite 9F, #306 Princeton, New Jersey 08540 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 Email: JJaffe@JaffeGlenn.com AGlenn@JaffeGlenn.com MAM ENTERPRISES: Faces "Mckeever" Suit Under FLSA, Ill. Wage Law ---------------------------------------------------------------- JULIE MCKEEVER, on behalf of herself and all others similarly situated, Plaintiff, v. MAM ENTERPRISES, LLC, d/b/a ALWAYS BEST CARE, Defendant, Case No. 1:17-cv-05555 (N.D. Ill., July 28, 2017), arises under the Fair Labor Standards Act, and the Illinois Minimum Wage Law, for Defendant's alleged failure to pay Plaintiff and other caregivers minimum wages and overtime wages. Defendant is in the business of providing home health care and companionship care services to patients in Illinois. Plaintiff and persons similarly situated are current and former caregivers.[BN] The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. Sarah J. Arendt, Esq. Steven P. Schneck, Esq. WERMAN SALAS P.C. 77 West Washington Street, Suite 1402 Chicago, IL 60602 Phone: 312/419-1008 Email: dwerman@flsalaw.com msalas@flsalaw.com sarendt@flsalaw.com sschneck@flsalaw.com MIDLAND FUNDING: Wiitanen's Bid to Certify Denied as Premature -------------------------------------------------------------- The Hon. Gordon J. Quist dismisses as premature the "placeholder" motion for class certification filed in the lawsuit entitled KAREN WIITANEN, individually and on behalf of other persons similarly- situated v. MIDLAND FUNDING LLC; MIDLAND CREDIT MANAGEMENT, INC.; ENCORE CAPITAL GROUP, INC.; and WELTMAN, WEINBERG & REIS CO., L.P.A., Case No. 1:17-cv-00534-GJQ-PJG (W.D. Mich.). The Plaintiff filed the putative class action pursuant to the Fair Debt Collection Practices Act and the Michigan Regulation of Collection Practices Act. In connection with her complaint, the Plaintiff filed a so-called "placeholder" motion for class certification in order to avoid a "pick off" of the Plaintiff's claims by the Defendants. The Plaintiff is concerned that the Defendants may seek to thwart Plaintiff's class claims by mooting the Plaintiff's individual claims through a Rule 68 offer of judgment, and argues that a "placeholder" motion for class certification is the only way the Plaintiff can avoid a potential pick-off. The Court concurs with certain district courts, which ruled that placeholder motions are unnecessary and should be dismissed as premature, according to the order. Therefore, the Plaintiff's Motion for Class Certification is dismissed without prejudice with leave to re-file after class discovery, if necessary, is completed. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=gm7ZgluT NATIONAL OILWELL: Moreno Seeks to Certify Welders/Mechanics Class ----------------------------------------------------------------- The Plaintiff in the lawsuit titled HECTOR MORENO, Individually and On Behalf of All Others Similarly Situated v. NATIONAL OILWELL VARCO, L.P. and NOV GP HOLDINGS, L.P., Case No. 4:17-cv-00782 (S.D. Tex.), asks the Court to conditionally certify this class: All current and former "welders" and "rig welders" and "mechanics" who worked for NOV, its parents, subsidiaries or affiliates at any location (including, without limitation, Galena Park, I-610 and Scott, Navigation, West Little York, Port of Houston, and Baytown) during the last three years and who were classified as independent contractors. Mr. Moreno filed a putative collective action lawsuit against the Defendants on March 13, 2017, alleging that they violated the Fair Labor Standards Act of 1938 by, among other things, failing to pay him and others similarly situated employees overtime for hours worked in excess of 40 per workweek. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=xP5lShU9 The Plaintiff is represented by: Melissa Moore, Esq. Curt Hesse, Esq. Bridget Davidson, Esq. MOORE & ASSOCIATES Lyric Center 440 Louisiana Street, Suite 675 Houston, TX 77002 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 E-mail: melissa@mooreandassociates.net curt@mooreandassociates.net bddavidson11@gmail.com The Defendants are represented by: David M. Gregory, Esq. LOCKE LORD, LLP 2800 JPMorgan Chase Tower 600 Travis Street Houston, TX 77002 Telephone: (713) 226-1344 Facsimile: (713) 229-2630 E-mail: dgregory@lockelord.com NATIONWIDE EVICTION: Renewed Bid for Class Certification Sought --------------------------------------------------------------- In the lawsuit styled 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 Plaintiff asks the Court to grant his renewed motion for conditional certification. According to the complaint, the Plaintiff and others similarly situated are paid a flat fee for each court appearance regardless of the amount of time it takes to perform the task. Often Court Representatives do not make minimum wage for every hour worked during their shifts. Nationwide Eviction does not compensate drivers for the expenses associated with using their own vehicles, cell phone data, car insurance, gas, parking and other expenses. The Plaintiff and others similarly situated are entitled to overtime at one-and-one-half times their regular rates of pay for all hours worked in excess of 40 in a workweek as required by 29 U.S.C. section 207. Defendant did not pay Plaintiff and others similarly situated one-and-one half times their regular rates of pay for hours worked in excess of 40 per week. The Defendant violated the Fair Labor Standards Act, because it did not pay Plaintiff and others similarly situated employees the overtime pay they should have received for the hours worked in excess of 40 in a workweek, in addition to not paying court representatives minimum wage. As a result, Plaintiff and others similarly situated did not receive compensation they were legally entitled to receive. The work performed by Plaintiff and others similarly situated was with Defendant's knowledge. Defendant provided training for Court Representatives, approved their schedules, assigned and supervised their work. Defendant's violations of the FLSA were committed knowingly, willfully, and/or with reckless disregard to Plaintiff and similarly situated employees' rights. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=EUMEyOlN The Plaintiff is represented by: Alfonso Kennard Jr. Ronald E. Dupree, Jr. KENNARD LAW 2603 Augusta Dr., Ste. 1450 Houston, TX 77057 Telephone: (713) 742 0900 Facsimile: (713) 742 0951 E-mail: alfonso.kennard@kennardlaw.com ronald.dupree@kennardlaw.com NISSAN MOTOR: Settles Takata Airbag Class Action for $97.7M ----------------------------------------------------------- Reuters reports that Nissan Motor Co on Aug. 8 agreed to pay US$97.7 million to settle class-action claims of consumer economic loss in the United States tied to the recall of 4.4 million vehicles with Takata air bag inflators, court records show. Nissan said in a statement that it was not admitting fault under the settlement. The settlement is similar to others reached with major carmakers. In June, a federal judge in Miami granted preliminary approval to settlements with Toyota Motor Corp, Subaru Corp, BMW AG and Mazda Motor Corp totalling US$553 million and affecting 15.8 million vehicles with Takata inflators. At least 18 deaths and 180 injuries worldwide have been tied to the defect that led Takata Corp to file for bankruptcy protection in June. Takata inflators can explode with excessive force, unleashing metal shrapnel inside cars and trucks. Honda Motor Co and Ford Motor Co to date have not agreed to settle consumer economic loss claims. All the settlements reached so far include an outreach programme to contact owners of recalled vehicles and to address the low number of completed repairs, as well as compensation for economic losses including out-of-pocket expenses; a possible residual distribution payment of up to US$500; rental cars for some owners; and a customer support programme for repairs and adjustments, including an extended warranty. Nissan said its settlement is "intended to significantly increase customer outreach and to accelerate recall remedy completion rates for Takata airbag inflator recalls." As of late June, only 29.9 per cent of Nissan vehicles recalled with Takata inflators had been fixed. The settlement is subject to court approval. A hearing to grant final approval for the other four carmaker settlements is set for October 25. In January, Takata agreed to plead guilty to criminal wrongdoing and to pay US$1 billion to resolve a US federal investigation into its inflators. As part of the Justice Department settlement, Takata agreed to establish two independently administered restitution funds: one for US$850 million to compensate carmakers for recalls and a US$125 million fund for individuals injured by its airbags who had not already reached a settlement. [GN] NISSAN NORTH AMERICA: Auker Appeals Ruling in "Batista" Suit ------------------------------------------------------------ Interested Parties Plaintiffs Wendy Auker, Stuart Desner and Robert Fritz filed an appeal from a court ruling in the lawsuit titled Kenai Batista, and others, individually and on behalf of those similarly situated v. Nissan North America, Inc., Defendant, Case No. 1:14-cv-24728-RNS, in the U.S. District Court for the Southern District of Florida. As previously reported in the Class Action Reporter, the District Court certified a Settlement Class, for settlement purposes only, consisting of all current and former owners and lessees of 2013- 2014 model year Nissan Pathfinder and 2013-2014 model year Infiniti JX35/QX60 vehicles equipped with the FK-*k2 CVT in the United States and its territories, including Puerto Rico. Excluded from the Settlement Class are (i) NNA, any entity or division in which NNA has a controlling interest, its/their legal representatives, officers, directors, assigns and successors; (ii) any judge to whom this case is assigned and the judge's clerks and any member of the judge's immediate family; (iii) fleet and government purchasers and lessees; and (iv) those persons or entities that validly and timely elected exclusion from the Settlement Class. The appellate case is captioned as Wendy Auker, et al. v. Nissan North America, Inc., Case No. 17-13413, in the United States Court of Appeals for the Eleventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant's Certificate of Interested Persons is due on or before August 18, 2017, as to Appellant Wendy Auker; -- Appellee's Certificate of Interested Persons due on or before August 25, 2017, as to Appellee Nissan of North America, Inc.; and -- Appellant's Certificate of Interested Persons is due on or before August 18, 2017, as to Appellant Robert Fritz.[BN] Interested Parties-Appellants WENDY AUKER, individually and on behalf of those similarly situated, and STUART DESNER are represented by: David J. Gorberg, Esq. DAVID J. GORBERG & ASSOCIATES 103 Sibley Ave. Ardmore, PA 19003 Telephone: (215) 665-7660 - and - Elliot Burt Kula, Esq. KULA & ASSOCIATES, PA 11900 Biscayne Blvd Ste 310 North Miami, FL 33181 Telephone: (305) 354-3858 E-mail: Elliot@kulalegal.com Interested Party-Appellant ROBERT FRITZ is represented by: Andrew Y. Winston, Esq. THE WINSTON LAW FIRM 2924 Davie Rd., Suite 201 Ft. Lauderdale, FL 33314 Telephone: (954) 475-9666 E-mail: awinston@winstonlaw.com Defendant-Appellee NISSAN OF NORTH AMERICA, INC., is represented by: Ramon Alberto Abadin, Esq. Christopher J.M. Collings, Esq. Valerie Shea, Esq. SEDGWICK, LLP 1 Biscayne Tower, Suite 1500 2 S Biscayne Blvd. Miami, FL 33131-1822 Telephone: (305) 671-2124 E-mail: ramon.abadin@sedgwicklaw.com christopher.collings@sedgwicklaw.com valerie.shea@sedgwicklaw.com - and - Ryan Christopher Brown, Esq. E. Paul Cauley, Jr., Esq. SEDGWICK, LLP 1717 Main St., Suite 5400 Dallas, TX 75201 Telephone: (469) 227-8200 Facsimile: (469) 227-8004 E-mail: ryan.brown@dbr.com paul.cauley@sedgwicklaw.com - and - Sherman Vance Wittie, Esq. DRINKER BIDDLE REATH LLP 1717 Main St., Suite 5400 Dallas, TX 75201 Telephone: (469) 227-8200 E-mail: vance.wittie@dbr.com Plaintiff KENAI BATISTA, individually and on behalf of those similarly situated, is represented by: Lawrence D. Deutsch, Esq. Jeffrey Osterwise, Esq. BERGER & MONTAGUE, PC 1622 Locust St Philadelphia, PA 19103 Telephone: (215) 875-4658 E-mail: ldeutsch@bm.net josterwise@bm.net - and - Hirlye R. Lutz, III, Esq. Frank Jerome Tapley, Esq. Adam Wade Pittman, Esq. CORY WATSON CROWDER & DEGARIS, PC 2131 Magnolia Avenue, Suite 200 Birmingham, AL 35205 Telephone: (205) 328-2200 Facsimile: (205) 324-7896 E-mail: rlutz@corywatson.com jtapley@corywatson.com apittman@cwcd.com - and - C. Richard Newsome, Esq. William Carl Ourand, Jr., Esq. NEWSOME MELTON LAW OFFICE 201 S Orange Ave., Suite 1500 Orlando, FL 32801 Telephone: (407) 648-5977 E-mail: newsome@newsomelaw.com ourand@newsomelaw.com - and - Maria Victoria Olszewska, Esq. WEIL QUARANTA, P.A. 7083 Hollywood Blvd., 1st Floor Los Angeles, CA 90028 Telephone: (323) 629-3794 E-mail: mary@weillaw.net - and - Ronald Peter Weil, Esq. WEIL QUARANTA, PA 200 S Biscayne Blvd., Suite 900 Miami, FL 33131-5344 Telephone: (305) 372-5352 Facsimile: (305) 372-5355 E-mail: rpw@weillaw.net OLIO RESTAURANTS: Faces "Carrera" Suit Under FLSA, NY Labor Law --------------------------------------------------------------- MARIO CARRERA and JOSE LUIS CALPENO GUEVARA, individually and on behalf of others similarly situated, Plaintiffs, against OLIO RESTAURANTS LLC (d/b/a OLIO E PIU), WHYNOT MY WAY LLC (d/b/a DOMINIQUE BISTRO), EMIL STEFKOV and DOMINICK PEPE, Defendants, Case No. 1:17-cv-05714-PGG (S.D.N.Y., July 27, 2017), alleges that Defendants employed the policy and practice of disguising Plaintiffs' actual duties in payroll records to avoid paying Plaintiffs at the minimum wage rate and to enable them to pay Plaintiffs at the lower tip-credited rate (which they still failed to do), by designating them as delivery workers instead of non- tipped employees. The case alleges violation of the Fair Labor Standards Act and the New York Labor Law. Defendants own, operate, or control an Italian restaurant under the name "Olio e Piu" and a French restaurant and wine bar under the name "Dominique Bistro". Plaintiffs were ostensibly employed by Defendants as delivery workers.[BN] The Plaintiffs are represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Fax: (212) 317-1620 PACIFIC BELLS: Hodges Claims Unpaid for Off-the-Clock Work ---------------------------------------------------------- Tamara Hodges, individually, and on behalf of herself and other similarly situated current and former employees, Plaintiffs, v. Pacific Bells, LLC, a Washington Limited Liability Company, Defendant, Case No. 2:17-cv-02564 (W.D. Tenn., August 7, 2017), seeks to recover unpaid straight time wages, unpaid overtime compensation and other damages, reasonable attorneys' fees and costs under the Federal Fair Labor Standards Act of 1938. Defendant operates Taco Bell, Kentucky Fried Chicken, Pizza Hut Express, Long John Silvers and A&W franchised restaurants. Hodges worked as a Restaurant General Manager at a Taco Bell Branch owed by the Defendant. She claims to have rendered work before and after she clocked in and out but was not compensated for such. [BN] Plaintiff is represented by: Gordon E. Jackson, Esq. James L. Holt, Jr., 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 jholt@jsyc.com rbryant@jsyc.com pjackson@jsyc.com PCL CONSTRUCTION: Down Creek Claims Lost Income from Power Outage ----------------------------------------------------------------- Marissa Gross (d/b/a Down Creek Galleries), Rhonda G. Derring, Robert D. Case, and on behalf of all others similarly situated, Plaintiffs, v. PCL Construction Services, Inc., Defendant, Case No. 4:17-cv-00102 (D.N.C., July 31, 2017), seeks compensatory, consequential, exemplary or punitive damages, prejudgment and post-judgment interest, costs and disbursements in prosecuting this action, including reasonable attorneys' and experts' fees and such other and further relief resulting from negligence, willful misconduct, nuisance and tortious interference. Marissa Gross is an owner of an art gallery, Down Creek Galleries, located at 260 Irvin Garrish Highway, Ocracoke, North Carolina. Down Creek Galleries relies primarily on tourists to provide its business with income. N.C. Department of Transportation awarded a design-build contract to PCL with HDR Engineering, Inc. of the Carolinas as the lead design firm for the Bonner Bridge Replacement Project. PCL drove a steel piling through the underground power cable thus cutting off power to Ocracoke and Hatteras Islands. Plaintiff claims damages because of lost rentals, tourist and business income. [BN] Plaintiff is represented by: Daniel K. Bryson, Esq. Scott C. Harris, Esq. Matthew Lee, Esq. WIDTFIELD BRYSON & MASON LLP 900 W. Morgan St. Raleigh, North Carolina 27603 Tel: 919-600-5005 Fax: 919-600-5035 Email: matt@wbmllp.com scott@wbmllp.com matt@wbmllp.com - and - Gary E. Mason, Esq. Nicholas A. Migliaccio, Esq. WHITFIELD BRYSON & MASON, L.L.P. 1625 Massachusetts Ave. NW, Ste. 605 Washington, DC 20036 Tel: (202) 429-2290, (202) 640-1164 Fax: 202-429-2294 E-mail: gmason@wbmllp.com POLARIS INDUSTRIES: Sept. Hearing Set on Bid to Drop Class Suit --------------------------------------------------------------- The U.S. District Court for the District of Minnesota has scheduled a September 2017 hearing on the motion of Polaris Industries Inc. and other defendants to dismiss a securities class action in Minnesota, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. In September and October 2016, investors filed two purported class action complaints in the United States District Court for the District of Minnesota naming the Company and two of its executive officers as defendants. On December 12, 2016, the District Court consolidated the two actions and appointed a lead plaintiff and lead counsel. In a later order, the court set a date of March 14, 2017, for the lead plaintiff to file a consolidated amended complaint or to designate one of the filed complaints as the operative pleading. On March 14, 2017, the lead plaintiff filed a consolidated amended complaint against the Company and six current or former executives for alleged violations of the federal securities laws. The lead plaintiff seeks to represent a class of persons who purchased or acquired Polaris securities during the time period from February 20, 2015 through September 11, 2016. The amended complaint alleges that, during the proposed class period, defendants made materially false or misleading public statements about the Company's business, operations, forecasts, and compliance policies relating to certain of its ORV products and product recalls. The amended complaint asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and seeks damages in an unspecified amount, pre-judgment and post- judgment interest, and an award of attorneys' fees and expenses. In May 2017, the Company and the other defendants filed a motion to dismiss the amended complaint. The Court has set a hearing on the motion for September 2017. Polaris Industries Inc. designs, engineers, manufactures, and markets power sports vehicles worldwide. It operates through four segments: Off-Road Vehicles (ORVs)/Snowmobiles, Motorcycles, Global Adjacent Markets, and Other. Polaris Industries Inc. was founded in 1954 and is headquartered in Medina, Minnesota. POSTMATES INC: "Niles" Suit Removed to Mass. Federal Court ---------------------------------------------------------- Jordan Niles, Bianca Tsolias, Benjamin Sassoon and Marga Celado, on behalf of themselves and all others similarly situated, Plaintiffs, v. Postmates, Inc., Defendant, Case No. 1784-CV-02025, originally filed in the Suffolk County Superior Court, Commonwealth of Massachusetts on June 27, 2017, was removed to the United States District Court for the District of Massachusetts on July 28, 2017, under Case No. 1:17-cv-11397. Plaintiffs are delivery drivers who connect with customers through the Postmates smartphone application to provide delivery services throughout Massachusetts. Customers are charged a fee for these delivery services and Plaintiffs allege that Postmates has unlawfully withheld a portion of such fees from them in violation of Massachusetts General Law. [BN] Plaintiff is represented by: James D. Livingstone, Esq. John P. Regan, Jr., Esq. REGAN, LANE & MESSINGER 41 Winter Street Boston, MA 02108 Tel: (774) 847-7390 Fax: (617) 778-9742 Email: jay@reganlanemessinger.com john@reganlanemessinger.com Defendant is represented by: Michael Mankes, Esq. Sarah E. Green, Esq. LITTLER MENDELSON, P.C. One International Place, Suite 2700 Boston, Massachusetts 02110 Tel: (617) 378-6000 Fax: (617) 737-0052 Email: mmankes@littler.com sgreen@littler.com POWER ULTRA: Lawyers Tapped to Represent Mass Shooting Victims -------------------------------------------------------------- Attorneys from Romanucci & Blandin, LLC, Taylor A. King & Associates, P.A., and The Law Offices of Conrad J. Benedetto announced Aug. 8 that they have been retained to represent over 15 victims of the mass shooting that took place at Power Ultra Lounge in Little Rock July 1, 2017. In the early morning hours of July 1, a barrage of gunfire rang out at the downtown club where Memphis rapper Ricky Hampton was performing. Ultimately, 28 individuals were injured during the shooting at Power Ultra Lounge, with a number of victims in critical condition. Since the incident, Hampton was placed under arrest and has been ordered to stay behind bars until trial. According to public records, Power Ultra Lounge was the source of over three dozen civil and criminal complaints which local and state authorities responded to during a four-year time period. Furthermore, the club was on a property zoned for a restaurant -- not a club or concert venue. "The venue was clearly operating outside of the law for years and hired a performer with a 10-year history of run-ins with law enforcement. Yet, neither the club nor authorities provided security to patrons," said J.D. Hays, Jr., Attorney at Taylor A. King & Associates, P.A. "This could have been prevented, but rather it took a mass shooting that left 28 injured to get someone's attention." "Despite all the complaints and warnings, city officials never exercised any authority to sanction or close down Power Ultra," added Antonio M. Romanucci, Principal and Partner at Romanucci & Blandin, LLC. "Our investigations over the next several months will be taking a closer look into the actions of the City and how institutions like Power Ultra can be licensed to do one thing, but actually be operating as a completely different entity. We will keep the media apprised as our investigations continue." [GN] PREMIER COURIER: Faces "Lumley" Suit over Unpaid Minimum Wages -------------------------------------------------------------- Brian Lumley, on behalf of himself and all others similarly situated, Plaintiff, v. Ronald T. Dillard and Premier Courier, Inc. and John Does 1-3, Case No. 2:17-cv-00654 (S.D. Ohio, July 27, 2017) seeks declaratory, equitable, and monetary relief from the Defendants under the Ohio Fraudulent Transfer Act for unpaid minimum wages and overtime compensation. The suit alleges that the Defendants have transferred their assets to avoid payment. Lumley full time as delivery drivers for Defendant's courier business at 638 Sullivan Avenue, Columbus, Ohio 43215. Premier misclassified them as independent contractors. In 2014, Dillard and Premier settled a class and collective action lawsuit with the drivers, agreeing to a common fund settlement of up to $750,000 to resolve the drivers' wage claims but Defendants allegedly transferred their assets to other persons and entities with the actual intent to hinder, delay or defraud their creditors. [BN] The Plaintiff is represented by: Joseph F. Scott, Esq. Ryan A. Winters, Esq. Kevin M. McDermott II, Esq. SCOTT & WINTERS LAW FIRM, LLC The Caxton Building 812 E. Huron Road, Suite 490 Cleveland, OH 44114 Tel. (440) 498-9100 Fax (216) 621-1094 Email: jscott@ohiowagelawyers.com rwinters@ohiowagelawyers.com - and - Thomas A. Downie, Esq. 46 Chagrin Falls Plaza #104 Chagrin Falls, OH 44022 Tel: (440) 973-9000 Email: tom@chagrinlaw.com PRUDENTIAL RETIREMENT: Class Action Status Denied in ERISA Case --------------------------------------------------------------- John Manganaro, writing for PlanAdviser, reports that a federal district court judge has denied class action status to an ERISA challenge filed by a retirement plan participant invested in a stable value product offered by Prudential. The suit, filed against Prudential Retirement Insurance and Annuity Company in the U.S. District Court for the District of Connecticut, alleged that the firm improperly assessed and failed to disclose compensation derived from clients' investment in a stable value fund. As laid out in the initial complaint, the plaintiffs alleged that Prudential sets the crediting rate for certain stable value funds "well below its internal rate of return on the invested capital it holds through the SVAs. Thus, the company guarantees a substantial profit for itself . . . It does not disclose to its retirement plan clients and their respective participants the difference between its internal rate of return and the crediting rate. Thus, the company collects tens of millions of dollars annually in undisclosed compensation from the retirement plans and participants to whom it owes the highest duties known to the law, in violation of the Employee Retirement Income Security Act (ERISA) and statutory disclosure obligations." Among other allegations, plaintiffs also charged that Prudential "does not provide reasonable notice of a change in the crediting rate. Accordingly, a plan cannot reasonably terminate [the stable value investment contract] if defendant imposes an unfavorable crediting rate. Further . . . defendant imposes substantial penalties on the plans should the plans attempt to terminate the [contract] because of an unfavorable rate. Thus, plan fiduciaries are effectively precluded from making determinations concerning the reasonableness of the crediting rate, and from replacing the [contract] with another stable value fund when a crediting rate imposed by defendant is unreasonable." In seeking class certification and determining the proposed scope of the class, the suit cites Rule 23 of the Federal Rules of Civil Procedure. The plaintiff's conclusion is bold and the suit seeks to include "all ERISA covered employee pension benefit plans whose plan assets were invested in Prudential Retirement Insurance and Annuity Company's Group Annuity Contract Stable Value Funds within the six years prior to, on or after December 3, 2015." Turning to the decision recently issued by the Connecticut district court, it seems Prudential has successfully convinced the court that certain assertions in the challenge are faulty, leading to the result that class certification is in appropriate. In particular, the court notes, "while the plaintiff has offered evidence that 'most pools' used the same crediting rate, defendants counter that plans invested in [the relevant products called out by the suit] benefit from a 'wide range' of crediting rates, and that [the products] provide distinct rate changes to at least 20% of the rate pools." Strictly speaking, Prudential did not challenge the "numerosity prerequisite" set forth in Rule 23(a), and the court "therefore considered only whether the plaintiff's proposed class satisfies requirements for commonality, typicality, and adequacy of representation." [GN] REDBACK COIL: Faces "Laney" Lawsuit Alleging FLSA Violation ----------------------------------------------------------- DAVID LANEY, JEREMY ADAMS, KEVIN HOLMES and DOUGLAS MONEYPENNY, individually and on behalf of others similarly situated, Plaintiffs, vs. REDBACK COIL TUBING, LLC, MIKE FERNANDEZ, PAUL JACOBI, DANTE DOMENICHELLI, PHIL LANCASTER and MARK LAYTON, Defendants, Case No. 5:17-cv-00650 (W.D. Tex., July 18, 2017), was filed over the Defendants' alleged failure to pay Plaintiffs and other Supervisors lawful overtime compensation for hours worked in excess of forty (40) hours per week in violation of the Fair Labor Standards Act. REDBACK COIL TUBING, LLC performs geophysical, geological, and other exploration services for oil and gas. Plaintiff was employed by Defendants as a supervisor. [BN] The Plaintiffs are represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Phone: (501) 221-0088 Fax: (888) 787-2040 Email: josh@sanfordlawfirm.com RELIANCE TRUST: "Nistra" Suit Seeks to Certify Class ---------------------------------------------------- In the lawsuit captioned ARTUR A. NISTRA, on behalf of The Bradford Hammacher Group, Inc. Employee Stock Ownership Plan, and on behalf of a class of all other persons similarly situated, the Plaintiff, v. RELIANCE TRUST COMPANY, the Defendant, Case No. 1:16-cv-04773 (N.D. Ill.), Mr. Nistra asks the Court to enter an order certifying a class of: "all persons who were participants in The Bradford Hammacher Group, Inc. Employee Stock Ownership Plan." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=VnKEYQwQ The Plaintiff is represented by: Ryan T. Jenny, Esq. Gregory Y. Porter, Esq. Patrick O. Muench, Esq. BAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463 2101 Facsimile: (202) 463 2103 E-mail: rjenny@baileyglasser.com gporter@baileyglasser.com pmuench@baileyglasser.com - and - Robert A. Izard, Esq. Douglas P. Needham, Esq. IZARD, KINDALL & RAABE, LLP 29 South Main Street, Suite 305 West Hartford, CT 06107 Telephone: (860) 493 6292 Facsimile: (860) 493 6290 E-mail: rizard@ikrlaw.com dneedham@ikrlaw.com The Defendant is represented by: Theodore M. Becker, Esq. Richard J. Pearl, Esq. DRINKER BIDDLE & REATH, LLP 191 N. Wacker Drive, Suite 3700 Chicago, IL 60606 Telephone: (312) 569 1000 E-mail: Theodore.Becker@dbr.com Richard.Pearl@dbr.com RIZNO INC: TCPA Class Certification Sought in Brite Bite Suit ------------------------------------------------------------- The Plaintiff in the lawsuit titled BRITE BITE DENTAL, PC, an Illinois corporation, individually and as the representative of a class of similarly-situated persons v. RIZNO, INC. d/b/a PULSE UNIFORM, Case No. 1:17-cv-05747 (N.D. Ill.), moves for an order certifying this class: Each person or entity that was sent one or more telephone facsimile messages after August 7, 2013 from Pulse Uniform offering work uniforms. The case involves common fact questions about the Defendant's alleged fax campaign and common legal questions under the Telephone Consumer Protection Act. Brite Bite says it filed the Motion soon after the filing of its Class Action Complaint in order to avoid an attempt by the Defendant to moot its individual claims in the class action. However, in this case, additional discovery is necessary for the court to determine whether to certify the class it seeks to represent, Brite Bite asserts. As a result, Brite Bite says it will seek leave to pursue class discovery as soon as practicable. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=XE0spJUs The Plaintiff is represented by: Phillip A. Bock, Esq. Tod A. Lewis, Esq. David. M. Oppenheim, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. LaSalle St., Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@bockhatchllc.com tod@classlawyers.com david@classlawyers.com ROCKET FUEL: Haines Claims Shortchanged in Onerous Merger Deal -------------------------------------------------------------- Adryan Haines, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Rocket Fuel Inc., Monte Zweben, Randy Wootton, Richard Frankel, Susan L. Bostrom, Ronald E. F. Codd, William Ericson, Clark Kokich and John Lewis, Defendants, Case No. 3:17-cv-04473 (N.D. Cal., August 7, 2017), seeks to preliminarily and permanently enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of Rocket Fuel Inc. by Sizmek Inc., rescissory damages in case the merger pushes through, reasonable allowance for Plaintiff's attorneys' and experts' fees and such other and further relief under the Securities and Exchange Act of 1934. Company shareholders stand to receive $2.60 in cash for each share of Rocket Fuel stock they own representing $3.0 billion in total value. Plaintiff, a Rocket Fuel stockholder, claims that merger amount is inadequate in light of the company's recent financial performance and prospects for future growth. In addition, the deal locked in with Sizmek, threatening to penalize Rocket fuel should the deal be cancelled, thereby preventing any other offers for the company. The Company operates media services that offer its proprietary Predictive Marketing Platform as a managed service operated on behalf of customers and platform solutions, a technology solution that Rocket Fuel customers acquire and operate themselves, or acquire and utilize along with support services from Rocket Fuel. [BN] Plaintiff is represented by: David E. Bower, Esq. MONTEVERDE & ASSOCIATES PC 600 Corporate Pointe, Suite 1170 Culver City, CA 90230 Tel: (213) 446-6652 Email: dbower@monteverdelaw.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com SANOFI-AVENTIS: Taxotere Class Action Investigation Opened ---------------------------------------------------------- Angie Koehle, writing for abc15, reports that breast cancer patients may be able to be part of an investigation into an intravenous breast cancer treatment drug. Patients suffering from hair loss after taking Taxotere (docetaxel) may have a legal claim. A class action lawsuit investigation has been opened into claims that the manufacturer of Taxotere knew that permanent hair loss could occur, but failed to disclose this risk. [GN] SEE'S CANDY: California Judge Nixes Mislabeling Class Action ------------------------------------------------------------ Alyse Thompson, writing for Candy Industry, reports that a California federal judge has thrown out an 18-month-old class- action suit against See's Candy Shops, Inc., alleging the company had mislabeled some Valentine's Day candy as kosher. In a nine-page order handed down, U.S. District Judge Edward M. Chen said New Jersey resident Avi Weiss had failed to demonstrate that sales of the candy allegedly subject to mislabeling had exceeded $5 million, the threshold outlined in the Class Action Fairness Act. Weiss, with help from two California law firms, filed a class- action suit in February 2016 after he purchased a heart-shaped box of assorted chocolates from a See's Candies location in Los Angeles. An identifying placard hung above the boxes allegedly indicated the candies were kosher, though they weren't. Weiss said he wouldn't have purchased the candy if he knew they were not kosher-certified. As a result, he sought damages on behalf of any customers who purchased within four years of the first filing that a product from a See's Candies Shop was marketed as kosher-certified when the product was not. He estimated "thousands" of customers were in the class. See's Candy Shops, which achieves kosher certification for its products through Kosher Supervision of America (KSA), said the certification is in effect only when the KSA logo appears on the factory-sealed packaging. The heart-shaped boxes in question did not have the KSA logo, court documents say. However, on learning of the lawsuit, See's pulled the placards for the heart-shaped boxes with the KSA logo, issued a press release about the error and offered a refund. Revenue from the heart- shaped boxes sold under the incorrect placard was redacted in public court records. See's also launched an investigation into price cards for other non-kosher items sold over the four years preceding the suit. While the sales total was redacted, it apparently did not meet the $5 million threshold. See's also argued that Weiss also did not provide evidence indicating it would meet the threshold. Chen agreed, granting See's order to dismiss the case. "Here, See's did provide evidence to show that the amount in controversy is less than the total sales of its kosher products -- i.e. that any mislabeling constituted only a tiny subset of the total sales of kosher products," he wrote. "Mr. Weiss . . . has failed to show that portion exceeds $5 million." See's was represented by the Sheppard Mullin Richter & Hampton law firm. [GN] SPA CITY STEAKS: Thompson Moves to Certify Tipped Employees Class ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled CHEVON THOMPSON, Individually and on Behalf of all Others Similarly Situated v. SPA CITY STEAKS, INC., d/b/a COLTON'S STEAK HOUSE AND GRILL, Case No. 6:17-cv-06055-SOH (W.D. Ark.), asks the Court to conditionally certify this class: All persons whom Defendant classified as tipped employees at any time since June 30, 2014. Ms. Thompson brought the lawsuit on behalf of all former and current tipped employees employed by the Defendant to recover wages and other damages pursuant to the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Ms. Thompson also asks the Court to order the Defendant to provide the names and current and last known mailing and e-mail addresses of all potential class members no later than one week after the date of the entry of the Order granting the Motion, to approve the sending of Notice and Consent to Join form, along with the Plaintiff's Original Complaint, and Defendant's Answer thereto, to all potential class members, and to grant the Plaintiff's counsel a period of 90 days during which to distribute by mail and by e-mail the Notice and to file opt-in Plaintiffs' Consent forms with the Court. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=vmOdE9Q3 The Plaintiff is represented by: Steve Rauls, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center, 650 S. Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: steve@sanfordlawfirm.com josh@sanfordlawfirm.com The Defendant is represented by: J. Bruce Cross, Esq. Gregory J. Northen, Esq. CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, AR 72201 Telephone: (501) 371-9999 Facsimile: (501) 371-0035 E-mail: bcross@cgwg.com gnorthen@cgwg.com SPEEDWAY OFFICE: Innovative Accounting's Certification Bid Denied ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned INNOVATIVE ACCOUNTING SOLUTIONS, INC., a Michigan Corporation, individually and as the representative of a class of similarly-situated persons v. SPEEDWAY OFFICE PRODUCTS, METRO RECORD SERVICE, INC., and SECURITY X-RAY, INC., Case No. 4:17-cv-12563-LVP-SDD (E.D. Mich.), moves for entry of an order certifying this class: Each person or entity that was sent one or more telephone facsimile messages offering "Speedway" paper fasteners containing telephone number 888-381-9811 or fax number 818-558-6842. The case involves common fact questions about the Defendants' fax campaign and common legal questions under the Telephone Consumer Protection Act. Innovative Accounting informs the Court that it files the Motion soon after the filing of its Class Action Complaint in order to avoid an attempt by the Defendants to moot its individual claims in the class action. However, the Plaintiff contends, in this case, additional discovery is necessary for the court to determine whether to certify the class Plaintiff seeks to represent. As a result, Plaintiff will seek leave to pursue class discovery as soon as practicable. * * * The Hon. Linda V. Parker entered an opinion and order denying without prejudice the Motion. "The practice of filing premature motions for class certification in TCPA cases has proliferated in this District as a means to avoid the named plaintiff's claim possibly being rendered moot by the defendant's offer of judgment. However, with the Supreme Court's January 20, 2016 decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), there no longer is a need for plaintiffs to file premature motions for class certification," Judge Parker opines. "In short, there no longer is a reason for Plaintiff to file a motion for certification which it is not able to support at this time. The motion is premature," Judge Parker states. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Vdo4q0Q0 A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=LOxhaKNw The Plaintiff is represented by: Phillip A. Bock, Esq. Robert M. Hatch, Esq. Tod A. Lewis, Esq. David. M. Oppenheim, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. LaSalle St., Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@bockhatchllc.com robert@classlawyers.com tod@classlawyers.com david@classlawyers.com - and - Mark K. Wasvary, Esq. MARK K. WASVARY, P.C. 2401 W. Big Beaver Rd., Suite 100 Troy, MI 48084 Telephone: (248) 649-5667 Facsimile: (248) 649-5668 E-mail: markwasvary@hotmail.com SPOTIFY INC: December 1 Settlement Approval Hearing Set ------------------------------------------------------- Digital Music News' Daniel Sanchez provides a few pointers on getting your slice of Spotify $43.5 million songwriter settlement pie. On May 23, Spotify entered into a settlement agreement with songwriters over unresolved mechanical licenses. Mechanical licenses are a type of publishing license owed to songwriters that Spotify wasn't paying. As a result, they got sued. In a class action settlement, the company agreed to pay $43.5 million to cover its massive pile of unpaid mechanical royalties. But, if you're a songwriter, how can you make sure that you get your fair share of the settlement? Read on. So, how did the case begin? Artist activist David Lowery had started the contentious class action lawsuit against Spotify. Shortly thereafter, singer/songwriter Melissa Ferrick sponsored a similar action. Lowery had initially launched a $150 million lawsuit, while Ferrick filed a similar class action seeking $200 million. Those are rough estimates, though the rival lawsuits eventually combined, with Ferrick's attorneys taking the lead. Both Lowery and Ferrick had accused Spotify of conveniently withholding mechanical royalty payments. The streaming platform had made a number of musical works available without such licenses. After failing to derail the class action lawsuits, Spotify's attorneys ultimately agreed to settle. However, the company still believes that the "factual and legal allegations . . . are incorrect." The platform also specifically denies any fault, wrongdoing, or liability when it comes to withholding royalty payments. Do I qualify? To be included in the Settlement, you must be a member of the Settlement Class. To be in the Settlement Class, you must satisfy the following requirements: 1. You're the owner of a copyright of a musical composition that Spotify made available for interactive streaming and/or limited downloading between December 28th, 2012 and June 29th, 2017. 2. You contend that Spotify made your musical composition available without a license. 3. You or someone else applied for and received a certificate of registration from the US Copyright Office for the musical composition on or before June 29th, 2017. Who doesn't qualify? The following people will remain excluded from the settlement payment. 1. Spotify, or one of its affiliates, employees, and counsel. 2. A federal, state, or local government entity. 3. A member of the National Music Publishers' Association (NMPA) and/or a party to a 'Participating Publisher Pending and Unmatched Usage Agreement' between Spotify and the NMPA. 4. Someone who agreed not to bring a claim against the company in this class action lawsuit. How can I receive a part of the settlement? If you believe you are a qualifying member of the Settlement Class, you must fully complete and timely submit a valid claim form to the Settlement Administrator, Garden City Group LLC. You can complete and submit claim forms at http://www.SpotifyPublishingSettlement.com/ Class members also may request a paper copy of a claim form by emailing the Settlement Administrator at info@SpotifyPublishingSettlement.com. You can also call 1-855- 474-3853 for the paper copy. How do I complete the claim form? To complete the claim form, Settlement Class members must provide some information about themselves. This includes: 1. Name 2. Contact information 3. Relevant musical compositions (the works members contend Spotify made available between December 28th, 2012 and June 29th, 2017 without a license). Required information includes: The copyright registration number of each musical composition. The track identifier for each recording on Spotify of that composition. The claim form also includes optional information that members can fill out to be eligible for a payment. If you can't find the track identifier, Spotify has assembled the Track Database. This consists of tracks with correct identifiers and certain other information about recordings. The database is limited to tracks made available for interactive streaming and/or limited downloading during the Class period. You can find the Spotify Track Database at www.SpotifyPublishingSettlement.com. When can I receive a part of the settlement? The Settlement still requires Court approval. If you're a Class member, you will be entitled to receive a payment from the $43.5 million Net Settlement Fund (minus attorneys' fees, expenses, and other legal fees.) The court will hold a hearing on December 1st, 2017, to decide whether to grant final approval to the settlement. Once the court approves the settlement, Spotify may choose to appeal. Payments to Settlement Class members will be made only after the settlement is finally approved and any appeals are resolved in favor of the settlement. How much will I receive? Approved Settlement Class Members will receive a minimum pro rata payment from the Net Settlement Fund based on the following criteria: Percentage equal to the number of streams of qualifying musical compositions divided by the total number of streams of all class members' claimed musical works. Approved Settlement Class Members will also receive payment of mechanical royalties using the statutory rate for future use of the musical compositions. So, depending on how many plays are in question, this could add up significantly. In addition, Spotify will establish a Mechanical Licensing Committee for affected Settlement Class Members. This committee will develop proposals to facilitate the mechanical licensing of content on Spotify's service. [GN] SWIFT TRANSPORTATION: Class Status Denied in "McKinsty" Lawsuit --------------------------------------------------------------- Swift Transportation Company disclosed in its Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that the court denied the McKinsty Motion for Class Certification on July 13. The Company also disclosed that it remains a defendant in 7 driver class actions (including the McKinsty case) involving employee compensation and pay practices specifically on California Wage, Meal, and Rest matters. These cases are: -- filed by John Burnell (individually and on behalf of all others similarly situated) against Swift Transportation Co., Inc instituted on March 22, 2010 currently pending in United States District Court for the Central District of California; -- filed by James R. Rudsell (individually and on behalf of all others similarly situated) against Swift Transportation Co. of Arizona, LLC and Swift Transportation Company instituted on April 5, 2012 currently pending in United States District Court for the Central District of California; -- filed by Lawrence Peck (individually and on behalf of all others similarly situated) against Swift Transportation Co. of Arizona, LLC instituted on September 25, 2014 currently pending in United States District Court for the Central District of California; -- filed by Lawrence Peck (individually and on behalf of all others similarly situated, and Peck Private Attorneys General Act ("PAGA") complaint) against Swift Transportation Co. of Arizona, LLC, et al. instituted on November 20, 2014 currently pending in Superior Court of California, County of Riverside; -- filed by Sadashiv Mares (individually and on behalf of all others similarly situated) against Swift Transportation Co. of Arizona, LLC instituted on February 27, 2015 currently pending in United States District Court for the Central District of California; -- filed by Rafael McKinsty(individually and on behalf of all others similarly situated) against Swift Transportation Co. of Arizona, LLC, et al. instituted on April 15, 2015 currently pending in United States District Court for the Central District of California; and -- filed by Thor Nilsen (individually and on behalf of all others similarly situated) against Swift Transportation Co. of Arizona, LLC instituted on October 15, 2015 currently pending in United States District Court for the Central District of California. The Company said, "The plaintiffs generally allege one or more of the following: that the Company 1) failed to pay the California minimum wage; 2) failed to provide proper meal and rest periods; 3) failed to timely pay wages upon separation from employment; 4) failed to pay for all hours worked; 5) failed to pay overtime; 6) failed to properly reimburse work-related expenses; and 7) failed to provide accurate wage statements." "Before and during 2016, the Rudsell, Peck, Peck PAGA, Mares, McKinsty, and Nilsen complaints were stayed, pending resolution of earlier-filed cases. "In May 2016, the Burnell plaintiffs were denied class certification. Their subsequent petition to appeal the decertification order was also denied. Following the Burnell plaintiffs' failure to certify the class, the stays on certain cases were lifted. "The Peck case is currently in discovery. "The parties in the Mares and McKinsty cases completed class certification briefing during the first half of 2017. On May 15, 2017, the court held oral argument on both the Mares and McKinsty Motions for Class Certification. "On May 23, 2017, the court denied the Mares Motion for Class Certification. The Mares plaintiffs have filed a petition with the Ninth Circuit Court of Appeals to appeal the court's denial of class certification. "On July 13, 2017, the court denied the McKinsty Motion for Class Certification. "Based on the current procedural nature of the cases, the final disposition of the matter and impact to the Company cannot be determined at this time. The likelihood that a loss has been incurred is remote." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. SWIFT TRANSPORTATION: "Fritsch" Plaintiffs Seek Class Status ------------------------------------------------------------ Swift Transportation Company disclosed in its Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017 that the plaintiffs in a yard hostler class action filed by Grant Fritsch are seeking class certification. Their motion was filed on July 17, 2017. The Company also disclosed that it remains a defendant in 2 yard hostler class actions (including the Fritsch case) involving employee compensation and pay practices specifically on California Wage, Meal, and Rest matters. These cases are: -- filed by Grant Fritsch (individually and on behalf of all others similarly situated) against Swift Transportation Company of Arizona, LLC and Swift Transportation Company instituted on January 28, 2016 currently pending in Superior Court of California, County of San Bernardino; and -- filed by Bill Barker, Tab Bachman, and William Yingling(individually and on behalf of all others similarly situated) against Swift Transportation Company of Arizona, LLC instituted on April 1, 2016 currently pending in United States District Court for the Eastern District of California. The Company said, "The plaintiffs, representing yard hostlers employed by the Company in California, generally allege one or more of the following: that the Company 1) failed to pay minimum wage; 2) failed to pay overtime and doubletime wages required by California law; 3) failed to provide accurate, itemized wage statements; 4) failed to timely pay wages upon separation from employment; 5) failed to reimburse for business expenses; and 6) failed to provide proper meal and rest periods." "On July 17, 2017, the Fritsch plaintiffs filed their motion for class certification. The Barker complaint is currently in discovery. The Company retains all of its defenses against liability and damages related to these lawsuits. Additionally, the Company intends to vigorously defend against the merits of the claims and to challenge certification. The final disposition of these matters and the impact on the Company cannot be determined at this time. The likelihood that a loss has been incurred is remote." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. SWIFT TRANSPORTATION: "Julian" Class Certification Still Pending ---------------------------------------------------------------- Swift Transportation Company is awaiting court action on a motion for conditional class certification in an Arizona Fair Labor Standards Act class action initiated by Pamela Julian (individually and on behalf of all others similarly situated), according to the Company's Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The class action was filed against Swift Transportation Inc., et al., on December 29, 2015, and currently pending in the U.S. District Court for the District of Arizona. The plaintiff alleges that the Company violated the FLSA by failing to pay its trainee drivers minimum wage for all work performed and by failing to pay overtime. In March 2016, the Company filed a motion to dismiss the plaintiff's overtime claims, which was granted by the district court in May 2016. The parties completed briefing on the plaintiff's Motion for Conditional Class Certification and are awaiting a ruling on the Motion from the Court. Swift Transportation said, "The Company retains all of its defenses against liability and damages for the remaining claims. Additionally, the Company intends to vigorously defend against the merits of the claims and to challenge certification. The final disposition of the matter and the impact on the Company cannot be determined at this time. The likelihood that a loss has been incurred is remote." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. SWIFT TRANSPORTATION: Trial on "Slack" Class Suit Set for Sept. --------------------------------------------------------------- Swift Transportation Company disclosed in its Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017 that trial for the Washington Overtime class action initiated by Troy Slack is set for September 2017. The Company also disclosed that it remains a defendant in 2 Washington Overtime Class actions, specifically these cases: -- filed by Troy Slack(individually and on behalf of all others similarly situated) against Swift Transportation Company of Arizona, LLC and Swift Transportation Corporation instituted on September 9, 2011, currently pending in United States District Court for the Western District of Washington; and -- filed by Julie Hedglin(individually and on behalf of all others similarly situated) against Swift Transportation Company of Arizona, LLC and Swift Transportation Corporation instituted on January 14, 2016 currently pending in United States District Court for the Western District of Washington. The Company said, "The plaintiffs allege one or more of the following, pertaining to Washington state-based drivers: that the Company 1) failed to pay minimum wage; 2) failed to pay overtime; 3) failed to pay all wages due at established pay periods; 4) failed to provide proper meal and rest periods; 5) failed to provide accurate wage statements; and 6) unlawfully deducted from employee wages." "The parties in the Slack matter recently completed dispositive motion briefing. On June 15, 2017, the parties engaged in mediation, but it was unsuccessful. The case is scheduled for trial in September 2017. "The parties in the Hedglin matter will be preparing class certification briefing beginning in August 2017. "The Company retains all of its defenses against liability and damages for both matters. Additionally, the Company intends to vigorously defend against the merits of the claims and to challenge certification. The final disposition of the matter and the impact on the Company cannot be determined at this time. The likelihood that a loss has been incurred is probable." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. SWIFT TRANSPORTATION: "Garza" Suit to Proceed in Maricopa County ---------------------------------------------------------------- Swift Transportation Company disclosed in its Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that the Arizona owner- operator class action initiated by Leonel Garza (individually and on behalf of all others similarly situated) will now proceed in the Maricopa County Superior Court. The case was instituted in January 30, 2004 against Swift Transportation Co., Inc. The Company said, "The putative class alleges that the Company improperly compensated owner-operators (later expanding the class to include employee drivers) using the contracted and industry standard remuneration based upon dispatched miles, instead of using a method of calculating mileage that the plaintiffs allege would be more accurate." "The original trial court's decision was to deny class certification of the owner-operators, which was reversed and reinstated several times by various courts prior to 2016. The class is currently certified, based on an appellate court's decision from July 2016. The Company filed a petition for review with the Arizona Supreme Court in August 2016, which was denied in January 2017. The matter will now proceed in the Maricopa County Superior Court. The final disposition of the matter and impact to the Company cannot be determined at this time. The likelihood that a loss has been incurred is remote." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. SWIFT TRANSPORTATION: Appeal on "Sheer" Suit Pending in 9th Cir. ---------------------------------------------------------------- Swift Transportation Company's appeal to the Ninth Circuit regarding the owner-operator misclassification class case initiated by Joseph Sheer, et al., is still pending, according to the Company's Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The plaintiffs of the case are Joseph Sheer, Virginia Van Dusen, Jose Motolinia, Vickii Schwalm and Peter Wood (individually and on behalf of all others similarly situated). The defendants are Swift Transportation Co., Inc., Interstate Equipment Leasing, Inc., Jerry Moyes, and Chad Killebrew. The case was instituted on December 22, 2009, and is currently pending in the U.S. District Court of Arizona and the Ninth Circuit Court of Appeals. The Company said, "The putative class alleges that the Company misclassified owner-operators as independent contractors in violation of the FLSA and various state laws, and that such owner- operators should be considered employees. The lawsuit also raises certain related issues with respect to the lease agreements that certain owner-operators have entered into with IEL. "For several years, the parties have been arguing over the proper venue in which to proceed. The plaintiffs argue that they signed contracts of employment, thus exempting them from arbitration under the Federal Arbitration Act, and claim that their case should be heard in court by a judge. The Company takes the position that these individuals signed independent contractor agreements and therefore can properly be required to submit their claims to arbitration. In January 2017, the district court issued an order finding that the plaintiffs had signed contracts of employment and thus the case could properly proceed in court. The Company has appealed this decision to the Ninth Circuit and the district court stayed the proceedings, pending resolution of the appeal. The Company intends to vigorously defend against any proceedings. The final disposition of the matter and impact to the Company cannot be determined at this time. The likelihood that a loss has been incurred is remote." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. SWIFT TRANSPORTATION: Merits Discovery in "Banks" Suit Underway --------------------------------------------------------------- Swift Transportation Company disclosed in its Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017 that the Indiana Fair Credit Reporting Act class action initiated by Melvin Banks (individually and on behalf of all others similarly situated) against subsidiary Central Refrigerated Service, Inc. is moving to merits discovery. The case was instituted in March 18, 2015 and is currently pending in the U.S. District Court for the District of Utah. The Company said, "The plaintiff alleges that Central Refrigerated Service, Inc. violated the Fair Credit Reporting Act by failing to provide job applicants with adverse action notices and copies of their consumer reports and statements of rights. "On May 2, 2017, the court certified the class. The parties will next move into merits discovery. The Company retains all of its defenses against liability and damages. Additionally, the Company intends to vigorously defend against the merits of the claims. The final disposition of the matter and the impact on the Company cannot be determined at this time. The likelihood that a loss has been incurred is remote." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. SWIFT TRANSPORTATION: Court Denies "Anderson" Class Status Bid -------------------------------------------------------------- Swift Transportation Company disclosed in its Form 10-Q filed on July 24, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that the court has denied the class certification request in a case initiated by Robin Anderson (individually and on behalf of all others similarly situated) related to pre-employment physical testing. The case was instituted on October 6, 2014 against Central Refrigerated Service, Inc., Workwell Systems, Inc., and Swift Transportation Company, and currently pending in the U.S. District Court for the Central District of California. The Company said, "The plaintiff alleges that pre-employment tests of physical strength administered by a third party on behalf of Central Refrigerated Service, Inc. had an unlawfully discriminatory impact on female applicants and applicants over the age of 40. The suit seeks damages under Title VII of the Civil Rights Act of 1964, the age Discrimination Act, and parallel California state law provisions, including the California Fair Employment and Housing Act. "Litigation is at a very preliminary stage and no trial date has been set. The plaintiff's renewed motion for class certification was denied by the court on July 6, 2017. The Company intends to vigorously defend against the merits of the plaintiff's claims and to oppose certification of any class of plaintiffs. The final disposition of this case and the financial impact cannot be determined at this time. The likelihood that a loss has been incurred is remote." Swift is a transportation solutions provider, headquartered in Phoenix, Arizona. As of March 31, 2017, the Company's fleet of revenue equipment included 18,656 tractors (comprised of 14,017 company tractors and 4,639 owner-operator tractors), 63,207 trailers, and 9,130 intermodal containers. The Company's four reportable segments are Truckload, Dedicated, Refrigerated (formerly "Swift Refrigerated"), and Intermodal. T ROWE PRICE: Still Faces Potential Class Suit on ERISA Breaches ---------------------------------------------------------------- T. Rowe Price Group, Inc. continues to defend itself against a putative class suit related to alleged violations of the Employee Retirement Income Security Act (ERISA), according to the Company's Form 10-Q filed on July 25, 2017 with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. On February 14, 2017, T. Rowe Price Group, Inc., T. Rowe Price Associates, Inc., T. Rowe Price Trust Company, current and former members of the management committee, and trustees of the T. Rowe Price U.S. Retirement Program were named as defendants in a lawsuit filed in the United States District Court for the District of Maryland. The plaintiff is a former employee who alleges breaches of ERISA's fiduciary duty and prohibited transaction provisions on behalf of a class of all participants and beneficiaries of the T. Rowe Price 401(k) Plan from February 14, 2011, to the time of judgment. The plaintiff is seeking certification of the complaint as a class action. The Company stated, "T. Rowe Price believes the claims are without merit and intends to vigorously defend the action. This matter is in the early stages of litigation and we cannot predict the eventual outcome or whether it will have a material negative impact on our financial results, or estimate the possible loss or range of loss that may arise from any negative outcome." T. Rowe Price Group, Inc. is a publicly owned investment manager. The firm provides its services to individuals, institutional investors, retirement plans, financial intermediaries, and institutions. The firm was previously known as T. Rowe Group, Inc. and T. Rowe Price Associates, Inc. The Company was founded in 1937 and is based in Baltimore, Maryland. TD AMERITRADE: District Judge Affirms Dismissal of Class Lawsuit ---------------------------------------------------------------- TD Ameritrade Holding Corporation disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that the District Judge in a putative class action issued an opinion and order on July 5 adopting the findings and recommendation of a Magistrate Judge, granting in part and denying in part, the defendants' motions to dismiss, and allowing plaintiffs to amend their complaint. An amended putative class action complaint was filed in the U.S. District Court for the District of Oregon in Lawrence Ciuffitelli et al. v. Deloitte & Touche LLP, EisnerAmper LLP, Sidley Austin LLP, Tonkon Torp LLP, TD Ameritrade, Inc., and Integrity Bank & Trust, Case No. 3:16-cv-580, on May 19, 2016. The putative class includes all persons who purchased securities of Aequitas Commercial Finance, LLC and its affiliates on or after June 29, 2011. Other groups of plaintiffs subsequently filed three non-class action lawsuits in Oregon Circuit Court, Multnomah County, against these and other defendants: Walter Wurster, et al. v. Deloitte & Touche et al., Case No. 16CV25920 (filed Aug. 11, 2016), Kenneth Pommier, et al. v. Deloitte & Touche et al., Case No. 16CV36439 (filed Nov. 3, 2016) and Charles Ramsdell, et al. v. Deloitte & Touche et al., Case No. 16CV40659 (filed Dec. 2, 2016). Several FINRA arbitrations are also pending against TD Ameritrade, Inc. The claims include allegations that the sales of Aequitas securities were unlawful, the defendants participated or materially aided in such sales in violation of the Oregon securities laws, and material misstatements and omissions were made. While the factual allegations differ in various respects among the cases, plaintiffs' allegations include assertions that in addition to serving as custodian for Aequitas securities, TD Ameritrade, Inc. recommended and referred investors to financial advisors as part of its advisor referral program for the purpose of purchasing Aequitas securities, and provided credibility to and developed a market for such securities. In the putative class action, plaintiffs allege that more than 1,500 investors were owed more than US$600 million on the Aequitas securities they purchased. In that case and the other cases, collectively 147 named plaintiffs allege a total of approximately US$114 million in losses plus other damages. Of that amount, 52 plaintiffs were TD Ameritrade, Inc. customers who allege approximately US$24 million in losses plus other damages. On July 5, 2017, the District Judge in the putative class action issued an opinion and order adopting the findings and recommendation of the Magistrate Judge, granting in part and denying in part, the defendants' motions to dismiss, and allowing plaintiffs to amend their complaint. TD Ameritrade said, "The Company intends to vigorously defend against the Aequitas litigation. The Company is unable to predict the outcome or the timing of the ultimate resolution of this litigation, or the potential losses, if any, that may result." TD Ameritrade is a provider of securities brokerage services and related technology-based financial services to retail investors, traders and independent registered investment advisors ("RIAs"). TEXAS DE BRAZIL: Haynes Claims Website Not Accessible to Blind -------------------------------------------------------------- Dennis Haynes, individually, on his behalf and on behalf of all other individuals similarly situated, Plaintiff, v. Texas de Brazil Corporation, Defendant, Case No. 0:17-cv-61564 (S.D. Fla., August 7, 2017), seeks injunctive and other relief, and attorney's fees, litigation expenses and costs pursuant to the Americans with Disabilities Act. Defendant operates a chain of stores in Broward County and throughout Florida. To complement its physical stores, it operates a website at http://www.texasdebrazil.com/which Haynes, a blind individual, attempted to access but to no avail because of incompatibility issued with screen reader software that he is using. [BN] Plaintiff is represented by: Jeannette E. Albo, Esq. Thomas B. Bacon, P.A. 9444 S.W. 69th Ct. Miami, FL 33156 Tel: (305) 502-4593 Email: jalbo@bellsouth.net - and - Thomas B. Bacon, Esq. THOMAS B. BACON, P.A. 644 North Mc Donald St. Mt. Dora, FL 32757 Tel: (954) 478-7811 Email: tbb@thomasbaconlaw.com TRANSWORLD SYSTEMS: Class Cert. Bid Due Sept. 1 in "Ferris" Case ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on August 8, 2017, in the case styled Richard Ferris v. Transworld Systems, Inc., et al., Case No. 1:16- cv-03703 (N.D. Ill.), relating to a hearing held before the Honorable Samuel Der-Yeghiayan. The minute entry states that: -- As stated on the record, the Defendants to provide counsel for the Plaintiff with definite dates for depositions; -- Plaintiff's motion to compel is stricken without prejudice; -- As further stated on the record, Defendant Convergent Outsourcing to answer outstanding discovery by August 25, 2017; -- Plaintiff's motion for class certification is stricken; -- Plaintiff is given until September 1, 2017, to file its motion for class certification; -- Defendants are given until October 6, 2017, to file their responses and Plaintiff is given until October 27, 2017, to file his replies; and -- Dispositive motion schedule is extended as follows: * Dispositive motions are to be filed by November 27, 2017; * Responses to dispositive motions, if any, are to be filed by December 18, 2017, and replies, if any, are to be filed by January 12, 2018; * Status hearing is reset to March 7, 2018, at 9:00 a.m.; and * Status hearing set for September 20, 2017, is stricken. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=E6u21RIh UNITED STATES: Al Obaidy Appeals USDC-CASF Order to Ninth Circuit ----------------------------------------------------------------- Plaintiff Omer Al Obaidy filed an appeal from a court ruling in the lawsuit styled OMER AL OBAIDY, on behalf of himself And all others similarly situated v. JOHN F. KELLY, Secretary Department of Homeland Security; REX W. TILLERSON, Secretary of State, U.S. Department of State; JEFF SESSION, The United States Attorney General; DAVID T. DONAHUE, (Acting) Assistant Secretary for Consular Affairs, U.S. Department of State; THOMAS D. HOMAN, Director Immigration and Custom Enforcement; DEPUTY DIRECTOR (Vacant) Immigration and Custom Enforcement; and ANDREW McCabe, (Acting) Director of the Federal Bureau of Investigation, in the U.S. District Court for the Northern District of California, San Francisco. The appellate case is captioned as In re: Omer Al Obaidy v. USDC- CASF, Case No. 17-72122, in the United States Court of Appeals for the Ninth Circuit. The action alleges claims under the Immigration and Nationality Act of 1952. Mr. Al Obaidy was born in Perugia, Italy, on July 27, 1968. He filed form DS-160 for visa entry to the United States on Nov. 11, 2014. He alleges that due to misrepresentation of a former attorney, he didn't apply for G-639 and analyze contents of FOIA/PA to determine the course of action necessary to apply for third time with the U.S. Embassy-Kyiv. Mr. Al Obaidy, of Buckinghamshire, United Kingdom, appears pro se.[BN] UNITED STATES: "Nio" Suit Seeks to Certify Selected Reserve Class ----------------------------------------------------------------- In the lawsuit styled KUSUMA NIO, et al., the Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., the Defendants, Case No. 1:17-cv-00998-ESH (D. Colo.), Haendel Crist Calisto Alves de Almeida, Prashanth Batchu, Lucas Calixto, Shu Cheng, Seung Joo Hong, Wanjing Li, Ye Liu, and Emeka Udeigwe move the Court for an order certifying a class consisting of all persons who: (i) have enlisted in the Selected Reserve of the Ready Reserve ("Selected Reserve") through the Military Accessions Vital to the National Interest (MAVNI) program; (ii) have served honorably with the U.S. military through participation in Selected Reserve drill periods or in an active-duty status; (iii) have received or will receive executed Form N-426s certifying their honorable service as members of the Selected Reserve or in active-duty status; (iv) have submitted or will submit N-400 Applications for Naturalization to United States Citizenship and Immigration Services (USCIS); and (v) have had or will have the processing or final adjudication of their naturalization applications (including naturalization itself) withheld or delayed because of a final processing hold that is based on their status as MAVNIs and pending (a) completion of enhanced United States Department of Defense (DoD) security screenings, (b) completion of an N-426 review by DoD to determine whether to revoke the previously-issued honorable service certifications, and/or (c) completion of a review by DoD of its policies regarding certification of honorable service or issuance of Form N-426s. The Plaintiffs also ask the Court for an Order appointing their attorneys as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=3mfbjtSM The Plaintiffs are represented by: Joseph J. LoBue, Esq. Douglas W. Baruch, Esq. Jennifer M. Wollenberg, Esq. Neaha P. Raol, Esq. Webster R. M. Beary, Esq. Shaun A. Gates, Esq. Katherine L. St. Romain, Esq. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP 801 17th Street, NW Washington, D.C. 20006 Telephone: (202) 639 7000 Facsimile: (202) 639 7003 Email: joseph.lobue@friedfrank.com douglas.baruch@friedfrank.com jennifer.wollenberg@friedfrank.com VANTIV INTEGRATED: Aug. 26 Class Action Settlement Hearing Set -------------------------------------------------------------- Mary Shinn, writing for Durango Herald, reports that Vantiv Integrated Payments could pay $52 million to settle a class-action lawsuit that claims the company charged customers unauthorized and marked-up fees. Businesses in Ohio, California and Tennessee claim that Mercury Payment Systems, a company founded in Durango, and a company it contracted with, Global Payments Direct, overcharged customers for the fees that major credit card companies require and imposed unauthorized fees. The lawsuit, filed in 2016, claims that Mercury committed fraud, breach of contract, unjust enrichment and violated the state Racketeer Influenced and Corrupt Organizations Act. Vantiv bought Mercury in 2014, making it part of the case. "Mercury (with the knowledge and assistance of Global) has for years carried out a widespread and systematic fraud on its customers. Without notice to merchants, Mercury has been surreptitiously and gradually inflating certain small, per-transaction fees," court documents claimed. The overcharged fees may add up to hundreds or thousands of dollars per merchant and tens or hundreds of millions of dollars in fraudulent profits, the claim states. Mercury does not admit fault, but it agreed to settle the case to avoid the expense, risk, inconvenience and distraction of continuing the case, court documents state. "We firmly believe that all of Mercury's business practices were both legal and transparent," said Adam Kiefaber, a spokesman for the company, in an email. Those who used Mercury or were referred by Mercury to Global for payment processing from Oct. 9, 2009, through May 16, 2017, and paid certain fees could receive money or credit in the settlement, according to information provided by the settlement administrator. A hearing scheduled for Aug. 26 will likely determine the amount owed to businesses in the settlement. Prosecuting attorney Adam Levitt said in an email the settlement is an example of the positive effect of class-action litigation. Several months after the lawsuit was filed, Mercury changed the worst of its practices and saved customers millions, he said. "We believe that it is a well-thought-out, well-researched, well- documented and strongly and effectively litigated settlement that does a lot of good for a lot of hardworking, American small business owners and other merchants. We hope that the court agrees and grants final approval to this settlement at the end of the month," he said in an email. [GN] VITAMIN SHOPPE: Faces Class Action Over Weight Loss Supplement -------------------------------------------------------------- Rachel Graf, writing for Law360, reports that Vitamin Shoppe Inc. has falsely advertised that a dietary supplement can contribute to weight loss when the product's active ingredients have no such benefits, according to a proposed class action removed to California federal court on Aug. 8. Andrea Nathan said the company's Garcinia Cambogia Extract dietary supplement claims to facilitate ''weight management" and "appetite control," but its only active ingredients, hydroxycitric acid and chromium, "are scientifically proven to be incapable of providing such weight-loss benefits." "Defendant markets and advertises the product as an effective weight-loss supplement through claims placed directly on the bottle product despite that it provides no such benefits," the suit said. Ms. Nathan, who filed the suit in California state court in June, alleges she paid about $20 in February for a 180-caplet bottle of the Garcinia Cambogia Extract based on its weight loss claims. Vitamin Shoppe purposefully made the misleading claims to entice the average consumer to buy the product, the suit said. But instead of purchasing a weight loss aid, the customers were actually purchasing a product that is "no more effective than a placebo," Ms. Nathan argued. Ms. Nathan says that she lost money due to the company's misrepresentations, since she paid more than she would have for similar products that did not make weight loss claims. "The senior officers and directors of defendant allowed the product to be sold with full knowledge or reckless disregard that the challenged claims are fraudulent, unlawful, and misleading," according to the filing. Ms. Nathan is seeking to represent a class of people who have bought Vitamin Shoppe's Garcinia Cambogia since June 26, 2013. Ms. Nathan is alleging violations of California's Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act, as well as breach of warranties. Counsel for the parties didn't respond on Aug. 9 to requests for comment. Ms. Nathan is represented by Paul K. Joseph of The Law Office of Paul K. Joseph PC. Vitamin Shoppe is represented by Amy B. Alderfer and Brett N. Taylor -- btaylor@cozen.com -- of Cozen O'Connor. The suit is Andrea Nathan v. Vitamin Shoppe Inc., case number 3:17-cv-01590 in the U.S. District Court for the Southern District of California. [GN] VL FUNDING: "McHarris" Suit Removed to E.D. New York ---------------------------------------------------- Tameika L. McHarris, an individual, on behalf of himself and those similarly situated, Plaintiff, v. VL Funding LLC, Navient Solutions, Inc., Weltman, Weinberg & Reis Co., LPA, Defendants, Case No. 504969/2017 (N.Y. Sup., March 13, 2017), is removed to the United States District Court for the Eastern District of New York on August 7, 2017 under Case No. 1:17-cv-04616. McHarris alleges violation of the Fair Debt Collection Practices Act by the Defendant. [BN] Plaintiff is represented pro se. Defendant is represented by: Ashley B. Huddleston, Esq. VEDDER PRICE P.C. 1633 Broadway, 31st Floor New York, New York 10019 Tel: (212) 407 7700 Fax: (212) 407 7799 Email: ahuddleston@vedderprice.com W&T OFFSHORE: Faces "Fontenot" Suit Alleging Misclassification -------------------------------------------------------------- JOSEPH FONTENOT, individually and for others similarly situated, Plaintiff, v. W&T OFFSHORE, INC., Defendant, Case No. 4:17-cv- 02320 (S.D. Tex., July 28, 2017), alleges that Plaintiff, and the other workers like them, were typically scheduled for 12 hour shifts, 7 days a week, for weeks at a time. But W&T does not pay all of these workers overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA, W&T pays these workers a day-rate and improperly classifies them as independent contractors. W&T Offshore, Inc. is a global oil and gas exploration and production company. Plaintiff works for W&T as a well site supervisor.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77005 Phone: 713-352-1100 Fax: 713-352-3300 Email: mjosephson@mybackwages.com Email: adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com WATERSTONE MORTGAGE: Fails to Pay Loan Originators, Werner Claims ----------------------------------------------------------------- DOUG WERNER, both individually and on behalf of all other similarly situated persons v. WATERSTONE MORTGAGE CORPORATION, Case No. 3:17-cv-00608 (W.D. Wisc., Aug. 4, 2017), is brought to remedy the alleged failure of Waterstone to pay the Plaintiff and similarly situated mortgage loan originators wages required by the Fair Labor Standards Act. Waterstone is a corporation having tts headquarters and office in Pewaukee, Wisconsin. Waterstone is southeastern Wisconsin's largest mortgage lender with more than $2.5 billion in annual loan origination volume. The Company is a wholly owned subsidiary of an FDIC bank, WaterStone Bank SSB, which has assets of more than $1.8 billion.[BN] The Plaintiff is represented by: Dan Getman, Esq. GETMAN, SWEENEY & DUNN, PLLC 260 Fair Street Kingston, NY 12401 Telephone: (845) 255-9370 Facsimile: (845) 255-8649 E-mail: dgetman@getmansweeney.com mdunn@getmansweeney.com WELLS FARGO: "Miller" Suit Seeks to Certify Collective Action ------------------------------------------------------------- In the lawsuit captioned BEVERLY MILLER and ROGER PLATE., on behalf of themselves and all others similarly situated, the Plaintiffs, v. WELLS FARGO BANK, N.A., the Defendant, Case No. 2:16-cv-05597-JHS (E.D. Pa.), the Plaintiffs ask the Court to conditionally certify a collective action and to issue notice pursuant to the federal Fair Labor Standards Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=yziUhZi3 The Plaintiffs are represented by: Farsheed Fozouni, Esq. Allen R. Vaught, Esq. Melinda Arbuckle, Esq. Farsheed Fozouni, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Telephone: (214) 521 3605 Facsimile: (214) 520 1181 E-mail: avaught@baronbudd.com marbuckl@baronbudd.com ffozouni@baronbudd.com - and - Gregory G. Paul, Esq. MORGAN & PAUL, PLLC First and Market Building 100 First Avenue, Suite 1010 Pittsburgh, PA 15222 Telephone: (412) 259 8375 Facsimile: (888) 822 9421 E-mail: gregpaul@morgan-paul.com WELLS FARGO: "Hancock" Sues Over Collateral Protection Insurance ---------------------------------------------------------------- PAUL HANCOCK, individually, and on behalf of other members of the general public similarly situated, Plaintiff, vs. WELLS FARGO & COMPANY, a DELAWARE CORPORATION, and WELLS FARGO BANK, N.A., a NATIONAL ASSOCIATION, Defendants, Case No. 3:17-cv-04324-MEJ (N.D. Cal., July 30, 2017), is a proposed class action brought by Plaintiff on behalf of all persons who obtained an auto loan from Defendants and who were required to pay for a Collateral Protection Insurance (CPI) policy. Plaintiff challenges Defendants' practice of secretly imposing such CPI on their customers and automatically deducting the cost of such insurance from their bank accounts. Defendant Wells Fargo Bank, N.A., is a subsidiary of Wells Fargo & Company, and is a national bank organized and existing as a national association under the National Bank Act.[BN] The Plaintiff is represented by: Daniel Alberstone, Esq. Roland Tellis, Esq. Mark Pifko, Esq. Jonas P. Mann, Esq. BARON & BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, CA 91436 Phone: (818) 839-2333 Fax: (818) 986-9698 Email: dalberstone@baronbudd.com rtellis@baronbudd.com mpifko@baronbudd.com WEYERHAEUSER CO: Berger & Montague Files TJI Joists Class Action ---------------------------------------------------------------- Berger & Montague, P.C., a national plaintiffs' law firm with a long history of successfully prosecuting complex mass tort and class action cases, on Aug. 8 disclosed that it has filed class action lawsuits in federal courts located in New Jersey, Colorado, and Delaware on behalf of its clients. The cases allege claims on behalf of all individuals in the United States who have been harmed by their purchase or pending purchase of homes containing TJI Joists with Flak Jacket Protection manufactured by Weyerhaeuser Company. Berger & Montague, P.C. anticipates that it will file additional lawsuits on behalf of consumers affected by the TJI Joists in other states including Arkansas, Connecticut, Massachusetts, Minnesota, Missouri, New Hampshire, New York, Ohio, Pennsylvania, and others. The class action complaints filed in federal court in New Jersey, Colorado, and Delaware allege that Weyerhaeuser's TJI Joists with Flak Jacket Protection manufactured after December 1, 2016 are defective. The TJI Joists' "Flak Jacket" fire-protection coating includes a formaldehyde-based resin that results in the "off- gassing" of high levels of formaldehyde, a known carcinogen. The formaldehyde fumes build up quickly and invade consumers' homes with a pickle-like odor, which can cause families, visitors, and workers to suffer from headaches, stinging and tearing eyes, dizziness, nausea, coughing, wheezing, and asthma-type symptoms. The TJI Joists' defective nature is so severe that class members' homes are uninhabitable, and the TJI Joists require immediate repair or removal. Berger & Montague, P.C. is helping its clients evaluate their possible remediation options and is working with leading experts in the United States on formaldehyde pollution and indoor environmental engineering and testing. The TJI Joists with Flak Jacket Protection were installed between December 2016 and July 2017, including in many new housing developments by major builders. Berger & Montague has assembled a large team of lawyers, investigators and experts who are providing counsel and representation to affected individuals across the United States. "Learning that your new home contains toxic levels of formaldehyde, a cancer-causing pollutant, is just horrible," said Berger & Montague, P.C. Managing Shareholder, Shanon J. Carson -- scarson@bm.net -- who leads the Firm's Consumer Protection Group. "Our firm is proud to represent these families, and we intend to make sure that they are compensated for all of the damages caused by this product, including the inconveniences of being forced to temporarily or permanently move. We are also committed to ensuring that any proposed repairs will safely and permanently solve this problem, will not expose families to further health risks, and will not further diminish the value of these homes." Plaintiffs and the proposed class members are seeking to recover all expenses caused by the defective TJI Joists with Flak Jacket Protection, including repair, removal, replacement, relocation, and delayed closing expenses. They also seek to ensure that repairs do not expose homeowners to any risks of long-term formaldehyde exposure. Plaintiffs are also seeking all available statutory damages and penalties, and punitive damages. Affected homeowners and homebuyers should contact Shanon J. Carson at rel="nofollow">scarson@bm.net or (215) 875-4656 for a free evaluation of their potential case. Additional information about the lawsuits is available at www.bergermontague/weyerhaeuser. Berger & Montague, P.C. -- http://www.bergermontague.com-- is a national plaintiffs' law firm based in Philadelphia with additional offices in Minneapolis and Washington D.C. The Firm litigates consumer protection cases in federal and state courts throughout the United States and employs over 65 attorneys. The Firm has played lead roles in major cases for over 47 years, resulting in recoveries of over $30 billion for its clients. The Firm's attorneys have extensive experience representing injured parties in product liability disputes. [GN] WILMINGTON TRUST: Brown Files Suit Over Henny Penny Share Buy ------------------------------------------------------------- WILMA BROWN, on behalf of the HENNY PENNY CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN, and on behalf of a class of all other persons similarly situated, Plaintiff, v. WILMINGTON TRUST, N.A., as successor to WILMINGTON TRUST RETIREMENT and INSTITUTIONAL SERVICES COMPANY, Defendant, Case No. 3:17-cv-00250-WHR (S.D. Ohio, July 27, 2017), alleges that Plaintiff suffered losses when Wilmington Trust authorized the Plan to buy shares of Henny Penny for more than fair market value. The case avers that as Trustee for the Plan, it was Wilmington Trust's exclusive duty to ensure that any transactions between the Plan and the Sellers, and between the Plan and Henny Penny, including acquisitions of Henny Penny stock by the Plan and loans to the Plan, were fair and reasonable and to ensure that the Plan paid no more than fair market value. On December 30, 2014, the Plan purchased from party in interest sellers, members of the Cobb family, 1,600,000 shares of Henny Penny common stock for $165,000,000, which was paid for by a $165,000,000 loan from Henny Penny to the Plan with an interest rate of 2.74% per annum. Wilmington Trust, N.A. is successor to Wilmington Trust Retirement and Institutional Services Company, the trustee for the Henny Penny Corporation Employee Stock Ownership Plan. Henny Penny bills itself as "one of the country's leading designers and manufacturers of premium foodservice cooking, holding and display equipment for thousands of restaurants, supermarkets and institutions around the world."[BN] The Plaintiff is represented by: Brian K. Murphy, Esq. MURRAY MURPHY MOUL + BASIL LLP 1114 Dublin Road Phone: (614) 488-0400 Fax: (614) 488-0401 Email: murphy@mmmb.com - and - Gregory Y. Porter, Esq. Ryan T. Jenny, Esq. BAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Phone: (202) 463-2101 Fax: (202) 463-2103 Email: gporter@baileyglasser.com Email: rjenny@baileyglasser.com * Class Actions Over Data Collection Methods Surge -------------------------------------------------- Glenn Minnis, writing for Cook County Record, reports that a growing number of U.S. companies are turning to measures like biometric tools to validate time entries and other forms of tracking an employee's movements and actions. And as technology rapidly changes, it has also sparked a surge of litigation over data collection methods, and the levels of protection dedicated to electronically-gleaned data. A simple scan of an employee's fingerprints can conclusively validate a worker and who they are signing in as, seemingly doing away with employer concerns such as "buddy punching." Still, the issue remains perplexing for employers, who now must face potential lawsuits, as well. In Illinois, for instance, the Biometric Information Protection Act allows individuals to sue over alleged violations, leaving some companies exposed to "liquidated damages" of as much as $5,000 per violation, along with attorney and expert witness fees. "People become more nervous as breaches happen," Joseph Lazzarotti, an attorney at the New Jersey office of law firm Jackson Lewis, told the Cook County Record. "There has not been a lot of case law on the issue, and the Illinois law is unique. In the end, some companies might try to find different ways of timekeeping." In the meantime, Mr. Lazzarotti advises companies that still rely on the technology to take precautions, including making sure they don't keep any personal information for longer than needed and by obtaining written consent from targeted individuals prior to collecting any data. "Employees need to understand tech and what it does," Mr. Lazzarotti said. "They need to think of that before just dumping on employees. They need to work to have employees embrace the process." In Illinois, both the parent company of Mariano's supermarkets and the Intercontinental Hotel Group have been hit with class action lawsuits alleging they improperly collected and stored employee fingerprints and other biometric data. Presently, 48 states have enacted laws requiring notification of a breach of "personal information." From state to state, the definition of personal information varies, but is largely not limited to just Social Security numbers. Laws in Illinois, Connecticut, Iowa and Nebraska also include biometric information. Mounting confusion aside, Mr. Lazzarotti predicts that such technology will continue to grow as it becomes even more convenient. "It's much easier to put a thumb on everything and not have to remember passwords," he said. "With that, you're likely to see more laws in more states." Meantime, Mr. Lazzarotti is closely monitoring developments in biometric technology, including an employer in Wisconsin that recently offered to implant a microchip in employees to help with time tracking and plant security. "Some have raised the question of, if that might lead to medical conditions, or the matter of what happens when an employee leaves and how much monitoring is too much," Mr. Lazzarotti said. "Employees need to always be vigilant with data and remember that nothing is completely secure. Tech helps us to be more productive, but we also have to be concerned about making people more comfortable with it." [GN] * German Politicians Argue Over Adoption of US-Style Class Action ----------------------------------------------------------------- Dietmar Neuerer, writing for Handeslblatt Global, reports that barely a day goes by in Germany without bad tidings for car drivers, as the emissions cheating scandal engulfs ever more models, driving bans loom in German cities and the prices of second-hand cars tumble. Following the Aug. 2 "diesel summit" between the country's leading automakers and government representatives, more than five million owners in Germany will have to take their cars into garages for software updates aimed at throttling their emissions of nitrogen oxide. But the summit has failed to have the desired impact of reassuring customers. On the contrary: many are even more irate than before and want to take legal action against the carmaker or dealer that saddled them with a vehicle that's dirtier, and hence less valuable, than they were told when they bought it. The potential for blackmail with unjustified lawsuits is immense due to the high costs involved and the impact of companies being publicly pilloried. Thousands of individual lawsuits have already piled up in courts up and down the country. The scandal cries out for class-action suits of the kind that are commonplace in the US, but German law makes no provision for that type of lawsuit at present. American and German diesel owners have both suffered damage from Volkswagen's global emissions deception, yet the automaker has treated consumers across the Atlantic very differently. Consumers in the United States have received billions of dollars in compensation, while Germans have been left empty handed. This is despite the fact that the scale of the emissions scandal is much larger in Germany, where diesel vehicles are more popular with drivers. In fact, more than four times as many cars, some 2.8 million, had cheat software installed compared to the United States, where 500,000 cars were affected. The unequal treatment boils down to a major difference in the German and American legal systems. While Americans can join forces in class-action suits to level the playing field and extract concessions from powerful firms, consumers in Germany have to make their case individually, often leaving them powerless before deep-pocketed corporate legal teams. So it is handy for German drivers that the September 24 election is around the corner because the issue is fast turning into a political battleground in the campaign. There is a renewed push in response to the emissions scandal to create a system akin to US-style class-action suits, but the proposal is controversial. The center-left Social Democrats, junior partners to Chancellor Angela Merkel's Christian Democrat Union party (CDU), have drafted a law to introduce such suits and are piling on the pressure, not least because they sense this is something that could help them narrow Ms. Merkel's current 15-point lead in opinion polls. The opposition Greens also back legislation before the end of the current parliamentary term. The conservatives are divided. The CDU has resisted swift action over concern it would be too costly for corporations, while Bavarian governor Horst Seehofer, the shoot-from-the-hip leader of the Christian Social Union (CSU), the Bavarian sister party to the CDU, voiced support for class-action suits in the diesel scandal. Volker Kauder, the powerful head of the conservatives' parliamentary group, said: "The conservatives will review in the coming parliamentary term how consumers can safeguard their rights more easily. The introduction of model lawsuits in consumer law can be a means to that end." He added however that the legislation drafted by Justice Minister Heiko Maas of the Social Democrats was "insufficient." The Association of German Chambers of Commerce and Industry (DIHK) also voiced skepticism about the draft law, saying it could hurt industry. "The potential for blackmail with unjustified lawsuits is immense due to the high costs involved and the impact of companies being publicly pilloried," DIHK's chief legal expert, Stephan Wernicke, told Handelsblatt. If collective legal protection is made available to such plaintiffs it will endanger Germany's judicial reputation. He said allowing class-action cases would allow British lawsuit- financing companies and US law firms to elbow their way into the German market and pursue a business model that had little to do with compensating consumers or businesses. "If collective legal protection is made available to such plaintiffs it will endanger Germany's judicial reputation," he warned. "The law isn't an investment asset." But Volkert Vorwerk, from the German Association of Lawyers, does not share Mr. Wernicke's fear that Germany will become an overly litigious society like the United States. The German legal system is too different to simply import American methods, Mr. Vorwerk said. Germany has its own legal mechanisms that it can use as a guide. For example, collective legal action, in a very narrow sense, is already possible for investors. A court can designate the case of one plaintiff as a model for all other similar cases. VW shareholders have used this avenue to sue the automaker for allegedly informing them too late about emissions cheating. Germany could also open this legal avenue to consumers such as VW diesel owners. Mr. Vorwerk said consumers need a "sharp sword" to wield against companies who have done them harm. "What's important is effective legal protection to compensate for individual damage," he said. The problem with the justice ministry's proposal is that it relies on consumer associations, which are not competent to represent individuals in such cases, Mr. Vorwerk said. Though class-action suits are not technically possible, consumer groups are looking for creative ways to pursue collective action within the current legal framework in Germany. The online platform Myright, for example, is gathering claims against VW. So far, 30,000 diesel owners have registered with the group. The plan is for Myright to represent the diesel owners in court with the US law firm Hausfeld by its side. It's unclear, however, whether or not the plan will work. [GN] * Pillsbury Winthrop Attorneys Discuss CFPB Arbitration Rule ------------------------------------------------------------ Mercedes K. Tunstall, Esq. -- mercedes.tunstall@pillsburylaw.com -- and Andrew Caplan, Esq. -- andrew.caplan@pillsburylaw.com -- of Pillsbury Winthrop Shaw Pittman LLP, in an article for Lexology, report that financial Institutions may need to revise consumer contracts to remove class action waivers in preparation for a March 2018 federal rule. On July 19, the U.S. Consumer Financial Protection Bureau, the federal regulator for a sweeping range of depository and non- depository consumer financial services companies (including the largest of U.S. banks), published a final rule that makes it illegal for many of the CFPB's regulated entities to include consumer class action waivers in pre-dispute arbitration agreements. The Rule's effective date is September 18, 2017, and applies to contracts entered into after March 19, 2018. (The Rule does not apply to pre-existing contracts.) As a result, covered consumer contracts entered into after March 19, 2018, will need to: (a) remove language in pre-dispute arbitration provisions that bars consumers from participating in class actions; and (b) add language informing consumers of their rights to participate in class actions. The Rule will also require such companies to provide information on individual arbitration awards to the CFPB for publication in a public database (redacting consumers' private financial information). Although the Rule does not outright prohibit pre-dispute arbitration agreements themselves (as many expected the CFPB might), companies will need to reconsider the economics behind offering consumers a full arbitration program in light of a future reality of increased class actions. Unlike the majority of the CFPB's regulations, which cover specific financial products or services, the Rule applies across a wide swath of traditional and online consumer financial products and services, including among other things deposit accounts, credit cards and consumer reporting products. (Arbitration agreements, themselves, are already prohibited in residential mortgage transactions, so the Rule does not cover those.) Although the Rule was issued as "final" (as opposed to a mere proposal), the Rule is currently subject to fierce political headwinds from Congressional Republicans, the White House and industry trade groups, all of whom strongly oppose the CFPB's current director, Richard Cordray, an Obama appointee. Indeed, the House of Representatives has already passed a resolution that, if adopted by the Senate and signed by the President, would nullify the Rule and bar the CFPB from issuing a similar rule in the future without an express Congressional directive. The catch is that the procedure Congress would invoke to nullify the Rule, the Congressional Review Act, must be used within 60 legislative days of the Rule's publication of the Federal Register. While the House of Representatives has taken the first step, it remains to be seen if the Senate will have opportunity to act in light of other legislative priorities. Notwithstanding these potential threats to the Rule from Congress, as of the time of this writing, the CFPB appears to be moving full steam ahead. As a result, companies that fall within the Rule's coverage are well advised to begin reviewing their consumer agreements and dispute resolution procedures in preparation for the distinct possibility that prohibitions on consumer class action waivers become the law in March 2018. 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