/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170901.mbx C L A S S A C T I O N R E P O R T E R Friday, September 1, 2017, Vol. 19, No. 173 Headlines 20/20 COMMUNICATIONS: Cobble Moves to Certify Class of Managers ABMAR GK US: Mall Inaccessible to Wheelchair, "Brito" Says ACCOUNT CONTROL: Faces "Pinyuk" Suit in Eastern District of NY AL LARSON: Faces "Ledezma" Suit in California Superior Court AMERICAN CORADIUS: Faces "Gavzer" Lawsuit Alleging TCPA Violation AMERICAN PARA: "Sanchez" Suit Remanded to California State Court APOLLO EDUCATION: Ninth Circuit Appeal Filed in "Lomingkit" Suit ARCONIC INC: Sells Reynobond for Wrong Uses, "Howard" Suit Says ATOSSA GENETICS: 9th Cir. Vacates Dismissal of Securities Suit BANK OF AMERICA: Faces Class Action Over Stock Loan Collusion BRISTOL-MYERS SQUIBB: Health One Appeals Ruling to Sixth Circuit CABELA'S INC: Ex-Investors Drop Class Action Over Bass Pro Sale CALIFORNIA PHYSICIANS: Gendreau Appeals Decision to Ninth Circuit CARLTON MANOR: 6th Cir. Affirms Summary Judgment in "McKinney" CENTENE MANAGEMENT: Faces "Gudger" Suit Alleging FLSA Violation CHAPEI LLC: Court Denies Wang's Bid to Certify Collective Action CHRYSLER: Briefs Filed in Jeep Grand Cherokee Gas Tank Case CITGO: Settles Unsolicited Text Message Class Action for $8.3MM CITIBANK NA: NY Court Narrows Claims in Antitrust Suit CLUBCORP HOLDINGS: Faces "Hopkins" Suit Over Sale to Apollo CONTINENTAL CASUALTY: Court Denies Bids to Dismiss "Dolins" Suit CONTINENTAL GENERAL: GAFRI Dropped as Defendant in "Fastrich" CONTRACT TRANSPORT: "Burlaka" Suit Seeks Unpaid Overtime Pay DAIRY FARMERS: Vermont Court Narrows Claims in Antitrust Suit DEPUY ORTHOPAEDICS: Attorney Wants Hip Implant Trial Halted DOMINO'S PIZZA: "Brown" Action Seeks Reimbursements EQUITY RESIDENTIAL: Munguia-Brown Moves to Certify Two Classes ERIE INDEMNITY: Beltz Appeals W.D. Pa. Ruling to Third Circuit FACEBOOK INC: Settlement in "Campbell" Gets Final Approval FACEBOOK INC: Message Scanning Settlement OK'd Despite Objections FARE DEPOT: Faces "Portillo" Suit in C. Dist. of Cal. FIFTH THIRD: Can Compel Arbitration in "Jenkins" FCRA Suit FIFTH THIRD: Sued by Malagese Over Collection of Overdraft Fees FORTERRA INC: "Forrester" Hits IPO Flop, Non-disclosure of Facts FRANCIS AIR: Mouillet-Gold Seeks to Recover Wages Under FLSA GENERAL MOTORS: Another Ignition Switch Bellwether Trial Set GENPACT SERVICES: Faces "Pinyuk" Suit in E.D. of New York GLOBE LIFE: Court Denies Class Certification in "Proctor" Suit GOOGLE INC: 9th Cir. Affirms Final Nod in Privacy Litigation Deal GUIDANCE SOFTWARE: Merger Docs Lacking Projections, Claims "Berg" HCL COLLECTIONS: Faces "Linden" Suit in Dist. of Mass. HILTON HOTELS: Bid to Dismiss Amended "White" Suit Partly Granted HOFFMAN-LA ROCHE: Appeals Court Reinstates 2,100 Accutane Suits HYUNDAI MOTOR: Court Denies Bid to Dismiss "Riaubia" Suit JANSSEN PHARMACEUTICALS: Xarelto Bellwether Trial Begins JOIE DE VIVRE: Ninth Circuit Appeal Filed in "Cornelius" Suit KEY FOOD: Faces "Delgado" Suit Alleging FLSA, NYLL Violations LEAPFROG ENTERPRISES: Nov. 7 Class Cert. Date in Securities Suit LPL FINANCIAL: Court Partly Grants Bid to Dismiss "Charter" Suit LUMBER LIQUIDATORS: Court Affirms TCCWNA Ruling in "Kaufman" Suit MAGICJACK VOCALTEC: Misstates Broadsmart's Value, Freedman Claims MAGNET MEDIA: "Brashear" Seeks Recovery of Back Pay, Overtime MARION COUNTY, IN: Court Certifies Class in "Washington" Suit MARTHA STEWART: Stockholder Suit Over MLSO Merger Dismissed MDL 1566: Proofs of Claim Due Sept. 26 MIDLAND CREDIT: Faces "Gilbert" Suit in Western District of Va. MISSOURI: State High Ct. Denies Bid for Mandamus in "Bartlett" MRS BPO: Dinaples Seeks to Certify Class of Consumers Under FDCPA NEW ORLEANS MILLWORKS: Maldonado Moves for Class Certification NEW YORK, NY: "Fernandes" Labor Suit Seeks Unpaid Overtime Wages NIANTIC INC: California Judge Halts Suits Over Pokemon Go PERRIGO CO: Wilson's Bid for Reconsideration in "Roofers" Denied PHC INC: Shear Appeals Ruling in Maz Partners Suit to 1st Circuit PHOENIX TECHNOLOGY: Miller Seeks to Recover Unpaid Overtime Wages PROBALANCE INC: Court Partly Grants Bid to Dismiss "Ulrich" Suit RBS CITIZENS: Court Adopts Special Master's Report in Reinig Suit RBS CITIZENS: Court Certifies Class in "Reinig" FLSA Suit RED PARROT: Senior Care Moves to Certify Two Classes Under TCPA ROCKET FUEL: Federman Sues Over Proposed Acquisition by Sizmek ROSEVILLE, MI: Court Consolidates "Garner," "Cordia" Class Suits RPM MORTGAGE: "Nanclares" Suit Remanded to Calif. State Court SALIX PHARMACEUTICALS: $210MM Deal in "Woburn" Gets Final Nod SAREPTA THERAPEUTICS: 1st Cir. Affirms Dismissal of "Cobra" Suit SEI/AARONS INC: Court Grants Summary Judgment Bid in "Krise" Suit SLM CORP: Sixth Circuit Appeal Filed in "Parchman" Class Suit SPRING REST: Fails to Pay Proper Minimum/OT Wages, Hernandez Says SQUARETRADE INC: Appeals Ruling in "Starke" Suit to 2nd Circuit STATE FARM: Can Compel Appraisal in "Shearer" Insurance Suit STEALTH SECURITY: Illinois Court Certifies Class in TCPA Suit SUN GARD: "Carter" Seeks Unpaid Overtime, Claims Retaliation SUPER STOP: Unpaid Overtime Sought in "Galdamez" Labor Suit SURETEMPS LLC: Faces "Lee" Lawsuit Alleging FLSA Violation SYSCO GUEST: Connecticut Court Denies Move to Dismiss TCPA Suit TAKATA CORP: Reveals Monthly Faulty Air Bag Litigation Fees TEXAS: 5th Cir. Affirms Class Certification in "Yates" Suit THAI PALACE: Peters Seeks to Recover Minimum Wages Under FLSA THANK YOU: Catzin Appeals S.D.N.Y. Decision to Second Circuit UBER TECHNOLOGIES: "Mejia" Suit Challenges No-Firearms Policy UBS FINANCIAL: Court Compels Arbitration in "Roman" UNIFUND CCR: Wins OK of "Kramer" Suit Deal; Hearing on Jan. 17 UNITED STATES: HM Suit Dismissed in Part; Bid to Certify Denied UNITED STATES: Electrical Welfare Fund Appeals Order to 4th Cir. UPS: Settles EEOC's Disability Discrimination Case for $2 Million US RENAL CARE: Seeks 9th Cir. Review of Ruling in "Whitaker" Suit USAA CASUALTY: Tenth Circuit Appeal Filed in "Archuleta" Suit VANGUARD GROUP: Seeks 3rd Cir. Review of Order in "Taksir" Suit VOLVO CARS: 7th Cir. Reverses Dismissal of "Laurens" Suit WEBMD HEALTH: Conflict of Interest Taints Merger Says "Akerman" WECTEC LLC: Faces "Fleetwood" Adversary Class Suit in New York WOLF APPLIANCE: Court Narrows Claims in "Kail" ZIRX CONSUMER: Settlement in "Pascual" Has Final Approval * CPLR Article 9 Useful for Consumer Class Action Plaintiffs Asbestos Litigation ASBESTOS UPDATE: Baby Powder Talc Leads to $417MM in Cancer Case ASBESTOS UPDATE: Emerson Electric Units Lose First Jury Trial ASBESTOS UPDATE: FACT Act Won't Prevent Abuse of Double-Dipping ASBESTOS UPDATE: Burnt Shed in Nottinghamshire Has Asbestos ASBESTOS UPDATE: Madison County Negligent in Dealing with Asbestos ASBESTOS UPDATE: Judge Lee Issues New MSC for Asbestos Cases ASBESTOS UPDATE: Phoenix Not Covered for $1.5MM Suit Costs ASBESTOS UPDATE: Ex-Pullman Standard Worker Exposed to Asbestos ASBESTOS UPDATE: 2 Schools in Queensland Closed Due to Asbestos ASBESTOS UPDATE: Union Worried About Safety After Asbestos Find ASBESTOS UPDATE: Asbestos-related Work Site Violations on Rise ASBESTOS UPDATE: Simmons Secures $4.6MM Jury Verdict vs. Jenkins ASBESTOS UPDATE: Asbestos Confirmed in Innisfil Library ASBESTOS UPDATE: 5th Cir. Nixes $2.5MM Excess Coverage Ruling ASBESTOS UPDATE: Man Files Suit vs. Beazer Over Asbestos Exposure ASBESTOS UPDATE: Woman Alleges Cancer Caused by Asbestos Exposure ASBESTOS UPDATE: Construction Co. Fined for Asbestos Release ASBESTOS UPDATE: Stoush Erupts Over Asbestos Claims at Mills ASBESTOS UPDATE: Asbestos Found in Madison County Govt Center ASBESTOS UPDATE: NY App. Div. Affirms Duro Indemnity Contribution ASBESTOS UPDATE: PI Claims vs. Volkswagen Dismissed in "Haynes" ASBESTOS UPDATE: Bid for Rule 11 Sanctions vs. Borg-Warner Denied ASBESTOS UPDATE: Summary Judgment on Damages in "Storer" Denied ASBESTOS UPDATE: PI Claims vs. Lone Star in "Roper" Dropped ********* 20/20 COMMUNICATIONS: Cobble Moves to Certify Class of Managers --------------------------------------------------------------- The Plaintiff in the lawsuit styled JAMES COBBLE, on behalf of himself and those similarly situated v. 20/20 COMMUNICATIONS, INC., A Foreign Profit Corporation, Case No. 2:17-cv-00053-TAV- MCLC (E.D. Tenn.), files an expedited motion to conditionally certify collective action and facilitate notice to potential opt- in plaintiffs pursuant to the Fair Labor Standards Act. Mr. Cobble, on behalf of himself and others similarly situated, seeks entry of an order permitting, under court supervision, notice to all "Field Sales Managers" employed by the Defendant within the last three years, who did not receive full and proper payment of time-and-a-half wages for all overtime hours worked for the Defendant. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UIMSs9tI The Plaintiff is represented by: Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A 600 North Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 327-30313 E-mail: afrisch@forthepeople.com ABMAR GK US: Mall Inaccessible to Wheelchair, "Brito" Says ---------------------------------------------------------- CARLOS G. BRITO, individually and on behalf of all other similarly situated mobility-impaired individuals, Plaintiff, v. Abmar GK US, LLC, a Colorado Limited Liability Company and Big Lots Stores, Inc., an Ohio Corporation, Defendants, Case No. 1:17-cv-01959 (D. Colo., August 14, 2017), seeks injunctive relief, a declaration of rights, attorneys' fees, litigation expenses and costs pursuant to the Americans with Disabilities Act. Abmar GK US, LLC and Big Lots Stores, Inc., own and operate shopping plazas, Union Square Center and Big Lots at Union Square, located at 5035-5085 N. Academy Blvd., Colorado Springs, CO 80918. Plaintiff allegedly could not access parking spaces designated for the disabled due to its incline and lack of access aisles in order to unload and transfer from his car. Aisles, fixtures, tables and displays of the establishment are too narrow for wheelchairs, he adds. [BN] Plaintiff is represented by: Anthony J. Perez, Esq. GARCIA-MENOCAL, & PEREZ, P.L. 4937 SW 74th Court, No. 3 Miami, FL 33155 Telephone: (305) 553-3464 Facsimile: (305) 553-3031 E-Mail: ajperezlaw@gmail.com agmlaw@bellsouth.net mpomares@lawgmp.com ACCOUNT CONTROL: Faces "Pinyuk" Suit in Eastern District of NY -------------------------------------------------------------- A class action lawsuit has been filed against Account Control Technology, Inc. The case is styled as Nataliya Pinyuk, on behalf of herself and all other similarly situated consumers, Plaintiff v. Account Control Technology, Inc., Defendant, Case No. 1:17-cv- 05058 (E.D. N.Y., August 26, 2017). Account Control Technology, Inc. is a debt collector agency. The Plaintiff is represented by: Maxim Maximov, Esq. Maxim Maximov, LLP 1701 Avenue P Brooklyn, NY 11229 Tel: (718) 395-3459 Fax: (718) 408-9570 Email: m@maximovlaw.com AL LARSON: Faces "Ledezma" Suit in California Superior Court ------------------------------------------------------------ A class action lawsuit has been filed against AL Larson Boat Shop, a California Corporation. The case is styled as Jose Ledezma, on behalf of himself and others similarly situated, Plaintiff v. AL Larson Boat Shop, a California Corporation and Does 1 to 100, Inclusive, Defendants, Case No. BC673902 (Cal. Super. Ct., August 25, 2017). AL Larson Boat Shop is a boat repair shop. The Plaintiff is represented by: Joseph Lavi, Esq. Lavi & Ebrahimian, LLP 8889 W. Olympic Blvd. Suite 200 Beverly Hills, CA 90211 Fax: (310) 432-0001 Tel: (310) 432-0000 Email: jlavi@lelawfirm.com AMERICAN CORADIUS: Faces "Gavzer" Lawsuit Alleging TCPA Violation ----------------------------------------------------------------- ADAM GAVZER, individually and on behalf of all others similarly situated, Plaintiff, v. AMERICAN CORADIUS INTERNATIONAL LLC, and DOES 1-10 Defendants, Case No: 4:17-cv-04481-DMR (N.D. Cal., August 7, 2017), alleges that ACI routinely made collection and other calls to persons using automatic telephone dialing systems (ATDS) and/or artificial or pre-recorded voice in violation of the Telephone Consumer Protection Act. The case claims Plaintiff received unauthorized calls that harmed Plaintiff because they caused him to suffer a nuisance and an invasion of privacy. Further, the calls wasted Plaintiff's time and money, as they required him to take time out of his schedule to deal with them, they trespassed on his use of the phone for which he was charged a monthly fee, they used up space on his voicemail, and they depleted the battery on his cellular telephone. ACI is in the business of debt collection, and attempts to and does collect debt from consumers throughout the United States. Plaintiff is among those persons whose cellular telephone number AMERICAN CORADIUS INTERNATIONAL LLC called while attempting to collect a debt from a borrower who is not a party to this action.[BN] The Plaintiffs is represented by: Bryan Kemnitzer, Esq. Nancy Barron, Esq. Kristin Kemnitzer, Esq. KEMNITZER, BARRON, & KRIEG, LLP 445 Bush St., 6th Floor San Francisco, CA 94108 Phone: (415) 632-1900 Email: bryan@kbklegal.com nancy@kbklegal.com kristin@kbklegal.com - and - IAN LYNGKLIP, Esq. PRIYA BALI, Esq. LYNGKLIP & ASSOCIATES, PLC 24500 Northwestern Hwy #206 Southfield, MI 48075 Phone: (248) 208-8864 Email: ian@michiganconsumerlaw.com priya@michiganconsumerlaw.com AMERICAN PARA: "Sanchez" Suit Remanded to California State Court ---------------------------------------------------------------- Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, remanded the case captioned SHANNON SANCHEZ, Plaintiff, v. AMERICAN PARA PROFESSIONAL SYSTEMS INC, et al., Defendants, Case No. 5:17-cv- 01835-EJD(N.D. Cal.) to the Santa Clara County Superior Court on the basis that the Defendants have failed to show that the amount in controversy exceeds the jurisdictional threshold. On Feb. 27, 2017, Sanchez filed the action against APPS in Santa Clara County Superior Court, alleging a variety of labor violations. The complaint was styled as both a class action and a Private Attorney General Action under the California Private Attorney General Act ("PAGA"). On March 31, the Defendants removed the action to the Court under the Class Action Fairness Act ("CAFA"). Sanchez now moves to remand on the basis that the amount in controversy is less than CAFA's $5 million jurisdictional threshold. Judge Davila finds that APPS has not established that the amount in controversy exceeds CAFA's $5 million threshold. Under APPS' calculation, the total amount in controversy (excluding PAGA claims) is approximately $5.3 million. Penalties under Section 1197.1 amount to approximately $1.8 million. Thus, excluding Section 1197.1 penalties, the amount in controversy is less than $5 million. The Judge also finds that an award of attorneys' fees is unwarranted APPS' basis for removal was objectively reasonable because it was based on good-faith calculations of the amount in controversy. Accordingly, Judge Davila granted Sanchez's motion to remand and denied Sanchez's request for attorneys' fees. He directed the Clerk to remand the case to Santa Clara County Superior Court and close the file. A full-text copy of the District Court's Aug. 22, 2017 Order is available at https://is.gd/HGIjOl from Leagle.com. Shannon Sanchez, Plaintiff, represented by Larry W. Lee -- lwlee@diversitylaw.com -- Diversity Law Group, P.C.. Shannon Sanchez, Plaintiff, represented by Nicholas Rosenthal -- nrosenthal@diversitylaw.com -- Diversity Law Group & William Lucas Marder, Polaris Law Group, LLP. American Para Professional Systems Inc, Defendant, represented by Alan Victor Friedman -- Alan.Friedman@mto.com -- Munger Tolles & Olson LLP, Terry Edward Sanchez -- Terry.Sanchez@mto.com -- Munger Tolles & Olson LLP & Marja-Liisa Overbeck -- Mari.Overbeck@mto.com -- Munger, Tolles & Olson LLP. A.P.P.S OF CALIFORNIA, Defendant, represented by Alan Victor Friedman, Munger Tolles & Olson LLP, Terry Edward Sanchez, Munger Tolles & Olson LLP & Marja-Liisa Overbeck, Munger, Tolles & Olson LLP. APOLLO EDUCATION: Ninth Circuit Appeal Filed in "Lomingkit" Suit ---------------------------------------------------------------- Plaintiffs Rameses Te Lomingkit, Government of Guam Retirement Fund and National Shopmen Pension Fund filed an appeal from a court ruling in their lawsuit titled Rameses Lomingkit, et al. v. Apollo Education Group, Inc., et al., Case No. 2:16-cv-00689-JAT, in the U.S. District Court for the District of Arizona, Phoenix. As previously reported in the Class Action Reporter on August 7, 2017, Judge James A. Teilborg granted in part the Defendants' Request for Judicial Notice in Support of Moving Defendants' Motion to Dismiss; and granted the Defendants' Motion to Dismiss [Plaintiffs'] Second Amended Complaint. The lawsuit is a consolidated class action proceeding. Defendant Apollo is an Arizona-based company that owns and operates proprietary postsecondary educational institutions and is one of the largest private education providers in the world. In particular, University of Phoenix ("UOP") is Apollo's largest university, accounting for approximately 90% of Apollo's total enrollment and revenues. The remaining Defendants are various individuals who served as Apollo's officers and directors between Nov. 13, 2013 and Oct. 21, 2015 ("Class Period"). The Plaintiffs purchased Apollo stock during the Class Period. The appellate case is captioned as Rameses Lomingkit, et al. v. Apollo Education Group, Inc., et al., Case No. 17-16634, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by September 12, 2017; -- Transcript is due on October 12, 2017; -- Appellants Government of Guam Retirement Fund, Rameses Te Lomingkit and National Shopmen Pension Fund's opening brief is due on November 22, 2017; -- Appellees Apollo Education Group, Inc., Gregory W. Cappelli, Peter V. Sperling and Brian L. Swartz's answering brief is due on December 22, 2017; -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants RAMESES TE LOMINGKIT, Individually and on behalf of all others similarly situated, and NATIONAL SHOPMEN PENSION FUND are represented by: Robert Russell Henssler, Jr., Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: bhenssler@rgrdlaw.com Plaintiff-Appellant GOVERNMENT OF GUAM RETIREMENT FUND is represented by: Richard Glenn Himelrick, Esq. TIFFANY & BOSCO, P.A. 2525 E. Camelback Road, 7th Floor Phoenix, AZ 85016 Telephone: (602) 255-6021 Facsimile: (602) 255-0103 E-mail: rgh@tblaw.com - and - Brandon Marsh, Esq. Blair Allen Nicholas, Esq. David Stickney, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 12481 High Bluff Drive San Diego, CA 92130 Telephone: (858) 793-0070 E-mail: brandon.marsh@blbglaw.com blairn@blbglaw.com davids@blbglaw.com Defendants-Appellees APOLLO EDUCATION GROUP, INC., PETER V. SPERLING, GREGORY W. CAPPELLI and BRIAN L. SWARTZ are represented by: Michael Bongiorno, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: (212) 937-7220 Facsimile: (212) 230-8888 E-mail: michael.bongiorno@wilmerhale.com - and - Brian K. Mosley, Esq. David B. Rosenbaum, Esq. OSBORN MALEDON, PA 2929 N. Central Avenue Phoenix, AZ 85012 Telephone: (602) 640-9379 E-mail: bmosley@omlaw.com drosenbaum@omlaw.com ARCONIC INC: Sells Reynobond for Wrong Uses, "Howard" Suit Says --------------------------------------------------------------- MARTIN HOWARD, Individually and On Behalf of All Others Similarly Situated v. ARCONIC INC. and KLAUS KLEINFELD, Case No. 2:17-cv- 01057-MRH (W.D. Pa., August 11, 2017), is a securities class action on behalf of all purchasers of Arconic common or preferred stock between November 4, 2013, and June 26, 2017, inclusive seeking to pursue remedies under the Securities Exchange Act of 1934. Throughout the Class Period, without alerting investors, Arconic knowingly marketed and sold its Reynobond panels with a combustible, Polyethylene core for inappropriate uses, such as for use on residential high-rise towers, the Plaintiff alleges. On June 14, 2017, fire consumed a 24-story housing block, the Grenfell Tower, in London, United Kingdom, killing at least 79 and injuring 70 people. Investigators believe that the speed with which the Grenfell Tower fire spread resulted from Arconic's Reynobond siding that clad the building's exterior. Because of Arconic's siding, the flames spread from the outside of the building, engulfing the building in a cylinder of fire. Arconic is a global provider of lightweight multi-material solutions, focused on the aerospace market in addition to serving the automotive, industrial gas turbine, commercial transportation, and building and construction markets. The Company also provides titanium, aluminum, nickel-based super alloy, and specialty alloy solutions. Arconic is incorporated in Pennsylvania and its corporate center is located in Pittsburgh, Pennsylvania. Klaus Kleinfeld was, until forced to resign in April 2017, the Chairman of Arconic's Board of Directors and its Chief Executive Office.[BN] The Plaintiff is represented by: Edwin J. Kilpela, Jr., Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: ekilpela@carlsonlynch.com - and - Jacob A. Goldberg, Esq. THE ROSEN LAW FIRM, P.A. 101 Greenwood Avenue, Suite 440 Jenkintown, PA 19046 Telephone: (215) 600-2817 Facsimile: (212) 202-3827 E-mail: jgoldberg@rosenlegal.com - and - Laurence Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: lrosen@rosenlegal.com pkim@rosenlegal.com ATOSSA GENETICS: 9th Cir. Vacates Dismissal of Securities Suit -------------------------------------------------------------- In the case captioned IN RE ATOSSA GENETICS INC. SECURITIES LITIGATION. MIKO LEVI; BANDAR ALMOSA; GREGORY HARRISON; NICHOLAS COOK, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. ATOSSA GENETICS, INC.; STEVEN C. QUAY, an individual; CHRISTOPHER BENJAMIN, an individual; KYLE GUSE, an individual; SHU-CHIH CHEN, an individual; JOHN BARNHART, an individual; STEPHEN J. GALLI, an individual; ALEXANDER CROSS, an individual; H. LAWRENCE REMMEL, an individual, Defendants- Appellees, No. 14-35933(9th Cir.), Judge Ronald M. Gould of the U.S. Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and vacated in part, the district court's dismissal of the Plaintiffs' amended securities fraud class action complaint; and remanded the case to the district court for further proceedings consistent with his opinion. Atossa develops and markets products used to detect precancerous conditions that foreshadow the development of breast cancer. In 2009, Atossa acquired the patent rights to a product called the Mammary Aspirate Specimen Cytology Test System ("MASCT System"). The MASCT System is a pump designed to extract nipple aspirate fluid ("NAF") from women's breasts, after which the NAF can be used to detect or predict breast cancer. Before Atossa purchased the patent rights to the MASCT system, the product had been cleared by the U.S. Food and Drug Administration pursuant to a procedure called "premarket notification," or the "510(k) process." After first marketing the MASCT System as a standalone product, Atossa began to market it in combination with a diagnostic tool called the ForeCYTE Test. Atossa never obtained FDA clearance for either the ForeCYTE Test or the combination of the MASCT System and the ForeCYTE Test. In November of 2012, Atossa raised capital through an initial public offering ("IPO"). As part of the IPO, Atossa filed offering documents with the Securities and Exchange Commission ("SEC"), which described the MASCT System as cleared by the FDA. The documents did not state whether the ForeCYTE Test had been FDA-cleared. At the time of the IPO, Atossa thought that it could market the ForeCYTE Test without seeking FDA clearance, but also thought that the FDA was likely to require such clearance in the future. Following the IPO, Atossa and Quay made the public statements at issue in this appeal. First, on Dec. 20, 2012, Atossa filed a Form 8-K report with the SEC, announcing Atossa's financial results for the third quarter of 2012. In the same filing, Atossa describes itself as focused on preventing breast cancer through the commercialization of patented, FDA-cleared diagnostic medical devices and patented, laboratory developed tests that can detect precursors to breast cancer up to eight years before mammography. On February 22, 2013, News-Medical.Net published an interview with Quay wherein he was asked about "the new test developed by Atossa Genetics." Two days before the interview was published, on Feb. 20, 2013, the FDA sent a warning letter to Atossa. The letter stated that during an inspection of Atossa's laboratory, the FDA discovered that Atossa had modified the method by which the MASCT system collected NAF, without Atossa obtaining a new 510(k) clearance. According to the FDA, this meant that the MASCT System was misbranded and adulterated in violation of the Federal Food, Drug, and Cosmetic Act. The FDA explicitly advised that the modified MASCT System required submission of a new 510(k) premarket notification, and that the ForeCYTE Test required independent clearance before marketing. The FDA also explicitly advised that Atossa's website and product labels were displaying false or misleading statements because they characterized the MASCT System as "FDA-approved" and the ForeCYTE Test as "FDA Cleared." Five days later, on Feb. 25, 2013, Atossa filed a Form 8-K report with the SEC giving notice that it had received the warning letter from the FDA. However, Atossa did not at all mention the FDA's concerns regarding (i) the ForeCYTE Test's lack of FDA approval, or (ii) Atossa's false or misleading marketing materials. On March 15, 2013, Atossa responded to the FDA informing of its intention to submit a new 510(k) premarket notification for the MASCT System, and asked the FDA to post Atossa's response on the FDA's website. Atossa submitted a new 510(k) premarket notification to the FDA, but in August of 2013 it withdrew the new notification after Atossa became aware that the FDA was unlikely to grant a clearance. Atossa did not disclose to investors that it withdrew the new notification. Meanwhile, on Aug. 14, 2013, Atossa filed a Form 10-Q quarterly report with the SEC, which stated that Atossa was reasonably confident in its responses to the FDA's warning letter. On Sept. 19, 2013, the FDA told Atossa that it must recall both the MASCT System and the ForeCYTE Test because Atossa was marketing the products without FDA clearance. Six days later on Sept. 25, 2013, Quay participated in a public webinar via Moneyshow.com titled "How to Invest Ahead of Breast Cancer Awareness Month." Quay did not during that webinar mention the FDA's recall demand. On Oct. 4, 2013, Atossa publicly disclosed that it was recalling the MASCT System and ForeCYTE Test from the market. Plaintiff Nicholas Cook filed a putative class action against Atossa, several of its directors and officers, and three securities firms that underwrote Atossa's IPO. The district court appointed Miko Levi, Bandar Almosa, and Gregory Harrison as the Lead Plaintiffs. In the amended complaint, the Plaintiffs allege violations of Sections 11 and 15 of the Securities Act of 1933; Sections 10(b) and 20(a) of the Securities Exchange Act of 1934; and SEC Rule 10b-5. The district court dismissed the amended complaint without prejudice. The district court first concluded that the Plaintiffs lacked statutory standing to assert their Section 11 claims. Second, the district court concluded that the Plaintiffs did not plead "materiality" or "falsity" with sufficient particularity for their Section 10(b) and Rule 10b-5 claims. And finally, the district court concluded that their Section 15 and Section 20(a) claims, concerning control person liability, failed because such claims require proof of a primary violation of the securities laws, which in the district court's view the Plaintiffs did not properly allege. In this appeal, the Plaintiffs challenge the district court's decision only as to the Section 10(b), Section 20(a), and Rule 10b-5 claims. Judge Gould held that the Plaintiffs have sufficiently alleged that the following were materially false or misleading: (i) Quay's statement quoted in Atossa's Dec. 20, 2012 Form 8-K filing describing the ForeCYTE Test as "FDA-cleared"; (ii) Quay's statement during his interview with News-Medical.Net that the ForeCYTE test had "gone through all of the FDA clearance process"; (iii) Atossa's Form 8-K filing on Feb. 25, 2013, giving notice of the FDA's warning letter; and (iv) Quay's statement during his interview with the Wall Street Transcript that "FDA clearance risk has been achieved." As to these alleged misstatements and omissions, he reversed in part the district court's dismissal of the Plaintiffs' Section 10(b) and Rule 10b-5 claims. As to all other alleged misstatements and omissions, he affirmed in part the district court's dismissal of the Plaintiffs' Section 10(b) and Rule 10b-5 claims. Because the district court's dismissal of the Plaintiffs' Section 20(a) claims was based on its dismissal of the Plaintiffs' Section 10(b) and Rule 10b-5 claims, the Judge vacated the district court's dismissal of the Section 20(a) claims. He remanded to the district court for further proceedings consistent with his opinion. The parties will bear their own costs on appeal. A full-text copy of the Ninth Circuit's Aug. 18, 2017 Opinion is available at https://is.gd/EZNETt from Leagle.com. Marc Ian Gross -- igross@jrlawplc.com -- (argued), Jeremy Lieberman -- jalieberman@pomlaw.com -- and Michael J. Wernke, Pomerantz LLP, New York, New York; Jeffrey C. Block -- jeff@blockesq.com -- Whitney E. Street -- whitney@blockesq.com -- and Mark A. Delaney, Block & Leviton LLP, Boston, Massachusetts; Dan Drachler -- ddrachler@zsz.com -- Zwerling Schachter & Zwerling LLP, Seattle, Washington; for Plaintiffs-Appellants. Gregory L. Watts -- gwatts@wsgr.com --(argued), and Barry M. Kaplan -- bkaplan@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Seattle, Washington; Cheryl W. Foung -- cfoung@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Palo Alto, California; for Defendants- Appellees. BANK OF AMERICA: Faces Class Action Over Stock Loan Collusion ------------------------------------------------------------- B. Colby Hamilton, writing for New York Law Journal, reports that calling the $1.72 trillion international stock loan market good for the banks that do the lending but "bad for virtually everyone else," a trio of pension funds filed a class action suit against six of the world's largest financial firms on Aug. 17. The Iowa Public Employees' Retirement System, Orange County Employees Retirement System and Sonoma County Employees' Retirement Association accused the banks of conspiring to violate federal antitrust laws "to keep stock loan trading frozen in an inefficient and opaque [over-the-counter] market in order to preserve their privileged position as intermediaries on every trade," according to the suit brought in the U.S. District Court for the Southern District of New York. According to the suit, Bank of America, Credit Suisse, Goldman Sachs, JPMorgan Chase & Co., Morgan Stanley and UBS worked together since at least 2009 to obstruct efforts to create a competitive electronic exchange, while using their stranglehold over the stock loan market to overcharge investors. Stock lending allows investors to temporarily transfer stock from one investor to another, and plays a vital role underlying most short-selling activity, according to the plaintiffs. Short selling without stock borrowing is illegal under U.S. Securities and Exchange Commission rules, they noted. The market for securities on loan today is nearly $2 trillion. "Through various improper means, the likes of Goldman Sachs and Morgan Stanley have for years colluded to maintain their power over this little-known-but-lucrative corner of Wall Street," Cohen Milstein Sellers & Toll partner Michael Eisenkraft -- meisenkraft@cohenmilstein.com -- attorney for the plaintiffs, said in a statement. "In doing so, they deprive investors of money that should flow to retirees, families and other hard-working Americans." Unlike other financial products that are trade on exchanges, plaintiffs argue that the banks involved have "yet to embrace modern electronic trading protocols, and little has changed in the way trades are executed." The alleged collusion has worked to block the development of competitive platforms such as AQS in the United States and SL-x in Europe. When firms attempted to use the exchanges, the defendants allegedly took steps to stop them. Well-known hedge funds like SAC Capital and Renaissance Capital were allegedly threatened if they opted to use AQS. Bank of America's use of the AQS exchange resulted in a threat from Goldman Sachs to sever business ties if it continued, according to the plaintiffs. Instead, borrowers are forced to use a service called EquiLend, which is owned by the banks. The suit is the latest to go after large financial institutions for allegedly working to deny investors access to open exchanges not controlled by the banks. A number of suits have been filed over swap exchanges, specifically in the wake of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which mandated an opening up of a number of market exchanges. Spokespersons for Bank of America, Goldman Sachs, JPMorgan, Morgan Stanley and Credit Suisse declined to comment. A representative for UBS could not be reached. [GN] BRISTOL-MYERS SQUIBB: Health One Appeals Ruling to Sixth Circuit ---------------------------------------------------------------- Plaintiff Health One Medical Center, Eastpointe P.L.L.C. filed an appeal from a court ruling entered in its lawsuit entitled Health One Medical Center, Eastpointe P.L.L.C. v. Mohawk, Inc., et al., Case No. 5:16-cv-13815, in the U.S. District Court for the Eastern District of Michigan at Ann Arbor. As previously reported in the Class Action Reporter on August 3, 2017, the Hon. Judith E. Levy granted the Defendants' motions to dismiss the lawsuit. Because the amended complaint is dismissed, the Plaintiff's motion to certify the class is denied as moot, according to the Court's opinion and order. Health One filed the putative class action against the Defendants for alleged violations of the Telephone Consumer Protection Act and acts constituting common law conversion and statutory conversion under Michigan law. The appellate case is captioned as Health One Medical Center, Eastpointe P.L.L.C. v. Mohawk, Inc., et al., Case No. 17-1973, in the United States Court of Appeals for the Sixth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant brief is due on October 2, 2017; -- Appellee brief is due on October 30, 2017; and -- A Telephone Mediation conference has been scheduled for September 14, 2017, at 2:00 p.m. (ET) with Mariann Yevin.[BN] Plaintiff-Appellant HEALTH ONE MEDICAL CENTER, EASTPOINTE P.L.L.C., a Michigan Professional Limited Liability Company, individually and as the representative of a class of similarly- situated persons, is represented by: Phillip Andrew Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. LaSalle Street, Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@classlawyers.com Defendant-Appellee BRISTOL-MYERS SQUIBB COMPANY is represented by: Debra L. Bogo-Ernst, Esq. MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 782-0600 Facsimile: (312) 706-8474 E-mail: dernst@mayerbrown.com Defendant-Appellee PFIZER, INC., is represented by: Rebecca J. Schwartz, Esq. SHOOK, HARDY & BACON L.L.P. 2555 Grand Boulevard Kansas City, MO 64108 Telephone: (816) 474-6550 Facsimile: (816) 421-5547 E-mail: rschwartz@shb.com CABELA'S INC: Ex-Investors Drop Class Action Over Bass Pro Sale --------------------------------------------------------------- Tom McParland, writing for Delaware Business Court Insider, reports that four investors in Cabela's Inc. on July 27 dropped class action claims accusing the outdoor sporting retailer of failing to disclose important details related to the company's $5 billion sale to Bass Pro Shops, saying that Cabela's has addressed its concerns with additional disclosures. The company was represented by James W. Ducayet -- jducayet@sidley.com -- Nilofer Umar -- numar@sidley.com -- and Simone Jones -- simone.jones@sidley.com -- of Sidley Austin and Chad M. Shandler -- shandler@rlf.com -- and Christine Dealy Haynes -- haynes@rlf.com -- of Richards, Layton & Finger. The plaintiffs were represented by Van Gorder and Brian D. Long and Gina M. Serra of Rigrodsky & Long. The consolidated case was captioned In re Cabela's Stockholder Litigation. CALIFORNIA PHYSICIANS: Gendreau Appeals Decision to Ninth Circuit ----------------------------------------------------------------- Plaintiff Timothy Gendreau filed an appeal from a court ruling in the lawsuit entitled Timothy Gendreau v. California Physicians' Service, et al., Case No. 3:15-cv-02455-CAB-AGS, in the U.S. District Court for the Southern District of California, San Diego. As previously reported in the Class Action Reporter, the class action lawsuit was filed in the Superior Court of the State of California for the County of San Diego and removed to the District Court. The case alleges violations of the Employee Retirement Income Security Act. The appellate case is captioned as Timothy Gendreau v. California Physicians' Service, et al., Case No. 17-56227, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Timothy Gendreau's opening brief is due on October 13, 2017; -- Appellees Blue Shield of California Life & Health Insurance Company and California Physicians' Service's answering brief is due on November 13, 2017; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant TIMOTHY GENDREAU, individually and on behalf of himself and all others similarly situated, is represented by: Gayle M. Blatt, Esq. David S. Casey, Jr., Esq. Jeremy Keith Robinson, Esq. CASEY, GERRY, SCHENK, FRANCAVILLA, BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: gmb@cglaw.com dcasey@cglaw.com jrobinson@cglaw.com Defendants-Appellees CALIFORNIA PHYSICIANS' SERVICE, DBA Blue Shield of California, and BLUE SHIELD OF CALIFORNIA LIFE & HEALTH INSURANCE COMPANY are represented by: John Michael LeBlanc, Esq. John T. Fogarty, Esq. MANATT, PHELPS & PHILLIPS, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064 Telephone: (310) 312-4228 Facsimile: (310) 914-5866 E-mail: jleblanc@manatt.com CARLTON MANOR: 6th Cir. Affirms Summary Judgment in "McKinney" -------------------------------------------------------------- In the case captioned DEBI MCKINNEY, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. CARLTON MANOR NURSING & REHABILITATION CENTER, INC., et al., Defendants, SOVRAN MANAGEMENT COMPANY, LLC, Defendant-Appellee, No. 16-3895 (6th Cir.), Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit affirmed the district court's decision granting summary judgment for Sovran. In July 2013, the Ohio Department of Health cited Carlton Manor for failing to meet 27 of the federal health and safety regulations. It ordered the nursing home to come into compliance by January 2014, with the warning that it would lose its status as a Medicare and Medicaid provider if it did not. The nursing home hired Sovran, a management consultant for nursing homes, to help correct the problems. By January 2014, the nursing home had resolved 26 of the deficiencies. Yet the 27th, the physical structure of the building, proved more difficult to fix. In consultation with Sovran, the nursing home presented the Department with a 12-month plan to repair the building. That was not enough. In mid- January, the Department rejected the plan and began the process of revoking the nursing home's operating license. The nursing home closed soon after. Carlton Manor gave little notice to its employees about the closure. In response, McKinney filed this putative class action against the nursing home and Sovran under the Worker Adjustment and Retraining Notification Act. The Act requires employers to give employees 60 days' notice before they close a plant. Carlton Manor defaulted, and the district court entered a judgment against it. That did not do the employees much good, because the nursing home had no assets for the employees to collect. That left Sovran, the only solvent Defendant in the case. But that did not help either. The district court concluded that Sovran was not liable under the Act because the nursing home, not Sovran, was the employer, and the nursing home, not Sovran, decided to close the facility. As a result, the district court reasoned, Sovran had no obligation to warn the nursing home workers of the closing. It granted summary judgment for Sovran and thus had no need to rule on McKinney's class certification motion. McKinney appealed. Judge Sutton explains that a lender-borrower relationship, in which the loan agreement allows the lender to take control of a borrower who cannot repay a loan, offers a poor analogy to a consultant-consultee relationship that is arm's length from beginning to end. Sovran offered management advice to Carlton Manor at the nursing home's behest and did not become the owner of the nursing home in the process. The consulting arrangement allowed the nursing home to ask Sovran to leave at any time. And it allowed the management consultant to leave as well, which is just what it did after helping Carlton Manor make the necessary arrangements to shut down the nursing home. Thus, the district court ruled as a matter of law for Sovran. Accordingly, Judge Sutton affirmed. A full-text copy of the Sixth Circuit's Aug. 18, 2017 Opinion is available at https://is.gd/n4cMdU from Leagle.com. ARGUED: Samuel Heldman -- sheldman@gmail.com -- THE GARDNER FIRM, Washington, D.C., for Appellant. ON BRIEF: Samuel Heldman, THE GARDNER FIRM, Washington, D.C., for Appellant. Mary E. Olsen, M. Vance McCrary -- vmccrary@thegardnerfirm.com -- THE GARDNER FIRM, Mobile, Alabama, Kenneth R. Cookson -- kcookson@keglerbrown.com -- KEGLER BROWN HILL & RITTER, Columbus, Ohio, for Appellant. CENTENE MANAGEMENT: Faces "Gudger" Suit Alleging FLSA Violation --------------------------------------------------------------- JODY GUDGER, on behalf of herself and those similarly situated, Plaintiff, v. CENTENE MANAGEMENT COMPANY, LLC, a Foreign Limited Liability Company, and SUNSHINE STATE HEALTH PLAN, INC, Florida Profit Corporation, Defendant, Case No: 2:17-cv-14281-JEM (S.D. Fla., August 7, 2017), alleges that Plaintiff and similarly situated class members regularly worked in excess of sixty (60) hours per week from the beginning of her/their employment until Defendants changed their policy to prohibit overtime hours from being worked starting on or April 16, 2017. Throughout her/their employment, Defendants failed to compensate Plaintiff and similarly situated class members at a rate of one and one-half times their regular rate for all hours worked in excess of forty (40) hours in a single workweek, says the complaint. Further, Defendants allegedly failed to track or maintain any valid records of the number of hours worked by Plaintiff and did not maintain a time-keeping system for employees that complied with the Fair Labor Standards Act's record keeping requirement Defendants are owned by the Centene Corporation, a multi-line healthcare enterprise. Plaintiff provided case management and care coordination services.[BN] The Plaintiffs is represented by: Richard Celler, Esq. Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A. 7450 Griffin Road, Suite 230 Davie, FL 33314 Phone: (866) 344-9243 Fax: (954) 337-2771 Email: richard@floridaovertimelawyer.com noah@floridaovertimelawyer.com CHAPEI LLC: Court Denies Wang's Bid to Certify Collective Action ---------------------------------------------------------------- The Hon. Michael A. Shipp denied the Weigang Wang and Hailong Yu's motion to certify collective action in the lawsuit titled WEIGANG WANG, et al. v. CHAPEI LLC d/b/a WOK EMPIRE, et al., Case No. 3:15-cv-02950-MAS-DEA (D.N.J.). The Court has considered the parties' submissions and decides the matter without oral argument, according to the order. For the reasons set forth in the accompanying Memorandum Opinion, and for other good cause shown, the Motion is denied. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=RX2cdpXY CHRYSLER: Briefs Filed in Jeep Grand Cherokee Gas Tank Case ----------------------------------------------------------- Katheryn Hayes Tucker, writing for Daily Report, reports that as their battle over a multimillion-dollar judgment heads to the Georgia Supreme Court, lawyers for the family of Remi Walden and the maker of the Jeep vehicle in which he died have filed briefs framing two dramatically different views of the same trial. Chrysler's lead appellate counsel, Thomas Dupree Jr., a Washington, D.C.-based partner with Gibson, Dunn & Crutcher, and plaintiffs' lead attorney, Jim Butler Jr. of Butler Wooten & Peak, have offered starkly contrasting stories, even about the tragedy that led them to litigate. Here's Chrysler's opening: "This case involves a $150 million personal injury award resulting from an automobile accident. Four- year-old Remington Walden was killed when the 1999 Jeep Grand Cherokee in which he was riding was rear-ended at highway speed and caught fire. The driver of the other vehicle, Bryan Harrell, pleaded guilty to vehicular homicide and is now in prison. Even though it was undisputed that Harrell caused the accident, Plaintiffs (the parents of Remington Walden) sued Chrysler along with Harrell for wrongful death, challenging the design of the Grand Cherokee's rear-mounted fuel tank." Here's a small part of what Butler wrote about that Jeep: "Remington Walden burned to death because FCA/Chrysler placed the gas tank behind the rear axle of its Jeep. That was unnecessary: FCA stipulated that it could have located the gas tank midships, in front of the rear axle. . . . The evidence proved that Chrysler had long known that mounting a gas tank behind the rear axle was dangerous." The briefs recounted the nine-day trial in South Georgia's Bainbridge before Decatur County Superior Court Judge J. Kevin Chason in March and April of 2015. From Chrysler: "What should have been a straightforward trial about vehicle design soon spiraled out of control, as the trial court allowed Plaintiffs to introduce evidence and make arguments that had no relevance to the issues the jury was asked to decide, but were intended to incite the jury's passions by whipping up prejudice against a large corporate defendant and to set the stage for the verdict that followed." Chrysler alleged Judge Chason was wrong to allow the plaintiffs to mention the CEO's pay. "Over Chrysler's repeated objections, Plaintiffs introduced evidence of the compensation and benefits Chrysler paid its chairman and CEO Sergio Marchionne, despite the general rule in Georgia that 'evidence of the wealth or worldly circumstances of a party is never admissible, unless in those exceptional cases where position or wealth is necessarily involved.'" But Mr. Butler countered that Chrysler has changed its tactics: He wrote that the company "waived its newly-created argument that if the existence of incentive compensation was admissible, the amount was not, by failing to make that argument at trial" or at the Court of Appeals. "At trial, FCA's objection was to the entirety of the evidence, and FCA did not object separately to the amount. If any part of the evidence was admissible, it was not error to admit it all." The Walden brief said the jury determined that the company "acted with a reckless or wanton disregard for human life" and failed to warn of the hazard it created. There was a third view of the trial--from a video camera. Courtroom View Network filmed the trial and produced the video on its website. At the Daily Report's request, CVN provided a clip of a key part of Mr. Butler's closing argument. Butler tried the case with a team that included his son, Jeb Butler of Butler Tobin. They split closing. The senior Butler followed a Chrysler lawyer who had argued that the award for pain and suffering should be limited because the boy only lived a minute after the Jeep gas tank exploded into flames and that the child's ordeal was "mercifully short." Mr. Butler took off his watch, set it for one minute, laid it on the podium and asked the jury for 60 seconds of silence. "Now. Start thinking about what Remi went through," Mr. Butler said. The courtroom was dead quiet. At the end of the minute, Mr. Butler said "time." That minute could have been worth the $30 million awarded in the verdict for pain and suffering. [GN] CITGO: Settles Unsolicited Text Message Class Action for $8.3MM --------------------------------------------------------------- Katheryn Hayes Tucker, writing for Daily Business Review, reports that attorneys have reached a settlement agreement worth $8.3 million in a class action lawsuit over unsolicited text messages tied to sweepstakes entries. The potential class representative, Matthew Gottlieb, filed a motion for preliminary approval of a settlement with CITGO on Aug. 8 in the Southern District of Florida. If U.S. District Judge Robin Rosenberg in West Palm Beach approves, the deal would end a lawsuit over alleged violations of the Telephone Consumer Protection Act, and Gottlieb will share $8 million with 93,000 cell phone users. After legal fees -- which could be up to a third of the $8 million -- the plaintiffs could pocket about $56 per text. The Texas- based petroleum company has agreed to pay another $300,000 for settlement and class notice administration costs. "It's a good result. Our law firm is very proud of the work we've done for the class," said class counsel Jeff Ostrow -- ostrow@kolawyers.com -- of Kopelowitz Ostrow Ferguson Weiselberg Gilbert in Fort Lauderdale. Mr. Ostrow's team includes Scott Edelsberg and Avi Kaufman of his firm plus Andrew Shamis of Shamis & Gentile in Miami. CITGO chief counsel is Scott Solberg -- ssolberg@eimerstahl.com -- of Eimer Stahl in Chicago. He had no immediate comment. The motion said the parties came to agreement after a second full- day mediation session with David Lichter, a litigator and arbitration special master on July 19. The parties "executed a term sheet memorializing their understanding" and filed a notice of settlement with the court, the motion said. Here's the history of the case, according to the motion. "On July 31, 2015, Plaintiff, Matthew Gottlieb, entered two of the CITGO- sponsored sweepstakes contests while attending a concert in West Palm Beach, Florida. In late 2016, CITGO sponsored several new sweepstakes contests and it used the services of Black Canyon and mGage to market those contests to the mobile phone numbers of many of the people who had entered the prior sweepstakes contests, including Plaintiff. In total, Plaintiff received three text messages from CITGO in 2016: one in August, one in October and one in November. Some combination of these three text messages were sent to approximately 93,000 mobile phone numbers belonging to people who, similar to Plaintiff, had previously entered other CITGO-sponsored sweepstakes contests." Mr. Gottlieb filed the lawsuit last November, and discovery started in February. The motion said CITGO responded with 100,000 pages of paper and electronic documents to be reviewed by the class counsel and data expert. The motion called the battle "hard fought" up to this point and added that the settlement, if approved, "will bring an end to what has otherwise been, and likely would continue to be, contentious and costly litigation centered on unsettled legal questions." [GN] CITIBANK NA: NY Court Narrows Claims in Antitrust Suit ------------------------------------------------------ Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendants' motion to dismiss the First Amended Complaint ("FAC") for lack of subject matter jurisdiction and for failure to state a legally sufficient and plausible claim. The case is FRONTPOINT ASIAN EVENT DRIVEN FUND, L.P., and SONTERRA CAPITAL MASTER FUND, LTD., on behalf of themselves and all others similarly situated, Plaintiffs, v. CITIBANK, N.A., CITIGROUP INC., BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., JPMORGAN CHASE & CO., JPMORGAN CHASE BANK, N.A., THE ROYAL BANK OF SCOTLAND PLC, THE ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES JAPAN LIMITED, UBS AG, UBS SECURITIES JAPAN CO. LTD., ING GROEP N.V., ING BANK N.V., ING CAPITAL MARKETS LLC, BNP PARIBAS, S.A., BNP PARIBAS NORTH AMERICA, INC., BNP PARIBAS SECURITIES CORP., BNP PARIBAS PRIME BROKERAGE, INC., OVERSEA-CHINESE BANKING CORPORATION LTD., BARCLAYS PLC, BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., DEUTSCHE BANK AG, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, CREDIT AGRICOLE S.A., CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, CREDIT SUISSE INTERNATIONAL, STANDARD CHARTERED BANK, STANDARD CHARTERED PLC, DBS BANK LTD., DBS GROUP HOLDINGS LTD, DBS VICKERS SECURITIES (USA) INC., UNITED OVERSEAS BANK LIMITED, UOB GLOBAL CAPITAL, LLC, AUSTRALIA AND NEW ZEALAND BANKING GROUP, LTD., ANZ SECURITIES, INC., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., THE HONGKONG SHANGHAI BANKING CORPORATION LIMITED, HSBC BANK USA, N.A., HSBC HOLDINGS PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC USA INC., MACQUARIE BANK LTD., MACQUARIE GROUP LTD., COMMERZBANK AG, AND JOHN DOES NOS. 1-50, Defendants, No. 16 Civ. 5263 (AKH)(S.D. N.Y.). The Singapore Interbank Offered Rate ("SIBOR") and the Singapore Swap Offer Rate ("SOR") are related benchmark interest rates that are meant to reflect the cost of borrowing funds in the Singapore market. Both SIBOR and SOR are administered by the Association of Banks in Singapore ("ABS"), a trade group made up of many of the Defendants in this case. The Plaintiffs allege that during the class period, trillions of dollars of SIBOR- and SOR-based derivatives -- that is, financial derivatives that incorporate SIBOR and/or SOR as a component of price -- were traded within the United States, including interest rate swaps, forward rate agreements, foreign exchange swaps and foreign exchange forwards. They allege that in June 2013, the Monetary Authority of Singapore ("MAS"), Singapore's central bank and financial regulator, announced that it had uncovered a massive conspiracy by the Defendants to rig the prices of financial derivatives that incorporate SIBOR and/or SOR as a component of price. They allege that MAS uncovered rare 'smoking gun' evidence of anticompetitive conduct, and that MAS found that several of the Defendants manipulated SIBOR and SOR. However, the June 13, 2013 MAS press release, upon which the Plaintiffs base these allegations, contains none of these findings. The Plaintiffs also allege that the U.S. and the U.K. regulators confirmed MAS' findings that the Defendants manipulated SIBOR and SOR. Specifically, plaintiffs allege that the Commodity Futures Trading Commission found that defendants Deutsche Bank, RBS, and UBS all manipulated SIBOR and SOR during the Class Period and engaged in similar misconduct to the methods these Defendants used to manipulate other financial benchmarks. They also allege that the U.K.'s Financial Services Authority, in its settlement with RBS with respect to LIBOR manipulation, found that RBS traders made at least 34 written requests to manipulate SIBOR and SOR. Lastly, the Plaintiffs allege what they describe as "economic evidence," which they present as proof that SIBOR and SOR were manipulated during the relevant period. The Plaintiffs allege five bases of personal jurisdiction against the Foreign Defendants. First, they allege that certain Defendants purposefully availed themselves of the privilege and benefit of trading foreign exchange and/or interest rate derivatives, including SIBOR- and SOR-based derivatives, in the United States. Second, they allege, generally, that the Defendants purposefully directed their wrongful conduct at the United States. Third, they allege that the Defendants' illegal conduct had direct, substantial, and foreseeable effects on commerce in the United States. Fourth, the Plaintiffs allege that certain defendants consented to general jurisdiction in New York by registering New York branches with the New York State Department of Financial Services pursuant to New York Banking Law Section 200. Lastly, the Plaintiffs allege that Defendant Deutsche Bank consented to jurisdiction in New York by entering into an ISDA Master Agreement with plaintiff FrontPoint, under which the parties agreed to the jurisdiction of the courts of New York and United States District Courts of the Southern District of New York. The Foreign Defendants move pursuant to Rules 12(b)(2) and 12(b)(3) to dismiss the FAC for lack of personal jurisdiction and venue; and also move pursuant to Rules 12(b)(1) and 12(b)(6) to dismiss the FAC for lack of standing and for failure to state a claim. Judge Hellerstein granted in part and denied in part the Defendants' motion as follows: a. The Foreign Defendants' motion to dismiss for lack of personal jurisdiction is granted. All claims against the Foreign Defendants are dismissed without prejudice and with leave to amend to make plausible allegations of personal jurisdiction over the Foreign Defendants. b. The Defendants' (Australia and New Zealand Banking Group, Ltd.; Barclays plc; Barclays Bank plc; BNP Paribas, S.A.; Credit Agricole Corporate and Investment Bank; Credit Agricole S.A.; Credit Suisse Group AG; Credit Suisse AG; Credit Suisse International; Commerzbank AG; DBS Bank Ltd.; DBS Group Holdings Ltd; Deutsche Bank AG; HSBC Holdings plc; ING Groep N.V.; ING Bank N.V.; Macquarie Bank Ltd.; Macquarie Group Ltd.; The Royal Bank of Scotland plc; The Royal Bank of Scotland Group plc; RBS Securities Japan Ltd.; Standard Chartered Bank; Standard Chartered PLC; The Bank of Tokyo-Mitsubishi UFJ, Ltd.; The Hong Kong and Shanghai Banking Corp. Ltd.; The Oversea-Chinese Banking Corp. Ltd.; UBS AG, UBS Securities Japan Co. Ltd.; and United Overseas Bank Ltd.) motion to dismiss the complaint for lack of Article III standing is denied. c. The Defendants' motion to dismiss Count I (antitrust) as alleged by Plaintiff FrontPoint is denied as alleged against the Defendants who served on the SIBOR panel (Australia and New Zealand Banking Group, Bank of America N.A., The Bank of Tokyo- Mitsubishi UFJ, Ltd., BNP Paribas, Citibank N.A., Credit Suisse AG, DBS Bank Ltd., Deutsche Bank AG, The Hongkong and Shanghai Banking Corporation Ltd., ING Bank N.V., JPMorgan Chase Bank, N.A., Oversea-Chinese Banking Corp. Ltd, The Royal Bank of Scotland PLC, Standard Chartered Bank, UBS AG, and the United Overseas Bank Ltd.), but is granted with respect to all other Defendants, for failure to sufficiently allege their involvement in the conspiracy. FrontPoint is granted leave to amend to make plausible allegations showing the non-panel Defendants' involvement in the alleged antitrust conspiracy. d. The Defendants' motion to dismiss Count I (antitrust) as alleged by Plaintiff Sonterra is granted, for failure to establish any connection between the Defendants' conduct and its alleged injury. Sonterra's antitrust claim, based on an alleged conspiracy to manipulate SIBOR and/or SOR, is dismissed without prejudice and with leave to amend to make plausible allegations showing that the Defendants' alleged manipulation of SIBOR and/or SOR impacted the price of the currency exchange forwards that Sonterra traded in. Plausible allegations showing this connection are likely to make Sonterra an efficient enforcer. e. The Defendants' motion to dismiss Counts II and III (RICO and RICO conspiracy) is granted. Counts II and III are dismissed without prejudice and with leave to amend to make plausible allegations showing sufficient domestic conduct to support an extraterritorial application of RICO. f. Defendants Deutsche Bank and Citibank's motion to dismiss Count IV (Frontpoint's claim for breach of the covenant of good faith and fair dealing) is granted. Count IV is dismissed without prejudice and with leave to amend to make plausible allegations supporting the claim. g. The Defendants' motion to dismiss Count V (unjust enrichment) is granted as a matter of law. Count V is dismissed with prejudice and without leave to amend. The clerk is ordered by the Judge to terminate the motion. The Plaintiffs will file a second amended complaint by Sept. 18, 2017. The Defendants will answer or move by Oct. 18, 2017. A full-text copy of the District Court's Aug. 18, 2017 Opinion and Order is available at https://is.gd/FJNksp from Leagle.com. FrontPoint Asian Event Driven Fund, Ltd., Plaintiff, represented by Geoffrey Milbank Horn -- ghorn@lowey.com -- Lowey Dannenberg P.C.. Sonterra Capital Master Fund, LTD., Plaintiff, represented by Christian Levis -- clevis@lowey.com -- Lowey Dannenberg P.C., Lee Jason Lefkowitz, Lowey Dannenberg P.C., Matthew John Acocella -- MAcocella@lowey.com -- Lowey Dannenberg P.C., Peter Dexter St. Phillip, Jr. -- pstphilip@lowey.com -- Lowey Dannenberg, P.C., Raymond Peter Girnys -- rgirnys@lowey.com -- Lowey Dannenberg, P.C., Sitso W. Bediako -- sbediako@lowey.com -- Lowey Dannenberg P.C., Vincent Briganti -- vbriganti@lowey.com -- Lowey Dannenberg P.C. & Geoffrey Milbank Horn -- ghorn@lowey.com -- Lowey Dannenberg P.C.. FrontPoint Asian Event Driven Fund, L.P., Plaintiff, represented by Christian Levis, Lowey Dannenberg P.C., Lee Jason Lefkowitz, Lowey Dannenberg P.C., Matthew John Acocella, Lowey Dannenberg P.C., Peter Dexter St. Phillip, Jr., Lowey Dannenberg, P.C., Raymond Peter Girnys, Lowey Dannenberg, P.C., Sitso W. Bediako, Lowey Dannenberg P.C., Vincent Briganti, Lowey Dannenberg P.C. & Geoffrey Milbank Horn, Lowey Dannenberg P.C.. Citibank, N.A., Defendant, represented by Alan M. Wiseman -- awiseman@cov.com -- Covington & Burling, L.L.P., Andrew D. Lazerow -- alazerow@cov.com -- Covington & Burling, L.L.P., Andrew Arthur Ruffino -- aruffino@cov.com -- Covington & Burling LLP & Jamie A. Heine -- jheine@cov.com -- Covington & Burling, L.L.P.. CitiGroup Inc., Defendant, represented by Alan M. Wiseman, Covington & Burling, L.L.P., Andrew D. Lazerow, Covington & Burling, L.L.P., Andrew Arthur Ruffino, Covington & Burling LLP & Jamie A. Heine, Covington & Burling, L.L.P.. Bank Of America Corporation, Defendant, represented by Arthur J. Burke -- arthur.burke@davispolk.com -- Davis Polk & Wardwell, Lawrence Jay Portnoy -- lawrence.portnoy@davispolk.com -- Davis Polk & Wardwell LLP, Paul Steel Mishkin -- paul.mishkin@davispolk.com -- Davis Polk & Wardwell LLP, Adam Gabor Mehes -- adam.mehes@davispolk.com -- Davis Polk & Wardwell LLP & Peter John Davis -- peter.davis@davispolk.com -- Davis Polk & Wardwell LLP. Bank of America, N.A., Defendant, represented by Arthur J. Burke, Davis Polk & Wardwell, Lawrence Jay Portnoy, Davis Polk & Wardwell LLP, Paul Steel Mishkin, Davis Polk & Wardwell LLP, Adam Gabor Mehes, Davis Polk & Wardwell LLP & Peter John Davis, Davis Polk & Wardwell LLP. JPMorgan Chase & Co, Defendant, represented by Paul Christopher Gluckow -- pgluckow@stblaw.com -- Simpson Thacher & Bartlett LLP, Thomas C. Rice -- trice@stblaw.com -- Simpson Thacher & Bartlett LLP, Abram Jeremy Ellis -- aellis@stblaw.com -- Simpson Thacher & Bartlett LLP, Alan Craig Turner -- aturner@stblaw.com -- Simpson Thacher & Bartlett LLP, Alexander Nuo Li -- zander.li@stblaw.com -- Simpson Thacher & Bartlett LLP, Eamonn Wesley Campbell -- eamonn.campbell@stblaw.com -- Simpson Thacher & Bartlett LLP, Francis John Acott -- francis.acott@stblaw.com -- Simpson Thacher & Bartlett LLP, Michael Steven Carnevale -- michael.carnevale@stblaw.com -- Simpson Thacher & Bartlett LLP, Omari Largos Royter Mason -- omason@stblaw.com -- Simpson Thacher & Bartlett LLP & Rachel Serenity Sparks Bradley, Simpson Thacher & Bartlett LLP. JP Morgan Chase Bank, N.A., Defendant, represented by Paul Christopher Gluckow, Simpson Thacher & Bartlett LLP, Thomas C. Rice, Simpson Thacher & Bartlett LLP, Abram Jeremy Ellis, Simpson Thacher & Bartlett LLP, Alan Craig Turner, Simpson Thacher & Bartlett LLP, Alexander Nuo Li, Simpson Thacher & Bartlett LLP, Eamonn Wesley Campbell, Simpson Thacher & Bartlett LLP, Francis John Acott, Simpson Thacher & Bartlett LLP, Michael Steven Carnevale, Simpson Thacher & Bartlett LLP, Omari Largos Royter Mason, Simpson Thacher & Bartlett LLP & Rachel Serenity Sparks Bradley, Simpson Thacher & Bartlett LLP. Royal Bank of Scotland PLC, Defendant, represented by David Sapir Lesser, Wilmer Cutler Pickering Hale & Dorr LLP, Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP & Jamie Stephen Dycus, Wilmer Cutler Pickering Hale and Dorr LLP. Royal Bank of Scotland Group Plc., Defendant, represented by David Sapir Lesser -- david.lesser@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP, Fraser Lee Hunter, Jr. -- fraser.hunter@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP & Jamie Stephen Dycus -- jamie.dycus@wilmerhale.com -- Wilmer Cutler Pickering Hale and Dorr LLP. RBS Securities Japan Limited, Defendant, represented by David Sapir Lesser, Wilmer Cutler Pickering Hale & Dorr LLP, Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP & Jamie Stephen Dycus, Wilmer Cutler Pickering Hale and Dorr LLP. UBS AG, Defendant, represented by Peter Sullivan -- psullivan@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Eric Jonathan Stock -- estock@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Jefferson Eliot Bell -- jbell@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP & Lawrence Jay Zweifach -- lzweifach@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP. CLUBCORP HOLDINGS: Faces "Hopkins" Suit Over Sale to Apollo ----------------------------------------------------------- JOEL HOPKINS, Individually and On Behalf of All Others Similarly Situated v. CLUBCORP HOLDINGS, INC., JOHN A. BECKERT, DOUGLAS H. BROOKS, ERIC L. AFFELDT, JANET GROVE, JEFF LAMB, LOU J. GRABOWSKY, EMANUEL R. PEARLMAN, MARGARET SPELLINGS, WILLIAM E. SULLIVAN, SIMON M. TURNER, CONSTELLATION CLUB PARENT, INC., CONSTELLATION MERGER SUB INC., and APOLLO GLOBAL MANAGEMENT, LLC, Case No. 2:17- cv-02158-MMD-VCF (D. Nev., August 11, 2017), stems from a proposed transaction, pursuant to which ClubCorp will be acquired by affiliates of Apollo Global, Constellation Club Parent, Inc. ("Parent") and Constellation Merger Sub Inc. On July 9, 2017, ClubCorp's Board of Directors caused the Company to enter into an agreement and plan of merger with Apollo. Pursuant to the terms of the Merger Agreement, shareholders of ClubCorp will receive $17.12 per share in cash. ClubCorp is a Nevada corporation and maintains its headquarters in Dallas, Texas. The Individual Defendants are directors and officers of ClubCorp. The Company owns or operates more than 200 golf and country clubs, business clubs, sports clubs, and alumni clubs in twenty-eight states, the District of Columbia, and two foreign countries. Constellation Club Parent, Inc., is Delaware corporation and a party to the Merger Agreement. Merger Sub is a Nevada corporation, a wholly-owned subsidiary of Parent, and a party to the Merger Agreement. The Parent and Merger Sub are affiliates of Apollo Global.[BN] The Plaintiff is represented by: Michael J. Gayan, Esq. KEMP, JONES & COULTHARD LLP Wells Fargo Tower, 17th Floor 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: (702) 385-6000 Facsimile: (702) 385-6001 E-mail: mjg@kempjones.com - and - Evan J. Smith, Esq. Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Telephone: (610) 667-6200 Facsimile: (610) 667-9029 E-mail: esmith@brodskysmith.com mackerman@brodsky-smith.com CONTINENTAL CASUALTY: Court Denies Bids to Dismiss "Dolins" Suit ---------------------------------------------------------------- In the case captioned JERROLD DOLINS, on behalf of himself and others similarly situated, Plaintiff, v. CONTINENTAL CASUALTY COMPANY, CONTINENTAL ASSURANCE COMPANY, CNA FINANCIAL CORPORATION, INVESTMENT COMMITTEE OF THE CNA 401(k) PLUS PLAN, COMPANY, and DOES 1-10, Defendants, No. 16 C 8898(N.D. Ill.), Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) denied the motions of Continental Assurance Co. ("CAC") and Northern Trust Co. to dismiss all claims against them; and (ii) denied CNA's motion to dismiss Count III of the Complaint. Dolins, a former employee of CNA Financial, was a participant in the CNA 401k Plus Plan, an employee pension benefit plan. The Plan was sponsored and administered by Continental Casualty Co. ("CCC"), in which CNA held a controlling interest at all relevant times. Northern Trust was the Plan's trustee. One of the Plan's investment options was a fund called the CNA Fixed Income Fund. Until the end of 2011, a core investment of the Fund was a group annuity contract offered by CAC, which at that time was a wholly owned subsidiary of CCC and thus an indirect subsidiary of CNA. The Plan entered into the Contract in 1981. Prior to the Contract's cancellation, the Contract had earned returns at or above the 4% floor; it earned a 6.5% gross rate of return in 2007 and 2008, 6.25% in 2009, 4.55% in 2010, and 4% in 2011. But following the Contract's cancellation in 2011 -- a year where the Fund earned a 3.26% return for the Plan -- the Plan endured several years of declining earnings on assets invested in the Fund: 3.01% in 2012, 2.21% in 2013, 1.64% in 2014, and 1.54% in 2015. Had the Plan not cancelled the Contract, the Plan's overall earnings during those years almost certainly would have been higher, because most of the Plan's funds had been invested in the Contract with its guaranteed a minimum 4% return. So the Contract's cancellation likely had significant negative financial consequences for the Plan. Dolins alleges that the Contract's cancellation was not made with his and the other beneficiaries' interests in mind, but rather to improve CCC's financial position and/or to make CAC a more attractive target for potential buyers. Specifically, he alleges that the Contract's 4% guaranteed minimum return made the Contract unfavorable to CAC due to the declining interest rates and returns in the market as a whole, which led CNA to wish to sell CAC thus giving CNA and CAC an incentive to cancel the Contract. The complaint seeks relief against Defendants under Sections 502(a)(2) and (a)(3) of ERISA, 29 U.S.C. Sections 1132(a)(2)-(3), which allow for damages for breach of fiduciary duty and equitable relief, respectively. In Count I, the complaint alleges that by acting to cancel the Contract, the Defendants did not act for the exclusive benefit of Dolins and the other beneficiaries, and did not exercise ordinary care in engaging in the transaction. Count II alleges that the Contract's cancellation was a prohibited transaction under Section 406(b), 29 U.S.C. Section 1106(b). Count III alleges that the Contract's cancellation was a prohibited transaction under Section 406(a), 29 U.S.C. Section 1106(a). And Count IV alleges that the Defendants (other than CAC) are liable as co-fiduciaries on the theory that each knowingly participated in the others' breaches of the others' fiduciary duties. CAC and Northern Trust move under Federal Rule of Civil Procedure 12(b)(6) to dismiss all claims against them, while the CNA Defendants move to dismiss Count III. Dolins requests for damages relief against CAC. Judge Feinerman explains that the Contract effectively gave the Plan the right to a dollar amount from CAC equal to the difference between a 4% return and whatever the Plan otherwise have earned from the Contract. The Contract's termination effectively transferred that right back to CAC, for it no longer had to make good on its 4% guarantee. Moreover, because CAC was partially owned by CNA, which was a party in interest as the employer of Plan beneficiaries, the transfer was to a party in interest. And having alleged that a Plan asset was transferred to a party in interest, Dolins has properly pleaded the occurrence of a prohibited transaction under Section 406(a)(1)(D). The Judge finds that Northern Trust remained subject to a duty of prudence, which it is plausibly alleged to have breached. As a result, the claim against Northern Trust in Count I survives. Count IV, alleging that Northern Trust is subject to co-fiduciary liability under Section 405(a), survives for the same reason. Dolins has adequately alleged that the Contract's cancellation was contrary to ERISA, so Section 1105(b)(3) does not foreclose liability against Northern Trust, at least at the pleading stage. As to Counts II and III, because Northern Trust retained discretion to reject instructions regarding the Contract that were contrary to ERISA, it is properly considered a fiduciary in this context. There is no requirement in Section 406(b)(2) that the defendant itself benefit from the transaction; it is enough that a party other than the beneficiaries have benefitted, and the complaint here alleges just that as to the CNA Defendants. Dolins has thus adequately alleged a violation by Northern Trust of Section 406(b)(2), meaning that Count II may proceed against it. As to CNA Defendants' motion to dismiss Count III, Judge Feinerman finds that if cancelling the Contract impermissibly benefited a party in interest, which it is alleged to have done, then the CNA Defendants may be liable even if the Contract's terms permitted cancellation. With respect to Dolins' request for damages relief against CAC, taking as true his allegations and drawing all reasonable inferences in his favor, the Plan has been injured by the Contract's cancellation, and it is conceivable that adequately remedying that might be accomplished only through its reinstatement. Dolins has therefore requested a remedy that is not provided for in Section 502(a)(2) and can be accomplished only with CAC in the case by way of Section 502(a)(3). For these reasons, Judge Feinerman denied the motions to dismiss are denied, except for CAC's motion to dismiss the complaint's request for damages relief against it under Section 502(a)(2). He directed the Defendants to answer the surviving portions of the complaint by Sept. 8, 2017. A full-text copy of the District Court's Aug. 18, 2017 Memorandum Opinion and Order is available at https://is.gd/TOwRi4 from Leagle.com. Jerrold Dolins, Plaintiff, represented by Alison S. Gaffney -- agaffney@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice. Jerrold Dolins, Plaintiff, represented by Erin M. Riley -- eriley@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice, Jeffrey Lewis -- jlewis@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice, Lawrence S. Goodman -- LSGoodman@lgclaw.com -- Levun, Goodman & Cohen, LLP, pro hac vice & Susan Hope Booker - - shbooker@lgclaw.com -- Levun, Goodman & Cohen. Continental Casualty Company, Defendant, represented by Ian H. Morrison -- imorrison@seyfarth.com -- Seyfarth Shaw LLP, Samuel Michael Schwartz-Fenwick -- sschwartz-fenwick@seyfarth.com -- Seyfarth Shaw LLP, Ronald J. Kramer -- rkramer@seyfarth.com -- Seyfarth Shaw LLP & Shannon Marie Callahan -- SCallahan@Seyfarth.com -- Seyfarth Shaw LLP. Continental Assurance Company, Defendant, represented by Donald A. Tarkington -- dtarkington@novackmacey.com -- Novack and Macey LLP, Edwin G. Schallert -- egschallert@debevoise.com -- Debevoise & Plimpton, pro hac vice, Ryan Martin Kocse -- rmkocse@debevoise.com -- Debevoise and Plimpton LLP, pro hac vice & Stephen Novack -- snovack@novackmacey.com -- Novack and Macey LLP. CNA Financial Corporation, Defendant, represented by Ian H. Morrison, Seyfarth Shaw LLP, Samuel Michael Schwartz-Fenwick, Seyfarth Shaw LLP, Ronald J. Kramer, Seyfarth Shaw LLP & Shannon Marie Callahan, Seyfarth Shaw LLP. Investment Committee of the CNA 401(k) Plus Plan, Defendant, represented by Ian H. Morrison, Seyfarth Shaw LLP, Samuel Michael Schwartz-Fenwick, Seyfarth Shaw LLP, Ronald J. Kramer, Seyfarth Shaw LLP & Shannon Marie Callahan, Seyfarth Shaw LLP. Northern Trust Company, Defendant, represented by Ian H. Morrison, Seyfarth Shaw LLP, Samuel Michael Schwartz-Fenwick, Seyfarth Shaw LLP, Ronald J. Kramer, Seyfarth Shaw LLP & Shannon Marie Callahan, Seyfarth Shaw LLP. Does 1 through 10, Defendant, represented by Ian H. Morrison, Seyfarth Shaw LLP, Samuel Michael Schwartz-Fenwick, Seyfarth Shaw LLP, Ronald J. Kramer, Seyfarth Shaw LLP & Shannon Marie Callahan, Seyfarth Shaw LLP. CONTINENTAL GENERAL: GAFRI Dropped as Defendant in "Fastrich" ------------------------------------------------------------- The United States District Court for the District of Nebraska issued a Memorandum and Order granting in part and denying in part Defendants' Motion to Dismiss the case captioned JOHN FASTRICH, and UNIVERSAL INVESTMENT SERVICES, INC., Plaintiffs, v. CONTINENTAL GENERAL INSURANCE COMPANY, and GREAT AMERICAN FINANCIAL RESOURCE, INC., Defendants, No. 8:16CV487 (D. Neb.). This is a class action brought by John Fastrich and his insurance agency, Universal Investment Services, Inc., on behalf of themselves and on behalf of "[a]ll current and former regional managers, general agents, associate general agents, and agents of CGI . . . who have lost commissions, renewals, and/or overrides as a result of Defendants' wrongful conduct . . ." According to the Complaint, Plaintiffs entered into contracts with CGI to sell CGI's insurance products to individual customers. These products included Medicare supplements, long-term care and senior life policies, and annuities. Pursuant to their contracts with CGI, Plaintiffs were to receive compensation in the form of commissions, renewals, and overrides on the various insurance products they sold. Sometime after GAFRI finalized the acquisition of Ceres, and thereby CGI, GAFRI and CGI began contacting existing insurance policyholders and offering them new, less expensive insurance products without giving Plaintiffs the opportunity to sell the new products. As a result, the original insurance policies that Plaintiffs sold on CGI's behalf were cancelled and new insurance products were marketed and issued by other agents. Plaintiffs have brought claims against CGI and GAFRI for breach of contract, tortious interference with a business relationship or expectancy, and unjust enrichment. GAFRI argues the Court should dismiss it from this action because it is not subject to the Court's personal jurisdiction. CGI and GAFRI both argue Plaintiffs' claims should be dismissed for failure to state a claim upon which relief can be granted. To survive a Federal Rule of Civil Procedure 12(b)(2) motion to dismiss for lack of personal jurisdiction, a plaintiff must plead sufficient facts 'to support a reasonable inference that the defendant[ ] can be subjected to jurisdiction within the state. A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a plaintiff must plead enough facts to state a claim to relief that is plausible on its face. Personal Jurisdiction GAFRI argues it is not subject to the Court's personal jurisdiction. In determining whether personal jurisdiction over a nonresident defendant exists, the Court must determine whether: (1) the requirements of the Nebraska long-arm statute are satisfied; and (2) the exercise of jurisdiction is permitted by the Due Process Clause of the Fourteenth Amendment. GAFRI is an Ohio corporation with its principal place of business in Texas. When GAFRI acquired Ceres, including its subsidiary CGI, in 2006, CGI was a domestic insurer organized under, and governed by, Nebraska law and had its principal place of business in Nebraska. The fact that CGI had its principal place of business in Nebraska does not, by itself, confer personal jurisdiction over GAFRI. Plaintiffs point to GAFRI's alleged conduct of contacting existing CGI policyholders and replacing the in-force policies with the new products insurance policies, harming Plaintiffs who are Indiana residents. Plaintiffs do not allege, however, that GAFRI ever contacted a Nebraska resident or replaced a Nebraska resident's existing CGI insurance policy. Nor do Plaintiffs allege that they had any Nebraska clients. Plaintiffs also point to GAFRI's representations to the Nebraska Department of Insurance that it intended to install GAFRI personnel in officer and director positions at CGI upon consummation of the acquisition, and to GAFRI's representation that it planned to have CGI exit the major medical business. However, there are no allegations or evidence that GAFRI actually undertook either of these courses of action. Considering the nature, quality, and quantity of the foregoing contacts, Plaintiffs have also failed to establish that GAFRI has sufficient "minimum contacts with [Nebraska] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice. As such, the Court lacks the power to enter a valid judgment imposing a personal obligation or duty upon GAFRI in favor of the plaintiff and GAFRI will, therefore, be dismissed from this action. Breach of Contract Claim Defendants argue Plaintiffs' claim for breach of contract must be dismissed because (1) they have not sufficiently alleged a contractual promise, (2) they have alleged speculative damages, and (3) they have lumped together all of the defendants in their allegations. Plaintiffs have pled sufficient facts to support a plausible claim for breach of contract. Their allegations that they were entitled to receive commissions, renewals, and overrides, and that CGI failed to pay Plaintiffs said commissions, renewals, and overrides, causing them to suffer financial damage, is sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, breach of contract. Tortious Interference with a Business Relationship or Expectancy CGI argues Plaintiffs have failed to state a claim for tortious interference with a business relationship or expectancy because CGI is not a true third-party interferer and because Plaintiffs have not alleged unjustified conduct. To succeed on a claim for tortious interference with a business relationship or expectancy, a plaintiff must prove the following elements: (1) the existence of a valid business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the part of the interferer, (4) proof that the interference cause the harm sustained, and (5) damage to the party whose relationship or expectancy was disrupted. Applying the principal that the interferer must be a third party independent of the plaintiff's business relationship, the Eighth Circuit has held that there can be no tortious interference as a matter of law where the insurance agent-plaintiff had no relationship with the buyers of the defendant's insurance policies that was independent of [his] role as an agent acting on behalf of the defendant companies. Plaintiffs' Complaint alleges no independent business relationship with their clients beyond the fact that Plaintiffs brokered their clients' purchase of CGI's insurance policy products. The Plaintiffs' claim for tortious interference with a business relationship or expectancy will, therefore, be dismissed because CGI is not a true third-party interferer. Unjust Enrichment CGI argues Plaintiffs' claim for unjust enrichment, which is a quasi-contract claim, must be dismissed because they have also alleged the existence of an express contract and the breach thereof. CGI also argues that Plaintiffs have alleged insufficient facts to support an unjust enrichment claim. The Complaint alleges Plaintiffs sold CGI's insurance products and that CGI wrongfully and unfairly received and retained the commissions, renewals, and overrides associated with those products, which Plaintiffs claim should have been paid to them. Taken as true, the foregoing facts include content that allows the Court to draw the reasonable inference that Plaintiffs transferred a benefit to CGI by selling its insurance products and that CGI unfairly retained and refused to pay Plaintiffs the associated commissions, renewals, and overrides. Accordingly, Plaintiffs have pled facts to support a plausible claim for unjust enrichment. Punitive Damages and Attorney's Fees CGI also argues that Plaintiffs' demands for punitive damages, At this stage of the litigation, it is not certain whether Nebraska law ultimately will apply to Plaintiffs' breach of contract and unjust enrichment claims. Thus, striking Plaintiffs' demands for punitive damages and attorney's fees from the Complaint based on Nebraska law would be premature. With respect to Plaintiffs' allegation of unfair marketing practices, CGI has not demonstrated this allegation is redundant, impertinent, or scandalous. Accordingly, the Court ruled: 1. The Motion to Dismiss for Lack of Personal Jurisdiction, filed by GAFRI is granted; 2. GAFRI is dismissed from this action; 3. The Clerk will remove GAFRI from the caption; 4. The Motion to Dismiss for Failure to State a Claim, filed by CGI and GAFRI is granted, in part, as follows: a. Plaintiffs' claim for tortious interference with a business relationship or expectancy is dismissed, with prejudice; b. The Motion is otherwise denied; and 5. The Motion for Leave to File a Supplemental Brief, is denied. A full-text copy of the District Court's August 21, 2017 Memorandum and Order is available at http://tinyurl.com/ybznddyw from Leagle.com. John Fastrich, Plaintiff, represented by Alan L. Rosca - arosca@prwlegal.com - PEIFFER, ROSCA LAW FIRM. John Fastrich, Plaintiff, represented by Brian O. Marty, SHINDLER, ANDERSON LAW FIRM, 5015 Grand Ridge Dr Ste 100. West Des Moines, Iowa 50265, J. Barton Goplerud, SHINDLER, ANDERSON LAW FIRM, 5015 Grand Ridge Dr #100, West Des Moines, IA 50265, USA, Stephen D. Marso - marso@whitfieldlaw.com - WHITFIELD, EDDY LAW FIRM & Thomas S. Reavely - reavely@whitfieldlaw.com - WHITFIELD, EDDY LAW FIRM. Universal Investment Services, Inc., Plaintiff, represented by Alan L. Rosca - arosca@prwlegal.com - PEIFFER, ROSCA LAW FIRM, Brian O. Marty, SHINDLER, ANDERSON LAW FIRM, J. Barton Goplerud, SHINDLER, ANDERSON LAW FIRM, Stephen D. Marso, WHITFIELD, EDDY LAW FIRM - WEST DES MOINES & Thomas S. Reavely, WHITFIELD, EDDY LAW FIRM. Continental General Insurance Company, Defendant, represented by Edward D. Hotz, PANSING, HOGAN LAW FIRM,10250 Regency Cir., Ste #300, Ohama, NE 68114 CONTRACT TRANSPORT: "Burlaka" Suit Seeks Unpaid Overtime Pay ------------------------------------------------------------Leonid Burlaka and David Starry, on behalf of themselves and all others similarly situated Plaintiffs, v. Contract Transport Services, LLC, Defendant, Case No. 1:17-cv-01126 (E.D. Wisc., August 14, 2017), seeks redress for Defendant's failure to pay overtime premium pay for hours over 40 per week under the Fair Labor Standards Act. Plaintiffs were employed by Contract Transport's transport and delivery business as spotters at its Green Bay Packaging Account located at either their Green Bay or De Pere, Wisconsin facility. [BN] Plaintiff is represented by: Yingtao Ho, Esq. THE PREVIANT LAW FIRM S.C. 310 W. Wisconsin Avenue, Suite 100MW Milwaukee, WI 53203 Telephone: (414) 271-4500 Fax: (414) 271-6308 Email: yh@previant.com DAIRY FARMERS: Vermont Court Narrows Claims in Antitrust Suit ------------------------------------------------------------- The United States District Court, District of Vermont, issued an Opinion and Order granting in part and denying in part Defendants' motion to dismiss the Revised First Amended Complaint in the case captioned GARRETT AND RALPH SITTS, LEON ATWELL, VICTOR BARRICK, DANIEL BAUMGARDER, WILLIAM BOARD, GEORGE BOLLES, ROGER BOLLES, ANDY BOLLINGER, THOMAS BOLLINGER, LOGAN BOWER, DWIGHT BRANDENBURG, BERNARD BROUILLETTE, THOMAS BROUILLETTE, AARON BUTTON, HESTER CHASE, THOMAS CLARK, THOMAS CLATTERBUCK, PAUL CURRIER, GERRY DELONG, PETE AND ALICE DIEHL, MARK DORING, MARK AND BARBARA DULKIS, GLEN EAVES, MIKE EBY, WILLIAM ECKLAND, DOUG ELLIOT, JAMES ELLIOT, WENDALL ELLIOTT, MICHAEL FAUCHER, DAVID AND ROBIN FITCH, DUANE AND SUSAN FLINT, JOSEPH FULTS, RICHARD GANTNER, STEFAN AND CINDY GEIGER, WILLIAM GLOSS, JOHN GWOZDZ, DAVID AND LAURIE GRANT, JIM AND JOYCE GRAY, DENNIS HALL, ROGER AND JOHN HAMILTON, NEVIN AND MARLIN HILDEBRAND, JAKE AND HARLEN HILLYERD, RICHARD AND TERRI HOLDRIDGE, PAUL HORNING, TERRY AND ROBERT HUYCK, DONALD SCOTT HYMERS, TERRY INCH, RANDY AND LYNETTE INMAN, THEODORE JAYKO, JACK KAHLER, JAMES AND TERESA KEATOR, JIM AND SHARON KEILHOLTZ, GEORGE KEITH, LEE AND ELLEN KLOCK, MIKE AND LISA KRAEGER, FRED LACLAIR, TIM LALYER, FRANK AND JOHN LAMPORT, CORRINE LULL, CHARLES AND GRETCHEN MAINE, THOMAS AND DEBORA MANOS, FRED MATTHEWS, RUSSELL MAXWELL, GERRY MCINTOSH, STEPHEN MELLOTT, JOHN AND DAVID MITCHELL, THOMAS MONTEITH, WALT MOORE, RICHARD AND SHEILA MORROW, DEAN MOSER, MELISSA MURRAY AND SEAN QUINN, THOMAS NAUMAN, CHARLES NEFF, DAVID NICHOLS, MICHAEL NISSLEY, LOU ANN PARISH, DANIEL PETERS, MARSHA PERRY, CAROLYN AND DAVE POST, JUDY LEE POST, SCOTT RASMUSEU, BRIAN REAPE, DAVID AND LYNETTE ROBINSON, BRIAN AND LISA ROBINSON, CALVIN ROES, BRADLEY ROHRER, PAUL AND SARAH ROHRBAUGH, ROBERTA RYAN, SCOTT AND LIN SAWYER, S. ROBERT SENSENIG, THOMAS AND DALE SMITH, DALE AND SUSAN SMITH, DENNIS SMITH, DONALD T. AND DONALD M. SMITH, ROGER AND TAMMY, SMITH, TODD SNYDER, RICHARD SOURWINE, DANNY SOURWINE, RANDY SOWERS, SHANE STALTER, GEORGE AND SHIRLEY STAMBAUGH, TRACY STANKO, STEPHEN SOUR WINE, RICHARD SWANTAK, GEORGE AND PATRICIA THOMPSON, JEREMY THOMPSON, KEN AND JUDY TOMPKINS, DANIEL VAUGHN, MARK VISSAR, ERIC WALTS, EDWARD WALLDROFF, GERALD WETTERHAHN, JR., EUGENE WILCZEWSKI, STEVE WILSON, Plaintiffs, v. DAIRY FARMERS OF AMERICA, INC. and DAIRY MARKETING SERVICES, LLC, Defendants, Case No. 2:16-cv-287 (D. Vt.). Plaintiffs filed this action seeking relief pursuant to the Sherman Act, 15 U.S.C. Sections 1-2, for alleged antitrust violations committed by Defendants Dairy Farmers of America, Inc. (DFA) and Dairy Marketing Services, LLC (DMS). Pending before the court is Defendants' motion to dismiss Plaintiffs' First Amended Complaint for Lack of Antitrust Standing. Plaintiffs allege that Defendants, in concert with Dairylea, Agri- Mark Family Dairy Farms (Agri-Mark), members of the Greater Northeast Milk Marketing Agency (GNEMMA), Farmland Dairies LLC, National Dairy Holdings LLC (NDH), HP Hood LLC (Hood), and other known and unknown co-conspirators, have engaged in an illegal conspiracy to restrain competition, fix and suppress prices paid to farmers and monopolize/monopsonize the raw Grade A milk market in the Northeast. Standard of Review In adjudicating a motion pursuant to Fed. R. Civ. P. 12(b)(6), the court is guided by two working principles. First, a court must accept as true all of the [factual] allegations contained in a complaint. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss" and a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. To maintain an action, an antitrust plaintiff must show both constitutional standing and antitrust standing. Antitrust standing is a threshold, pleading-stage inquiry and when a complaint by its terms fails to establish this requirement, the court, must dismiss it as a matter of law. Whether Plaintiffs Have Alleged Antitrust Injury Under Aluminum Warehousing Here, Plaintiffs allege a single market for raw Grade A milk in which both they and Defendants participate. They have thus not "disavowed" participation in the very market they allege Defendants restrained. Because Plaintiffs plausibly allege a single market in which both they and Defendants participate for the purchase and sale of raw Grade A milk, Aluminum Warehousing is distinguishable and does not require dismissal. Defendants' motion to dismiss on this basis is therefore denied. Plaintiffs' monopolization claims allege: Defendants and the co- conspirators have used their monopsony power to block access to the processors and leave the independent farmers and independent cooperatives without a market for their milk. In doing so, they have eliminated competition in the supply base and obtained a monopoly on the sell side of the market. This monopoly further enables Defendants and the [c]o-conspirators to further reduce the supply base and eliminate competition on the sell side of the market. Assessed as a totality, the antitrust injuries Plaintiffs allege as a result of Defendants' monopolistic conduct are the same injuries Plaintiffs allege in their monopsonization claims. Unless or until Plaintiffs can allege they suffered discernible injuries as a result of Defendants' alleged monopolization, they lack antitrust standing to assert their monopolization claims, regardless of whether they classify themselves as suppliers or competitors. Because Plaintiffs' monopolization claims fail to allege an "injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. Defendants' motion to dismiss those claims is granted. Whether to Dismiss Plaintiffs' Monopsonization Claims Because of Defendants' Cooperative Structure Plaintiffs further assert that DFA's monopsony power enables it to buy raw Grade A milk from Plaintiffs at a low cost, as Plaintiffs can no longer sell to other processors at a competitive price because Defendants have limited the avenues where Plaintiffs could otherwise sell their milk. Defendants used their control over the fluid Grade A milk supply market to force independent dairy cooperatives and independent dairy farmers to join DFA or market their milk through DMS. These actions have injured Plaintiffs by allowing the Defendants to acquire and maintain a monopsony and use their market power to suppress the price paid to the dairy farmers. Plaintiffs have also plausibly alleged that DMS may be liable as DFA's agent for their monopsonization claims. Stating that the antitrust laws permit the imposition of liability based upon a principal-agent relationship). The existence of an agency relationship need only be pled in compliance with Fed. R. Civ. P. 8. The pleading stage, accepting Plaintiffs' factual allegations as true, DMS's liability based upon an agency theory is plausibly alleged. For these reasons, Defendants' motion to dismiss Plaintiffs' monopsonization claims for lack of antitrust injury is denied. Whether Four Plaintiffs Should Be Dismissed for Failure to Plausibly Allege They Are Efficient Enforcers of the Antitrust Laws The court agrees that Plaintiffs have sufficiently alleged that because these four individuals are within the target area of Defendants' allegedly anticompetitive conduct. Whether these four individuals can satisfy the second prong of antitrust standing presents a closer question. Regarding the first efficient enforcer factor, the injuries alleged by the four non-supplier Plaintiffs are relatively clear and direct. Like the remaining Plaintiffs, they claim that they have systematically been paid artificially depressed prices for the raw Grade A milk they market, and that Defendants' conduct deprives them of the opportunity to receive a competitive price for that product. With respect to the second factor, there are more direct victims of the alleged conspiracy than the four non-supplier Plaintiffs as more than one hundred other dairy farmers allege that they dealt directly with DMS or at least one co-conspirator. Regarding the third and fourth factors, the calculation and apportionment of damages for the four non-supplier Plaintiffs may present considerable challenges. At the motion to dismiss stage, any holding that these damages would be speculative is premature. At the pleading stage, the four non-supplier Plaintiffs who did not supply raw Grade A milk to DMS or a co-conspirator plausibly allege that they are efficient enforcers of the antitrust laws. Defendants' motion to dismiss on that basis is therefore denied. A full-text copy of the District Court's August 21, 2017 Opinion and Order is available at http://tinyurl.com/ybeccr8rfrom Leagle.com. Garrett Sitts, Plaintiff, represented by Dana A. Zakarian, Esq. - dzakarian@nbparis.com - Nystrom Beckman & Paris LLP, pro hac vice. Garrett Sitts, Plaintiff, represented by Elizabeth A. Reidy, Esq. - ereidy@nbparis.com - Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin - gfranklin@primmer.com - Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq. jbeckman@nbparis.com - Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq. - wnystrom@nbparis.com - Nystrom Beckman & Paris LLP, pro hac vice. Ralph Sitts, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. Leon Atwell, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. Victor Barrick, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. Daniel Baumgarder, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. William Board, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. George Bolles, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. Roger Bolles, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. Andy Bollinger, Plaintiff, represented by Dana A. Zakarian, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Elizabeth A. Reidy, Esq., Nystrom Beckman & Paris LLP, pro hac vice, Gary L. Franklin, Primmer Piper Eggleston & Cramer PC, Joel G. Beckman, Esq., Nystrom Beckman & Paris LLP, pro hac vice & William C. Nystrom, Esq., Nystrom Beckman & Paris LLP, pro hac vice. Dairy Farmers of America, Inc., Defendant, represented by Alfred C. Pfeiffer, Jr., Esq. - al.pfeiffer@lw.com - Latham & Watkins LLP, pro hac vice, Elyse M. Greenwald, Esq. - elyse.greenwald@lw.com - Latham & Watkins LLP, Ian P. Carleton, Esq., Sheehey Furlong & Behm P.C., 30 Main St #600, Burlington, VT 05401, USA, Jennifer L. Giordano, Esq. - ennifer.giordano@lw.com - Latham & Watkins LLP, Margaret M. Zwisler, Esq. - margaret.zwisler@lw.com - Latham & Watkins LLP, pro hac vice & W. Todd Miller, Esq., -tmiller@bakerandmiller.com - Baker & Miller PLLC, pro hac vice. Dairy Marketing Services, LLC, Defendant, represented by Alfred C. Pfeiffer, Jr., Esq., Latham & Watkins LLP, pro hac vice, Elyse M. Greenwald, Esq., Latham & Watkins LLP, Ian P. Carleton, Esq., Sheehey Furlong & Behm P.C., Jennifer L. Giordano, Esq., Latham & Watkins LLP, Margaret M. Zwisler, Esq., Latham & Watkins LLP, pro hac vice & W. Todd Miller, Esq., Baker & Miller PLLC, pro hac vice. DEPUY ORTHOPAEDICS: Attorney Wants Hip Implant Trial Halted ----------------------------------------------------------- Amanda Bronstad, Texas Lawyer, reports that after losing hip implant verdicts of $502 million and $1.04 billion, it's no surprise that Johnson & Johnson's DePuy Orthopaedics Inc. doesn't want to go to trial again in September. But what it does want is a bit unusual. In court filings in August, Johnson & Johnson attorney John Beisner has sought to halt a Sept. 5 trial, but he also wants to remand more than 9,300 of the products liability cases pending in Dallas over DePuy's Pinnacle device back to the courts from whence they came. In a petition for writ of mandamus, Beisner, a Washington, D.C., partner at New York's Skadden, Arps, Slate, Meagher & Flom, has asked the U.S. Court of Appeals for the Fifth Circuit to halt the upcoming trial of eight plaintiffs, all from New York, scheduled to take place before U.S. District Judge Ed Kinkeade. He's raising the same argument in prior writ petitions and in the pending appeals of the two prior verdicts: The cases don't belong in Kinkeade's courtroom. "In short, the MDL court has decided that it is no longer constrained by the MDL statute or personal jurisdiction principles and can order trials of as many cases as it chooses instead of remanding these cases to courts of proper jurisdiction, as required by the MDL statute and basic jurisdictional principles," Mr. Beisner wrote. "Left unchecked, these rulings would encourage other MDL courts to stretch their authority to try claims, regardless of the relevant contacts with the forum or petitioners' consent." But plaintiffs attorney Mark Lanier, anticipating Johnson & Johnson's venue fight, moved July to remand some, but not all, of the cases for trial. He argued that cases brought in California and New York could use pretrial rulings Judge Kinkeade has already made involving those state laws. "This is a case where there are over 9,000 plaintiffs, and most of them are elderly," said Lanier, of The Lanier Law Firm in Houston. "They're hip implants. And what DePuy has said is that it will not settle any of these cases. So if J&J/DePuy won't settle any of them, and we have to try them, we need to come up with some trial schedule where we can get at least to the older people before they die." MDL judges are assigned to oversee pretrial matters, but the idea is for them to send cases back to their original courts for trial. In court papers, Mr. Lanier is pushing for Judge Kinkeade to oversee trials in other courts. Other MDL judges have done that in a pelvic mesh trial against Boston Scientific and in a pending trial over the blood thinner Xarelto, he wrote. He called Johnson & Johnson's arguments a case of "buyer's remorse," particularly since the last two verdicts have come from consolidated trials, a big reason why the awards were so large. Johnson & Johnson, he wrote, agreed to waive all venue concerns set forth by the U.S. Supreme Court's 1998 holding in Lexecon v. Milberg Weiss Bershad Hynes & Lerach. "Petitioners should not be permitted to rewrite history simply because they are dissatisfied with the outcomes of the last two bellwether trials," wrote Mr. Lanier, who has partnered with former U.S. Solicitor General Kenneth Starr in the plaintiffs' response filed on Aug. 14 to the writ petition. "Petitioners clearly consented to the district court's personal jurisdiction." That's not true, wrote Beisner in a reply filed on Aug. 17. He said Johnson & Johnson only consented to the first two bellwether trials, the first of which involved a single plaintiff. "From the beginning, petitioners' position has been that true bellwether trials should involve individual plaintiffs, not consolidated trials, to avoid confusing juries and to generate reliable information regarding how juries perceive the strength of various claims and defenses," he wrote. "When it became clear that the MDL court intended to continue trying consolidated cases, petitioners decided to stop consenting to trials." And that's why Mr. Beisner now insists that all the cases -- not just those in California and New York -- should be remanded because Judge Kinkeade doesn't have its consent to hold trials, according to Johnson & Johnson's response to Mr. Lanier's remand request. Mr. Beisner also gave an alternate motivation for why the plaintiffs are focused on remanding to just California and New York: Those states have uncapped punitive damages. [GN] DOMINO'S PIZZA: "Brown" Action Seeks Reimbursements --------------------------------------------------- Roy Brown, individually and on behalf of all others similarly situated, Plaintiff, v. Domino's Pizza, Inc., Defendant, Case No. 2:17-cv-12668 (E.D. Mich., August 14, 2017), seeks reimbursement of expenses related to the use of Defendant's delivery vehicles for pizza deliveries pursuant to the Fair Labor Standards Act of 1938, Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law. Plaintiff worked as a delivery driver assigned to three stores in Maryland. Defendant allegedly under-reimbursed Plaintiff and his colleagues for vehicular wear and tear, gas, and other driving- related expenses, thereby effectively paying them well below the minimum wage. [BN] Plaintiff is represented by: Michael N. Hanna, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954) 327-3016 Email: MHanna@forthepeople.com - and - C. Ryan Morgan, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Post Office Box 57007 Atlanta, GA 30343-1007 Tel: (404) 965-8811 Facsimile: (404) 496-7405 Email: RMorgan@forthepeople.com - and - Jeremiah Frei-Pearson, Esq. Antonino B. Roman, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Avenue, Suite 605 White Plains, NY 10601 Telephone: (914) 298-3281 Facsimile: (914) 824-1561 Email: jfrei-pearson@fbfglaw.com aroman@fbfglaw.com EQUITY RESIDENTIAL: Munguia-Brown Moves to Certify Two Classes -------------------------------------------------------------- The Plaintiffs in the lawsuit entitled JAVANNI MUNGUIA-BROWN, ANGELINA MAGANA, NORMA RODRIGUEZ, and DAVID BONFANTI, individually and on behalf of others similarly situated v. EQUITY RESIDENTIAL, a real estate investment trust, ERP OPERATING LIMITED PARTNERSHIP, a partnership, EQUITY RESIDENTIAL MANAGEMENT, L.L.C., EQR-WOODLAND PARK A LIMITED PARTNERSHIP, and EQR-WOODLAND PARK B LIMITED PARTNERSHIP, Case No. 4:16-cv-01225-JSW-MEJ (N.D. Cal.), ask the Court to certify the case as a class action for all causes of action and claims for monetary relief alleged in the Plaintiffs' second amended complaint. In this action, the Plaintiffs allege that Defendants Equity Residential and its corporate affiliates, ERP Operating Limited Partnership, Equity Residential Management, L.L.C., EQR-Woodland Park A Limited Partnership, and EQR-Woodland Park B Limited Partnership, which own and operate residential leased properties in California (or did during the Class Period), have charged their tenants late fees that violate Section 1671(d) of the California Civil Code and the California Unlawful Competition law. The Plaintiffs ask the Court to certify: -- a Standard Late Fee Class defined as: All Equity Residential tenants in California from September 3, 2010 until the date of class certification who were charged one or more late fee(s) under Equity Residential's standard late fee provision: 5% of the outstanding balance owed (capped at 5% of the total amount of monthly recurring charges) or $50, whichever is greater; and -- a Woodland Park Preexisting Lease Class defined as: All Equity Residential tenants in the Woodland Park Property from December 1, 2011 until Defendant sold the property in February 2016 who were charged one or more late fee(s) of $50 under Equity Residential's policy of charging a flat $50 late fee to tenants on pre-existing non-EQR leases. The Plaintiffs also ask the Court to appoint Plaintiff David Bonfanti as class representative for the Standard Late Fee Class, and Plaintiffs Javanni Munguia-Brown, Angelina Magana, and Norma Rodriguez as class representatives for the Woodland Park Preexisting Lease Class. They also seek the appointment of their counsel as class counsel. They further seek approval of their proposed class notices, and for order that the notices be issued to the proposed class members. The Court will commence a hearing on October 27, 2017, at 9:00 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=jQgIFVjY The Plaintiffs are represented by: Jason H. Tarricone, Esq. Margaret McBride, Esq. COMMUNITY LEGAL SERVICES IN EAST PALO ALTO 1861 Bay Road East Palo Alto, CA 94303 Telephone: (650) 326-6440 Facsimile: (866) 688-5204 E-mail: jason@clsepa.org mmcbride@clsepa.org - and - Linda M. Dardarian, Esq. Laura L. Ho, Esq. William Jhaveri-Weeks, Esq. Megan E. Ryan, Esq. Katharine L. Fisher, Esq. GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763-9800 Facsimile: (510) 835-1417 E-mail: ldardarian@gbdhlegal.com lho@gbdhlegal.com wjhaveriweeks@gbdhlegal.com mryan@gbdhlegal.com kfisher@gbdhlegal.com - and - Craig Nicholas, Esq. Alex Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: craig@nicholaslaw.org alex@nicholaslaw.org ERIE INDEMNITY: Beltz Appeals W.D. Pa. Ruling to Third Circuit -------------------------------------------------------------- Plaintiffs Patricia R. Beltz, Anita Sullivan and Joseph S. Sullivan filed an appeal from a court ruling in their lawsuit titled Patricia Beltz, et al. v. Erie Indemnity Co., et al., Case No. 1-16-cv-00179, in the U.S. District Court for the Western District of Pennsylvania. As previously reported in the Class Action Reporter, the lawsuit alleges that the retention of the Service Charges and Added Service Charges was improper because, for among other reasons, that retention constituted a breach of the Subscriber's Agreement and an Implied Covenant of Good Faith and Fair Dealing by Indemnity, breaches of fiduciary duty by Indemnity and the other defendants, conversion by Indemnity, and unjust enrichment by Defendants Jonathan Hirt Hagen, Thomas B. Hagen, Elizabeth A. Hirt Vorsheck, and Samuel P. Black, III, at the expense of Exchange. The appellate case is captioned as Patricia Beltz, et al. v. Erie Indemnity Co., et al., Case No. 17-2774, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Appellants PATRICIA R. BELTZ, JOSEPH S. SULLIVAN and ANITA SULLIVAN, Individually and on behalf of all others similarly situated, and derivatively on behalf of nominal defendant Erie Insurance Exchange, are represented by: Joseph H. Meltzer, Esq. Peter A. Muhic, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: jmeltzer@ktmc.com pmuhic@ktmc.com - and - William M. Radcliffe, III, Esq. RADCLIFFE & DEHAAS LLP 2 West Main Street Suite 700, P.O. Box 2012 Uniontown, PA 15401 Telephone: (724) 439-3900 E-mail: wmr@rightlawfirm.com Defendant-Appellee ERIE INDEMNITY CO. is represented by: Kenneth J. Holloway, Esq. DECHERT LLP One Bush Street, Suite 1600 San Francisco, CA 94104 Telephone: (415) 262-4582 E-mail: kenneth.holloway@dechert.com - and - Michael L. Kichline, Esq. William T. McEnroe, Esq. Ryan M. Moore, Esq. Jaclyn S. Whittaker, Esq. DECHERT LLP 2929 Arch Street 18th Floor, Cira Centre Philadelphia, PA 19104 Telephone: (215) 994-2439 Facsimile: (215) 994 2222 E-mail: michael.kichline@dechert.com william.mcenroe@dechert.com ryan.moore@dechert.com jaclyn.simon@dechert.com Defendant-Appellee J. RALPH BORNEMAN, JR., is represented by: Matthew R. Divelbiss, Esq. Thomas S. Jones, Esq. Katelyn M. Matscherz, Esq. JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 Telephone: (412) 394-7297 E-mail: mrdivelbiss@jonesday.com tsjones@jonesday.com kmatscherz@jonesday.com - and - Geoffrey J. Ritts, Esq. JONES DAY 901 Lakeside Avenue, North Point Cleveland, OH 44114 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 E-mail: gjritts@jonesday.com Defendants-Appellees JONATHAN HIRT HAGEN and THOMAS B. HAGEN are represented by: Christie C. Comerford, Esq. Lawrence G. McMichael, Esq. DILWORTH PAXSON LLP 1500 Market Street, Suite 3500E Philadelphia, PA 19102 Telephone: (215) 575-7000 Facsimile: (215) 575-7200 E-mail: ccomerford@dilworthlaw.com lmcmichael@dilworthlaw.com - and - Roger W. Richards, Esq. RICHARDS & ASSOCIATES 100 State Street, Suite 440 Erie, PA 16507 Telephone: (814) 455-0370 Defendant-Appellee ELIZABETH H. VORSHECK is represented by: Dorothy A. Davis, Esq. Daniel B. McLane, Esq. Thomas E. Sanchez, Esq. ECKERT SEAMANS CHERIN & MELLOTT LLC 600 Grant Street 44th Floor, US Steel Tower Pittsburgh, PA 15219 Telephone: (412) 566-5953 Facsimile: (412) 566-6099 E-mail: ddavis@eckertseamans.com dmclane@eckertseamans.com tsanchez@eckertseamans.com FACEBOOK INC: Settlement in "Campbell" Gets Final Approval ---------------------------------------------------------- In the case captioned MATTHEW CAMPBELL, et al., Plaintiffs, v. FACEBOOK INC., Defendant, Case No. 13-cv-05996-PJH(N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted the Plaintiffs' motions for final approval, attorneys' fees and costs, and service awards for the class representatives; and overruled the objection of Anna St. John. The case was filed on Dec. 30, 2013. This is a certified class action alleging violations of the federal Electronic Communications Privacy Act ("ECPA") and California's equivalent, the Invasion of Privacy Act ("CIPA"). Plaintiffs Campbell and Michael Hurley, as the class representatives, allege that Facebook's practice of scanning its users' messages without consent violates these statutes. Specifically, the allegations in this suit concern the links to websites ("URLs") that are sent in messages. They allege that Facebook's practice of scanning the content of their messages and its use of the URLs therein violates ECPA and CIPA. On Dec. 23, 2014, the Court granted in part and denied in part Facebook's motion to dismiss, finding that the complaint sufficiently alleged that Facebook's scanning was an "interception" of a private message under ECPA, and that the "ordinary course of business" and "consent" exceptions did not apply. On May 18, 2016, the Plaintiffs achieved certification of the class under Rule 23(b)(2) described as all natural-person Facebook users located within the United States who have sent, or received from a Facebook user, private messages that included URLs in their content (and from which Facebook generated a URL attachment), from within two years before the filing of this action up through the date of the certification of the class. The Court found that ascertainability and the Rule 23(a) requirements were met. However, the Court rejected the Plaintiffs' motion for class certification under Rule 23(b)(3), finding that individual issues of damages predominated over common ones. It therefore granted certification only under Rule 23(b)(2), relying on the Plaintiffs' representation that they sought only injunctive and declarative relief for the Rule 23(b)(2) class. Following the class certification ruling, the Plaintiffs filed the operative SAC, which contained new allegations in support of their targeted advertising and recommendation theories. On April 26, 2017, the Court granted preliminary approval of a proposed class settlement agreement. It certified a settlement class of all natural-person Facebook users located within the United States and its territories who have sent, or received from a Facebook user, private messages that included URLs in their content (and from which Facebook generated a URL attachment), from Dec. 30, 2011 to March 1, 2017. The key terms of the Settlement Agreement are: a. Declaratory Relief: Pursuant to the settlement, Facebook acknowledges its cessation of a number of practices in 2012, 2014, and 2017: b. The Like Count Increment: On or about Dec. 19, 2012, Facebook changed its source code so that the like count increment no longer included the number of shares, by users, of URLs in private messages that resulted in creation of EntShares. c. Sharing URL Data with Third Parties via Insights: On or about Oct. 11, 2012, Facebook changed its source code such that it ceased including information about URL shares in Facebook Messages that resulted in creation of EntShares (and attendant statistics and demographic information) within Insights and its related API. d. Uses URLs to Generate Recommendations: On or about July 9, 2014, Facebook changed its source code such that it ceased utilizing the PHP backend as the backup system for its Recommendations Feed. The PHP backend considered the number of times a URL had been shared in a Facebook Message. e. Uses of EntShares in Messages: As of March 1, 2017, Facebook confirms that it is not using any data from EntShares created from URL attachments sent by users in Facebook Messages for: (i) targeted advertising; (ii) sharing personally identifying user information with third parties; (iii) use in any public counters in the 'link_stats' and Graph APIs; and (iv) displaying lists of URLs representing the most recommended webpages on a particular website. f. The Data Policy Change: In January 2015, Facebook's Data Policy was revised to disclose that Facebook collects the 'content and other information' that people provide when they 'message or communicate with others.' g. The Supplemental Help Center Disclosure: Facebook will display the following message on its United States Help Center website, for one year: We use tools to identify and store links shared in messages, including a count of the number of times links are shared. h. Attorneys' fees and costs of up to $3.89 million: Facebook agrees to take no position on plaintiffs' attorneys' fee application. The amount was negotiated independently of the other settlement terms. i. Incentive awards of $5,000 for the two class representatives. j. The Settlement Class Members' Released Claims are claims that arise out of, are based on, or relate in any way to the practices and claims that were alleged in, or could have been alleged in, the Action but not including claims for monetary relief, damages, or statutory damages. The class representatives' release is broader, releasing claims for monetary damages as well. The Plaintiffs now move for final approval of the settlement, an award of the full $3.89 million in attorneys' fees and costs permitted under the agreement, and incentive awards for the Named Plaintiffs. Objector asserts that the class would get "no value" from the settlement. Judge Hamilton disagrees saying the objector completely discounts the Help Center disclosure, as well as the value of the declaratory relief and the Data Policy change, which were the result of the litigation and are clearly acknowledged in the Settlement Agreement. In light of the Data Policy change and Facebook's representation of "cessation" of practices, it is not clear what further benefit the class could obtain if the case proceeded. The class would receive nothing if the case continued and Facebook prevailed on summary judgment. The Judge granted final approval of the settlement. Judge Hamilton also granted approval of the $3.89 million in attorneys' fees and costs sought by the Plaintiffs. To be sure, $3.89 million is still a significant fees award. However, she finds that the class counsel achieved an excellent result for the class and fully earned their fee. Finally, the Judge approved the $5,000 incentive awards for the two named class representatives, Campbell and Hurley. The amount sought is presumptively reasonable in this district. For these reasons, Judge Hamilton granted the Plaintiffs' motions for final settlement approval, an award of attorneys' fees, and incentive awards. She overruled St John's objections. A full-text copy of the District Court's Aug. 18, 2017 Order is available at https://is.gd/PtWPGa from Leagle.com. Matthew Campbell, Plaintiff, represented by David Taylor Rudolph - - drudolph@lchb.com -- Lieff Cabraser Heimann and Bernstein, LLP. Matthew Campbell, Plaintiff, represented by David F. Slade -- dslade@cbplaw.com -- Carney Bates & Pulliam, PLLC, James Allen Carney -- acarney@cbplaw.com -- Carney Bates Pulliam, PLLC, Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz Grossman Hufford Dahlstrom & Gross LLP, Joseph Henry Bates, III -- jhbates@cbplaw.com -- Carney Bates & Pulliam, PLLC, Lesley F. Portney -- lportnoy@glancylaw.com -- Pomerantz, LLP, Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP, Nicholas Diamand, Lieff Cabraser Heimann and Bernstein LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP & Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP. Michael Hurley, Plaintiff, represented by David Taylor Rudolph, Lieff Cabraser Heimann and Bernstein, LLP, David F. Slade, Carney Bates & Pulliam, PLLC, James Allen Carney, Carney Bates Pulliam, PLLC, Jeremy A. Lieberman, Pomerantz Grossman Hufford Dahlstrom & Gross LLP, Joseph Henry Bates, III, Carney Bates & Pulliam, PLLC, Lesley F. Portney, Pomerantz, LLP, Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP, Nicholas Diamand, Lieff Cabraser Heimann and Bernstein LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP & Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP. David Shadpour, Plaintiff, represented by Jon A. Tostrud -- -- jtostrud@tostrudlaw.com -- Tostrud Law Group, P.C., Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, David Taylor Rudolph, Lieff Cabraser Heimann and Bernstein, LLP, David F. Slade, Carney Bates & Pulliam, PLLC, James Allen Carney, Carney Bates Pulliam, PLLC, Jeremy A. Lieberman, Pomerantz Grossman Hufford Dahlstrom & Gross LLP, Joseph Henry Bates, III, Carney Bates & Pulliam, PLLC, Lesley F. Portney, Pomerantz, LLP, Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP, Nicholas Diamand, Lieff Cabraser Heimann and Bernstein LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP & Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP. Facebook Inc., Defendant, represented by Christopher Chorba -- cchorba@gibsondunn.com -- Crutcher LLP, Joshua Aaron Jessen -- jjessen@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Ashley Marie Rogers -- arogers@gibsondunn.com -- Gibson Dunn and Crutcher LLP & Priyanka Rajagopalan. Anna St. John, Objector, represented by William Isaac Chamberlain -- will.chamberlain@cei.org -- Competitive Enterprise Institute. FACEBOOK INC: Message Scanning Settlement OK'd Despite Objections ----------------------------------------------------------------- The Recorder reports that in spite of stiff objections from a class action watchdog group, a federal judge approved a settlement Facebook reached in a case accusing the social media giant of inappropriately scanning users' private messages for URL links. Lawyers at the Competitive Enterprise Institute's Center for Class Action Fairness labeled the no-cash deal "cynical" in court papers filed earlier this year. At a hearing before U.S. District Chief Judge Phyllis Hamilton on Aug. 9, CCAF's William Chamberlain said the settlement offered little more to consumers than a 22-word statement set to be posted on a seldom-viewed Facebook help page. Mr. Chamberlain also objected to the more than $3.8 million in fees and costs the plaintiffs' legal team requested for its work. "These disclosures are meaningless, they are valueless to the class," Mr. Chamberlain said. [GN] FARE DEPOT: Faces "Portillo" Suit in C. Dist. of Cal. ----------------------------------------------------- A class action lawsuit has been filed against Fare Depot LLC. The case is styled as Mynor F Portillo, individually, and on behalf of all others similarly situated, Plaintiff v. Fare Depot LLC, a Delaware corporation and Does 1 - 10 inclusive, Defendants, Case No. 2:17-cv-06318 (C.D. Cal., August 26, 2017). Fare Depot LLC is in the travel agencies business.[BN] The Plaintiff is represented by: Scott J Ferrell, Esq. Pacific Trial Attorneys APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Tel: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com FIFTH THIRD: Can Compel Arbitration in "Jenkins" FCRA Suit ---------------------------------------------------------- Judge Timothy S. Black of the U.S. District Court for the Southern District of Ohio, Western Division, granted the Defendant's motion to compel arbitration in the case captioned RANDY JENKINS, individually and on behalf of all others similarly situated, Plaintiff, v. FIFTH THIRD BANK, Defendant, Case No. 1:16-cv- 976(S.D. Ohio), and dismissed the action without prejudice. The Defendant is a bank that offers consumer lending, among other banking services. In December, 2008, the Plaintiff opened a credit card account with the Defendant and subsequently incurred debt owed to the Defendant. Pursuant to the Defendant's automated credit processing system, upon opening the Account, the Plaintiff was mailed his Credit Card with a copy of the terms governing the Account. The Cardmember Agreement also contains an Arbitration Agreement. While the Cardmember Agreement was revised several times over the next few years, the Arbitration Agreement remained substantively the same from Oct. 13, 2008 to May 1, 2012. For more than two years, the Plaintiff used the Credit Card to make charges to the Account and received monthly statements reflecting his activity. On or about Aug. 12, 2011, he made his last purchase on the Account. On Sept. 16, 2011, he became delinquent on the Account. On March 30, 2012, the Defendant "charged off" the Plaintiff's delinquent balance after he Plaintiff continually failed to make payments. On Nov. 29, 2012, the Plaintiff filed for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the District of Nevada. On March 6, 2013, the Bankruptcy Court granted the Plaintiff a discharge, which included the debt owed to the Defendant. He did not make any charges to the Account after the discharge. On Sept. 30, 2013, and March 3, 2014, the Defendant submitted credit report inquiries to TransUnion, a credit reporting agency. The Plaintiff alleges these inquiries were unlawful because the bankruptcy discharge extinguished any relationship between the Plaintiff and the Defendant. He further claims the Defendant's credit inquiries fall outside the scope of permissible uses provided for under 15 U.S.C. Section 1681b. On Oct. 21, 2016, the Plaintiff filed, on behalf of himself and all others similarly situated, a single-count complaint asserting the Defendant's post- discharge credit report inquiries violated the Fair Credit Reporting Act ("FCRA"). The Defendant has moved to dismiss (or in the alternative, stay) the action on the grounds that the Arbitration Agreement requires the Plaintiff to arbitrate his claim. The Plaintiff opposes the Defendant's motion. Judge Black finds that the Defendant submitted affirmative evidence that the Plaintiff used the Credit Card after he was sent the Cardmember Agreement and that the Plaintiff received multiple revisions of the Cardmember Agreement throughout the period in which he was using the Credit Card to make charges to the Account. The Plaintiff does not dispute that he used the Credit Card to make purchases on the Account and admits he listed the Defendant as a creditor for the Account in his bankruptcy case. In these circumstances, he finds that the Plaintiff's use of the Credit Card amounted to consent of the Arbitration Agreement. He also finds that the Plaintiff does not allege the Defendant attempted to collect discharged debt; his sole claim is premised on his allegation that the Defendant violated the FCRA by submitting unauthorized credit inquiries. Judge Black says this is not a "core" bankruptcy proceeding, and referring this claim to arbitration will not impose any financial liability on the Plaintiff, interfere with his "fresh start" guaranteed by the discharge, nor otherwise conflict with the purposes of the Bankruptcy Code. In these circumstances, he will enforce the Arbitration Agreement. As to the Plaintiff's argument that the Arbitration Agreement is an adhesion contract and ambiguous terms should be construed against the Defendant as the drafter, the Judge concludes this argument fails because the Plaintiff's argument is not well-taken. First, any ambiguities in the Arbitration Agreement "should be resolved in favor of arbitration." Second, even if the Court were to construe the Cardmember Agreement against Defendant, there are no ambiguities to interpret. Third, unequal bargaining power, in and of itself, is not legally or equitably sufficient to hold an arbitration agreement unenforceable. Judge Black will enforce the plain terms of the Arbitration Agreement and refer the Plaintiff's claim to arbitration so that the latter will be able to vindicate his FCRA rights through arbitration. He further finds that the Plaintiff has not shown the Arbitration Agreement to be overbroad nor contrary to public policy. Finally, because the Plaintiff's only claim has been referred to arbitration, Judge Black will dismiss the case without prejudice. For these reasons, Judge Black granted the Defendant's motion to compel arbitration, and dismissed without prejudice the civil action. A full-text copy of the Court's Aug. 22, 2017 Order is available at https://is.gd/Tklrfd from Leagle.com. Randy Jenkins, Plaintiff, represented by W. Mark Jump, Jump Legal Group. Randy Jenkins, Plaintiff, represented by Abbas Kazerounian, pro hac vice, Joshua Swigart -- josh@westcoastlitigation.com -- pro hac vice & Veronica McKnight, pro hac vice. Fifth Third Bank, Defendant, represented by Robert Thomas Razzano -- rrazzano@bakerlaw.com -- Baker & Hostetler LLP & Joel C. Griswold -- jcgriswold@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice. FIFTH THIRD: Sued by Malagese Over Collection of Overdraft Fees --------------------------------------------------------------- David Malagese, on behalf of all persons similarly situated v. Fifth Third Bank, Case No. 3:17-cv-00489-JHM (W.D. Ky., August 11, 2017), seeks monetary damages, restitution and declaratory relief from the Defendant, arising from the alleged unfair and unconscionable assessment and collection of "Overdraft Fees" on accounts that were never actually overdrawn. Fifth Third is a national bank with its headquarters and principal place of business located in Cincinnati, Ohio. Among other things, Fifth Third is engaged in the business of providing retail banking services to consumers, including the Plaintiff and members of the putative classes, which includes the issuance of debit cards for use by its customers in conjunction with their checking accounts. Fifth Third operates banking centers and, thus, conducts business, throughout the State of Kentucky and the United States.[BN] The Plaintiff is represented by: John C. Whitfield, Esq. Caroline Ramsey Taylor, Esq. WHITFIELD BRYSON & MASON LLP 19 North Main Street Madisonville, KY 42431 Telephone: (270) 821-0656 Facsimile: (270) 825-1163 E-mail: john@wbmllp.com caroline@wbmllp.com - and - Gary Mason, Esq. WHITFIELD BRYSON & MASON LLP 5101 Wisconsin Ave. NW, Suite 305 Washington, DC 20016 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 E-mail: gary@wbmllp.com - and - Richard D. McCune, Esq. Jae (Eddie) K. Kim, Esq. MCCUNE WRIGHT LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 Telephone: (909) 557-1250 E-mail: rdm@mccunewright.com jkk@mccunewright.com - and - Taras P. Kick, Esq. THE KICK LAW FIRM APC 201 Wilshire Boulevard, Suite 350 Santa Monica, CA 90401 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 - and - Jeffrey M. Ostrow, Esq. KOPELOWITZ OSTROW P.A. 200 S.W. 1st Avenue, 12th Floor Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: ostrow@kolawyers.com FORTERRA INC: "Forrester" Hits IPO Flop, Non-disclosure of Facts ---------------------------------------------------------------- Charles Forrester, individually and on behalf of all others similarly situated, Plaintiff, vs. Forterra, Inc., Jeffrey Bradley, William Matthew Brown, Lori M. Browne, Kyle S. Volluz, Kevin Barner, Robert Corcoran, Samuel D. Loughlin, Clint Mcdonnough, John Mcpherson, Chris Meyer, Jacques Sarrazin, Chadwick Suss, Grant Wilbeck, Forterra US Holdings, LLC, Mid Holdings, Concrete Holdings, LSF9 Concrete Ltd, LSF9 Concrete II Ltd, Stardust Holdings, LSF9 Stardust GP, LLC, Lone Star Fund IX (U.S.), L.P., Lone Star Partners IX, L.P., Lone Star Management Co. IX, Ltd., John P. Grayken, Goldman, Sachs & Co., Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, Defendants, Case No. 2:17-cv-04763 (Cal. Super., August 14, 2017), seeks to pursue remedies under the Securities Act of 1933 in connection with Forterra's October 21, 2016 initial public stock offering (IPO). Forterra is a manufacturer of pipes and various precast products for water-related infrastructure applications, including water transmission, distribution and drainage. It operates 96 manufacturing facilities located across North America. Forrester alleges that Forterra failed to disclose that organic sales in its drainage and water segments had significantly declined in the months leading up to the IPO, that the Company was relying on highly-leveraged, expensive acquisitions to make up for those lost sales, that the Company was experiencing increased pricing pressure to significantly lower prices due to competition, that its concrete and steel pipe business softened, accounting for 10% of its annual sales, that Forterra had not accrued expenses for in the months leading up to the IPO, thus understating its expenses and overstating its profits and control deficiencies related to physical inventory counts. Forterra common stock is trading below $5 per share, a decline of approximately 75% from the IPO price. [BN] Plaintiff is represented by: Samuel H. Rudman, Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Tel: (631) 367-7100 Fax: (631) 367-1173 Email: srudman@rgrdlaw.com mblasy@rgrdlaw.com - and - Corey D. Holzer, Esq. Marshall P. Dees, Esq. HOLZER & HOLZER, LLC 1200 Ashford Parkway, Suite 410 Atlanta, GA 30338 Tel: (770) 392-0090 Fax: (770) 392-0029 Email: cholzer@holzerlaw.com mdees@holzerlaw.com FRANCIS AIR: Mouillet-Gold Seeks to Recover Wages Under FLSA ------------------------------------------------------------ FREDERIC IMPORTE MOUILLET-GOLD And other similarly situated individuals v. FRANCIS AIR CONDITIONING & APPLIANCES INC. a Florida Profit Corporation; PERCIVAL FRANCIS, individually; ALEXANDRE COHEN, individually, Case No. 0:17-cv-61614-DPG (S.D. Fla., August 11, 2017), is brought for alleged damages exceeding $15,000, excluding attorneys' fees or costs, for unpaid wages under the Fair Labor Standards Act. Francis Air Conditioning & Appliances Inc. is a Florida Profit Corporation located in Broward County, Florida, where the Plaintiff worked for the Defendant. The Individual Defendants are officer of, and exercised operational control over the activities of, the Corporate Defendant. Francis Air Conditioning is a full-service HVAC company located in Southeast Florida. The Company serves customers throughout Miami- Dade, Broward and Palm Beach County. The Company's technicians are available 24-hours a day, 7 days a week.[BN] The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler St., Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com rregueiro@rgpattorneys.com pn@rgpattorneys.com GENERAL MOTORS: Another Ignition Switch Bellwether Trial Set ------------------------------------------------------------ Andrew Denney, writing for New York Law Journal, reports that as General Motors is scheduled later this year to face yet another bellwether trial over allegations it covered up a deadly ignition switch flaw, it can take some comfort from its generally- successful trial record. But critics of the bellwether system are saying that way of lining up trials does not provide an accurate way of keeping score. In July, the seventh bellwether trial, held before New York Southern District Judge Jesse Furman, ended in a third jury verdict in GM's favor. Attorneys for Dennis Ward, an Arizona man who says he was injured in a 2014 fender bender caused by a faulty ignition switch in his 2009 Chevrolet HHR that made the vehicle lose power while he was driving in traffic, were unable to convince the jury that the automaker was to blame for the accident. It was the second favorable verdict for GM from a Southern District jury; a state jury in Texas also returned a verdict in favor of the automaker. Three other cases settled before they went to trial and two were dismissed by the plaintiffs. Bellwether trials have become an increasingly popular method of dealing with mass torts that are intended to reach jury verdicts that can be used as a basis for the parties to settle other cases. But Alexandra Lahav, a University of Connecticut School of Law professor who is an expert on bellwether trials, says GM's track record so far in the bellwether cases has not been illustrative of the results of the thousands of cases involving GM's ignition switches, which were linked to 124 deaths and thousands of injuries. What the numbers indicate, Mr. Lahav said, is that GM has "won a few cases." "GM has done a great job of litigating these cases. That's clear," Mr. Lahav said. "At the same time, they might be shooting fish in a barrel." The problem with bellwethers in the GM litigation, Mr. Lahav said, is that GM and the plaintiffs were allowed to pick which cases they wanted to bring to trial, which she said leads to each side picking the "outlier cases" that they believe they can win at trial, rather than those that would be representative of the entire universe of cases. Additionally, in the most serious cases against GM, the automaker possesses a "trump card" in that it can reach settlements with the plaintiffs, said Elizabeth Burch, a professor at the University of Georgia School of Law and an expert in complex litigation. "The money is on the table and a lot of people prefer the finality of it instead of having to go through litigation," Burch said. In 2015, GM announced that it would pay $575 million to settle 1,380 death and personal injury claims. Last year, as the first of the bellwether trials was set to commence, settlement payments were a source of strife between members of the plaintiffs counsel. [GN] GENPACT SERVICES: Faces "Pinyuk" Suit in E.D. of New York --------------------------------------------------------- A class action lawsuit has been filed against Genpact Services LLC. The case is styled as Nataliya Pinyuk, on behalf of herself and all similarly situated consumers, Plaintiff v. Genpact Services LLC, Defendant, Case No. 1:17-cv-05059 (E.D. N.Y., August 26, 2017). Genpact is a global professional services firm delivering digital transformation by putting digital and data to work to create competitive advantage.[BN] The Plaintiff is represented by: Maxim Maximov, Esq. Maxim Maximov, LLP 1701 Avenue P Brooklyn, NY 11229 Tel: (718) 395-3459 Fax: (718) 408-9570 Email: m@maximovlaw.com GLOBE LIFE: Court Denies Class Certification in "Proctor" Suit -------------------------------------------------------------- Judge Vicki Miles-LaGrange of the U.S. District Court for the Western District of Oklahoma declined to certify class in the case captioned MICHAEL PROCTOR, an Individual, on behalf of himself and all others similarly situated, Plaintiff, v. GLOBE LIFE AND ACCIDENT INSURANCE COMPANY, Defendant, Case No. CIV-15-750-M (W.D. Okla.). Since 1951, the Defendant has sold life insurance policies to people throughout the United States. Over the years, it has developed certain practices regarding the payment of premiums. Those practices are as follows: (i) there is a 31-day grace period in which to make a payment from the due date; after the grace period has passed, the policy is lapsed and the coverage is not active; (ii) when a policy has lapsed beyond the 31 day grace period, it will accept payment up to 120 days lapsed without reinstatement provided the insured is in good health (if not in good health, reinstatement is required); and (iii) after the 120th day of lapse, payment cannot be accepted and the insured must apply for reinstatement and pay all back premiums to bring the policy current in order for reinstatement to be considered. Through the instant action, the Plaintiff is challenging the Defendant's practice during the period when the policy is lapsed between 32 and 120 days. He contends that this practice is directly and expressly contrary to the provisions of its life insurance policies. He asserts that whenever defendant accepts premiums on a life insurance policy that has already lapsed, in any amount less than all of the overdue premiums, such that the policy is not brought current and reinstated at that time, those premiums should be returned to the insured. The Plaintiff now moves the Court on Sept. 23, 2016 to certify a nationwide class in this case. Specifically, he moves to certify the class of all Globe policyholders residing in the United States (including its Territories and the District of Columbia) that paid Globe life insurance policy premium payments, which Globe retained, at a time when that life insurance policy was already lapsed and was not reinstated with such payment. On Nov. 4, 2016, the Defendant filed its response, and on Dec. 2, 2016, the Plaintiff filed his reply. Judge Miles-LaGrange held that the Plaintiff fails to (i) identify the particular state law claims he is asserting on behalf of the class; (ii) provide any analysis of state law variances, such as varying statutes of limitations and varying standards for the admissibility of parole evidence; (iii) show that certification of a nationwide class would not present insuperable obstacles; and (iv) provide any suitable or realistic plan for trial of the class claims in light of any variations in state law. Accordingly, she denied the Plaintiff's Motion for Class Certification. Judge Miles-LaGrange opines that even assuming that the Plaintiff could satisfy the prerequisites set forth in Rule 23(a)5, the Court finds that he has not met his burden of establishing that the questions of law or fact common to the proposed class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Judge Miles- LaGrange adds, among other things, that the Plaintiff also fails to provide any analysis of state law variances, such as varying statutes of limitations and varying standards for the admissibility of parol evidence, and fails to show that certification of a nationwide class would not present insuperable obstacles. A full-text copy of the District Court's Aug. 18, 2017 Order is available at https://is.gd/8YnCVm from Leagle.com. Michael Proctor, Plaintiff, represented by Mark A. Engel -- mansell-engel@coxinet.net -- Mansell & Engel PC. Michael Proctor, Plaintiff, represented by Steven S. Mansell, Mansell & Engel PC, Kenneth G. Cole, Mansell Engel & Cole PC, Mark A. Engel, Mansell & Engel PC, Steven S. Mansell, Mansell & Engel PC & Kenneth G. Cole, Mansell Engel & Cole PC. Globe Life And Accident Insurance Company, Defendant, represented by John D. Russell -- jrussell@gablelaw.com -- Gable & Gotwals, Steven J. Adams -- sadams@gablelaw.com -- Gable & Gotwals & Tammy D. Barrett -- tbarrett@gablelaw.com -- Gable & Gotwals. GOOGLE INC: 9th Cir. Affirms Final Nod in Privacy Litigation Deal ----------------------------------------------------------------- In the case captioned IN RE GOOGLE REFERRER HEADER PRIVACY LITIGATION. PALOMA GAOS; ANTHONY ITALIANO; GABRIEL PRIYEV, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. MELISSA ANN HOLYOAK; THEODORE H. FRANK, Objectors-Appellants, v. GOOGLE, INC., a Delaware corporation, Defendant-Appellee, No. 15-15858(9th Cir.), Judge Mary Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order granting final approval of the settlement on March 31, 2015. In these consolidated class actions, three Google Search users -- Gaos, Italiano, and Priyev -- asserted claims for violation of the Stored Communications Act; breach of contract; breach of the covenant of good faith and fair dealing; breach of implied contract; and unjust enrichment. They sought statutory and punitive damages and declaratory and injunctive relief for the alleged privacy violations. The claimed privacy violations are the consequence of the browser architecture. The genesis of the Plaintiffs' complaints is the application of the search protocol, coupled with Google's "Web History" service, which tracks and stores account holders' browsing activity on Google's servers. Following mediation, the parties reached a settlement, which they submitted to the district court for preliminary approval in July 2013. The settlement provided that Google would pay a total of $8.5 million and provide information on its website disclosing how users' search terms are shared with third parties, in exchange for a release of the claims of the approximately 129 million people who used Google Search in the United States between Oct. 25, 2006 and April 25, 2014 (the date the class was given notice of the settlement). Of the $8.5 million settlement fund, approximately $3.2 million was set aside for attorneys' fees, administration costs, and incentive payments to the named plaintiffs. The remaining $5.3 million or so was allocated to six cy pres recipients, each of which would receive anywhere from 15 to 21% of the money, provided that they agreed to devote the funds to promote public awareness and education, and/or to support research, development, and initiatives, related to protecting privacy on the Internet. The six recipients were AARP, Inc.; the Berkman Center for Internet and Society at Harvard University; Carnegie Mellon University; the Illinois Institute of Technology Chicago-Kent College of Law Center for Information, Society and Policy; the Stanford Center for Internet and Society; and the World Privacy Forum. Each of the recipients submitted a detailed proposal for how the funds would be used to promote Internet privacy. After a hearing, the district court certified the class for settlement purposes and preliminarily approved the settlement. Notice was given to the class on April 25, 2014, via a website, toll-free telephone number, paid banner ads, and press articles. Thirteen class members opted out of the settlement, and five class members, including Holyoak and Frank, filed objections. Following a final settlement approval hearing at which the district court heard from both the parties and Objectors, the district court granted final approval of the settlement on March 31, 2015. With respect to the objections, the district court found that: (i) a cy pres -- only settlement was appropriate because the settlement fund was non-distributable; (ii) whether or not the settlement was cy pres -- only had no bearing on whether Rule 23(b)(3)'s superiority requirement was met; (iii) the cy pres recipients had a substantial nexus to the interests of the class members, and there was no evidence that the parties' preexisting relationships with the recipients factored into the selection process; and (iv) the attorneys' fees were commensurate with the benefit to the class. The district court awarded $2.125 million in fees to class counsel and $15,000 in incentive awards to the three Named Plaintiffs. Objectors appealed. As an initial matter, Judge McKeown quickly disposes of the argument that the district court erred by approving a cy pres-only settlement. Notably, Objectors do not contest the value of the settlement nor do they plead monetary injury. To be sure, cy pres-only settlements are considered the exception, not the rule. The district court did not abuse its discretion in finding the superiority requirement was met because the litigation would otherwise be economically infeasible. This finding dovetails with the rationale for the cy pres-only settlement. She then turns to the crux of the appeal: whether approval of the settlement was an abuse of discretion due to claimed relationships between counsel or the parties and some of the cy pres recipients. As an overarching matter, nothing in the record raises substantial questions about whether the selection of the recipient was made on the merits. Judge McKeown does not suggest, however, that a party's prior relationship with a cy pres recipient could not be a stumbling block to approval of a settlement. She holds merely that, under the circumstances here, the district court did not abuse its discretion in approving the cy pres recipients. Turning to the issue of attorneys' fees, the district court did not abuse its discretion by approving $2.125 million in fees and $21,643.16 in costs, Judge McKeown finds. As an initial matter, she says there is no support for Objectors' view that the settlement should have been valued at a lower amount for the purposes of calculating attorneys' fees simply because it was cy pres-only. Rather, the question is whether the amount of attorneys' fees was reasonable. Although not required to do so, the district court took an extra step, cross-checking this result by using the lodestar method. It found that class counsel provided sufficient support for its lodestar calculation that fees totaled $2,126,517.25. Therefore, Judge McKeown affirmed. A full-text copy of the Ninth Circuit's Aug. 22, 2017 Opinion is available at https://is.gd/i9Tw70 from Leagle.com. Theodore H. Frank (argued), Melissa A. Holyoak, and Adam Ezra Schulman, Competitive Enterprise Institute, Center for Class Action Fairness, Washington, D.C., for Objectors-Appellants. Kassra P. Nassiri (argued) and John J. Manier, Nassiri & Jung LLP, San Francisco, California, for Plaintiffs-Appellees. Donald M. Falk -- dfalk@mayerbrown.com -- (argued) and Edward D. Johnson -- wjohnson@mayerbrown.com -- Mayer Brown LLP, Palo Alto, California; Daniel E. Jones -- djones@mayerbrown.com -- Mayer Brown LLP, Washington, D.C.; Randall W. Edwards -- redwards@omm.com -- O'Melveny & Myers LLP, San Francisco, California; for Defendant-Appellee. GUIDANCE SOFTWARE: Merger Docs Lacking Projections, Claims "Berg" ----------------------------------------------------------------- Robert Berg, individually and on behalf of all others similarly situated, Plaintiff, v. Guidance Software, Inc., Robert Van Schoonenberg, Reynolds C. Bish, Max Carnecchia, John Colbert, Patrick Dennis, Michael Mcconnell, Wade W. Loo, Open Text Corporation and Galileo Acquisition Sub Inc., Defendants, Case No. 2:17-cv-01033 (W.D. Wisc., July 25, 2017), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of Guidance Software, Inc. by Open Text Corporation, rescinding it and setting it aside or awarding rescissory damages in the event defendants consummate the merger. The suit also seeks costs of this action, including reasonable allowance for attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Shareholders of Guidance will receive $7.10 in cash for each share. Defendants locked up the merger by agreeing to a "no solicitation" provision that prohibits the solicitation of alternative proposals. The merger documents omitted the Company's financial projections and the analyses performed Morgan Stanley & Co. including unlevered free cash flow forecasts for years 2017 through 2021, says the complaint. Guidance is a global provider of digital investigative solutions. The Company's EnCase platform provides an investigative infrastructure that enables its customers to search, collect, and analyze electronically stored information in order to address human resources matters, litigation matters, allegations of fraud, suspicious network endpoint activity, and to defend and secure their organization's data assets. [BN] Plaintiff is represented by: Brian D. Long, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Tel: (302) 295-531 Facsimile: (302) 654-7530 Email: bdl@rl-legal.com - and - Joel E. Elkins, Esq. WEISSLAW LLP 9107 Wilshire Blvd., Suite 450 Beverly Hills, CA 90210 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 HCL COLLECTIONS: Faces "Linden" Suit in Dist. of Mass. ------------------------------------------------------ A class action lawsuit has been filed against HCL Collections Solutions, LLC doing business as: Account Recovery Services. The case is styled as Monica Linden, on behalf of herself and all others similarly situated, Plaintiff v. HCL Collections Solutions, LLC doing business as: Account Recovery Services, Defendant, Case No. 1:17-cv-11598-PBS (D. Mass., August 25, 2017). HCL offers end-to-end receivables collection and recovery management services that generate additional profits and build greater organizational efficiencies.[BN] The Plaintiff is represented by: Kenneth D. Quat, Esq. Quat Law Offices 929 Worcester Road Framingham, MA 01701 Tel: (508) 872-1261 Email: kquat@quatlaw.com HILTON HOTELS: Bid to Dismiss Amended "White" Suit Partly Granted ----------------------------------------------------------------- Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia granted in part and denied in part the Defendants' Motion to Dismiss the case captioned VALERIE R. WHITE, et al., Plaintiffs, v. HILTON HOTELS RETIREMENT PLAN, et al., Defendants, Civil Action No. 16-856 (CKK)(D. D.C.). Pending before the Court is the Defendants' Motion to Dismiss the Amended Class Action Complaint, brought pursuant Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Named Plaintiffs bring this putative class action under the Employee Income Security Act of 1974 ("ERISA") with respect to certain vesting determinations made by the Hilton Hotels Retirement Plan. This matter was noticed as related to Kifafi v. Hilton Hotels Retirement Plan, an action over which the Court concluded its jurisdiction in December 2015, after more than 17 years of litigation. In Kifafi, the Court certified a benefit- accrual class and certain vesting subclasses. Plaintiff White was employed at the Washington Hilton between June 21, 1972 and March 26, 1982. Her service prior to Jan. 1, 1976 has been calculated pursuant to the elapsed time method, and her claim for retirement benefits was denied because she failed to meet the minimum 10 years of vesting service required under the Plan for employees who terminated their employment prior to 1989. The Plaintiffs contend that it was improper for the Plan to use the elapsed time method for pre-1976 service, and consequently, that the denial of her benefits was in error. Plaintiff Eva Juneau seeks retirement benefits for alleged employment with Hilton properties between April 22, 1991 and Nov. 10, 2000. The Defendants informed Plaintiff Juneau by letter dated Feb. 4, 2015 that a portion of her claimed employment was not reflected in their records, and asked her to submit additional evidence of that employment. Despite this and another opportunity to do so, no additional evidence was provided, and the claim was denied. The Plaintiffs allege, however, that records requested and received from the Defendants do not identify any non- participating property that is also not a Related Company. Plaintiff Peter Betancourt seeks benefits as an alleged beneficiary of his father, Pedro Betancourt, who worked for Hilton between 1947 and 1979, and died in 1985. His claim was denied by letter dated June 3, 2015, which indicated that the applicable Plan document does not provide for a death benefit to anyone other than the surviving spouse, and because Defendants determined that his claim was untimely. The Complaint alleges that Betancourt is vested. Judge Kollar-Kotelly concludes that the instant action concerns claimants with alleged grievances that are not alleged to fall within the narrow classes certified in Kifafi. Nonetheless, the Amended Complaint is replete with allegations that the legal issues underlying this new putative class action have already been decided by the Court in Kifafi, and that such determinations are binding under the doctrines of res judicata and offensive collateral estoppel. For two of the Named Plaintiffs and their associated categories of claims, she needs not decide what if any effect its prior rulings in Kifafi may have, because these claims are sufficient to survive a motion to dismiss on their own accord. With respect to the third Named Plaintiff, Betancourt, the Judge finds that his claim (and by extension, those of the associated putative subclass) are not plausible, and that dismissal without prejudice is appropriate pursuant to Rule 12(b)(6). Her conclusion is unchanged by the Plaintiffs' arguments regarding the Court's prior rulings. For these reasons, Judge Kollar-Kotelly granted in part and denied in part the Defendants' Motion to Dismiss. The claims of Plaintiffs White and Juneau, and those of the putative subclasses associated with those claims, may proceed pursuant to ERISA sections 502(a)(1)(B) and 502(a)(3). All other claims are dismissed without prejudice. A full-text copy of the District Court's Aug. 18, 2017 Memorandum Opinion and Order is available at https://is.gd/Y4dxeI from Leagle.com. VALERIE R. WHITE, Plaintiff, represented by Stephen Robert Bruce - - stephen.bruce@prodigy.net -- STEPHEN R. BRUCE LAW OFFICES. EVA JUNEAU, Plaintiff, represented by Stephen Robert Bruce, STEPHEN R. BRUCE LAW OFFICES. PETER BETANCOURT, Plaintiff, represented by Stephen Robert Bruce, STEPHEN R. BRUCE LAW OFFICES. HILTON HOTELS RETIREMENT PLAN, Defendant, represented by Andrew McHie Lacy -- alacy@stblaw.com -- SIMPSON, THACHER & BARTLETT LLP, Jonathan K. Youngwood -- jyoungwood@stblaw.com -- SIMPSON, THACHER & BARTLETT LLP & Patrick C. DiCarlo -- pat.dicarlo@alston.com -- ALSTON & BIRD, L.L.P.. HILTON WORLDWIDE, INC., Defendant, represented by Andrew McHie Lacy, SIMPSON, THACHER & BARTLETT LLP, Jonathan K. Youngwood, SIMPSON, THACHER & BARTLETT LLP & Patrick C. DiCarlo, ALSTON & BIRD, L.L.P.. GLOBAL BENEFITS ADMINISTRATIVE COMMITTEE, Defendant, represented by Andrew McHie Lacy, SIMPSON, THACHER & BARTLETT LLP, Jonathan K. Youngwood, SIMPSON, THACHER & BARTLETT LLP & Patrick C. DiCarlo, ALSTON & BIRD, L.L.P.. MARY NELL BILLINGS, Defendant, represented by Andrew McHie Lacy, SIMPSON, THACHER & BARTLETT LLP, Jonathan K. Youngwood, SIMPSON, THACHER & BARTLETT LLP & Patrick C. DiCarlo, ALSTON & BIRD, L.L.P.. S. TED NELSON, Defendant, represented by Andrew McHie Lacy, SIMPSON, THACHER & BARTLETT LLP, Jonathan K. Youngwood, SIMPSON, THACHER & BARTLETT LLP & Patrick C. DiCarlo, ALSTON & BIRD, L.L.P.. CASEY YOUNG, Defendant, represented by Andrew McHie Lacy, SIMPSON, THACHER & BARTLETT LLP, Jonathan K. Youngwood, SIMPSON, THACHER & BARTLETT LLP & Patrick C. DiCarlo, ALSTON & BIRD, L.L.P.. HOFFMAN-LA ROCHE: Appeals Court Reinstates 2,100 Accutane Suits --------------------------------------------------------------- Charles Toutant, writing for Law.com, reports that more than 2,100 suits by users of the acne drug Accutane who developed Crohn's disease have been reinstated after an appeals court ruled that expert testimony on behalf of plaintiffs was improperly excluded by the trial judge. Atlantic County Superior Court Judge Nelson Johnson exceeded his role as a gatekeeper when he concluded that plaintiffs' experts on gastroenterology and epidemiology were using accepted scientific methods to analyze the evidence in the case, the appeals court said. The decision also said the judge incorrectly determined the credibility of the testimony by plaintiffs' experts. The appeals court reversed an order barring expert testimony by the plaintiffs' experts and another order dismissing 2,174 cases. The July 28 decision was the second in one week's time from the Appellate Division that reversed dismissal of multicounty litigation cases concerning Accutane, which was marketed by Hoffmann-La Roche Ltd. On July 25, a different panel of the Appellate Division reinstated a different set of 335 cases on other grounds. The week's rulings bring the aggregate number of Accutane cases pending in Atlantic County to more than 2,500. The plaintiffs appealed rulings that Judge Johnson barred testimony from Arthur Kornbluth, a gastroenterology expert for the plaintiffs, and biostatistician David Madigan, an epidemiological expert for the plaintiffs. Both Mr. Kornbluth and Mr. Madigan were critical of a series of eight epidemiological studies that showed that users of Accutane were not at increased risk of developing Crohn's disease. Messrs. Kornbluth and Madigan said they favored other studies on the subject, including some in which dogs developed bowel problems after being administered Accutane. Judge Johnson said Mr. Kornbluth's "contrived reasoning is not supported by the scientific community as a reliable basis for making causal determinations," and said his testimony was "replete with what can be described as convenient assumptions." Judge Johnson said Madigan's opinions were conclusion-driven, rather than methodology-based. On appeal, the plaintiffs argued Johnson substituted his own view of the studies for that of the plaintiff experts, calling him "an expert on a mission." The Appellate Division panel of Judges Susan Reisner, Ellen Koblitz and Thomas Sumners Jr. said Judge Johnson wrongly concluded that the plaintiffs' experts ignored the epidemiological studies in favor of less reliable evidence. "The experts did not ignore the studies. Rather, in extensive and detailed testimony, they opined that most of the studies were unreliable, and they explained in considerable detail the reasons for those opinions," Judge Reisner wrote for the court. The judge's duty was "to weed out 'junk science,' not to shield jurors from hearing expert testimony that is scientifically-based but unpersuasive to the trial judge," Judge Reisner wrote. Hoffmann-La Roche was represented by Paul Schmidt of Covington & Burling in Washington. A spokeswoman for the company, Amanda Fallon, said in a statement about the ruling, "The medical and scientific communities have demonstrated that there is no link between Accutane and Crohn's disease. Roche is disappointed that the appellate court is allowing the plaintiffs' experts to offer opinions that disregard this science, opinions which they themselves have only offered in lawsuits. Roche will ask the New Jersey Supreme Court to take up this crucial issue, which has the potential to impact a broad range of lawsuits involving important public health issues." David Buchanan -- dbuchanan@seegerweiss.com -- of Seeger Weiss in New York, who argued for the plaintiffs, did not return a call about the case. Other plaintiff lawyers on the case referred questions to Mr. Buchanan. [GN] HYUNDAI MOTOR: Court Denies Bid to Dismiss "Riaubia" Suit --------------------------------------------------------- Judge C. Darnell Jones, II, of the U.S. District Court for the Eastern District of Pennsylvania denied the Defendant's motion to dismiss the case captioned JOSHUA RIAUBIA, individually and for all persons similarly situated, Plaintiff, v. HYUNDAI MOTOR AMERICA, Defendant, Civil Action No. 16-5150(E.D. Pa.). Plaintiff Riaubia purchased a 2015 Hyundai Sonata Limited in August of 2014. That vehicle, along with various other models, comes equipped with a "Smart Trunk," a feature that is advertised by the Defendant as being able to automatically open the trunk fully, or at least wide enough for a person to deposit bulky items into the trunk without having to put the items down or manually open the trunk lid. The Plaintiff claims that, despite those representations, the Smart Trunk is defective in that it will frequently fail to open more than a few inches, and sometimes it never opens more than a crack. Riaubia is a citizen of Pennsylvania, and HMA is a California corporation. To recover for damages caused by this alleged defect, the Plaintiff brings a series of claims under federal and state law on behalf of himself and a putative class of purchasers of various Hyundai models equipped with the same allegedly defective Smart Trunk feature: (i) violation of California's Unfair Competition Law; (ii) violation of California's False Advertising Law; (iii) violation of California's Consumer Legal Remedies Act; (iv) breach of express warranty under Pennsylvania law; (v) breach of implied warranty of merchantability under Pennsylvania law; (vi) violation of the federal Magnuson-Moss Warranty Act; and, in the alternative, (vii) unjust enrichment. The Defendant has moved to dismiss the Complaint pursuant to Federal Rule 12(b)(6) on various grounds, including lack of standing and failure to allege a defect, or any wrongful act. It also challenges the Plaintiff's right to bring an alternative unjust enrichment claim or pursue a nationwide class action under California law. Judge Jones held that the Plaintiff has successfully defended against HMA's 12(b)(6) motion. Contrary to the Defendant's assertions, Riaubia has standing to bring the class action. And the Complaint states consumer-fraud and warranty claims, as well as a properly pleaded alternative unjust enrichment claim. He finds that there is no indication in the case that the differences across the various vehicle models of the same make raise a sufficiently "different set of concerns" to undermine Riaubia's standing to bring the class action. The Plaintiff has sufficiently pleaded a wrongful act under the alleged warranty and consumer fraud laws and thus those claims survive the 12(b)(6) motion. The weight of authority, as cited by the parties, confirms the Plaintiff's right to plead an alternative unjust enrichment claim under Federal Rule 8, although ultimately the Plaintiff will be able to recover on the basis of only one of these legal theories. The unjust enrichment claim therefore also survives the 12(b)(6) motion. Finally, the Judge finds that the Defendant prematurely attempts to dismiss the claims under California law using a choice-of-law analysis. As the Plaintiff correctly notes, however, courts in the Third Circuit have consistently held that deciding a conflict-of-laws question requires a factual record and is therefore inappropriate for resolution on a motion to dismiss. In conclusion, Judge Jones denied in all respects the Defendant's motion to dismiss the Complaint. A full-text copy of the District Court's Aug. 22, 2017 Memorandum is available at https://is.gd/lo8T3n from Leagle.com. JOSHUA RIAUBIA, Plaintiff, represented by NOAH I. AXLER, AXLER GOLDICH LLC. JOSHUA RIAUBIA, Plaintiff, represented by JAMES C. SHAH, SHEPHERD FINKELMAN MILLER & SHAH LLC, MARC A. GOLDICH, AXLER GOLDICH, LLC & NATALIE FINKELMAN BENNETT, SHEPHERD FINKELMAN MILLER & SHAH LLC. HYUNDAI MOTOR AMERICA, Defendant, represented by CHRISTOPHER J. DALTON -- christopher.dalton@bipc.com -- BUCHANAN INGERSOLL & ROONEY, JACQUELINE M. WEYAND -- jacqueline.weyand@bipc.com -- BUCHANAN INGERSOLL & ROONEY, PC & KENNETH L. RACOWSKI -- kenneth.racowski@bipc.com -- BUCHANAN INGERSOLL & ROONEY. JANSSEN PHARMACEUTICALS: Xarelto Bellwether Trial Begins -------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that the third bellwether trial over blood thinner Xarelto began this week, but it's missing one thing: Beth Wilkinson. Ms. Wilkinson, of Washington, D.C.'s Wilkinson Walsh + Eskovitz, scored quick defense verdicts for Janssen Pharmaceuticals Inc. and Bayer HealthCare Pharmaceuticals Inc. in the first two Xarelto trials earlier this year. This time, Janssen, which is part of Johnson & Johnson, is relying on Richard Sarver of Barrasso Usdin Kupperman Freeman & Sarver, who was involved in the first Xarelto trial and is in New Orleans, where all the trials so far have taken place. Bayer is leaning on Lyn Pruitt of Mitchell, Williams, Selig, Gates & Woodyard in Little Rock, Arkansas, who was defense counsel in trials over hormone replacement therapy drug Prempro, and Walter T. Johnson at Watkins & Eager in Jackson, Mississippi, where the third trial began on Aug. 7. The case was brought by Dora Mingo, a resident of Summit, Mississippi, who was admitted to the hospital in 2015 for gastrointestinal bleeding less than a month after taking Xarelto to treat a blood clot in her leg following hip replacement surgery. The trial was expected to end August. Ms. Wilkinson confirmed she wasn't lead counsel this time around but declined to comment. None of the lawyers on the defense team responded to requests for comment. Bayer spokesman Steven Immergut insisted Ms. Wilkinson isn't out of the picture. "Ms. Pruitt, Mr. Johnson and Mr. Sarver have been involved in the Xarelto MDL on behalf of the companies for some time, and it has long been the plan that they would lead the trial team for the Mingo case," Mr. Immergut wrote in an email. "In addition, Wilkinson Walsh attorneys, including Ms. Wilkinson, continue to be involved in the defense team for the Mingo trial, as well as in preparation for upcoming Xarelto trials in various jurisdictions." He said it's common to change up attorneys in multidistrict litigation, "particularly when several trials are scheduled in a relatively short amount of time." More than 18,000 cases allege that Xarelto, an anticoagulant used to treat blood clots, caused plaintiffs to suffer from uncontrollable internal bleeding. Plaintiffs attorneys have had a difficult time convincing juries that Bayer and Janssen, both based in New Jersey, failed to warn about Xarelto's bleeding risks. In court, they have insisted that doctors should have been instructed to conduct a simple blood test that could assess a patient's risk of bleeding. In the first trial, the jury took less than two hours before coming back with a defense verdict on May 3. In the second, which ended in a June 12 verdict, jurors deliberated about three hours. "The next trial -- in August -- has its own distinctive set of claims and circumstances, and we look forward to having a jury hear that evidence," said plaintiffs lead counsel Andy Birchfield and Brian Barr at the time. For the August trial, Mr. Birchfield, head of the mass torts section of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, has partnered with Bradley Honnold of Goza & Honnold in Kansas City, Kansas, a member of the plaintiffs steering committee. [GN] JOIE DE VIVRE: Ninth Circuit Appeal Filed in "Cornelius" Suit ------------------------------------------------------------- Plaintiff Samantha J. Cornelius filed an appeal from a court ruling in the lawsuit styled Samantha Cornelius v. Joie de Vivre Hospitality LLC, et al., Case No. 2:17-cv-01399-R-AFM, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the lawsuit was filed over the Defendants' alleged systematic illegal payroll practices and policies. The Plaintiff accuses the Defendants of failing to provide the Plaintiff and purported class members with proper meal periods, among other things. The appellate case is captioned as Samantha Cornelius v. Joie de Vivre Hospitality LLC, et al., Case No. 17-56274, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Samantha J. Cornelius' opening brief is due on October 23, 2017; -- Appellees Commune Hotels and Resorts, LLC, Commune Services, LLC, Does, Joie de Vivre Hospitality LLC and The Saguaro Palm Springs' answering brief is due on November 20, 2017; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant SAMANTHA J. CORNELIUS, an individual, and on behalf of others similarly situated, is represented by: Matthew J. Matern, Esq. Daniel Joseph Bass, Esq. Tagore Olivier Subramaniam, Esq. MATERN LAW GROUP 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 E-mail: mmatern@maternlawgroup.com dbass@maternlawgroup.com tagore@maternlawgroup.com Defendants-Appellees JOIE DE VIVRE HOSPITALITY LLC, a Delaware corporation; COMMUNE HOTELS AND RESORTS, LLC, a Delaware limited liability company; COMMUNE SERVICES, LLC, a California limited liability company; and THE SAGUARO PALM SPRINGS, a business form unknown, are represented by: Joshua Bram Wagner, Esq. Mark Saul Posard, Esq. GORDON & REES LLP 633 West Fifth Street Los Angeles, CA 90071 Telephone: (213) 576-5000 Facsimile: (213) 680-4470 E-mail: jwagner@gordonrees.com mposard@gordonrees.com KEY FOOD: Faces "Delgado" Suit Alleging FLSA, NYLL Violations ------------------------------------------------------------- JOSE DELGADO, on behalf of himself and all others similarly situated, Plaintiff, against KEY FOOD STORES CO-OPERATIVE, INC., and SAL BONAVITA, individually, Defendant, Case No: 1:17-cv-04621 (E.D.N.Y., August 7, 2017), seeks to represent current and former employees of the Defendants who worked as laborers in Defendants' supermarket and were forced to clock in and out, but, were not paid for all hours for which they were clocked in; Defendants avoided paying them proper wages in accordance with the Fair Labor Standards Act and New York Labor Law. Plaintiff Delgado was employed by Defendants as a full time as a non-exempt laborer. Key Food Stores Co-Operative, Inc. owns and operates a chain of supermarkets in Connecticut, New Jersey, New York, and Pennsylvania.[BN] The Plaintiffs is represented by: Jodi J. Jaffe, Esq. Jaffe Glenn Law Group, P.A. 301 N. Harrison Street, Suite 9F, #306 Princeton, NJ 08540 Email: JJaffe@JaffeGlenn.com LEAPFROG ENTERPRISES: Nov. 7 Class Cert. Date in Securities Suit ---------------------------------------------------------------- Judge Edward M. Chen of the U.S. District Court for the Northern District of California granted the parties' stipulated order extending the class certification deadlines in the case captioned In re LEAPFROG ENTERPRISES, INC. SECURITIES LITIGATION. This Document Relates To: ALL ACTIONS, Master No. 3:15-cv-00347- EMC(N.D. Cal.). The Court has previously made time modifications in the case. It is the first request for a modification of the deadlines to move for class certification. On April 6, 2017, the Court referred the case to private mediation and ordered that private mediation be completed by July 6, 2017. The parties anticipate that class certification may require discovery from the class representative, the submission of expert reports, and depositions of the experts. The Judge also ordered that, in the event the case does not settle, the Lead Plaintiff's class certification motion will be filed by Sept. 7, 2017, and oral argument will be heard on Dec. 7, 2017, with the parties to agree on a briefing schedule and submit the stipulated schedule to the Court. On May 31, 2017, the Court continued the deadline to conduct private mediation to Sept. 7, 2017 due to availability of the parties and the Hon. James Ware (Ret.), who will preside over the private mediation. Proceeding to class certification on the schedule that existed when the mediation was scheduled to take place in July may, at this point, needlessly waste judicial resources and may constitute a substantial and unnecessary burden on the parties. The parties have conferred and agreed that, subject to Court approval, the deadline for the Lead Plaintiff to move for class certification should be continued to Nov. 7, 2017; the Defendants will have until Dec. 21, 2017 to file any opposition to class certification; the Lead Plaintiff will have until Feb. 7, 2018 to file any reply in support of class certification; and the oral argument should be continued to March 1, 2018 at 1:30 p.m. or to another date and time convenient to the Court other than Feb. 22, 2018. The parties agree that, in the event anyone other than the Lead Plaintiff moves for appointment as class representative, the parties will revisit the schedule to ensure the Defendants have sufficient time to take discovery relevant to the class certification determination regarding the previously unnamed proposed representative. Judge Chen therefore approved the parties' stipulation extending the class certification deadlines. A full-text copy of the District Court's Aug. 22, 2017 Stipulated Order is available at https://is.gd/m5O9gK from Leagle.com. Abere Newett, Plaintiff, represented by Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP. Mary L Tumlin, Plaintiff, represented by Ramzi Abadou -- ramzi.abadou@ksfcounsel.com -- Kahn Swick Foti LLP. Richard Farias, Plaintiff, represented by Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. KBC Asset Management NV, Plaintiff, represented by James Michael Hughes -- jhughes@motleyrice.com -- Motley Rice LLC, pro hac vice, Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Christopher Francis Moriarty, Motley Rice LLC, pro hac vice, Matthew Seth Melamed -- mmelamed@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Willow E. Radcliffe -- willowr@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Bette R. Grayson, Plaintiff, represented by Robert Vincent Prongay, Glancy Prongay & Murray LLP. Leapfrog Enterprises, Inc., Defendant, represented by Jordan Eth - - jeth@mofo.com -- Morrison & Foerster LLP & Mark R.S. Foster -- mfoster@mofo.com -- Morrison & Foerster LLP. John Barbour, Defendant, represented by Jordan Eth, Morrison & Foerster LLP & Mark R.S. Foster, Morrison & Foerster LLP. Raymond L. Arthur, Defendant, represented by Jordan Eth, Morrison & Foerster LLP & Mark R.S. Foster, Morrison & Foerster LLP. Chacal Liu, Movant, represented by Robert Vincent Prongay, Glancy Prongay & Murray LLP. Paul M. Terreri, Movant, represented by Jeremy A. Lieberman, Pomerantz LLP. LPL FINANCIAL: Court Partly Grants Bid to Dismiss "Charter" Suit ---------------------------------------------------------------- In the case captioned CHARTER TOWNSHIP OF CLINTON POLICE AND FIRE RETIREMENT SYSTEM, individually and on behalf of all others similarly situated, Plaintiff, v. LPL FINANCIAL HOLDINGS INC., et al., Defendants, Case No. 16-cv-0685-BTM-BGS(S.D. Cal.), Judge Barry Ted Moskowitz of the U.S. District Court for the Southern District of California granted in part and denied in part, with leave to amend, the Defendant's motion to dismiss the Consolidated Complaint for Violation of the Federal Securities Laws. This is a putative securities class action filed on behalf of all purchasers of common stock of LPL between Dec. 8, 2015 and Feb. 11, 2016, inclusive. The Plaintiff alleges that on Dec. 8, 2015, the Defendants made false and misleading statements regarding LPL's business and prospects, artificially inflating common stock prices during the Class Period. The Complaint states claims for violation of section 10(b) of the Securities Exchange Act, as well as section 20(a) of the Securities Exchange Act. LPL is an independent broker-dealer that provides a platform of brokerage and investment advisory services to independent financial advisors, and generates revenues primarily from fees and commissions on clients' brokerage and advisory assets. It was founded in 1989 and in 2005 sold a majority stake to two private equity firms, TPG Capital and Hellman & Friedman LLC. TPG thereafter elevated defendant Mark S. Casady to Chairman and CEO of LPL. In November 2010, TPG and Hellman took LPL public in an initial public offering that generated approximately $470 million. After Hellman exited LPL stock in 2013, TPG became LPL's largest shareholder. It appointed two directors to LPL's Board and entered into a shareholder agreement that gave it the right to obtain any reports, documents, information or other materials which a member of the LPL Board has received or has the right to receive. The Plaintiff alleges that by virtue of this provision, TPG had the ability at any time to access inside financial information regarding LPL's financial results. On Oct. 29, 2015, in a move allegedly meant to reassure investors, LPL announced a plan to buy back $500 million of its own shares. On Nov. 24, 2015, LPL announced it had entered into an agreement with Goldman Sachs & Co. whereby Goldman Sachs would carry out $250 million of the $500 million share repurchase on a schedule that LPL said will take several months to complete. Meanwhile, by at least the beginning of December 2015, with less than a month left in the fourth quarter of 2015, the Plaintiff alleges LPL's internal financial results showed it was in the midst of a disastrous" quarter. It further contends TPG had access to LPL's financial information by virtue of its shareholder agreement, Board connections, and relationship with Casady. TPG allegedly anticipated based on LPL's inside information that once the market learned of LPL's poor fourth-quarter performance, LPL's stock price would fall. It thus approached Goldman Sachs in late November or early December 2015 to cash out more than 4 million shares of LPL stock through the accelerated share repurchase program at a time when LPL stock was trading at historic highs. Before TPG's sale of LPL stock was publicly disclosed, on Dec. 8, 2015, LPL participated in a conference sponsored by Goldman Sachs at which Casady and Matthew Audette, who had been hired in September 2015 to serve as LPL's CFO, provided investors a near- end-of-fourth quarter financial update. The update was provided through a slide presentation, during which Casady, Matthew J. Audette, and the company made the allegedly materially false statements on which this action is based. On Dec. 10, 2015, and contrary to LPL's claim that the $250 million accelerated share buyback would take several months to complete, LPL announced it had already completed the accelerated buyback, allowing TPG to cash out 4.3 million shares at $43.27/share. More than three-quarters of the buyback spending went to TPG. On Feb. 11, 2016, LPL announced its 4Q15 and fiscal year 2015 financial results that allegedly revealed the false nature of its Dec. 8, 2015 statements. Contrary to the positive picture portrayed during the Goldman Sachs conference, LPL's gross profits had fallen substantially during 4Q15; and earnings were dragged down by unexpectedly weak advisory and brokerage asset performance. Had TPG's shares been repurchased by LPL at this point, LPL would have saved $115 million. The Defendants have filed a motion to dismiss the Consolidated Complaint for Violation of the Federal Securities Laws. The Court held a hearing on the Defendants' motion on April 17, 2017. Judge Moskowitz finds that the Plaintiff's allegations do not create an inference of scienter that is at least as compelling as any opposing inference of nonfraudulent intent, and its claims under Section 10(b) and Rule 10b-5 must be dismissed with leave to amend. The Defendants challenge some of their alleged misstatements as inactionable puffery, as predictions that proved true, and as misinterpretations of statements that, when viewed in context, fail to support the Plaintiff's claims. The Judge agrees with the Defendants' arguments in part. As to the Defendants' claim that the Plaintiff has taken Audette's statements out of context, and that properly understood, they were true, the Judge disagrees. Finally, since Judge Moskowitz finds that the Plaintiff has not alleged a violation of Section 10(b) or Rule 10b-5, its claim under Section 20(a) must also be dismissed. For these reasons, Judge Moskowitz (i) granted with leave to amend the Defendants' motion to dismiss as to the Complaint in its entirety for failure to allege scienter; (ii) granted without leave to amend the Defendants' motion to dismiss as to Audette's statements that he did see market levels and asset levels recover nicely and there was a nice rebound; Casady's statement that LPL had good advisory asset growth overall; and Audette's statement that he would just add that their debt plan and debt structure and buyback plan was designed and built with having the flexibility to be dynamic as they execute it over time; (iii) granted with leave to amend the Defendants' motion to dismiss as to Audette's statement that their 2015 core G&A guidance is 7.5% to 8.5% and, in dollars, roughly $700 million, that $697 million to $703 million, they're still on that track, and Audette's statement regarding a likely decline in gross profits; and (iv) otherwise denied the Defendants' motion to dismiss. The Plaintiff will have 45 days from the date the Order to file an amended complaint. A full-text copy of the District Court's Aug. 18, 2017 Order is available at https://is.gd/Q5Bnyt from Leagle.com. Charter Township of Clinton Police and Fire Retirement System, Plaintiff, represented by David C. Walton -- davew@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Charter Township of Clinton Police and Fire Retirement System, Plaintiff, represented by Tricia L. McCormick -- TriciaM@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Soft Drink and Brewery Workers Union Local 812 Retirement Fund, Plaintiff, represented by Andrew W. Hutton, Hutton Law Group, Brian E. Cochran -- bcochran@rgrdlaw.com -- Robbins, Geller Rudman & Dowd, LLP, Jonah H. Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Susan Goss Taylor -- susant@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Tricia L. McCormick, Robbins Geller Rudman & Dowd LLP. LPL Financial Holdings Inc., Defendant, represented by Michael Joseph Shiposh -- Michael.Shiposh@ropesgray.com -- Ropes & Gray LLP, pro hac vice & Richard Lawrence Gallagher -- Richard.Gallagher@ropesgray.com -- Ropes & Gray LLP. Mark S. Casady, Defendant, represented by Michael Joseph Shiposh, Ropes & Gray LLP, pro hac vice & Richard Lawrence Gallagher, Ropes & Gray LLP. Matthew J. Audette, Defendant, represented by Michael Joseph Shiposh, Ropes & Gray LLP, pro hac vice & Richard Lawrence Gallagher, Ropes & Gray LLP. LUMBER LIQUIDATORS: Court Affirms TCCWNA Ruling in "Kaufman" Suit ----------------------------------------------------------------- In the case captioned JARROD KAUFMAN, RACHEL KAUFMAN, WILLIAM QUICK and NANCY QUICK, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. LUMBER LIQUIDATORS, INC. and ROBERT M. LYNCH, Defendants-Respondents, Docket No. A- 3278-14T1(N.J. Super. App. Div.), the Superior Court of New Jersey, Appellate Division, affirmed Andrea G. Carter's conclusion that N.J.A.C. 13:45A-5.1(d) shows that the term household furniture does not include hardwood flooring. Plaintiffs Kaufmans and Plaintiffs Quicks are two sets of consumers who filed a putative class action suit against Defendant Lumber Liquidators its CEO, Lynch. In their complaint, the Plaintiffs alleged they purchased wood flooring and associated merchandise from Lumber Liquidators several times from Aug. 29, 2012 through Oct. 20, 2012. The sales invoices the Defendants provided did not contain language promising plaintiffs that the merchandise they ordered would be delivered by a specific date. The Plaintiffs claimed Lumber Liquidators' failure to include the precise delivery date language on its sales invoices violated the Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"); the Consumer Fraud Act; and the Delivery of Household Furniture and Furnishings Regulations. They do not allege defects or deficiencies in the products they received. In fact, they suffered no actual damages. They seek only statutory civil penalties in the amount of $100 for each alleged violation of the TCCWNA and reasonable attorney's fees pursuant to N.J.S.A. 56:12- 17. The Law Division granted the Defendants' motion to dismiss the Plaintiffs' complaint as a matter of law for failure to state a claim upon which relief can be granted. The dispositive issue is whether the hardwood flooring the Plaintiffs purchased from Lumber Liquidators constitutes "household furniture" under N.J.A.C. 13:45A-5.1(d). Applying the well-settled standards established by the Supreme Court in Printing-Mart Morristown v. Sharp Electronics Corp., Judge Carter concluded a plain reading of N.J.A.C. 13:45A-5.1(d) shows the term household furniture does not include hardwood flooring. Judge Carter found no reason to include non-moveable improvements to real property, such as hardwood flooring or wall-to-wall carpeting, in the regulatory definition of household furniture. The Plaintiffs argue Judge Carter erred in adopting such a narrow reading of the regulation. The Defendants urge us to uphold Judge Carter's analysis and ultimate conclusion. The New Jersey Civil Justice Institute and the United States Chamber of Commerce filed a joint brief as amici curiae, urging the Superior Court of New Jersey, Appellate Division, to use the case as an opportunity to adopt a rigorous standard for defining what constitutes a clearly established legal right of a consumer under the TCCWNA. The Superior Court of New Jersey, Appellate Division, agrees with Judge Carter's analysis and affirmed. The long-established canon of ejusdem generis provides that where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. The objects provided to illustrate the limits of the regulation's reach clearly exclude items such as hardwood floors, which, as Judge Carter noted, constitute permanent improvements to property. When the plain language yields the meaning of the statute or regulation, then their task is complete. The Court thus affirmed substantially for the reasons expressed by Judge Carter in her oral opinion delivered from the bench on Feb. 20, 2015. In this light, the Court declined Amici Curiae's invitation to go beyond the four corners of the Plaintiffs' pleading to resolve the straightforward dispositive legal question presented. A full-text copy of the Superior Court's Aug. 22, 2017 Opinion is available at https://is.gd/pWFwvL from Leagle.com. Andrew R. Wolf -- awolf@wolflawfirm.net -- argued the cause for appellants (The Wolf Law Firm, LLC, attorneys; Mr. Wolf, Matthew S. Oorbeek, Henry P. Wolfe, Andrew W. Li and Daniel I. Rubin, on the briefs). Brian E. O'Donnell -- bodonnell@riker.com -- argued the cause for respondents (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Mr. O'Donnell, Michael P. O'Mullan, Jeffrey M. Beyer and Casey A. Boyle, of counsel and on the brief). Gavin J. Rooney -- grooney@lowenstein.com -- argued the cause for amicus curiae The New Jersey Civil Justice Institute and Chamber of Commerce of the United States of America (Lowenstein Sandler, LLP, attorneys; Mr. Rooney and Naomi D. Barrowclough, on the brief). MAGICJACK VOCALTEC: Misstates Broadsmart's Value, Freedman Claims ----------------------------------------------------------------- ROBERT FREEDMAN, Individually and on Behalf of All Others Similarly Situated v. MAGICJACK VOCALTEC LTD., YMAX CORPORATION, DON C. BELL III, GERALD VENTO, DONALD A. BURNS, RICHARD HARRIS, YUEN WAH SING, ALAN HOWE, IZHAK GROSS, TALI YARON-ELDAR, AND YOSEPH DAUBER, Case No. 9:17-cv-80940-RLR (S.D. Fla., August 11, 2017), accuses the Defendants of misrepresenting material facts concerning the true value of Broadsmart, which was acquired in early 2016, and was grossly impaired financially. magicJack is an Israeli corporation whose principal executive offices are located in Netanya, Israel. The Company's subsidiary, YMax Corporation is located in West Palm Beach, Florida. The Individual Defendants are directors and officers of the magicJack.[BN] The Plaintiff is represented by: Kyle Charles Young, Esq. KYLE CHARLES YOUNG, PL 205 Worth Avenue #201 Palm Beach, FL 33480 Telephone: (561) 635-1114 E-mail: kcy@lawyer.com - and - Jeffrey R. Krinsk, Esq. FINKELSTEIN & KRINSK LLP 550 West C Street, Suite 1760 San Diego, CA 92101 Telephone: (619) 238-1333 E-mail: jrk@classactionlaw.com MAGNET MEDIA: "Brashear" Seeks Recovery of Back Pay, Overtime ------------------------------------------------------------- David Brashear, individually, and on behalf of all others similarly situated, Plaintiff, v. Magnet Media, Inc., Defendants, Case No. 2:17-cv-06026 (C.D. Cal., August 14, 2017), seeks unpaid wages, unpaid overtime, damages, continuing wages, liquidated damages, penalties, restitution and attorneys' fees and costs under the Fair Labor Standards Act and the California Labor Code. Magnet Media is a production company and an interactive marketing services firm based in New York City. It employed Plaintiff for the production of filmed entertainment at ComplexCon, an upcoming festival and exhibition in Long Beach. Brashear was laid off without a return date in or around November 6, 2016. [BN] Plaintiff is represented by: Alan Harris, Esq. David Garrett, Esq. Min Ji Gal, Esq. HARRIS & RUBLE 655 North Central Avenue, 17th Floor Glendale CA 91203 Tel: (323) 962-3777 Fax: (323) 962-3004 Email: harrisa@harrisandruble.com mgal@harrisandruble.com MARION COUNTY, IN: Court Certifies Class in "Washington" Suit ------------------------------------------------------------- In the case captioned LEROY WASHINGTON on his own behalf, and on behalf of a Class of those similarly situated, Plaintiff, v. MARION COUNTY PROSECUTOR, MAYOR OF THE CONSOLIDATED CITY OF INDIANAPOLIS/MARION COUNTY, CHIEF OF THE INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, Defendants, No. 1:16-cv-02980-JMS-DML(S.D. Ind.), Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, (i) granted Mr. Washington's Motion to Certify a Class, as modified; (ii) granted Mr. Washington's Motion for Summary Judgment; (iii) permanently enjoined the Defendants from enforcing Indiana Code Section 34-24-1-1(a)(1) as read in conjunction with Indiana Code provisions of the same chapter; (iv) denied the Defendants' Cross- Motion for Summary Judgment; and (v) denied as moot Mr. Washington's Motion for Preliminary Injunction. On Sept. 21, 2016, an officer of the Indianapolis Metropolitan Police Department ("IMPD") stopped a car driven and owned by Mr. Washington. Mr. Washington was ultimately arrested and charged with, among other offenses, dealing in marijuana. The officer had Mr. Washington's car towed and held for forfeiture pursuant to Indiana Code Sections 34-24-1-1(a)(1) and 34-24-1-2(a)(1). On Nov. 1, 2016, Washington made a demand for the return of his property pursuant to Indiana Code Section 34-24-1-3. His car has since been returned to him. Mr. Washington filed his Complaint in the Court on Nov. 2, 2016, alleging on behalf of himself and a putative class of Plaintiffs that Indiana Code Section 34-24-1-2(a)(1) violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. His Complaint seeks a declaratory judgment that Indiana Code Section 34-24-1-2(a)(1), read in conjunction with Indiana Code Sections 34-24-1-1 and 34-24-1-3, violates the Constitution, and he requests a permanent injunction enjoining Defendants from seizing vehicles pursuant to that statute. Mr. Washington then filed a Motion to Certify a Class, and a Motion for Preliminary Injunction, which the Defendants oppose. The Defendants filed a Motion to Dismiss, which the Court denied. Mr. Washington filed a Motion for Summary Judgment, and the Defendants cross-moved for summary judgment. The Court ordered Mr. Washington to submit supplemental briefing addressing several issues, and allowed the Defendants the opportunity to respond. That briefing has been submitted in accordance with the Court's order. Therefore, currently pending before the Court are Mr. Washington's Motions for Class Certification, Preliminary Injunction, and Summary Judgment, and the Defendants' Cross-Motion for Summary Judgment. Mr. Washington proposes the class defined as all persons who own vehicles that are being held pursuant to IC Section 34-24-1- 2(a)(1) by the Marion County Prosecutors Office or the Consolidated City of Indianapolis/Marion County or the IMPD or any agent of the Defendants. He argues that this class is sufficiently identifiable, because all elements of the proposed class definition refer to objective criteria: (i) vehicle owners, (ii) whose vehicles have been seized, (iii) pursuant to Indiana Code Section 34-24-1-2(a)(1), (iv) by the Defendants. Judge Magnus-Stinson concludes that the definition proposed by Mr. Washington is based upon objective criteria, and it outlines a sufficiently identifiable class. Therefore, she defines the class as all persons who own vehicles that have been seized and held pursuant to Indiana Code Section 34-24-1-1 et seq. by the Marion County Prosecutor's Office, the Consolidated City of Indianapolis/Marion County, the IMPD, or any agent of those entities who were not afforded a post-seizure, pre-forfeiture hearing. In their Cross-Motion for Summary Judgment, the Defendants argue that Mr. Washington's claim has been rendered moot, divesting the Court of subject-matter jurisdiction. Judge Magnus-Stinson finds (as it did in its order denying the Defendants' Motion to Dismiss) that Washington has established that the inherently transitory doctrine applies here. First, it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class. Second, there will be a constant class of persons suffering the deprivation complained of in the Complaint. She therefore concludes, as it did at the motion to dismiss stage, that Washington's claim was not rendered moot by the return of his vehicle. The Court retains jurisdiction over this dispute. Mr. Washington requests a declaratory judgment that Ind. Code Section 34-24-1-1(a)(1), as read in conjunction with other statutory provisions, is unconstitutional. He also requests a permanent injunction, enjoining the Defendants from enforcing the statute. The Defendants object to the issuance of an injunction, arguing that it would constitute a rewriting of the statute. Judge Magnus-Stinson concludes that the statutory provisions allowing for the seizure and retention of vehicles without providing an opportunity for an individual to challenge the pre- forfeiture deprivation are unconstitutional. She needs not "rewrite" the statute in order to enjoin Defendants from enforcing an unconstitutional state statute. The Judge is mindful that the drafting of forfeiture laws is the responsibility of the Indiana General Assembly, and the Court will not attempt a constitutional rewrite of the statute. But it is the Court's responsibility to adjudicate the constitutionality of a law when properly presented with the question. For the reasons stated, Judge Magnus-Stinson granted Mr. Washington's Motion to Certify a Class, as modified. She also granted Mr. Washington's Motion for Summary Judgment. She concludes that Indiana Code Section 34-24-1-1(a)(1), read in conjunction with Indiana Code provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Defendants are permanently enjoined from enforcing Indiana Code Section 34-24-1-1(a)(1), as read in conjunction with Indiana Code provisions of the same chapter. The Defendants are further ordered to inform forthwith all other affected Indiana state governmental entities of this injunction. The Judge denied the Defendants' Cross-Motion for Summary Judgment. In light of this ruling, she denied as moot Mr. Washington's Motion for Preliminary Injunction. A full-text copy of the District Court's Aug. 18, 2017 Order is available at https://is.gd/7TTKci from Leagle.com. LEROY WASHINGTON, Plaintiff, represented by Jeffrey R. Cardella -- JeffCardella@CardellaLawOffice.com -- LAW OFFICE OF JEFF CARDELLA LLC. MARION COUNTY PROSECUTOR, Defendant, represented by Benjamin J. Legge, OFFICE OF THE ATTORNEY GENERAL & Jonathan Paul Nagy, INDIANA ATTORNEY GENERAL. MAYOR OF THE CONSOLIDATED CITY OF INDIANAPOLIS/MARION COUNTY, Defendant, represented by Pamela G. Schneeman, OFFICE OF CORPORATION COUNSEL. CHIEF OF THE INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT, Defendant, represented by Pamela G. Schneeman, OFFICE OF CORPORATION COUNSEL. MARTHA STEWART: Stockholder Suit Over MLSO Merger Dismissed ----------------------------------------------------------- In the case captioned IN RE MARTHA STEWART LIVING OMNIMEDIA, INC. STOCKHOLDER LITIGATION, Consolidated C.A. No. 11202-VCS(Del. Ch.), Judge Joseph R. Slights, III, of the Court of Chancery of Delaware granted the motions to dismiss brought by Martha Stewart and the Sequential Defendants. In this consolidated class action, former stockholders of Martha Stewart Living ("MSLO") have brought claims in a Verified Second Amended Class Action Complaint against the MSLO's former controlling stockholder and namesake, Martha Stewart, for breach of fiduciary duty and against the third-party buyer, Sequential Brands Group, Inc., for aiding and abetting that breach. The claims arise out of a transaction that closed in December 2015, whereby the MSLO was acquired by Sequential in a merger. Pursuant to the Merger, MSLO stockholders could elect to receive $6.15 per share either in cash or common stock of the newly formed company based on a conversion formula set forth in the merger agreement. The initial complaint in this consolidated class action was filed on June 25, 2015, three days after the Merger was announced. That action was consolidated with several related actions pursuant to the Court's consolidation order dated Aug. 18, 2015. The Plaintiffs filed an amended class action complaint on Jan. 12, 2016, and then a second amended complaint, the operative "Complaint," on July 18, 2016. The Complaint contains two counts: Count I for breach of fiduciary duty against Stewart as MSLO's controlling stockholder and Count II for aiding and abetting breach of fiduciary duties against the Sequential Defendants. Stewart and the Sequential Defendants filed motions to dismiss the Complaint pursuant to Court of Chancery Rule 12(b)(6). After initial briefing and oral argument on the motion to dismiss, the Court requested supplemental briefing on June 29, 2017. The supplemental briefing was to address two issues the parties did not fully address in their initial briefing: (i) whether the Court can accept the contents of the Proxy as true at the pleadings stage given the substantial differences between the Complaint and the Proxy with respect to key facts; and (ii) whether the framework established by the Supreme Court in M&F Worldwide applies to a one-sided controller transaction and, if so, at what point in the process would the "dual procedural protections" of an independent, fully empowered special committee and a majority of the minority vote need to be imposed for purposes of determining whether both protections were present "ab initio." The parties submitted their supplemental briefing on July 24, 2017. Judge Slights has not yet had occasion to address whether the transactional structure outlined in M&F Worldwide fits when the controller is a seller only and, if so, whether strict compliance with the prescribed steps is necessary to secure pleadings-stage business judgment rule review. He has determined that M&F Worldwide does apply to conflicted one-side controller transactions. He has also determined that business judgment deference is appropriate at the pleadings stage in this case because the dual procedural protective measures deployed in connection with this transaction -- the creation of an independent special committee and the adoption of a majority of the minority approval condition -- followed the M&F Worldwide road map with precision and were in place at the moment Stewart began to negotiate for consideration over and above what would be paid to the other stockholders. Because the course of this transaction hit each point on the M&F Worldwide map, the Plaintiffs' only path to challenge the Merger is via a claim of waste, which they have neither pled nor remotely suggested is viable here. The Judge has also concluded that the Complaint does not adequately plead that Stewart, as controlling stockholder, engaged in a conflicted transaction in any event. The timeline of the negotiations surrounding the Merger and the "side deals" Sequential entered into with Stewart reveals that the Plaintiffs will be unable, under any reasonably conceivable circumstance, to prove a central element of their claim, causally related damages. Contrary to the story chronicled in the Complaint, where Stewart allegedly diverted consideration from MSLO stockholders to herself, and thereby caused Sequential to lower its offer for the Company, the actual series of events described in the publicly filed documents on which the Complaint relies confirms that the consideration Sequential offered to MSLO stockholders actually increased after negotiations with Stewart began. Under these circumstances, it is not reasonably conceivable that the Plaintiffs can prove their claim that Stewart engaged in a conflicted transaction through which she caused injury to the minority stockholders by diverting merger consideration to herself. The Plaintiffs have also failed to allege sufficient non- conclusory facts that would allow any inference that the side deals Sequential negotiated with Stewart to ensure her continued commitment to the acquired company were materially different from or more lucrative to Stewart than the contractual arrangements Stewart already had in place with MSLO. Having failed to plead a conflict between Stewart and the minority stockholders, the appropriate standard of review is the business judgment rule even if the transactional structure strayed from the M&F Worldwide road map. For its part, Sequential seeks dismissal of the aiding and abetting claim on two grounds: (i) the claim fails as a matter of law because the Complaint does not plead a viable claim for breach of fiduciary duty against Stewart; and (ii) the Complaint fails to plead one of the required elements of an aiding and abetting claim, knowing participation in the breach by Sequential. Because Judge Slights has determined that the Complaint fails to state a claim for breach of fiduciary duty against Stewart, he dismissed the Complaint against Sequential on that basis and need not reach the question of whether the Complaint adequately pleads the other elements of aiding and abetting a breach of fiduciary duty. For these reasons, Judge Slights granted the motions to dismiss brought by Stewart and the Sequential Defendants. A full-text copy of the Chancery Court's Aug. 18, 2017 Opinion is available at https://is.gd/HhUZYY from Leagle.com. Seth D. Rigrodsky, Esquire -- sdr@rl-legal.com -- Brian D. Long, Esquire -- bdl@rl-legal.com -- Gina M. Serra, Esquire -- gms@rl- legal.com -- and Jeremy J. Riley Esquire -- jjr@rl-legal.com -- of Rigrodsky & Long, P.A., Wilmington, Delaware; Carmella P. Keener Esquire -- ckeener@rmgglaw.com -- of Rosenthal, Monhait & Goddess, P.A., Wilmington, Delaware; James S. Notis Esquire -- jnotis@gardylaw.com -- and Meagan Farmer Esquire -- mfarmer@gardylaw.com -- of Gardy & Notis, LLP, New York, New York; Evan J. Smith Esquire -- esmith@brodsky-smith.com -- and Marc L. Ackerman Esquire, of Brodsky & Smith, LLC, Bala Cynwyd, Pennsylvania; and Gustavo F. Bruckner Esquire -- gfbruckner@pomlaw.com -- of Pomerantz LLP, New York, New York, Attorneys for Plaintiffs. Kevin R. Shannon, Esquire -- kshannon@potteranderson.com -- Matthew F. Davis, Esquire -- mdavis@potteranderson.com -- and Mathew A. Golden Esquire -- mgolden@potteranderson.com -- of Potter Anderson & Corroon LLP, Wilmington, Delaware and Paul K. Rowe Esquire -- PKRowe@wlrk.com -- of Wachtell, Lipton, Rosen & Katz, New York, New York, Attorneys for Defendant Martha Stewart. John L. Reed, Esquire -- john.reed@dlapiper.com -- Ethan H. Townsend, Esquire -- ethan.townsend@dlapiper.com -- and Harrison S. Carpenter Esquire -- arrison.carpenter@dlapiper.com -- of DLA Piper LLP (US), Wilmington, Delaware and Mitchell A. Karlan Esquire -- mkarlan@gibsondunn.com -- and Lauren Sager Esquire -- lsager@gibsondunn.com -- of Gibson Dunn & Crutcher LLP, New York, New York, Attorneys for Defendants Sequential Brands Group, Inc., Singer Madeline Holdings, Inc., Madeline Merger Sub, Inc., and Singer Merger Sub. MDL 1566: Proofs of Claim Due Sept. 26 -------------------------------------- Companies or individuals who may have purchased natural gas for their own use or consumption in Kansas, Missouri, or Wisconsin from January 1, 2000 through October 31, 2002, may file a claim for payment no later than Sept. 26, 2017, pursuant to a settlement reached in the case, In re Western States Wholesale Natural Gas Antitrust Litigation, Case No. 2:03-cv-01431-RCJ-PAL (D. Nev.). Four groups of Defendants have agreed to settle the pending lawsuits: American Electric Power Company, Inc., AEP Energy Services, Inc., Coral Energy Resources, L.P. (n/k/a Shell Energy North America (U.S.), L.P.), Duke Energy Carolinas, LLC (f/k/a/ Duke Energy Corporation) and Duke Energy Trading and Marketing, L.L.C., ONEOK, Inc., and ONEOK Energy Services Company, L.P. (f/k/a ONEOK Energy Marketing & Trading Company, L.P.). The case is continuing against the remaining Defendants. The settlements provide a total of $42,800,000 in cash, plus interest, before deductions for attorneys' fees and expenses. The Class Representatives and Class Counsel have agreed, and the Court has preliminarily approved, an allocation of those funds to class members in Kansas, Missouri, and Wisconsin based primarily on the volume of natural gas sold in each state and differences in the claims and remedies available in each state. Before deductions for attorneys' fees and expenses, the Settlement Fund is allocated as follows: $20,522,000 to the Wisconsin Class; $14,089,600 to the Kansas Class; and $8,188,400 to the Missouri Class. In addition, the Settling Defendants' sales remain in the case for the purpose of computing damages against the remaining defendants. Entities may be a member of the following Settlement Classes: -- Kansas Settlement Class All industrial and commercial direct purchasers of natural gas for their own use or consumption during the period from January 1, 2000 through October 31, 2002, and which gas was used or consumed by them in Kansas. Excluded from the Class are (a) entities that purchased natural gas for resale (to the extent of such purchase for resale); (b) entities that purchased natural gas for generation of electricity for the purpose of sale (to the extent of such purchase for generation); (c) defendants and their predecessors, affiliates and subsidiaries; (d) the federal government and its agencies; and (e) Reorganized FLI, Inc. (f/k/a Farmland Industries, Inc.). For purposes of this Kansas Settlement Class definition, a "direct purchaser" means an industrial or commercial entity that bought natural gas for its own use or consumption directly from any of the defendants in the Actions, or from a seller other than a local distribution company. -- Missouri Settlement Class All industrial and commercial direct purchasers of natural gas for their own use or consumption during the period from January 1, 2000 through October 31, 2002, and which gas was used or consumed by them in Missouri. Excluded from the Class are (a) entities that purchased natural gas for resale (to the extent of such purchase for resale); (b) entities that purchased natural gas for generation of electricity for the purpose of sale (to the extent of such purchase for generation); (c) defendants and their predecessors, affiliates and subsidiaries; (d) the federal government and its agencies; and (e) Reorganized FLI, Inc. (f/k/a Farmland Industries, Inc.). For purposes of this Missouri Settlement Class definition, a "direct purchaser" means an industrial or commercial entity that bought natural gas for its own use or consumption directly from any of the defendants in the Actions, or from a seller other than a local distribution company. -- Wisconsin Settlement Class All industrial and commercial purchasers of natural gas for their own use or consumption during the period from January 1, 2000 through October 31, 2002, and which gas was used or consumed by them in Wisconsin. Excluded from the Class are (a) entities that purchased natural gas for resale (to the extent of such purchase for resale); (b) entities that purchased natural gas for generation of electricity for the purpose of sale (to the extent of such purchase for generation); (c) entities that purchased natural gas from entities that sold natural gas at rates approved by the Wisconsin Public Service Commission (to the extent of such purchases at such approved rates); (d) defendants and their predecessors, affiliates and subsidiaries; (e) the federal government and its agencies; and (f) Reorganized FLI, Inc. (f/k/a Farmland Industries, Inc.). The Court granted final approval of the Settlements in May 2017. KANSAS SETTLEMENT CLASS COUNSEL: Jennifer Gille Bacon, Esq. Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, MO 64112 E-mail: jbacon@polsinelli.com - and - Donald D. Barry, Esq. Barry Law Office 5340 S.W. 17th Street P.O. Box 4816 Topeka, KS 66604 E-mail: dbarry@inlandnet.net - and - Gary D. McCallister, Esq. McCallister Law Group, LLC 120 N. LaSalle St. #2800 Chicago, IL 60602 E-mail: gdm@gdmlawfirm.com WISCONSIN SETTLEMENT CLASS COUNSEL Robert L. Gegios, Esq. Kohner, Mann & Kailas, S.C. Washington Building Barnabas Business Center 4650 Port Washington Road Milwaukee, WI 53212 E-mail: rgegios@kmksc.com - and - Jennifer Gille Bacon, Esq. Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, MO 64112 - and - Donald D. Barry, Esq. Barry Law Office 5340 S.W. 17th Street P.O. Box 4816 Topeka, KS 66604 MISSOURI SETTLEMENT CLASS COUNSEL Jennifer Gille Bacon, Esq. Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, MO 64112 - and - Donald D. Barry, Esq. Barry Law Office 5340 S.W. 17th Street P.O. Box 4816 Topeka, KS 66604 THE LAWYERS REPRESENTING THE SETTLING DEFENDANTS The AEP Defendants: Robert Wolinsky, Esq. Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C. 20004 E-mail: Robert.wolinsky@hoganlovells.com Coral Energy Resources, L.P.: Joshua Lichtman, Esq. Norton Rose Fulbright US LLP 555 South Flower Street Forty-First Floor Los Angeles, CA 90071 E-mail: Joshua.lichtman@nortonrosefulbright.com The Duke Defendants: Joel Kleinman, Esq. Blank Rome LLP 1825 Eye Street NW Washington, D.C. 20006 E-mail: jkleinman@blankrome.com The ONEOK Defendants: David Bryant, Esq. GableGotwals 100 W. Fifth Street, Suite 1100 Tulsa, OK 74103 E-mail: dbryant@gablelaw.com Additional information is available at: https://www.naturalgasantitrustsettlement.com MIDLAND CREDIT: Faces "Gilbert" Suit in Western District of Va. --------------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as John Gilbert, on behalf of himself and all other similarly situated consumers, Plaintiff v. Midland Credit Management, Inc., Defendant, Case No. 2:17-cv- 00034-JPJ-PMS (W.D. Va., August 25, 2017). Midland Credit Management Inc. operates a collection agency that helps consumers resolve past-due debt obligations.[BN] The Plaintiff is represented by: Taylor-Lee Wickersham Stokes, Esq. Law Office of Taylor-Lee W. Stokes, P.C. 6933 Commons Plaza, Suite 101 Chesterfield, VA 23832 Tel: (804) 318-0653 Fax: (803) 751-8600 Email: twstokes@attorneysstokes.com MISSOURI: State High Ct. Denies Bid for Mandamus in "Bartlett" -------------------------------------------------------------- The Supreme Court of Missouri dismissed the circuit court's denial of the Relators' request for a Writ of Mandamus in the case captioned BARBARA BARTLETT, et al., Appellants, v. MISSOURI DEPARTMENT OF INSURANCE and CHLORA LINDLEY-MYERS, Respondents, No. SC96212(Mo.). On Nov. 9, 2012, two former employees of the Missouri Department of Insurance, Bartlett and Shawn Hernandez, filed a "Petition for Writ of Mandamus-Class Action" in Jackson County circuit court. The Employees requested a writ of mandamus directing the department and its director to pay them for lost wages and pensions. The circuit court's administrator, uncertain how to characterize the filing, sent a note asking the Employees if the filing should be handled as a Writ or a regular Jackson County case and if handled as a Writ of Mandamus, they could refer to the Missouri Court Rules. The Employees responded, instructing to file the case as a regular Jackson County Case and not as a Writ. In compliance with the Employees' instructions, summonses for a civil case were issued by the circuit court and served. The case was subsequently transferred to Cole County circuit court, and the Department filed a motion to dismiss. In its motion, the Department argued, in part, that the Employees failed to satisfy the elements for a writ of mandamus and failed to satisfy the procedural requirements for mandamus under Missouri Supreme Court Rule 94.03. The Employees then filed a First Amended Petition for Writ of Mandamus, styling themselves as relators in the writ petition and attaching suggestions in support and exhibits. The circuit court overruled the motion to dismiss, finding that mandamus an appropriate remedy and directing the Department to file an answer. The Department filed a General Objection and Answer asserting the circuit court is empowered to issue but one type of order; a preliminary order in mandamus. After the answer was filed, the Employees sought leave to file a Second Amended Petition for Writ of Mandamus and, in an effort to file a complete writ that fully complies with Rule 94.03, they filed suggestions in support of their petition along with exhibits. The Department once again objected and argued Employees failed to comply with Rule 94 and were not entitled to a writ of mandamus. The parties eventually filed competing motions for summary judgment. On Dec. 31, 2015 -- more than three years after the initial filing -- the circuit court denied the Relators' request for a Writ of Mandamus and entered judgment in favor of Respondents. All other claims for relief, not expressly granted, were denied. Costs taxed to the Relators. The Employees appealed, and the Supreme Court of Missouri granted transfer after opinion by the court of appeals. The Supreme Court of Missouri held that the circuit court acquiesced in the treatment of the mandamus proceedings as a normal civil action until the very end. Parties seeking mandamus relief who choose to disregard the procedures and requirements of Rule 94 do so at their own risk. In the end, the circuit court denied the Employees a writ of mandamus. But having never granted a preliminary writ, the Court says the Employees' course of action would be to seek relief in the next higher court, as denial of mandamus relief without the issuance of a preliminary writ is not subject to appeal. For these reasons, the Court dismissed the appeal. A full-text copy of the state Supreme Court's Aug. 22, 2017 Order is available at https://is.gd/QSsvjF from Leagle.com. Bartlett and Hermandez were represented by Anthony L. Dewitt, Edward D. Robertson, Jr. and Mary D. Winter of Bartimus, Frickleton and Robertson PC, in Jefferson City, (573) 659-4454. Ryan M. Paulus -- r.paulus@Cornerstonefirm.com -- and Brittany N. Coughlin Mehl -- b.mehl@Cornerstonefirm.com -- of the Cornerstone Law Firm in Kansas City, (816) 581-4040. The department and its director were represented by James R. McAdams, deputy commissioner and general counsel of the department in Jefferson City, (573) 751-1851. MRS BPO: Dinaples Seeks to Certify Class of Consumers Under FDCPA ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled DONNA DINAPLES, on behalf of herself and all others similarly situated v. MRS BPO, LLC and JOHN DOES 1-25, Case No. 2:15-cv-01435-MRH (W.D. Pa.), seeks certification of this Class pursuant to the Fair Debt Collection Practices Act: All consumers with an address in Westmoreland County who, beginning November 2, 2014 through and including the final resolution of this case, were sent one or more letters from Defendant attempting to collect a consumer debt allegedly owed to Chase Bank, which displayed on the outside of the mailing a Quick Response ("QR") Code containing the account number associated by Defendant with that consumer's account. On November 2, 2015, the Plaintiff filed a complaint averring that the Defendant debt collector, MRS BPO, LLC, violated the provisions of the FDCPA, which prohibit a debt collector from using any unfair and unconscionable means to collect or attempt to collect a debt and from using language or a symbol on any envelope when communicating with a consumer by mail. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=PZ3ZGbR0 The Plaintiff is represented by: Mark G. Moynihan, Esq. MOYNIHAN LAW, P.C. 112 Washington Place, Suite 230 Pittsburgh, PA 15219 Telephone: (412) 889-8535 E-mail: mark@moynihanlaw.net - and - Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: yzelman@marcuszelman.com NEW ORLEANS MILLWORKS: Maldonado Moves for Class Certification -------------------------------------------------------------- The Plaintiffs in the lawsuit entitled OSMAN MALDONADO, et al., on behalf of themselves and other persons similarly situated v. NEW ORLEANS MILLWORKS, LLC, et al., Case No. 2:17-cv-01015-CJB-MBN (E.D. La.), move for conditional class certification, judicial notice, and for disclosure of the names and addresses of potential "opt-in" plaintiffs. The action arises from a "generally applicable rule, policy, or practice" pursuant to the Fair Labor Standards Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=dezqTsGS The Plaintiffs are represented by: Roberto Luis Costales, Esq. William H. Beaumont, Esq. Emily A. Westermeier, Esq. BEAUMONT COSTALES LLC 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 534-5005 E-mail: costaleslawoffice@gmail.com whbeaumont@gmail.com eaw@beaumontcostales.com NEW YORK, NY: "Fernandes" Labor Suit Seeks Unpaid Overtime Wages ---------------------------------------------------------------- Alcindo Fernandes, Augustin Palau, Juan Puig and Jose Rodriguez, on behalf of themselves and others similarly situated, Plaintiffs, v. The City of New York, The Department of Education of the City of New York and New York City School Support Services, Inc., Defendants, Case No. 1:17-cv-23052 (S.D. Fla., August 11, 2017), seeks to recover unpaid overtime, liquidated damages, and attorneys' fees and costs for violation of the Fair Labor Standards Act. Plaintiffs are custodians working for defendants in public schools throughout New York City whose primary duties were manual in nature. [BN] Plaintiff is represented by: Brian L. Greben, Esq. LAW OFFICE OF BRIAN L. GREBEN 316 Great Neck Road Great Neck, NY 11021 Tel: (516) 304-5357 NIANTIC INC: California Judge Halts Suits Over Pokemon Go --------------------------------------------------------- Ross Todd, writing for The Recorder, reports that a federal judge has pressed pause on a group of lawsuits targeting the maker of augmented reality game Pokemon Go with nuisance and trespass claims for placing virtual landmarks on top of real property. At a hearing on July 27, U.S. District Judge James Donato of the Northern District of California asked lawyers representing property owners in New Jersey, Michigan and Florida who sued app maker Niantic Inc. to lay out how their claims could possibly amount to more than $5 million, the threshold needed to invoke federal court jurisdiction. "There's no dollar valuation whatsoever on the nuisance or trespass injuries," Judge Donato said. "There's nothing in there about how you get to $5 million." Lawyers from Pomerantz filed three successive lawsuits shortly after the wildly popular mobile game was released last summer, claiming Niantic induced players to trespass by placing virtual Pokestops and Pokemon gyms on or near private property without sign-off from real-world, real estate owners. Plaintiffs claimed the players created a variety of nuisances, varying from unwanted knocks on the door to players congregating at all hours and relieving themselves on their property. Niantic's lawyers at Cooley have argued the company can't be held liable for players' actions and that the company requires users to abide by real-world laws to access the game. At the July 27 hearing Pomerantz's Aatif Iqbal told Judge Donato that Niantic generated more than $1 billion in revenues from the game since it launched last July, and the game relied on "having as large a game board as possible" to draw players in. Iqbal pointed out the plaintiffs are seeking an injunction that would force Niantic to change the locations of certain landmarks and characters in the game. That injunction would "easily" cost Niantic $5 million to comply, he said. "I'm no game player, so help me out," Judge Donato said later to Mr. Iqbal's colleague, Murielle Steven Walsh. "When you say remove the Pokemon from the property, what do you mean?" Ms. Walsh said that moving the location of items of characters in the game would involve adjusting the GPS coordinates where they are made to appear within the game on players' mobile devices. That, she said, would cost the company an amount that it would be difficult for plaintiffs to calculate without some discovery from Niantic. Cooley's Michael Rhodes, however, countered it would be hard to place a value on an injunction as vague as the one outlined in the plaintiffs' complaints. "What exactly do they want us to do?" he asked. Judge Donato likewise asked the plaintiffs for clarification. The judge raised the issue of subject matter jurisdiction in an order prior to the July 27 hearing, so he asked the parties to file papers addressing that issue and placed other substantive issues on hold. Judge Donato also allowed plaintiffs to file an amended complaint. Since Niantic filed its motion to dismiss, the plaintiffs have dropped their unjust enrichment claims and dismissed claims against The Pokemon Co. and Nintendo Co. Ltd, previously named as codefendants. Additionally, Judge Donato said that plaintiffs should specify what state laws they intend to invoke and should add name plaintiffs in states where they intend to pursue claims. "There's no national common law of trespass or nuisance," Judge Donato said. "You can't bank on sort of national nuisance or trespass law because there isn't one." [GN] PERRIGO CO: Wilson's Bid for Reconsideration in "Roofers" Denied ---------------------------------------------------------------- In the case captioned ROOFERS' PENSION FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. PERRIGO CO., PLC et al., Defendants, Civil Action No. 16-2805 (MCA) (LDW) (D. N.J.), Magistrate Judge Leda Dunn Wettre of the U.S. District Court for the District of New Jersey denied Michael Wilson's motion for reconsideration, under Local Civil Rule 7.1(i), of the Court's Feb. 10, 2017 Order, which decided various competing motions for appointment as the Lead Plaintiff and for approval of the Lead Counsel. Plaintiff Roofers' commenced this putative class action in May 2016 and alleged claims against Perrigo and Joseph C. Papa, Perrigo's former board chairman and CEO, for violation of sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as well as rule 10b-5 promulgated thereunder. The Complaint alleged that Perrigo and Papa made false statements regarding Perrigo's value and earnings outlook to induce Perrigo shareholders to reject a tender offer by non-party Mylan N.V. The Plaintiffs contend that these misrepresentations constituted a fraud on the market and that shareholders relied on them in retaining or acquiring Perrigo shares, to their detriment. On July 18, 2016, four members of the putative Plaintiff class filed motions seeking appointment as the Lead Plaintiff and approval of the Lead Counsel: Hare Insurance Co., Ltd.; a group referring to itself as the Perrigo Institutional Investor Group ("PIIG"), composed of Migdal Insurance Co. Ltd., Migdal Makefet Pension and Provident Funds Ltd., Clal Insurance Co. Ltd., Clal Pension and Provident Ltd., Atudot Pension Fund for Employees and Independent Workers Ltd., and Meitav DS Provident Funds and Pension Ltd; Dan Kleinerman; and Wilson. The Competing Movants timely filed opposition papers on Aug. 1, 2016, and reply papers on Aug. 8, 2016. On Jan. 27, 2017, without leave of the Court, Hare filed a sur-reply characterized as a Supplemental Submission in Further Support of its motion, arguing that PIIG's lead plaintiff motion should be denied because its co-lead counsel, Pomerantz LLP, had taken inconsistent positions in different actions as to Kleinerman's adequacy as a co-lead plaintiff. Both PIIG and Kleinerman filed (also without Court leave) oppositions to the supplemental filing. On Feb. 10, 2017, the Court granted the motion of PIIG and denied the competing motions, appointing PIIG as the Lead Plaintiff and approving its choice of Pomerantz LLP and Bernstein Litowitz Berger & Grossmann LLP as the co-lead counsel and Lowenstein Sandler LLP as the liaison counsel. Assessing the motions under the provisions of the Private Securities Litigation Reform Act of 1995, the Court identified PIIG as the presumptive most adequate Plaintiff. The Court additionally approved PIIG's selection of lead counsel. Kleinerman subsequently objected to the Feb. 10,2017 Order. District Judge Madeline Cox Arleo adopted the Order in full on April 27, 2017. Wilson now moves for reconsideration of the Feb. 10, 2017 Order, arguing that the Court, when deciding the competing lead plaintiff motions, failed to consider properly the arguments Harel raised in its supplemental submission regarding Pomerantz's alleged conflicting positions as to Kleinerman. Wilson argues that the Court should have denied PIIG's motion and instead appointed Harel as the Lead Plaintiff and Wilson as the Lead Plaintiff for a sub- class of put-option sellers. Both PIIG and Kleinerman oppose Wilson's motion. Magistrate Judge Wettre held that PIIG made a showing that it alleged the largest loss, thus making it the presumptive most adequate Lead Plaintiff, and the other Movants failed to make a showing that PIIG would not be an adequate Lead Plaintiff or would be subject to unique defenses. There is no indication that Harel's arguments regarding Pomerantz would have established that PIIG was inadequate or subject to a unique defense. Furthermore, given the deference owed to a lead plaintiff's choice of counsel, In re Cendant Corp. Litig., the argument as to Pomerantz, even if properly presented, would not have impacted the approval of it as co-lead counsel. For the reasons stated, the Magistrate Judge denied Wilson's motion for reconsideration of the Court's Feb. 10, 2017 Order. She directed the Clerk of the Court to terminate the motion filed as ECF No. 68. A full-text copy of the magistrate's Aug. 18, 2017 Opinion and Order is available at https://is.gd/xcJxRC from Leagle.com. HAREL INSURANCE COMPANY, LTD, Movant, represented by PETER S. PEARLMAN, COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF, LLP. Dan Kleinerman, Movant, represented by DANIEL S. SOMMERS -- dsommers@cohenmilstein.com -- COHEN, MILSTEIN, SELLERS & TOLL, PLLC. Michael Wilson, Movant, represented by GARY S. GRAIFMAN, KANTROWITZ, GOLDHAMER & GRAIFMAN, ESQS. & PETER GEORGE SAFIRSTEIN -- psafirstein@safirsteinmetcalf.com -- Safirstein Metcalf LLP. ROOFER'S PENSION FUND, Plaintiff, represented by DANIEL S. SOMMERS, COHEN, MILSTEIN, SELLERS & TOLL, PLLC, MICHAEL B. HIMMEL -- mhimmel@lowenstein.com -- LOWENSTEIN SANDLER LLP & MICHAEL THOMAS GRAY LONG -- mlong@lowenstein.com -- LOWENSTEIN SANDLER, PC. JOSEPH C. PAPA, Defendant, represented by GOUTAM UMESH JOIS -- gjois@gibsondunn.com -- GIBSON DUNN & CRUTCHER LLP. PERRIGO COMPANY PLC, Defendant, represented by ALAN S. NAAR -- anaar@greenbaumlaw.com -- GREENBAUM, ROWE, SMITH & DAVIS, LLP. MARC COUCKE, Defendant, represented by RYAN MICHAEL CHABOT -- ryan.chabot@wilmerhale.com -- WILMER CUTLER PICKERING HALE AND DORR LLP. PHC INC: Shear Appeals Ruling in Maz Partners Suit to 1st Circuit ----------------------------------------------------------------- Defendant Bruce A. Shear filed an appeal from a court ruling in the lawsuit styled MAZ PARTNERS LP v. BRUCE A. SHEAR, et al., Case No. 1:11-cv-11049-PBS, in the U.S. District Court for the District of Massachusetts, Boston. As previously reported in the Class Action Reporter on July 24, 2017, the District Court issued a Memorandum and Order disgorging share plus interest in the case, and denying the motion for new trial. The Court held a nine-day jury trial in this shareholder class action arising from a corporate merger. The appellate case is captioned as MAZ Partners LP v. Shear, Case No. 17-1821, in the United States Court of Appeals for the First Circuit. The docket of the Appellate Case states that Appearance form, Docketing Statement, and Transcript Report/Order form are due on September 5, 2017.[BN] Plaintiff-Appellee MAZ PARTNERS LP, on behalf of itself and all others similarly situated, is represented by: Patricia I. Avery, Esq. Adam Blander, Esq. WOLF POPPER LLP 845 3rd Avenue New York, NY 10022-0000 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: pavery@wolfpopper.com ablander@wolfpopper.com Plaintiff-Appellee MAZ PARTNERS LP, on behalf of itself and all others similarly situated, and PETER BLAKESLEE, individually and on behalf of all others similarly situated, are represented by: Norman Berman, Esq. Nathaniel L. Orenstein, Esq. BERMAN TABACCO 1 Liberty Sq., 8th Floor Boston, MA 02109 Telephone: (617) 542-8300 E-mail: nberman@bermandevalerio.com norenstein@bermantabacco.com - and - Chet Barry Waldman, Esq. WOLF POPPER LLP 845 3rd Avenue New York, NY 10022-0000 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: CWaldman@wolfpopper.com Plaintiff PETER BLAKESLEE, individually and on behalf of all others similarly situated, is represented by: Patrick J. Sheehan, Esq. WHATLEY KALLAS LLP 60 State St., 7th Floor Boston, MA 02109-0000 Telephone: (61) 573-5118 E-mail: psheehan@whatleykallas.com Defendant-Appellant BRUCE A. SHEAR, and Defendants PHC, INC., DONALD E. ROBAR, DOUGLAS J. SMITH, HOWARD W. PHILLIPS, WILLIAM F. GRIECO, DAVID E. DANGERFIELD, ACADIA HEALTHCARE COMPANY, INC., and ACADIA MERGER SUB, LLC, are represented by: Leonard H. Freiman, Esq. Richard M. Zielinski, Esq. GOULSTON & STORRS PC 400 Atlantic Avenue Boston, MA 02110-3333 Telephone: (617) 574-4188 Facsimile: (617) 574-7579 E-mail: lfreiman@goulstonstorrs.com rzielinski@goulstonstorrs.com - and - James H. Hulme, Esq. Matthew M. Wright, Esq. ARENT FOX LLP 1717 K Street, NW Washington, DC 20036 Telephone: (202) 857-6144 E-mail: james.hulme@arentfox.com matthew.wright@arentfox.com Defendant-Appellant BRUCE A. SHEAR, and Defendants DONALD E. ROBAR, DOUGLAS J. SMITH, HOWARD W. PHILLIPS, WILLIAM F. GRIECO, DAVID E. DANGERFIELD, ACADIA HEALTHCARE COMPANY, INC., and ACADIA MERGER SUB, LLC, are represented by: Nadia Patel, Esq. ARENT FOX LLP 1717 K Street, NW Washington, DC 20036 Telephone: (202) 857-6000 E-mail: nadia.patel@arentfox.com Defendants ACADIA HEALTHCARE COMPANY, INC., and ACADIA MERGER SUB, LLC, are represented by: Whitney L. Becker, Esq. Douglas S. Curran, Esq. KIRKLAND & ELLIS LLP 300 N LaSalle Street Chicago, IL 60654 Personal: 312-862-2596 E-mail: whitney.becker@kirkland.com PHOENIX TECHNOLOGY: Miller Seeks to Recover Unpaid Overtime Wages ----------------------------------------------------------------- JOHN MILLER, Individually and on Behalf of All Others Similarly Situated v. PHOENIX TECHNOLOGY SERVICES, USA, INC., Case No. 4:17- cv-02457 (S.D. Tex., August 11, 2017), seeks to recover alleged unpaid overtime wages and other damages under the Fair Labor Standards Act and the New Mexico Minimum Wage Act. Phoenix is a Delaware corporation doing business throughout the United States, including New Mexico. Phoenix is an oil and natural gas exploration and production company operating worldwide and throughout the United States, including in New Mexico.[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 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com PROBALANCE INC: Court Partly Grants Bid to Dismiss "Ulrich" Suit ---------------------------------------------------------------- Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Probalance's motion to dismiss the case captioned JOHN M. ULRICH, Plaintiff, v. PROBALANCE, INC., Defendant, No. 16 C 10488(N.D. Ill.). The Plaintiff alleges in his complaint that on Oct. 10, 2016, he purchased four bottles of the Product from CVS/Pharmacy for $2.67 each, plus tax, without specifying which of the four Products he purchased. The front labels of all of the Products prominently display the number of grams of protein contained in each bottle. The back labels show the same protein content figures, as well as, in some cases, the percent daily reference value of protein that each bottle contains. The gravamen of the complaint rests on the Plaintiff's allegations that Probalance's products are misleadingly labeled with respect to their protein content. He alleges that the protein in Probalance's products is a blend of predominantly low-quality collagen protein isolate and a smaller amount of higher-quality proteins such as whey and casein. Because collagen protein is less digestible, the Plaintiff alleges, it is as if Probalance's products contain less protein than Probalance claims on its labels. Under certain circumstances, federal regulations require manufacturers such as Probalance to use a testing methodology known as the Protein Digestibility Corrected Amino Acid Score ("PDCAAS") to calculate a corrected amount of protein per serving for purposes of labeling their products. According to the Plaintiff, the statements that Probalance makes on the Product labels concerning the amount of protein in the Products are misleading because at least some of the protein is virtually indigestible. The Plaintiff's complaint contains four counts: Count I, violation of state consumer fraud acts (on behalf of a multi-state class); Count II, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA") (on behalf of an Illinois subclass, in the alternative to Count I); Count III, breach of express warranty (on behalf of a national class); and Count IV, unjust enrichment (in the alternative to Count III). The Defendant has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Judge Alonso finds that to the extent that the Plaintiff claims that Probalance violates state law by making protein claims that are deceptive or misleading because they do not calculate the protein content according to the PDCAAS-adjusted method, he is not asserting that Probalance violated any state-law requirements different from or additional to the requirements of the FDCA and its implementing regulations. His claims are not preempted. The Judge also fails to see any meaningful difference between the injury suffered by someone who purchased Probalance Protein Shot and the injury of another person who purchased Probalance Protein Shot XL or one of the other Products. The Products and the alleged misrepresentations are substantially similar, so the Plaintiff has standing regardless of whether he purchased all four of the Products or only some of them. The Plaintiff has not alleged that he provided pre-suit notice to Probalance, and he was required to do so in order to bring a breach of warranty claim, regardless of whether Probalance had knowledge generally of the fact that it used collagen protein isolate in its Products and did not adjust the labeling for digestibility, Judge Alonso finds. His breach of warranty claim is dismissed. As to the Plaintiff's claims under the ICFA, Probalance's arguments that the Plaintiff has failed to state a plausible consumer fraud claim are all without merit. Therefore, Probalance's motion to dismiss is denied as to the Plaintiff's consumer fraud claims. Finally, with respect to Probalance's bid to dismiss the Plaintiff's unjust enrichment claim, Judge Alonso finds that since the Plaintiff's consumer fraud claim survives Probalance's motion to dismiss, so the unjust enrichment claim also survives. For these reasons, Judge Alonso granted in part and denied in part Probalance's motion to dismiss, without prejudice to filing an amended complaint by Sept. 15, 2017, if the Plaintiff can do so in compliance with the Federal Rules of Civil Procedure. He granted the motion as to the Plaintiff's claims for injunctive relief and breach of express warranty, which are dismissed. It is otherwise denied. A full-text copy of the Court's Aug. 18, 2017 Memorandum Opinion and Order is available at https://is.gd/wvqco6 from Leagle.com. John M Ulrich, Plaintiff, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson & Wanca. John M Ulrich, Plaintiff, represented by Jeffrey Alan Berman -- jberman@andersonwanca.com -- Anderson Wanca, Patrick J. Solberg, Anderson Wanca & Nick Suciu, III -- nicksuciu@bmslawyers.com -- Barbat, Mansour & Suciu Pllc. Probalance, Inc., Defendant, represented by Ryan Mathew Kaiser -- ryan@amintalati.com -- Amin Talati, LLC & Sanjay Satish Karnik -- sanjay@amintalati.com -- Amin Talati & Upadhye, LLC. RBS CITIZENS: Court Adopts Special Master's Report in Reinig Suit ----------------------------------------------------------------- The Hon. Arthur J. Schwab entered a memorandum order adopting reports and recommendations of Special Master David R. Cohen in the lawsuit styled ALEX REINIG, KEN GRITZ, BOB SODA, MARY LOU GRAMESKY, PETER WILDER SMITH, WILLIAM KINSELLA, DANIEL KOLENDA, VALERIA DAL PINO, AHMAD NAJI, ROBERT PEDERSON, TERESA FRAGALE, and DAVID HOWARD v. RBS CITIZENS, N.A., Case No. 2:15-cv-01541-AJS (W.D. Pa.). Pursuant to Rule 53 of the Federal Rules of Civil Procedure and by stipulation of the Parties, Special Master David R. Cohen was appointed to file Reports and Recommendations concerning summary judgment, class action certification, and collective action decertification. In this lawsuit, the Plaintiffs allege that Defendant Citizens Bank, N.A., failed to pay Mortgage Loan Officers ("MLOs") all compensation due 1) by devising a compensation plan whereby commission payments are calculated by subtracting the hourly wages of the MLO from the "gross commissions" (referred to as the "Recapture Claims"), and 2) by maintaining an "unofficial policy" to discourage MLOs from fully reporting overtime hours worked (the "off-the-clock" claims). The Plaintiffs seek relief under the Fair Labor Standards Act and corresponding state laws for themselves and all those similarly situated pursuant to Section 216(b) of the FLSA and Federal Rule of Civil Procedure 23. The Court adopts the Special Master's Reports and Recommendations as the opinions of the Court and rules on the pending motions as follows: -- The Court grants Plaintiffs' Motion for Class Certification; -- The Court denies Defendant's Motion to Decertify the FLSA Collective Action, and finally certifies the FLSA collective action; -- The Court denies Plaintiffs' Motion for Partial Summary Judgment; and -- The Court grants in part and denies in part Defendant's Motion for Summary Judgment. A copy of the Memorandum Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=wTg1RgAI RBS CITIZENS: Court Certifies Class in "Reinig" FLSA Suit --------------------------------------------------------- In the case captioned ALEX REINIG, KEN GRITZ, BOB SODA, MARY LOU GRAMESKY, PETER WILDER SMITH, WILLIAM KINSELLA, DANIEL KOLENDA, VALERIA DAL PINO, AHMAD NAJI, ROBERT PEDERSON, TERESA FRAGALE, and DAVID HOWARD, Plaintiffs, v. RBS CITIZENS, N.A., Defendant, No. 15cv1541(W.D. Pa.), Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania (i) granted the Plaintiffs' Motion for Class Certification; (ii) denied the Defendant's Motion to Decertify the Fair Labor Standards Act ("FLSA") Collective Action, and finally certified the FLSA collective action; (iii) denied the Plaintiffs' Motion for Partial Summary Judgment; and (iv) granted in part and denied in part the Defendant's Motion for Summary Judgment. Pursuant to Rule 53 of the Federal Rules of Civil Procedure and by stipulation of the Parties, Special Master David R. Cohen was appointed to file Reports and Recommendations concerning summary judgment, class action certification, and collective action decertification. In the lawsuit, the Plaintiffs allege that Defendant RBS Citizens failed to pay Mortgage Loan Officers ("MLOs") all compensation due (i) by devising a compensation plan whereby commission payments are calculated by subtracting the hourly wages of the MLO from the "gross commissions; and (ii) by maintaining an "unofficial policy" to discourage MLOs from fully reporting overtime hours worked ("off-the-clock" claims). The Plaintiffs seek relief under the FLSA and corresponding state laws2 for themselves and all those similarly situated pursuant to Section 216(b) of the FLSA and Federal Rule of Civil Procedure 23. In May 2016, the Court conditionally certified the action under Section 216(b) of the FLSA. Approximately 350 Plaintiffs have since opted-in to the FLSA collective action. Pending before the Court are (i) the Plaintiffs' motion for class certification; (ii) the Defendant's motion to decertify the FLSA collective action; (iii) the Plaintiff's motion for partial summary judgment on the Recapture Claims; and (iv) the Defendant's motion for summary judgment. The Special Master made the following recommendations: (i) granted the Plaintiffs' motion for class certification of the state-law Recapture Claims; (ii) granted final certification of the Plaintiffs' FLSA Recapture Claims (by denying the Defendant's motion to decertify the collective action for those claims); (iii) denied the Plaintiffs' motion for partial summary judgment on the Recapture Claims; (iv) granted the Defendant's motion for summary judgment on the Recapture Claims; (v) granted final certification of the Plaintiffs' FLSA off-the-clock claims; (vi) granted the Plaintiff's motion for class certification of their state-law off- the-clock claims; and (vii) denied the Defendant's motion for summary judgment on the off-the-clock claims, except that the motion should be (a) granted with respect to plaintiffs Grametsy, Smith, Dal Pino, and Kinsella for claims that accrued prior to Feb. 4, 2014 because such claims were released by those individuals; and (b) granted with respect to any state-law claims that accrued prior to the applicable state-law statute of limitations as set forth in the Defendant's chart at Doc. No. 123- 353. Judge Schwab agrees that Citizens Banks' MLO Comp-Plans do not violate the FLSA and analogous state-laws as alleged by the Plaintiffs and that summary judgment in favor of the Defendant as to these claims is appropriate. Accordingly, he finds that the remainder of the Defendant's arguments is procedural and regards matters within the sound discretion of the District Court to manage litigation before it. Trial of a single issue regarding the Plaintiffs' FLSA off-the-clock claims is scheduled to commence, and will commence, on Sept. 25, 2017. He says this in no way interferes with the state subclasses right to receive notice of the pending state-law claims and to opt-out of the action if they so choose. Accordingly, having considered the Special Master's Reports, the Parties' objections to the reports, and having reviewed the motions at issue de novo, Judge Schwab adopted the Special Master's Reports and Recommendations as the opinions of the Court. He (i) granted the Plaintiffs' Motion for Class Certification; (ii) denied the Defendant's Motion to Decertify the FLSA Collective Action, and finally certified the FLSA collective action; (iii) denied the Plaintiffs' Motion for Partial Summary Judgment; and (iv) granted in part and denied in part the Defendant's Motion for Summary Judgment. A full-text copy of the Court's Aug. 22, 2017 Memorandum Order is available at https://is.gd/fqgWOG from Leagle.com. DAVID R. COHEN, Special Master, represented by David Rosenblum Cohen -- david@specialmaster.law -- David R. Cohen Co. LPA. ALEX REINIG, Plaintiff, represented by Daniel A. Horowitz -- dhorowitz@swartz-legal.com -- Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC, Joshua Boyette -- jboyette@swartz- legal.com -- Swartz Swidler LLC, pro hac vice & Robert D. Soloff, Robert D. Soloff, P.A., pro hac vice. KEN GRITZ, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC, Robert D. Soloff, Robert D. Soloff, P.A., pro hac vice & Joshua Boyette, Swartz Swidler LLC, pro hac vice. BOB SODA, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC, Robert D. Soloff, Robert D. Soloff, P.A., pro hac vice & Joshua Boyette, Swartz Swidler LLC, pro hac vice. MARY LOU GRAMESKY, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. PETER WILDER SMITH, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. WILLIAM KINSELLA, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. DANIEL KOLENDA, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. VALERIE DAL PINO, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. AHMAD NAJI, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. ROBERT PEDERSON, Plaintiff, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. RBS CITIZENS, N.A., Defendant, represented by Thomas E. Hill -- thill@reedsmith.com -- Reed Smith LLP, pro hac vice, Christina T. Tellado -- ctellado@reedsmith.com -- Reed Smith LLP, Gretchen Woodruff Root -- groot@reedsmith.com -- Reed Smith LLP & Robert J. Tyler, III -- rtyler@reedsmith.com -- Reed Smith LLP. RED PARROT: Senior Care Moves to Certify Two Classes Under TCPA --------------------------------------------------------------- The Plaintiff in the lawsuit captioned SENIOR CARE GROUP, INC., individually and as the representative of a class of similarly- situated persons v. RED PARROT DISTRIBUTION, INC., a Florida corporation, and JOHN DOES 1-5, Case No. 8:17-cv-00760-JDW-TGW (M.D. Fla.), asks the Court to certify these classes: Class A: All persons or entities who were successfully sent a fax by or on behalf of "Red Parrot," on or about February 23, 2017, stating "got drams?," stating "Red Parrot Distribution supplies pharmaceuticals and the vials and bottles to put them in," and stating the vials are "in stock, competitive pricing, and available for next day delivery." Class B: All persons or entities who were successfully sent a fax by or on behalf of Red Perrot, designated as follows: (1) "Special," sent May 5, 2014; (2) "Special," sent May 12, 2014; (3) "Weekly Specials," sent May 21, 2014; (4) "Specials," sent May 27, 2014; (5) "Weekly Specials," sent June 3, 2014; (6) "Specials," sent on June 17, 2014; (7) "Weekly Specials," sent July 7, 2014; (8) "Specials," sent July 14, 2014; (9) "Specials, sent July 21, 2014; (10) "Weekly Specials," sent July 25, 2014; (11) "Special 7/28/14," sent July 28, 2014; (12) "Specials," sent August 4, 2014; (13) "Specials," sent August 11, 2014; (14) "Weekly Specials," sent August 19, 2014; (15) "6-4-15-PHARMACY-6-4-1," sent June 4, 2015; (16) "6-16-15 pharmacy," sent June 16, 2015; (17) "Drug Test Fax," sent October 22, 2015; (18) "Non-Pharma 10-28-15," sent October 29, 2015; (19) "Independant Pharmacies," sent November 4, 2015; (20) "Non-RX Nov. 10," sent November 11, 2015; (21) "IPRX-Independent Pharma - Independent Pharmacies," sent November 19, 2015; (22) "HH EOY Sale - Non-Pharma 10-2015," sent November 19, 2015; (23) "RX Dec. 7 2015," sent Dec. 8, 2015; (24) "05.09.16," sent May 9, 2016; (25) "Weekly Specials," sent May 23, 2016; (26) "EOM Specials," sent August 31, 2016; (27) "pet phcy fax 9-30-16," sent September 30, 2016; (28) "RX OTC Mech 10/2016," sent October 24, 2016; (29) "Halloween RX fax," sent October 31, 2016; (30) "Cash Sales Add Ons," sent November 11, 2016; (28) "Name Your Price," sent November 18, 2016; (29) "Dram Flyer," sent November 22, 2016; (30) "Cash Sales Add Ons," sent November 14, 2016; (31) "Name Your Price," sent November 18, 2016; (32) "Dram Flyer," sent November 22, 2016; (33) "Black Friday," sent November 24, 2016; (34) "Sugar Free," sent December 2, 2016; (35) "Name Your Price Dec," sent December 9, 2016; (36) "End of Year," sent December 19, 2016; (37) "Diabetic All Ind.," sent January 11, 2016); (38) IND RX JAN 2016," sent January 19, 2016; (39) "HH JAN 2016," sent January 27, 2016; (40) "Specials 3-17-16," sent March 17, 2016; (41) "New Year - Updated pharmacies clean list 09.30.16," sent January 9, 2017; (42) "Ibuprofen," sent January 16, 2017; (43) "New Lock Laces," sent February 10, 2017; (44) "Valentine's Day 2017 - Updated pharmacies clean," sent February 14, 2017; (45) "Drams - Non-Pharma," sent February 23, 2017; (46) "Drams-Updated pharmacies clean list .09.30.16," sent February 23, 2017; (47) "Nebulizers," sent March 1, 2017; and (48) "Diabetic Specials - Updated pharmacies clean list," sent March 15, 2017. Senior Care also asks the Court to appoint it as class representative and to appoint the law firm of Anderson + Wanca as class counsel. The case arises out of a fax-advertising campaign wherein a facsimile advertisement was sent to the Plaintiff and the proposed class on February 23, 2017, in violation of the Telephone Consumer Protection Act of 1991. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=R8JUhQA8 The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com ROCKET FUEL: Federman Sues Over Proposed Acquisition by Sizmek -------------------------------------------------------------- MAX FEDERMAN, on Behalf of Himself and All Others Similarly Situated v. ROCKET FUEL INC., E. RANDOLPH WOOTTON III, MONTE ZWEBEN, RICHARD A. FRANKEL, SUSAN L. BOSTROM, RONALD E. F. CODD, WILLIAM W. ERICSON, CLARK M. KOKICH, and JOHN J. LEWIS, Case No. 3:17-cv-04651 (N.D. Cal., August 11, 2017), accuses the Defendants of violating the Securities Exchange Act of 1934 in connection with the tender offer by Sizmek Inc., an affiliate of Vector Capital IV, L.P., to purchase all of the issued and outstanding shares of Rocket Fuel common stock for $2.60 per share. On August 2, 2017, the Defendants filed a materially incomplete and misleading Schedule 14D9 Solicitation/Recommendation Statement with the U.S. Securities and Exchange Commission, the Plaintiff alleges. In particular, he contends, the Recommendation Statement contains materially incomplete and misleading information concerning Rocket Fuel's financial projections, the valuation analyses performed by the Company's financial advisor, Needham & Company, LLC, and Company insiders' potential conflicts of interest. Rocket Fuel is a predictive marketing software company that uses artificial intelligence to empower agencies and marketers to anticipate people's need for products and services. The Company's core service offerings are organized around two platforms: Demand Side Platform and Data Management Platform, which can be used independently, together, or can be integrated with a customer's other customer relationship management or marketing platforms. The Individual Defendants are directors and officers of the Company.[BN] The Plaintiff is represented by: Robert S. Green, Esq. James Robert Noblin, Esq. GREEN & NOBLIN, P.C. 2200 Larkspur Landing Circle, Suite 101 Larkspur, CA 94939 Telephone: (415) 477-6700 Facsimile: (415) 477-6710 E-mail: rsg@classcounsel.com jrn@classcounsel.com ROSEVILLE, MI: Court Consolidates "Garner," "Cordia" Class Suits ---------------------------------------------------------------- In the case captioned LAWRENCE M. GARNER, CHRISTOPHER GARNER, AND WILLIAM KAUPUS, Plaintiffs, v. CITY OF ROSEVILLE, GLENN SEXTON, RODNEY BROWNING, Defendants, and CORDIA MICHIGAN, LLC, RUDALEV I, LLC, and GARNER PROPERTIES & MANAGEMENT, LLC, Plaintiffs, v. CITY OF ROSEVILLE, GLENN SEXTON, RODNEY BROWNING, Defendants, Case No. 16-cv-10760(E.D. Mich.), Judge Victoria A. Roberts of the U.S. District Court for the Eastern District of Michigan, Southern Division, (i) consolidated the U.S. District Court for the Eastern District of Michigan case nos. 16-cv-10760 and 16-cv-10986 for purpose of the settlement; (ii) certified the Settlement Class; and (iii) preliminarily approved the Settlement Agreement. Judge Roberts reviewed and considered the Settlement Agreement, and heard the statements of the parties' attorneys in open court on Aug. 7, 2017 on their Joint Motion for Preliminary Approval of Class Action Settlement and Notice to the Class. The Judge ordered that all future Court filings will be filed into case no. 16-cv-10760. Pursuant to Rule 23 (e) of the Federal Rules of Civil Procedure, the settlement of the action, as embodied in the terms of the Settlement Agreement, is preliminarily approved. Judge Roberts certified the following Class and Sub-Class ("Settlement Class"): a. Class: All persons and entities who currently own or at one time owned any non-owner occupied residential structures located within the City of Roseville who or which has been issued a misdemeanor ticket for failure to obtain a Certificate of Compliance under the City's Non-Owner-Occupied Housing Ordinance, and subsequently paid a fine at any time since Jan. 1, 2010 through Dec. 15, 2016. b. Sub-Class: All persons and entities who were not owners of non-owner occupied residential structures located within the City of Roseville, yet were issued a misdemeanor ticket for failure to obtain a Certificate of Compliance under the City's Non-Owner-Occupied Housing Ordinance from Jan. 1, 2010 through Dec. 15, 2016. Plaintiffs Lawrence M. Garner, Christopher Garner, William Kaupus, Cordia Michigan, LLC, Rudalev I, LLC and Garner Properties & Management, LLC are appointed as the representatives of the Settlement Class, and their attorneys Aaron D. Cox and Mark K. Wasvary are appointed as the Class Counsel. Judge Roberts approved and adopted the Settlement Agreement's plan for Class Notice. She finds that, except for one omission, the Class Notice, and the Claim Form included as part of the Class Notice, comply with Rules 23 (e)(1) and 23(c)(2)(B) of the Federal Rules of Civil Procedure. She directed the Class Counsel to add language to the Class Notice to comply with Rule 23(c)(2)(B)(iv) providing that a class member may enter an appearance through an attorney if the member so desire. With the inclusion of that language, the Class Notice and Claim Form are approved and adopted. Judge Roberts ordered that the parties provide the notice to the Class as proposed, with the one addition. The Judge ordered that the Class Notice will be sent by either postcard or first class mailing for Class Members where the Defendants have that information. The Claims Administrator will cause an abbreviated version of the Notice to be placed in a weekend edition of the Macomb Daily. The Settlement Agreement, Class Notice and Claim Form will also be made available on the Class Counsel's website. Judge Roberts ordered that no other notice is necessary. The Class Counsel is authorized to request and receive docket records from the 39th District Court for the State of Michigan to verify claims of the Settlement Class. Judge Roberts sets these deadlines and dates for the acts and events set forth in the Settlement Agreement, and directed the Parties to incorporate them in the Class Notice: a. The Plaintiffs will file an Amended Complaint with more specific allegations as to Christopher Garner on or before Aug. 17, 2017; b. The Class Notice must be mailed by Aug. 22, 3017; c. The Class members must submit a Proof of Claim to the Claims Administrator within 90 days after the Class Notice is sent; d. The objections and the motions to intervene, along with related memoranda of law, will be filed in the Court and postmarked and served on Class Counsel and the Defendants' counsel on or before Nov. 20, 2017, or be forever barred; e. The requests by any Class Member to opt out of the settlement must be mailed to Class Counsel on or before Nov. 20, 2017, or be forever barred. f. The Class Counsel must file a motion for final approval of class action settlement on or before Dec. 4, 2017. That motion must address any objections that were filed, and it must set forth: (i) the total number of Members who responded in the Class and Sub-Class; (ii) the total number of claims made under the Class and Sub-Class; and (iii) the percentage of the fine recovered by Class/Sub-Class Members based on the pro-rated formula (e.g., if a Class Member paid a $100 fine, and his or her pro-rated share of the settlement fund is $75, he or she recovered 75% of the fine they paid). The Sub-Class Members are entitled to make a claim for $350 for each misdemeanor ticket in addition to a pro-rata share of fines paid; g. The Class Counsel must file a motion for attorney fees and expenses pursuant to Rule 23(h) on or before Dec. 4, 2017; h. The Defendants will file proof of compliance with the notice requirements of the Class Action Fairness Act of 2005 no later than Aug. 21, 2017; and, i. The Fairness Hearing, set forth in the Class Notice, is set for Jan. 16, 2018, at 9:00 a.m. in Room 226. A full-text copy of the District Court's Aug. 18, 2017 Stipulated Amended Order is available at https://is.gd/kgjovv from Leagle.com. Lawrence M. Garner, Plaintiff, represented by Mark K. Wasvary -- markwasvary@hotmail.com -- Becker and Wasvary. Lawrence M. Garner, Plaintiff, represented by Aaron D. Cox -- aaron@aaroncoxlaw.com -- Law Offices of Aaron D. Cox PLLC. Christopher Garner, Plaintiff, represented by Mark K. Wasvary, Becker and Wasvary & Aaron D. Cox, Law Offices of Aaron D. Cox PLLC. William Kaupus, Plaintiff, represented by Mark K. Wasvary, Becker and Wasvary & Aaron D. Cox, Law Offices of Aaron D. Cox PLLC. Cordia Michigan, LLC, Plaintiff, represented by Aaron D. Cox, Law Offices of Aaron D. Cox PLLC & Mark K. Wasvary, Becker and Wasvary. Garner Properties & Management, Plaintiff, represented by Aaron D. Cox, Law Offices of Aaron D. Cox PLLC & Mark K. Wasvary, Becker and Wasvary. Rudalev, LLC, Plaintiff, represented by Aaron D. Cox, Law Offices of Aaron D. Cox PLLC & Mark K. Wasvary, Becker and Wasvary. Roseville, City of, Defendant, represented by Carlito H. Young -- cyoung@jrsjlaw.com -- Johnson, Rosati & Stephanie S. Morita -- smorita@jrsjlaw.com -- Johnson Rosati. Glenn Sexton, Defendant, represented by Carlito H. Young, Johnson, Rosati & Stephanie S. Morita, Johnson Rosati. Rodney Browning, Defendant, represented by Carlito H. Young, Johnson, Rosati & Stephanie S. Morita, Johnson Rosati. RPM MORTGAGE: "Nanclares" Suit Remanded to Calif. State Court ------------------------------------------------------------- Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California remanded to the Superior Court of California, County of Alameda, the case captioned FRANCISCO NANCLARES, et al., Plaintiffs, v. RPM MORTGAGE, INC., Defendant, Case No. 16-cv-07188-HSG(N.D. Cal.). On November 10, 2016, the Plaintiffs filed the putative class action against the Defendant in the Superior Court of California, County of Alameda. The complaint includes causes of action for common law fraud and violation of California's Unfair Competition Law ("UCL"). On Dec. 15, 2016, the Defendant filed its notice of removal, asserting that removal was proper under 28 U.S.C. Section 1441(b) because the Court allegedly had subject matter jurisdiction under 28 U.S.C. Section 1331 (federal question). On Jan. 19, 2017, the Plaintiffs filed their motion for remand. Judge Gilliam held that the Court lacks federal question jurisdiction under 28 U.S.C. Section 1331. The Plaintiffs allege no federal cause of action. Moreover, their fraud and UCL claims do not meet the four-part test that must be satisfied to find that state law causes of action arise under federal law. The necessarily raised prong is not satisfied because the Plaintiffs could prevail on their UCL and fraud claims without relying on federal law. Accordingly, the Judge finds that the removal of the case was inappropriate because it could not have been filed originally in federal court. Since the Court lacks subject matter jurisdiction over the action, remand is required. However, he declined the Plaintiffs' request for attorney fees under Section 1447(c) because the Defendant's arguments asserting federal question jurisdiction under the four-part test from Gunn and Gable, while unpersuasive, are not objectively unreasonable. For these reasons, Judge Gilliam granted the Plaintiffs' motion to remand the case to the Superior Court of California, County of Alameda. He directed the clerk to remand the case forthwith and close the case. A full-text copy of the District Court's Aug. 22, 2017 Order is available at https://is.gd/deRiZ8 from Leagle.com. Francisco Nanclares, Plaintiff, represented by James T. Hannink -- Jim.Hannink@SDLaw.com -- Dostart Hannink and Coveney. Francisco Nanclares, Plaintiff, represented by Zachariah Paul Dostart -- ZDostart@SDLaw.com -- Dostart Hannink & Coveney LLP. Carl Knecht, Plaintiff, represented by James T. Hannink, Dostart Hannink and Coveney & Zachariah Paul Dostart, Dostart Hannink & Coveney LLP. David Glaser, Plaintiff, represented by James T. Hannink, Dostart Hannink and Coveney & Zachariah Paul Dostart, Dostart Hannink & Coveney LLP. Antonio Ruggerio, Plaintiff, represented by James T. Hannink, Dostart Hannink and Coveney & Zachariah Paul Dostart, Dostart Hannink & Coveney LLP. Brian Byrne, Plaintiff, represented by James T. Hannink, Dostart Hannink and Coveney & Zachariah Paul Dostart, Dostart Hannink & Coveney LLP. RPM Mortgage, Inc., Defendant, represented by Fredrick Stuart Levin -- flevin@buckleysandler.com -- Buckley Sandler LLP & Ali M. Abugheida -- aabugheida@buckleysandler.com -- Buckley Sandler LLP. SALIX PHARMACEUTICALS: $210MM Deal in "Woburn" Gets Final Nod ------------------------------------------------------------- In the case captioned WOBURN RETIREMENT SYSTEM, Plaintiff, v. SALIX PHARMACEUTICALS, LTD., et al., Defendants, No. 14-CV-8925 (KMW)(S.D. N.Y.), Judge Kimba M. Wood of the U.S. District Court for the Southern District of New York granted Lead Plaintiff Pentwater Funds' Motion for Final Approval of the Settlement and Plan of Allocation and granted the Lead Counsel Bernstein Litowitz Berger & Grossman LLP's Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses. On March 23, 2015, the Court consolidated two putative securities fraud class actions against Salix Pharmaceuticals and two of its officers and directors. Both alleged that Salix materially misled the public by deliberately making false or misrepresentative statements, or by failing to correct such statements, between Nov. 8, 2013 and Nov. 6, 2014. The Plaintiffs claim that Salix's fraudulent actions artificially increased the price of Salix securities. The Court appointed Pentwater Funds as the Lead Plaintiff, and Bernstein Litowitz as the Lead Counsel for the consolidated action. The Defendants subsequently filed a Motion to Dismiss the Consolidated Class Action Complaint, which the Court denied in its entirety on March 31, 2016. The parties then proceeded with discovery, with Defendants producing millions of documents and the Plaintiffs' counsel taking several depositions. Following the Court's resolution of a discovery dispute on Jan. 24, 2017, the parties informed the Court that they had reached an agreement to settle. The Court preliminarily approved the settlement and appointed a claims administrator on April 5, 2017. The proposed settlement resolves all claims in this action, in exchange for a cash payment of $210 million payment to class members. Judge Wood approved the parties' plan to apportion the settlement proceeds based on each claimant's respective market loss. The Plan of Allocation was developed by Lead Counsel and Lead Plaintiffs damages expert. Each claimant who has documented proof of a purchase or other acquisition of Salix common stock or Salix Call Option, or sale of a Salix Put Option during the Class Period and 90 days after the Class Period, will be assigned a "Recognized Loss Amount": a. For those who purchased Salix stock, the Recognized Loss Amount will be the difference between the estimated artificial inflation on the date of purchase and the estimated artificial inflation on the date of sale, or the difference between the actual purchase price and sales price of the stock, whichever is Jess. b. For those who sold Salix common stock or for whom Salix Options closed during the 90 days after the Class Period, the Recognized Loss Amount is limited to the difference between the purchase price and the average closing price of the security during that period. c. For those claimants who still held Salix securities at the end of the 90-day period, the Recognized Loss Amount will be 50% of the lesser of (i) the amount of artificial inflation (or deflation) in the security at the time of purchase or (ii) the difference between the purchase price and the average closing price for the security during that 90-day period. d. Finally, claimants who bought and sold Salix securities before the alleged misstatements were made at 4:30 p.m. on Nov. 6, 2014, have no Recognized Loss Amount. The Judge finds that the Lead Counsel's assumption of the risk of litigating this case supports the reasonableness of the requested fee and that the request to reimburse litigation expenses of $1,953,908.41 is reasonable. For these reasons, Judge Wood granted the Motions for Final Approval of the Settlement and Plan of Allocation, Motion for Attorneys' Fees in the amount of $44,609,218, and Motion for the Reimbursement of Litigation Expenses of $1,953,908.41 at the July 28, 2017 Settlement Fairness Hearing. This resolves docket nos. 221 and 223. All other pending motions are moot. A full-text copy of the District Court's Aug. 18, 2017 Opinion and Order is available at https://is.gd/IlrDpG from Leagle.com. Pentwater Funds, Lead Plaintiff, represented by Adam David Hollander -- adam.hollander@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP. Pentwater Funds, Lead Plaintiff, represented by Angus Ni -- angus.ni@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Gerald H. Silk -- jerry@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, John James Rizio-Hamilton -- johnr@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Katherine Mccracken Sinderson -- katherinem@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Mark Lebovitch -- markl@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP & Salvatore Jo Graziano -- sgraziano@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP. Woburn Retirement System, Plaintiff, represented by Christopher J. Keller -- ckeller@labaton.com -- Labaton Sucharow, LLP, Michael Walter Stocker -- mstocker@labaton.com -- Labaton & Sucharow LLP & Rachel Ann Avan -- ravan@labaton.com -- Labaton Sucharow, LLP. George Chan, Movant, represented by Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A.. LRI Invest S.A., Movant, represented by Kim Elaine Miller -- kim.miller@ksfcounsel.com -- Kahn Swick & Foti, LLC & William H. Narwold -- bnarwold@motleyrice.com -- Motley Rice LLC. Steven Morris, Movant, represented by Adam M. Apton -- aapton@zlk.com -- Levi & Korsinsky LLP. Connecticut Laborers' Pension Fund, Movant, represented by Daniel Brett Rehns -- drehns@cohenmilstein.com -- Cohen Milstein Sellers & Toll P.L.L.C. & Frank Rocco Schirripa -- fschirripa@hrsclaw.com -- Hach Rose Schirripa & Cheverie LLP. Gary N. Kramer, Movant, represented by Richard William Gonnello -- rgonnello@faruqilaw.com -- Faruqi & Faruqi, LLP. Leo Fund Managers Ltd., Movant, represented by Michael Walter Stocker -- mstocker@labaton.com -- Labaton & Sucharow LLP. State-Boston Retirement System, Movant, represented by Michael Walter Stocker, Labaton & Sucharow LLP. City of Fort Lauderdale General Employees' Retirement System, Movant, represented by Avital Orly Malina -- AMalina@rgrdlaw.com - - Robbins Geller Rudman & Dowd LLP, David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Mark Samuel Reich -- mreich@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Ernest Harvill, Movant, represented by Peter George Safirstein, Morgan & Morgan, P.C.. Steve Schonberg, Movant, Pro Se. Salix Pharmaceuticals, Ltd., Defendant, represented by Charles Alan Gilman -- cgilman@cahill.com -- Cahill Gordon & Reindel LLP, Martin L. Seidel -- mseidel@willkie.com -- Cadwalader, Wickersham & Taft LLP, Adam Shawn Mintz -- amintz@cahill.com -- Cahill Gordon & Reindel LLP, Bradley Joseph Bondi -- BBondi@Cahill.com -- Cahill Gordon & Reindel LLP, Heather Elyse Murray, Cadwalader, Wickersham & Taft LLP, Jared Jon Stanisci -- jared.stanisci@cwt.com -- Cadwalader, Wickersham & Taft LLP, Nathan Marwill Bull -- nathan.bull@cwt.com -- Cadwalader, Wickersham & Taft LLP & Sarah Penny Windle -- pwindle@cahill.com -- Cahill Gordon & Reindel LLP. Carolyn J. Logan, Defendant, represented by Frederick Whitten Peters -- wpeters@wc.com -- Williams & Connolly LLP, Anne M. Rucker -- arucker@wc.com -- Williams & Connolly LLP, George Anthony Borden -- gborden@wc.com -- Williams & Connolly LLP, Jared Jon Stanisci, Cadwalader, Wickersham & Taft LLP, Matthew Danzer, Williams & Connolly LLP & Stephen D. Andrews -- sandrews@wc.com -- Williams & Connolly LLP. Adam C. Derbyshire, Defendant, represented by Brian Jeffrey Wegrzyn -- bwegrzyn@buckleysandler.com -- Buckley Sandler LLP, Andrew L. Sandler -- asandler@buckleysandler.com -- Buckley Sandler LLP, Caitlin M. Kasmar -- ckasmar@buckleysandler.com -- Buckleysandler LLP, Jared Jon Stanisci, Cadwalader, Wickersham & Taft LLP, Scott T. Sakiyama -- ssakiyama@buckleysandler.com -- Buckleysandler LLP, Sean B. Karunaratne -- skarunaratne@buckleysandler.com -- Buckleysandler LLP & Stephen Michael Leblanc -- sleblanc@buckleysandler.com -- Buckley Sandler LLP. SAREPTA THERAPEUTICS: 1st Cir. Affirms Dismissal of "Cobra" Suit ---------------------------------------------------------------- Judge William J. Kayatta Jr. of the U.S. Court of Appeals for the First Circuit affirmed the district court's dismissal of the case captioned MARK A. CORBAN, individually and on behalf of all others similarly situated; STEVE FLEISCHMANN, individually and on behalf of all others similarly situated; Plaintiffs, Appellants, DANIEL BARADARIAN, individually and on behalf of all others similarly situated; BIJESH AMIN, individually and on behalf of all others similarly situated; Plaintiffs, v. SAREPTA THERAPEUTICS, INC.; CHRIS GARABEDIAN; EDWARD KAYE, Defendants, Appellees, SANDESH MAHATME, Defendant, Nos. 15-2135, 16-1658(1st Cir.). The price of the publicly traded securities issued by Sarepta dropped 64% when it announced that the Food and Drug Administration deemed premature its application for approval of a novel gene therapy. Two and a half months after the November stock drop, the Plaintiffs filed the putative class action complaint in which they seek relief on behalf of all those who acquired Sarepta stock between July 24, 2013 and Nov. 11, 2013. According to the relevant complaint, Sarepta and its top executives perpetrated securities fraud under section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), and the Securities and Exchange Commission's Rule 10b-5. The complaint also charges the Individual Defendants with liability for the alleged securities fraud under section 20(a) of the Exchange Act. The complaint avers that the Defendants overstated the significance of Sarepta's eteplirsen data and exaggerated the likelihood that the FDA would accept a new drug application ("NDA") for filing, thereby deceiving the investing public and causing the purchase of Sarepta securities at inflated prices. The district court dismissed the complaint after the action was consolidated and the pleading was once amended. The Plaintiffs then brought a motion for leave to file another amended complaint, which the district court denied as futile. The Plaintiffs thereafter brought a motion for relief under Rule 60(b)(2) of the Federal Rules of Civil Procedure proposing a fourth version of the complaint, and a motion for reconsideration under Rule 59(e) proposing yet a fifth version. The district court denied all of these motions for the sole reason that it found them futile because none of the proposed pleadings sufficiently stated a claim under the Private Securities Litigation Reform Act of 1995. Judge Kayatta notes that when they consider the totality of the complaint's allegations, and measure the malicious inference against the innocent ones, they do not find the malicious inference to be at least as compelling as any opposing innocent inference. Sarepta, a biopharmaceutical company navigating the uncertain terrain of accelerated approval for a gene therapy, was energized by clinical trial data, which it shared with the FDA. In the ensuing dialogue between the company and the agency, the initially unwelcoming agency cracked open the door to a possible approval by stating a willingness to consider a new drug application for the therapy while cautioning the company about the importance of more and better data for accelerated approval. The company shared this obviously good news about the FDA's new receptiveness to possible acceptance of a filing while conveying enough caveats so that the stock price actually dropped. As the company moved toward filing for regulatory approval, a competitor drug candidate with the same mechanism posted disappointing results, and the FDA decided that a new drug application for the company's therapy would be premature, causing a more substantial drop in stock price. The only plausible motive for fraud identified by the Plaintiffs is revenue generation, which falls short of pleading a cogent inference of scienter that can carry the day here. More plausible is the opposing innocent inference that the Defendants, perhaps negligently, waxed too optimistically about the FDA's expression of a willingness to consider an NDA for eteplirsen while emphasizing too little the FDA's reservations about such an application. The Judge finds that this is simply a case in which the complaint focuses too much on nuance rather than false facts or material omissions to support the necessary strong inference of scienter. He therefore affirmed dismissal of the section 10(b) and Rule 10b- 5 claims as well as the derivative section 20(a) claims. A full-text copy of the First Circuit's Aug. 22, 2017 Order is available at https://is.gd/mxh8YK from Leagle.com. Stuart W. Emmons -- swe@federmanlaw.com -- with whom William B. Federman -- wbf@federmanlaw.com -- Amanda B. Murphy -- abm@federmanlaw.com -- and Federman & Sherwood, were on brief, for appellants. Christopher G. Green -- Christopher.Green@ropesgray.com -- with whom Dalila Argaez Wendlandt, Justin G. Florence, Mark D. Vaughn - - Mark.Vaughn@ropesgray.com -- Alexia R. De Vincentis -- Alexia.DeVincentis@ropesgray.com -- and Ropes & Gray LLP., were on brief, for appellees. SEI/AARONS INC: Court Grants Summary Judgment Bid in "Krise" Suit ----------------------------------------------------------------- In the case captioned KAREN KRISE, et al., Plaintiffs, v. SEI/AARON'S, INC. a franchisee of Aaron's, Inc., doing business as Aaron's Sales and Leasing, et al., Defendants, Civil Action No. 1:14-CV-1209-TWT(N.D. Ga.), Judge Thomas W. Thrash, Jr., of the U.S. District Court for the Northern District of Georgia, Atlanta Division, (i) granted in part and denied in part the Defendant's Motion to Exclude the Testimony of Micah Sherr; (ii) denied without prejudice the Defendant's Motion to Exclude the Testimony of Michael Maschke; and (iii) granted the Defendant's Motion for Summary Judgment. Defendant SEI is in the rent-to-own business. Between 2010 and 2011, it operated approximately seventy franchise stores, which were located in Connecticut, Kentucky, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont. From Oct. 5, 2010 to Dec. 27, 2011, the Defendant installed a software program -- PC Rental Agent ("PCRA") -- on all computers it leased to its customers. PCRA, which was owned by a company named DesignerWare, enabled the Defendant to "render a computer inoperable" by simply logging onto the DesignerWare website and placing a computer on "lockdown" mode. On Aug. 8, 2011, DesignerWare added a geolocation feature to PCRA. This feature directed the PCRA software installed on a computer to include the Wi-fi signals the computer picked up in its periodic reports. Finally, DesignerWare offered the "Detective Mode" feature on computers with PCRA installed. Detective Mode could be remotely installed and activated, and once activated, it could capture keystrokes in addition to the content of the computer screen and clipboard. The Defendant stopped using Detective Mode on May 6, 2011. On Jan. 23, 2012, the Defendant removed PCRA from all leased computers connected to the internet. On April 23, 2014, Plaintiffs Krise, Corie Cason, Chauncey Robertson, Sr., and Jamie Robertson filed a class action complaint against SEI, alleging that the Defendant SEI unlawfully accessed their computers from a remote location and collected private information stored therein. They seek to represent a class of (i) all persons who have purchased, leased, and/or rented from SEI personal computers on which PC Rental Agent had been installed without such persons' consent, and (ii) all members of each such person's household. The Plaintiffs allege that SEI did not disclose to its customers that it installs PCRA on its leased computers or that it used Detective Mode to obtain data from the computers. Furthermore, they allege that PCRA harmed the leased computers by, among other things, making them slow. They allege five counts, including invasion of privacy; computer trespass; computer invasion of privacy; and violation of the Electronic Communications Privacy Act ("ECPA"). The Defendant now moves for summary judgment on each of the Plaintiffs' claims, moves to exclude the testimony of Micah Sherr, and moves to exclude testimony of Michael Maschke. Judge Thrash finds that expert Sherr's opinion should not be excluded because her opinions and testimony do not strike the Court as unreliable. They provide at least a reasonable argument as to what qualifies as contemporaneous in the context of Detective Mode. The Judge therefore declines to exclude Sherr's opinions and testimony regarding the contemporaneous interception of electronic communications; and excludes Sherr's opinions regarding computer performance. Judge Thrash also finds the Defendant's Motion to Exclude the Testimony of Michael Maschke to be premature. The Plaintiffs do not rely on Maschke's opinions in their response to the Defendant's Motion for Summary Judgment. Moreover, the Plaintiffs state that they have not decided whether they will use the Maschke's testimony at trial. He therefore denies without prejudice the Defendant's Motion to Exclude the Testimony of Michael Maschke. The Defendant asserts that Plaintiffs Robertsons do not have standing to allege any claims based on the Defendant's use of Detective Mode. The Judge disagrees. The Defendant does not challenge the original Plaintiffs' standing to assert claims based on the Defendant's use of PCRA. And because the original Plaintiffs have standing to assert their original claims, the original Plaintiffs also have the right to seek leave to amend their Complaint to add additional plaintiffs. Indeed, the Plaintiffs sought leave, and he granted it. He therefore concludes that the Robertsons have standing to assert all of their claims. Because no class actions were filed prior to Nov. 10, 2012, no class action tolled the Robertsons' claim. As a result, the Robertsons' invasion of privacy of claim, insofar as it is based on the Defendant's activation of Detective Mode, is time barred. Moreover, because PCRA was incapable of capturing private information, the Robertsons' intrusion upon seclusion claim cannot survive. Judge Thrash therefore grants the Defendant's Motion for Summary Judgment with regard to the Robertsons' invasion of privacy claim. Where all of the allegedly unlawful acts and injuries occurred outside the state of Georgia, the Judge is unconvinced a plaintiff should be able to bring a claim under the GCSPA. Accordingly, the Defendant's Motion for Summary Judgment with regard to the Robertsons' GCSPA claim should be granted. Finally, since there is no evidence to demonstrate that a screenshot was ever triggered by a communication, the Judge finds that Detective Mode's screenshot function did not intercept the Robertsons' electronic communications under the ECPA. The Defendant's Motion for Summary Judgment with regard to the Plaintiffs' ECPA claim is granted. As to Plaintiffs Cason and Krise's invasion of privacy and violation of the Georgia Computer Systems Protection Act ("GCSPA") claims, Judge Thrash is unwilling to allow the their GCSPA claims to move forward when none of the alleged illegal conduct and injuries occurred in Georgia. The Defendant's Motion for Summary Judgment is granted as to the Plaintiffs Cason's and Krise's GCSPA claims. For these reasons, Judge Thrash (i) granted in part and denied in part the Defendant's Motion to Exclude the Testimony of Micah Sherr; (ii) denied the Defendant's Motion to Exclude the Testimony of Michael Maschke; and (iii) granted the Defendant's Motion for Summary Judgment. A full-text copy of the Court's Aug. 22, 2017 Opinion and Order is available at https://is.gd/jxkDbg from Leagle.com. Karen Krise, Plaintiff, represented by Andrea Solomon Hirsch -- ahirsch@hermangerel.com -- Herman Gerel, LLP. Karen Krise, Plaintiff, represented by Edward C. Konieczny -- ed@koniecznylaw.com -- Edward C. Konieczny LLC & Maury A. Herman - - mherman@hhklawfirm.com -- Herman Gerel, LLP. Corie Cason, Plaintiff, represented by Andrea Solomon Hirsch, Herman Gerel, LLP, Edward C. Konieczny, Edward C. Konieczny LLC & Maury A. Herman, Herman Gerel, LLP. Chauncey Robertson, Sr., Plaintiff, represented by Andrea Solomon Hirsch, Herman Gerel, LLP & Edward C. Konieczny, Edward C. Konieczny LLC. Jamie Robertson, Plaintiff, represented by Andrea Solomon Hirsch, Herman Gerel, LLP & Edward C. Konieczny, Edward C. Konieczny LLC. SEI/Aaron's, Inc., Defendant, represented by Jennifer E. Parrott - - jparrott@deflaw.com -- Drew Eckl & Farnham, Bruce Allen Taylor - - btaylor@deflaw.com -- Jr., Drew Eckl & Farnham & Burke Anthony Noble -- bnoble@deflaw.com -- Drew Eckl & Farnham. SEI, KY, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI CT1, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI CT 2, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI MA 1, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI MA 2, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI ME, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI NH, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI NY 1, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SEI NY 2, LLC, Defendant, represented by Jennifer E. Parrott, Drew Eckl & Farnham & Burke Anthony Noble, Drew Eckl & Farnham. SLM CORP: Sixth Circuit Appeal Filed in "Parchman" Class Suit ------------------------------------------------------------- Plaintiffs Jeffrey Parchman and Nancy Carlin filed an appeal from a court ruling in their lawsuit titled Jeffrey Parchman, et al. v. SLM Corporation, et al., Case No. 2:15-cv-02819, in the U.S. District Court for the Western District of Tennessee at Memphis. The appellate case is captioned as Jeffrey Parchman, et al. v. SLM Corporation, et al., Case No. 17-5968, in the United States Court of Appeals for the Sixth Circuit.[BN] Plaintiffs-Appellants JEFFREY PARCHMAN, individually and on behalf of all others similarly situated, and NANCY CARLIN, individually and on behalf of all others similarly situated, are represented by: Benjamin James Miller, Esq. THE HIGGINS FIRM, PLLC 525 Fourth Avenue, S. Nashville, TN 37210 Telephone: (615) 353-0930 Facsimile: (888) 210-5883 Defendants-Appellees SLM CORPORATION, NAVIENT CORPORATION, NAVIENT SOLUTIONS, INC., fka Sallie Mae, Inc., and SALLIE MAE BANK are represented by: Lisa M. Simonetti, Esq. VEDDER PRICE 1925 Century Park E. Los Angeles, CA 90067 Telephone: (424) 204-7738 E-mail: lsimonetti@vedderprice.com SPRING REST: Fails to Pay Proper Minimum/OT Wages, Hernandez Says ----------------------------------------------------------------- CRESCENCIO MORENO HERNANDEZ, individually and on behalf of others similarly situated v. SPRING REST GROUP, LLC. (d/b/a GATSBY'S BAR), DENISE LEONARD and JASON SHERIDAN, Case No. 1:17-cv-06084 (S.D.N.Y., August 11, 2017), alleges that the Plaintiff regularly worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for any of the hours that he worked each week. Spring Rest Group, LLC, is a corporation organized and existing under the laws of the state of New York. The Individual Defendants are owners, officers or agents of the Defendant Corporation. The Defendants own, operate, and control a casual pub/restaurant -- Gatsby's Bar -- located at 53 Spring St., in New York City.[BN] The Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 E-mail: Faillace@employmentcompliance.com SQUARETRADE INC: Appeals Ruling in "Starke" Suit to 2nd Circuit --------------------------------------------------------------- Defendant SquareTrade, Inc., filed an appeal from a District Court memorandum & order dated August 3, 2017, in the lawsuit titled Starke v. SquareTrade, Inc., Case No. 16-cv-7036, in the U.S. District Court for the Eastern District of New York (Brooklyn). The nature of suit is stated as torts property-fraud. The appellate case is captioned as Starke v. SquareTrade, Inc., Case No. 17-2474, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellee Adam J. Starke, Individually and On Behalf of All Others Similarly Situated, is represented by: Solomon N. Klein, Esq. LAW OFFICE OF SOLOMON N. KLEIN 1410 Broadway New York, NY 10018 Telephone: (212) 575-0202 Facsimile: (212) 575-0233 - and - Mark Schlachet, Esq. LAW OFFICES OF MARK SCHLACHET 3515 Severn Road Cleveland, OH 44118 Telephone: (216) 225-7559 Facsimile: (216) 932-5390 E-mail: markschlachet@me.com Defendant-Appellant SqaureTrade, Inc., is represented by: Michael Schissel, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 399 Park Avenue New York, NY 10022 Telephone: (212) 715-1157 E-mail: michael.schissel@apks.com - and - Douglas Winthrop, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 3 Embarcadero Center San Francisco, CA 94111 Telephone: (415) 471-3174 E-mail: douglas.winthrop@apks.com STATE FARM: Can Compel Appraisal in "Shearer" Insurance Suit ------------------------------------------------------------ In the case captioned JAMES SHEARER AND JOYCE ANDREWS individually, and on behalf of all others similarly situated, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant, Civil Action No. 16-09469(FLW)(LHG)(D. N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey (i) granted the Defendant's Motion to Compel Appraisal and Stay Case; (ii) denied as moot the Defendant's Motion to Strike Class Allegations in Plaintiffs' Amended Complaint and Motion to Dismiss Plaintiffs' Amended Complaint. The Plaintiffs are the owners of property located in Princeton, New Jersey. Their Property was damaged by fire on July 11, 2015. They submitted a claim to their insurer, State Farm, under their homeowners' insurance policy. The Plaintiffs allege that State Farm used an incorrect formula to estimate the replacement damage for their property, resulting in a devaluation of their claim by over $50,000. Unsatisfied with State Farm's calculation of the actual cash value of their loss, the Plaintiffs filed a Complaint against State Farm on Dec. 21, 2016. They bring claims on behalf of a nationwide class of policyholders who, following a property loss that did not require a total rebuild, have had their loss adjusted by State Farm using the new construction formulas as opposed to recovery and restoration formulas. On March 7, 2017, State Farm invoked an appraisal provision contained in the Policy by sending a letter to the Plaintiffs' counsel. The appraisal provision provides a method for resolving disputes over the amount of a loss, which may be invoked by either the policyholder or State Farm. On March 10, 2017, the Defendant moved to compel appraisal and stay this case pending completion of the appraisal process. On April 10, 2017, State Farm filed two additional motions, a motion to dismiss the Plaintiffs' Amended Complaint and a motion to strike the Plaintiffs' class allegations. Judge Wolfson finds that this litigation is in its infancy -- State Farm has yet to answer the Plaintiffs' Amended Complaint and the parties have not started discovery. An appraisal is also timely here because it has the potential to resolve the dispute between the parties, or, at minimum, to provide a factual basis for further discussion between the parties to determine if resolution is possible. Accordingly, State Farm's demand for an appraisal was proper under the Policy, and the Judge granted State Farm's motion compelling appraisal and stayed the case pending the outcome of the appraisal process. She did not address the Defendant's Motion to Strike Class Allegations in the Plaintiffs' Amended Complaint or Motion to Dismiss Plaintiffs' Amended Complaint on the merits in light of her ruling on the Defendant's Motion to Compel. She denied as moot the Defendant's Motion to Strike Class Allegations in Plaintiffs' Amended Complaint and Motion to Dismiss Plaintiffs' Amended Complaint. If the appraisal does not resolve the dispute between the parties and the stay is lifted, the Defendant may renew its motions. The parties are ordered to file a status report within 60 days to update the Court on the appraisal process. A full-text copy of the District Court's Aug. 22, 2017 Memorandum and Order is available at https://is.gd/KVV4Cy from Leagle.com. JAMES SHEARER, Plaintiff, represented by JEFFREY P. RESNICK -- jresnick@shermansilverstein.com -- SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC. JOYCE ANDREWS, Plaintiff, represented by JEFFREY P. RESNICK, SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC. STATE FARM FIRE AND CASUALTY COMPANY, Defendant, represented by DAVID F. SWERDLOW -- dswerdlow@windelsmarx.com -- WINDELS MARX LANE & MITTENDORF, LLP & CRAIG D. GOTTILLA -- cgottilla@windelsmarx.com -- WINDELS MARX LANE & MITTENDORF. STEALTH SECURITY: Illinois Court Certifies Class in TCPA Suit ------------------------------------------------------------- Judge John J. Tharp, Jr., of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted G.M. Sign's motion for class certification with a modified class definition in the case captioned G.M. SIGN INC., an Illinois corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff, v. STEALTH SECURITY SYSTEMS, INC., Defendants, No. 14 C 09249 (N.D. Ill.). G.M. Sign received an unsolicited fax advertising the Defendant's products on Oct. 17, 2006. Stealth had contracted with a company called Profax to send out faxes to a given list of customers twice in 2006. The first distribution took place on March 1-2, 2006. It was sent to 21,291 fax numbers and successfully received by 13,518. A second distribution was sent out on Oct. 17-18, 2006 to 50,267 fax numbers, of which 37,215 were successful. The original distribution lists, which would provide the numbers to which the broadcasts were sent, have not been uncovered. Stealth asserts in its response that those lists simply no longer exist. Another list, however, has been unearthed: a list of 1,747 fax numbers that requested that they be removed from the list. Each person on the opt-out list visited a website or called an automated telephone system and entered the five-digit customer ID number assigned to Stealth, which was provided at the bottom of the advertising fax. The list also provides when each person asked to be removed from the list; the vast majority of removals occurred shortly after the fax distribution. G.M. Sign initially proposed the class described as all persons who were successfully sent a fax advertisement from March 2006 through October 2006 that advertised the security services of Security Alert, specializing in all their security needs for whom the Defendant cannot prove evidence of prior express permission or invitation for the sending of such faxes. Stealth insists that the putative class is not ascertainable because there is no objective means of identifying -- and therefore notifying -- members of the class about the litigation. It also objects to the class definition as non-ascertainable because it defines a "fail-safe" class. Judge Tharp held that G.M. Sign does not need to include the lack of consent in its class definition because it will need to prove at trial that the faxes were unsolicited. If that is proven, Stealth will still have the opportunity at the damages phase to remove class members who had consented or were existing business partners with Stealth. The class, as defined without the disputed clause, requires no individualized factual adjudication and is not defined by whether the class member would win a Telephone Consumer Protection Act suit against Stealth. Thus, the Judge removed the disputed clause from the class definition and otherwise granted the motion for class certification. A full-text copy of the District Court's Aug. 18, 2017 Memorandum Opinion and Order is available at https://is.gd/4VLO0M from Leagle.com. G.M. Sign, Inc., Plaintiff, represented by Phillip A. Bock -- phil@bockhatchllc.com -- Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC. G.M. Sign, Inc., Plaintiff, represented by Kimberly M. Watt -- kimberly@classlawyers.com -- Bock & Hatch Llc, Ross Michael Good - - rgood@andersonwanca.com -- Anderson Wanca -- bwanca@andersonwanca.com -- Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca, Tod Allen Lewis, Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC & Brian J. Wanca, Anderson & Wanca. Stealth Security Systems, Inc., Defendant, represented by Mitchell H. Frazen -- frazen@litchfieldcavo.com -- Litchfield Cavo & Jason Edward Hunter -- hunter@litchfieldcavo.com -- Litchfield Cavo LLP. SUN GARD: "Carter" Seeks Unpaid Overtime, Claims Retaliation ------------------------------------------------------------ Michael Carter, on behalf of himself and similarly situated current and former employees Plaintiff, v. Sun Gard Availability Services, LP, Defendant, Case No. 2:17-cv-03639 (Cal. Super., August 14, 2017), seeks unpaid overtime, all relief including compensatory and punitive damages, back and front pay and attorney's fees and costs resulting from unjust enrichment and for violation of the Fair Labor Standards Act, Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law. SunGard is a company that provides IT services to businesses, including cloud-based storage, application management, consulting and disaster recovery services. Carter worked as a network security analysts at its Philadelphia location. He was allegedly fired for complaining about this overtime. [BN] Plaintiff is represented by: Scott M. Pollins, Esq. POLLINS LAW 800 Westdale Avenue Swarthmore, PA 19081-2311 Tel: (610) 896-9909 Fax: (610) 896-9910 Email: scott@pollinslaw.com - and - Joseph Spicer, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Tel: (410) 244-7005 Fax: (410) 244-8454 E-mail: jspicer@nicholllaw.com SUPER STOP: Unpaid Overtime Sought in "Galdamez" Labor Suit ----------------------------------------------------------- Isabel Garcia Galdamez and all others similarly situated, Plaintiff, v. Super Stop 441 Inc., Joseph George, Defendants, Case No. 0:17-cv-61627 (S.D. Fla., August 14, 2017), requests double damages and reasonable attorney fees from Defendants, jointly and severally, pursuant to the Fair Labor Standards Act for all overtime wages still owing along with court costs, interest and any other relief. Galdamez worked for Defendants as a market worker from October 2012 to August 3, 2017 at Super Stop's Chevron gas station and convenience store at 2099 S State Road 7, Davie, FL 33317. Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: zabogado@aol.com SURETEMPS LLC: Faces "Lee" Lawsuit Alleging FLSA Violation ---------------------------------------------------------- TERRY CATHERINE AND JAMIL LEE, Plaintiffs, vs. SURETEMPS, LLC; FULL FORCE STAFFING, LLC; AND METRO SERVICE GROUP, INC. Defendants, Case No: 2:17-cv-07561-SM-JVM (E.D. La., August 7, 2017), alleges on behalf of themselves and all other similarly employed persons, that Plaintiff regularly worked well in excess of 40 hours per week for Defendants, but was not paid time and one-half for any hours worked in excess of 40 per week, in direct violation of the Fair Labor Standards Act. Plaintiffs were engaged in the performance of gathering waste materials for Defendants. Sure Temps LLC -- http://www.suretemps.biz/-- is in the temporary help service business. Metro Service Group Inc. -- http://metroservicegroup.com/--offers recycling, dumpsters, street sweeping, demolition, lead testing and abatement, and program management services. Defendants SureTemps and/or Full Force provided Plaintiffs as persons to staff and complete the work of physically collecting trash on Metro Service's garbage trucks that serviced Metro Service's clients.[BN] The Plaintiffs are represented by: Jody Forester Jackson, Esq. Mary Bubbett Jackson, Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Phone: (504) 599-5953 Fax: (888) 988-6499 Email: jjackson@jackson-law.net mjackson@jackson-law.net SYSCO GUEST: Connecticut Court Denies Move to Dismiss TCPA Suit --------------------------------------------------------------- The United States District Court, District of Connecticut, issued a Memorandum denying Defendant's Motion to Dismiss the case captioned GORSS MOTELS, INC., Plaintiff, v. SYSCO GUEST SUPPLY, LLC, JOHN DOES 1-5, Defendants, Civil Case No. 3:16-cv-01911-VLB (D. Conn.). Plaintiff Gorss Motels, Inc., brings this putative class action against Defendant Sysco Guest Supply, LLC, and John Does 1-5 (Defendants) for violations of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. (TCPA). Before the Court is Defendants' motion to dismiss for failure to establish subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The Court must now determine whether Defendants' three allegedly unsolicited facsimile (fax) advertisements adequately confer upon Plaintiff Article III standing to bring this suit. According to the Complaint, Defendants have sent unsolicited facsimile advertisements to Plaintiff, including but not limited to three faxes sent. The faxes describe the commercial availability or quality of Defendants' products, goods and services. These junk faxes do not contain the required opt-out language. Plaintiff did not give Defendant prior express invitation or permission to send such faxes to Plaintiff. Legal Standard Federal courts are courts of limited jurisdiction. Subject matter jurisdiction is not waivable, and a lack of subject matter jurisdiction may be raised at any time, by a party or the court sua sponte. Defendant moves for dismissal solely on the basis that Plaintiff lacks Article III standing to bring suit for a TCPA violation. The Court accordingly shall address this limited issue involving subject matter jurisdiction and will not address the merits of the case. Injury-In-Fact A plaintiff sufficiently alleges an injury-in-fact by showing there is 'an invasion of a legally protected interest' that is 'concrete and particularized' and actual or imminent, not conjectural or hypothetical. Concrete Harm In summary, it is clear there exist ample case law supporting the proposition that the TCPA has created a legally cognizable interest in protecting individuals and entities from unwanted faxes, and that the violation of the statute creates a real and not abstract harm. Denial of standing would effectively negate the congressional intent to protect consumers from the cost, unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax advertisements. No one has more incentive to enforce the TCPA and fulfill the congressional intent of the TCPA than the consumer whose privacy is invaded and assets expropriated. By sending unsolicited fax advertisements of its products or services, a solicitor transfers its marketing costs to the unwitting consumer. The solicitor saves itself the cost of duplicating and mailing its marketing material by expropriating the recipient's equipment and materials to market its products. This practice is far more harmful that a unsolicited telephone solicitation. With the congressional intent of the TCPA and aforementioned case law in mind, the Court finds a concrete harm has adequately been alleged. The Complaint clearly states that Defendant sent three unsolicited fax advertisements to Plaintiff. The Complaint also states that the advertisements either did not contain proper opt-out language, or if they did then the Defendant did not receive express permission or invitation. Accordingly, these facts are sufficient to allege Defendants' unsolicited fax advertisements sent to Plaintiff violated the TCPA and thus is traceable to the alleged harm. There is no indication that an independent action from an unrelated third party caused the harm alleged in the Complaint. Accordingly, the Court finds Plaintiff sufficiently alleged the second prong required for Article III standing. The Court denies Defendants' Motion to Dismiss. A full-text copy of the District Court's August 21, 2017 Memorandum is available at http://tinyurl.com/y9tn3prrfrom Leagle.com. Gorss Motels Inc., Plaintiff, represented by Aytan Y. Bellin, Bellin & Associates LLC. 319 Broadway Floor 4, New York, NY 10007 Gorss Motels Inc., Plaintiff, represented by Brian J. Wanca - bwanca@andersonwanca.com - Anderson & Wanca, pro hac vice & Ryan Michael Kelly - rkelly@andersonwanca.com - Anderson & Wanca. Sysco Guest Supply, LLC, Defendant, represented by Thomas C. Blatchley - tblatchley@grsm.com - Gordon & Rees LLP-CT. TAKATA CORP: Reveals Monthly Faulty Air Bag Litigation Fees ----------------------------------------------------------- Brian Baxter, writing for The Am Law Daily, reports that Japanese auto parts giant Takata Corp., which followed its U.S. unit into a Delaware bankruptcy court this week, revealed in court documents that it is paying nearly $1 million per month to an Am Law 100 firm advising it in product liability litigation over faulty air bags. A court filing on Aug. 8 in Takata's Chapter 15 case by Covington & Burling partner Shankar Duraiswamy in Washington, D.C., revealed that between January and June of this year, Takata has paid roughly $877,000 each month in legal fees and costs to his firm for work in air bag-related litigation. That would put the amount that Covington has earned this year from Takata's Japanese parent at nearly $4.4 million. In a separate court filing by Covington on July 7 in the Chapter 11 case of TK Holdings Inc. -- Takata's North American subsidiary -- Covington stated that it had received nearly $6.6 million from the debtor in the 90 days prior to its bankruptcy filing on June 25 in Wilmington. That document, filed by Covington product liability litigation partner Keith Teel in Washington, D.C., disclosed that the firm was also holding a $1.9 million retainer for its services to TK Holdings. A Covington spokesman declined to discuss the firm's work on behalf of Takata or clarify whether the filings in the two separate bankruptcy cases tallied up different sets of fees. In 2015, Takata tapped the firm to serve as co-lead counsel with Dechert in the growing air bag litigation. In January, Takata reached a $1 billion criminal plea deal in Detroit with the U.S. Department of Justice related to its sale of defective air bags. Court filings show that Dechert worked with Covington on that matter for Takata. The July filing by Covington seeking to advise TK Holdings in its Chapter 11 case states that in the spring of 2016 the firm took over from Dechert as "lead counsel in all litigation matters arising from the air bag litigation." An attached declaration by Teel states that Covington partners, of counsel, senior counsel and special counsel are billing TK Holdings between $725 and $1,575 per hour for their services, associates between $455 and $700 an hour and staff attorneys at hourly rates ranging from $215 to $365. Covington's Teel has taken the lead for the company in multidistrict civil litigation that it faces in Miami--and is now trying to stay with its dual bankruptcy filings. The Chapter 15 filing on Aug. 8 by Tokyo-based Takata and its affiliates Takata Kyushu Corp. and Takata Service Corp. lists Delaware's Young Conaway Stargatt & Taylor and leading Japanese firm Nagashima Ohno & Tsunematsu as outside legal advisers. Neither firm has yet filed billing statements with the bankruptcy court in Wilmington. (Nagashima Ohno partner Akihisa Shiozaki has been a key outside legal adviser to Takata during its air bag crisis.) Weil, Gotshal & Manges, Delaware's Richards, Layton & Finger and Nagashima Ohno have taken the lead for Auburn Hills, Michigan- based TK Holdings in its bankruptcy case, according to our previous reports, which noted that Weil had received payments totaling $19.1 million from Takata since August 2015. Other firms that have since filed papers seeking to advise the debtor include Delaware's Ashby & Geddes and Washington, D.C.'s Frankel & Wyron. Dechert has not filed an appearance in the Chapter 11 case of TK Holdings or Takata's Chapter 15 case. Milbank, Tweed, Hadley & McCloy, national bankruptcy boutique Pachulski Stang Ziehl & Jones, Delaware's Whiteford, Taylor & Preston, insurance law firm Gilbert and the Sakura Kyodo Law Offices in Tokyo are representing an official committee of unsecured creditors in the Chapter 11 case of TK Holdings. The bankruptcy lawyers and litigators aren't the only ones enjoying the billable bonanza from Takata's myriad legal woes. Records on file with the U.S. Senate show that through mid-July, Takata's TK Holdings had paid $60,000 so far this year to Squire Patton Boggs to lobby on issues related to air bag safety. TEXAS: 5th Cir. Affirms Class Certification in "Yates" Suit ----------------------------------------------------------- In the case captioned MARVIN RAY YATES; KEITH COLE; JACKIE BRANNUM; RICHARD ELVIN KING; FRED WALLACE; LAVAR JOHN SANTEE, Plaintiffs-Appellees, v. BRYAN COLLIER; ROBERTO M. HERRERA; TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendants-Appellants, No. 16- 20505(5th Cir.), Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's decision granting certification of a general class and two subclasses. The six Named Plaintiffs are inmates in the Wallace Pack Unit, a prison operated by the Texas Department of Criminal Justice ("TDCJ"). They brought this lawsuit in 2014 against TDCJ, Bryan Collier (TDCJ's executive director), and Roberto Herrera (the Pack Unit's warden). The Pack Unit houses approximately 1,400 inmates. Up until this lawsuit was filed, TDCJ's policy regarding mitigation measures remained largely unchanged, despite the heat- related injuries occurring within the Pack Unit and in various other Texas prisons. Indeed, since 1998, 20 or more inmates have died as a result of excessive heat. This history led the district court to conclude that, as a factual matter, there was a significant history of serious heat related illnesses within the Pack Unit. Only in 2015, after this lawsuit was filed, did TDCJ begin its respite-area practice. Of the six Named Plaintiffs, only one is younger than 60 years old and has no medical conditions that would affect his sensitivity to heat. The remaining five Named Plaintiffs range in age from 60 to 72 years and all have one or more conditions that render them particularly sensitive to heat, including Type II diabetes, coronary arterial disease, high blood pressure, high cholesterol, hypertension, schizoaffective disorder, and obesity. The Plaintiffs assert two causes of action. First, they assert an Eighth Amendment claim against Collier and Herrera. Second, they claim that TDCJ has failed to provide reasonable accommodations for inmates with heat-sensitive disabilities in violation of the Americans with Disabilities Act and the Rehabilitation Act. They seek a declaratory judgment and a permanent injunction requiring the Defendants to maintain a safe indoor apparent temperature (e.g., maintaining a heat index of 88 degrees or lower) inside each of the Pack Unit's housing areas or enter other injunctive relief sufficient to protect the health and safety of the prisoners at the Pack Unit. The Plaintiffs moved to certify three classes, one general class and two subclasses: a. General Class: All inmates who currently are, or in the future will be, incarcerated at the Pack Unit, and who are subjected to TDCJ's policy and practice of failing to regulate high indoor heat index temperatures in the housing areas. b. Heat-Sensitive Subclass: All people who are incarcerated at the Pack Unit, or in the future will be, that are subjected to TDCJ's policy and practice of failing to regulate high indoor heat index temperatures in the housing areas, and either: (i) have a physiological condition that places them at increased risk of heat-related illness, injury, or death (including, but not limited to, suffering from obesity, diabetes, hypertension, cardiovascular disease, psychiatric conditions, cirrhosis of the liver, chronic obstructive pulmonary disease, cystic fibrosis, asthma, sweat gland dysfunction, and thyroid dysfunction); or, (ii) are prescribed an anticonvulsant, anticholinergic, antipsychotic, antihistamine, antidepressant, beta blocker, or diuretic; or (ii) are over age 65. c. Disability SubClass: All people incarcerated at the Pack Unit, or who will be in the future, that are subjected to TDCJ's policy and practice of failing to regulate high indoor heat index temperatures in the housing areas and suffer from a disability that substantially limits one or more of their major life activities and who are at increased risk of heat-related illness, injury, or death due to their disability or any medical treatment necessary to treat their disability. The district court certified all three classes. It concluded that the Plaintiffs sufficiently demonstrated that they met all requirements of Federal Rule of Civil Procedure 23(a). It then determined that certification was authorized under Rule 23(b)(2). Last, the district court rejected the Defendants' argument that the Prison Litigation Reform Act -- which directs that prospective relief in the prison context will extend no further than necessary to correct the violation -- must be applied as part of the Rule 23(b)(2) analysis. The Defendants now appeal. As to the General Class, Judge Elrod concludes that the district court did not clearly err. The district court personally toured the Pack Unit and held a four day evidentiary hearing, resulting in thousands of pages of expert testimony and other evidence from both sides related to the heat impact on the inmates in the Pack Unit. During the hearing, the Plaintiffs put forward two experts -- Dr. McGeehin and Dr. Vassallo -- who testified regarding the inadequacies of the TDCJ heat-mitigation measures. Upon careful review of the record before her, she finds that the district court's account of the evidence is plausible, and she is not left with the definite and firm conviction that a mistake has been committed. Accordingly, the district court did not clearly err in finding that TDCJ's heat-mitigation measures are ineffective to reduce the heat-related risk of serious harm below the constitutional baseline. This being so, Judge Elrod affirmed the district court's conclusion that the Plaintiffs have demonstrated the presence of a question of law or fact common to the class. Judge Elrod rejects the Defendants' challenge to certification of both subclasses. The district court found that TDCJ's heat mitigation measures are not effective to bring the risk of serious harm below the constitutional baseline for any Pack Unit inmate -- which includes the inmates within the subclasses who have some condition making them particularly susceptible to heat. In addition, the district court concluded that the disability subclass had the additional common contention that TDCJ officials failed to provide reasonable accommodations to inmates suffering from disabilities that may impact their ability to withstand extreme heat. She finds no error. Accordingly, because she concludes that the district court did not abuse its discretion in certifying the General Class or the subclasses, Judge Elrod affirmed. A full-text copy of the Court's Aug. 18, 2017 Order is available at https://is.gd/Nd3em6 from Leagle.com. Jeff S. Edwards -- jeffrey.edwards@dechert.com -- for Plaintiff- Appellee. Michael C. Singley, for Plaintiff-Appellee. Cynthia Lee Burton, for Defendant-Appellant. Jeremy Leon Doyle -- doyle@reynoldsfrizzell.com -- for Plaintiff- Appellee. Nathan Mark Smith -- nsmith@reynoldsfrizzell.com -- for Plaintiff- Appellee. Scott Charles Medlock, for Plaintiff-Appellee. Matthew Hamilton Frederick, for Defendant-Appellant. David James, for Plaintiff-Appellee. Wallis Nader, for Plaintiff-Appellee. THAI PALACE: Peters Seeks to Recover Minimum Wages Under FLSA ------------------------------------------------------------- Gabrielle Peters On behalf of herself and other members of the general public similarly situated v. Thai Palace, Inc. d/b/a LemonGrass Fusion Bistro, Case No. 2:17-cv-00697-JLG-EPD (S.D. Ohio, August 11, 2017), seeks to recover minimum wages pursuant to the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, the Ohio Prompt Pay Act and the Ohio Constitution. Thai Palace, Inc., doing business as LemonGrass Fusion Bistro, is a for-profit corporation incorporated in the state of Ohio and has its principal place of business located in Franklin County, Ohio.[BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com - and - Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 704-0546 Facsimile: (614) 573-9826 E-mail: dbryant@bryantlegalllc.com THANK YOU: Catzin Appeals S.D.N.Y. Decision to Second Circuit ------------------------------------------------------------- Plaintiffs Yadira Aguilar-Cano, Lucia Lopez Catzin and Silvia Villano Clemente filed an appeal from a district court opinion & order dated July 26, 2017, relating to their lawsuit entitled Lucia Catzin, et al. v. Thank You & Good Luck Corp., et al., Case No. 15-cv-7109, in the U.S. District Court for the Southern District of New York (New York City). The Plaintiffs accuse the Defendants of violating the Fair Labor Standards Act. The appellate case is captioned as Lucia Catzin, et al. v. Thank You & Good Luck Corp., et al., Case No 17-2497, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter, the Plaintiffs had also filed an appeal from a court ruling in the lawsuit. That appellate case is captioned as Lopez Catzin v. Thank You & Good Luck Corp., Case No. 16-3509.[BN] Plaintiffs-Appellants Lucia Lopez Catzin, individually on behalf of others similarly situated, Silvia Villano Clemente and Yadira Aguilar-Cano are represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway New York, NY 10279 Telephone: (212) 571-0700 E-mail: michael@fishertaubenfeld.com Defendants-Appellees Thank You & Good Luck Corp., Zeng Lan Wang and 115th Street and First Ave Laundromat Inc. are represented by: William M. Brown, Esq. HANG AND ASSOCIATES, PLLC 136-18 39th Avenue Flushing, NY 11354 Telephone: (718) 353-8588 E-mail: wbrown@hanglaw.com Defendants-Appellees Off-Broadway Laundromat Inc. and 2167 3rd Ave Laundromat LLC are represented by: Oleg A. Mestechkin, Esq. MESTECHKIN LAW GROUP, P.C. 200 Vesey Street New York, NY 10281 Telephone: (212) 256-1113 E-mail: om@lawmlg.com Defendants-Appellees Igor Birzh, Exclusive Management Solution Group, Inc., and Dimitri Berezovsky are represented by: Mark Kook, Esq. LAW OFFICE OF MARK R. KOOK 270 Madison Avenue New York, NY 10016 Telephone: (212) 766-4100 Facsimile: (212) 763-6810 E-mail: mkook@kooklaw.com UBER TECHNOLOGIES: "Mejia" Suit Challenges No-Firearms Policy ------------------------------------------------------------- JOSE MEJIA, an individual, on behalf of himself and all others similarly situated v. UBER TECHNOLOGIES, INC., a Delaware corporation, Case No. 0:17-cv-61617-BB (S.D. Fla., August 11, 2017), alleges that Uber's no-firearms policy violates the rights of the Plaintiff and other Class members under the Florida Statutes ("Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008"). Uber Technologies, Inc., is a Delaware corporation with its principal place of business in California. Uber develops, markets, and operates a mobile application enabling drivers to provide transportation and delivery services using their own vehicles. Beginning in approximately March 2016, Plaintiff Jose Mejia has worked as an Uber driver, offering transportation services primarily in Miami-Dade, Broward, and Palm Beach Counties.[BN] The Plaintiff is represented by: Jared H. Beck, Esq. Elizabeth Lee Beck, Esq. Beverly Virues, Esq. BECK & LEE TRIAL LAWYERS Corporate Park at Kendall 12485 SW 137th Ave., Suite 205 Miami, FL 33186 Telephone: (305) 234-2060 Facsimile: (786) 664-3334 E-mail: jared@beckandlee.com elizabeth@beckandlee.com beverly@beckandlee.com - and - Antonino G. Hernandez, Esq. ANTONINO G. HERNANDEZ, P.A. 4 SE 1st St., 2nd Floor Miami, FL 33131 Telephone: (305) 282-3698 Facsimile: (786) 513-7748 E-mail: hern8491@bellsouth.net UBS FINANCIAL: Court Compels Arbitration in "Roman" --------------------------------------------------- The United States District Court, District of Puerto Rico, issued an Opinion and Order granting Defendants' Motion to Compel Arbitration in the case captioned CARMELO ROMAN, RICARDO ROMAN- RIVERA and SDM HOLDINGS, INC., individually and on behalf of all others similarly situated Plaintiffs, v. UBS FINANCIAL SERVICES, INC. OF PUERTO RICO; UBS TRUST COMPANY OF PUERTO RICO; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.; PUERTO RICO FIXED INCOME FUND III, INC.; PUERTO RICO FIXED INCOME FUND V, INC.; PUERTO RICO INVESTORS BOND FUND I, INC.; PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA PORTFOLIO BOND FUND II, INC.; MIGUEL A. FERRER; CARLOS J. ORTIZ Defendants, Civil No. 12-1663CCC (D.P.R.). The case is stayed as to the remaining defendants pending the outcome of the arbitration proceedings. Plaintiffs Roman and Roman-Rivera alleged that they purchased UBS' Puerto Rico Fixed Income Fund III, Inc., Puerto Rico Investors Tax-Free Fund IV, Inc., and Puerto Rico Investors Bond Fund I, Inc. at artificially inflated prices and SDM Holdings, Inc. purchased UBS' Puerto Rico Fixed Income Fund V, Puerto Rico Fixed Income Fund III, Puerto Rico AAA Portfolio Bond Fund, and Puerto Rico AAA Portfolio Bond II also at artificially inflated prices. The claims were brought under the Securities Exchange Act of 1934, Sections 10(b) and 20(a) and Rule 10(b)-5. Before the Court is defendants UBS PR, Ortiz and Ferrer's Motion to Compel Arbitration and to Dismiss Plaintiffs' Individual Claims. The Arbitration provision of the Relationship Agreement states, in part: "You agree that any controversy, claim or issue in any controversy which may arise between you and UBS Financial Services Inc. or you and UBS Financial Services Incorporated of Puerto Rico, that occurred prior, on or subsequent to the execution of this Agreement, including but not limited to, any controversy, claim or issue in any controversy concerning any accounts, transaction, dispute or the construction, performance or breach of this Agreement or any other agreement, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration." The Court held that Defendants have met their burden by demonstrating that a valid agreement exists, that they are entitled to invoke the arbitration clause, that plaintiffs are bound by the clause and that the claim asserted comes within the clause's scope. In the absence of any express provision excluding a particular grievance from arbitration, the Court thinks only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail. Accordingly, the Court will enforce the Arbitration provision. Plaintiffs' claims as detailed in the complaint against UBS PR, Ortiz and Ferrer fall within the broad scope of this provision, the Court held. Therefore, the claims against UBS PR, Ortiz and Ferrer are dismissed, without prejudice. Motion to Stay Claims Against Remaining Defendants Defendants also argue that because plaintiffs' remaining claims against UBS Trust and the CEFs are co-extensive with the arbitrable claims against the other defendants, the Court should stay the Action as to the remaining defendants pending the outcome of the arbitration proceedings. In instances where a case involves both arbitrable and non-arbitrable claims, whether the non- arbitrable claims should be stayed pending resolution of the arbitrable claims is generally discretionary with the court. Plaintiffs' arbitrable claims are inextricably entwined with the non-arbitrable claims and the outcome of the non-arbitrable claims will depend on the arbitrators decisions. Accordingly, the claims against UBS Trust and the remaining CEFs are hereby stayed pending the outcome of the arbitration. Defendants' Motion to Compel Arbitration is granted. The Court orders plaintiffs Carmelo Roman, Ricardo Roman-Rivera and SDM Holdings, Inc. and defendants UBS PR, Ortiz and Ferrer to submit to arbitration and plaintiffs' claims against defendants UBS PR, Ortiz and Ferrer are dismissed, without prejudice. The case is stayed as to the remaining defendants UBS Trust and the remaining CEFs in the action, Puerto Rico Fixed Income Fund III, Inc. and Puerto Rico Fixed Income Fund V, Inc., pending the outcome of the arbitration proceedings. A full-text copy of the District Court's August 21, 2017 Opinion and Order is available at http://tinyurl.com/yc5r52ryfrom Leagle.com. Carmelo Roman, Plaintiff, represented by Amanda F. Lawrence - ALAWRENCE@SCOTT-SCOTT.COM - Scott & Scott LLP, pro hac vice. Carmelo Roman, Plaintiff, represented by David R. Scott - DAVID.SCOTT@SCOTT-SCOTT.COM - Scott & Scott LLP, pro hac vice, Eric M. Quetglas-Jordan, Quetglas Law Office PSC, P.O. Box 16606San Juan, PR 00908, Hector E. Pedrosa-Luna, The Law Offices of Hector E. Pedrosa-Luna, 84 Ponce De Leon AvenueSan Juan, PR 00918, Jennie M. Espada-Ocasio, Espada Esquire Legal Services Psc, 122 Calle Manuel Domenech, Altos Urb. Bladrich, San Juan, Puerto Rico 00918, Joseph P. Guglielmo - JGUGLIELMO@SCOTT-SCOTT.COM - Scott & Scott, LLP, pro hac vice, Juan R. Requena-Davila, PO Box 9825 Plaza Carolina Sta. Carolina, PR 00988-9825, Andrea Farah - AFARAH@SCOTT-SCOTT.COM - Scott Scott, Attorneys at Law, LLP, pro hac vice, Beth A. Kaswan - BKASWAN@SCOTT-SCOTT.COM - Scott Scott, Attorneys at Law, LLP, pro hac vice, Richard P. Rouco, Quinn, Connor, Weaver, Davies & Rouco, 2 20th St. N, Ste 930, Birmingham, AL 35203 pro hac vice & Luis E. Minana, Luis E. Minana & Associates., 122 Avenue Domenech Altos Urb. BaldrichSan Juan, PR 00918. Ricardo Roman-Rivera, Plaintiff, represented by Amanda F. Lawrence, Scott & Scott LLP, pro hac vice, David R. Scott, Scott & Scott LLP, pro hac vice, Eric M. Quetglas-Jordan, Quetglas Law Office PSC, Hector E. Pedrosa-Luna, The Law Offices of Hector E. Pedrosa-Luna, Jennie M. Espada-Ocasio, Espada Esquire Legal Services Psc, Joseph P. Guglielmo, Scott & Scott, LLP, pro hac vice, Juan R. Requena-Davila, Andrea Farah, Scott Scott, Attorneys at Law, LLP, pro hac vice, Beth A. Kaswan, Scott Scott, Attorneys at Law, LLP, pro hac vice, Richard P. Rouco, Quinn, Connor, Weaver, Davies & Rouco, pro hac vice & Luis E. Minana, Luis E. Minana & Associates. SDM Holdings, Inc., Plaintiff, represented by Amanda F. Lawrence, Scott & Scott LLP, Eric M. Quetglas-Jordan, Quetglas Law Office PSC, Hector E. Pedrosa-Luna, The Law Offices of Hector E. Pedrosa- Luna, Jennie M. Espada-Ocasio, Espada Esquire Legal Services Psc, Juan R. Requena-Davila, Andrea Farah, Scott Scott, Attorneys at Law, LLP, pro hac vice, Beth A. Kaswan, Scott Scott, Attorneys at Law, LLP, pro hac vice, Richard P. Rouco, Quinn, Connor, Weaver, Davies & Rouco, pro hac vice & Luis E. Minana, Luis E. Minana & Associates. UBS Trust Company of Puerto Rico, Defendant, represented by Mauricio O. Muniz-Luciano - Mauricio.muniz@oneillborges.com - O'Neill & Borges, Nicole A. DiSalvo - nicole.disalvo@skadden.com - Skadden, ARPS, Slate, Meagher & Flom LLP, pro hac vice, Paul J. Lockwood - paul.lockwood@skadden.com - Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice, Ubaldo M. Fernandez-Barrera - ubaldo.fernandez@oneillborges.com - O'Neill & Borges & Salvador J. Antonetti-Stutts - salvador.antonetti@oneillborges.com - O'Neill & Borges. Puerto Rico Fixed Income Fund III, Inc., Defendant, represented by Eduardo A. Zayas-Marxuach - ezm@mcvpr.com - McConnell Valdes, LLC & Roberto C. Quinones-Rivera - rcq@mcvpr.com - McConnell Valdes, LLC. Puerto Rico Fixed Income V, Inc., Defendant, represented by Eduardo A. Zayas-Marxuach, McConnell Valdes, LLC & Roberto C. Quinones-Rivera, McConnell Valdes, LLC. UBS Financial Services, Inc., Defendant, represented by Nicole A. DiSalvo, Skadden, ARPS, Slate, Meagher & Flom LLP, pro hac vice, Paul J. Lockwood, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice, Ubaldo M. Fernandez-Barrera, O'Neill & Borges, Salvador J. Antonetti-Stutts, O'Neill & Borges & Mauricio O. Muniz-Luciano, O'Neill & Borges. UBS Trust Company of Puerto Rico, Consol Defendant, represented by Paul J. Lockwood, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice & Salvador J. Antonetti-Stutts, O'Neill & Borges. Puerto Rico Fixed Income Fund, Inc. III, Consol Defendant, represented by Eduardo A. Zayas-Marxuach, McConnell Valdes, LLC, Roberto C. Quinones-Rivera, McConnell Valdes, LLC & Amelia Cristina O'Neill-Vega, McConnell Valdes, LLC. Puerto Rico Fixed Income Fund, Inc. V, Consol Defendant, represented by Eduardo A. Zayas-Marxuach, McConnell Valdes, LLC, Roberto C. Quinones-Rivera, McConnell Valdes, LLC & Amelia Cristina O'Neill-Vega - aco@mcvpr.com - McConnell Valdes, LLC. UNIFUND CCR: Wins OK of "Kramer" Suit Deal; Hearing on Jan. 17 -------------------------------------------------------------- The Hon. Thomas B. Russell granted the parties' joint motion for certification of the settlement class and preliminary approval of their Class Settlement Agreement and Release in the lawsuit entitled MARY KRAMER v. UNIFUND CCR PARTNERS, et al., Case No. 3:16-cv-00243-TBR-LLK (W.D. Ky.). For settlement purposes only, the Court certifies a Settlement Class defined as: "Individuals who are judgment debtors by virtue of a civil action filed in the Commonwealth, against whom either of the Defendants charged post-judgment interest compounded at a rate greater than annually, within 5 years of filing the instant action. However, excluded from the Class are individuals, who filed for bankruptcy or who are deceased. Ben Carter, Esq., is appointed as counsel for the Settlement Class. The Notice of Class Action Lawsuit and Proposed Settlement is approved. The dates for performance are as follows: * September 1, 2017 -- Unifund provides the Class List to Class Counsel; * September 15, 2017 -- Mailing of Class Notice; * December 15, 2017 -- Deadline for mailing of Requests for Exclusion; * December 22, 2017 -- Deadline for filing of Motion for Final Approval and other papers in support of Settlement; * January 1, 2018 -- Deadline for filing and service of Objections; and * January 17, 2018 -- Fairness Hearing. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=lD7dLMcf The Plaintiff and the Class are represented by: Ben Carter, Esq. BEN CARTER LAW PLLC 900 S. Shelby Street Louisville, KY 40203 Telephone: (502) 509-3231 Facsimile: (502) 792-7511 E-mail: ben@bencarterlaw.com The Defendants are represented by: Elizabeth M. Shaffer, Esq. DINSMORE & SHOHL, LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 Telephone: (513) 977-8128 Facsimile: (513) 977-8141 E-mail: elizabeth.shaffer@dinsmore.com UNITED STATES: HM Suit Dismissed in Part; Bid to Certify Denied --------------------------------------------------------------- The Honorable S. James Otero entered an order in the lawsuit titled H.M., et al. v. United States of America, et al., Case No. 2:17-cv-00786-SJO-GJS (C.D. Cal.): -- denying the Plaintiffs' motion for class certification; and -- granting in part and denying in part the Defendants' motion to sever and dismiss the Plaintiffs' mandamus claims and to dismiss the remaining claims in the Plaintiffs' second amended complaint for injunctive relief and for writ of mandamus. The case is one of several filed in the wake of President Donald J. Trump's signing of Executive Order 13,769, titled "Protecting the Nation from Foreign Terrorist Entry into the United States" ("EO-1"), 82 Fed. Reg. 8977 (Jan. 27, 2017). Referencing the past and present failings of the visa-issuance process, EO-1 had the stated purpose of "protect[ing] the American people from terrorist attacks by foreign nationals" by ensuring that the United States would not admit foreign nationals who "bear hostile attitudes" toward our nation and our Constitution, who would "place violent ideologies over American law," or who "engage in acts of bigotry or hatred," such as "'honor' killings." According to its civil minutes, the Court will permit the Plaintiffs to file a renewed motion for class certification not to exceed 30 pages by October 16, 2017, with a hearing date of December 11, 2017, that addresses each of the concerns highlighted in the Order. The Defendants will have 21 days to respond by way of an opposition brief not to exceed 30 pages, and Plaintiffs will have 14 days to respond by way of a reply brief not to exceed 10 pages. The Dismissal Motion is granted in part and denied in part. Judge Otero ruled that the Plaintiffs' Mandamus Claims are severed from the action and are dismissed without prejudice. The Court stays any and all discovery efforts related to the Plaintiffs' Establishment Clause Claim until after the United States Supreme Court issues an opinion in the consolidated cases Trump v. IRAP and Trump v. Hawai'i. The Court orders the parties to file a joint status report 10 days after the Supreme Court issues its opinion in these cases that both summarizes the holding(s) of the opinion and addresses the parties' views concerning how the opinion impacts any of Plaintiffs' asserted causes of action and future discovery efforts. The Court encourages both sides to carefully review the United States District Court for the District of Columbia's decision in Nine Iraqi Allies and the other authorities cited in this Order before filing any additional pleadings in this action. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=0Mx8eCUQ UNITED STATES: Electrical Welfare Fund Appeals Order to 4th Cir. ---------------------------------------------------------------- Plaintiff The Electrical Welfare Trust Fund filed an appeal from a court ruling in its lawsuit styled Electrical Welfare Trust Fund v. US, et al., Case No. 8:16-cv-02186-DKC, in the U.S. District Court for the District of Maryland at Greenbelt. The nature of suit is stated as tax suits. The appellate case is captioned as Electrical Welfare Trust Fund v. US, et al., Case No. 17-1937, in the United States Court of Appeals for the Fourth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Case Initial forms are due within 14 days; -- Opening Brief and Appendix are due on September 25, 2017; and -- Response Brief is due on October 24, 2017.[BN] Plaintiff-Appellant THE ELECTRICAL WELFARE TRUST FUND, on behalf of itself and all others similarly situated, is represented by: William Parry Dale, Esq. Charles Francis Fuller, Esq. MCCHESNEY & DALE, PC 4000 Mitchellville Road Bowie, MD 20716-0000 Telephone: (301) 805-6080 Facsimile: (301) 805-6086 E-mail: bill@dalelaw.com chuck@dalelaw.com - and - Samantha Holbrook, Esq. Joseph H. Meltzer, Esq. Melissa L. Troutner, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087-0000 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: sholbrook@ktmc.com jmeltzer@ktmc.com mtroutner@ktmc.com Defendants-Appellees UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES and THE HONORABLE SYLVIA MATHEWS BURWELL, in her official capacity as the Secretary of the United States Department of Health & Human Services, are represented by: Michelle Bennett, Esq. Matthew J. Berns, Esq. Matthew J.B. Lawrence, Esq. U. S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Washington, DC 20001-0000 Telephone: (202) 305-8902 Facsimile: (202) 616-8470 E-mail: michelle.bennett@usdoj.gov matthew.j.berns@usdoj.gov Matthew.J.Lawrence@usdoj.gov UPS: Settles EEOC's Disability Discrimination Case for $2 Million ----------------------------------------------------------------- Erin Mulvaney, writing for The National Law Journal, reports that UPS agreed to pay $2 million to resolve a long-running nationwide dispute with former and current employees who claimed the company's inflexible leave policy unfairly positioned disabled workers, the U.S. Equal Employment Opportunity Commission said on Aug. 8. Nearly 90 current and former employees of the Atlanta-based shipping company will receive the settlement following a lawsuit filed by the EEOC in 2009 in the U.S. District Court for the Northern District of Illinois. The EEOC charged that UPS violated federal law when it fired disabled employees automatically when they reached 12 months of leave. UPS has more than 434,000 employees and had revenues of $61 billion in 2016. The agency said the company's conduct violates the Americans with Disabilities Act. In additional to the $2 million settlement, UPS has agreed to update its policies on accommodating employees with disabilities, improve its implementation of those policies and train those who administer the disability accommodation processes. The company, according to the terms of a consent decree, will provide the EEOC reports on accommodation requests for the next three years. "The ADA requires companies to make a real effort to work individually with their employees with disabilities to provide them with the necessary and reasonable accommodations that will allow them to do their jobs," said Greg Gochanour, regional attorney of the EEOC's Chicago district office, in a statement. "As a result of this lawsuit, UPS now has practices in place to better ensure that this happens." A lawyer for UPS, Gary Clark of Quarles & Brady in Chicago, was not immediately reached for comment. According to the EEOC administrative investigation, which was conducted before the lawsuit was filed, Trudi Momsen, an administrative assistant with UPS, took a 12-month leave of absence from work when she experienced multiple sclerosis symptoms. She returned to work for a few weeks, but then required more time off because of negative side effects from her medication. She could have returned to work after the additional two-week leave, but UPS fired her for exceeding its 12-month leave policy. The investigation found this action in violation of the ADA. Julianne Bowman, the EEOC's Chicago district director, said that having a multiple-month leave policy alone does not guarantee compliance with the ADA. She said such policies must also include the flexibility to work with employees with disabilities who may simply require a reasonable accommodation to return to work. "UPS has now made changes which will allow more people to keep their jobs," Ms. Bowman said. US RENAL CARE: Seeks 9th Cir. Review of Ruling in "Whitaker" Suit ----------------------------------------------------------------- U.S. Renal Care, Inc., filed an appeal from a court ruling in the lawsuit styled David Whitaker v. U.S. Renal Care, Inc., Case No. 2:17-cv-02661-R-GJS, in the U.S. District Court for the Central District of California. As previously reported in the Class Action Reporter on August 18, 2017, Judge Manuel L. Real granted the Plaintiff's motion to remand the case to the Superior Court. The Plaintiff filed a class action complaint against the Defendant in the Superior Court. The Complaint alleges class action claims for (i) failure to pay minimum wages; (ii) failure to pay overtime wages; (iii) failure to provide meal periods; (iv) failure to permit rest breaks; (v) failure to provide accurate wage statements; (vi) failure to pay wages due upon separation of employment; and (vii) unfair business practices. The Plaintiff filed the Complaint on his own behalf as well as all non-exempt employees employed by Defendant in California within the four years prior to the filing of the action. The Defendant removed the case to the District Court arguing that the Court has jurisdiction under the Class Action Fairness Act. The appellate case is captioned as David Whitaker v. U.S. Renal Care, Inc., Case No. 17-80174, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent DAVID WHITAKER, individually and on behalf of all others similarly situated, is represented by: Ali Sarah Carlsen, Esq. AEGIS LAW FIRM PC 9811 Irvine Center Drive Irvine, CA 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 E-mail: acarlsen@aegislawfirm.com Defendant-Petitioner U.S. RENAL CARE, INC., is represented by: Kevin Dennis Sullivan, Esq. James A. Goodman, Esq. EPSTEIN BECKER & GREEN, PC 1925 Century Park East Los Angeles, CA 90067 Telephone: (310) 557-9576 E-mail: ksullivan@ebglaw.com jgoodman@ebglaw.com USAA CASUALTY: Tenth Circuit Appeal Filed in "Archuleta" Suit ------------------------------------------------------------- Plaintiff Jerry Archuleta filed an appeal from a court ruling in the lawsuit entitled Archuleta v. USAA Casualty, et al., Case No. 1:17-CV-00191-RBJ, in the U.S. District Court for the District of Colorado - Denver. As previously reported in the Class Action Reporter, Judge R. Brooke Jackson granted the Defendants' Motion for Judgment on the Pleadings. Mr. Archuleta, a Colorado resident, was injured in a car accident with an underinsured motorist. He submitted insurance claims to United Services Automobile Association ("USAA") under his policy for medical payments ("MedPay") and uninsured/underinsured motorist ("UM/UIM") coverage. USAA paid Mr. Archuleta $5,000 in MedPay benefits and later paid an additional $17,000 in UM/UIM benefits pursuant to a settlement agreement. According to Mr. Archuleta, USAA disclosed during the negotiations that it believed he was entitled to $22,000 in UM/UIM coverage, but it subtracted the $5,000 paid for MedPay benefits under a non- duplication provision of the insurance policy. With the advice of counsel, Mr. Archuleta accepted this setoff and signed a release discharging USAA's duty to pay under the policy. The appellate case is captioned as Archuleta v. USAA Casualty, et al., Case No. 17-1286, in the United States Court of Appeals for the Tenth Circuit. The briefing schedule in the Appellate Case was set as follows: -- Docketing statement was due on August 29, 2017, for Jerry Archuleta; -- Transcript order form was due on August 29, 2017, for Jerry Archuleta; and -- Notice of appearance was due on August 29, 2017, for Jerry Archuleta, USAA Casualty Insurance Company and United Services Automobile Association.[BN] Plaintiff-Appellant JERRY ARCHULETA, individually and on behalf of all others similarly situated, is represented by: Franklin D. Azar, Esq. Patricia A. Meester, Esq. Keith R. Scranton, Esq. FRANKLIN D. AZAR & ASSOCIATES, P.C. 14426 East Evans Avenue Aurora, CO 80014-0000 Telephone: (303) 757-3300 Facsimile: (303) 759-5203 E-mail: azarf@fdazar.com meesterp@fdazar.com scrantonk@fdazar.com - and - Bradley A. Levin, Esq. Susan S. Minamizono, Esq. Nelson Andrew Waneka, Esq. LEVIN SITCOFF 1512 Larimer Street, Suite 650 Denver, CO 80202 Telephone: (303) 575-9390 E-mail: bal@robertslevin.com ssm@levinsitcoff.com naw@levinsitcoff.com - and - Tonya L. Melnichenko, Esq. FRANKLIN D. AZAR & ASSOCIATES 5536 Library Lane Colorado Springs, CO 80918-0000 Telephone: (719) 527-8000 E-mail: melnichenkot@fdazar.com Defendants-Appellees USAA CASUALTY INSURANCE COMPANY and UNITED SERVICES AUTOMOBILE ASSOCIATION are represented by: Thomas J. Butler, Esq. Michael D. Mulvaney, Esq. MAYNARD COOPER & GALE, PC Harbert Plaza Suite 2400 1901 Sixth Avenue North Regions Birmingham, AL 35203-2618 Telephone: (205) 254-1000 E-mail: tbutler@maynardcooper.com mmulvaney@maynardcooper.com - and - Marilyn Sue Chappell, Esq. Jon Sands, Esq. SWEETBAUM SANDS ANDERSON PC 1125 Seventeenth Street, Suite 2100 Denver, CO 80202 Telephone: (303) 296-3377 E-mail: mchappell@SweetbaumSands.com jsands@SweetbaumSands.com VANGUARD GROUP: Seeks 3rd Cir. Review of Order in "Taksir" Suit --------------------------------------------------------------- Defendant Vanguard Group Inc. filed an appeal from a court ruling in the lawsuit titled Alex Taksir, et al. v. Vanguard Group Inc., Case No. 2-16-cv-05713, in the U.S. District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter on August 18, 2017, Judge Cynthia M. Rufe denied Vanguard's motion for reconsideration of the Court's May 26, 2017 Opinion denying its motion to dismiss the complaint to the extent it seeks reconsideration of the Court's May 26, 2017 decision, but granted insofar as it requests that the Court's opinion be certified for interlocutory appeal. The Plaintiffs, on behalf of a proposed class of investors, assert a breach-of-contract claim against Vanguard, their securities broker. They allege that by investing more than $500,000 with Vanguard, they qualify for its Voyager Select Program, under which they should be charged a $2 commission on securities trades. On two occasions, however, the Plaintiffs were charged a $7 commission instead. When pressed for details about the overcharge, Vanguard informed them that it resulted from IRS nondiscrimination rules, which they dispute apply to the trades at issue. The appellate case is captioned as Alex Taksir, et al. v. Vanguard Group Inc., Case No. 17-8044, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Respondents ALEX TAKSIR and ORIT TAKSIR, on behalf of all others similarly situated, are represented by: Christopher L. Nelson, Esq. THE WEISER LAW FIRM, P.C. 22 Cassatt Avenue, Suite 100 Berwyn, PA 19312 Telephone: (610) 225-2677 E-mail: cln@weiserlawfirm.com - and - Samuel L. Rosenberg, Esq. LAW OFFICES OF SAMUEL L. ROSENBERG 15 Astor Place Monsey, NY 10952 - and - Jonathan Zimmerman, Esq. SCOTT & SCOTT 230 Park Avenue The Helmsley Building, 17th Floor New York, NY 10169 Telephone: (212) 223-6444 Facsimile: (212) 223-6334 E-mail: jzimmerman@scott-scott.com Defendant-Petitioner VANGUARD GROUP INC. is represented by: Selby P. Brown, Esq. Stuart T. Steinberg, Esq. DECHERT LLP Cira Centre, 18th Floor 2929 Arch Street Philadelphia, PA 19104 Telephone: (215) 994-2905 E-mail: selby.brown@dechert.com stuart.steinberg@dechert.com VOLVO CARS: 7th Cir. Reverses Dismissal of "Laurens" Suit --------------------------------------------------------- In the case captioned XAVIER LAURENS and KHADIJA LAURENS, Plaintiffs-Appellants, v. VOLVO CARS OF NORTH AMERICA, LLC, and VOLVO CAR USA, LLC, Defendants-Appellees, No. 16-3829(7th Cir.), Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit reversed the judgment of the district court dismissing the case for lack of standing and remanded for further proceedings consistent with her opinion. This case, at base, is about a car purchaser's disappointed expectations. The cars are Volvos, and the dispute centers on the difference between the model XC90 and the XC90 T8. Both are luxury SUVs, but the XC90 runs on gas, whereas the T8 is a plug-in hybrid. The latter feature comes at a premium; the 2016 T8 retailed for around $20,000 more than its gas-only sibling. The Plaintiffs overcame the sticker shock and paid $83,475 for a new T8. They also purchased, for an additional $2,700, a charging station that was installed in their garage. The Laurenses quickly realized that the car they bought fell short of the car the ads had promised. On April 21, 2016, Xavier filed the action, both on his own behalf and for a class of others similarly situated. He relied on the Class Action Fairness Act ("CAFA") for subject-matter jurisdiction, because he was a citizen of Illinois, whereas Volvo Cars USA is a Delaware limited liability company controlled by Volvo Cars of North America (another Delaware LLC), which is itself wholly owned by its Swedish parent (a publicly traded, share-based limited liability company, or AB, with its principal place of business in Gothenburg, Sweden), and the aggregate amount in controversy exceeds (he asserted) $5,000,000. For himself, Xavier sought damages equal to the premium he paid for the hybrid model ($20,000), the cost of the charging station ($2,700), injunctive relief, punitive damages, and attorney's fees. The complaint's core theory was that Volvo's misleading advertising caused Xavier to pay the extra money for the hybrid version of the car. A wrinkle arose when it turned out that Xavier was not listed on either the car's purchase agreement or the title; only Khadija was. On June 8, 2016, the Laurenses received a letter from Volvo that offered "immediately" to give Khadija (but not Xavier) a full refund upon return of the vehicle if she is not satisfied with it for any reason and to arrange to pick up her vehicle at her home. The next day Volvo moved to dismiss Xavier's suit on the theory that he lacked standing; it argued that Khadija, the titleholder, was the only person with any possible injury, and she was not at that moment a party. Before the district court ruled on the motion, the Laurenses added Khadija to the complaint. Volvo responded with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1); its motion contended that Khadija also lacked standing because its letter had offered complete relief for her before she filed suit. The district judge agreed with Volvo, finding that Xavier had never suffered an Article III injury and that Volvo's offer had redressed Khadija's injury before she became a party. The court dismissed the action, and the appeal followed. Judge Wood explains that if forcing a contract on an unwilling party is unacceptable under the judicially supervised procedures of Rule 68 and Rule 67, she sees no reason why an impersonal note offering a refund should have such a powerful effect. Nor does it matter that Volvo's offer preceded Khadija's lawsuit. Campbell-Ewald Co. v. Gomez's core lesson is that unaccepted contract offers are nullities; settlement proposals are contract offers; and therefore unaccepted settlement proposals are nullities. Nothing about that logic turns on whether a suit has been filed. While Campbell-Ewald dictates the outcome here, she notes that pragmatic considerations point in the same direction. When offers are made during litigation, judicial oversight should mitigate the uncertainty: a defendant's failure to follow through would incur the wrath of the supervising court, and egregious misconduct might lead to sanctions. Those safeguards do not apply to offers made before the lawsuit begins. Here, if Khadija had accepted Volvo's offer and then Volvo had failed to pay, she would be right back where she started, with a new breach of contract claim. Since Khadija did not accept Volvo's offer, her injury-in-fact from Volvo's alleged misrepresentations remains unredressed. Judge Wood therefore reversed the judgment of the district court dismissing the case for lack of standing and remanded for further proceedings consistent with her opinion. A full-text copy of the Seventh Circuit's Aug. 22, 2017 Order is available at https://is.gd/ZInA8W from Leagle.com. Robert A. Roth -- rroth@reedsmith.com -- for Defendant-Appellee. Joseph Siprut -- jsiprut@siprut.com -- for Plaintiff-Appellant. Jennifer Ilkka -- jilkka@reedsmith.com -- for Defendant-Appellee. Todd L. McLawhorn -- todd@mcllegal.com -- for Plaintiff-Appellant. Ke Liu -- kliu@siprut.com -- for Plaintiff-Appellant. WEBMD HEALTH: Conflict of Interest Taints Merger Says "Akerman" --------------------------------------------------------------- Morris Akerman, on behalf of himself and all others similarly situated, Plaintiff, vs. WebMD Health Corp., Martin J. Wygod, Steven L. Zatz, Mark J. Adler, Ian G. Banwell, Neil F. Dimick, James V. Manning, William J. Marino, Joseph E. Smith, Stanley S. Trotman, Jr., Kristiina Vuori, MH Sub I, LLC, and Diagnosis Merger Sub, Inc., Defendants, Case No. 1:17-cv-06132, (S.D.N.Y., August 14, 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 WebMD by Kohlberg Kravis Roberts & Co. L.P. The suit further seeks 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. Kohlberg will acquire all outstanding shares of WebMD for $66.50 in cash per share of WebMD's common stock. Transaction is valued at approximately $2.8 billion. Plaintiff and other Rice shareholders claimed that the transaction documents omitted material information concerning financial projections prepared by the company management and WebMD 's management as well as the valuation analyses performed by the J.P. Morgan, the company's financial advisor. They, therefore, are not able to assess the integrity of the process that led to the offer or the adequacy of the consideration being offered for their shares. The Web MD board and the company's executive officers are conflicted because they will have secured unique benefits for themselves from the deal. Certain members of company management have allegedly secured positions for themselves following the merger, the complaint asserts. WebMD is an online publisher of health information and medical news. It maintains its publicly available information at www.webmd.com. Plaintiff is represented by: Michael J. Klein, Esq. Aaron L. Brody, Esq. 6 East 45th Street New York, NY 10017 Phone: (212) 687-7230 Fax: (212) 490-2022 Email: abrody@ssbny.com mklein@ssbny.com WECTEC LLC: Faces "Fleetwood" Adversary Class Suit in New York -------------------------------------------------------------- Andrew Fleetwood, on behalf of himself and all others similarly situated v. WECTEC LLC and Stone & Webster Services LLC, Case No. 17-01110-mew (Bankr. S.D.N.Y., August 10, 2017), is brought as an adversary proceeding in the bankruptcy case of Westinghouse Electric Company LLC, et al. The nature of suit is stated as recovery of money/property - other.[BN] The Plaintiff is represented by: Rene S. Roupinian, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2070 E-mail: rsr@outtengolden.com WOLF APPLIANCE: Court Narrows Claims in "Kail" ---------------------------------------------- The United States District Court, Eastern District of New York, issued a Memorandum and Order granting in part and denying in part Defendant's Motion for Summary Judgment in the case captioned IVAN and MELANIE KAIL, individually and on behalf of all others similarly situated, Plaintiffs, v. WOLF APPLIANCE, INC., Defendant, No. 15-CV-3513 (JS)(GRB) (E.D.N.Y.). Defendant Wolf Appliances, Inc., manufactures high-end cooking appliances, including dual fuel ranges, which combine gas cooktop burners with electric ovens underneath. Plaintiffs Ivan and Melanie Kail have owned a Wolf range. The Kails received at least ten replacement parts and units to address cosmetic issues with the interior of the oven. Whenever the couple used the self- cleaning function, the oven liner chipped and cracked. Under the two-year limited warranty, which came with the original unit and restarted with each replacement, Wolf covered all parts and labor for any part of the product. But Wolf alleges, and the Kails dispute, the parties agreed to modify the warranty to exclude any cosmetic-related damages. After the chipping continued, the Kails requested a new replacement. Under the terms of the allegedly modified warranty, Wolf declined, and so the Kails filed this proposed class action. Wolf now asks for summary judgment. Standard of Review Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Material facts are those which 'might affect the outcome of the suit under the governing law, and a dispute is genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Warranty-Based Claims The range at issue is the Kails' replacement. With that in mind, the Court begins by analyzing the warranty-based claims: (1) breach of the written warranty, (2) breach of any express warranties created by affirmations of fact or promises, (3) breach of the implied warranty of merchantability, and (4) violation of the MMWA. The Written Warranty A claim for breach of express warranty requires proof that an express warranty existed, was breached, and that plaintiff had relied on that warranty. This evidence would entitle a reasonable juror to question whether the warranty modification was enforceable. Neither Zimmerschied nor Heitmann have been deposed to provide any clarification. On top of this, Wolf required a countersignature when the Kails upgraded their range in 2009. Drawing all inferences in the Kails' favor, as the Court must, it is unclear whether Wolf routinely requires a countersignature in the course of its business. Without Zimmerschied's testimony or further explanation on Wolf's modification procedures, the Court must deny summary judgment on the breach of the written warranty claim. Express Warranties Created by Affirmations or Promises As a creature of contract law, express warranties include any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain. The Kails filed their lawsuit in 2015, making any claims based on the 2006 and 2009 units untimely. Despite the slew of replacement parts and units, the law is clear that attempts to repair a warrantied product, within the warranty period, do not toll the four[-]year limitations period. No other tolling exceptions apply. Thus, any claims based on express warranties made through affirmations of fact or promises are time-barred. Implied Warranty of Merchantability Wolf also asks for summary judgment on the implied warranty claim, raising three arguments: (1) the claim is untimely based on the four-year statute of limitations because there was no sale transaction for the 2014 replacement range, (2) the Kails lack privity with Wolf, in part, because Ivan's employer purchased the original range in 2006, and (3) it is undisputed that the ranges are merchantable because the issue is cosmetic, not functional, Beginning with Wolf's first argument, Article 2 of the UCC applies to transactions in goods. So an implied warranty of merchantability arises in a contract of sale, which "includes both a present sale of goods and a contract to sell goods at a future time. Gifts would then fall outside of Article 2, but some courts have found that a combined offering of a free good and a purchased good would receive an implied warranty. Wolf's second argument is that the lack of privity provides an additional, independent reason for dismissing the implied warranty claim to the extent it is based on the 2006 sale. Without going any further, the Court can reject this argument because the range at issue is based on the 2014 replacement. The Court now turns to the final argument: whether there is a genuine issue of material fact that the 2014 range was merchantable. Here, the ordinary purpose of a Wolf range is to cook food. Although the Kails continue to use their range, it is unclear whether chipped porcelain contaminates food cooked in the oven. Put another way, the durability of the porcelain may affect the functionality of the oven. After using the self-clean function, porcelain pieces may fly onto the food, and so the range may be incapable of being cleaned, thus preventing the Kails from using it. Accordingly, the Court denies summary judgment on the implied warranty claim. Magnuson-Moss Warranty Act As the federal lemon law, the MMWA is designed to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products. In that regard, claims under the [Act] stand or fall with the express and implied warranty claims under state law. Because there are issues of fact on the written-warranty and implied-warranty claims, the MMWA claim must move forward. Negligent Misrepresentation Claim Next, the Court turns to the Kails' negligent misrepresentation claim, which requires proof of five factors: (1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment. To survive summary judgment under either statute, a plaintiff must show: (1) the defendant's deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result. The issue here is whether the conduct or advertisements were materially misleading. A material deception is one involving information that is important to consumers and likely to affect their choice of product. Today's result is straightforward: Any material omissions or misrepresentations, as described above, relate back to the initial purchase in 2006 or the paid upgrade in 2009. Thus, summary judgment is granted on the statutory claims. Defendant's motion for summary judgment is granted in part and denied in part. As for the 2014 replacement range, four claims will proceed to trial: (1)breach of the written warranty; (2) breach of the implied warranty of merchantability; (3) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301 et seq.; and (4) negligent misrepresentation. A full-text copy of the District Court's August 21, 2017 Memorandum and Order is available at http://tinyurl.com/y7m9vx28 from Leagle.com. Ivan Kail, Plaintiff, represented by Mark S. Reich - mreich@rgrdlaw.com Robbins Geller Rudman & Dowd, LLP. Ivan Kail, Plaintiff, represented by Vincent Michael Serra - vserra@rgrdlaw.com Robbins Geller Rudman & Dowd LLP. Melanie Kail, Plaintiff, represented by Mark S. Reich, Robbins Geller Rudman & Dowd, LLP & Vincent Michael Serra, Robbins Geller Rudman & Dowd LLP. Wolf Appliance, Inc., Defendant, represented by Douglas Scott Heffer - dheffer@foley.com - Foley & Lardner LLP, Yonaton Aronoff - yaronoff@sc-harris.com - Foley & Lardner LLP, Anne Berkowitz Sekel - asekel@foley.com - Foley & Lardner LLP, Gordon Davenport - gdavenport@foley.com - Foley & Lardner LLP & Max B. Chester - mchester@foley.com - Foley & Lardner LLP. ZIRX CONSUMER: Settlement in "Pascual" Has Final Approval --------------------------------------------------------- Judge John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, granted the Plaintiff's Motion for Final Approval of Class-Action Settlement and for Approval of Attorney's Fees, Costs, and Incentive Award in the case captioned CHRISTINA PASCUAL, on her own behalf and on behalf of a CLASS OF SIMILARLY SITUATED EMPLOYEES OF DEFENDANT, Plaintiffs, v. ZIRX CONSUMER SERVICES, INC., a California corporation, Defendant, No. 2:15-cv-01923-JCC(W.D. Wash.). In connection with granting preliminary approval to a class-wide Settlement reached in the action, the Court scheduled a fairness hearing for Aug. 22, 2017. It directed the Plaintiff to file a motion for final approval by July 7, 2017. It also directed her to file a motion for approval of any fee and expense award, as well as any incentive payment to her, by July 7, 2017, to be heard at the same time as the motion for final approval. The Plaintiff timely filed the Motion for Final Approval. Having read all of the papers filed in connection therewith, and having considered all of the evidence and argument submitted with respect to the proposed Settlement, Judge Coughenor granted the Motion for Final Approval is granted. The Settlement Class consists of all persons who entered into independent contractor agreements with Zirx Consumers Services, worked as a Parking Agent more than 40 hours in any work week during the period June 1, 2015 through Oct. 31, 2015. Under the Stipulation of Settlement, the Plaintiff is permitted to seek up to $1,000 from the Maximum Settlement Amount for an incentive-award Service Payment. She has requested that amount. Judge Coughenour approved that amount as an incentive payment, and, upon the Effective Date, she therefore will be subject to the general release set forth in the Settlement. Under the Stipulation of Settlement, Class Counsel is permitted to seek up to a total of $45,000 in attorney's fees and costs. The Class Counsel has requested $44,201.24 in attorney's fees and $798.76 in actual costs and expenses. The Judge finds that these amounts are reasonable. Accordingly, he approved those amounts. Under the Stipulation of Settlement, the Settlement Administrator is to be paid its reasonably incurred fees and expenses from the Maximum Settlement Amount for the Administration Costs of the Settlement. The Settlement Administrator has requested $10,275 for its fees and expenses. Judge Coughenour finds that this amount is reasonable. Accordingly, he approved that amount as the Administration Costs of the Settlement. Except as otherwise provided in the Final Approval Order, the Parties will bear their own costs and attorney's fees. Without affecting the finality of the Final Approval Order and Judgment, the Court retains jurisdiction over the Lawsuit, the Parties, and the Participating Class Members for purposes of supervising, implementing, enforcing, construing, administering, and interpreting the Stipulation of Settlement, as well as any matters related or ancillary to the foregoing. A full-text copy of the District Court's Aug. 22, 2017 Judgment and Final Order is available at https://is.gd/9WbofJ from Leagle.com. Christina Pascual, Plaintiff, represented by Stephen P. Connor, CONNOR & SARGENT PLLC. Christina Pascual, Plaintiff, represented by Anne-Marie E. Sargent -- aes@cslawfirm.net -- CONNOR & SARGENT PLLC. Zirx Consumer Services, Inc, Defendant, represented by Kalley R. Aman -- kaman@buchalter.com -- BUCHALTER NEMER, pro hac vice, Michael J. Cereseto -- mcereseto@buchalter.com -- BUCHALTER NEMER, pro hac vice, Adam T. Pankratz -- adam.pankratz@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART, Leah C. Lively -- leahlively@dwt.com -- DAVIS WRIGHT TREMAINE & Sarah Jung Evans, OGLETREE DEAKINS NASH SMOAK & STEWART. * CPLR Article 9 Useful for Consumer Class Action Plaintiffs ------------------------------------------------------------ Thomas A. Dickerson, writing for New York Law Journal, reports that although the proper utilization of CPLR Article 9 has on occasion been problematic, there are moments when decisions can, indeed, be inspiring. The First Department's decision in Gold v. New York Life Insurance Company is one of them. 2017 N.Y. App. Div. LEXIS 5627 (1st Dept. 2017). In fact, in terms of courage and thoughtful analysis in both majority and dissenting opinions, Gold ranks very close to the superb decision of the Court of Appeals in Borden v. 400 East 55th Street Associates allowing tenants to sue as a class if they waived the penalty provisions of the statutes (e.g., Rent Stabilization Law) under which they brought suit, thereby circumventing the prohibitions of CPLR 901(b). 24 N.Y.3d 382 (2014); see Dickerson & Duffy, "'Borden': a Welcome Sea Change on New York State Class Actions," N.Y.L.J., (June 29, 2015, p. 4); Dickerson, Austin & Zucco, New York State Class Actions: Making It Work-Fulfilling the Promise: Some Positive Developments and Why CPLR 901(b) Should Be Repealed," 77.1 Albany L.R. 59 (2014). Allowing class members to "waive the penalty" had already become accepted practice in class actions brought by consumers, employees and others. See, e.g., Cox v. Microsoft , 8 A.D.3d 39 (1st Dept. 2004); Ridge Meadows Homeowners' Ass. v. Tara Dev. , 242 A.D. 2d 947 (4th Dept. 1997); Super Glue v. Avis Rent A Car System , 132 A.D.2d 604, 606 (2d Dept. 1987); Pesantz v. Boyle Environmental Services , , 251 A.D.2d 11 (1st Dept. 1998); Krebs v. Canyon Club , 22 Misc. 3d 1125 (West. Sup. 2009); Pires v. Bowery Presents , 44 Misc. 3d 704 (N.Y. Sup. 2014) (Arts and Cultural Affairs Law 25.30(1)(c)). It is fair to state that after Borden Article 9 of the CPLR became more readily available to consumers, tenants and employees as a useful procedural device to aggregate and prosecute similar claims. Enter 'Concepcion' At the same time there were several decisions by the U.S. Supreme Court which sought to reduce, if not, eliminate the use of the class action device by the very groups which our Court of Appeals and Appellate Divisions sought to empower. As for consumers, a series of decisions by the U.S. Supreme Court relying upon the Federal Arbitration Act (FAA) made it clear that mandatory arbitration clauses and class action and class arbitration waivers in consumer contracts were to be enforced. See, e.g., Green Tree Financial v. Bassel , 539 U.S. 444 (2003) (arbitrator decides whether arbitration agreement prohibits class arbitrations); Stolt-Nielsen v. AnimalFeeds International , 130 S. Ct. 1758 (2010) ("It follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so."); AT&T Mobility v. Concepcion , 131 S. Ct. 1740 (2011)(abrogating Discover Bank v. Superior Court to the effect that consumer contracts containing clauses prohibiting class actions or class arbitrations were void as against public policy); American Express v. Italian Colors Restaurant , 133 S. Ct. 234 (2013) (rejecting argument that class arbitration was necessary to prosecute claims "that might otherwise slip through the legal system"); and DirecTV v. Imburgia , 136 S. Ct. 463 (2015) ("California's interpretation of the phrase 'law of your state' does not place arbitration contracts 'on equal footing with all other contracts'."). Remedies Extinguished One need only read Justice Ruth Bader Ginsburg's dissent in DirecTV and the New York Times article cited therein to understand that meaningful consumer remedies have nearly been extinguished. See Silver-Greenberg and Corkey, "In Arbitration, a 'Privatization of the Justice System'," New York Times (Nov. 1, 2015) ("By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies [have] devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practice."); see also Silver-Greenberg and Gebeloff, "Arbitration Everywhere, Stacking the Deck of Justice" New York Times (Oct. 31, 2015); The Editorial Board, "Arbitrating Disputes, Denying Justice," New York Times (Nov. 7, 2015); Arbitration Study, Report to Congress, pursuant to Dodd-Frank Wall Street Reform and Consumer Protection Act 1028(a) (March 2015), published by the federal Consumer Financial Protection Board, and its recent rule-making seeking to prohibit financial companies from using class action waivers in their arbitration agreements entered into after the effective date of the rule. The final rule will be codified at 12 C.F.R. part 1040 to Chapter X in Title 12 of the Code of Federal Regulations. See The Editorial Board, "Forcing Banks to Fight Fair," New York Times (July 15, 2017) ("A powerful rule finalized by the Consumer Financial Protection Bureau will allow consumers to join together in class action lawsuits against banks, credit card companies and other lenders over price gouging, predatory lending, abusive loan terms and other mistreatment"). Circumventing 'Concepcion' As noted by the California Supreme Court in Sanchez v. Valencia Holding Company , 61 Cal. 4th 899 (Cal. Sup. 2015), Concepcion "reaffirmed that the FAA does not preempt 'generally applicable contract defenses, such as fraud, duress or unconscionability' . . . . Under the FAA, these defenses may provide grounds for invalidating an arbitration agreement if they are enforced evenhandedly and do not 'interfere with fundamental attributes of arbitration'." And, indeed, there are ways in which to circumvent Concepcion depending upon the facts of each case. See Dickerson & Chambers, "Challenging 'Concepcion' in New York State Courts," N.Y.L.J. (Dec. 29, 2015); Dickerson, "Class Actions: The Law of 50 States," Law Journal Press, Sec. 4.03[5]. What About Employees? On Oct. 2, 2017 the Supreme Court is scheduled to hear oral argument regarding the legality of arbitration agreements in employment contracts requiring workers to waive their rights to sue in collective or class actions. In fact, there is now an even split between six U.S. Courts of Appeals that have considered the enforceability of In re D.R. Horton (Horton I), 357 NLRB No. 184 (Jan. 3, 2012), which held that forcing an employee to waive his or her right to sue in a collective or class action is an unfair labor practice under the National Labor Relations Act. See NLRB v. Alternative Entertainment, 2017 U.S. App. LEXIS 9272 (6th Cir. May 26, 2017), Lewis v. Epic Systems , 823 F.3d 1147 (7th Cir. 2016) cert. granted 137 S. Ct. 809 (2017), and Morris v. Ernst & Young , 834 F.2d 975 (9th Cir. 975), cert. granted 137 S. Ct. 809 (2017) (all upholding Horton I ); Sutherland v. Ernst & Young , 726 F.3d 290 (2d Cir. 2013), Murphy Oil USA v. NLRB , 808 F.3d 1013 (5th Cir. 2015), cert. granted 137 S. Ct. 809 (2017), and Owen v. Bristol Care , 702 F.3d 1050 (8th Cir. 2013) (all rejecting Horton I ). First Department Joins the Fray In considered and very well written opinions by both the majority and the dissent in Gold v. New York Life Insurance, the Appellate Division, First Department, consider[ed] an issue that we have never directly addressed before now: whether employees can be obliged to arbitrate collective disputes such as class actions regarding wage disputes with their employers (with the majority holding) that plaintiffs cannot be required to arbitrate their disputes with defendant New York Life insurance Company because that obligation would run afoul of the National Labor Relations Act. Most surprising (and pleasantly so) is that the Gold majority departed from the First Department's historical enforcement of arbitration clauses. See State of New York v. Phillip Morris , 30 A.D.3d 190 (1st Dept. 2006); Tsadilas v. Providian National Bank , 13 A.D.3d 190 (1st Dept. 2004); Ranieri v. Bell Atlantic Mobile , 304 A.D.2d 353 (1st Dept. 2003); see also Weinstein v. Jenny Craig Operations , 132 A.D.3d 446 (1st Dept. 2015); Ansah v. A.W.I. Security & Investigation , 129 A.D.3d 538 (1st Dept. 2015); Chan v. Chinese-American Planning Council Home Attendant Program, 2015 WL 5294803 (N.Y. Sup. 2015). Compare: JetBlue Airways v. Stephenson , 88 A.D.3d 567 (1st Dept. 2011); Cheng v. Oxford Health Plans , 84 A.D.3d 673 (1st Dept. 2011); Frankel v. Citicorp Insurance Services , 80 A.D.3d 280 (2d Dept. 2010). In fact, the Gold majority's decision is consistent with the Court of Appeals' decision in Borden expanding the application of CPLR Article 9 for class actions brought by consumers, employees and tenants. Labor Law Claims The Gold plaintiffs alleged, inter alia, unlawful wage deductions for commission reversals in violation of Labor Law Sec. 193, failure to pay overtime in violation of 12 NYCRR 142-2.2 and failure to pay the minimum wage in violation of Labor Law Sec 652. The defendant sought to dismiss these claims and compel arbitration. "Upon consideration . . . we conclude that the better view is that arbitration provisions such as the one (here) which prohibit collective or representative claims, violate the National Labor Relations Act (NLRA) and those provisions are unenforceable," relying upon the reasoning in Lewis v. Epic Sys. Right to Concerted Activities The Seventh Circuit in Epic declined to enforce a clause that precluded employees from "'seeking any class, collective or representative remedies to wage-and-hour disputes' because the clause 'violate[d] Sections 7 and 8 of the NLRA'. According to the Court, section 7 of the NLRA provided that employees have the right to engage in concerted activities and concerted activities 'have long been held to include resort to . . . judicial forums'. The Seventh Circuit also found that a lawsuit filed 'by a group of employees to achieve more favorable terms or conditions of employment' is considered to constitute 'concerted activity under section 7 of the NLRA . . . What is more, the Seventh Circuit found that the clause was also unenforceable under the (FAA)" because the subject provision "is unlawful under section 7 of the NLRA," and as such was an illegal provision unenforceable under the FAA. Conclusion While the U.S. Supreme Court is unlikely to overrule Concepcion in the near future, thus disappointing consumers, it is hoped that the rights of employees to sue collectively as a class will be preserved. Thomas A. Dickerson is a former Associate Justice for the Appellate Division, Second Department. He is the author of "Class Actions: the Law of 50 States," Law Journal Press (2017) and Article 9 (New York State Class Actions) of Weinstein Korn Miller, New York Civil Practice, Lexis-Nexis [MB] (2017). Asbestos Litigation ASBESTOS UPDATE: Baby Powder Talc Leads to $417MM in Cancer Case ---------------------------------------------------------------- Terri Oppenheimer, writing for Mesothelioma.net, reported that talc is the main ingredient in Johnson & Johnson's Baby Powder, and because talc is mined from the same locations as asbestos (the mineral that causes mesothelioma) there have long been questions about whether the product is really as safe as its manufacturer would have us believe. Now a California jury has handed down a resounding answer to that question, awarding $417 million to a woman diagnosed with ovarian cancer after years of using the product. The large verdict was in large part a result of the company not having provided any warnings of the possible presence of asbestos when it was a component of the product's talc prior to the 1980s: other talc-containing products have carried labels warning of the potential risk of ovarian cancer. The American Cancer Society has dedicated a considerable amount of time to looking at the link between talc and ovarian cancer, in large part because of the conclusive evidence of asbestos' relationship to other cancers like mesothelioma and asbestos- related lung cancer. Though that agency has said that the link is inconclusive, they also acknowledge that there is an increased risk, and other health-oriented agencies have done the same. With the California jury's verdict it is expected that the company will be facing many similar claims against them: there are already over 5,000 claims that have been filed seeking damages for similar cancer diagnoses. The $417 million award was provided in the first talc case to be heard in the state of California, and it represents one of the largest verdicts to date for the year 2017. At the heart of the case was Eva Echeverria, a woman who was diagnosed with ovarian cancer after years of having used the baby powder product vaginally, as the company had advertised for years without ever having warned of the risk of doing so. In addition to the several thousand similar claims that have been filed across the country, there have already been five Johnson & Johnson's Baby Powder cases heard in the state of Missouri, with four of those decisions going against the consumer product giant. The largest of those verdicts was $110 million. Whether the injury is mesothelioma, ovarian cancer, or any other illness resulting from a company having acted negligently, the people who suffer the most are the consumers who have not been given the warnings or information that they needed to make informed decisions. If you need answers, contact the Patient Advocates at Mesothelioma.net. We can help you find all the resources you need. Call us at 1-800-692-8608. ASBESTOS UPDATE: Emerson Electric Units Lose First Jury Trial ------------------------------------------------------------- Carrie Salls, writing for Legal Newsline, reported that an attorney for a former nuclear plant employee with mesothelioma said a $300,000 Aug. 3 jury verdict against Emerson Electric Co., Fisher Controls International, and Crosby Valve will help other asbestos plaintiffs with claims against the companies. "Both companies have a liability story that has now been exposed, and that a jury has found that their actions were negligent," attorney Theile McVey of Kassel McVey told Legal Newsline. "The verdict demonstrates that when companies put profits over people's lives and safety, eventually they will be held accountable." Courtroom View Network webcast the entire trial. McVey said her firm expects the verdict entered in the case of Dale Jolly "will provide a good roadmap of evidence to other injured persons seeking to hold Fisher and Crosby accountable for their wrongdoing." Jolly was employed by Duke Energy. He and his wife filed the lawsuit against the Emerson subsidiaries in the Court of Common Pleas for the 7th Judicial Circuit of South Carolina. McVey said Dale Jolly was exposed to asbestos from valve gaskets and packing in a power plant setting. According to McVey, Crosby and Fisher corporate representatives acknowledged in their testimony "that they had non-asbestos packing and gaskets that could have been substituted and that those substitutes would work just as well. Yet, they continued sell the asbestos gaskets and packing." The jury found that both defendants had breached the implied warranty of merchantability in connection with the parts supplied to Duke Energy, McVey said. McVey said the workers followed the defendants' manufacturer's maintenance instructions and the jury rejected the claims from the defendants that sought to blame the plaintiff. Jolly's attorneys argued that Fisher and Crosby had failed to consider the health or safety of asbestos valves and asbestos replacement parts products. Both sides have filed post-trial motions. Any decision from the defense to appeal would depend on the outcome of those motions. There are other cases currently pending against Emerson in South Carolina and other jurisdictions in the country. Emerson press representative David Baldridge said the company had no comment on the Jolly verdict. ASBESTOS UPDATE: FACT Act Won't Prevent Abuse of Double-Dipping --------------------------------------------------------------- Angela Underwood, writing for SE Texas Record, reported that attorneys double-dipping from asbestos trusts funds that rightfully belong to affected veterans is unacceptable, according to a former American Legion National commander and sitting judge. Recently published in the Austin American Statesman with co-author and Texas Coalition of Veteran's Organizations Chairman Emeritus Morgan Little, Washington County Judge John Brieden reiterated what he composed in the opinion piece. "All I am asking is for it to be right and be fair and it's going to take legislation to prevent the system from being abused," Brieden said. Brieden explained that his involvement with the Furthering Asbestos Claims Transparency (FACT) Act, and an American Legion resolution in support of the asbestos claim transparency law, stems from his former leadership role with the legion. The FACT Act passed in the U.S. House of Representatives in March and awaits action in the U.S. Senate. "I wrote a resolution for The American Legion voicing support for the FACT Act. When adopted, The American Legion became a dominant voice speaking for veterans on the issue. The day before the house committee hearing, Politico ran an op-ed I penned and it was on the desk of every committee member the morning of the hearing. It passed committee," he said, adding months later when it calendared for the U.S. House floor, Politico refused to print a revised copy of the op-ed. "We went to the Hill, who ran it," he said. "A copy was placed on every member's desk and it passed." Brieden said the bill will bring transparency to asbestos claims systems. "The attorneys involved are making big money, obviously are lobbying and fighting against it like hell. It has been extremely difficult because of the intense lobbying," Brieden said of said of the "incestuous" sealed, non-disclosable trusts set up and monitored by esquires. As noted in the recent news report, the judge said last year that 13 state attorneys general filed a civil investigative demand with several national asbestos trusts demanding transparency but all trusts declined. "The Department of Defense heavily used asbestos in ships and airplanes and tanks up until the '70s," he said. "It is said one in three people having a problem with asbestos- related illnesses are veterans, so if there is going to be some resolution to this issue veterans need to be at the table. "What is being paid today is half or less than half of what was being paid 25 years ago because the trusts have been sucked down by these guys going around making these multiple claims, all of which can't be true." ASBESTOS UPDATE: Burnt Shed in Nottinghamshire Has Asbestos ----------------------------------------------------------- Isaac Ashe, writing for Nottingham Post, reported that a fire broke out in a shed in Annesley which turned out to contain asbestos. Fire crews from Ashfield and Hucknall stations were called to the structure in Byron Road in the town at around 11:40 p.m., Tuesday, August 22. Racecourse visitor tried to smuggle in vodka in a salami sandwich Two hose reel jets were used to put out the outbuilding by crews wearing breathing equipment. Fire crews from the two stations contained all the contaminated waste water within the garden. Nottinghamshire Fire and Rescue Service reassured residents that their trained teams prevented any asbestos-tainted water from disappearing into the drains. ASBESTOS UPDATE: Madison County Negligent in Dealing with Asbestos ------------------------------------------------------------------ Ken de la Bastide, writing for The Herald Bulletin, reported that the president of Lehman's Inc. said Madison County was negligent by not informing contractors working at the Madison County Government Center that asbestos was prevalent. John Maidlow, president of Lehman's, said the asbestos is a serious concern and he was not at the meeting to "white wash" the problem. During an informal meeting to address the asbestos problem found in the courthouse in July, several employees expressed concerns about the potential risks. County officials said there will be continuous air testing to determine whether any asbestos has become airborne during the entire remodeling process. "Your safety is our main concern," Commissioner Stephanie Owens said. "I'm confident we got on this issue as quickly as possible." The county is considering an abatement program throughout the oldest portion of the building, constructed in 1973. Estimates for the abatement work range from $1 million to $2 million and could take eight months to complete. Maidlow said a 2016 survey of asbestos done by HyrdoTech Environmental Consulting found the asbestos in the building was friable and could bust up and become airborne. "There is product (asbestos) laying all over the place above the duct work," Maidlow said. "The county put my people in harm's way. "You had the report," he said. "If you didn't read it, shame on you." Owens said the commissioners were doing the best they could and will keep workers and the public informed. "We don't know all the answers," she said. "We're doing the best we can to prevent anything from happening from this point on." Madison Circuit Court Division 6 Judge Mark Dudley said that when work was being done to replace the roof of the courthouse, there were people working above the ceiling tile. "Clearly the county knew asbestos was there," he said. "Why was the (air quality) testing done in July and not when the work started? There was not air testing done during that work." Terry Burnworth, president of Pyramid Architecture, said that workers were running electrical wires and the asbestos wasn't disturbed. Burnworth said he wasn't aware of the HydroTech report until after July 4. County Attorney Jeff Graham said the October 2016 report was done at the request of property manager Denny Williamson and given to Human Resources director Melinda Neeley. Williamson said that asbestos was not a problem. "We were not trying to hide the report from the contractors," Graham said. "This could have been handled differently." Graham said two steps will be required to resolve the asbestos issue. He said the first is to make sure the new heating and air conditioning system is providing heat to the building by October. Graham said the county will remediate the problem to get the heat turned on and that the commissioners want to borrow the money to completely abate the asbestos problem in the entire building. Burnworth said the plan is to remediate the asbestos in the areas being worked on to complete the installation of the heating and air conditioning system. "The plan is to not get the product airborne," he said. "Each room will be isolated. It's pretty much dust on the top of the duct work." Burnworth said the encapsulation of the asbestos fire proofing during the heating and air conditioning work will be temporary. Maidlow said any planned remediation would have to be acceptable to his company before work will resume on the heating and air conditioning work. Burnworth said the initial work will be to install coils for the new heating system. "Once the financing is approved for the total remediation the work on the replacement of 400 dampers and 700 lights will take place. That work won't happen until the full abatement takes place." Burnworth said 10 to 20 percent of the asbestos is considered friable and could become airborne. Dudley asked why the asbestos concern wasn't addressed during the bidding process for the work at the courthouse. Burnworth said they were told asbestos was not a problem by the former property manager. Transparency with employees Dudley said the employees are dealing with unknowns. He asked for the air testing to continue and the employees and public be informed of the results. "It would make people feel better," Dudley said. County Councilman Mike Gaskill asked that the commissioners be more transparent with employees and the public. "The county knew about the problem in October 2016," he said. "The employees should have been told a lot sooner. There is a long way to go to be transparent." Gaskill said Commissioner Mike Phipps should have been given a copy of the 2016 report when he took office on Jan. 1. "When he did learn about it, within 48 hours the employees were notified," he said. Graham said the intent of the commissioners is to be "absolutely transparent" going forward. "As we fix this the employees and public will be informed every step of the way," he said. "The HydroTech report was not known by the commissioners until the end of July." Dealing with asbestos OSHA-required work practices when dealing with asbestos: * Class I work means activities in which thermal insulation or surfacing material such as sprayed on fireproof is removed. The situation at the Madison County Government Center. * Class II work means removal of asbestos containing wallboard, floor tile, sheeting, roofing and siding. * Class III work means repair and maintenance jobs where asbestos containing material is likely to be disturbed. * Class IV work means maintenance and custodial activities during which employees contact asbestos containing material. * All Class I, II, III asbestos work must be conducted within regulated areas. These are marked areas that only trained and authorized personnel wearing respirators and other protective equipment may enter. ASBESTOS UPDATE: Judge Lee Issues New MSC for Asbestos Cases ------------------------------------------------------------ Judge Lee, the presiding judge of the San Francisco Asbestos Department, has set forth a new Mandatory Settlement Conference (MSC) system for San Francisco asbestos cases. She stated that she has been frustrated with the failure of the parties to appear with authority, and the lack of progress made during past MSCs. Further, she added that she is aware of the complaints of insurers and defense counsel that there have been too many MSCs in the past. She had considered scrapping asbestos MSCs altogether, but is trying out a new system that she did a trial run on at the start of August. For those cases that have trial preference or are running up to the five-year statute of limitations deadline, the parties are to send an email to Pang Ly (SF court settlement coordinator) detailing an analysis on the case's settlement value, and including disclosure of the individuals with settlement authority. So far, this is scheduled for cases set for trial over the next six weeks, but we anticipate the court making this the new MSC system going forward. ASBESTOS UPDATE: Phoenix Not Covered for $1.5MM Suit Costs ---------------------------------------------------------- Jeff Sistrunk, writing for Law360, reported that a pair of units of The Hartford Financial Services Group Inc. asked the Ninth Circuit to uphold a lower court's decision that they don't have to reimburse the city of Phoenix for nearly $1.5 million it shelled out to defend and settle a lawsuit over a pipe worker's asbestos- related death, saying their coverage didn't kick in because the city settled within its deductible. After settling the underlying litigation over the death of worker Carlos Tarazon from mesothelioma, Phoenix had pursued coverage for its $500,000 settlement payment and almost $1 million in defense costs under a series of "first-layer" excess and umbrella insurance policies issued by four Hartford insurers. In fall 2016, though, an Arizona district judge held that the insurance carriers had no duty to defend or indemnify because Phoenix had settled the Tarazon matter within its $500,000 deductible, adding that the city's defense costs were excluded from coverage. Phoenix is challenging those holdings at the Ninth Circuit, and has argued that the lower court erred in treating its deductible, or self-insured retention, as primary insurance for purposes of determining when the excess policies are implicated. In an answering brief, though, the Hartford insurers said the city is complicating the issues. "The district court concluded there is no ambiguity and the district court is right: where a suit is 'adjusted prior to trial court judgment for a total amount not more than the retained limit [$500,000], then no loss expenses or legal expenses shall be payable by the company(s) [Hartford]," Hartford's attorneys wrote. Tarazon, an underground pipe worker, worked on a number of capital-improvement projects for Phoenix and various companies between 1968 and 1993. He later alleged in litigation against the city and others that his continuous exposure to asbestos on job sites over the years caused him to develop mesothelioma. Following Tarazon's death in 2014, the suit was amended into a wrongful death action. In April 2015, Phoenix agreed to pay $500,000 to settle the Tarazon matter. The city then sought coverage for the settlement payment and $986,000 in defense costs in excess of its $500,000 self-insured retention, or SIR, under a slew of first-layer and umbrella policies issued by the Hartford insurers between July 1981 and July 1985. But Hartford declined, arguing that its obligations wouldn't be triggered until Phoenix had exhausted the SIRs on all the policies implicated by Tarazon's claims. Phoenix proceeded to sue Hartford in Arizona federal court in March 2015. The parties filed competing summary judgment motions early last year, and Senior U.S. District Judge Neil V. Wake ruled in the insurers' favor in September. The district judge found that even if Phoenix's interpretation of its policies was correct, the Hartford insurers would still not have to pay because coverage must be prorated over the entire 25- year period of Tarazon's asbestos exposure, and the city would have to satisfy a $500,000 deductible for each policy period. Under that standard, Phoenix would need to have incurred more than $13 million in expenses before it could tap coverage under the Hartford policies. In an opening appellate brief filed in June, Phoenix contended that Judge Wake's reading of the Hartford policies was based on his misinterpretation of a key policy term and his erroneous belief that the city's SIR functioned as primary insurance. When the policies are construed properly, it is clear that both Phoenix's defense costs and its settlement payment chipped away at and ultimately exhausted the SIR, thereby reaching the first-layer insurers' coverage, the city said. Hartford countered that the excess policies make clear that, when Phoenix settles a legal matter within the $500,000 SIR, the insurers have no obligation to pay any "loss expenses or legal expenses." According to Hartford, the Ninth Circuit doesn't have to look any further to affirm the district court's ruling. But Phoenix has urged the appellate court to look beyond the SIR issue, and is also fighting Judge Wake's adoption of a pro rata allocation method. Instead, the relevant policy language appears to support a "joint-and-several" allocation method, under which the policies in a single year can be held liable for an entire loss, the city contended. Hartford, however, said that if the Ninth Circuit reaches the allocation issue, pro rata is appropriate, as it is the majority rule for asbestos-related claims and is supported by the applicable policy language. "There is no unfairness in allocating defense and indemnity costs pro rata to an insured that elects to self-insure its primary coverage year after year," Hartford's attorneys wrote. "Nor does it make the coverage under Hartford's excess and umbrella policies 'illusory,' as the city rhetorically argues." Phoenix is represented by E.J. Kotalik Jr. and Tracy Renee Nadzieja of Peshkin & Kotalik. The Hartford insurers are represented by Joshua Mayer and James Pio Ruggieri of Shipman & Goodwin LLP and Rob A. Justman of Meagher & Geer PLLP. The case is City of Phoenix v. First State Insurance Co. et al., case number 16-16767, in the U.S. Court of Appeals for the Ninth Circuit. ASBESTOS UPDATE: Ex-Pullman Standard Worker Exposed to Asbestos --------------------------------------------------------------- Lhalie Castillo, writing for Madison-St. Clair Record, reported that a couple has filed suit against several manufacturers over allegations that the husband now has lung cancer because of exposure to asbestos. Charles Reach and Elizabeth Reach filed a complaint on Aug. 8 in the St. Clair County Circuit Court against Armstrong Pumps Inc., Aurora Pump Co., Borg-Warner Morse TEC LLC, CBS Corp., et al alleging negligence. According to the complaint, the plaintiffs allege that during plaintiff Charles Reach's employment from 1964 to 1980 as a welder at Pullman Standard, he was exposed to and inhaled asbestos fibers from certain products manufactured, sold, distributed or installed by defendants. As a result, he was diagnosed with lung cancer in March 2, 2017, an asbestos-induced disease, the suit states. The plaintiffs hold Armstrong Pumps Inc., Aurora Pump Co., Borg- Warner Morse TEC LLC, CBS Corp., et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiffs request a trial by jury and seek judgment against the defendants of more than $50,000, which they allege will fairly and reasonably compensate for the injuries. They are represented by Randy L. Gori and Barry Julian of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 17-L-432 ASBESTOS UPDATE: 2 Schools in Queensland Closed Due to Asbestos --------------------------------------------------------------- CBC News reported that school officials in the James Bay Cree community of Chisasibi in northern Quebec have ordered the temporary closure and cleanup of two schools, after tests revealed the presence of mould and asbestos. "Extensive" repairs will be needed at the recently built Waapinichikush Elementary School because of a mould problem. The building, which cost more than $18 million, opened in 2012. The repairs include removal of mould, repairing faulty flooring, and improving air ventilation. Chisasibi is the largest Cree community, with a population of about 4,500, located at the end of the James Bay Highway, about 1,400 kilometres north of Montreal. "Maintaining a healthy and safe work environment for our students and employees is our priority and a matter that is taken extremely seriously at the Cree School Board," said Abraham Jolly, director general, in a statement. In tests carried out in June, mould and asbestos were also found at the community's high school, James Bay Eeyou School. Both facilities have been closed and crews specialized in the removal of mould and asbestos sent in. The statement says the asbestos at James Bay Eeyou School is contained and therefore poses no health risk, but the decision was made to remove it anyway. "Though there [are] currently no risks associated with the contained asbestos, the school closure is a precautionary measure in case the ventilation system does not provide adequate coverage," Jolly added. Students will miss some days at the start of the school year, with both Waapinichikush Elementary School and James Bay Eeyou School expected to reopen on Aug. 28. Officials say they are working on a plan to make up for the lost school days, without making unnecessary changes to the school calendar. ASBESTOS UPDATE: Union Worried About Safety After Asbestos Find --------------------------------------------------------------- Lawrence Machado, writing for The Daily Telegraph, reported that the Electrical Trades Union is demanding assurances their workers will not be put at risk after asbestos was found at the Sydney Metro Trains Facility at Tallawong Rd, Rouse Hill. The union also wants lung capacity testing undertaken for those working in affected areas, air quality testing for surrounding neighbourhoods, and asbestos awareness training for all workers on the $8.3 billion project. Transport for NSW, however, said the site is now safe and work resumed after being halted, when material believed to be asbestos was found at two locations at the facility. The Rouse Hill station under construction. Picture: Adam Ward Electrical Trades Union secretary Dave McKinley said it is worrying the asbestos was not detected before work commenced several months ago. "We are concerned that more than 100 workers have been exposed to this material," Mr McKinley said. "Let's be perfectly clear, any form of asbestos is potentially deadly. "It appears that the people in charge of this project put budgets and timelines ahead of human lives. "We want to know why this material wasn't detected in pre-work surveys and where the register of hazardous materials that it should appear on has gone." The new rail overpass across Windsor Road at Rouse Hill is similar in design to the Anzac Bridge in Sydney. Picture: David Swift Transport for NSW, however, said when the asbestos was confirmed on site, the area was closed off. "On August 15, testing results confirmed that it was bonded asbestos," a TfNSW spokesman said. "The area has remained isolated with no work permitted to be undertaken in this location to ensure the safety of the workforce as per standard protocols for when this type of finding occurs. "Some asbestos has been safely removed from site and remaining material continues to be isolated on site. "Air quality monitoring has been completed on site the morning of August 18." Mr McKinley said they have been unable to locate the hazardous materials register for the site, which head contractor NRT Project -- a consortium of John Holland, Cimic, Leightons and UGL -- are required by law to maintain. "Given that there has been heavy machinery operating in the nearby area, it's hard to see how it would not have become loose and airborne," Mr. McKinley said. "We also fear that visitors to the Buddhist temple (at Schofields) that backs onto the site along with local residents could have also been exposed." Mr. McKinley said he wanted an explanation of why workers were sent back to affected areas after the initial discovery, and demanded an agreed independent hygienist survey all Sydney Metro North West sites to determine their safety. The ETU is urging anyone who may have potentially been exposed, either because they worked on the project or live in the surrounding area, to sign up to the national asbestos exposure register. ASBESTOS UPDATE: Asbestos-related Work Site Violations on Rise -------------------------------------------------------------- Jeremy Shepherd, writing for North Shore News, reported that barricade tape is used by removal specialist Actes Environmental at a job site in North Vancouver. Contractors who cut corners with asbestos put lives in danger. That's the message from WorkSafeBC after the agency issued more asbestos-related stop work orders and fines in the first eight months of 2017 than in all of 2016. Preventing exposure today "will prevent the disease in the future," said WorkSafeBC vice-president Al Johnson. More than 600 British Columbian workers died from asbestos-related disease in the past decade. In 2016, more than one-third of the 164 construction deaths in B.C. stemmed from asbestos-related illness. Asbestos is set to be banned in Canada in 2018 but workers still face exposure as escalating property values have triggered a rash in home demolitions, Johnson noted. The risk is acute in homes built before 1990, as asbestos was used in more than 3,000 building materials. WorkSafeBC levelled a $3,959 fine on Living Balance International Trading Ltd. in July during a North Vancouver demolition job. The penalty came after a report revealed asbestos-containing materials where labourers had already begun work. The firm also failed to inspect the site to identify hazardous materials before beginning demolition, according to WorkSafeBC. The agency also slapped a $3,528 fine on CM Environmental Inc. after their asbestos abatement work failed to remove all asbestos from a North Vancouver home prior to demolition. The fines are intended to encourage businesses to do things properly, Johnson explained. "You want to motivate the employer into compliance and a penalty can do that," he said. "But it's not about making money." While penalties can jump into the $100,000 range, levelling large fines on small contractors can push companies into an underground economy, Johnson warned. Given the widespread use of asbestos in older homes and the recent proliferation of demolition permits, enforcement can be a challenge. "We can't be everywhere just because of the volume," Johnson said. Instead of surveying every demolition site, WorkSafe is trying to engage homeowners and contractors to handle hazardous materials properly. "We're in the business of catching employers doing it right, we're not in the business of catching them doing it wrong," he said. However, in particularly egregious cases WorkSafeBC can issue a stop-operations order, shutting down every job site in which a certain contractor is involved. Johnson was also adamant that workers reject dangerous conditions. "Not only is it a right, it's a responsibility to refuse unsafe work," he said. If a worker sees a serious injury, chemical release, or general unsafe conditions, they can call WorkSafeBC at 604-276-3100. Workers have the option to remain anonymous. WorkSafeBC also provides safeguards to ensure whistleblowers aren't treated unfairly, Johnson explained. Once described as a miracle mineral, Chrysotile, or white asbestos, was mined and widely used for insulation and fireproofing. Toxic asbestos fibres can be released during renovation or demolition work. Asbestos was sprayed on many of the beams that supported buildings erected in the 1960s and '70s, Johnson noted. The prevalence in asbestos resulted in many workers suffering scarring of the lungs as well as mesothelioma, a cancer that can develop as late as 40 years after asbestos exposure. ASBESTOS UPDATE: Simmons Secures $4.6MM Jury Verdict vs. Jenkins ---------------------------------------------------------------- Simmons Hanly Conroy, one of the nation's leading mesothelioma law firms, is pleased to announce a New York Supreme Court jury has awarded $4.6 million to Thomas McGlynn of Tobyhanna, Pa., who suffers from mesothelioma, a rare and aggressive cancer caused by exposure to asbestos fibers. McGlynn, 75, contracted mesothelioma after working with asbestos-contaminated valves manufactured by Jenkin Bros. of Hartford, Conn. Firm shareholders Daniel P. Blouin, Jim Kramer, Brian J. Cooke and Karoline Carstens represented McGlynn and his family in Thomas McGlynn v. Jenkins Bros., No. 16-190219. As a welder, McGlynn was exposed to valves manufactured by Jenkins Bros. that contained asbestos-contaminated gaskets, packing and insulation while building and rehabbing boiler rooms on ships in and around New York City in the 1970s and '80s. He was diagnosed with pleural mesothelioma on May 16, 2016. Expert testimony during the trial linked McGlynn's exposure to asbestos fibers. "While no amount of money can give Thomas back his health, we are extremely pleased that Jenkins Bros. is being held accountable for knowingly exposing Thomas to cancer-causing asbestos," said Blouin, lead trial attorney on the case. "We hope this result brings some relief to Thomas and his family." The verdict holds Jenkins Bros. partially responsible for McGlynn's exposure to asbestos but applies 100 percent liability to the company for what the jury called "reckless" behavior in exposing McGlynn to the deadly carcinogen. Founded in 1868, Jenkins Bros. is now a part of Liberty Mutual Group, Inc. and was a manufacturer of valves and rubber goods. Jenkins was represented by Clyde & Co, one of the largest defense law firms in the world. Michael and Anna Idell, close family friends who have been caring for McGlynn since he was diagnosed, testified at trial and said the result was important for all workers. "We hope today sends a message to companies to put people's safety first," said Michael Idell. McGlynn's son, Craig, lives in New Jersey and is in the Plumbers Union Local 24. McGlynn emigrated with his wife, Agnes Cummings McGlynn, from Scotland to the United States in 1970. Agnes McGlynn died in 2012. Another son, Mark, is deceased. About Simmons Hanly Conroy, LLC Simmons Hanly Conroy dedicates its legal practice to helping victims of mesothelioma. As one of the nation's largest mass tort law firms, Simmons has represented thousands of patients and families affected by mesothelioma throughout the country. Additionally, the firm's attorneys have been appointed to leadership in numerous national multidistrict litigations involving dangerous drugs, medical devices and consumer protection issues, including Vioxx, Yaz, Volkswagen Emmissions and DePuy Pinnacle. Since 1999, the firm has pledged over $20 million to cancer research and been a leading supporter of mesothelioma research asbestos exposure prevention. Read more at www.simmonsfirm.com. Jenkins Bros. is represented by Clyde & Co. The case is Thomas McGlynn v. Jenkins Bros., case number 16- 190219, in the Supreme Court of the State of New York, New York County. ASBESTOS UPDATE: Asbestos Confirmed in Innisfil Library ------------------------------------------------------- Janis Ramsay, writing for Innisfil Journal, reported that the town is going to err on the side of caution with its latest tests revealing asbestos is in the Stroud branch of the Innisfil IdeaLAB and Library. "The building is from the mid-'70s, and with aging infrastructure of that time, we could expect to see the possibility of asbestos," operations supervisor Mark Neilson said. "In preparation for the possibility of major renovations, we did a hazardous building materials assessment in late October." At the Stroud library and the recreation centre, asbestos was contained to the insulating material in the cinder block outer walls, Neilson said. "Upon finding amounts of asbestos in the building, we hired a consultant who has a management program. We brought them on board right away." While there aren't immediate plans to renovate the Yonge Street library, part of the town's recreation master plan is to examine the future of the aging building. Neilson said the presence of asbestos doesn't increase a risk of exposure to library staff, patrons or workers. "It's not a hazard unless you disturb it. If you disturb it, it can become a hazard," he said. "We made our staff aware of it and did management training, and we make any contractor doing work aware of it." ASBESTOS UPDATE: 5th Cir. Nixes $2.5MM Excess Coverage Ruling ------------------------------------------------------------- Jeff Sistrunk, writing for Law360, reported that the Fifth Circuit vacated an order requiring excess insurer U.S. Fire Insurance Co. to pay $2.5 million to a primary carrier to cover the cost of asbestos claims against a custom fabricator, finding that a pollution exclusion in U.S. Fire's policy applies to the claims, but that a lower court must decide whether an exception to the exclusion is in play. Upending a Texas federal court's judgment in favor of primary insurer Trinity Lloyd's Insurance Co., a three-judge panel of the appellate court agreed with U.S. Fire that claims tied to policyholder LGS Technologies Inc.'s asbestos liabilities line up with the terms of the pollution exclusion in the excess policy. "Though the case law is mixed, we conclude, under the plain language of the policy exclusion, that asbestos constitutes a pollutant and an irritant," the panel found. However, the panel sent the case back to the lower court to determine whether an exception to the pollution exclusion for releases of pollutants that are "sudden and accidental" applies; if so, U.S. Fire may still have coverage obligations. LGS filed suit in Texas district court in September 2007 after U.S. Fire denied its claims for reimbursement of defense costs in a slew of suits filed by individuals who were allegedly injured upon exposure to LGS' asbestos-containing gaskets. Trinity later intervened in the coverage matter in November 2008, seeking to force U.S. Fire to reimburse it for millions of dollars in defense and indemnity payments it had made on LGS' behalf. In the years that followed, the district court issued several rulings on key coverage issues. The lower court held in September 2010 that vertical exhaustion should apply in the case -- meaning that LGS need only deplete the primary policies in a given year to reach the excess insurance in that year -- and that the underlying plaintiffs' first exposure to asbestos triggered coverage under LGS' policies. Then, in March 2012, the court declined to find that a pollution exclusion in U.S. Fire's excess policies freed the insurer from any coverage obligations, concluding that asbestos isn't a pollutant. Last October, the district court adopted a special master's report and recommendation and said that Trinity is entitled to about $904,000 from U.S. Fire for settlement payments it made on LGS' behalf in the underlying litigation and $1.56 million for defense costs. The special master had calculated those amounts after determining that the limit of a Trinity primary policy covering a period from 1983 to 1984 had been exhausted, thereby implicating coverage under a U.S. Fire excess policy. In the ensuing appeal to the Fifth Circuit, U.S. Fire and Trinity duked it out over a variety of issues, including the proper exhaustion method, the correct trigger of coverage and the applicability of the pollution exclusion in the excess policy. While the insurers suggested that the appeals court should first determine the proper exhaustion method before weighing their other arguments, the appellate panel decided to rule solely based on its interpretation of the pollution exclusion. Noting that neither the Fifth Circuit nor the Texas Supreme Court has ever determined whether asbestos is a pollutant, the panel compared the language in U.S. Fire's pollution exclusion to dictionary definitions of the term and pertinent case law on the out of other states. While case law has varied on the subject, overall it seems to "slightly favor" treating asbestos as a pollutant; particularly where, as here, the pollution exclusion uses the words "irritant, contaminant or pollutant," according to the panel's unpublished opinion. Therefore, the underlying claims against LGS fall under the U.S. Fire pollution exclusion because, consistent with the exclusionary language, the claims pertained to bodily injury arising out of "the discharge, dispersal, release or escape into the atmosphere" of an irritant and pollutant, the appellate panel held. Trinity had argued that, even if the pollution exclusion in U.S. Fire's policy is implicated, the excess insurer must still provide coverage by virtue of the "sudden and accidental" exception to the exclusion. The Fifth Circuit panel declined to rule on that issue, and instead returned the case to the district court to rule on whether the exception applies. Brent Cooper of Cooper & Scully PC, who represents Trinity, said that, although the case involved both the duty to defend and duty to indemnify, the Fifth Circuit applied the standards for the duty to indemnify to both. "This conflicts with Texas Supreme Court holdings and other holdings of the Fifth Circuit," Cooper said. An attorney for U.S. Fire did not immediately respond to a request for comment. Senior Circuit Judge Thomas Morrow Reavley and Circuit Judges Jennifer Walker Elrod and James E. Graves Jr. sat on the panel. U.S. Fire is represented by Thomas C. Wright, Howard L. Close, Henry S. Platts Jr. and Raffi Melkonian of Wright & Close LLP. Trinity is represented by Richard Brent Cooper, Diana L. Faust and Wesley G. Johnson of Cooper & Scully PC and Damon Michael Young Sr. of Young Pickett & Lee. The case is Longhorn Gasket and Supply Co. et al. v. United States Fire Insurance Co., case number 15-41625, in the U.S. Court of Appeals for the Fifth Circuit. ASBESTOS UPDATE: Man Files Suit vs. Beazer Over Asbestos Exposure ----------------------------------------------------------------- Lhalie Castillo, writing for Madison-St. Clair Record, reported that a man formerly employed by Island Creek Coal Co. and National Steel Corp./U.S. Steel alleges exposure to asbestos at these locations caused him to develop lung cancer. Roy Colegrove and Sherrie Colegrove filed a complaint on Aug. 10 in the St. Clair County Circuit Court against AK Steel Corp., Armstrong International Inc., Beazer Inc., et al. alleging negligence. According to the complaint, the plaintiffs allege that during Roy Colegrove's career from 1969 to 2003, he was exposed to and inhaled asbestos fibers from certain products manufactured, sold, distributed or installed by defendants. As a result, the suit states he was diagnosed with lung cancer on May 5, 2017, an asbestos-induced disease. The plaintiffs holds AK Steel Corp., Armstrong International Inc., Beazer Inc., et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiffs seek economic damages of more than $50,000, costs of this suit and all other remedies allowed by law. They are represented by Randi L. Gori and Barry Julian of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 17-L-440 ASBESTOS UPDATE: Woman Alleges Cancer Caused by Asbestos Exposure ----------------------------------------------------------------- Lhalie Castillo, writing for Madison-St. Clair Record, reported that a woman alleges that her lung cancer was caused by asbestos exposure during her career. Sonia Harrison filed a complaint on Aug. 8 in the St. Clair County Circuit Court against the Armstrong Pumps Inc., BMI Refractory Services Inc., Cleaver-Brooks, Cooper Industries LLC, et al. alleging negligence. According to the complaint, the plaintiff alleges that during her employment from 1973 to 2008, she was exposed to and inhaled asbestos fibers from certain products manufactured, sold, distributed or installed by defendants. As a result, she alleges she was diagnosed with lung cancer on Aug. 24, 2015, an asbestos- induced disease. The plaintiff holds Armstrong Pumps Inc., BMI Refractory, Cleaver- Brooks, Cooper Industries LLC, et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiff seeks damages of more than $50,000 from the defendants. She is represented by Randy L. Gori and Barry Julian of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 17-L-429 ASBESTOS UPDATE: Construction Co. Fined for Asbestos Release ------------------------------------------------------------ A construction company that risked exposure to asbestos and potential mesothelioma among its employees and those near its demolition project has been hit with heavy fines and three years of probation by the Environmental Protection Agency. The U.S. Department of Justice announced that AIREKO Construction Company had entered into a plea agreement following its failure to comply with the asbestos National Emission Standards for Hazardous Air Pollutants while working on the Minillas North Tower in San Juan, Puerto Rico in 2012. According to a news release, in addition to facing three years of probation for violating the federal Clean Air Act and paying the government a $1.5 million fine, AIREKO must also pay $172,020 to provide for baseline medical examinations for all those who were exposed to asbestos fibers, as well as follow-up medical examinations. Inhalation or ingestion of asbestos fibers can cause mesothelioma, a rare and deadly form of cancer that has no cure. According to EPA documents, the presence of asbestos on the construction site was first noted by AIREKO employees, but the company did not report its presence as the law requires. Following that, the EPA investigated the project and found that asbestos had been released. Cleanup of the site took over one year, and the failure to report the contamination led to the company's vice president paying a fine and serving a six-month probation. According to Rosa Emilia Rodriguez-Velez, U.S. attorney for the District of Puerto Rico, "The Clean Air Act requires that construction companies follow specific protocols designed to safely remove asbestos prior to any renovation or demolition activity so as not to expose anyone to the risk of deadly respiratory diseases, and AIREKO Construction Company failed to do so by exposing those who worked at Minillas to asbestos materials. The U.S. Attorney's Office will continue to work with all victims who were exposed to the asbestos." Tyler Amon, special agent-in-charge for EPA's Criminal Investigation Division in New York added, "Asbestos exposure can cause cancer, lung disease, and other serious respiratory diseases. In this case, AIREKO Construction avoided hiring trained and certified asbestos abatement professionals. AIREKO did the work 'on the cheap,' willfully putting workers and others at risk. We will not allow businesses to cut corners on environmental protection at the expense of people's health." If you or someone you love has been exposed to asbestos, then the risk of mesothelioma is very real. For information on steps to take to protect yourself, contact the Patient Advocates at Mesothelioma.net today. We can be reached at 1-800-692-8608. ASBESTOS UPDATE: Stoush Erupts Over Asbestos Claims at Mills ------------------------------------------------------------ Cathy Adams, writing for Northern Star, reported that the CEO of Sunshine Sugar has denied union allegations it put workers at risk of asbestos exposure, in response, labelling the union bullies. The Electrical Trades Union issued a press release saying three sugar mills at Condong, Broadwater and Harwood had been issued with safety notifications over asbestos fears. They said Sunshine Sugar, which operates the three sugar mills in northern NSW, had been issued with a series of safety rectification notices after a union investigation found broken and badly degraded asbestos sheeting. They said it was potentially exposing workers and the public to the risk of inhaling deadly asbestos fibres. Sunshine Sugar CEO Chris Connors said the press release was "simply inaccurate". He said: "ETU have failed to reveal Sunshine Sugar has systems in place which are compliant with the Act and the Code of Practice. "As with many of the buildings in Northern New South Wales, we acknowledge that we have asbestos sheeting in parts of the mills. We have a register of all asbestos-containing material and have formal procedures to deal with it." The union said officials conducted safety inspections of the mills after workers raised concerns that management had failed to respond to their concerns in relation to the presence of dangerous, friable asbestos fibres. The Electrical Trades Union said the inspection located a number of serious asbestos safety breaches, including: broken asbestos pieces on the ground in public access areas next to the Broadwater mill; corrugated asbestos sheeting that contained holes, cracks, and visible asbestos fibres; and broken asbestos sheeting in a lunchroom that had simply been covered with clear contact sheets rather than being properly remediated. They said as a result of the inspections, a number of safety rectification notices were issued under the Work Health and Safety Act regarding asbestos safety breaches at the Condong and Broadwater mills. ETU secretary Dave McKinley said the company had been notified by workers of their asbestos concerns in July but had failed to act, with the CEO claiming it was because the wrong form had been used. "Even a tiny exposure to asbestos fibres, which lodge deep in the lungs, can be enough to cause deadly cancers and other debilitating asbestos-related diseases," Mr McKinley said. "Both the Condong and Broadwater mills are constructed with large amounts of asbestos cement sheeting, but natural weathering and age have resulted in these products breaking down, releasing friable asbestos fibres which can easily become airborne and be inhaled. "In the short term, the company needs to immediately remove the damaged products, but they also need to move towards a plan for full asbestos removal and remediation to avoid similar incidents occurring in future. "We have also been disappointed that management tried to pass the blame for their failure onto staff, with the CEO claiming the reason no action was taken was because a worker used the incorrect form to report the issue." Sunshine Sugar said they have three mills Condong, Harwood and Broadwater, which Unions have been visiting over July. Sunshine Sugar said at Harwood, the CFMEU inspected the site and in fact congratulated the team on their policies and management of asbestos. Mr Connors said in regards to "the isolated issue at Broadwater", there was a small piece of sheeting that had been broken. The employee who noticed the issue did not follow correct procedures. If the correct procedures had been followed, action to manage the safety risk would have commenced immediately. "The issue was dealt with quickly upon the employee advising about the form he had filled out (whilst at an EBA negotiating team meeting). The area was barricaded off and a qualified contractor engaged to manage any exposure risk. We subsequently had testing undertaken, including airborne testing, which showed that there was no asbestos in the air. Zero. We have advised all employees of this,' he said. "At Condong, the ETU have never raised any issues regarding Asbestos. Their staff have entered the site on the basis of a bullying claim -- to which they found nothing. They then attempted to raise electrical issues, which our employees rejected". Mr Connors said Sunshine Sugar staff and management continue to be frustrated by the conduct of the ETU during their recent visits. He said they " have been extremely aggressive and targeting not only management but also their own members. They are the ones that have effectively been bullying the employees. They have shown total disrespect to the electrical tradespeople on-site who actually challenged them on their statements". "Their press release is simply incorrect." ASBESTOS UPDATE: Asbestos Found in Madison County Govt Center ------------------------------------------------------------- Ken de la Bastide, writing for The Herald Bulletin, reported that Madison County is starting the process to remediate asbestos in the Madison County Government Center, after the substance was discovered during the installation of a new heating and cooling system. The asbestos in the building, constructed in 1973, was first discovered in October 2016 in a survey report completed by HydroTech Environmental Consulting & Engineering at the request of former property manager Denny Williamson. That survey found the presence of asbestos on sprayed-on fireproofing material. The inspection determined the fireproofing material was considered to be friable, which can become airborne if disturbed. The fireproofing material was sprayed on structural steel beams and columns throughout the building, located on ceilings and walls in various rooms and on plumbing pipes above the dropped ceiling tiles. In a press release, the Madison County Commissioners said that during the installation of the new heating and cooling system, asbestos insulation was detected in crawl spaces above some of the ceilings. The county hired Micro Air in July to measure the level asbestos fibers in the courthouse. "The Micro Air report showed that no asbestos was present in any air samples collected in the Government Center," the statement said. "Further, Micro Air believes that 'airborne asbestos contamination is currently not an area of concern.'" Remediation of the asbestos will have to take place before the installation of the new heating and cooling system can be completed. John Richwine, president of the Madison County Board of Commissioners, said he wasn't aware of the 2016 asbestos survey until the material was discovered in the courthouse. "We were told there wasn't any asbestos there when we started to place the heating and air conditioning system," he said. "Once it was discovered we did the air quality testing. "It's not an issue," Richwine said. "The asbestos is in the fireproofing of the building." The county was advised not to do any further work or disturb the sprayed-on fireproofing until remediation can be completed for the removal of the material. "The question is long-term," Richwine said. "Do we remediate the immediate areas or the entire building? In the meantime, we will do the areas impacted and the remainder of the building can be completed in the future." Commissioner Mike Phipps said he was notified of the asbestos problem in the Government Center by county attorney Jeff Graham. Phipps said he doesn't know who Williamson might have informed about the 2016 survey. "I think it is very concerning," he said. "There is a problem at the courthouse. Someone was aware that there was asbestos in the building." Phipps said no asbestos fibers were discovered in the air circulating in the building. "We need to be transparent," he said. ASBESTOS UPDATE: NY App. Div. Affirms Duro Indemnity Contribution ----------------------------------------------------------------- The Appellate Division of the Supreme Court of New York issued a decision and order affirming the order of the Supreme Court, Suffolk County, dated July 10, 2014. The appealed Order: (1) insofar as appealed from by the defendants Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machinery Corporation, denied their motion for summary judgment declaring that Policy No. 5030356707 issued by the plaintiff does not include an endorsement excluding asbestos-related liability, and, in effect, denied their separate motion for summary judgment declaring that they are not required to contribute to their own defense costs in underlying litigation; (2) insofar as appealed from by the defendant Federal Insurance Company, failed to determine those branches of its cross motion which were for summary judgment dismissing the fourth cross claim of the defendants Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machinery Corporation insofar as asserted against it, and failed to determine those branches of its cross motion which were for certain declarations, (3) insofar as appealed from by the defendant MidStates Reinsurance Corporation, formerly known as Mead Reinsurance Corporation, failed to determine those branches of its cross motion which were for summary judgment dismissing the first, second, third, and fourth cross claims of the defendants Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machinery Corporation insofar as asserted against it, and failed to determine those branches of its cross motion which were for certain declarations, (4) insofar as cross-appealed from by the plaintiff, denied that branch of its cross motion which was for summary judgment declaring that the defendants Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machinery Corporation are immediately required to contribute to their own defense costs in underlying litigation, and (5) insofar as cross-appealed from by the defendant Hartford Accident & Indemnity Company, failed to determine that branch of its cross motion which was for summary judgment declaring that the defendants Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machinery Corporation did not show exhaustion of its primary coverage policies so as to trigger its defense obligations. The Duro Defendants have been named as defendants in hundreds of lawsuits throughout the United States in which the plaintiffs seek to recover damages for injuries allegedly sustained as a result of exposure to asbestos contained in products manufactured and/or distributed by the Duro defendants from the 1950s through the 1970s. The plaintiff, North River Insurance Company, issued several primary insurance policies and umbrella excess liability policies to the Duro Defendants. North River commenced a declaratory judgment action against the Duro Defendants and other insurance carriers from which the Duro Defendants purchased general liability insurance policies and umbrella or excess insurance policies, seeking a determination of North River's obligation, if any, to defend and/or indemnify the Duro Defendants in connection with the underlying lawsuits. In an order dated July 10, 2014, the Supreme Court, inter alia, denied the Duro Defendants' motion for summary judgment declaring that Policy No. 5030356707 issued by North River does not include an endorsement excluding asbestos-related liability, and, in effect, denied the Duro Defendants' separate motion for summary judgment declaring that they are not required to contribute to their own defense costs in the underlying litigation. The Court also denied that branch of North River's cross motion which was for summary judgment declaring that the Duro Defendants are required to immediately contribute to their own defense costs in the underlying litigation. The Appellate Court finds the affidavit submitted by the Duro Defendants' president Randall S. Hinden, as insufficient to demonstrate the absence of any triable issues of fact with respect to whether the asbestos exclusion was properly added to the policy. The Appellate Court also notes that the Duro Defendants cannot rely upon the affidavit of the vice president of the Duro Defendants' insurance broker, Wayne D. Nowland, which was submitted by the Duro Defendants for the first time in their reply papers. As such, the Appellate Court determines that the Duro Defendants' failure to make a prima facie showing of entitlement to judgment as a matter of law requires the denial of its motion, regardless of the sufficiency of North River's opposition papers. The Appellate Court finds that Supreme Court properly denied that part of North River's cross motion which was for summary judgment declaring that the Duro Defendants are immediately required to contribute to their own defense costs in the underlying litigation for periods that they lacked insurance. The Court also finds that the Supreme Court properly rejected the Duro Defendants' contention that they should not be required to contribute to their defense for the periods that they were uninsured on the ground that the insurance carriers who are parties to this appeal effectively waived any claim for contribution of defense costs from the Duro Defendants by paying those costs in full for 20 years. The Appellate Court explains that "a waiver is the voluntary and intentional abandonment of a known right." Here, the Court points out that the Duro Defendants conceded that as early as August 1990, several of the insurers asserted that the Duro Defendants should contribute toward the defense and indemnity costs of the underlying litigation, thereby evincing that these insurers did not intend to waive any right they may have to seek contribution from the Duro Defendants during those periods that the Duro Defendants were uninsured. The Appellate Court also notes that the Duro Defendants are not protected by the principle of estoppel because estoppel "requires proof that the insured has suffered prejudice by virtue of the insurer's conduct." The Court finds, however, there is no basis to estop the insurers from seeking contribution from the Duro Defendants because the Duro Defendants failed to show any prejudice resulting from the insurers' conduct. The appealed case is NORTH RIVER INSURANCE COMPANY, Plaintiff- Respondent-Appellant, v. DURO DYNE NATIONAL CORPORATION, ET AL., Defendants-Appellants-Respondents, HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Respondent-Appellant, ET AL., Defendants, 2014- 08924, Index No. 62947/13, (N.Y. App. Div.). A full-text copy of the Decision & Order dated August 23, 2017, is available at https://is.gd/zNI9rM from Leagle.com. Anderson Kill P.C., New York, NY (William G. Passannante, Cort T. Malone, Vivian C. Michael, and Edward J. Stein of counsel), for defendants-appellants-respondents Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machinery Corporation. DLA Piper LLP (US), New York, NY (Aidan M. McCormack and Cyril E. Smith of counsel), for defendant-appellant-respondent Federal Insurance Company. London Fischer LLP, New York, NY (James T. H. Deaver, Perry Kreidman, and David B. Franklin of counsel), for defendant- appellant-respondent MidStates Reinsurance Corporation, formerly known as Mead Reinsurance Corporation. Carroll McNulty & Kull LLC, New York, NY (Christopher R. Carroll, Michael J. Tricarico, Christina R. Salem, and Margaret F. Catalano, pro hac vice, of counsel), for plaintiff-respondent- appellant. Jaspan Schlesinger LLP, Garden City, NY (Stanley A. Camhi of counsel), and Shipman & Goodwin, LLP, New York, NY (James P. Ruggeri of counsel), for defendant-respondent-appellant (one brief filed). ASBESTOS UPDATE: PI Claims vs. Volkswagen Dismissed in "Haynes" --------------------------------------------------------------- Magistrate Judge Sherry R. Fallon of the U.S. District Court for the District Delaware recommends granting the motion to dismiss for lack of personal jurisdiction filed by defendant Volkswagen Group Of America, Inc., in the case captioned HAROLD and JUDY HAYNES, Plaintiffs, v. AIR & LIQUID SYSTEMS CORP., et al., Defendants, Civil Action No. 16-607-ER (D. Del.), because the Plaintiffs have not met their burden of establishing, with reasonable particularity, that sufficient minimum contacts have occurred between Volkswagen and the forum to support jurisdiction. The Plaintiffs Harold and Judy Haynes filed this asbestos action in the Delaware Superior Court against multiple defendants on June 3, 2016, asserting claims arising from Mr. Haynes' alleged harmful exposure to asbestos. The Plaintiffs allege that Mr. Haynes developed lung cancer as a result of exposure to asbestos- containing products during his career as an auto mechanic for Volkswagen dealerships in Washington and Oregon from approximately 1964 to 1980. The Plaintiffs contend that the Defendants manufactured, sold, removed, installed, or distributed asbestos- containing products. On July 15, 2016, Defendant Crane Co. removed the action to the U.S. District Court for the District Delaware. On February 17, 2017, Volkswagen filed a motion to dismiss based on lack of personal jurisdiction. Plaintiffs did not respond to the motion. Consequently, on March 13, 2017, counsel for Volkswagen sent a letter to the court seeking dismissal in light of Plaintiffs' failure to oppose its motion to dismiss. In the complaint, Plaintiffs state that Volkswagen is a foreign business entity that does business in Delaware. However, this statement is conclusory and falls short of demonstrating either specific or general jurisdiction that comports with due process. Moreover, the Plaintiffs did not respond to Volkswagen's motion to dismiss. The Court finds that specific personal jurisdiction over Volkswagen does not exist in the present case considering Plaintiffs allege that Mr. Haynes was exposed to asbestos- containing products outside of Delaware -- during his time as an auto mechanic for Volkswagen dealerships in Washington and Oregon. In addition, the Court finds that Plaintiffs do not allege that any wrongful conduct by Volkswagen occurred in Delaware. Moreover, Mr. Haynes is a resident of Oregon, not Delaware. Thus, the Court concludes that there is no nexus between the alleged injurious conduct, the defendant, and the State of Delaware. Likewise, the Court rules that general jurisdiction also does not exist over Volkswagen in the present case because Volkswagen is incorporated in New Jersey, and has its principal place of business in Virginia. Therefore, the Court settles that Volkswagen is not "at home" in Delaware. Moreover, the Court quotes the Delaware Supreme Court in Daimler (134 S. Ct. at 749) which recently rejected the notion that "a corporation is subject to general jurisdiction in every state in which it 'engages in a substantial, continuous, and systematic course of business' calling that position 'unacceptably grasping.'" A full-text copy of the Report and Recommendation dated August 22, 2017, is available at https://is.gd/lgTbYr from Leagle.com. Harold Haynes, Plaintiff, represented by Adam Balick, Balick & Balick, LLC. Harold Haynes, Plaintiff, represented by Michael Collins Smith, Balick & Balick, LLC, Andrew Caulfield Dalton, Dalton & Associates P.A. & Bartholomew J. Dalton, Dalton & Associates P.A.. Judy Haynes, Plaintiff, represented by Adam Balick, Balick & Balick, LLC, Michael Collins Smith, Balick & Balick, LLC, Andrew Caulfield Dalton, Dalton & Associates P.A. & Bartholomew J. Dalton, Dalton & Associates P.A.. Air & Liquid Systems Corporation, Defendant, represented by Barbara Anne Fruehauf. Aurora Pump Company, Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC. BorgWarner Morse TEC LLC, Defendant, represented by Matthew P. Donelson, Eckert Seamans Cherin & Mellott, LLC. FMC Corporation, Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Honeywell International Inc., Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. IMO Industries, Inc., Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Viking Pump, Inc., Defendant, represented by Barbara Anne Fruehauf. Volkswagen Group of America, Inc., Defendant, represented by Christian J. Singewald, White & Williams & Timothy S. Martin, White & Williams. Warren Pumps LLC, Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Armand Porta, Kelley, Jasons, McGuire & Spinelli, Jennifer D. Donnelly, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. Honeywell International Inc., Cross Claimant, represented by Joelle Florax, Rawle & Henderson LLP. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. FMC Corporation, Cross Claimant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Cross Claimant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Claimant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Aurora Pump Company, Cross Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Warren Pumps LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand Porta, Kelley, Jasons, McGuire & Spinelli, Jennifer D. Donnelly, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. Air & Liquid Systems Corporation, Cross Claimant, represented by Barbara Anne Fruehauf. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Aurora Pump Company, Cross Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC. BorgWarner Morse TEC LLC, Cross Defendant, represented by Matthew P. Donelson, Eckert Seamans Cherin & Mellott, LLC. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Warren Pumps LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand Porta, Kelley, Jasons, McGuire & Spinelli, Jennifer D. Donnelly, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. Maremont Corporation, Cross Claimant, represented by Barbara Anne Fruehauf. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Aurora Pump Company, Cross Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC. BorgWarner Morse TEC LLC, Cross Defendant, represented by Matthew P. Donelson, Eckert Seamans Cherin & Mellott, LLC. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Warren Pumps LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand Porta, Kelley, Jasons, McGuire & Spinelli, Jennifer D. Donnelly, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. Viking Pump, Inc., Cross Claimant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Aurora Pump Company, Cross Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC. BorgWarner Morse TEC LLC, Cross Defendant, represented by Matthew P. Donelson, Eckert Seamans Cherin & Mellott, LLC. FMC Corporation, Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Honeywell International Inc., Cross Defendant, represented by Joelle Florax, Rawle & Henderson LLP & Stephanie Michelle Smith, Rawle & Henderson LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Warren Pumps LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand Porta, Kelley, Jasons, McGuire & Spinelli, Jennifer D. Donnelly, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. ASBESTOS UPDATE: Bid for Rule 11 Sanctions vs. Borg-Warner Denied ----------------------------------------------------------------- Judge Marcia Morales Howard of the U.S. District Court for the Middle District of Florida denies Stacey Doolin's Motion for Sanctions against Defendant Borg-Warner Morse TEC LLC filed on August 31, 2016, because despite the ultimate weakness of Morse TEC's Motion to Dismiss, abuse of the Court's resources which is punishable under Rule 11 did not occur. Plaintiff Stacey Doolin commenced this wrongful death action on behalf of her late husband, Richard E. Doolin, alleging that the Decedent was exposed to asbestos-containing products "manufactured, sold, supplied and/or distributed" by a number of corporations -- including Morse TEC -- beginning in 1970 and continuing until 1983. During this time, the Decedent's father worked as a mechanic. Plaintiff avers that the Decedent visited his father's workplace on a "frequent and continuous basis," while the Decedent's father and others worked with asbestos-containing products, including, but not limited to, brakes, clutches, and gaskets. The Plaintiff contends that, during these visits, the Decedent himself also sometimes performed "brake and clutch work." Subsequently, in or around June of 2013, the Decedent was diagnosed with mesothelioma, which the Plaintiff alleges resulted from his "exposure to and inhalation of asbestos" from the asbestos-containing products. As a result of his mesothelioma, the Decedent died on or about June 22, 2014, at the age of forty- three. On August 9, 2016, Morse TEC filed its Motion to Dismiss Plaintiff's Amended Complaint, seeking dismissal for failure to satisfy the pleading requirements of Florida's Asbestos Act. On August 16, 2016, Morse TEC filed a Motion for Leave to Amend or Supplement Its Motion to Dismiss Plaintiff's Amended Complaint and Incorporated Memorandum of Law in Support, which the Plaintiff opposed. Subsequently, the Court denied Morse TEC's Motion for Leave to Amend, noting that under Rule 12(g)(2), Morse TEC was estopped from "raising new defenses or objections that were available but omitted from its earlier Motion to Dismiss." Then, on August 23, 2016, Plaintiff filed her Response to Morse TEC's Motion to Dismiss, in which she argued that the courts of the Middle District of Florida had previously determined the Asbestos Act to be "procedural in nature" and therefore inapplicable in federal court. Subsequently, on August 31, 2016 the Plaintiff filed a Motion, requesting the Court to impose Rule 11 sanctions on Morse TEC for filing, and failing to withdraw, the Motion to Dismiss which was based on an "unsupported" proposition of Florida law. In the Motion, Plaintiff contends that Morse TEC "knew or should have known" when it filed its Motion to Dismiss that the Asbestos Act has been found to be procedural in nature and therefore inapplicable in federal court, and as such, Plaintiff requests "an award of attorneys' fees and costs to be taxed against [Morse TEC] and/or its counsel." In the Response, Morse TEC asserts that sanctions are inappropriate in this instance because its argument that the Complaint fails to provide fair notice of Doolin's claims pursuant to the requirements of Rule 83, -- inasmuch as the Complaint does not discuss "precisely what Morse TEC products, as opposed to other defendants' products, [Doolin] alleges contributed to [the Decedent's] development of mesothelioma" -- is a valid basis for dismissal. Morse TEC also alleges that it filed the Motion for Leave to Amend in an effort to "further clarify that [Doolin's] failure to follow the procedural requirements of the [Asbestos] Act per se may not warrant dismissal of her, but that such failure illustrated how far astray [Doolin] had run in her [Complaint] from fundamental "notice pleading" requirements." Morse TEC accordingly concludes that its arguments were based on "a plausible view of the law" and were not "patently unmeritorious or frivolous." Generally, the Court explains that Rule 11 sanctions are proper: "(1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; and (3) when the party files a pleading in bad faith for an improper purpose." The Court finds that Morse TEC was faced with two non-binding decisions regarding the applicability of portions of the Asbestos Act in federal court, and Morse TEC was free to attempt to argue that this Court should reach a different conclusion regarding the Asbestos Act's applicability. Given the current state of the law in the Eleventh Circuit with respect to the applicability of the Asbestos Act's pleading requirements in federal diversity actions, the Court cannot conclude that the issue has been so definitively decided as to render the legal arguments advanced in the Motion to Dismiss "objectively frivolous." The Court concludes that because both Hughes and Dugas are non- binding precedent, Morse TEC's arguments were not foreclosed by existing law, and it cannot be said that they otherwise had "no reasonable chance of success." As such, the Court need not address Paintiff's contention that Morse TEC's counsel "should have been aware that their arguments were frivolous." The case is STACEY DOOLIN, as the Personal Representative of the Estate of RICHARD E. DOOLIN, Plaintiff, v. AMERICAN OPTICAL CORPORATION, et al., Defendants, Case No. 3:16-cv-778-J-34PDB, (M.D. Fla.). A full-text copy of the Order dated August 22, 2017, is available at https://is.gd/tkWSlp from Leagle.com. Stacey Doolin, Plaintiff, represented by Marc Phillip Kunen, The Ferraro Law Firm. Borg Warner Corporation, Defendant, represented by Amanda Rae Cachaldora, Bice Cole Law Firm, PL, Eduardo J. Medina, Bice Cole Law Firm, PL, Kelly L. Kesner, Bice Cole Law Firm, PL, Melanie E. Chung-Tims, Bice Cole Law Firm, PL & Susan J. Cole, Bice Cole Law Firm, PL. Ford Motor Company, Defendant, represented by Alina Alonso Rodriguez, Bowman and Brooke, LLP, Andrew Scott Freedman, Cole, Scott & Kissane, PA, Clarke S. Sturge, Cole, Scott & Kissane, PA, Henry Salas, Cole, Scott & Kissane, PA, Shepherd D. Wainger, McGuire Woods, LLP, pro hac vice & Wendy Frank Lumish, Bowman and Brooke, LLP. Honeywell International, Inc., Defendant, represented by Anthony Nolan Upshaw, McDermott, Will & Emery, LLP, Caroline M. Iovino, McDermott, Will & Emery, LLP, Melissa Raspall Alvarez, McDermott, Will & Emery, LLP & Jack Roy Reiter, GrayRobinson, PA. Pneumo Abex LLC, Defendant, represented by Andrew Scott Freedman, Cole, Scott & Kissane, PA, Clarke S. Sturge, Cole, Scott & Kissane, PA, Henry Salas, Cole, Scott & Kissane, PA, Johan D. Flynn, DeHay Elliston, LLP, pro hac vice & John M. Fitzpatrick, Wheeler Trigg O'Donnell, LLP, pro hac vice. ASBESTOS UPDATE: Summary Judgment on Damages in "Storer" Denied --------------------------------------------------------------- Judge Elizabeth E. Foote of the U.S. District Court for the Western District of Louisiana denies the motion for partial summary judgment filed by Defendant Trane US, Inc., in the case captioned MARTHA DENMON STORER, ET AL., v. CROWN CORK & SEAL COMPANY, INC, ET AL., Civil Action No. 14-2488, (W.D. La.). Martha Storer and her four adult children brought this suit against Trane and several other defendants, alleging liability for the death of their husband and father Bud Storer from mesothelioma allegedly caused by asbestos exposure. Before his death in 2013, Bud Storer operated Storer Equipment Company, in which Plaintiffs are shareholders. The Company had a franchise agreement with Trane, which Trane terminated in 2014. In their complaint, Plaintiffs claims: (1) negligence of asbestos manufacturer sellers, suppliers and distributors, which they allege was the proximate cause of Bud Storer's illness; (2) strict liability of asbestos manufacturers, sellers, suppliers, and distributors; (3) "intentional tort of fraudulent misrepresentation causing physical harm;" and (4) "intentional tort battery." Plaintiffs also list economic damages as among the damages sought, arguing that they are entitled to damages for loss of financial support from Bud Storer, including damages resulting from Trane's cancellation of the Company's franchise agreement because of Bud Storer's death, causing lost revenues to the Company and to Plaintiffs as the Company's shareholders. Trane moved for partial summary judgment on the issue of damages, arguing that Plaintiffs are not entitled to economic damages for lost profits of the Company. Trane advances three grounds for this argument: that no cause of action pled in the Petition would warrant economic damages, that economic losses to the Company are not compensable in wrongful death and survival actions, and that no damages are available as a result of termination of the franchise agreement. However, the Court observes that Trane offers no case establishing such a bright-line rule, and in fact agrees that loss of earnings is compensable. The Court explains that a jury could determine what damages were caused by Bud Storer's death, and what the extent of those damages may be, is a question of fact. The Court says it cannot resolve such question of fact at this stage. Trane similarly argues that Plaintiffs cannot recover economic damages from the termination of the franchise agreement. The Court agrees to the extent of Trane's argument that Plaintiffs have alleged no breach of contract claim -- Plaintiffs may not recover for breach of contract because they have not claimed any breach of contract. The Court points out that if Plaintiffs prove their tort claims, it will be up to the jury to determine the amount of damages that would appropriately compensate them for their injuries. The Court concludes that such a determination may be based on facts such as the amount of earnings and support that Plaintiffs lost because of Bud Storer's death. Whether that loss of earnings and loss of support includes income Bud Storer would have earned through the Company is a question of fact, and cannot be decided by the Court at summary judgment. A full-text copy of the Memorandum Ruling dated August 22, 2017, is available at https://is.gd/cPtLIp from Leagle.com. Martha Denmon Storer, Plaintiff, represented by John S. Odom, Jr., Jones Odom. Martha Denmon Storer, Plaintiff, represented by Scott M. Hendler, Hendler Lyons & Flores, pro hac vice & Michael J. Brickman, Richardson Patrick Westbrook, pro hac vice. Craig Storer, Plaintiff, represented by John S. Odom, Jr., Jones Odom, Scott M. Hendler, Hendler Lyons & Flores, pro hac vice & Michael J. Brickman, Richardson Patrick Westbrook, pro hac vice. Mark Storer, Plaintiff, represented by John S. Odom, Jr., Jones Odom, Scott M. Hendler, Hendler Lyons & Flores, pro hac vice & Michael J. Brickman, Richardson Patrick Westbrook, pro hac vice. Laurie Storer, Plaintiff, represented by John S. Odom, Jr., Jones Odom, Scott M. Hendler, Hendler Lyons & Flores, pro hac vice & Michael J. Brickman, Richardson Patrick Westbrook, pro hac vice. Sheryl Storer, Plaintiff, represented by John S. Odom, Jr., Jones Odom, Scott M. Hendler, Hendler Lyons & Flores, pro hac vice & Michael J. Brickman, Richardson Patrick Westbrook, pro hac vice. Crown Cork & Seal Co Inc, Defendant, represented by Michael D. Lonegrass, Galloway Johnson et al, Richard G. Duplantier, Jr., Galloway Johnson et al & Rodger Gregory Green, Jr., Galloway Johnson et al. Trane U S. Inc, represented by Joseph B. Morton, III, Maron Marvel et al. Trane U S. Inc, Defendant, represented by Angela M. Bowlin, Frilot, David Jonathan Hemken, Cook Yancey et al, Herschel E. Richard, Jr., Cook Yancey et al, James H. Brown, Jr., Frilot, John M. Fitzpatrick, Wheeler Trigg & O'Donnell, pro hac vice, John J. Hainkel, III, Frilot, Kelsey Anne Eagan, Frilot, Magali Ann Puente-Martin, Frilot, McNeil James Kemmerly, Richard Muncie Crump, Maron Marvel et al, Robert Kennedy, Jr., Cook Yancey et al & Shelley Kathryn Napolitano, Maron Marvel et al. Crown Beverage Packaging L L C, Defendant, represented by Joseph H. Hart, IV, Pugh Accardo et al, Daniel Edwin Oser, Pugh Accardo et al & Thomas A. Porteous, Pugh Accardo et al. ASBESTOS UPDATE: PI Claims vs. Lone Star in "Roper" Dropped ----------------------------------------------------------- Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington has approved the Stipulation between Plaintiffs William and Carol Roper and Defendant Lone Star Industries, Inc., dismissing all claims against Lone Star Industries in the case captioned WILLIAM ROPER and CAROL ROPER, individually and as a marital community, Plaintiffs, v. BORGWARNER MORSE TEC, INC., et al., Defendants, No. 2:16-cv-01453-TSZ, (W.D. Wash.), without prejudice and without costs or attorney fees as to any party in the above-captioned matter, reserving to Plaintiffs their claims against the other parties. A full-text copy of the Stipulation dated August 25, 2017, is available at https://is.gd/CvsQrV from Leagle.com. William Roper, Plaintiff, represented by Christopher P. Gladd, NAPOLI SHKOLNIK, PLLC, pro hac vice. William Roper, Plaintiff, represented by Michael David Myers, MYERS & COMPANY & Tammy C. Barcenilla, NAPOLI SHKOLNIK PLLC, pro hac vice. Carol Roper, Plaintiff, represented by Christopher P. Gladd, NAPOLI SHKOLNIK, PLLC, pro hac vice, Michael David Myers, MYERS & COMPANY & Tammy C. Barcenilla, NAPOLI SHKOLNIK PLLC, pro hac vice. Brand Insulations, Inc, Defendant, represented by David A. Shaw, WILLIAMS KASTNER & GIBBS & Malika Johnson, WILLIAMS KASTNER. CBS Corporation, Defendant, represented by Barry Neal Mesher, SEDGWICK LLP, Brian D. Zeringer, SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. Crane Co, Defendant, represented by G. William Shaw, K&L GATES LLP & Ryan J. Groshong, K&L GATES LLP. Foster Wheeler Energy Corporation, Defendant, represented by Barry Neal Mesher, SEDGWICK LLP, Brian D. Zeringer, SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. General Electric Company, Defendant, represented by Barry Neal Mesher, SEDGWICK LLP, Brian D. Zeringer, SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. Goulds Pumps, Inc, Defendant, represented by Ronald C. Gardner, GARDNER TRABOLSI & ASSOC. PLLC. IMO Industries, Inc, Defendant, represented by James Edward Horne, GORDON THOMAS HONEYWELL & Michael Edward Ricketts, GORDON THOMAS HONEYWELL. Ingersoll-Rand Company, Defendant, represented by Mark B. Tuvim, GORDON & REES & Kevin J. Craig, GORDON REES SCULLY MANSUKHANI LLP. Metropolitan Life Insurance Company, Defendant, represented by Richard G. Gawlowski, WILSON SMITH COCHRAN & DICKERSON. Schneider Electric USA, Inc, Defendant, represented by Alice Coles Serko, SEDGWICK LLP, Barry Neal Mesher, SEDGWICK LLP & Rachel Tallon Reynolds, SEDGWICK LLP. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. 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