/raid1/www/Hosts/bankrupt/CAR_Public/170912.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, September 12, 2017, Vol. 19, No. 180
Headlines
AMERICAN SUGAR: Faces "Valdes" Suit in E.D. of New York
APIGEE CORP: Securities Class Suit Remanded to Calif. State Ct.
AUGUSTA COUNTY, VA: Class Action Attorney in Dispute with Judge
AUSTRALIA: Manus Island Class Action Settlement Awaits Approval
BAYLOR & CONNOR: "Asante" Disputes Illegal Collection Letter
BB&T CORPORATION: Court Grants Class Certification in ERISA Suit
BENTON COUNTY, AR: Court Awards $30K in Atty's Fees in "Adams"
BENTON COUNTY, AR: Court Dismisses "Adams" Suit With Prejudice
BETTY JOHNSON: Court Seeks Report on Class Action Status
BILLINGS, MO: High Court Flips $2.7MM Attorney's Fees Ruling
BLCH 3RD AVE: Second Circuit Appeal Filed in "Tapia" FLSA Suit
BLUE APRON: Chaudhry Files Suit Over Share Price Drop
BUMBO INTERNATIONAL: Court Denies Bid for Class Cert in "Clark"
CALIFORNIA DREAMING: Averts Servers' Suit Over Tip Pool
CANADA: Two First Nations Fishermen File Tax Class Action
CEPHALON INC. Court Denies Class Certification in Antitrust Suit
CHARLOTTE LAW: Ex-Students' Deceptive Trade Claims Can Proceed
CIA: 9th Cir. Reverses Dismissal of FOIA Suit
CITIGROUP INC: T. Frank Gets $33K in Atty Fees in Securities Suit
CLOROX CO: Cooper Files Suit Over Harmful Cleaning Products
COACH INC: Court Narrows Claims in Deceptive Marketing Suit
COCA-COLA CO: Review of Summary Judgment in "Enslin" Denied
COMMONWEALTH BANK: Unveils Board Shake-up Amid Class Action Risk
COMMONWEALTH BANK: IMF Bentham to Back Shareholder Class Action
COSTCO WHOLESALE: $2M Settlement in "Thompson" Suit Has Final Nod
CRAFT BREW: Court Partly Dismisses Beer Packaging Suit
DAIRYAMERICA INC: To Produce Full E-Docs by Oct 13 in "Carlin"
DEJA VU: Can Compel Arbitration in Strippers' FLSA Suit
DICK SMITH: New Evidence Emerges in Shareholders' Class Action
DNB: Loses Bid to Dismiss Customers' Class Action
ECO-CHIC LLC: Faces "Cohen" Suit in N.D. Calif.
ENCORE RECEIVABLE: "Deguardia" Disputes Illegal Collection Letter
ENVIRONMENTAL LITIGATION: Court Reverses Dismissal of "Hall" Suit
EVANSTON, IL: Court Certifies Two Classes in "Wilson" Suit
EXPRESS SCRIPTS: "Burton" Suit Removed to E.D. Miss
FORD MOTOR: Court Dismisses "Darne" Warranty Suit with Prejudice
HAMTRAMCK, MI: 6th Cir. Affirms Summary Judgment in "Serafino"
HANLEES FREMONT: Ally Wins Dismissal Bids in "Chaiwong" Suit
HIGHVELD SYNDICATION: Georgiou Granted Leave to Appeal SCA Ruling
HOME DEPOT: Reaches Settlement with CPSC Over Recalled Products
HSBC BANK: "Farrell" Sues Over Mortgage Satisfaction Late Filing
HUMANADENTAL INSURANCE: Court Decertifies Class in "Brodsky"
INDIANA: High Court Affirms Dismissal of DCS Worker's Suit
INGHAM COUNTY, MI: Court Dismisses Inmates' Pro Se Suit
J&B MECHANICAL: Court Conditionally Certifies Class in "Johnston"
JANSSEN PHARMA: Gets Third Defense Verdict in Xarelto Case
JOHNSON & JOHNSON: Advocacy Aligns with Chamber Tort Reform Bid
JOHNSON & JOHNSON: Call for Woman Talc Master "Troubling"
JOHNSON & JOHNSON: GC Mulls Strategy After Massive Talc Verdict
JOHNSON & JOHNSON: New Evidence Emerge in $417MM Talc Verdict
K12 INC: Court Partly Grants Bid to Dismiss "Tarapara" Suit
LUXOTTICA RETAIL: Faces "Tenagila" Suit in S.D. Fla.
LUXOTTICA RETAIL: Faces "Infante" Suit in N.D. Calif.
MACQUARIE GROUP: Faces Investor Class Action, Harassment Claims
MADISON GLOBAL: Settlement in "Surdu" Suit Has Prelim. Approval
MDL 2284: Court Affirms Denial of Depietris' Appeal
MDL 2284: Court Affirms Denial of M. Diericks' Appeal
MDL 2284: Court Affirms Denial of Merrills' Appeal
MISSOURI: Improvements Sought in SORTS Program After Settlement
MONEYMUTUAL LLC: Court Partly Grants Bid to Dismiss "Rilley"
NEW YORK: Court Refuses to Dismiss Suit vs. ACS
NEW ZEALAND: Crown Draws Up Strategy in Psa Outbreak Class Action
NORTH DAKOTA: Water Protector Legal Collective Files Class Action
PEOPLE'S UNITED: Overdraft Fees Class Suit in Connecticut Pending
PH GLATFELTER: Court Dismisses "Ford" Suit Without Prejudice
PORTER MCGUIRE: Court Partly Grants Bid to Dismiss "Brown" Suit
PTZ INSURANCE: Seventh Circuit Appeal Filed in "Legg" TCPA Suit
RECEIVABLES MANAGEMENT: Faces "Coulter" Suit in E.D. Pa.
RESORT MARKETING: Settles TCPA Class Action in Illinois
RSI ENTERPRISES: "Gibeau" Hits Illegal Collection Calls
SANTEE COOPER: Audit on Nuclear Project to Impact Class Actions
SHORETEL INC: Faces Investor Class Action Over Mitel Buyout Deal
SPOKEO INC: To Defend FCRA Class Action in District Court
STATE FARM: Court Approves Narrowed Class Definition in "Durant"
STURM FOODS: Court Denies Bid to Decertify Class in "Suchanek"
SUPER MERCADO: Denied "Hernandez" Overtime Pay for Hours Over 40
SUPERVALU INC: Court Flips Dismissal of Holmes Data Breach Suit
SURFSTITCH GROUP: Gets Restructuring Proposals Amid Class Actions
TAMPA BAY: Court Dismisses "Stapleton" Suit Without Prejudice
TITANIUM CONSTRUCTION: Loses Bid to Decertify "Gucciardo" Class
TRAVELERS COMMERCIAL: 7th Cir. Affirms Dismissal of "Roppo"
TROJAN LABOR: Fired "Johnson" for Raising Overtime Claims Issue
TYSON FOODS: Court Stays Discovery in Broiler Chicken Suit
UBER TECHNOLOGIES: Ex- Employee Files Amicus Brief in Labor Case
UBER TECHNOLOGIES: Sept. 20 Hearing Set on NLRB Arbitration Case
UNITED STATES: Breach of Contract Suit vs. USDA Dismissed
USA: Faces "Salo" Suit in Court of Federal Claims
USA: Faces Y and J Properties Suit in Court of Federal Claims
USA: Faces "Bouzerand" Suit in Court of Federal Claims
USA: Faces "Banes" Suit in Court of Federal Claims
USA TECHNOLOGIES: 3d Cir. Affirms Dismissal of Securities Suit
VOLKSWAGEN: Merkel Backs German Diesel Car Owners' Class Action
WASHINGTON TRUST: Entitled to Recover Atty Fees in "Cayne" Suit
WELLS FARGO: Sales Pressure Lingers Amid Fake Account Suits
WELLS FARGO: Fake Account Disclosure May Impact Settlement
YAHOO INC: Must Face Data Breach Class Action, Judge Rules
ZOCDOC INC: Geisman Appeals S.D.N.Y. Orders to Second Circuit
* Employers Need to Think About Arbitration Agreements Again
* FTC Issues Closing Letter to Four Cos. Over Made in USA Claims
* Senate Set to Vote on CFPB's New Arbitration Rules
* Trump Administration Changes Stance on Arbitration Agreements
*********
AMERICAN SUGAR: Faces "Valdes" Suit in E.D. of New York
-------------------------------------------------------
A class action lawsuit has been filed against American Sugar
Refining, Inc. The case is styled as Teresa Valdes, individually
and on behalf of all others similarly situated, Plaintiffs v.
American Sugar Refining, Inc., Defendant, Case No. 1:17-cv-05213
(E.D. N.Y., September 5, 2017).
American Sugar Refining, Inc., is a Delaware corporation that is
the largest refiner and marketer of cane sugar in the world, and
operates sugar refining, production, manufacturing, packaging, and
distribution facilities at various locations throughout the United
States, including in Ohio.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
The Sultzer Law Group P.C.
85 Civic Center Plaza, Ste. 104
Poughkeepsie, NY 12601
Tel: (845) 483-7100
Fax: (888) 749-7747
Email: sultzerj@thesultzerlawgroup.com
APIGEE CORP: Securities Class Suit Remanded to Calif. State Ct.
---------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California remanded the case captioned SEAFARERS
OFFICERS & EMPLOYEES PENSION PLAN, Plaintiff, v. APIGEE
CORPORATION, et al., Defendants, Case No. 17-cv-04106-JD (N.D.
Cal.) to San Mateo Superior Court and denied the stay pending a
decision in Cyan, Inc.
The Defendant removed the securities class action alleging
violations of the '33 Act from San Mateo Superior Court. The
Plaintiff moves to remand on the basis that Title 15 of the U.S.
Code, Section 77v(a) bars removal.
The parties agree that this case is a "covered class action" but
dispute the applicability of Section 77p(c) and whether the San
Mateo Superior Court was a court of competent jurisdiction under
Section 77v(a).
In a decision on the nonappealability of district court remand
orders, the Supreme Court held the removal under Section 77p(c) is
limited to those cases precluded by the terms of subsection (b).
In essence, the Court found that Congress allowed removal only to
avoid an end-run around the federal securities laws by cases
asserting state-law claims. It did not expressly address whether
removal is limited to state-law claims, because Kircher involved
only state-law claims. Still, the Court found that the purpose of
Section 77p(c) is to ensure that a federal court could dismiss a
state-law action precluded by Section 77p(b). Clearly, then, only
actions based on state law are removable under Section 77p(c).
Since Seafarers alleges only '33 Act claims, removal was improper,
Judge Donato held.
Apigee's suggestion that the grant of certiorari in Cyan Inc. v.
Beaver Cnty. Emps. Retirement Fund, provides a reason is not well
taken. The mere granting of the writ does not displace the well-
developed case law on this issue. In the event the Supreme Court
overturns the apple cart, so to speak, and holds that the Superior
Court was not a court of competent jurisdiction for '33 Act
claims, Apigee presumably would be entitled to an immediate
dismissal of the case by the state court. Or it might possibly
seek removal again, though the Court expresses no opinion on that
question here.
Judge Donato finds there is no efficiency penalty imposed by
remand, because Apigee will need to litigate the case in the
meantime, whether here or in the Superior Court. And the work
involved could be minor, because as the parties both note, another
case bringing claims under the same statute on behalf of the same
defendants for the same statements and omissions is already being
litigated in San Mateo Superior Court. One way or another, this
case will go forward. Under current law, the proper forum for
that is the state court.
Because removal is barred by Section 77v(a), Judge Donato remanded
the case to San Mateo Superior Court. Since the case is not
properly in federal court, he denied stay pending a decision in
Cyan.
A full-text copy of the Court's Sept. 1, 2017 Order is available
at https://goo.gl/7qNCrw from Leagle.com.
Seafarers Officers & Employees Pension Plan, Plaintiff,
represented by James Ian Jaconette -- jamesj@rgrdlaw.com --
Robbins Geller Rudman & Dowd LLP.
Seafarers Officers & Employees Pension Plan, Plaintiff,
represented by Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP & Thomas Edward Egler --
tome@rgrdlaw.com.
Apigee Corporation, Defendant, represented by Benjamin Jon Tolman
-- btolman@wsgr.com -- Wilson Sonsini Goodrich Rosati, Michael
Roland Petrocelli -- mpetrocelli@wsgr.com -- Wilson Sonsini
Goodrich & Rosati, Steven Mark Schatz -- sschatz@wsgr.com --
Wilson Sonsini Goodrich & Rosati & Ignacio Evaristo Salceda --
isalceda@wsgr.com -- Wilson Sonsini Goodrich & Rosati.
Chet Kapoor, Defendant, represented by Benjamin Jon Tolman, Wilson
Sonsini Goodrich Rosati, Michael Roland Petrocelli, Wilson Sonsini
Goodrich & Rosati, Steven Mark Schatz, Wilson Sonsini Goodrich &
Rosati & Ignacio Evaristo Salceda, Wilson Sonsini Goodrich &
Rosati.
Tim Wan, Defendant, represented by Benjamin Jon Tolman, Wilson
Sonsini Goodrich Rosati, Michael Roland Petrocelli, Wilson Sonsini
Goodrich & Rosati, Steven Mark Schatz, Wilson Sonsini Goodrich &
Rosati & Ignacio Evaristo Salceda, Wilson Sonsini Goodrich &
Rosati.
Bob L. Corey, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Michael Roland Petrocelli, Wilson
Sonsini Goodrich & Rosati, Steven Mark Schatz, Wilson Sonsini
Goodrich & Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
Neal Dempsey, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Michael Roland Petrocelli, Wilson
Sonsini Goodrich & Rosati, Steven Mark Schatz, Wilson Sonsini
Goodrich & Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
Promod Haque, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Michael Roland Petrocelli, Wilson
Sonsini Goodrich & Rosati, Steven Mark Schatz, Wilson Sonsini
Goodrich & Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
William "BJ" Jenkins, Jr., Defendant, represented by Benjamin Jon
Tolman, Wilson Sonsini Goodrich Rosati, Michael Roland Petrocelli,
Wilson Sonsini Goodrich & Rosati, Steven Mark Schatz, Wilson
Sonsini Goodrich & Rosati & Ignacio Evaristo Salceda, Wilson
Sonsini Goodrich & Rosati.
Edmond Mesrobian, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Michael Roland Petrocelli, Wilson
Sonsini Goodrich & Rosati, Steven Mark Schatz, Wilson Sonsini
Goodrich & Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
Robert Schwartz, Defendant, represented by Benjamin Jon Tolman,
Wilson Sonsini Goodrich Rosati, Michael Roland Petrocelli, Wilson
Sonsini Goodrich & Rosati, Steven Mark Schatz, Wilson Sonsini
Goodrich & Rosati & Ignacio Evaristo Salceda, Wilson Sonsini
Goodrich & Rosati.
AUGUSTA COUNTY, VA: Class Action Attorney in Dispute with Judge
---------------------------------------------------------------
Brad Zinn, writing for NewsLeader, reports that a Churchville
attorney and a local circuit court judge with a history of court
battles are embroiled in yet another legal tussle, including an
accusation the attorney lost $275,000 per year in gross legal fees
because of the judge's past actions toward him, according to a
recent motion filed by attorney Francis Chester.
Mr. Chester filed the motion in a civil case that is being heard
by Judge Victor V. Ludwig. The motion asks that Judge Ludwig
recuse himself from the civil case and all future hearings
involving Chester.
In 2009, Judge Ludwig slapped Mr. Chester with a $2,000 sanction
in a case where he was accused of filing a frivolous class-action
lawsuit that sought to rollback 2009 Augusta County property
assessments. Former Augusta County Attorney Patrick Morgan asked
for the sanction against Mr. Chester, and argued he should have
known Virginia does not permit class-action lawsuits.
"Whatever the county's motive may be, the purpose of the court in
imposing sanctions is not to 'silence' an attorney who pleads a
poor case," Ludwig explained at the time. "It is to attempt to
ensure that he pleads a better one next time."
Mr. Chester said because of the sanction, the Virginia State Bar
ordered an ethics investigation that he said cleared him of
wrongdoing, the court filing states.
"As a consequence of Judge Ludwig's dealings, clients pulled their
cases from the Law Office of Francis Chester with apologies that
they were removing their cases because they feared further
recrimination by Judge Ludwig," Mr. Chester said in the motion.
Along with the $275,000 he claims to be losing each year, Chester
said he had to reduce his staff to one employee.
"He killed my practice," Mr. Chester said Sept. 4.
Mr. Chester also claims in the motion that his issues with Judge
Ludwig began on the very first day the judge began hearing cases
in Augusta County Circuit Court. Judge Ludwig was appointed in
2008. In the motion, Mr. Chester claims he was told by another
circuit judge to pass forward an offer that the judge would be
willing to assist Judge Ludwig in a case involving the Republican
Party of Augusta County. Judge Ludwig said he told Judge Ludwig
about the offer during his first day on the bench.
"His Honor Judge Ludwig, to the surprise of Francis Chester, took
off like a very insulted man," the motion states.
Mr. Chester also said he complained in the past about having
trouble hearing Judge Ludwig in court, and said he requested
amplification. Judge Chester said he was rebuffed by Ludwig but
filed a formal complaint with the Judicial Inquiry and Review
Commission. He said the commission ordered the judge to comply.
"The next appearance in Court by Francis Chester, the Judge,
before a crowded Courtroom asked Francis Chester if he could now
hear properly," Mr. Chester wrote in the motion. "Then he
announced to the public that Francis Chester has a hard time
hearing and that he had to install an amplifier. This was rather
an embarrassing moment and totally unnecessary."
Mr. Chester, who also owns a textile mill, said he once had a case
in front of Ludwig involving an employee injured at his mill. "A
clear case of Workers' Compensation," the motion states.
However, the employee brought an additional claim of personal
injury, and Mr. Chester said Judge Ludwig rejected a motion by him
to quash the claim. Later in the case a substitute judge ordered
the quash, Mr. Chester said, and in an appeal by the employee's
attorney, Mr. Chester said Virginia's Supreme Court upheld the
decision to order the quash.
"There are many more injurious incidents that occurred, but too
numerous to list," Chester said in the motion, which was filed in
August.
A hearing on the motion was set to be held on Sept. 5. [GN]
AUSTRALIA: Manus Island Class Action Settlement Awaits Approval
---------------------------------------------------------------
The Australian Associated Press reports that a $70 million class
action settlement between Manus Island detainees and the
Australian government and centre operators has to be approved by a
Victorian court.
Most of the people who have been detained on Manus Island have
backed a $70 million compensation settlement that lawyers say
acknowledges the harms they have suffered.
Legal firm Slater and Gordon hopes to get the money paid to
current and former detainees before the Manus Island Regional
Processing Centre closes at the end of October.
About 70 per cent of the 1923 group members in the class action,
who represent the majority of people detained on Manus Island
since 2012, have so far registered to be part of the settlement.
Slater and Gordon says about eight per cent of the group has
lodged objections to what is believed to be Australia's largest
human rights class action settlement.
The firm was set to tell a judge on Sept. 4 that the settlement is
the best option for group members in terms of receiving
compensation for the harms they have suffered, Slater and Gordon
practice group leader Rory Walsh said.
Mr Walsh said the detainees had spent most of their lives waiting
for things to get better.
"They've been waiting to find somewhere safe to live and many have
now spent much of the last five years waiting in the inhumane
conditions of Manus Island for the outcomes of what can be
incredibly lengthy refugee status determinations," he told AAP.
"This settlement provides certainty and it provides
acknowledgement.
"If it can help these detainees avoid waiting for one minute less
in this one aspect of their lives, then this settlement is
certainly in their best interests."
The group members must register their claims before September 25
to receive their share of the $70 million, with 1346 detainees
currently registered.
More than 160 people have lodged objections but the majority of
those have also registered to be part of the settlement if it is
ultimately approved by the Victorian Supreme Court.
The parties and independent legal counsel for the objectors were
set on Sept. 4 to make submissions to Justice Cameron Macaulay,
who will announce his decision at a later date.
Mr Walsh said the government and other defendants agreed to
appoint and pay for an independent law firm to act for those group
members who want to opt out of the proceeding.
"In our view, this case warranted the appointment of independent
legal representation because we do not believe this settlement
should be forced on any group member who does not want to
participate."
More than 50 group members have asked the court for more time to
opt out, which would preserve their legal rights to take separate
action. [GN]
BAYLOR & CONNOR: "Asante" Disputes Illegal Collection Letter
------------------------------------------------------------
Malik Asante, on behalf of himself, and all others similarly
situated, Plaintiff, vs. Baylor & Connor, Inc., Defendant, Case
No. 1:17-cv-03160, (N.D. Ga., August 21, 2017), seeks statutory
damages, costs and reasonable attorneys' fees, pursuant to the
Fair Debt Collection Practices Act.
Defendant is a collection company located at 560 Main Street,
Suite 1E, Allenhurst, NJ 07711. Plaintiff purchased a violin on
credit. Baylor & Connor sent collection letters in the attempt to
collect the said debt. Said collection letter, however, utilizes
phrases clearly intended to infer that there has been complaint
filed against Plaintiff in a court of law, despite the absence of
such, says the complaint. [BN]
Plaintiff is represented by:
Jonathan B. Mason, Esq.
MASON LAW GROUP, P.C.
1100 Peachtree Street, NE, Suite 200
Atlanta, GA 30309
Telephone: (404) 920-8040
Email: jmason@atlshowbizlaw.com
- and -
LAW OFFICES OF MICHAEL LUPOLOVER
120 Sylvan Avenue, Suite 303
Englewood Cliffs, NJ 07632
Telephone: (201) 461-0059
Facsimile: (201) 608-7116
Email: DPF@lupoloverlaw.com
BB&T CORPORATION: Court Grants Class Certification in ERISA Suit
----------------------------------------------------------------
The United States District Court for the Middle District of North
Carolina issued a Memorandum Opinion and Order granting
Plaintiff's Motion for Class Certification in the case captioned
ROBERT SIMS, et al., Plaintiffs, v. BB&T CORPORATION, et al.,
Defendants Nos. 1:15-CV-732, 1:15-CV-841 (M.D.N.C.).
In this ERISA action, the plaintiffs contend that the defendants
breached their fiduciary duties to the plan in connection with
fees and investment options. They seek certification of a class
made up of current and former participants of the plan.
The plaintiffs are current or former participants in the BB&T
Corporation 401(k) Savings Plan. The plaintiffs assert that the
defendants breached their fiduciary duties to the Plan by causing
the Plan to incur excessive administrative and investment fees,
providing imprudent investment fund options, failing to
appropriately monitor Plan fiduciaries, and engaging in prohibited
transactions.
Here, the issues in dispute are whether there are common questions
of law or fact; whether the claims of the representative
plaintiffs are typical; and whether the representative plaintiffs
will adequately protect the interests of the class. The
defendants also challenge appointment of two, as opposed to one,
counsel for the class.
The parties do not dispute that the plaintiffs are members of the
proposed class and that other members of the proposed class can be
readily identified through Plan records.
Commonality
To satisfy the commonality requirements, there must be questions
of law or fact common to the class.
The defendants also argue that the lack of an established
methodology for determining individual class members' injuries
defeats commonality. This argument misunderstands the nature of
the suit. The plaintiffs have filed suit on the Plan's behalf
alleging that the defendants' conduct harmed the Plan as a whole
and seeking recovery on the Plan's behalf; they assert no claims
based on individual losses. The common issues identified above do
not require individualized proof such that commonality is
defeated. Individual issues of loss causation do not predominate,
indeed are not relevant, unless and until it becomes necessary to
allocate any Plan recovery to participants.
Typicality
To satisfy the typicality requirement, the claims of the named
plaintiffs must be typical of the claims of the class. Fed. R.
Civ. P. 23(a)(3). The typicality requirement is met where the
claims asserted by the named plaintiffs arise from the same course
of conduct and are based on the same legal theories as the claims
of the unnamed class members.
Here, the plaintiffs' theories of liability rest on the
defendants' flawed process for selecting, administering, and
monitoring all of the Plan investments, not just a few specific
funds. These unified theories of liability ensure that the named
plaintiffs have essentially the same incentive to litigate because
the establishment of the named plaintiffs' claims necessarily
establishes those of other class members evaluating adequacy of
representation in standing analysis. When the theories of
liability are the same, a plaintiff may represent the class even
if he or she did not hold all of the contested funds or
investments or did not enter into all of the contested agreements
Adequate Representation
Rule 23(a)(4) requires that class representatives fairly and
adequately protect the interests of the class. Fed. R. Civ. P.
23(a)(4). It serves to uncover conflicts of interest between named
parties and the class they seek to represent, as well as
competency and conflicts of class counsel.
The defendants claim that all of the named plaintiffs are
inadequate class representatives because they lack knowledge of
facts of the case outside what their attorneys have told them. The
Court does not consider this a barrier to class certification. It
is hornbook law that in a complex lawsuit, such as one in which
the defendant's liability can be established only after a great
deal of investigation and discovery by counsel against a
background of legal knowledge, the representative need not have
extensive knowledge of the facts of the case in order to be an
adequate representative.
Appointment of Class Counsel
The defendants have requested that only one firm be appointed
class counsel to prevent duplication of effort, general
inefficiencies, and waste of resources. Both Schlichter, Bogard &
Denton and Nichols Kaster have invested in identifying and
investigating the claims at issue, and both have the relevant
experience and knowledge. The defendants have not identified any
specific duplication of effort, general inefficiencies, or waste
of resources that have occurred since the cases, now combined,
Therefore, the Court will grant the motion for class
certification.
A full-text copy of the District Court's August 28, 2017,
Memorandum Opinion and Order is available at
http://tinyurl.com/y9tht6abfrom Leagle.com.
ROBERT SIMS, Plaintiff, represented by KAI H. RICHTER --
krichter@nka.com -- NICHOLS KASTER, PLLP.
ROBERT SIMS, Plaintiff, represented by BROCK J. SPECHT, NICHOLS
KASTER, PLLP, CARL F. ENGSTROM, NICHOLS KASTER, PLLP, DAVID B.
PURYEAR, Jr., PURYEAR AND LINGLE, P.L.L.C., ELEANOR E. FRISCH,
NICHOLS KASTER, PLLP, JENNIFER K. LEE, NICHOLS KASTER, PLLP, TROY
A. DOLES, SCHLICHTER BOGARD & DENTON, LLP & JEROME J. SCHLICHTER,
SCHLICHTER BOGARD & DENTON, LLP.
ERIK GAVIDIA, Plaintiff, represented by KAI H. RICHTER, NICHOLS
KASTER, PLLP, BROCK J. SPECHT -- bspecht@nka.com -- NICHOLS
KASTER, PLLP, CARL F. ENGSTROM -- cengstrom@nka.com -- NICHOLS
KASTER, PLLP, DAVID B. PURYEAR, Jr., PURYEAR AND LINGLE, P.L.L.C.,
5501-E Adams Farm, Lane Greensboro, NC 27407-6396, ELEANOR E.
FRISCH -- nfrisch@nka.com -- NICHOLS KASTER, PLLP, JENNIFER K. LEE
-- jlee.nka.com -- NICHOLS KASTER, PLLP, TROY A. DOLES, SCHLICHTER
BOGARD & DENTON, LLP & JEROME J. SCHLICHTER, SCHLICHTER BOGARD &
DENTON, LLP -- sbd@uselaws.com.
STEPHANIE GAVIDIA, Plaintiff, represented by KAI H. RICHTER,
NICHOLS KASTER, PLLP, BROCK J. SPECHT, NICHOLS KASTER, PLLP, CARL
F. ENGSTROM, NICHOLS KASTER, PLLP, DAVID B. PURYEAR, Jr., PURYEAR
AND LINGLE, P.L.L.C., ELEANOR E. FRISCH, NICHOLS KASTER, PLLP,
JENNIFER K. LEE, NICHOLS KASTER, PLLP, TROY A. DOLES, SCHLICHTER
BOGARD & DENTON, LLP & JEROME J. SCHLICHTER, SCHLICHTER BOGARD &
DENTON, LLP.
STACY HOLSTEIN, Plaintiff, represented by KAI H. RICHTER, NICHOLS
KASTER, PLLP, BROCK J. SPECHT, NICHOLS KASTER, PLLP, CARL F.
ENGSTROM, NICHOLS KASTER, PLLP, DAVID B. PURYEAR, Jr., PURYEAR AND
LINGLE, P.L.L.C., ELEANOR E. FRISCH, NICHOLS KASTER, PLLP,
JENNIFER K. LEE, NICHOLS KASTER, PLLP, TROY A. DOLES, SCHLICHTER
BOGARD & DENTON, LLP & JEROME J. SCHLICHTER, SCHLICHTER BOGARD &
DENTON, LLP.
KERRI GREANER, Plaintiff, represented by KAI H. RICHTER, NICHOLS
KASTER, PLLP, BROCK J. SPECHT, NICHOLS KASTER, PLLP, CARL F.
ENGSTROM, NICHOLS KASTER, PLLP, DAVID B. PURYEAR, Jr., PURYEAR AND
LINGLE, P.L.L.C., ELEANOR E. FRISCH, NICHOLS KASTER, PLLP,
JENNIFER K. LEE, NICHOLS KASTER, PLLP, TROY A. DOLES, SCHLICHTER
BOGARD & DENTON, LLP & JEROME J. SCHLICHTER, SCHLICHTER BOGARD &
DENTON, LLP.
PAULA BRIDGES, Plaintiff, represented by AARON E. SCHWARTZ,
SCHLICHTER BOGARD & DENTON, LLP, BROCK J. SPECHT, NICHOLS KASTER,
PLLP, DAVID B. PURYEAR, Jr., PURYEAR AND LINGLE, P.L.L.C., ETHAN
D. HATCH, SCHLICHTER BOGARD & DENTON, LLP, HEATHER LEA, SCHLICHTER
BOGARD & DENTON, LLP, KURT C. STRUCKHOFF, SCHLICHTER BOGARD &
DENTON, MICHAEL A. WOLFF, SCHLICHTER BOGARD & DENTON, LLP, SEAN E.
SOYARS, SCHLICHTER BOGARD & DENTON, LLP, STEPHEN M. HOEPLINGER,
SCHLICHTER BOGARD & DENTON, LLP, TROY A. DOLES, SCHLICHTER BOGARD
& DENTON, LLP & JEROME J. SCHLICHTER, SCHLICHTER BOGARD & DENTON,
LLP.
NANCY JOHNSON, Plaintiff, represented by AARON E. SCHWARTZ,
SCHLICHTER BOGARD & DENTON, LLP, BROCK J. SPECHT, NICHOLS KASTER,
PLLP, DAVID B. PURYEAR, Jr., PURYEAR AND LINGLE, P.L.L.C., ETHAN
D. HATCH, SCHLICHTER BOGARD & DENTON, LLP, HEATHER LEA, SCHLICHTER
BOGARD & DENTON, LLP, KURT C. STRUCKHOFF, SCHLICHTER BOGARD &
DENTON, MICHAEL A. WOLFF, SCHLICHTER BOGARD & DENTON, LLP, SEAN E.
SOYARS, SCHLICHTER BOGARD & DENTON, LLP, STEPHEN M. HOEPLINGER,
SCHLICHTER BOGARD & DENTON, LLP, TROY A. DOLES, SCHLICHTER BOGARD
& DENTON, LLP & JEROME J. SCHLICHTER, SCHLICHTER BOGARD & DENTON,
LLP.
PATRICIA WELLS, Plaintiff, represented by AARON E. SCHWARTZ,
SCHLICHTER BOGARD & DENTON, LLP, BROCK J. SPECHT, NICHOLS KASTER,
PLLP, DAVID B. PURYEAR, Jr., PURYEAR AND LINGLE, P.L.L.C., ETHAN
D. HATCH, SCHLICHTER BOGARD & DENTON, LLP, HEATHER LEA, SCHLICHTER
BOGARD & DENTON, LLP, KURT C. STRUCKHOFF, SCHLICHTER BOGARD &
DENTON, MICHAEL A. WOLFF, SCHLICHTER BOGARD & DENTON, LLP, SEAN E.
SOYARS, SCHLICHTER BOGARD & DENTON, LLP, STEPHEN M. HOEPLINGER,
SCHLICHTER BOGARD & DENTON, LLP, TROY A. DOLES, SCHLICHTER BOGARD
& DENTON, LLP & JEROME J. SCHLICHTER, SCHLICHTER BOGARD & DENTON,
LLP.
BREWSTER SMITH, JR, Plaintiff, represented by AARON E. SCHWARTZ,
SCHLICHTER BOGARD & DENTON, LLP, BROCK J. SPECHT, NICHOLS KASTER,
PLLP, DAVID B. PURYEAR, Jr., PURYEAR AND LINGLE, P.L.L.C., ETHAN
D. HATCH, SCHLICHTER BOGARD & DENTON, LLP, HEATHER LEA, SCHLICHTER
BOGARD & DENTON, LLP, KAI H. RICHTER, NICHOLS KASTER, PLLP, KURT
C. STRUCKHOFF, SCHLICHTER BOGARD & DENTON, MICHAEL A. WOLFF,
SCHLICHTER BOGARD & DENTON, LLP, SEAN E. SOYARS, SCHLICHTER BOGARD
& DENTON, LLP, STEPHEN M. HOEPLINGER, SCHLICHTER BOGARD & DENTON,
LLP, TROY A. DOLES, SCHLICHTER BOGARD & DENTON, LLP & JEROME J.
SCHLICHTER, SCHLICHTER BOGARD & DENTON, LLP.
BB&T CORPORATION, Defendant, represented by BRENT F. POWELL --
bfpowell@wcsr.com -- WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE
WESTON HARDEN -- dharden@wcsr.com -- WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, RONALD R. DAVIS -- rdavis@wcsr.com -- WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMEs -- jholmes@groom.com --
GROOM LAW GROUP, CHARTERED, MARK L. BIETER -- mbieter@groom.com --
GROOM LAW GROUP, CHARTERED, MICHAEL J. PRAME -- mprame@groom.com -
- GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD --
prinefierd@groom.com -- GROOM LAW GROUP, CHARTERED.
BB&T CORPORATION EMPLOYEE BENEFITS PLAN COMMITTEE, Defendant,
represented by BRENT F. POWELL, WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC, DEBBIE WESTON HARDEN, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC,
RONALD R. DAVIS, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, JUSTIN M.
HOLMES, GROOM LAW GROUP, CHARTERED, MARK L. BIETER, GROOM LAW
GROUP, CHARTERED, MICHAEL J. PRAME, GROOM LAW GROUP, CHARTERED &
PAUL J. RINEFIERD, GROOM LAW GROUP, CHARTERED.
BB&T CORPORATION BOARD OF DIRECTORS, Defendant, represented by
BRENT F. POWELL, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE
WESTON HARDEN, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, RONALD R.
DAVIS, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES,
GROOM LAW GROUP, CHARTERED, MARK L. BIETER, GROOM LAW GROUP,
CHARTERED, MICHAEL J. PRAME, GROOM LAW GROUP, CHARTERED & PAUL J.
RINEFIERD, GROOM LAW GROUP, CHARTERED.
COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS OF BB&T
CORPORATION, Defendant, represented by BRENT F. POWELL, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE WESTON HARDEN, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, RONALD R. DAVIS, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES, GROOM LAW GROUP,
CHARTERED, MARK L. BIETER, GROOM LAW GROUP, CHARTERED, MICHAEL J.
PRAME, GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD, GROOM LAW
GROUP, CHARTERED.
JOHN P HOWE, Defendant, represented by BRENT F. POWELL, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE WESTON HARDEN, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, RONALD R. DAVIS, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES, GROOM LAW GROUP,
CHARTERED, MARK L. BIETER, GROOM LAW GROUP, CHARTERED, MICHAEL J.
PRAME, GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD, GROOM LAW
GROUP, CHARTERED.
ANNA R. CABLIK, Defendant, represented by BRENT F. POWELL, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE WESTON HARDEN, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, RONALD R. DAVIS, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES, GROOM LAW GROUP,
CHARTERED, MARK L. BIETER, GROOM LAW GROUP, CHARTERED, MICHAEL J.
PRAME, GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD, GROOM LAW
GROUP, CHARTERED.
EDWIN H WELCH, Defendant, represented by BRENT F. POWELL, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE WESTON HARDEN, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, RONALD R. DAVIS, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES, GROOM LAW GROUP,
CHARTERED, MARK L. BIETER, GROOM LAW GROUP, CHARTERED, MICHAEL J.
PRAME, GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD, GROOM LAW
GROUP, CHARTERED.
ERIC C KENDRICK, Defendant, represented by BRENT F. POWELL, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE WESTON HARDEN, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, RONALD R. DAVIS, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES, GROOM LAW GROUP,
CHARTERED, MARK L. BIETER, GROOM LAW GROUP, CHARTERED, MICHAEL J.
PRAME, GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD, GROOM LAW
GROUP, CHARTERED.
LOUIS B LYNN, Defendant, represented by BRENT F. POWELL, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE WESTON HARDEN, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, RONALD R. DAVIS, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES, GROOM LAW GROUP,
CHARTERED, MARK L. BIETER, GROOM LAW GROUP, CHARTERED, MICHAEL J.
PRAME, GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD, GROOM LAW
GROUP, CHARTERED.
TOLLIE W RICH, Defendant, represented by BRENT F. POWELL, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, DEBBIE WESTON HARDEN, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, RONALD R. DAVIS, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, JUSTIN M. HOLMES, GROOM LAW GROUP,
CHARTERED, MARK L. BIETER, GROOM LAW GROUP, CHARTERED, MICHAEL J.
PRAME, GROOM LAW GROUP, CHARTERED & PAUL J. RINEFIERD, GROOM LAW
GROUP, CHARTERED.
BENTON COUNTY, AR: Court Awards $30K in Atty's Fees in "Adams"
--------------------------------------------------------------
In the case captioned YVES EUGENE ADAMS; CESAR REYES; PAM
PHILPOTT; and BRANDON PHILPOTT, each individually and on behalf of
all others similarly situated, Plaintiffs, v. BENTON COUNTY
SHERIFF KELLY CRADDUCK, in his individual and official capacities;
and KEEFE COMMISSARY NETWORKS, LLC, Defendants, Case No. 5:13-CV-
5074 (W.D. Ark.), Judge Paul K. Holmes, III, of the U.S. District
Court for the Western District of Arkansas, Fayetteville Division,
granted in part the Plaintiffs' motion for attorney's fees and
costs and incentive fees insofar as they are awarded attorney's
fees and costs in a total amount of $30,000, and each Named
Plaintiff is awarded an incentive fee of $500 each.
On Aug. 30, 2017, the Court adopted the Magistrate Judge's report
and recommendation which recommended final approval of the class
action settlement and cy pres distribution of unclaimed funds from
the settlement. In its order granting preliminary approval of the
proposed class settlement and class certification, it appointed
Monzer Mansour as class counsel. The settlement agreement entered
into by the parties provided that the Defendants would pay class
counsel an attorney's fee and costs, as authorized by the Court,
up to but not more than $50,385. The settlement agreement further
provided that each Named Plaintiff would be paid an incentive fee,
as authorized by the Court, up to but not more than $1,000. The
instant motion seeks Court approval of attorney's fees and
incentive fees for the maximum amount provided under the
settlement agreement, which is $58,385. The Plaintiffs argue this
amount is justified based on the amount of hours expended by class
counsel and his predecessor counsel, which would be 246.3 hours
with the attorney's fees calculated at $68,020.
Judge Holmes finds the requested fees are an excessive amount, and
he reduced the number of hours to 120 hours, which he believes is
a reasonable amount of time. He finds that an hourly rate of $250
per hour is a reasonable rate. The litigation consisted of the
filing of a complaint, motion to compel discovery, motion for
partial summary judgment, and motion for class certification. The
Defendant did not file any motions. No motions were ruled upon by
the Court because a settlement was reached after eight months, and
the motions were withdrawn. The remaining litigation activities
consisted of obtaining a settlement that would be approved by the
Court. Judge Holmes believes that an attorney's fee of $30,000 is
reasonable compensation for the efforts of predecessor and class
counsel in this case. He also finds that an incentive fee of $500
for each Named Plaintiff is fair and reasonable. Therefore, Judge
Holmes granted in part the Plaintiffs' motion for attorney's fees
and costs and incentive fees insofar as they are awarded
attorney's fees and costs in a total amount of $30,000, and each
Named Plaintiff is awarded an incentive fee of $500 each.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/7YGaNB from Leagle.com.
Yves Eugene Adams, Plaintiff, represented by Monzer J. Mansour,
Attorney at Law.
Cesar Reyes, Plaintiff, represented by Monzer J. Mansour, Attorney
at Law.
Pam Philpott, Plaintiff, represented by Monzer J. Mansour,
Attorney at Law.
Brandon Philpott, Plaintiff, represented by Monzer J. Mansour,
Attorney at Law.
Kelly Cradduck, Defendant, represented by Jason E. Owens,
Rainwater, Holt & Sexton, P.A..
BENTON COUNTY, AR: Court Dismisses "Adams" Suit With Prejudice
--------------------------------------------------------------
Judge P.K. Holmes, III, of the U.S. District Court for the Western
District of Arkansas, Fayetteville Division, dismisses with
prejudice the case captioned YVES EUGENE ADAMS; CESAR REYES; PAM
PHILPOTT; and BRANDON PHILPOTT, each individually and on behalf of
all others similarly situated, Plaintiffs, v. BENTON COUNTY
SHERIFF KELLY CRADDUCK, in his individual and official capacities;
and KEEFE COMMISSARY NETWORKS, LLC, Defendants, No. 5:13-CV-05074
W.D. Ark.).
The Court has received a report and recommendation from Magistrate
Judge Mark E. Ford. No objections have been filed and the
deadline to file objections has passed. The Magistrate recommends
that the Court grants the motion for final approval of the class
action settlement and cy pres distribution. It has carefully
reviewed the report and recommendation, which is proper, contains
no clear error, and is adopted in its entirety.
The Magistrate's recommended cy pres distributions to inmate
accounts at the Benton County Jail and then to the Benton County
Public Defender's Office will result in a distribution of
unclaimed settlement funds for a purpose as near as possible to
the objectives underlying the lawsuit, the interests of class
members, and the interests of those similarly situated.
Judge Holmes approved the settlement agreement. The Claims
Administrator is directed to keep the settlement account open for
a period of two years from June 5, 2017 -- the date of second
mailing of settlement checks to be drawn on the account.
Thereafter, the Claims Administrator is directed to distribute
unclaimed settlement funds into accounts at the Benton County Jail
in the names of class members who did not negotiate their
settlement checks while the settlement account was open, and to
maintain those jail accounts for a period of 180 days. At the
conclusion of that period, the Claims Administrator is directed to
pay all unclaimed funds in those jail accounts, and any unclaimed
settlement funds in any other account, to the Benton County Public
Defender's Office for its general use in representing Benton
County criminal defendants. He further ordered that the case is
dismissed with prejudice.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/o6PvpD from Leagle.com.
Yves Eugene Adams, Plaintiff, represented by Monzer J. Mansour,
Attorney at Law.
Cesar Reyes, Plaintiff, represented by Monzer J. Mansour, Attorney
at Law.
Pam Philpott, Plaintiff, represented by Monzer J. Mansour,
Attorney at Law.
Brandon Philpott, Plaintiff, represented by Monzer J. Mansour,
Attorney at Law.
Kelly Cradduck, Defendant, represented by Jason E. Owens,
Rainwater, Holt & Sexton, P.A..
BETTY JOHNSON: Court Seeks Report on Class Action Status
--------------------------------------------------------
Ferdie De La Torre, writing for Saipan Tribune, reports that the
federal court ordered Settlement Fund Trustee attorney Joyce Tang
and other parties to report whether all issues in the Betty
Johnson's class action have been resolved.
U.S. District Court for the NMI designated Judge Frances Tydingco-
Gatewood also directed Tang and other parties in the class action
to submit the report whether this case can now be closed in light
of the Johnson's settlement.
The judge gave the parties no later than Sept. 15, 2017, to file
the report.
In 2013, Judge Tydingco-Gatewood gave final approval to the global
settlement agreement in Johnson's class action against the CNMI
government and the NMI Retirement Fund.
Under the settlement deal, the CNMI government agreed to make
annual payments that will enable the Settlement Fund to pay at
least 75 percent of class members' benefits.
With the final approval, all Retirement Fund assets were then
transferred and assigned as assets of the Settlement Fund. The
Settlement Fund was then administered by Tang. [GN]
BILLINGS, MO: High Court Flips $2.7MM Attorney's Fees Ruling
------------------------------------------------------------
The Supreme Court of Montana issued an Opinion reversing the
judgment of the District Court and remanded the case for further
proceedings in the case captioned ERNIE WATTERS, et al., and all
others similarly situated, Plaintiffs and Appellees, v. CITY OF
BILLINGS, Defendant and Appellant, No. DA 16-0594 (Mont.).
Appellant City of Billings appeals the orders and judgment of the
Thirteenth Judicial District Court, Yellowstone County, holding
the City incorrectly paid longevity wage benefits under
successively negotiated Collective Bargaining Agreements, and
awarding damages.
Officers are current and retired police officers, and members of
the Montana Public Employees Association-Billings Police (Union).
The Union, on behalf of the Officers, collectively bargains with
the City to adopt an agreement governing the terms of the
Officers' employment. The central dispute in this case is the
correct interpretation of the longevity pay provisions in the
2000-2003, 2003-2006, and 2006-2009 CBAs entered by the City and
the Union.
Those provisions stated, in full:
"2000-2003 CBA:
Longevity shall be added to each officer's hourly rate based upon
the following formula:
.45 x .01 x the hourly rate of an officer at the beginning of year
1 x years of service.
2003-2006 CBA:
Beginning July 1, 2003, longevity shall be added to each officer's
hourly rate based upon the following formula:
.45 x .01 x the hourly rate of an officer from year 1 to 15 years
of service.
.50 x .01 x the hourly rate of an officer after year 15.
2006-2009 CBA:
(Same language as in the 2003-2006 CBA, but with nearly
appropriately corresponding dates.)"
Following a bench trial, the District Court issued findings of
fact, conclusions of law and an order. Ruling that the plain
language of the CBAs governs the outcome of this case, the
District Court again refused to consider extrinsic evidence
offered by the City about the meaning of the longevity formulas in
the CBAs.
The District Court entered a final judgment requiring the City to
pay the Officers $932,960.90, imposing a 110% penalty of
$1,026,256.99, and awarding attorneys' fees of $653,072.63 and
costs of $125,854.60, for a total of $2,738,145.12. The City
appeals.
Did the District Court err by holding that the CBAs were
unambiguous and excluding extrinsic evidence concerning
interpretation of those agreements?
The Supreme Court concluded from a review of the record that the
District Court erred by concluding as a matter of law that the
longevity provisions of the subject CBAs were unambiguous. The
differing language of the successive CBAs are reasonably subject
to more than one interpretation, and the blanket exclusion of all
extrinsic evidence offered by the City -- while selectively
relying on other extrinsic evidence -- was likewise erroneous.
The Supreme Court reversed and remanded for further proceedings,
and for consideration at trial of extrinsic evidence about the
parties' intent, subject to application of the Rules of Evidence.
Justices Laurie McKinnon, Beth Baker, Dirk M. Sandefur and James
Jeremiah Shea concurs.
Justice Michael E. Wheat dissented, concluding that the District
Court correctly ruled the City failed to pay Officers' wages and
benefits, including longevity pay, in accordance with the
applicable collective bargaining agreements between the City and
the Union.
Chief Justice Mike McGrath joins the Dissent of Justice Michael E
Wheat.
A full-text copy of the Supreme Court's August 28, 2017 Opinion is
available at http://tinyurl.com/ydh9m9tcfrom Leagle.com.
James H. Goetz, Goetz, Baldwin & Geddes, P.C., 35 North Grand
AvenueBozeman, MT 59715-6580 Bozeman, Montana W. Anderson
Forsythe, Afton E. Ball -- afton.ball@moultonbellingham.com --
Moulton Bellingham P.C., Billings, Montana, for Appellant.
L. Randall Bishop, Bishop & Heenan, Ste. #705303 N. Broadway
Billings, MT 59101, Lawrence A. Anderson, Attorney at Law, 1705
41st St South, Great Falls, MT 59405 for Appellees.
BLCH 3RD AVE: Second Circuit Appeal Filed in "Tapia" FLSA Suit
--------------------------------------------------------------
Plaintiffs Valentin Tapia, Romulo Ricano Balderas and Eufemia
Castillo filed an appeal from a court ruling in their lawsuit
styled Tapia, et al. v. Blch 3rd Ave LLC, et al., Case No. 14-cv-
8529, in the U.S. District Court for the Southern District of New
York (New York City).
As previously reported in the Class Action Reporter, the lawsuit
is brought against the Defendant pursuant to the Fair Labor
Standards Act for alleged failure to pay overtime wages for worked
in excess of 40 hours per week.
The Defendants own, operate, and control an Indian restaurant
located at 1664 Third Avenue, in New York City under the name
Brick Lane Curry House.
The appellate case is captioned as Tapia v. Blch 3rd Ave LLC, et
al., Case No. 17-2718, in the United States Court of Appeals for
the Second Circuit.[BN]
Defendants-Appellees Blch 3rd Ave LLC, DBA Brick Lane Curry House,
Ajit Bains and Satinder Sharma are represented by:
Nadi Ganesan Viswanathan, Esq.
LAW OFFICE OF NADI GANESAN VISWANATHAN ESQ.
469 7th Avenue
New York, NY 10018
Telephone: (646) 701-2945
E-mail: ganeshvnus@gmail.com
BLUE APRON: Chaudhry Files Suit Over Share Price Drop
-----------------------------------------------------
Ahmed Chaudhry, individually and on behalf of all others similarly
situated, Plaintiff, vs. Blue Apron Holdings, Inc., Matthew B.
Salzberg, Bradley J. Dickerson, Julie M.B. Bradley, Tracy Britt
Cool, Kenneth A. Fox, Robert P. Goodman, Gary R. Hirshberg, Brian
P. Kelley, Benjamin C. Singer, Goldman Sachs & Co. LLC, Morgan
Stanley & Co. LLC, Citigroup Global Markets Inc. and Barclays
Capital Inc., Defendants, Case No. 2:17-cv-06295, (D.N.J., August
21, 2017), seeks to pursue remedies under the Securities Act of
1933.
Blue Apron operates an e-commerce marketplace that delivers
original recipes and fresh ingredients packaged as fresh meal-
kits. Goldman Sachs & Co. LLC, Morgan Stanley & Co. LLC, Citigroup
Global Markets Inc. and Barclays Capital Inc. are investment
banking firms that acted as underwriters of Blue Apron's initial
public offering.
At the time of the IPO, the Company was experiencing delays at its
new factory in Linden, New Jersey, which would force the Company
to delay new product roll-outs. Blue Apron had already decided to
reduce advertising expenditures in the second quarter of 2017,
which would depress sales in future quarters, and it was
experiencing issues delivering meals to customers on time and with
of the all ingredients, which was hurting customer retention
rates. Because of this, Blue Apron experienced a 47% decline from
the IPO price. [BN]
Plaintiff is represented by:
James E. Cecchi, Esq.
CARELLA, BYRNE, CECCHI, OLSTEIN BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
Email: jcecchi@carellabyrne.com
BUMBO INTERNATIONAL: Court Denies Bid for Class Cert in "Clark"
---------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
granting Defendant's Motion for Leave to File Surreply in the case
captioned ELIZABETH CLARK, individually and on behalf of all
others similarly situated, Plaintiff, v. BUMBO INTERNATIONAL
TRUST, Defendant, No. 15 C 2725 (N.D. Ill.).
This is a putative class action against Bumbo International Trust
(Bumbo) for statutory consumer fraud and unjust enrichment.
Plaintiff, Elizabeth Clark, an Illinois citizen, alleges that
Bumbo deceptively marketed and advertised its Bumbo floor seat for
babies by making the following representation on its website:
"The floor seat stabilizes the child into slight hip flexion,
placing the pelvis in a slight anterior pelvic tilt which
facilitates lumbar extension. This action, combined with the
gentle curve of the seat back that matches the natural curve of
the rib cage, facilitates the baby around the lower ribs and trunk
for stabilization. The Seat allows for active practice of the head
and postural trunk control. It also allows a child the pelvic
stability needed to get the hands into the mid line for play.
Upright positioning facilitates an improved visual field of the
environment, improved respirations and breath control, assists a
baby who needs to be upright after feeding due to reflux and many
other benefits."
Plaintiff asserts that Bumbo violated the statutory consumer-fraud
laws and unjust enrichment laws of the 50 states and the District
of Columbia. She seeks compensatory and punitive damages,
declaratory and injunctive relief, restitution, disgorgement, and
attorneys' fees and costs.
Plaintiff seeks to represent a nationwide class of all consumers
in each of the 50 states and the District of Columbia who visited
www.bumbo.com and subsequently purchased the Bumbo Floor Seat
within the applicable statute of limitations of the respective
Class States.
A district court may certify a case for class-action treatment
only if it satisfies the four requirements of Federal Rule of
Civil Procedure 23(a) numerosity, commonality, typicality, and
adequacy of representation and one of the conditions of Rule
23(b).
Plaintiff has the burden of showing by a preponderance of evidence
that the proposed class satisfies the Rule 23 requirements.
Ascertainability and Overbreadth
There are three common problems that have caused plaintiffs to
flunk this requirement: (1) the class is not clearly defined; (2)
the class is defined by subjective criteria, such as by a person's
state of mind; and (3) the class is defined in terms of success on
the merits, a so-called "fail-safe" class.
The undisputed evidence is that a visitor to www.bumbo.com would
not necessarily have seen the Quote; rather, the visitor would
have had to navigate to that portion of the Products web page.
Therefore, plaintiff's class definitions are overbroad because
they require merely that a class member have visited the website,
not a specific web page that contained the Quote.
Plaintiff urges the Court that in the event it determines her
proposed classes are overbroad, it should not deny her motion but
instead should allow her the opportunity to amend the class
definitions to correct any overbreadth. However, this case does
not involve a minor overbreadth problem. Furthermore, as discussed
below, even if the Court were to treat plaintiff's motion as one
for certification based on the revised class definition, plaintiff
fails to meet her burden of establishing the conditions of Rule
23(b) on which she relies.
Rule 23(b)(2)
Rule 23(b)(2) requires that "the party opposing the class has
acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.
Plaintiff argues that the Court should certify a class under Rule
23(b)(2) because she and the class complain of a standard and
uniform deceptive practice and seek an injunction to prohibit
Bumbo from using the Quote on its website and in other marketing
and advertising materials.
The Court finds that this case is not appropriate for class
certification under Rule 23(b)(2), for two reasons. The first is
the mootness of plaintiff's request for injunctive relief. The
parties have stipulated that the Quote was removed from Bumbo's
website at some point after the end of the proposed class period.
There is another reason why this is not a proper Rule 23(b)(2)
suit. Colloquially, 23(b)(2) is the appropriate rule to enlist
when the plaintiffs' primary goal is not monetary relief, but
rather to require the defendant to do or not do something that
would benefit the whole class. A 23(b)(2) class cannot seek money
damages unless the monetary relief is incidental to the injunctive
or declaratory relief.
Rule 23(b)(3)
Rule 23(b)(3) permits class certification only if the questions of
law or fact common to class members 'predominate' over questions
that are individual to members of the class.
Plaintiff asserts that her and the class's claims all derive from
their viewing of the Quote prior to purchasing a Bumbo Seat. That
statement could be true only as to the narrowed class definition,
which requires putative class members to have read the Quote, so
the Court will discuss predominance in the context of the revised
definition.
Plaintiff contends that common issues undeniably predominate here,
and she identifies two common issues: whether the Quote
misrepresents the Bumbo Floor Seat's benefits and is therefore
false, fraudulent, untruthful, misleading and/or deceptive" and
whether the misrepresentations contained in the Quote are likely
to deceive a reasonable consumer.
While plaintiff correctly identifies common issues, she does not
develop any argument that these issues predominate over questions
affecting only individual members. Plaintiff further states that
she will introduce competent, expert testimony that the Bumbo Seat
interferes with the important and natural progression of child
development.
She does not submit any such expert testimony, though, and simply
says that such testimony will be similar to that of Mary Dollard
Weck, a physical therapist at Lurie Children's Hospital, who
disputed the claims in the Quote in comments she provided for a
Chicago Tribune article, which plaintiff attaches to her
memorandum.
Plaintiff's theory is not that the Bumbo Seat cannot be used as a
baby seat and is thus worthless; rather, it is that the product
does not provide the benefits described in the Quote. This appears
to be a case where few of the putative class members may share
that grievance. In any event, plaintiff provides no evidence to
that effect. Her treatment of the predominance requirement is
superficial, and the Court agrees with defendant that plaintiff
fails to meet her burden under Rule 23(b)(3).
Plaintiff's motion for class certification is denied. Defendant's
motion for leave to file a surreply is granted.
A full-text copy of the District Court's August 28, 2017
Memorandum Opinion and Order is available at
http://tinyurl.com/y8zeydpwfrom Leagle.com.
Elizabeth Clark, Plaintiff, represented by Michael S. Agruss --
michael@agrusslawfirm.com -- Agruss Law Firm LLC.
Elizabeth Clark, Plaintiff, represented by Robert R. Duncan,
Duncan Law Group, LLC, 1900 Grant St., 3rd Floor, Denver, CO 80203
& Pooja Dosi -- pooja@agrusslawfirm.com -- Agruss Law Firm, LLC.
Bumbo International Trust, Defendant, represented by Tarush R.
Anand -- tanand@brownsims.com -- Brown Sims, Alexandra Nicole Van
Dusen -- Avandusen@burkelaw.com -- Burke, Warren, MacKay &
Serritella, Danielle J. Gould -- dgould@burkelaw.com -- Burke,
Warren, MacKay & Serritella, P.C. & Sara Youn Choh --
schoh@burkelaw.com -- Burke, Warren, MacKay & Serritella.
CALIFORNIA DREAMING: Averts Servers' Suit Over Tip Pool
-------------------------------------------------------
Hanna Raskin, writing for The Post and Courier, reports that an
arbitrator cleared California Dreaming of wrongdoing in a wage
theft complaint brought by two servers who worked at the chain's
Columbia location, ruling that the restaurant did not violate the
Fair Labor Standards Act by including service bartenders in its
tip pool.
In reaching his conclusion, Kris Cato rejected a tip-pool
eligibility standard proposed in 2011 by a U.S. District Court in
Texas.
"Everybody knows these are just ambulance-chasing lawyers to bring
this ridiculous claim," Simon Bloom -- sbloom@bloomsugarman.com --
of Bloom Sugarman, which represented California Dreaming's parent
company, said before cutting a phone interview short in
frustration. "This was pure and simple a manufactured lawsuit:
They found a crazy opinion and cost my clients several hundreds of
thousands of dollars."
Service bar in limbo
At issue in the case was the employment status of service
bartenders, who mix drinks solely for servers to deliver to guests
at their tables. The overriding question was whether service
bartenders are more like bartenders, who are visible to the public
and interact with guests, or more like cooks, who prepare orders.
The distinction is significant because it's illegal to force
tipped employees to share their tips with employees who "don't
customarily and regularly receive tips," such as dishwashers and
line cooks.
Mr. Bloom argued that service bartenders automatically qualify for
tip pool inclusion because the Department of Labor's field
operations handbook lists "service bartender" as a tipped role,
along with "waiters and waitresses; counter personnel who serve
customers; bellhops (and) bussers." In various opinion letters,
the agency has also approved sushi chefs, barbacks and sommeliers
for tip pools.
But it's not clear from the handbook whether anyone with the title
of "service bartender" is eligible to join a tip pool, or if the
legality of the arrangement turns on the service bartender's job
description. Since "bartender" doesn't appear on the list of
front-of-house positions, it's conceivable the federal government
didn't intend for the provision to cover bartenders who guests
wouldn't naturally be inclined to tip.
A Department of Labor spokesman was not available to comment, but
such was the implication of the Texas decision, which involved
service bartenders at a Tex-Mex restaurant in San Antonio.
There, the court ruled an employee's "degree of visibility must
pass a threshold that incentivizes the average customer to
'customarily and regularly' tip 'in recognition' of the service
being performed to their benefit." In other words, a service
bartender can only participate in a tip pool if guests can see her
and feel compelled to ante up for her work.
Like a dream
California Dreaming requires its employees to resolve disputes
through arbitration, an increasingly common practice that has been
roundly criticized for subjecting workers to "a privatized,
invisible, and often inferior forum in which they are less likely
to prevail," as The Economic Policy Institute, a nonpartisan think
tank, termed it in a 2015 report.
"Such tactics work to silence wage claims, leaving far too many
claims unheard while unscrupulous employers gain direct
advantage," University of Denver law professor Nantiya Ruan wrote
in the Michigan State Law Review.
Still, the plaintiffs in the California Dreaming matter initially
received legal approval to bring a class action lawsuit,
potentially adding 1,300 employees to the list of former and
current employees who would collect lost wages if the court sided
with them. The case was decertified as a class action in February
2017, leaving Brittany Bradley and Tamia Britnie Corbitt as the
lone plaintiffs.
At the June hearing, California Dreaming sought to establish that
it's customary for service bartenders to receive tips. The CEO of
California Dreaming's parent company, CentraArchy, testified that
service bartenders were tipped in every restaurant at which he
worked, dating back to a TGIFriday's in 1983. CentraArchy's chief
operating officer claimed the same, referring to his time spent at
Ruby Tuesday's and Maggiano's.
"Neither Ms. Bradley nor Ms. Corbitt has had experience at any
restaurant other than California Dreaming that uses a service
bartender," the arbitrator wrote, describing the defendants as
more credible. "The other witnesses called by plaintiffs were
similarly inexperienced."
Beyond showing that tipping service bartenders is an industry
standard, California Dreaming had to prove its service bartenders
were front-of-house employees who interacted with guests. The
arbitrator felt that condition was satisfied by the testimony of a
former service bartender who "recalled fielding 'plenty of
questions' from guests regarding the location of the restrooms."
Finally, he concluded, "Department of Labor regulations and
administrative guidance unequivocally include service bartenders
as those eligible to participate in tip pools."
"A sliver of law out of a trial court in Texas ignored this black
letter principle," Mr. Bloom said. "It went the way it was
supposed to go." [GN]
CANADA: Two First Nations Fishermen File Tax Class Action
---------------------------------------------------------
Kyle Benning, writing for CKNW, reports that Two First Nations
fishermen from B.C. have filed a class-action lawsuit against the
federal government, claiming they have been improperly taxed for
nearly two decades.
Bill and Daniel Scow are suing the Attorney General and the
Minister of National Revenue insisting they were wrongly denied
income tax exemptions.
The Scows are members of the We Wai Kai Nation in Campbell River
and claim their incomes haven't been properly taxed since 2001.
Both fishermen are bringing the court action forward on behalf of
all Aboriginal people who have had their personal property on a
reserve unlawfully taxed.
Court documents filed in BC Supreme Court say the Scows didn't
file objection notices on time for their previous income taxes,
but say their rights under the Indian Act override those time
limitations.
Bill also claims the Canada Revenue Agency took action against him
three years ago by garnishing all of his Canada Pension Plan and
employment insurance payments, leaving him with no income that
year while he was receiving treatment for late-stage liver cancer.
Both federal ministries have not responded to our request for
comment.
None of the allegations have been proven in court. [GN]
CEPHALON INC. Court Denies Class Certification in Antitrust Suit
----------------------------------------------------------------
The case captioned KING DRUG COMPANY OF FLORENCE, INC., et al.,
Plaintiffs, v. CEPHALON, INC., et al., Defendants, Civil Action
No. 2:06-cv-1797 (E.D. Pa.), case involves class action antitrust
allegations stemming from several reverse payment patent
settlements under the Hatch-Waxman Act, now commonly referred to
as an Actavis claim. On remand from the United States Court of
Appeals for the Third Circuit, the United States District Court
for the Eastern District of Pennsylvania again addresses the
numerosity analysis under Federal Rule of Civil Procedure
23(a)(1).
Direct Purchaser Class Plaintiffs initially brought this antitrust
lawsuit against the manufacturer of Provigil, Cephalon, Inc., as
well as four generic pharmaceutical companies (collectively
"Generic Defendants"). The four Hatch-Waxman reverse-payment
settlements at issue, executed in 2005 and 2006, were between
Cephalon and each of the Generic Defendants, and were alleged to
be anticompetitive for delaying the market entry of generic
Provigil.
Direct Purchaser Class Plaintiffs have filed a supplemental motion
for class certification. The prospective class again includes drug
wholesalers that purchased the brand-name drug, Provigil, directly
from Cephalon, Inc. at any time between June 24, 2006 and August
31, 2012.
The motion follows the Third Circuit's Opinion vacating my initial
grant of class certification. Noting that it had "not had occasion
to list relevant factors that are appropriate for district court
judges to consider when determining whether joinder would be
impracticable," the Third Circuit provided "a framework for
district courts to apply when conducting their numerosity
analyses."
Based on the scope of the remand, the only question before the
District Court is whether the proposed class satisfies the
numerosity requirement under Federal Rule of Civil Procedure
23(a)(1). Applying the framework set out by the Third Circuit, the
District Court concludes that the numerosity requirement is not
satisfied and, as a result, Direct Purchasers' supplemental motion
for class certification will be denied.
As the two factors of "primary importance" weigh strongly against
class certification, the District Court concludes that Direct
Purchasers have not proven by a preponderance of the evidence that
the class members are so numerous as to render joinder
impracticable. Thus, Direct Purchasers' supplemental motion for
class certification will be denied.
A full-text copy of the District Court's August 28, 2017
Memorandum is available at http://tinyurl.com/ycotr838from
Leagle.com.
KING DRUG COMPANY OF FLORENCE, INC., Plaintiff, represented by
ANDREW WILLIAM KELLY -- akelley@odrlaw.com -- ODOM & DES ROCHES
LLP.
KING DRUG COMPANY OF FLORENCE, INC., Plaintiff, represented by
BRUCE E. GERSTEIN -- bgerstein@garwingerstein.com -- GARWIN
GERSTEIN AND FISHER L.L.P., DAN LITVIN --
dlitvin@garwingerstein.com -- GARWIN GERSTEIN & FISHER LLP, DANIEL
BERGER -- danberger@bm.net -- BERGER & MONTAGUE, P.C., DAVID C.
RAPHAEL, Jr., SMITH SEGURA & RAPHAEL LLP, DAVID P. SMITH, SMITH
SEGURA & RAPHAEL LLP, 3600 Jackson St. Ste 111, Alexandria, LA
71303-3000, Rapides Parish, DIANNE M. NAST -- dnast@nastlaw.com -
- NASTLAW LLC, ERIN C. BURNS -- eburns@nastlaw.com -- NASTLAW
LLC, JOSEPH OPPER -- jopper@garwingerstein.com -- GARWIN
GERSTEIN & FISHER LLP, LINDA P. NUSSBAUM --
lnussbaum@nussbaumpc.com -- NUSSBAUM LAW GROUP PC, NICHOLAS URBAN
-- nurban@bm.net -- BERGER MONTAGUE PC, NOAH SILVERMAN --
nsilverman@garwingerstein.com -- GARWIN GERSTEIN & FISHER LLP,
STUART E. DE SROCHES -- stuart@odrlaw.com -- ODOM & DES ROCHES
LLP, SUSAN C. SEGURA, SMITH SEGURA & RAPHAEL LLP, BRIAN D. BROOKS,
SMITH SEGURA & RAPHAEL LLP, , 3600 Jackson St. Ste 111,
Alexandria, LA 71303-3000, Rapides Parish, CHRIS LETTER --
cletter@odrlaw.com -- ODOM & DESROCHES, DANIEL C. SIMONS --
dsimons@bm.net -- BERGER AND MONTAGUE P.C., DAVID F. SORENSEN --
dsorensen@bm.net -- BERGER & MONTAGUE, P.C., DOUGLAS R. WILSON --
dwilson@hpcllp.com -- HEIM PAYNE & CHORUSH LLP, KIMBERLY HENNINGS
-- khennings@garwingerstein.com -- GARWIN GERSTEIN FISHER LLP,
MIRANDA Y. JONES -- mjones@hpcllp.com -- HEIM PAYNE & CHORUSH
LLP, NEILL WILSON CLARK -- nclark@faruqilaw.com -- FARUQI & FARUQI
LLP, RUSSELL A. CHORUSH -- rchorush@hpcllp.com -- Heim, Payne &
Chorush LLP & SCOTT E. PERWIN -- sep@kennynachwater.com -- KENNY
NACHWALTER, P.A..
J M SMITH CORPORATION, Plaintiff, represented by ANDREW WILLIAM
KELLY, ODOM & DES ROCHES LLP, BRUCE E. GERSTEIN, GARWIN GERSTEIN
AND FISHER L.L.P., DAN LITVIN, GARWIN GERSTEIN & FISHER LLP,
DANIEL BERGER, BERGER & MONTAGUE, P.C., DANIEL C. SIMONS, BERGER
AND MONTAGUE P.C., DAVID C. RAPHAEL, Jr., SMITH SEGURA & RAPHAEL
LLP, DAVID P. SMITH, SMITH SEGURA & RAPHAEL LLP, DAVID F.
SORENSEN, BERGER & MONTAGUE, P.C., DIANNE M. NAST, NASTLAW LLC,
ERIN C. BURNS, NASTLAW LLC, JOSEPH OPPER, GARWIN GERSTEIN & FISHER
LLP, LINDA P. NUSSBAUM, NUSSBAUM LAW GROUP PC, NICHOLAS URBAN,
BERGER MONTAGUE PC, NOAH SILVERMAN, GARWIN GERSTEIN & FISHER LLP,
STUART E. DE SROCHES, ODOM & DES ROCHES LLP, SUSAN C. SEGURA,
SMITH SEGURA & RAPHAEL LLP, BRIAN D. BROOKS, SMITH SEGURA &
RAPHAEL LLP, CHRIS LETTER, ODOM & DESROCHES, KIMBERLY HENNINGS,
GARWIN GERSTEIN FISHER LLP, NEILL WILSON CLARK, FARUQI & FARUQI
LLP & SCOTT E. PERWIN, KENNY NACHWALTER, P.A..
MEIJER, INC., Plaintiff, represented by ALLEN D. BLACK, FINE,
KAPLAN & BLACK, ANDREW WILLIAM KELLY, ODOM & DES ROCHES LLP, BRUCE
E. GERSTEIN, GARWIN GERSTEIN AND FISHER L.L.P., DANIEL BERGER,
BERGER & MONTAGUE, P.C., DANIEL C. SIMONS, BERGER AND MONTAGUE
P.C., DAVID P. GERMAINE, VANEK VICKERS & MASINI PC, DAVID P.
SMITH, SMITH SEGURA & RAPHAEL LLP, DAVID F. SORENSEN, BERGER &
MONTAGUE, P.C., DIANNE M. NAST, NASTLAW LLC, ERIN C. BURNS,
NASTLAW LLC, JOSEPH OPPER, GARWIN GERSTEIN & FISHER LLP, NICHOLAS
URBAN, BERGER MONTAGUE PC, STUART E. DE SROCHES, ODOM & DES ROCHES
LLP, JOHN PAUL BJORK, VANEK VICKERS & MASINI PC, JOSEPH M. VANEK,
VANEK VICKERS & MASINI PC, KIMBERLY HENNINGS, GARWIN GERSTEIN
FISHER LLP, LINDA P. NUSSBAUM, NUSSBAUM LAW GROUP PC, NEILL WILSON
CLARK, FARUQI & FARUQI LLP, RICHARD J. KILSHEIMER, KAPLAN FOX &
KILSHEIMER LLP & SCOTT E. PERWIN, KENNY NACHWALTER, P.A..
MEIJER DISTRIBUTION, INC., Plaintiff, represented by ALLEN D.
BLACK, FINE, KAPLAN & BLACK, ANDREW WILLIAM KELLY, ODOM & DES
ROCHES LLP, BRUCE E. GERSTEIN, GARWIN GERSTEIN AND FISHER L.L.P.,
DANIEL BERGER, BERGER & MONTAGUE, P.C., DANIEL C. SIMONS, BERGER
AND MONTAGUE P.C., DAVID P. GERMAINE, VANEK VICKERS & MASINI PC,
DAVID P. SMITH, SMITH SEGURA & RAPHAEL LLP, DAVID F. SORENSEN,
BERGER & MONTAGUE, P.C., DIANNE M. NAST, NASTLAW LLC, ERIN C.
BURNS, NASTLAW LLC, JOSEPH OPPER, GARWIN GERSTEIN & FISHER LLP,
STUART E. DE SROCHES, ODOM & DES ROCHES LLP, JOHN PAUL BJORK,
VANEK VICKERS & MASINI PC, JOSEPH M. VANEK, VANEK VICKERS & MASINI
PC, KIMBERLY HENNINGS, GARWIN GERSTEIN FISHER LLP, LINDA P.
NUSSBAUM, NUSSBAUM LAW GROUP PC, NEILL WILSON CLARK, FARUQI &
FARUQI LLP, NICHOLAS URBAN, BERGER MONTAGUE PC, RICHARD J.
KILSHEIMER, KAPLAN FOX & KILSHEIMER LLP & SCOTT E. PERWIN, KENNY
NACHWALTER, P.A..
ROCHESTER DRUG CO-OPERATIVE, INC., Plaintiff, represented by
ANDREW WILLIAM KELLY, ODOM & DES ROCHES LLP, BRUCE E. GERSTEIN,
GARWIN GERSTEIN AND FISHER L.L.P., DANIEL BERGER, BERGER &
MONTAGUE, P.C., DAVID P. SMITH, SMITH SEGURA & RAPHAEL LLP, DAVID
F. SORENSEN, BERGER & MONTAGUE, P.C., DIANNE M. NAST, NASTLAW LLC,
ERIC L. CRAMER, BERGER & MONTAGUE, PC, ERIN C. BURNS, NASTLAW LLC,
JOSEPH OPPER, GARWIN GERSTEIN & FISHER LLP, LINDA P. NUSSBAUM,
NUSSBAUM LAW GROUP PC, PETER R. KOHN, FARUQI & FARUQI, LLP, SARAH
SCHALMAN-BERGEN, BERGER & MONTAGUE PC, STUART E. DE SROCHES, ODOM
& DES ROCHES LLP, ANDREW COYNE CURLEY, BERGER & MONTAGUE PC,
CAITLIN G. COSLETT, BERGER MONTAGUE PC, DANIEL C. SIMONS, BERGER
AND MONTAGUE P.C., KIMBERLY HENNINGS, GARWIN GERSTEIN FISHER LLP,
NEILL WILSON CLARK, FARUQI & FARUQI LLP, NICHOLAS URBAN, BERGER
MONTAGUE PC, SCOTT E. PERWIN, KENNY NACHWALTER, P.A. & STEPHEN
EDWARD CONNOLLY, CONNOLLY WELLS & GRAY LLP.
STEPHEN L. LAFRANCE HOLDINGS, INC., Plaintiff, represented by
ANDREW WILLIAM KELLY, ODOM & DES ROCHES LLP, BRUCE E. GERSTEIN,
GARWIN GERSTEIN AND FISHER L.L.P., DANIEL BERGER, BERGER &
MONTAGUE, P.C., DAVID P. SMITH, SMITH SEGURA & RAPHAEL LLP, DAVID
F. SORENSEN, BERGER & MONTAGUE, P.C., ERIN C. BURNS, NASTLAW LLC,
JOSEPH OPPER, GARWIN GERSTEIN & FISHER LLP, LINDA P. NUSSBAUM,
NUSSBAUM LAW GROUP PC, MICHAEL L. ROBERTS, ROBERTS LAW FIRM,
STUART E. DE SROCHES, ODOM & DES ROCHES LLP, DANIEL C. SIMONS,
BERGER AND MONTAGUE P.C., DIANNE M. NAST, NASTLAW LLC, KIMBERLY
HENNINGS, GARWIN GERSTEIN FISHER LLP, NEILL WILSON CLARK, FARUQI &
FARUQI LLP & SCOTT E. PERWIN, KENNY NACHWALTER, P.A..
BURLINGTON DRUG COMPANY, INC., Plaintiff, represented by ANDREW
WILLIAM KELLY, ODOM & DES ROCHES LLP, BRUCE E. GERSTEIN, GARWIN
GERSTEIN AND FISHER L.L.P., DAN LITVIN, GARWIN GERSTEIN & FISHER
LLP, DANIEL BERGER, BERGER & MONTAGUE, P.C., DAVID C. RAPHAEL,
Jr., SMITH SEGURA & RAPHAEL LLP, DAVID P. SMITH, SMITH SEGURA &
RAPHAEL LLP, DAVID F. SORENSEN, BERGER & MONTAGUE, P.C., DIANNE M.
NAST, NASTLAW LLC, ERIN C. BURNS, NASTLAW LLC, JOSEPH OPPER,
GARWIN GERSTEIN & FISHER LLP, LINDA P. NUSSBAUM, NUSSBAUM LAW
GROUP PC, NOAH SILVERMAN, GARWIN GERSTEIN & FISHER LLP, STUART E.
DE SROCHES, ODOM & DES ROCHES LLP, SUSAN C. SEGURA, SMITH SEGURA &
RAPHAEL LLP, BRIAN D. BROOKS, SMITH SEGURA & RAPHAEL LLP, CHRIS
LETTER, ODOM & DESROCHES, DANIEL C. SIMONS, BERGER AND MONTAGUE
P.C., KIMBERLY HENNINGS, GARWIN GERSTEIN FISHER LLP, NEILL WILSON
CLARK, FARUQI & FARUQI LLP & SCOTT E. PERWIN, KENNY NACHWALTER,
P.A..
STEPHEN L. LAFRANCE PHARMACY, Plaintiff, represented by ANDREW
WILLIAM KELLY, ODOM & DES ROCHES LLP, BRUCE E. GERSTEIN, GARWIN
GERSTEIN AND FISHER L.L.P., DANIEL BERGER, BERGER & MONTAGUE,
P.C., DANIEL C. SIMONS, BERGER AND MONTAGUE P.C., DAVID P. SMITH,
SMITH SEGURA & RAPHAEL LLP, DAVID F. SORENSEN, BERGER & MONTAGUE,
P.C., DIANNE M. NAST, NASTLAW LLC, ERIN C. BURNS, NASTLAW LLC,
JOSEPH OPPER, GARWIN GERSTEIN & FISHER LLP, LINDA P. NUSSBAUM,
NUSSBAUM LAW GROUP PC, MICHAEL L. ROBERTS, ROBERTS LAW FIRM,
STUART E. DE SROCHES, ODOM & DES ROCHES LLP, KIMBERLY HENNINGS,
GARWIN GERSTEIN FISHER LLP, NEILL WILSON CLARK, FARUQI & FARUQI
LLP & SCOTT E. PERWIN, KENNY NACHWALTER, P.A..
WALGREEN CO., Plaintiff, represented by MONICA L. KILEY, HANGLEY
ARONCHICK SEGAL PUDLIN & SCHILLER, RICHARD A. ARNOLD, KENNY,
NACHWALTER, PA, SCOTT E. PERWIN, KENNY NACHWALTER, P.A., ANNA T.
NEILL, KENNY NACHWALTER PA, BARRY L. REFSIN, HANGLEY ARONCHICK
SEGAL & PUDLIN, DANIEL C. SIMONS, BERGER AND MONTAGUE P.C., JOSEPH
OPPER, GARWIN GERSTEIN & FISHER LLP & NEILL WILSON CLARK, FARUQI &
FARUQI LLP.
THE KROGER CO., Plaintiff, represented by MONICA L. KILEY, HANGLEY
ARONCHICK SEGAL PUDLIN & SCHILLER, SCOTT E. PERWIN, KENNY
NACHWALTER, P.A., ANNA T. NEILL, KENNY NACHWALTER PA, BARRY L.
REFSIN, HANGLEY ARONCHICK SEGAL & PUDLIN, DANIEL C. SIMONS, BERGER
AND MONTAGUE P.C. & NEILL WILSON CLARK, FARUQI & FARUQI LLP.
EPHALON, INC., Defendant, represented by KEVIN T. VANWART --
kevin.vanwart@kirkland.com -- KIRKLAND & ELLIS LLP, EMILY R.
WHELAN -- emily.whelan@wilmerhale.com -- WILMER HALE, FRANK R.
EMMERICH, Jr. -- femmerich@condradobrien.com -- CONRAD O'BRIEN
GELLMAN & ROHN PC, GREGORY P. TERAN, WILMER CUTLER PICKERING HALE
& DORR LLP, JAMES DOUGLAS BALDRIDGE -- jbaldridge@Venable.com --
VENABLE LLP, MARK A. FORD -- mark.ford@wilmerhale.com -- WILMER
CUTLER PICKERING HALE DORR LLP, MELINDA MEADOR, WINCHESTER SELLERS
FOSTER & STEELE PC, NANCY J. GELLMAN -- ngellman@condradobriwn.com
-- FOX ROTHSCHILD LLP, PETER J. KOLOVOS --
peter.kolovos@wilmerhale.com -- WILMER CUTLER PICKERING HALE DORR
LLP, PETER A. SPAETH -- peter.spaeth@wilmerhale.com -- WILMER
BUTLER PICKERING HALE AND DORR LLP & ROBERT J. GUNTHER, Jr.,
WILMER CUTLER PICKERING HALE DORR LLP.
MYLAN LABORATORIES, INC., Defendant, represented by C. FAIRLEY
SPILLMAN, AKIN GUMP STRAUSS HAUER & FELD LLP, CATHERINE E. CREELY,
AKIN GUMP STRAUSS HAUER & FELD LLP, DANIEL P. MARGOLSKEE, CRAVATH
SWAINE & MOORE LLP, DAVID L. COMERFORD, AKIN GUMP STRAUSS HAUER &
FELD LLP, DAVID R. MARRIOTT, CRAVATH SWAINE & MOORE LLP, EVAN R.
CHESLER, CRAVATH SWAINE & MOORE LLP, KATHERINE M. KATCHEN, AKIN
GUMP STRAUSS HAUER & FELD, LLP, LINDSAY J. TIMLIN, CRAVATH SWAINE
& MOORE LLP, PAUL B. HEWITT, AKIN GUMP STRAUSS HAUER & FELD LLP,
REGINALD D. STEER, AKIN GUMP STRAUSS HAUER & FELD LLP & JAMES
DOUGLAS BALDRIDGE, VENABLE LLP.
TEVA PHARMACEUTICAL INDUSTRIES, LTD., Defendant, represented by
LAURENCE SCHOEN, MINTZ LEVIN COHN FERRIS GLOVSKY & POPEO PC, JAMES
DOUGLAS BALDRIDGE, VENABLE LLP, JEFFREY B. KORN, WILLKIE FARR
GALLAGHER LLP, JOSEPH E. WOLFSON, STEVENS & LEE & WILLIAM H.
ROONEY, WILLKIE, FARR & GALLAGHER.
TEVA PHARMACEUTICALS USA, INC., Defendant, represented by LAURENCE
SCHOEN, MINTZ LEVIN COHN FERRIS GLOVSKY & POPEO PC, JAMES DOUGLAS
BALDRIDGE, VENABLE LLP, JEFFREY B. KORN, WILLKIE FARR GALLAGHER
LLP, JOSEPH E. WOLFSON, STEVENS & LEE & WILLIAM H. ROONEY,
WILLKIE, FARR & GALLAGHER.
RANBAXY LABORATORIES, LTD., Defendant, represented by CHRISTOPHER
K. DIAMOND, VENABLE LLP, DANIELLE R. FOLEY, VENABLE LLP, DAVID L.
FEINBERG, VENABLE LLP, JAMES DOUGLAS BALDRIDGE, VENABLE LLP, LISA
JOSE FALES, VENABLE, LLP, VINCENT E. VERROCCHIO, VENABLE, LLP,
BRETT ALAN KRATZ, HARKINS CUNNINGHAM LLP & NEILL C. KLING, HARKINS
CUNNINGHAM LLP.
RANBAXY PHARMACEUTICALS, INC., Defendant, represented by
CHRISTOPHER K. DIAMOND, VENABLE LLP, DANIELLE R. FOLEY, VENABLE
LLP, DAVID L. FEINBERG, VENABLE LLP, JAMES DOUGLAS BALDRIDGE,
VENABLE LLP, LISA JOSE FALES, VENABLE, LLP, VINCENT E. VERROCCHIO,
VENABLE, LLP, BRETT ALAN KRATZ, HARKINS CUNNINGHAM LLP & NEILL C.
KLING, HARKINS CUNNINGHAM LLP.
MYLAN PHARMACEUTICALS, INC., Defendant, represented by C. FAIRLEY
SPILLMAN, AKIN GUMP STRAUSS HAUER & FELD LLP, CATHERINE E. CREELY,
AKIN GUMP STRAUSS HAUER & FELD LLP, DANIEL P. MARGOLSKEE, CRAVATH
SWAINE & MOORE LLP, DAVID R. MARRIOTT, CRAVATH SWAINE & MOORE LLP,
EVAN R. CHESLER, CRAVATH SWAINE & MOORE LLP, LINDSAY J. TIMLIN,
CRAVATH SWAINE & MOORE LLP, REGINALD D. STEER, AKIN GUMP STRAUSS
HAUER & FELD LLP, JAMES DOUGLAS BALDRIDGE, VENABLE LLP & KATHERINE
M. KATCHEN, AKIN GUMP STRAUSS HAUER & FELD, LLP.
BARR PHARMACEUTICALS, INC., Defendant, represented by ERIN C.
DOUGHERTY, MONTGOMERY MCCRACKEN WALKER & RHOADS, LLP, JAMES
DOUGLAS BALDRIDGE, VENABLE LLP, JAY P. LEFKOWITZ, KIRKLAND &
ELLIS, JOHN C. O'QUINN, KIRKLAND ELLIS LLP, KAREN N. WALKER,
KIRKLAND & ELLIS, KATHERINE R. KATZ, KIRKLAND & ELLIS LLP, LATHROP
B. NELSON, III, MONTGOMERY MCCRACKEN WALKER AND RHOADS, L.L.P. &
RICHARD L. SCHEFF, MONTGOMERY MCCRACKEN WALKER & RHOADS LLP.
TADEKA PHARMACEUTICAL NORTH AMERICA, INC., Movant, represented by
NATALIE GRILL EINSIG, PEPPER HAMILTON LLP.
CHARLOTTE LAW: Ex-Students' Deceptive Trade Claims Can Proceed
--------------------------------------------------------------
Karen Sloan, writing for Law.com, reports that two proposed class
actions against the now defunct Charlotte School of Law brought by
former students have survived motions to dismiss, leaving their
unfair and deceptive trade practice claims intact.
While allowing those claims to move forward, Judge Graham Mullen
of the U.S. District Court for the Western District of North
Carolina dismissed the bulk of the plaintiffs' claims against the
school, which included allegations of unjust enrichment and breach
of contract.
The cases, Barchiesi v. Charlotte School of Law and Levy v.
Charlotte School of Law, are among the three proposed federal
class actions filed thus far against the school by former students
since December, claiming officials hid Charlotte's accreditation
problems in a bid to keep students enrolled. A fourth federal
suit was filed by an individual student.
The decisions from Judge Graham Mullen of the U.S. District Court
for the Western District of North Carolina came just days after
Charlotte closed down. Administrators had been fighting to keep
the school open since late December, when the U.S. Department of
Education cut it off from the federal student loan program due to
accreditation shortcomings first identified in 2014. But
Charlotte missed an August deadline, set by North Carolina higher
education regulators, to be fully reinstated to that loan program
and secure the American Bar Association's blessing for its plan to
continue. Hence, the school's license to operate in the state
lapsed.
Charlotte became the third American Bar Association-accredited law
school to close or announce plans to close in the past year.
Indiana Tech Law School shuttered in May after just four years due
to low enrollment. And Whittier Law School will close in 2019
after all current student have graduated, officials announced in
April.
In Barchiesi, Judge Mullen allowed the claim of unfair and
deceptive trade practices to proceed. In Levy, he permitted the
plaintiffs to amend their claims of unfair and deceptive trade
practices, intentional misrepresentation, and negligent
misrepresentation. Attorneys for both the plaintiffs in Levy and
for the Charlotte School of Law did not respond to requests for
comment on Aug. 22.
Attorney Forest Horne, who represents the plaintiffs in Barchiesi,
called Judge Mullen's opinion in that case "reasoned and well
considered."
"We look forward to proceeding to trial to protect the rights of
the injured [Charlotte] student class members," he said.
Judge Mullen appeared most amenable to the argument presented in
Barchiesi that the school met the standard for unfair and
deceptive trade practices because it purposefully hid the fact
that it had run afoul of ABA accreditors.
"Taking these allegations as true, Plaintiffs have set forth
abundant allegations of Defendants' unfair and deceptive conduct
which denied Plaintiffs the ability to make an informed decision,
and led Plaintiffs to erroneously believe [Charlotte] was in full
compliance with ABA standards, all done by Defendants to induce
attendance at [Charlotte]," Judge Mullen wrote in his August 17
opinion in Barchiesi.
But Mullen was unconvinced that that the plaintiffs made their
case for other claims. He dismissed claims of breach of fiduciary
duty, constructive fraud, and unjust enrichment in Barchiesi.
Likewise, he dismissed Levy's claims of unjust enrichment, breach
of contract, and breach of covenant of good faith and fair
dealing, among other claims.
North Carolina courts have repeatedly rejected attempts to hold
schools to a fiduciary standard in regard to their students,
Mullen wrote in his Barchiesi opinion. Without an established
fiduciary duty, the suit does not meet the standard for
constructive fraud, he continued. Similarly, the plaintiffs claim
of unjust enrichment fails because the Charlotte students did, in
fact, receive a legal education for their tuition payments, Mullen
found.
In dismissing the breach of contract claims alleged in Levy,
Mullen wrote that the students had not entered into a contract
with the law school.
"Plaintiffs herein do not identify any written contract and
provide no meaningful substance (or even date) of any such alleged
agreement," the opinion reads. "Plaintiffs conclusory allegations
contain no factual content of any 'specific promises' about the
quality of education, ABA accreditation, or a 'rigorous
curriculum.'" [GN]
CIA: 9th Cir. Reverses Dismissal of FOIA Suit
---------------------------------------------
The United States Court of Appeals, Ninth Circuit, issued an
Opinion reversing the judgment of the District Court dismissing
the case captioned STEPHEN YAGMAN, Plaintiff-Appellant, v. MICHAEL
POMPEO; CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees, No. 15-
55442 (9th Cir.), for failure to exhaust administrative remedies.
Plaintiff Stephen Yagman filed suit against the Central
Intelligence Agency and its director under the Freedom of
Information Act (FOIA), seeking records identifying CIA personnel
or affiliates that have engaged in torture.
The district court held that because Yagman's request for records
constituted a question that Defendants were not required to
answer, he failed to exhaust administrative remedies. The court
further concluded that exhaustion of administrative remedies was a
jurisdictional requirement, and therefore dismissed Yagman's
complaint for lack of subject matter jurisdiction.
Yagman sent Defendants a letter requesting records/information on
the names and company/organization affiliations of any CIA
employees, agents, operatives, contractors, mercenaries, and/or
companies who are alleged to have engaged in torture of persons.
Defendants responded to Yagman with a letter advising him that
"[u]nder the provisions of the FOIA, federal agencies are not
required to answer questions posed as FOIA requests. Since the
request does not constitute a request for records, we must decline
to process it. Yagman reiterated his request in a subsequent
letter, but Defendants reaffirmed their position."
Yagman then filed a class action complaint against Defendants to
compel disclosure. Two months after service of the complaint,
Defendants left two messages for Yagman instructing him to call
the agency's FOIA hotline to discuss his request. Yagman's
receptionist called the hotline. Defendants again asserted that
the agency was unable to process Yagman's request, but they
expressed a willingness to help him rework his request.
When Yagman did not contact the agency again, Defendants moved to
dismiss Yagman's complaint for lack of subject matter
jurisdiction. The district court granted Defendants' motion,
holding that Yagman's letter did not constitute a request for
records. The court concluded that Yagman's failure to submit a
valid request was a failure to exhaust administrative remedies
under FOIA, and, as a result, the court lacked subject matter
jurisdiction.
Yagman timely appealed.
The Ninth Circuit disagrees, in all respects save one. Although
Defendants were required to liberally construe Yagman's letter as
a request for records, the request nonetheless failed to
"reasonably describe" the records sought. But this failure bears
on the merits of Yagman's claim, not on the district court's
subject matter jurisdiction.
The Ninth Circuit has not yet had the opportunity to consider the
issue. But the Ninth Circuit is persuaded that a duty of liberal
construction accords with the basic purpose of FOIA to ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed. Liberal construction is
warranted to achieve the core purpose of FOIA: allowing the public
to find out what their government is up to.
While the Ninth Circuit has rarely reviewed an agency's refusal to
respond to a records request on the ground that it poses a
question, applying the duty to liberally construe records requests
easily resolves this initial issue. Liberally construed, Yagman
requested records/information identifying CIA employees or
affiliates who have engaged in torture. The fact that Yagman's
request references President Obama's statement does not transform
Yagman's request into a question.
The Ninth Circuit therefore holds that the district court erred in
concluding that Yagman's request constituted a question rather
than a request for record.
Here, Defendants would need to engage in quite a bit of guesswork
to execute Yagman's request. His request does not identify
specific persons, much less specific documents, types of
documents, or types of information. Nor does his request suggest
much in the way of times, dates, locations, or even clearly
indicate if he is seeking the identities of those who have engaged
in torture or only those who are alleged to have engaged in
torture.7
As the district court noted, Yagman's request would therefore
require a search for unspecified persons in unspecified locations
during a vaguely defined time. Although FOIA does not require
requesters to do more than reasonably describe the records sought,
it does require more than Yagman has offered. Ultimately,
therefore, he cannot compel Defendants to disclose documents on
the basis of such a vague request.
Defendants argue that Yagman's failure to reasonably describe" the
records sought constitutes a failure to exhaust administrative
remedies and, as a result, the district court lacked subject
matter jurisdiction.
The Ninth Circuit disagrees.
The requirement in Section 552(a)(3) that a person submitting a
FOIA request reasonably describe what she or he seeks is properly
viewed as an ingredient of the claim for relief, rather than a
question of subject matter jurisdiction.
Judicial opinions often obscure the law by stating that the court
is dismissing for lack of jurisdiction when some threshold fact
has not been established, without explicitly considering whether
the dismissal should be for lack of subject matter jurisdiction or
for failure to state a claim. As the Supreme Court has explained,
such drive-by jurisdictional rulings should be accorded no
precedential effect.
Instead, statutory requirements should be considered
jurisdictional only when Congress clearly states as much. If the
Legislature clearly states that a threshold limitation on a
statute's scope shall count as jurisdictional, then courts and
litigants will be duly instructed and will not be left to wrestle
with the issue. When Congress does not rank a statutory limitation
on coverage as jurisdictional, courts should treat the restriction
as non-jurisdictional in character.
The Ninth Circuit concludes that the district court erred when it
dismissed the case for lack of subject matter jurisdiction, and
the Ninth Circuit reverses the district court's judgment. But the
Ninth Circuit agrees with the district court that Yagman failed to
reasonably describe the records he sought. Nonetheless, the Ninth
Circuit remands to the district court with instructions to allow
Yagman to reframe his request for documents in light of our
holding and the CIA's repeated offers to assist him in formulating
a reasonably specific request.
The district court may stay proceedings as it deems appropriate to
allow the parties to work out any revised request, if possible,
and to allow the CIA to respond to any revised request as
permitted under FOIA or any implementing regulations.
A full-text copy of the Ninth Circuit's August 28, 2017 Opinion is
available at http://tinyurl.com/yamh22ypfrom Leagle.com.
Stephen Yagman (argued), Venice Beach, California; 723 Ocean Front
Walk Venice, CA 90291-3270 Joseph Reichmann -- JReichm@aol.com --
Yagman & Reichmann, Venice Beach, California; Plaintiff-Appellant.
Gerard Sinzdak -- gsinzdak@gmail.com -- (argued) and Matthew M.
Collette, Attorneys, Appellate Staff; Stephanie Yonekura, United
States Attorney; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
CITIGROUP INC: T. Frank Gets $33K in Atty Fees in Securities Suit
-----------------------------------------------------------------
Judge Sidney H. Stein of the U.S. District Court for the Southern
District of New York granted Objector Theodore Frank's motion for
an award of attorneys' fees and expenses in the case captioned IN
RE CITIGROUP INC., SECURITIES LITIGATION, No. 07-cv-9901
(SHS)(S.D. N.Y.).
On Aug. 1, 2013, the Court approved a $590 million settlement of a
securities fraud action brought on behalf of a class of purchasers
of Citigroup, Inc. common stock against Citigroup and certain of
its officers. On Feb. 5, 2016, the Lead Counsel advised the Court
that $374,820 in settlement funds remained and that a further
distribution was not economically feasible.
The Lead Counsel therefore moved the Court to approve distribution
of those funds to South Brooklyn Legal Services, the National
Consumers League, and the Consumer Federation of America ("Cy Pres
Beneficiaries"). The Court subsequently approved that motion.
Frank subsequently moved for reconsideration of the Court's order
approving the Cy Pres Beneficiaries and distribution of the
remaining funds. On Aug. 9, 2016, the Court granted Frank's
motion for reconsideration but, on reconsideration, adhered to its
earlier decision, holding that the appropriate legal standard was
whether the cy pres beneficiaries "reasonably approximate" the
interest of the class and finding that the Cy Pres Beneficiaries
satisfied that standard. Frank filed a notice of appeal from that
decision, and the Court stayed the distribution of the cy pres
funds pending the outcome of that appeal. On appeal, Frank urged
the Second Circuit to reverse the Court's August 9 order and
direct distribution to the SEC Fair Fund as the recipient as near
as possible to the class' interests.
While Frank's appeal was pending, the Lead Counsel determined that
the $75 million Citigroup SEC Fair Fund that the Lead Counsel
previously represented had already been distributed had in fact
not yet been distributed and would be distributed entirely to
members of the settlement class in this action, with Citigroup
paying for the cost of that distribution. Thus, it was
economically feasible to distribute the remaining funds in this
action -- now increased to $405,000 -- to class members by
combining that $405,000 with the $75 million distribution of the
Citigroup SEC Fair Fund.
As a result of its discovery, the Lead Counsel moved for an order
vacating the order designating the Cy Pres Beneficiaries and
authorizing the distribution to them. After jurisdiction was
returned to the Court following a limited remand for that purpose
from the Second Circuit, the Court granted the motion, vacated the
cy pres designation, and directed that the remaining settlement
funds be distributed to the class members in this action through
the Citigroup SEC Fair Fund.
Frank has moved for an award of attorneys' fees and expenses
incurred in opposing the distribution of settlement funds to three
cy pres beneficiaries designated by the class counsel. He
contends that he is entitled to an award of fees because his
objections led to an additional distribution of funds to the
class.
Judge Stein concludes that the connection between Frank's
objection to the Cy Pres Beneficiaries and the Lead Counsel's
discovery that the Citigroup SEC Fair Fund was available to be
distributed to class members in this litigation justifies an award
of fees to Frank because he was a "substantial cause of the
benefit obtained. Although Lead Counsel opposes the award of any
fees to Frank, the Lead Counsel does not contest the percentage of
recovery that Frank seeks, the number of hours that his attorneys
spent on filing and pursuing the objection, the hourly rate
proposed for his attorneys' time, or the amount of Frank's
expenses.
The Judge has reviewed the submission in support of Frank's
request for attorneys' fees and expenses of $33,412.50 (8.25% of
the $405,000 in additional settlement funds to be distributed to
the class) under both the percentage of recovery method and the
lodestar method of calculating reasonable attorneys' fees. He
finds Frank's request for $33,412.50 in attorneys' fees and
expenses to be reasonable and accordingly grants Frank's motion.
The fees and expenses are to be deducted from the remaining
$405,000 in undistributed settlement funds.
A full-text copy of the Court's Sept. 1, 2017 Memorandum Opinion
and Order is available at https://goo.gl/3QUZ5y from Leagle.com.
ATD Group, Lead Plaintiff, represented by Lauren Wagner Pederson,
Kirby McInerney LLP.
ATD Group, Lead Plaintiff, represented by Peter S. Linden --
plinden@kmllp.com -- Kirby McInerney LLP & Ira M. Press --
ipress@kmllp.com -- Kirby McInerney LLP.
Tillie Saltzman, Plaintiff, represented by Samuel Howard Rudman --
SRudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Samuel
Howard Rudman, Robbins Geller Rudman & Dowd LLP.
Public Employees' Retirement Association of Colorado, Plaintiff,
represented by Andrew J. Entwistle, Entwistle & Cappucci LLP &
Peter S. Linden, Kirby McInerney LLP.
Tennessee Consolidated Retirement System, Plaintiff, represented
by Andrew J. Entwistle, Entwistle & Cappucci LLP & Peter S.
Linden, Kirby McInerney LLP.
Sjunde Ap-Fonden, Plaintiff, represented by Andrew J. Entwistle,
Entwistle & Cappucci LLP.
Fjarde Ap-Fonden, Plaintiff, represented by Andrew J. Entwistle,
Entwistle & Cappucci LLP.
Pensionskassernes Administration A/S, Plaintiff, represented by
Andrew J. Entwistle, Entwistle & Cappucci LLP.
John A. Baden, Plaintiff, represented by Peter S. Linden, Kirby
McInerney LLP & Ira M. Press, Kirby McInerney LLP.
Warren Pinchuk, Plaintiff, represented by Peter S. Linden, Kirby
McInerney LLP & Ira M. Press, Kirby McInerney LLP.
David Garden, Movant, represented by Joseph Harry Weiss, Weiss &
Lurie.
Edward Altman, Movant, represented by Ira M. Press, Kirby
McInerney LLP.
Elaine Altman, Movant, represented by Ira M. Press, Kirby
McInerney LLP.
Jonathan Butler, Movant, represented by Peter S. Linden, Kirby
McInerney LLP & Ira M. Press, Kirby McInerney LLP.
M. David Diamond, Movant, represented by Peter S. Linden, Kirby
McInerney LLP & Ira M. Press, Kirby McInerney LLP.
David Whitcomb, Movant, represented by Peter S. Linden, Kirby
McInerney LLP & Ira M. Press, Kirby McInerney LLP.
Henrietta Whitcomb, Movant, represented by Peter S. Linden, Kirby
McInerney LLP, Ira M. Press, Kirby McInerney LLP & Ira M. Press,
Kirby McInerney LLP.
State Teachers Retirement System of Ohio, Movant, represented by
Gerald H. Silk -- jerry@blbglaw.com -- Bernstein Litowitz Berger &
Grossmann LLP & Jeffrey Craig Block, Berman DeValerio.
Division of Investment of the Treasury of the State of New Jersey,
Movant, represented by Gerald H. Silk, Bernstein Litowitz Berger &
Grossmann LLP & Jeffrey Craig Block, Berman DeValerio.
State Universities Retirement System of Illinois, Movant,
represented by Gerald H. Silk, Bernstein Litowitz Berger &
Grossmann LLP & Jeffrey Craig Block, Berman DeValerio.
Citigroup Inc., Defendant, represented by Richard A. Rosen --
rrosen@paulweiss.com -- Paul Weiss, Susanna Michele Buergel --
sbuergel@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison
LLP & Jane Baek O'Brien -- jobrien@paulweiss.com -- Paul, Weiss,
Rifkind, Wharton & Garrison LLP.
Charles O. Prince, Defendant, represented by Richard A. Rosen,
Paul Weiss, Susanna Michele Buergel, Paul, Weiss, Rifkind, Wharton
& Garrison LLP & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton
& Garrison LLP.
Robert E. Rubin, Defendant, represented by Richard A. Rosen, Paul
Weiss, Susanna Michele Buergel, Paul, Weiss, Rifkind, Wharton &
Garrison LLP & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton &
Garrison LLP.
Stephen R. Volk, Defendant, represented by Richard A. Rosen, Paul
Weiss & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton &
Garrison LLP.
Sallie L. Krawcheck, Defendant, represented by Richard A. Rosen,
Paul Weiss, Susanna Michele Buergel, Paul, Weiss, Rifkind, Wharton
& Garrison LLP & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton
& Garrison LLP.
Gary L. Crittenden, Defendant, represented by Richard A. Rosen,
Paul Weiss, Susanna Michele Buergel, Paul, Weiss, Rifkind, Wharton
& Garrison LLP & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton
& Garrison LLP.
Robert Druskin, Defendant, represented by Richard A. Rosen, Paul
Weiss, Susanna Michele Buergel, Paul, Weiss, Rifkind, Wharton &
Garrison LLP & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton &
Garrison LLP.
Todd S. Thomson, Defendant, represented by Richard A. Rosen, Paul
Weiss & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton &
Garrison LLP.
Thomas G. Maheras, Defendant, represented by Richard A. Rosen,
Paul Weiss, Susanna Michele Buergel, Paul, Weiss, Rifkind, Wharton
& Garrison LLP & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton
& Garrison LLP.
Michael Stuart Klein, Defendant, represented by Richard A. Rosen,
Paul Weiss, Susanna Michele Buergel, Paul, Weiss, Rifkind, Wharton
& Garrison LLP & Jane Baek O'Brien, Paul, Weiss, Rifkind, Wharton
& Garrison LLP.
C. Michael Armstrong, Consolidated Defendant, represented by
Lawrence B. Pedowitz -- LBPedowitz@wlrk.com -- Wachtell, Lipton,
Rosen & Katz.
Alain J.P. Belda, Consolidated Defendant, represented by Lawrence
B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
George David, Consolidated Defendant, represented by Lawrence B.
Pedowitz, Wachtell, Lipton, Rosen & Katz.
Kenneth T. Derr, Consolidated Defendant, represented by Lawrence
B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
John M. Deutch, Consolidated Defendant, represented by Lawrence B.
Pedowitz, Wachtell, Lipton, Rosen & Katz.
Roberto Hernandez Ramirez, Consolidated Defendant, represented by
Lawrence B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
Ann Dibble Jordan, Consolidated Defendant, represented by Lawrence
B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
Klaus Kleinfeld, Consolidated Defendant, represented by Lawrence
B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
Andrew N. Liveris, Consolidated Defendant, represented by Lawrence
B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
Dudley C. Mecum, Consolidated Defendant, represented by Lawrence
B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
Anne M. Mulcahy, Consolidated Defendant, represented by Lawrence
B. Pedowitz, Wachtell, Lipton, Rosen & Katz.
ST. STEPHEN, INC., ADR Provider, represented by Forrest Scott
Turkish, Forrest Scott Turkish, Law Office.
SMOKESTACK LIGHTENING LTD., ADR Provider, represented by Forrest
Scott Turkish, Forrest Scott Turkish, Law Office.
Marshall Orloff, ADR Provider, represented by Forrest Scott
Turkish, Forrest Scott Turkish, Law Office.
Daniel Brecher, Objector, represented by Mark C. Rifkin --
rifkin@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP &
Matthew Moylan Guiney -- guiney@whafh.com -- Wolf Haldenstein
Adler Freeman & Herz LLP.
Scott Short, Objector, represented by Mark C. Rifkin, Wolf
Haldenstein Adler Freeman & Herz LLP & Matthew Moylan Guiney, Wolf
Haldenstein Adler Freeman & Herz LLP.
Jennifer Murphy, Objector, represented by Mark C. Rifkin, Wolf
Haldenstein Adler Freeman & Herz LLP & Matthew Moylan Guiney, Wolf
Haldenstein Adler Freeman & Herz LLP.
Chad Taylor, Objector, represented by Mark C. Rifkin, Wolf
Haldenstein Adler Freeman & Herz LLP & Matthew Moylan Guiney, Wolf
Haldenstein Adler Freeman & Herz LLP.
Mark Oelfke, Objector, represented by Mark C. Rifkin, Wolf
Haldenstein Adler Freeman & Herz LLP & Matthew Moylan Guiney, Wolf
Haldenstein Adler Freeman & Herz LLP.
Paul Koch, Objector, represented by Mark C. Rifkin, Wolf
Haldenstein Adler Freeman & Herz LLP & Matthew Moylan Guiney, Wolf
Haldenstein Adler Freeman & Herz LLP.
Steve A. Miller, P.C. Profit Sharing Plan, Objector, Pro Se.
Theodore H. Frank, Objector, Pro Se.
Theodore H. Frank, Objector, represented by Anna St. John,
Competitive Enterprise Institute, CCAF & Theodore H. Frank, Center
for Class Action Fairness.
Mr. Eric Behar, Objector, represented by Leon Isidore Behar --
LBehar@aol.com -- Leon I. Behar, P.C..
Gary L. Burgess, Interested Party, represented by Ronald M.
Greenspan, Law Offices of Ronald M. Greenspan.
Joseph Icon, Interested Party, represented by Ronald M. Greenspan,
Law Offices of Ronald M. Greenspan.
CLOROX CO: Cooper Files Suit Over Harmful Cleaning Products
-----------------------------------------------------------
Adam Cooper and Ryan Matuszewski, individually and on behalf of
other similarly situated individuals, Plaintiffs, v. The Clorox
Company, Defendant, Case No. 4:17-cv-04854 (N.D. Cal., August 21,
2017), seeks monetary, punitive and statutory damages, injunctive
relief, reasonable costs and expenses of suit, including
attorneys' fees and any further relief under California's
Consumers Legal Remedies Act, False Advertising Law, Unfair
Competition Law and New York General Business Law as well as from
unjust enrichment, breach of express and implied warranties.
Clorox manufactures, markets, and distributes for sale to
consumers nationwide several household cleaning products under the
brand name "Green Works." Plaintiff alleges that its products
contain unnatural and harmful chemical ingredients including
sodium lauryl sulfate and methylisothiazolione that can be
dangerous to human health and to the environment, often resulting
in skin irritation, immune system toxicity and allergic reactions.
[BN]
Plaintiff is represented by:
Kim E. Richman, Esq.
Jaimie Mak, Esq.
535 Mission Street
San Francisco, CA 94105
Tel: (415)259-5688
Fax: (718) 228-8522
Email: krichman@richmanlawgroup.com
jmak@richmanlawgroup.com
COACH INC: Court Narrows Claims in Deceptive Marketing Suit
-----------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting in part and denying in
part Coach Inc.'s Motion to Dismiss the cases captioned MICHELLE
MARINO, individually and on behalf of all others similarly
situated, Plaintiff, v. COACH, INC., Defendant; MONICA RAEL, on
behalf of herself and all others similarly situated, Plaintiff, v.
COACH, INC., Defendant; DEBORAH ESPARZA, individually and on
behalf of all others similarly situated, Plaintiff, v. COACH,
INC., Defendant; and CERA HINKEY, on behalf of herself and all
others situated, Plaintiff, v. COACH, INC., Defendant; Nos. 16-CV-
1122 (VEC), 16-CV-3773 (VEC), 16-CV-3677 (VEC), 16-CV-5320 (VEC)
(S.D.N.Y.).
Outlet malls dot the landscape attracting bargain seekers and tour
busses. They have also attracted the attention of disgruntled
shoppers and plaintiffs' attorneys who claim the outlets are not
what they appear. Plaintiffs are four such shoppers. In this
particular case they allege that Coach, Inc., uses deceptive
marketing tactics to mislead consumers into believing that
products sold at Coach outlet and factory stores are deeply
discounted, when, in fact, the goods are manufactured exclusively
for Coach Factory stores and are not being sold at a discounted
price at all.
Plaintiffs bring ten statutory and common law claims on behalf of
consumers nationwide for fraud, breach of express warranty, and
unjust enrichment and violations of at least twenty state consumer
protection statutes.
Coach argues that Plaintiffs have not pleaded an "injury in fact."
According to Coach, the CAC alleges, at best, bare procedural
violations that do not amount to cognizable injury under Article
III. Coach also argues that Plaintiffs do not have standing to
seek injunctive relief because they are now aware of Coach's
deceptive practices and therefore face no "actual or imminent"
risk of being deceived in the future.
While Plaintiffs satisfy Article III's requirement of an "injury
in fact," they do not satisfy Article III's requirements to seek
injunctive relief. A plaintiff seeking injunctive relief cannot
rely on past injury; in order to satisfy Article III's injury
requirement the plaintiff must allege a likelihood of future harm.
Plaintiffs have not alleged that they intend to purchase products
from Coach Factory stores in the future. Even if they had, now
that they know that the MFSRPs are not former prices, they cannot
be misled. Rather, Plaintiffs' claim for injunctive relief is
based entirely on their past injuries and the potential that other
consumers might be deceived in the future.
The Second Circuit's recent decision in Nicosia v. Amazon.com, 834
F.3d 220 (2d Cir. 2016), is dispositive. In Nicosia, the plaintiff
purchased a diet drug containing a dangerous substance,
sibutramine, from the on-line retailer Amazon.com. Plaintiff sued
on behalf of a putative class, seeking, among other things, an
injunction to prevent Amazon from selling other diet drugs
containing the same substance, which Amazon continued to offer for
sale. The Second Circuit held that Nicosia did not have Article
III standing. Nicosia could not show a real or immediate threat of
future injury because he had failed to show that he intends to use
Amazon in the future to buy any products, let alone weight loss
products in particular.
The Court finds that Plaintiffs lack standing to seek injunctive
relief because they do not allege any actual or imminent risk of
future injury.
Class Standing
Assuming Plaintiffs have standing to sue for their individual
injuries, Coach argues that they have no standing to bring claims
on behalf of the Multi-State Subclass because Plaintiffs do not
personally possess claims under the consumer protection laws of
any other state and therefore do not have class standing to pursue
such claims on behalf of absent class members.
Whether Plaintiffs have standing to bring claims on behalf of the
members of the Multi-State Subclass depends on what law applies to
the absent class members' claims and whether the injury recognized
by those laws is sufficiently similar to Plaintiffs' injury that
class treatment is appropriate.
Deferring standing decision because commonality and typicality are
critical to whether named plaintiffs may bring claims on behalf of
absent class members under other state laws. The Court defers
consideration of class standing until after class certification.
Rule 9(b)
To survive a motion to dismiss under Rule 12(b)(6), Plaintiffs
must allege enough facts to state a claim to relief that is
plausible on its face.
The Court finds that Plaintiffs have alleged their purchases in
sufficient detail to satisfy Rule 9(b). Each of the four named
Plaintiffs alleges the critical facts necessary for Coach to
defend against their claims, including the style number for each
item purchased, the location at which the item was purchased, the
approximate date of the purchase, the advertised MFSRP, and that
they paid less than the MFSRP.
New Hampshire Claims
Plaintiff Marino's statutory claim arises under New Hampshire law.
New Hampshire's Consumer Protect Act (CPA) prohibits, inter alia,
representing that goods or services are of a particular standard,
quality or grade if they are of another and making false or
misleading statements of fact concerning the reasons for,
existence of, or amounts of price reductions.
Marino alleges that Coach's MFSRP caused her to believe that she
was purchasing an item of higher quality than she allegedly
received. If Plaintiffs can make such allegations, they may be
able to connect Coach's alleged misrepresentation to an injury
they suffered relative to being misled about the quality of the
product.
The Court also finds that Marino has plausibly alleged that the
MFSRPs are misleading. Relying chiefly on an out-of-circuit
opinion that has since been reversed on appeal, Coach argues that
a reasonable consumer could not be misled into believing that the
MFSRPs are former prices.
The Court also rejects Coach's argument that the CAC does not
plausibly allege intent. According to Plaintiffs, Coach markets
products with MFSRPs knowing that the merchandise will never be
sold for the MFSRP and that consumers believe that the MFSRPs
represent former prices. The CAC supports this allegation with
facts tending to show that Coach has control over the sales of
Coach Factory merchandise and that Coach Factory merchandise is
sold exclusively at Coach Factory stores. At this stage,
Plaintiffs are not required to allege anything more.
Plaintiffs' California Claims
California law provides for restitution as may be necessary to
restore any person, any money or property which may have been
acquired by means of unfair competition. Thus, the fact that
Plaintiffs may have purchased items that are worth what they paid
does not mean that they cannot state a claim for restitution.
Plaintiffs will have the burden of proving a viable method to
calculate restitution at a later stage of the litigation, but they
need not do so in response to a motion to dismiss.
Common Law Fraud
In order to state a claim for fraud under New York law, Plaintiffs
must allege (a) a material misrepresentation or omission of fact;
(b) defendant's knowledge of the falsity of the statement; (c)
intent to defraud; (d) reasonable reliance by the plaintiff; and
(e) damage to the plaintiff.
In order to allege such an injury with particularity, Plaintiffs
must amend their complaint to allege to what retail goods they
confused the outlet-only products they purchased. The Court
otherwise rejects Coach's arguments that the CAC does not allege a
material misstatement, intent, and reliance for the reasons
already given.
Unjust Enrichment
In order to state a claim for unjust enrichment under New York
law, a plaintiff must allege that: "'(1) defendant was enriched,
(2) at plaintiff's expense, and (3) equity and good conscience
militate against permitting defendant to retain what plaintiff is
seeking to recover.
To the extent Plaintiffs' theory is that they bargained for
retail-quality goods, this claim is inadequately pleaded for the
reasons already discussed supra. Assuming Plaintiffs can amend
their complaint to cure this deficiency, the Court rejects Coach's
argument that Plaintiffs' purchases preclude a claim for unjust
enrichment. While Plaintiffs ultimately may not be able to recover
on an unjust enrichment theory, New York law permits a plaintiff
to plead unjust enrichment in the alternative.
Express Warranty
Finally, Coach moves to dismiss Plaintiffs' express warranty
claim. Coach argues that Plaintiffs have not alleged any express
misrepresentation about the goods. As Coach puts it, at best, the
MFSRPs are implicit warranties of a former price. The Court
agrees. Under California law, an express warranty is a contractual
term relating to the title, character, quality, identity or
condition of the sold goods.
Plaintiffs argue that the MFSRPs are express warranties of product
quality, but the only paragraph of the CAC cited by Plaintiffs in
support this argument is the generalized allegation that status-
conscious consumers tend to use a price cue also as a surrogate
indicator of prestige and that the rice of a product plays an
important role in creating their perception of the good's higher
quality.
All of that may be true, but an inference that the Coach Factory
products are of better quality than they actually are is too vague
and general to be actionable as an express warranty of anything
related to the actual goods.
Coach's motion to dismiss is denied in part and granted in part.
Plaintiffs' claim for injunctive relief is dismissed with
prejudice. Marino's claim under the New Hampshire CPA is dismissed
without prejudice. Plaintiffs' claims for common law fraud, unjust
enrichment, and breach of express warranty are dismissed without
prejudice. The motion to dismiss is otherwise denied in all
respects.
A full-text copy of the District Court's August 28, 2017,
Memorandum Opinion and Order is available at
http://tinyurl.com/y7d5etlmfrom Leagle.com.
Michelle Marino, Plaintiff, represented by Jeffrey D. Kaliel,
Tycko & Zavareei LLP. 2000 L Street NW Suite 808, Washington, DC
20036
Michelle Marino, Plaintiff, represented by Matthew Thomas Prewitt
-- mprewitt@orrick.com -- Cuneo Gilbert & Laduca, LLP, Melissa S.
Weiner -- weiner@halunenlaw.com -- Halunen Law, pro hac vice &
Benjamin David Elga -- belga@cuneolaw.com -- Cuneo Gilbert and
Laduca LLP.
Monica Rael, Consolidated Plaintiff, represented by Edwin John
Kilpela -- ekilpela@carlsonlynch.com -- Jr., Carlson Lynch Ltd,
pro hac vice, Todd D. Carpenter -- tcarpenter@carlsonlynch.com --
Carlson Lynch Sweet Kilpela & Carpenter LLP & Melissa S. Weiner,
Halunen Law, pro hac vice.
Deborah Esparza, Consolidated Plaintiff, represented by Caleb
Marker, Zimmerman Reed LLP, 2381 Rosecrans Ave Ste 328. El
Segundo, CA 90245 David M. Cialkowski, Zimmerman Reed LLP, pro hac
vice, Hannah Belknap,1100 IDs Center, Meneapolis, MN, 55402,
Zimmerman Reed LLP, pro hac vice, June P. Hoidal --
june.hoidal@zimmreed.com -- Zimmerman Reed LLP, pro hac vice &
Melissa S. Weiner, Halunen Law, pro hac vice.
Cera Hinkey, Consolidated Plaintiff, represented by Gene Joseph
Stonebarger -- gstonebarger@stonebargerlaw.com -- Stonebarger Law,
Richard David Lambert -- rlambert@stonebargerlaw.com --
Stonebarger Law, pro hac vice & Melissa S. Weiner, Halunen Law,
pro hac vice.
Coach, Inc., Defendant, represented by Aaron Harvey Mark --
amarks@kasowitz.com -- Kasowitz, Benson, Torres & Friedman, LLP &
Kevin Allen Cyrulnik -- kcyrulnik@kasowitz.com -- Kasowitz,
Benson, Torres & Friedman LLP.
COCA-COLA CO: Review of Summary Judgment in "Enslin" Denied
-----------------------------------------------------------
Judge Joseph F. Leeson, Jr., of the U.S. District Court for the
Eastern District of Pennsylvania denied the Plaintiff's Motion for
Reconsideration of Summary Judgment in the case captioned SHANE K.
ENSLIN, on behalf of himself and all others similarly situated,
Plaintiff, v. THE COCA-COLA COMPANY; COCA-COLA REFRESHMENTS USA,
INC.; KEYSTONE COCA-COLA AND BOTTLING AND DISTRIBUTION
CORPORATION; KEYSTONE COCA-COLA BOTTLING CO.; KEYSTONE COCA-COLA
BOTTLING COMPANY, INC.; KEYSTONE COCA-COLA BOTTLING CORPORATION;
THOMAS WILLIAM ROGERS, III; DOE DEFENDANTS 1-50; ABC CORPORATIONS
1-50; and XYZ PARTNERSHIPS AND ASSOCIATIONS, Defendants, No. 2:14-
cv-06476 (E.D. Pa.).
The Plaintiff initiated the lawsuit on Nov. 12, 2014. William
Rogers, III was served on Dec. 2, 2014. On Feb. 6, 2015, the
Plaintiff filed a Notice of Default by Rogers, which was opposed
by the Coca-Cola Defendants via letter dated Feb. 12, 2017. Judge
Leeson held a telephone conference on March 12, 2015 where Rogers'
default status was discussed amongst the Judge and all represented
parties. During that teleconference, the parties were asked to
provide letters to again address Rogers' default, which both did
on March 17, 2015.
On Nov. 11, 2015, the Court entered an Order pursuant to Federal
Rule of Civil Procedure 55(a) and directed the Clerk to enter
default against Rogers. Accordingly, the Plaintiff respectfully
requests that the Court: (i) enters a Default Judgment pursuant to
Federal Rule of Civil Procedure 55(b); (ii) allows the Plaintiff
to submit a Brief on the effect that the Final Default Judgment
has on the Coca-Cola Defendants; and (iii) allows the Plaintiff to
submit a Brief respecting certification of the Class claims
against Rogers.
Judge Leeson held that the Plaintiff is entitled to a default
judgment against Rogers. The Default was entered against Rogers
for his failure to appear, plead or otherwise defend on Nov. 17,
2015. Now, it is appropriate for a Default Judgment to be
entered. Since Rogers and the Coca-Cola Defendants should be held
jointly and severally liable, the Plaintiff intends to execute the
Judgment against them; however, if the Court deems it appropriate,
the Plaintiff will brief how a default judgment impacts the Coca-
Cola Defendants despite the Order.
Although the Order determined that the Class Certification portion
of this case is moot, it is not, according to the Judge. He
concludes that the Plaintiff is entitled to brief the unresolved
class certification request in light of the Order and Rogers'
Default. Judge Leeson finds that the Plaintiff is now demanding
relief on a theory he did not pursue through two years of active
litigation, discovery, briefing, and case management. While the
Coca-Cola Defendants take no position as to whether the Plaintiff
should be granted a Default Judgment against Rogers, the Judge
notes he should deny the Plaintiff the leave for the additional
briefing he requests. He asks that the Court make clear to the
Plaintiff that a Default Judgment against Rogers, if granted, does
not provide any basis to attack the Court's existing Orders,
including judgment as a matter of law for the Coca-Cola Defendants
on all counts.
More than two years into this action, the Plaintiff claims that he
is entitled to brief the issue of joint and several liability and
Respondent/Superior/vicarious liability against the Coca-Cola
Defendants. But in his 38-page, 9-count Complaint, the Plaintiff
never once alleged that the Coca-Cola Defendants were vicariously
liable for the actions of Rogers, or liable under a theory of
respondeat superior. The Court has provided him ample opportunity
to make his case. All of the relevant deadlines have passed. As
a matter of law, after two years of litigation, Judge Leeson found
that the Plaintiff stated no case against the Coca-Cola
Defendants. The Plaintiff cannot be allowed to pretend that all
of his choices (and decisive losses) to date never happened.
Judge Leeson also found that the Plaintiff's suggestion that the
Coca-Cola Defendants have admitted to joint and several liability
is false. The Court subsequently dismissed the relevant
conspiracy claim with prejudice. The dismissal with prejudice of
the conspiracy claim mooted the stated concern of the Coca-Cola
Defendants. The Plaintiff has done literally nothing since entry
of that decision to prove, or even argue, that the Coca-Cola
Defendants are liable for the acts of Rogers. The Coca-Cola
Defendants trust the Court's assurances that the Plaintiff will
not be able to use the default of Rogers to prejudice the Coca-
Cola Defendants, who have completely prevailed in this matter and,
as a matter of law, should be accorded the benefit of finality.
The Plaintiffs' demands should be denied.
Accordingly, the Judge Leeson denied the Plaintiff's Motion for
Reconsideration of Summary Judgment. If the Plaintiff wishes to
move for a default judgment against Rogers, he will do so no later
than Sept. 29, 2017. If no motion is filed by the date, his
claims against Rogers will be dismissed for lack of prosecution.
Judge Leeson's Order here has no effect on the Court's prior Order
of Default for the Plaintiff's pending claims against Rogers. It
does not eliminate the joint and several liability aspect of the
case against both Rogers and the Coca-Cola Defendants and, in
fact, the Coca-Cola Defendants are liable for Rogers' actions
within the scope of his employment.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/zoHmS1 from Leagle.com.
SHANE K. ENSLIN, Plaintiff, represented by DONALD E. HAVILAND, Jr.
-- haviland@havilandhughes.com -- HAVILAND HUGHES LLC.
SHANE K. ENSLIN, Plaintiff, represented by JAY W. CHAMBERLIN --
chamberlin@havilandhughes.com -- HAVILAND HUGHES & WILLIAM H.
PLATT, II, Haviland Hughes LLC.
COMMONWEALTH BANK: Unveils Board Shake-up Amid Class Action Risk
----------------------------------------------------------------
Paulina Duran and Byron Kaye, writing for Reuters, report that
Commonwealth Bank of Australia, the country's biggest lender,
announced a major board shake-up on Sept. 4 as it scrambles to
shore up investor support following allegations it oversaw
thousands of breaches of anti-money laundering rules.
But the ouster of a third of the bank's non-executive board,
including the first two directors to leave since the allegations
were made public on Aug. 3, failed to impress shareholders as CBA
stock touched 10- intraday lows on the news.
The board overhaul came as CBA faced the first day of court
hearings into the allegations, and while it did not deny that
illicit transfers had taken place, it said it would contest its
level of responsibility.
CBA has been under mounting pressure to respond more aggressively
to the crisis, which has damaged its already tarnished reputation
and exposed it to billions of dollars in potential fines.
Directors and audit committee members Launa Inman and Harrison
Young would step down on Nov. 16, while a third director, Andrew
Mohl, would leave in a year, CBA said in a statement, without
giving a reason for the departures.
CBA announced on Aug. 14 that Chief Executive Officer Ian Narev
would leave by mid-2018, although it said his departure was not
related to the money-laundering scandal. Narev has blamed a coding
error for most of the alleged breaches.
Robert Whitfield, a former head of institutional banking at CBA
rival Westpac Banking Corp, would be appointed to the board, CBA
said on Sept. 4, without naming any other new appointees.
Whitfield could be in the running to replace Narev, said Omkar
Joshi of Regal Funds Management, a CBA shareholder.
"It is unlikely now that you can really have an internal candidate
for that role -- rightly or wrongly internal candidates have been
tainted with that same brush," he said.
A man banks at a Commonwealth Bank automatic teller machine in
Sydney, Australia, August 28, 2017. REUTERS/Jason Reed
CBA shares touched 10- intraday lows before closing down 1.42
percent at A$74.41, while the broader market was down 0.39
percent. The shares have dropped 12 percent since the scandal
erupted wiping roughly A$17 billion (GBP10.4 billion) off its
market value.
FIRST HEARING
Financial crime fighting agency AUSTRAC alleges CBA oversaw tens
of thousands of illicit transfers amounting to A$624.7 million
from 2012 to 2015, including some by known criminal gangs.
CBA's lawyers told the Federal Court on Sept. 4 the bank would not
"in large part" contest the main facts of the legal action, but
said they planned to file a defence.
AUSTRAC's lawyers told the court they expected the bank would try
to prove it took reasonable precautions against money laundering
and terror financing.
Judge David Yates gave CBA until Dec. 15 to file a defence. The
next hearing was set for April 2, 2018.
The AUSTRAC case has triggered a landslide of bad news for CBA,
with two other Australian regulators subsequently launching
investigations and a law firm threatening to file a class action
on behalf of shareholders.
Last year, CBA admitted using unscrupulous practices that cheated
people out of life insurance payments, and in 2014 Narev publicly
apologised after CBA advisors were found to have given customers
poor financial advice. [GN]
COMMONWEALTH BANK: IMF Bentham to Back Shareholder Class Action
---------------------------------------------------------------
Trevor Chappell, writing for Australian Associated Press, reports
that litigation funder IMF Bentham has confirmed it will back a
shareholder class action against Commonwealth Bank related to
alleged breaches of anti-money laundering and counter- terrorism
funding laws.
IMF and law firm Maurice Blackburn said in August they were
considering pursuing a case against CBA, which had the potential
to be the largest ever launched in Australia.
IMF said on Sept. 5 it has now formally decided to fund the case,
and is taking registrations from interested CBA shareholders.
The proposed class action will consist of CBA shareholders who
purchased shares between August 17, 2015 and August 3, 2017, and
who held some of those shares through to 1300 AEST on the latter
date, IMF said.
The claim will allege CBA breached its continuous disclosure
obligations, and made misleading and deceptive public statements
claiming performance of its obligations under the Anti-Money
Laundering and Counter-Terrorism Financing Act.
Maurice Blackburn has said CBA knew about its potential breaches
of anti-money laundering and counter-terrorism financing laws in
2015 but only told the stock exchange in August this year after
the financial intelligence and regulatory agency took civil action
against the bank.
AUSTRAC is accusing CBA of more than 53,500 contraventions, most
of them related to the bank's use of intelligent deposit machines
(IDMs) -- ATMs that accept cash and cheque deposits which are
immediately credited to the nominated recipient.
AUSTRAC claims the bank failed to assess the money laundering and
terror financing risk of the machines before they were rolled out,
and to provide on time 53,506 reports of IDM transactions of
$10,000 or more.
The lender is also accused of failing to report suspicious matters
involving $77 million worth of transactions, either on time or at
all.
In a Federal Court hearing on Sept. 4, CBA was given three months
to build its defence against the allegations.
AUSTRAC has until March to file a response to CBA's defence before
the case returns to the court for another case management hearing
in April 2018.
The Australian Securities and Investments Commission is also
looking into whether CBA complied with its duties under the
Corporations Act, including continuous disclosure obligations.
The bank is also facing an inquiry into its governance, culture
and accountability by the Australian Prudential Regulation
Authority. [GN]
COSTCO WHOLESALE: $2M Settlement in "Thompson" Suit Has Final Nod
-----------------------------------------------------------------
In the case captioned DOUGLAS THOMPSON on behalf of himself,
others similarly situated, and the general public, Plaintiff, v.
COSTCO WHOLESALE CORPORATION and DOES 1 through 100, Defendant,
Case No. 14-CV-02778-CAB-(WVG)(S.D. Cal.), Judge Cathy Ann
Bencivengo of the U.S. District Court for the Southern District of
California granted the Plaintiff's unopposed motion for final
approval; and (ii) granted in part and denied in part his motion
for attorneys' fees, costs and class representative enhancement
awards and LWDA payment.
The Plaintiff, a former truck driver for the Defendant, initiated
the class action lawsuit in the Superior Court of San Diego County
on Oct. 17, 2014, asserting eleven claims under California's Labor
Code and unfair competition laws. He alleged that Costco failed
to provide meal and rest periods and to properly compensate its
truck drivers. The Defendant removed the case to this Court on
Nov. 20, 2014.
On June 27, 2016, the parties entered in a settlement agreement.
Following the terms of the Settlement Agreement, the Plaintiff's
counsel sought and was granted leave to file a third amended
complaint to added claims for unpaid wages and liquidated damages
under the Fair Labor Standards Act ("FLSA"), a claim for penalties
under California Labor Code section 226, and a claim under the
Private Attorney General Act of 2004 ("PAGA").
On Dec. 2, 2016, the Plaintiff filed a motion for preliminary
approval of June 27, 2016 settlement agreement. On Feb. 22, 2017,
the Court issued an order that held that all of the requirements
for certification of a Rule 23 class and FLSA collective for
settlement purposes, except for the adequacy of the Plaintiff's
counsel, had been satisfied but denied the Plaintiff's motion for
preliminary approve of the first settlement because of a number of
deficiencies. The Court required that each of the deficiencies be
remedied in any renewed motion for preliminary approval.
On March 30, 2017, the Plaintiff filed a renewed motion for
preliminary approval of a new settlement agreement signed on or
about March 23, 2017, that according to Class/Collective Counsel,
fixed the deficiencies noted by the Court. On April 26, 2017, the
Court denied the renewed motion.
On May 10, 2017, the Plaintiff filed his third motion for
preliminary approval of settlement. The Court found that the
settlement agreement signed on or about May 8, 2017, remedied all
of the deficiencies it had identified in previous orders and
therefore granted preliminary approval.
The agreement provides for settlement of claims for meal periods
under the FLSA, California Labor Code, the Unfair Competition Law
(UCL) and derivative claims for wage statement and waiting time
penalties. It authorizes: (i) a gross settlement fund in the
amount of $2,000,000; (ii) a class representative award of $5,000
to Thompson; (iii) $10,000 to settlement of PAGA claims; (iv)
$21,000 in class administrator fees; (v) $500,000 to Counsel for
fees and $20,000 in costs; 90% of the remainder, after the
aforementioned payments, as the net Rule 23 class settlement fund
(estimated to be $1,320,750); and 10% of the remainder as the net
FLSA collective settlement fund (estimated to be $146,750).
Additionally, Counsel estimates that 924 participating class
members will receive an average payment of $1,397.73, and the 459
class members who have opted-in to the FLSA collective will
receive a settlement payment of $312.64 based on the agreed upon
allocation.
The settlement defines the Rule 23 class as all current and former
fleet drivers employed at a Costco business center or depot in
California at any time during the period of Oct. 17, 2010, through
Oct. 4, 2016. The settlement also seeks certification of the FLSA
collective comprised of all current and former drivers employed at
a Costco business center or depot in California at any time during
the period of Oct. 17, 2011 and Oct. 4, 2016.
The Plaintiff filed his unopposed motion for Final Approval of
Class/Collective Action Settlement; Award of Attorneys' Fees,
Costs, Class/Collective Representative Service Award, Claims
Administration Expenses, LWDA Payment; and Entering Judgment. The
Court held a hearing on the motion on Sept. 1, 2017.
Judge Bencivengo conditionally certified the Rule 23 class for the
purposes of settlement. Additionally, because the FLSA class
satisfies the Rule 23 class certification requirements, she finds
it also satisfies the FLSA's less stringent requirement that the
members be "similarly situated" for the purposed of the
settlement. Accordingly, the Judge conditionally certifies the
FLSA collective for purposes of the settlement.
Judge Bencivengo (i) granted final approval of the proposed
settlement; (ii) granted in part and denied in part the
Plaintiff's motion for attorneys' fees, costs and class
representative payments; (iii) granted the Class/Collective
Counsel $300,000 in attorneys' fees and $26,071.99 in costs from
the common fund; (iv) granted the class/collective representative
enhancement awards of $2,000 to Plaintiff Thompson to be paid from
the common fund; (v) granted $7,500 to be paid to the California
Labor and Workforce Development Agency from the common fund as
penalties; and (vi) granted $21,000 in settlement administration
costs to be paid from the common fund to CPT Group, Inc. The
Class member who asked to opt out of the settlement is excluded
from the class. The Court retains continuing jurisdiction over
this settlement solely for the purposes of enforcing the
agreement, addressing settlement administration matters, and
addressing such post-judgment matters as may be appropriate under
Court rules and applicable law. Judge Bencivengo entered Judgment
on the terms set forth. She directed the Clerk of the Court to
close the case.
A full-text copy of the Court's Sept. 1, 2017 Order is available
at https://goo.gl/iH8ayF from Leagle.com.
Douglas Thompson, Plaintiff, represented by David Mara --
dmara@turleylawfirm.com -- The Turley & Mara Law Firm, APLC.
Douglas Thompson, Plaintiff, represented by Jamie Serb --
jserb@turleylawfirm.com -- The Turley Law Firm, APLC, Ray Padilla,
The Turley Law Firm, APLC, William D. Turley --
bturley@turleylawfirm.com -- The Turley Law Firm, APLC & Jill M.
Vecchi, The Turley & Mara Law Firm, APLC.
Costco Wholesale Corporation, Defendant, represented by David D.
Kadue -- dkadue@seyfarth.com -- Seyfarth Shaw, Emily Elizabeth
Schroeder -- eschroeder@seyfarth.com -- Seyfarth Shaw LLP, Kenwood
C. Youmans -- kyoumans@seyfarth.com -- Seyfarth Shaw & Timothy M.
Rusche -- trusche@seyfarth.com -- Seyfarth Shaw, LLP.
Frederick Banks, Intervenor, Pro Se.
CRAFT BREW: Court Partly Dismisses Beer Packaging Suit
------------------------------------------------------
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, granted in
part and denied in part the Defendant's Motion to Dismiss the case
captioned THEODORE BROOMFIELD, ET AL., Plaintiffs, v. CRAFT BREW
ALLIANCE, INC., et al., Defendants, Case No. 17-cv-01027-BLF (N.D.
Cal.).
Defendant Craft Brew Alliance, Inc. ("CBA") is a publicly traded
conglomerate that acquired Kona Brewing Co. ("Kona") in 2010.
Although Kona has a Hawaiian brewery that makes its draft beer
sold in Hawaii, all of its bottled and canned beer, as well as its
draft beer sold outside of Hawaii, are brewed in the states of
Oregon, Washington, New Hampshire, and Tennessee. The Plaintiffs
allege that Kona beer is packaged and marketed in a manner that is
intended to mislead reasonable consumers seeking to purchase a
Hawaiian-made beer.
The Plaintiffs take issue with a number of representations on the
packaging of Kona beer. The Consolidated Complaint contains
various images of the packaging for 6- and 12-pack of beer to
support their arguments that CBA intended to create the impression
that Kona beer is brewed in Hawaii and exported to the continental
United States. The Plaintiffs assert that the prominent
references to and images of Hawaiian landmarks, traditions,
history, and culture, taken in isolation and as a whole, are
clearly designed to create the false impression that the Kona
beers are brewed in Hawaii.
Separate and apart from the representations on the beer packaging,
the Plaintiffs allege throughout the Complaint that CBA
misrepresents Kona beer as "craft beer" when it is not. The
Plaintiffs allege that CBA has intentionally capitalized on
consumers' willingness to pay more for goods that are from Hawaii.
These allegedly unfair and deceptive practices have harmed the
Plaintiffs and the purported classes of purchasers of Kona beer by
causing them to pay a "premium" for Kona beer they bought under
the mistaken belief that it was brewed in Hawaii. They seek to
enjoin CBA from continuing to deceptively package Kona beers, and
sue for damages.
The putative class action is brought pursuant to Rule 23 of the
Federal Rules of Civil Procedure and consists of three classes:
(i) a Nationwide Class of all persons in the United States who
purchased any of the Kona beers within the relevant statute of
limitations periods; (ii) a California Subclass of all persons,
who are California residents who purchased any of the Kona beers,
or who purchased any of the Kona beers within the State of
California, during the relevant statute of limitations periods;
and (iii) a California Consumer Subclass of all persons, who are
California residents who purchased any of the Kona beers, or who
purchased any of the Kona beers within the State of California,
for personal, family, or household purposes during the relevant
statute of limitations periods.
The Plaintiffs assert nine causes of action against CBA arising
from its marketing and sale of Kona beer. Specifically, they seek
to represent the California consumer subclasses against CBA for
the following causes of action: violation of California's Consumer
Legal Remedies Act; unlawful, unfair, and fraudulent business
practices in violation of California's Unfair Competition Law;
false and misleading advertising in violation of California's
False Advertising Law; breach of express warranty; and breach of
implied warranty. They also seek to represent the California
subclasses as well as the broader nationwide class of consumers on
claims for the following causes of action: common law fraud ;
intentional misrepresentation; negligent misrepresentation; and
restitution based on quasi-contract/unjust enrichment. The Court
has jurisdiction pursuant to 28 U.S.C. Section 1332(a) and (d).
Before the Court is CBA's Motion to Dismiss Plaintiffs'
Consolidated Class Action Complaint. The Plaintiffs filed an
opposition to CBA's motion to dismiss on May 26, 2017. CBA filed
a reply on June 9, 2017. The Court heard oral argument on Aug. 3,
2017 and thereafter took the matter under submission.
At this stage, Judge Freeman takes judicial notice of the original
complaints for their existence only, including the figures and
images of Kona beer product labels referenced in the original
complaints. The Plaintiffs are incorrect that the Court cannot
take judicial notice of the images of the Kona beer labels in the
original complaints, which are a matter of public record and not
subject to reasonable dispute. However, she will not consider the
Plaintiffs' allegations of reliance on such labels in the original
complaints. For these reasons, the Judge granted the CBA's
request for judicial notice.
At the outset, CBA argues that all of the Plaintiffs' claims must
be dismissed because the images and statements on the packaging
for Kona beer are at most "mere puffery" and are not actionable
misrepresentations. Judge Freeman finds that the Plaintiffs have
adequately alleged that certain representations on the six- and
twelve-pack packaging of Kona beer are actionable
misrepresentations that are likely to deceive a reasonable
consumer into thinking that the beer was brewed in Kona, Hawaii.
Therefore, CBA's motion to dismiss on the grounds that the
Plaintiffs have not alleged actionable misrepresentations and that
no reasonable consumer would be misled by the packaging is denied
by the Judge.
Next, CBA moves to dismiss the Plaintiffs' causes of action for
common law fraud, intentional misrepresentation, and negligent
misrepresentation. The Judge concludes that the Consolidated
Complaint adequately alleges actionable misrepresentations
indicating that Kona beer is brewed in Hawaii. However, CBA
further argues that the Plaintiffs have not alleged the required
elements of CBA's intent to mislead, or justifiable reliance on
the alleged misrepresentations by the Plaintiffs. Contrary to
CBA's assertions, Judge Freeman finds that the Plaintiffs have
alleged more than conclusory allegations to support the element of
intent to defraud or induce reliance. For these reasons, she
denied CBA's motion to dismiss the Plaintiffs' causes of action
for common law fraud, intentional misrepresentation and negligent
misrepresentation.
With respect to the Plaintiffs' warranty claims, CBA argues that
the Plaintiffs have not adequately alleged either a breach of
express or implied warranty. Although the Judge finds that a
reasonable consumer could be misled by the representations on the
packaging for Kona beer, the representations do not amount to an
unequivocal statement or promise to the consumer that Kona beer is
brewed exclusively in Hawaii. Because she finds that the Hawaiian
address, map and brewery invitation on the Kona beer packaging
does not establish a promise sufficient to establish an express
warranty, Judge Freeman also finds that the implied warranty of
merchantability claim is insufficiently pled. For these reasons,
she granted with leave to amend CBA's motion to dismiss
Plaintiffs' express and implied warranty causes of action.
The Judge requires the Plaintiffs to demonstrate constitutional
standing as a prerequisite to pursuing injunctive relief. Because
they do not allege that they would purchase Kona beer as it is
currently made in the future, and because they are now aware. As
such, amending the allegations in the Consolidated Complaint would
be futile. This outcome is without prejudice to Plaintiffs
pursuing parallel relief in a state court of competent
jurisdiction, but the Plaintiffs are unable to plead facts in this
context to confer standing in federal court for injunctive relief.
For these reasons, CBA's motion to dismiss is granted without
leave to amend with respect to the Plaintiffs' request for
injunctive relief.
The Plaintiffs' ninth cause of action is for "Quasi-
Contract/Unjust Enrichment/Restitution," wherein they allege that
CBA was "unjustly enriched" from the misleading representations on
the packaging for Kona beer which induced consumers to pay (or pay
more) for beer that they would not have purchased had they not
been deceived. These allegations are sufficient to state a quasi-
contract cause of action under California law. CBA's argument
that the unjust enrichment claim must fail since there is an
adequate remedy of law under claims for violation of the consumer
protection statutes is not grounds for dismissal. Accordingly,
Judge Freeman denied CBA's motion to dismiss the Plaintiffs'
unjust enrichment claims under California law.
CBA's motion to dismiss also challenges the Plaintiffs' attempt to
bring claims on behalf of a nationwide class. However, in this
case, the Consolidated Complaint does not allege claims on behalf
of out-of-state Plaintiffs based on violations of non-California
laws. Therefore, the parties' arguments on this point are moot.
Therefore, CBA's motion to dismiss the Plaintiffs' claims on
behalf of out-of-state members of the nationwide class is denied
without prejudice to CBA raising these issues again at class
certification.
A full-text copy of the Court's Sept. 1, 2017 Order is available
at https://goo.gl/gWksSR from Leagle.com.
Sara Cilloni, Plaintiff, represented by Benjamin Heikali --
bheikali@faruqilaw.com -- Faruqi and Faruqi LLP.
Sara Cilloni, Plaintiff, represented by Aubry Wand, The Wand Law
Firm & Barbara Ann Rohr -- brohr@faruqilaw.com -- Faruqi and
Faruqi, LLP.
Simone Zimmer, Plaintiff, represented by Benjamin Heikali, Faruqi
and Faruqi LLP, Aubry Wand, The Wand Law Firm & Barbara Ann Rohr,
Faruqi and Faruqi, LLP.
Theodore Broomfield, Plaintiff, represented by Benjamin Heikali,
Faruqi and Faruqi LLP, Timothy J. Peter, pro hac vice, Aubry Wand,
The Wand Law Firm & Barbara Ann Rohr, Faruqi and Faruqi, LLP.
Craft Brew Alliance, Inc., Defendant, represented by Tammy Beth
Webb -- tbwebb@shb.com -- Shook Hardy & Bacon L.L.P., John K.
Sherk -- jsherk@shb.com -- III, Shook Hardy & Bacon LLP & Naoki
Stephen Kaneko -- nkaneko@shb.com -- Shook Hardy & Bacon L.L.P..
DAIRYAMERICA INC: To Produce Full E-Docs by Oct 13 in "Carlin"
--------------------------------------------------------------
In the case captioned GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI
and DIANA WOLFE, individually and on behalf of themselves and all
others similarly situated, Plaintiffs, v. DAIRYAMERICA, INC., and
CALIFORNIA DAIRIES, INC., Defendants, Case No. 1:09 CV 00430-AWI
(EPG) (E.D. Cal.), Magistrate Judge Erica P. Grosjean of the
District Court for the Eastern District of California, Fresno
Division, granted the parties' stipulation regarding the Defendant
producing documents and responding to the Plaintiffs' written
discovery.
In advance of the June 30, 2017 deadline for written discovery,
the Plaintiffs served requests for production and interrogatories
on the Defendant on Jan. 6, 2017. CDI served its written
responses to the Plaintiffs' requests for production and
interrogatories on March 9, 2017, and began producing responsive
documents on July 14, 2017.
On July 19, 2017, the Plaintiffs filed a motion to compel CDI to
respond to written discovery, and CDI filed an opposition to the
same. On July 26, 2017 the Court held oral argument and took the
matter under advisement.
On Aug. 22, 2017, the Court granted in part and denied in part the
Plaintiffs' motion to compel CDI to respond to written discovery
and instructed the parties to meet and confer regarding the timing
of production and submit a stipulation and proposed order
regarding a deadline for completing production.
The parties have met and conferred and agreed to a production
schedule. They stipulated, subject to Court approval, that CDI
will produce electronic documents on a rolling basis to be
completed within 45 days on Oct. 13, 2017. The first good-faith
production will occur no later than Sept. 19, 2017. CDI's
production of hardcopy documents will be completed within 90 days,
on Nov. 27, 2017. The Magistrate Judge granted the parties'
stipulation.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/t0t0tF from Leagle.com.
Gerald Carlin, Plaintiff, represented by A. Chowning Poppler --
cpoppler@bermandevalerio.com -- Berman Tabacco.
Gerald Carlin, Plaintiff, represented by Anthony David Phillips --
aphillips@archernorris.com -- Berman DeValerio, Benjamin Doyle
Brown -- bbrown@cohenmilstein.com -- Cohen Milstein Sellers & Toll
PLLC, Brent W. Johnson -- bjohnson@cohenmilstein.com -- Cohen
Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg
-- claufenberg@kellerrohrback.com -- Keller Rohrback L.L.P., pro
hac vice, Christopher Heffelfinger --
cheffelfinger@bermandevalerio.com -- Berman Tabacco, George F.
Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli
E. Farris -- jfarris@kellerrohrback.com -- Keller Rohrback LLP,
Justin N. Saif -- jsaif@bermandevalerio.com -- Berman DeValerio --
gfarah@cohenmilstein.com -- pro hac vice, Leslie M. Kroeger --
lkroeger@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC,
pro hac vice & Ryan McDevitt --
rmcdevitt@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac
vice.
John Rahm, Plaintiff, represented by A. Chowning Poppler, Berman
Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle
Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen
Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg,
Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger,
Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll
PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N.
Saif, Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen
Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt, Keller
Rohrback L.L.P., pro hac vice.
Paul Rozwadowski, Plaintiff, represented by A. Chowning Poppler,
Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin
Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson,
Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C.
Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher
Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein
Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller
Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice,
Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC, pro hac
vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice.
Diana Wolfe, Plaintiff, represented by A. Chowning Poppler, Berman
Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle
Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen
Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg,
Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger,
Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll
PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N.
Saif, Berman DeValerio, pro hac vice & Ryan McDevitt, Keller
Rohrback L.L.P., pro hac vice.
DairyAmerica, Inc., Defendant, represented by Charles M. English,
Davis Wright Tremaine LLP, pro hac vice, E. John Steren --
esteren@ebglaw.com -- Ober Kaler, pro hac vice, Joseph Michael
Marchini -- jmm@bmj-law.com -- Baker, Manock & Jensen, Wendy M.
Yoviene -- wyoviene@bakerdonelson -- Ober Kaler, pro hac vice,
Allison Ann Davis -- allisondavis@dwt.com -- Davis Wright Tremaine
LLP, Joy G. Kim -- joykim@dwt.com -- Davis Wright Tremaine LLP &
Sanjay Mohan Nangia -- sanjaynangia@dwt.com -- Davis Wright
Tremaine LLP.
California Dairies, Inc., Defendant, represented by Lawrence
Michael Cirelli -- lcirelli@hansonbridgett.com -- Hanson Bridgett,
Shannon Marie Nessier, Hanson Bridgett LLP & Megan Oliver
Thompson, Hanson Bridgett LLP.
Bimemiller Candice, Unknown, represented by Edward Zusman, Markun
Zusman Freniere & Compton LLP.
James Rehberg, ThirdParty Plaintiff, represented by J. Barton
Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud, Tostrud
Law Group, P.C..
Ronald Hayek, ThirdParty Plaintiff, represented by J. Barton
Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud, Tostrud
Law Group, P.C..
Michael K. Schugg, ThirdParty Plaintiff, represented by J. Barton
Goplerud, Hudson Law Firm, pro hac vice & Juli E. Farris, Keller
Rohrback LLP.
Timothy L. Rawlings, ThirdParty Plaintiff, represented by J.
Barton Goplerud, Hudson Law Firm, pro hac vice, Juli E. Farris,
Keller Rohrback LLP, Mark A. Griffin, Keller Rohrback LLP, pro hac
vice & Raymond J. Farrow, Keller Rohrback LLP, pro hac vice.
Land O' Lakes, Inc., Amicus, represented by Gregory M. Schweizer -
- gschweizer@eimerstahl.com -- Eimer Stahl LLP, pro hac vice,
Scott C. Solberg --ssolberg@eimerstahl.com -- Eimer Stahl LLP, pro
hac vice & Seth D. Hilton -- sethhilton@stoel.com -- Stoel Rives
LLP.
California Farmers Union, Amicus, represented by Daniel Bennett
Harris.
California Dairy Campaign, Amicus, represented by Daniel Bennett
Harris.
Lani Ellingsworth, Movant, represented by Darin M. Dalmat --
dmdalmat@jamhoff.com -- James & Hoffman, P.C. & Glenn Rothner,
Rothner, Segall & Greenstone.
DEJA VU: Can Compel Arbitration in Strippers' FLSA Suit
-------------------------------------------------------
In the case captioned JANE DOE, #1, Plaintiff, v. DEJA VU
CONSULTING INC., et al., Defendants, Case No. 3:17-cv-00040 (M.D.
Tenn.), Judge Aleta A. Trauger of the U.S. District Court for the
Middle District Tennessee, Nashville Division, (i) granted in part
and denied in part the Plaintiff's Motion to Proceed
Pseudonymously, to Permit Filing of All Unredacted Consents Under
Seal, and for Entry of a Permanent Protective Order; (ii) denied
as moot the Defendants' Motion to Dismiss for Lack of Personal
Jurisdiction; (iii) denied the Defendants' Motion to Reconsider
the Court's Previous Order; (v) denied the Plaintiff's Motion to
Hold Defendants' Motion to Dismiss in Abeyance; (v) granted the
Defendants' Motion to Dismiss or to Stay in Favor of Arbitration
and dismissed without prejudice the action; and (vi) denied as
moot the Plaintiff's Motion for Expedited Court-Supervised Notice
to Putative Class Members Pursuant to 29 U.S.C. Section.
Plaintiff Jane Doe #1 filed her initial Complaint against the
Defendants on Jan. 11, 2017 and her First Amended Collective
Action Complaint on Jan. 23, 2017. The First Amended Collective
Action Complaint asserts claims for violations of the hourly wage
and overtime wage provisions of the Fair Labor Standards Act
("FLSA"), and purports to seek relief on behalf of the Plaintiff
and on behalf of all other similarly situated individuals working
as showgirls/entertainers classified as independent contractors by
the Defendants, under the collective action provision of the FLSA.
Now before the Court are the following six interrelated motions:
(i) the Plaintiff's Motion for Expedited Court-Supervised Notice
to Putative Class Members Pursuant to 29 U.S.C. Section 216(b);
(ii) the Defendants' Motion to Reconsider the Court's previous
Order; (iii) the Defendants' Motion to Dismiss or to Stay in Favor
of Arbitration; (iv) the Plaintiff's Motion to Proceed
Pseudonymously, to Permit Filing of All Unredacted Consents Under
Seal, and for Entry of a Permanent Protective Order; (v) the
Defendants' Motion to Dismiss for Lack of Personal Jurisdiction);
and (vi) the Plaintiff's Motion to Hold Defendants' Motion to
Dismiss or to Stay in Favor of Arbitration in Abeyance.
In light of the absence of prejudice to the Defendants or to the
public, Judge Trauger finds that the Plaintiff's privacy interests
substantially outweigh the presumption of open judicial
proceedings. She therefore granted her motion to file suit
pseudonymously and to maintain the confidentiality of her identity
beyond the dismissal of the action. Having reached that
conclusion, the Judge Denied as moot the Defendants' Motion to
Dismiss for Lack of Personal Jurisdiction. Because the case will
be dismissed in favor of arbitration, the Plaintiff's request to
file all future unredacted collective action consent forms under
seal is denied as moot. The portion of the Plaintiff's motion for
Permanent Protective Order is granted in part. While Judge
Trauger finds that the Plaintiff is entitled to maintain her
public anonymity in this action, the terms of the proposed
Protective Order are overly broad, particularly given that this
case will be referred to arbitration. The Judge will, however,
enter an order directing the Defendants to maintain the names and
personally identifying information of Jane Doe #1 and #2 in
complete confidence and not to disclose the information to any
other person, party or entity except as strictly necessary to
pursue their defense of this matter in arbitration.
With respect to the Defendants' Motion to Compel, Judge Trauger
finds that the question of arbitrability is a threshold issue that
must be addressed before the Motion for Notice. She therefore
denied the Plaintiff's Motion to Hold in Abeyance. Further, she
finds that the Plaintiff has not established any basis for
overcoming the presumption in favor of arbitration, hence, the
Motion to Compel Arbitration is granted. Because this action will
be referred to arbitration, the Motion for Notice is denied as
moot.
As to the Defendants' Motion to Reconsider the Court's
determination that the preliminary injunction expired with the
entry of the final approval of settlement, Judge Trauger
nonetheless understood the Order to mean that the injunction would
be lifted upon entry of final approval of the proposed settlement,
at which time a narrower permanent injunction would be entered, in
light of the wording of the Joint Motion for Preliminary
Injunction and the Court's previous description of the relief it
intended to grant. The Judge's conclusion in that regard is
bolstered by the fact that an order enjoining the Plaintiff in
this action from pursing even her own claims individually until
final resolution of all appeals in the Michigan Action would be
overly broad and unreasonable, particularly in light of the fact
that the Plaintiff has not opted into the FLSA class in the
Michigan Action and has opted out of the Rule 23 class, and
resolution of the appeals in the Michigan Action could take years.
Moreover, because she granted the Defendants' Motion to Compel
Arbitration, Judge Trauger did not consider the Plaintiff's Motion
for Notice. It therefore appears that whatever concerns the
defendants might have had about competing class notices are
effectively moot. For all these reasons, she denied the
Defendants' Motion to Reconsider.
A full-text copy of the Court's Sept. 1, 2017 Memorandum is
available at https://goo.gl/BknYgP from Leagle.com.
Jane Doe #1, Plaintiff, represented by Charles P. Yezbak, III --
yezbak@yezbaklaw.com -- Yezbak Law Offices.
Jane Doe 2, Plaintiff, represented by Charles P. Yezbak, III,
Yezbak Law Offices.
Deja Vu Consulting, Inc., Defendant, represented by Edward M.
Bearman -- ebearman@jglawfirm.com -- Law Office of Edward M.
Bearman & Matthew J. Hoffer, Shafer & Associates, P.C..
Deja Vu Services, Inc., Defendant, represented by Edward M.
Bearman, Law Office of Edward M. Bearman & Matthew J. Hoffer,
Shafer & Associates, P.C..
Deja Vu of Nashville, Inc., Defendant, represented by Edward M.
Bearman, Law Office of Edward M. Bearman & Matthew J. Hoffer,
Shafer & Associates, P.C..
Harry Mohney, Defendant, represented by Edward M. Bearman, Law
Office of Edward M. Bearman & Matthew J. Hoffer, Shafer &
Associates, P.C..
Jason Mohney, Defendant, represented by Edward M. Bearman, Law
Office of Edward M. Bearman & Matthew J. Hoffer, Shafer &
Associates, P.C..
DICK SMITH: New Evidence Emerges in Shareholders' Class Action
--------------------------------------------------------------
Leon Spencer, writing for ARN, reports that one of two class
actions being launched against Dick Smith Holdings is set to be
endowed with new allegations as fresh evidence comes to light.
Investor Claim Partner (ICP) which, in partnership with Johnson
Winter & Slattery, is proposing a class action on behalf of Dick
Smith shareholders.
On September 1, the firm told litigants that is had been granted
access to additional disclosure documents associated with Dick
Smith's initial public listing as part of its research into the
proposed case.
Specifically, ICP was successful in obtaining orders from the
Federal Court of Australia on 25 August 2017, requiring that the
liquidators of Dick Smith Holdings, McGrath Nicol, provide the
firm with further disclosure of documents relevant to the failed
tech retailer's prospectus.
"After reviewing these documents, it is now likely the claim will
include an allegation that had the market been aware of revenue
recognition, stock valuation, provision and rebate issues relevant
to reported revenue, margins and cost of doing business that were
in existence at the time of the prospectus . . . the listing would
not have proceeded or, if it did, it would have proceeded with the
issuing of shares at a materially lower value," the company said
in a message to participating shareholders.
ICP Capital, which is a benchmark claims management and funding
services, previously funded Johnson Winter & Slattery to file a
claim in the Federal Court seeking orders that McGrath Nicol
provide business records about the retailer.
The class action, which is being undertaken on behalf of aggrieved
Dick Smith investors who suffered losses as a result of the
company's demise is likely to allege breaches of disclosure
obligations and misleading and deceptive conduct.
The case hinges on the suspicion that Dick Smith Holdings made
representations in its prospectus, and at various times in the
period from its listing on the Australian Securities Exchange
(ASX) until the appointment of administrators, which gave a false
impression to the market about the financial position of the
company and the value of its shares.
The class action comes after another class action, undertaken by
Bannister Law, and launched against Dick Smith Holdings -- or
rather the entity left following the company's liquidation -- got
the green light for proceedings to begin in the Supreme Court.
According to Charles Bannister, Principal of Bannister Law, the
ruling was a "win" for many DSHE shareholders who lost out in the
company's demise.
Meanwhile, yet another court case associated with Dick Smith and
its collapse looks as though it may drag the tech retailer's
former auditor, Deloitte Touche Tohmatsu into the legal fray.
Dick Smith Holdings' (DSH) receivers, Ferrier Hodgson, in
conjunction with National Australia Bank (NAB) and HSBC -- two of
Dick Smith's largest creditors -- mounted a legal action in March
against former directors and executives of the collapsed
electronics retailer in a damages claim worth millions.
Broadly speaking, the legal action alleges that Dick Smith's
earnings in 2015 were inflated thanks to the use of a "rebate
maximising" strategy that compelled managers to make stock
purchasing decisions based on rebates instead of customer demand.
The collapse of the retailer in early 2016, along with the
closure of its stores, followed close behind a $60 million
inventory write-down revealed in late 2015.
The rebate-focused inventory buying policy was one of the one of
the main triggers of the company's collapse, according to a
subsequent creditors' report.
The claim filed against the former directors, including former
Dick Smith CEO, Nick Abboud, and former CFO, Michael Potts, allege
that the company's directors and officers breached their duties to
Dick Smith Holdings -- as a publicly-listed company -- through
failures associated with a rebate-driven buying policy.
Now, thanks to fresh cross-claims filed by representatives for at
least two of the company's former executives, Abboud and Potts,
the firm charged with auditing the retailer's financials in 2014
and 2015, Deloitte Touche Tohmatsu, has also been drawn into the
line of fire.
According to a cross-claim filed with the NSW Supreme Court on 14
July, if Abboud is found liable to the charges laid against him by
Dick Smith Holdings' receivers, the former CEO's legal team will
launch cross-claims against Deloitte for "damages and/or
contribution".
The case continues. [GN]
DNB: Loses Bid to Dismiss Customers' Class Action
-------------------------------------------------
Camilla Knudsen, writing for Reuters, reports that Norway's
Consumer Council said it would proceed with a class action lawsuit
against bank DNB, on behalf of thousands of customers who claim
they were overcharged, after the lender failed to have the case
dismissed.
The council and DNB, Norway's largest bank, said on Sept. 4 that
the Norwegian Supreme Court had refused an appeal by DNB to have
the lawsuit dismissed, affirming a previous decision by a lower
court.
The bank had argued that the case to reclaim 690 million crowns
($88 million) on behalf of 180,000 investors in funds it managed
did not fit the requirements for a class action lawsuit.
The case centres on whether DNB, in charging customers for so-
called active fund management, had in fact covertly been tracking
a stock index -- a claim DNB denies.
The Consumer Council said the court case would now start on Nov.
13 in the Oslo district court.
"Now we are ready for the largest class action lawsuit in Norway's
history," Randi Flesland, the head of the Consumer Council, said
in a statement.
DNB said it accepted the Supreme Court's clarification on the
status of the lawsuit. "It is never nice to meet customers in
court," a DNB spokesman said. [GN]
ECO-CHIC LLC: Faces "Cohen" Suit in N.D. Calif.
-----------------------------------------------
A class action lawsuit has been filed against Eco-Chic, LLC
doing business as: Credo Beauty. The case is styled as Esther
Cohen, on behalf of herself and all others similarly situated,
Plaintiff v. Eco-Chic, LLC doing business as: Credo Beauty,
Defendant, Case No. 4:17-cv-05146-KAW (N.D. Cal., September 5,
2017).
Eco-Chic, LLC is a farmhouse style boutique.[BN]
The Plaintiff is represented by:
Kolin C. Tang, Esq.
Shepherd Finkelman Miller & Shah, LLP
401 West A Street, Suite 2550
San Diego, CA 92101
Tel: (619) 235-2416
Fax: (866) 300-7367
Email: ktang@sfmslaw.com
ENCORE RECEIVABLE: "Deguardia" Disputes Illegal Collection Letter
-----------------------------------------------------------------
Kara Deguardia, Andres F. Zuluaga and Douglas Handy, individually
and on behalf of all others similarly situated, Plaintiffs, v.
Encore Receivable Management, Inc., Defendant, Case No. 2:17-cv-
04919 (E.D. N.Y., August 21, 2017), seeks to recover damages for
violations of the Fair Debt Collection Practices Act.
Encore Receivable is into the collection of debts allegedly owed
by consumers. Defendant alleges each of the Plaintiffs owe a
credit card debt from Synchrony Bank primarily for personal,
family or household purposes. Defendant sent each of the
Plaintiffs collection letters that failed to disclose that the
balance stated may increase due to interest, late fees and due to
other fees. [BN]
Plaintiff is represented by:
Craig B. Sanders, Esq.
BARSHAY SANDERS, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Fax: (516) 706-5055
Email: csanders@barshaysanders.com
ENVIRONMENTAL LITIGATION: Court Reverses Dismissal of "Hall" Suit
-----------------------------------------------------------------
In the case captioned Mary Hall, as personal representative of the
Estate of Adolphus Hall, Sr., deceased, and Anaya McKinnon, as
personal representative of the Estate of Wanzy Lee Bowman,
deceased, v. Environmental Litigation Group, P.C., No. 1151077
(Ala.), Judge Greg Shaw of the Supreme Court of Alabama reversed
the Jefferson Circuit Court's dismissal of the Plaintiffs' class-
action claims against ELG.
On March 19, 2013, the Plaintiffs filed a complaint in the
Jefferson Circuit Court against ELG. Their complaint included the
following factual allegations: In the 1990s, ELG agreed to
represent hundreds of clients who had been exposed to asbestos,
including the estates of Adolphus Hall and Bowman. ELG entered
into an attorney-employment agreement with each client. Pursuant
to that agreement, ELG agreed to take all legal steps necessary to
enforce the said tort claim, and in return ELG would receive 40%
of amounts collected from any settlement or judgment as its fee.
The agreement also permitted ELG to reimburse itself for
reasonable expenses related to the clients' claims.
On Feb. 23, 2012, ELG sent a memorandum to all of its 'asbestos
clients' stating that, as a result of additional work required to
obtain the proceeds of a settlement that ELG had negotiated, ELG
would begin charging an 'administrative-service-expense charge' in
the amount of $250 for living clients and $600 for clients who
were deceased, which could be deducted from settlement proceeds
due to be passed on to the client.
Between April 2011 and July 2012, the estate of Adolphus Hall
received settlement proceeds from three asbestos defendants and,
from those proceeds, ELG deducted $192.01 in expenses and a $600
administrative-service-expense charge, in addition to deducting
40% of the settlement proceeds as an attorney fee; and, in
December 2012, the estate of Bowman received settlement proceeds
from one asbestos defendant and ELG deducted $68.64 as an
'administrative credit' in addition to deducting 40% of the
proceeds as an attorney fee.
The Plaintiffs alleged that the administrative-service-expense
charge is nothing more than an extra attorney fee collected by ELG
in addition to the 40% contingent fee; provided as the attorney
fee in the attorney-employment agreement. They asked the circuit
court to enter an order declaring (i) that ELG had breached the
attorney-employment agreement by charging, without legal
authority, more than 40% for attorney staff services; (ii) that
ELG had been unjustly enriched by its wrongful activities; (iii)
that the Plaintiffs were due monetary relief; and (iv) that the
Plaintiffs were entitled to recover an attorney fee and reasonable
expenses related to the prosecution of this action. In addition,
they alleged separate counts of unjust enrichment and breach of
contract, which were based on ELG's alleged breach of the
attorney-employment agreement.
In response to the Plaintiffs' complaint, ELG moved the circuit
court to dismiss the complaint pursuant to Rule 12(b)(6), for
failure to state a claim upon which relief could be granted. It
subsequently filed a supplement to its motion to dismiss. On Nov.
20, 2013, the circuit court entered an order dismissing the case
with prejudice.
The Plaintiffs timely filed a notice of appeal. On appeal, this
Court disagreed with the circuit court's holding. It held that
the crux of the Plaintiffs' claims was that ELG breached the
attorney-employment agreement by allegedly taking as an attorney
fee more than 40% of the settlement proceeds and, thus, their
claims fell within the subject-matter jurisdiction of the circuit
court. The Court therefore reversed the circuit court's order of
dismissal, and remanded the matter for further proceedings.
Following remand, ELG moved for a status conference to establish a
discovery schedule and to consider class certification. Shortly
thereafter, the Plaintiffs filed a First Amended Class Action
Complaint that added to the previously pending individual and
class-based claims a count against ELG pursuant to the Alabama
Legal Services Liability Act. Additionally, they filed a motion
seeking, after discovery, class certification pursuant to Rules
23(b)(2) and 23(b)(3).
After numerous additional filings by the parties and the trial
court's appointment of a special master, who recommended the
denial of ELG's renewed dismissal request, on Feb. 23, 2016, ELG
filed its Motion to Dismiss Class Claims or, Alternatively, for
Partial Judgment on the Pleadings. On April 11, 2016, it filed,
as a "supplement" to its motion to dismiss, an "alternate" motion
to strike the Plaintiffs' class claims and allegations pursuant to
Rules 12(f), 23(c)(1), and 23(d)(4). Following a hearing, the
trial court granted ELG's motion to dismiss, struck the
Plaintiffs' claims for class-based relief, and held that the
class-based claims were denied. The Plaintiffs appeal.
Judge Shaw finds that the relevant inquiry is whether, based on
the nature of the work involved, the collection of the new charge
was, under the plain language of the employment agreement,
permitted by ELG as recoupment of its expenses under the contract
terms or whether it was an improper attempt by ELG to recover an
additional fee exceeding the 40% provided for in the parties'
original agreement. At this point in the proceedings and under
the standard of review, he sees no ambiguity in the attorney-
employment agreements on these issues. This holding negates the
trial court's contrary conclusion as to the individualized inquiry
necessary with regard to the Plaintiffs' contract claims. The
Judge therefore reversed the trial court's order dismissing the
Plaintiffs' claims for class-based relief and remanded the matter
for further proceedings.
Judge Shaw notes that initially he's unable to determine from the
face of the dismissal order the extent to which the trial court
relied on this apparent aside as alternate support for its
decision to dismiss the Plaintiffs' class-based claims. He is,
however, unpersuaded by ELG's assertion that the Plaintiffs
waived, for purposes of appeal, their prematurity challenge. To
the contrary, the transcript of the dismissal hearing makes clear
that, during that proceeding, according to ELG, the only thing it
was asking the trial Court to look at was the threshold issue on
the class-certification issue, namely whether the contract is
ambiguous. The counsel for the Plaintiffs subsequently agreed
that ambiguity was the heart of the issue. Therefore, the
Plaintiffs presumably did not oppose the overbreadth argument as
premature because it was apparent that the only issue for
consideration was the alleged ambiguity in the attorney-employment
agreement. As a result, the Judge is unable to agree that the
Plaintiffs waived a challenge to the dismissal of their class-
based claims on an alternate ground. Further, he agrees that any
challenge regarding the sufficiency of the Plaintiffs' class
definition appears premature.
In consideration of the foregoing, Judge Shaw reversed the trial
court's judgment, and remanded the case for proceedings consistent
with his Opinion.
A full-text copy of the Court's Sept. 1, 2017 Opinion is available
at https://is.gd/ky4QSH from Leagle.com.
EVANSTON, IL: Court Certifies Two Classes in "Wilson" Suit
----------------------------------------------------------
Judge John Z. Lee of the U.S. District Court for the Northern
District of Illinois, Eastern Division, granted the Plaintiffs'
motion for class certification in the case captioned JERMAINE
WILSON and DAMEON SANDERS, Plaintiffs, v. CITY OF EVANSTON,
ILLINOIS, Defendant, No. 14 C 8347 (N.D. Ill.).
In January 2012, Evanston Police Department ("EPD") revised its
policy for handling arrestees' personal property once they were
transferred to the custody of Cook County. According to the City,
the January 2012 revision accomplished two goals: (i) making
retrieval of property easier for arrestees by enabling them to
designate a third party to retrieve their property; and (ii)
highlighting the need for immediate action on the part of the
arrestee by reducing the amount of time before EPD would dispose
of property from 90 to 30 days. As part of these revised
procedures, EPD prepared a new Personal Property Receipt to be
given to each transferred inmate.
The Plaintiffs were transferred to the custody of Cook County
after their arrest by EPD, and each received a Prisoner Property
Receipt documenting various items of property that EPD retained.
Wilson was arrested by EPD on July 10, 2013. He was transferred
to the Cook County Jail and remained there while his criminal case
was pending for a year and a half. During this time, EPD
destroyed or otherwise disposed of items of his property. Sanders
was arrested on July 25, 2013. He was transferred to the Cook
County Jail and remained there while his criminal case was pending
for four months. During this time, EPD destroyed or otherwise
disposed of items of his property.
Wilson filed this suit against the City on Oct. 23, 2014, and
filed an amended complaint on May 12, 2015. In his First Amended
Complaint, Wilson asserted a Fifth Amendment takings claim and a
Fourteenth Amendment procedural due process claim. The City moved
to dismiss both claims. The Court granted the City's motion as to
the Fifth Amendment takings claim, finding that Wilson had failed
to exhaust state law remedies. The Court then addressed two
different aspects of Wilson's procedural due process claim.
First, it concluded that Wilson did not state a claim based on his
theory that the notice contained in the Prisoner Property Receipt
was insufficient. It also held that Wilson has alleged that the
City's procedure is not reasonably calculated to allow prisoners
who are detained for over 30 days to recover their property, and
therefore stated a plausible procedural due process claim. Wilson
added Sanders as a co-Plaintiff and filed a Second Amended
Complaint on Aug. 31, 2016.
The present motion for class certification followed thereafter.
The Plaintiffs seek to certify two classes under Federal Rule of
Civil Procedure ("Rule") 23(b)(3). One corresponds to a
substantive due process-based theory of recovery, and the other to
a procedural due process-based theory.
Under the substantive due process-based theory, the Plaintiffs
argue that an Evanston ordinance requiring the EPD to store
property for 60 days after the final disposition of court
proceedings in connection with which the property was taken
creates a constitutionally protected property interest. The
Plaintiffs contend that EPD's property disposal policy violates
this protected interest. Under the procedural due process-based
theory, they maintain that, because persons incarcerated are
unable to travel to EPDto retrieve their property, EPD's policy is
not reasonably calculated to permit them to recover their property
if they are held for more than 30 days.
At the status hearing in which the Court ordered supplemental
briefing, the Plaintiffs explained that instead of requiring
someone else to retrieve their property, Evanston should hold
arrestees' property until they get out. This theory departs from
their initial theory that Cook County prohibits individuals from
keeping their personal property receipts, which they abandon in
their briefing.
The Plaintiffs propose the following classes for certification:
a. Class I, Substantive Due Process: All persons whose
property, following an arrest on and after Oct. 23, 2012, was held
at EPD and destroyed or otherwise disposed of before the
conclusion of court proceedings in connection with which such
property was seized or otherwise taken possession of.
b. Class II, Procedural Due Process: All persons whose
property, following an arrest on and after Oct. 23, 2012, was held
at EPD and destroyed or otherwise disposed of while that person
remained in the custody of a jail or penitentiary.
Judge Lee concludes that the City's argument that the Plaintiffs
fail to identify the substantive due process class definition in
the Second Amended Complaint. He rejected the argument the City
raises: namely, that the Plaintiffs should have to amend their
complaint to assert their proposed class definition. It is of no
consequence, therefore, that the Plaintiffs do not propose their
class definitions in their complaint. For these reasons, the
City's merits arguments are misplaced.
Judge Lee finds that (i) the class definition is not defective in
the manner the City suggests; (ii) the Plaintiffs' class
definitions are ascertainable; (iii) the substantive due process
class and the procedural due process class are sufficiently
numerous; (iv) the Plaintiffs have satisfied their burden of
establishing commonality and typicality; (v) the Plaintiffs have
therefore satisfied the adequacy requirement; (vi) the Plaintiffs
have carried their burden of establishing the predominance
requirement with regard to the substantive due process class; and
the superiority requirement of Rule 23(b)(3) is satisfied.
For these reasons, Judge Lee granted the Plaintiffs' motion for
class certification. The Plaintiffs may proceed with their claims
on behalf of the following class:
a. Class I, Substantive Due Process: All persons whose
property, following an arrest on and after Oct. 23, 2012, was held
at EPD and destroyed or otherwise disposed of, before court
proceedings in connection with which such property was seized or
otherwise taken possession of reached a final, appealable
judgment, or were terminated without reaching such a judgment.
b. Class II, Procedural Due Process: All persons whose
property, following an arrest on and after Oct.23, 2012, was held
at EPD and destroyed or otherwise disposed of, while that person
remained in the custody of a jail or penitentiary for over 30
days.
A full-text copy of the Court's Aug. 30, 2017 Memorandum Opinion
and Order is available at https://is.gd/HECvB7 from Leagle.com.
Jermaine Wilson, Plaintiff, represented by Kenneth N. Flaxman,
Kenneth N. Flaxman, P.C..
Jermaine Wilson, Plaintiff, represented by Joel A. Flaxman,
Kenneth N. Flaxman P.C..
Dameon Sanders, Plaintiff, represented by Joel A. Flaxman, Kenneth
N. Flaxman P.C..
City of Evanston, Illinois, Defendant, represented by W. Grant
Farrar, Corporation Counsel & Henry Julius Ford, Jr., City of
Evanston Law Department.
EXPRESS SCRIPTS: "Burton" Suit Removed to E.D. Miss
---------------------------------------------------
The case captioned Erick Burton, individually and on behalf of all
others similarly situated, Plaintiff, v. Express Scripts, Inc.,
Defendant, Case No. 17SL-CC02472, filed in the Mississippi Circuit
Court on July 10, 2017, was removed to the United States District
Court for the Eastern District of Missouri on August 21, 2017,
under Case No. 4:17-cv-02279.
Said complaint seeks redress for Defendant's alleged practice of
imposing a $75.00 non-refundable processing fee to customers who
request a copy of their pharmacy records. [BN]
Plaintiff is represented by:
Craig R. Heidemann. Esq.
Nathan A. Duncan. Esq.
DOUGLAS, HAUN & HEIDEMANN - BOLIVAR
111 W. Broadway
P.O. Box 117
Bolivar, MO 65613
Tel: (417) 326-5261
Fax: (417) 326-2845
Email: craig@dhhlawfirm.com
nathan@dhhlawfirm.com
Express Scripts, Inc. is represented by:
Dan H. Ball, Esq.
James P. Emanuel, Jr., Esq.
BRYAN CAVE LLP
One Metropolitan Square
211 North Broadway, Suite 3600
St. Louis, MO 63102
Tel: (314) 259-2000
Fax: (314) 259-2020
Email: dhball@bryancave.com
james.emanuel@bryancave.com
FORD MOTOR: Court Dismisses "Darne" Warranty Suit with Prejudice
-----------------------------------------------------------------
Judge John J. Tharp, Jr., of the U.S. District Court for the
Northern District of Illinois, Eastern Division, dismissed with
prejudice the case captioned STEVE DARNE and ROADSAFE TRAFFIC
SYSTEMS, INC., on behalf of themselves and all others similarly
situated, Plaintiffs, v. FORD MOTOR COMPANY, Defendant, No. 13 CV
03594 (N.D. Ill.).
Darne is a North Carolina resident and purchased a 2008 F-450
Super Duty XLT truck with a 6.4L engine on May 14, 2009, from a
dealership in North Carolina. After buying the truck, Darne
experienced problems related to common root cause defects with the
engine, including seeing white smoke emanating from the engine,
repeated radiator failures that required replacement, the failure
of two exhaust gas temperature sensors, a broken lift, a broken
camshaft, and a total failure and loss of power that required the
vehicle to be towed on four occasions. In an April 20, 2011 email
exchange with the Ford Customer Relationship Center, Darne was
told that given the truck's mileage, he would have to pay for any
repairs necessary to fix any defective engine parts. Darne
asserts that the Ford dealerships' attempts to repair the engine
were inadequate and unsuccessful, and that the vehicle's problems
resulted from the 6.4L engine's common root cause defects in the
defective oil cooling system, the defective Engine Gas
Recirculation coolers, and the oversized radiator.
RoadSafe has its principal place of business in Chicago, Illinois,
and is the limited partner of Delaware limited partnership
RoadSafe Traffic, LP. RoadSafe Traffic "holds title" to 65 Ford
vehicles containing 6.4L engines, which the Plaintiffs list in
their complaint by vehicle number, and has assigned all of its
rights related to those vehicles to RoadSafe, the Plaintiff. It
alleges that its trucks have spent months in repair shops because
of problems with the 6.4L Engine, and provides a "sampling" of
repairs, some during the warranty period and some not, in
connection with four of those vehicles. For each alleged repairs,
RoadSafe asserts that the engine's common root defects caused the
issues.
Darne and RoadSafe allege that because of Ford's failure to
properly repair its 6.4L engines during the warranty period, they
and proposed class members' engines broke down after the warranty
expired and those customers were no longer able to use their
vehicles. The Plaintiffs further assert that Ford has "actual
knowledge" of the defects and the Plaintiffs' and class members'
demands for repair because they and proposed class members
notified Ford through its Customer Relationship Center, and
indirectly through Ford's dealerships, of the 6.4L Engine's
problems. Darne received a complaint number from Ford, but the
auto manufacturer refused to take action. Since purchasing their
vehicles, RoadSafe and Darne have both properly maintained their
vehicles and consistently had them serviced according to the
manufacturer's scheduled routine maintenance. They also allege
that while Ford refused to properly repair the 6.4L engine's
defects under its warranty, it had internally recognized that the
engine had significant problems.
Darne launched this litigation in May 2013, when he filed a class
complaint against Ford and the engine supplier Navistar, Inc.
Those Defendants filed motions to dismiss that original complaint,
and Darne and RoadSafe then dismissed Navistar and lodged their
First Amended Complaint in November 2013, alleging counts for
breach of warranty and violations of various state consumer
protection statutes. The Court granted Ford's motion to dismiss
that complaint without prejudice.
Following the Court's dismissal of their previous complaint, the
Plaintiffs lodged their Second Amended Complaint ("SAC") on behalf
of proposed nationwide, Illinois, and North Carolina classes. The
proposed classes would include people who purchased or leased
defendant Ford Motor vehicles with the 6.4L Engine that required
one or more repairs covered by Ford's New Vehicle Limited Warranty
during the vehicle's first five years in service or 100,000 miles,
whichever came first, to: a fuel injector, the EGR coolers, the
oil cooler, and/or the radiator.
RoadSafe brings a claim for breach of express warranty (Count I)
and a claim for violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act (Count II), both on behalf of the
proposed nationwide and Illinois classes. Darne brings a claim
for violation of the North Carolina Uniform Deceptive Trade
Practices Act (Count III) on behalf of the proposed North Carolina
class. The Court has jurisdiction under the Class Action Fairness
Act because the matter in controversy exceeds $5,000,000 and some
members of the class, including Darne, are citizens of states
other than Delaware, the state in which Ford is incorporated, and
Michigan, the state in which Ford has its principal places of
business.
Now before the Court is Ford's motion to dismiss that pleading
pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and
12(b).
Judge Tharp held that the fundamental problem with the Plaintiffs'
claims is that they rest on the false premise that Ford
represented its 6.4L engines to be defect-free (or substantially
so) when in fact Ford expressly disavowed any such promise. What
Ford actually promised to do was to fix problems that arose with
the engine over the course of its first five years or 100,000
miles. The SAC fails to allege adequately that Ford breached this
promise or misled the Plaintiffs or other consumers about the
possibility of defects in the 6.4L engine and, accordingly,
RoadSafe and Darne have once again failed to plausibly allege that
Ford is liable for breach of express warranty or for violations of
the Illinois or North Carolina statutes. Because the Plaintiffs
have already had three opportunities to plead their claims
adequately, including an opportunity to amend their complaint to
address particular deficiencies identified in a dismissal order
from the Court, Judge Tharp dismissed with prejudice the
Complaint.
A full-text copy of the Court's Sept. 1, 2017 Memorandum Opinion
and Order is available at https://is.gd/JbcV5G from Leagle.com.
Steve Darne, Plaintiff, represented by Michael J. Flannery --
mflannery@cuneolaw.com -- Cuneo Gilbert & LaDuca LLP.
Steve Darne, Plaintiff, represented by Charles J. LaDuca --
charlesl@cuneolaw.com -- Cuneo, Gilbert & LaDuca, LLP, pro hac
vice, Charles E. Schaffer -- cschaffer@lfsblaw.com -- Levin Sedran
& Berman, John Barton Goplerud, Hudson Mallaney Shindler &
Anderson, P.c., pro hac vice, Michael A. McShane, Audet &
Partners, LLP, pro hac vice, Robert Kinney Shelquist --
rkshelquist@locklaw.com -- Lockridge Grundal Nauen & Holstein
PLLP, pro hac vice & James B. Zouras, Stephan Zouras, LLP.
RoadSafe Traffic Systems, Inc., Plaintiff, represented by Cory S.
Fein -- cory@coryfeinlaw.com -- Cory Fein Law Firm, James B.
Zouras, Stephan Zouras, LLP & Michael J. Flannery --
mflannery@cuneolaw.com -- Cuneo Gilbert & LaDuca LLP.
Ford Motor Company, Defendant, represented by David Richard Dorey
-- brhie@dykema.com -- O'Melveny & Myers LLP, pro hac vice, Janet
L. Conigliaro -- jconigliaro@dykema.com -- Dykema Gossett, Scott
Hammack -- shammack@omm.com -- O'melveny & Myers LLP, pro hac
vice, Bryan James Anderson, Dykema Gossett, PLLC & Melanie Jeanne
Chico -- mchico@dykema.com -- Dykema Gossett PLLC.
HAMTRAMCK, MI: 6th Cir. Affirms Summary Judgment in "Serafino"
--------------------------------------------------------------
Judge Julia Smith Gibbons of the U.S. Court of Appeals for the
Sixth Circuit affirmed the district court's grant of summary
judgment for the Defendants in the case captioned CRAIG SERAFINO,
WALTER TRIPP, and MICHAEL J. SZYMANSKI, Plaintiffs-Appellants, v.
CITY OF HAMTRAMCK, MICHIGAN and CATHY SQUARE, Defendants-
Appellees, No. 16-2370 (6th Cir.).
The state of Michigan appointed an emergency manager for the City
of Hamtramck because the City was facing a fiscal crisis. To
shore up the City's financial situation, the emergency manager,
among other things, altered the health-insurance plans offered to
the Plaintiffs, retired Hamtramck police officers and
firefighters. Under the new plans, the City continued to pay the
Plaintiffs-Retirees' health-insurance premiums, but required
greater deductibles and co-pays.
Believing that these changes violated the promises contained in
certain collective-bargaining agreements ("CBAs"), the Plaintiffs
sued Hamtramck and Emergency Manager Cathy Square on Oct. 24,
2014. They claim that their contractual and constitutional rights
were infringed when the City and Square took action to contain the
City's fiscal crisis. Some of these actions pertained to retiree
healthcare under prior CBAs that they allege created vested,
lifetime rights to healthcare under specific terms. Their
complaint, as amended, alleged five causes of action: three
separate counts under 42 U.S.C. Section 1983 for violations of the
Constitution's (i) Contracts Clause, (ii) Takings Clause, and (ii)
Due Process Clause; (iv) a violation of the Bankruptcy Code, 11
U.S.C. Section 903; and (v) a breach-of-contract action under
Michigan law.
On cross-motions for summary judgment, the district court
dismissed all of the Plaintiffs' claims. It did so because it
found that the Plaintiffs could not demonstrate a vested, lifetime
right to health-insurance benefits. Because their rights had not
vested, the district court concluded that any changes to those
rights were not protected by contract. This holding defeated not
only the Plaintiffs' breach-of-contract claims, but also their
remaining claims because each required a protected property
interest or some form of debt to be viable. Accordingly, because
it found that the Plaintiffs had no contractual right to
healthcare benefits, the district court did not reach the merits
of their constitutional or bankruptcy-law claims. The Plaintiffs
appealed.
Judge Gibbons held that unless the Plaintiffs can demonstrate a
vested right to lifetime healthcare benefits prior to the
expiration of their respective CBAs, their claims fail. This is
so because the 2009 CBAs and the contractual rights contained in
them expired when they were replaced by new CBAs. The Plaintiffs
do not allege that the City's or Square's actions violated the
2013 IAF CBA or the 2014 FOP and ROA CBAs. Thus, unless their
contractual rights vested and survived the expiration of the
earlier agreements, the Plaintiffs' claims must fail because, as
the district court held, they had no contractual rights to breach
and, concomitantly, no property rights from which they could
derive any of their constitutional or bankruptcy-law claims.
Accordingly, Judge Gibbons affirmed.
A full-text copy of the Court's Sept. 1, 2017 Order is available
at https://is.gd/A3Y3F1 from Leagle.com.
HANLEES FREMONT: Ally Wins Dismissal Bids in "Chaiwong" Suit
------------------------------------------------------------
In the case captioned WEERACHAI CHAIWONG, Plaintiff, v. HANLEES
FREMONT, INC., et al., Defendants, Case No. 16-cv-04074-HSG (N.D.
Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District Court
for the Northern District of California granted the Defendant Ally
Financial, Inc.'s motion to dismiss the Plaintiff's first amended
complaint ("FAC") and its motion to dismiss the cross-claims of
its co-Defendant Hanlees.
The Plaintiff leased a Chevrolet Equinox from Fremont Chevrolet on
June 22, 2010. The lease agreement listed the "Scheduled Lease
End Date" as Sept. 21, 2013. However, the lease also stated that
if this lease ends on or after the last scheduled payment is due,
they will treat the lease as if it ended as scheduled and not as
if it ended early ("Treat As clause"). The lease also stated that
at lease end the Plaintiff would owe any excess mileage charge,
any lease end daily extension charge, and Ally's estimated or
actual cost of repairing excess wear, plus any tax, but that the
Plaintiff was free to terminate the lease "anytime" prior to its
scheduled end date, though early termination fees would then
apply.
Prior to Plaintiff's termination of the lease, Ally accepted
assignment of the contract. On Sept. 19, 2013, the Plaintiff
attempted to "trade" the vehicle in to Defendant Hanlees, a third
party dealership, in connection with the lease of a Hyundai Santa
Fe, rather than returning the vehicle to Ally directly. The
Plaintiff claims that Hanlees represented to the Plaintiff that it
was authorized to accept the Equinox as a trade-in vehicle. The
Plaintiff also claims that as a result of his alleged "trade-in"
of the vehicle, Hanlees became responsible for paying Ally the
$17,543.50 balance owed on the lease but only issued a check to
Ally in the amount of $15,736.
While Hanlees initially indicated that it wished to purchase the
Equinox, Ally mistakenly repossessed the vehicle in October 2013
causing Hanlees to change its mind, and Ally issued Hanlees a
refund of the $15,736 check. Because the Plaintiff relinquished
the Equinox two days prior to the "Scheduled Lease End Date"
listed in the contract, the Plaintiff believed he was terminating
his lease with Ally early. However, because the Plaintiff had
already made the final payment on the lease, Ally treated the
lease as if it had ended as scheduled, and charged the Plaintiff
$9,712.76 for excess wear and mileage and related sales/use taxes.
Within a few months of "trading" the vehicle in, the Plaintiff
began receiving calls from Ally stating that he was delinquent on
payments for the lease of the Chevrolet. The Plaintiff notified
Ally that he had traded in the Chevrolet to Hanlees. In addition,
the Plaintiff "immediately" notified Hanlees of the issue and
requested that Hanlees fulfill its contractual obligation to pay
off any remaining lease balance on the Chevrolet to Ally.
The Plaintiff filed suit against Ally and Hanlees in the Superior
Court of California on May 25, 2016. On July 20, 2016, the action
was removed to the District Court under the Class Action Fairness
Act. The Plaintiff filed the FAC on Sept. 1, 2016 which alleges
three claims against Ally, including (i) violation of the Unfair
Competition Law ("UCL") Business and Professions Code Section
17200 by committing unfair and unlawful acts; (ii) violation of
the Rosenthal Fair Debt Collection Practices Act ("FDCPA"); and
(iii) declaratory relief. It also asserts claims against Hanlees
arising out of Hanlees' alleged misrepresentation to the Plaintiff
that it would pay off the balance of the Equinox after the
Plaintiff traded the vehicle in for the Hyundai.
In addition, in its answer to the FAC, Hanlees asserted several
cross-claims against Ally, including (i) violation of the UCL
Business and Professions Code Section 17200 by committing
unlawful, unfair, and deceptive acts; (ii) equitable indemnity;
(iii) intentional interference with prospective economic
advantage; and (iv) slander and disparagement of title. Ally now
moves to dismiss both the Plaintiff's and Hanlees' claims.
While both the Plaintiff and Hanlees contend that the Treat As
clause is unfair and unlawful, Judge Gilliam disagrees. While the
Plaintiff contends that the "Scheduled Lease End Date" of Sept.
21, 2013 is the sole scheduled expiration date, Ally contends that
the Treat As clause in the lease provides alternative scheduled
end dates: either Sept. 21, 2013, or any date before Sept. 21,
2013 but after final payment. The Judge agrees with Ally.
Because nothing in the VLA prevents a lessor from specifying
multiple potential scheduled end dates, he finds that the Treat As
clause in the lease established alternative scheduled end dates,
such that the Plaintiff's Sept. 19, 2013 return of the vehicle did
not constitute an early termination. Sections 2987(a) and (f)(2)
therefore do not apply. The Plaintiff thus has not plausibly
alleged that Ally's conduct was unlawful. In light of this
finding, the Plaintiff's claim that Ally improperly charged and
attempted to collect those fees fails. Finally, and for the same
reasons, the Judge declines to consider the Plaintiff's
declaratory relief claim, which requests that the Court use its
discretion to declare, among other things, that he terminated the
lease early, and is not liable for the excess wear and mileage
owed under the lease.
Each of Hanlees' cross-claims against Ally also fails. First,
Hanlees asserts a UCL claim against Ally for unlawful, unfair, and
fraudulent business practices based on Ally's alleged violation of
Sections 2987(a) and (f) of the VLA. Ally contends that Hanlees
lacks standing to bring such a claim, arguing that Hanlees failed
to identify any injury in fact. However, Judge Gilliam needs not
reach that issue since, even assuming that Hanlees does have
standing to assert these claims, which he does not now decide,
Hanlees fails to plead facts sufficient to establish that Ally's
conduct was unlawful for the same reasons discussed. Nor was
Ally's conduct unfair as alleged. Hanlees further fails to
specify the allegedly slanderous statements, how or when they were
published, how they were false, or what type of pecuniary loss it
might suffer as a result. Such bare assertions are thus too
conclusory to withstand a motion to dismiss.
For these reasons, Judge Gilliam granted both of Ally's motions to
dismiss. As a general rule, leave to amend a complaint that has
been dismissed should be freely granted. However, leave to amend
may be denied when the Court determines that the pleading could
not possibly be cured by the allegation of other facts. Given the
Court's interpretation of the lease agreement, Judge Gilliam is
skeptical that the Plaintiff or Hanlees will be able to plead new
facts that would change the above analysis. Nevertheless, because
he cannot conclusively say at this point that the pleadings could
not possibly be cured, the Plaintiff and Hanlees are granted an
opportunity to amend the complaint and cross-complaint by Sept.
30, 2017.
A full-text copy of the Court's Sept. 1, 2017 Order is available
at https://goo.gl/A2rgMB from Leagle.com.
Weerachai Chaiwong, Plaintiff, represented by Sharon Elizabeth
Glassey, Glassey Smith.
Weerachai Chaiwong, Plaintiff, represented by Christopher T.
Smith, Glassey/Smith & Joshua Charles Anaya --
josh@californiaconsumerattorneys.com -- Glassey Smith.
Hanlees Fremont, Inc., Defendant, represented by Martin Stevens
Putnam, Law Offices of Martin Putnam.
Ally Financial Inc., Defendant, represented by Erik Wayne Kemp --
ek@severson.com -- Severson & Werson & Mary Catherine Kamka,
Severson and Werson, PC.
Hanlees Fremont, Inc., Cross-claimant, represented by Martin
Stevens Putnam -- martin@putnamlaw.com -- Law Offices of Martin
Putnam.
Ally Financial Inc., Cross-defendant, represented by Mary
Catherine Kamka -- mkk@severson.com -- Severson and Werson, PC.
HIGHVELD SYNDICATION: Georgiou Granted Leave to Appeal SCA Ruling
-----------------------------------------------------------------
Ryk van Niekerk, writing for Moneyweb, reports that property
magnate Nic Georgiou was granted leave to appeal against a
judgment, which saw Mr. Georgiou settle the claims of several
applicants in the Highveld Syndication (HS) class action suit.
These applicants subsequently withdrew their application for
certification of the class action, and if allowed by the courts,
will effectively bring an end to the class action process.
Judge John Murphy of the High Court in Pretoria ruled that there
are compelling reasons to grant leave to appeal. "Firstly, the
matter gives rise to important questions of law which are res
nova; and secondly the judgment will have far-reaching
consequences impacting on all future class actions."
Res nova refers to a case or legal issue that has never before
been decided by a court.
"Given that there is no clear and definitive rule regarding the
duties of applicants in a certification application, there is, in
my view, a reasonable prospect that another court could rule that
without certification an applicant for certification is not a
representative required to act in the best interests of the
contemplated class," he wrote in his judgment.
Judge Murphy's original judgment was scathing of Mr. Georgiou's
conduct, which saw him settle the claims of the applicants who
represented around 7 000 Highveld Syndication Action Group (HSAG)
members in an application for certification of the class action.
As part of the settlement agreements, the applicants had to
appoint new attorneys and withdraw their original application for
a class action certification. This would bring an end to the class
action application.
All of this was done without notifying the legal team of the HSAG
who brought the original application for certification of the
class action.
Judge Murphy also acknowledged that he is mindful that the matter
must be resolved expeditiously and the prejudice in delaying the
class action and suggested that the registrar of the Supreme Court
of Appeal be approached for an expedited appeal.
In response Jacques Theron, legal representative of the HSAG in a
communication to HSAG members welcomed the referral directly to
the SCA as it "would give certainty to the future process of also
the HSAG Class Action (e.g. if Georgiou/Orthotouch attempt to
settle new Applicants)".
He also stated that Judge Murphy emphasised the "seriousness of
the matter, and the HSAG is confident that the SCA will protect
the interests of the thousands of HS investors in the failed HS
Companies".[GN]
HOME DEPOT: Reaches Settlement with CPSC Over Recalled Products
---------------------------------------------------------------
C. Ryan Barber, writing for The National Law Journal, reports that
Home Depot USA Inc. has reached a $5.7 million settlement with
federal product safety regulators over claims that the retailer,
in a span of four years, sold thousands of products that had
previously been recalled due to dangerous defects.
The settlement -- dated Aug. 24 but announced without fanfare on
Aug. 29 -- was the first the Consumer Product Safety Commission
published since President Donald Trump formally nominated
Commissioner Ann Marie Buerkle in July to serve as the agency's
chairwoman.
Before the nomination, which still requires U.S. Senate approval,
Trump had elevated Ms. Buerkle to the role of acting chairwoman.
In that role, Ms. Buerkle has been only a titular leader of the
agency, as former Chairman Elliot Kaye's decision to stay on --
albeit in the role of one of the four remaining commissioners --
has prolonged the 3-2 majority of Democrat-appointed members.
That rare dynamic at a federal agency post-election has put
Ms. Buerkle on the losing side of CPSC votes to push forward with
new regulations and finalize settlements, highlighting her
aversion to steep financial penalties on companies. The Home
Depot settlement provided the latest example of how Trump's pick
to lead the CPSC would prefer to take a lighter hand on companies.
Ms. Buerkle was the lone dissenter in the commission's 4-1 vote to
approve the Home Depot settlement, which was supported by
Republican Commissioner Joe Mohorovic. Ms. Buerkle wanted to
reduce the penalty amount from $5.7 million to $1 million. The
commission as of Aug. 29 had not issued any news release about the
settlement.
Eric Rubel -- eric.rubel@apks.com -- an Arnold & Porter Kaye
Scholer partner in Washington and former general counsel to the
CPSC, represented Atlanta-based Home Depot in the settlement. He
wasn't immediately reached for comment on Aug. 29.
"Home Depot enters into this agreement to settle this matter
without the delay and avoid the unnecessary expense of
litigation," the Federal Register notice said. The company did
not admit any of the agency's allegations.
A spokesman for Home Depot said on Aug. 29 that the company "fixed
a process glitch that allowed a relatively small number of
recalled products to be sold through various channels," including
salvage, a point-of-sale system used for special orders and
product donations. "In fact, only 2,300 sales were made out of
more than more than 5 billion transactions over the four-year
period," the spokesman said.
The company said there were no reported injuries.
Forecasting the Future of the CPSC
Ms. Buerkle has made no secret of her qualms with high settlement
amounts. In the past six months, she has been the lone vote
against a $5.8 million settlement with Keurig Green Mountain Inc.
and a $5.2 million settlement, which were both based on
allegations that the companies failed to immediately report safety
risks posed by their products.
In a statement last year in May, Buerkle said she had voted in
favor of only three of the dozen civil penalties assessed in the
previous two years. "One might think that I oppose civil
penalties as a matter of course, but actually my opposition has
been for a variety of reasons," she said.
Among the reasons cited: a lack of transparency and consistency in
how CPSC staff arrive at penalty amounts.
"All else equal, I would think that a company that reports before
any serious injury has occurred should be subject to a lower
penalty than a company that waits until an injury has occurred,"
she said. "Similarly, I would think that a company with a history
of noncompliance with reporting requirements would be subject to a
higher penalty than one who has a perfect track record."
According to the CPSC, Home Depot notified the agency in May 2015
that it had sold or transferred to logistics centers about 600
units of seven different recalled products. Six months later, the
CPSC and Home Depot issued a joint press release announcing that
the retailer had sold 2,310 units of 28 separate recalled products
between 2012 and November 2015.
But Home Depot continued selling units of recalled products, along
with other products that were recalled after the 2015 press
release, according to the CPSC. In total, the CPSC staff found
that Home Depot sold or distributed at least 2,816 units of 33
different recalled products.
"Home Depot sold and distributed recalled products because Home
Depot's procedures failed to accurately identify, quarantine, and
prevent the sale, offer for sale, and distribution of the recalled
products," the CPSC said. [GN]
HSBC BANK: "Farrell" Sues Over Mortgage Satisfaction Late Filing
----------------------------------------------------------------
Paul Farrell, on behalf of himself and all others similarly
situated, Plaintiff, v. HSBC Bank USA, N.A., Defendant, Case No.
7:17-cv-06337, (S.D. N.Y., August 21, 2017), seeks statutory
damages and remedies as well as injunctive relief for violation of
New York Real Property Law and New York Real Property Actions and
Proceedings Law.
HSBC held a mortgage on Plaintiff's home. Even though Plaintiff
and his wife repaid that mortgage loan in full by cashier's check
on September 1, 2016, HSBC did not file a Satisfaction of Mortgage
with the county clerk until February 17, 2017, thus incurring
penalties. [BN]
Plaintiff is represented by:
Peter D. St. Phillip, Jr., Esq.
Scott V. Papp, Esq.
LOWEY DANNENBERG P.C.
44 South Broadway, Ste. 1100
White Plains, NY 10601
Tel. (914) 997-0500
Email: pstphillip@lowey.com
spapp@lowey.com
- and -
Joseph S. Tusa, Esq.
TUSA P.C.
P.O. Box 566
Southold, NY 11971
Tel. (631) 407-5100
Email: joseph.tusapc@gmail.com
HUMANADENTAL INSURANCE: Court Decertifies Class in "Brodsky"
------------------------------------------------------------
The United States District Court for the Northern District of
Illinois issued an Memorandum Opinion and Order granting
Defendant's Motion to Decertify the Class and To Stay the case
captioned LAWRENCE S. BRODSKY, individually and as the
representative of a class of similarly-situated persons,
Plaintiff, v. HUMANADENTAL INSURANCE COMPANY d/b/a HUMANA
SPECIALITY BENEFITS, Defendant, Case No. 10-cv-03233 (N.D. Ill.),
and Plaintiff's Motion For Order Approving Class Notice and
Setting A Date For Opt Outs is denied as moot.
Plaintiff Lawrence Brodsky claims that Defendant HumanaDental
Insurance Company improperly sent him two faxes in violation of
the Telephone Consumer Protection Act (TCPA).
Currently pending before the Court are Defendant's Motion to
Decertify the Class and To Stay and Plaintiff's Motion For Order
Approving Class Notice and Setting A Date For Opt Outs.
The Solicited Fax Rule
The TCPA provides that a person or entity may bring an action
based on a violation of this [statute] or the regulations
prescribed under the same. 47 U.S.C. Section 227(b)(3). The
statute itself generally prohibits sending an unsolicited
advertisement via fax. A fax is unsolicited if the recipient has
not given its prior express invitation or permission to receive
the fax.
Recent Developments
In the wake of Judge Durkin's decision on summary judgment and the
District Court's certification of the instant class, the Solicited
Fax Rule has been narrowed on multiple fronts.
The November 2016 Waiver
In November 2016, HDIC received a retroactive waiver from the FCC.
The November 2016 Waiver explicitly excused Defendant for any
failure to comply with the opt-out notice requirement for fax
advertisements sent with the prior express invitation or
permission of the recipient prior to April 30, 2015.
After the October 2014 Order was issued, several non-party fax
senders filed petitions for review of the FCC's decision in
multiple circuit courts. The United States Judicial Panel on
Multidistrict Litigation consolidated these petitions in the
District of Columbia Circuit.
Legal Standard
Under Federal Rule of Civil Procedure 23(c)(1)(C), an order that
grants or denies class certification may be altered or amended
before final judgment. Even after a certification order is
entered, the judge remains free to modify it in the light of
subsequent developments in the litigation.
Defendant contends that both the November 2016 Waiver and the Bais
Yaakov decision implicate additional individual questions that
defeat superiority and predominance, such that the present class
must be decertified.
Plaintiff must show, among other things: (1) that issues common to
the class members predominate over questions affecting only
individual members; and (2) that a class action is superior to
other available adjudication methods). The Court addresses the
November 2016 Waiver first, for reasons that will become apparent.
HDIC essentially contends that: (1) the requirement that solicited
faxes include an opt-out notice is imposed by the Solicited Fax
Rule (not the TCPA itself); (2) the November 2016 Waiver suspended
the Solicited Fax Rule with respect to the faxes at issue here;
(3) absent the Solicited Fax Rule, the faxes at issue did not need
to include an opt-out notice, so long as they were solicited; and
(4) to ascertain liability therefore, this Court must now
determine whether each individual recipient solicited the faxes
they received, such that individual questions overwhelm the common
issues previously identified by the Court.
The Effect of the Agency Contract
He was party to an Agency Contract, but at least seven other
individuals had his permission to use his fax machine during the
time period at issue. Were these individuals Brodsky's employees
or independent contractors? If they were independent contractors,
was the putative consent in Brodsky's Agency Contract effective as
to them? If the consent in the Agency Contract was effective as to
these individuals, was it ever revoked? These outstanding
questions suggest that the trial in this case will be consumed and
overwhelmed by testimony from each individual class member, in an
effort to determine whether the class member consented to receive
the [messages] in question.
The FCC's Authority
Plaintiff next argues that, while the November 2016 Waiver may
insulate Defendant from an administrative enforcement action with
the FCC, it "has no effect in a private TCPA action" in federal
court.
The FCC was empowered to issue the November 2016 Waiver, and that
document means what it says: Defendant is excused for any failure
to comply with the opt-out notice requirement for fax
advertisements sent with the prior express invitation or
permission of the recipient prior to April 30, 2015.
Decertification Is Appropriate Here
Now that the issue of consent is back in the equation by virtue of
the November 2016 Waiver, the present class must be decertified.
These inquiries would also be protracted by virtue of the
different relationships between and among the various recipients,
as illustrated by Brodsky's own arrangement with his seven
employees and/or independent contractors. These idiosyncratic
consent issues defeat superiority and predominance, such that
decertification is appropriate.
Bais Yaakov
The D.C. Circuit's decision in Bais Yaakov purported to strike
down the Solicited Fax Rule wholesale, holding it unlawful to the
extent that it requires opt-out notices on solicited faxes.
Defendant suggests that, like the November 2016 Waiver, Bais
Yaakov invalidates the Solicited Fax Rule, meaning that the faxes
here were only unlawful if they were unsolicited, which in turn
implicates myriad individual issues that defeat certification.
Plaintiff predictably disagrees, arguing, among other things, that
Bais Yaakov is inconsistent with the Seventh Circuit's guidance in
Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013).
The Court declines to afford Turza's non-precedential dicta a
reading that would improperly expand the TCPA. Indeed, federal
courts across the country agree that, while the TCPA requires an
opt-out notice on unsolicited fax advertisements, the TCPA does
not require a similar opt-out notice on solicited fax
advertisements that is, those fax advertisements sent with the
recipient's prior express invitation or permission.
Plaintiff claims that Defendant's faxes did not comply with the
TCPA's opt-out notice requirement. The TCPA, however, does not
impose an opt-out notice requirement on solicited faxes. That
obligation was created by the Solicited Fax Rule, which is no
longer operable here by virtue of the November 2016 Waiver.
Thus, to determine whether any putative member of the proposed
class had a TCPA claim, the Court would first be required to
determine whether that proposed class member solicited" the faxes
it received. In light of controlling precedent and the facts here,
the Court holds that individual consent issues defeat predominance
and superiority, such that class treatment is no longer warranted
under Rule 23.
A full-text copy of the District Court's August 28, 2017
Memorandum Opinion and Order is available at
http://tinyurl.com/ybehh5fwfrom Leagle.com.
Lawrence S. Brodsky, Plaintiff, represented by Brian J. Wanca --
bwanca@andersonwanca.com -- Anderson & Wanca.
Lawrence S. Brodsky, Plaintiff, represented by David Max Oppenheim
-- david@classlawyers.com -- Bock, Hatch, Lewis and Oppenheim,
LLC, Glenn L. Hara -- ghara@andersonwanca.com -- Anderson & Wanca,
James Michael Smith -- jim@classlawyers.com -- Bock Law Firm, LLC
dba Bock, Hatch, Lewis & Oppenheim, LLC, John P. Orellana, Bock,
Hatch, Lewis & Oppenheim, LLC, Phillip A. Bock --
phil@classlawyers.com -- Bock Law Firm, LLC dba Bock, Hatch, Lewis
& Oppenheim, LLC, Ross Michael Good -- rgood@andersonwanca.com --
Anderson Wanca, Ryan M. Kelly -- rkelly@andersonwanca.com --
Anderson & Wanca, Tod Allen Lewis -- tod@classlawyers.com -- Bock
Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC & Wallace
Cyril Solberg -- rsolberg@andersonwanca.com -- Anderson & Wanca.
HumanaDental Insurance Company, Defendant, represented by William
A. Chittenden, III -- wchittenden@cmn-law.com -- Chittenden,
Murday & Novotny, LLC, David Joseph Novotny -dnovotny@cmn-law.com
-- Chittenden, Murday & Novotny, LLC, Joseph R. Jeffery -
jeffery@cmn.law.com -- Chittenden, Murday & Novotny, LLC &
Vittorio Fiore Terrizzi -- vterrizzi@cmn-law.com -- Chittenden,
Murday & Novotny.
INDIANA: High Court Affirms Dismissal of DCS Worker's Suit
----------------------------------------------------------
The Supreme Court of Indiana issued an Opinion affirming the
District Court dismissal of the Complaint in the case captioned
MARY PRICE, Appellant (Plaintiff), v. INDIANA DEPARTMENT OF CHILD
SERVICES; DIRECTOR OF INDIANA DEPARTMENT OF CHILD SERVICES,
Appellees (Defendants), No. 49S05-1705-PL-285 (Ind.), for failure
to state a claim.
Plaintiff, Mary Price, works for the Department of Child Services
as a family case manager. Her job requires that she monitor and
supervise active cases where the Department has been presented
with evidence that a child is suffering from abuse or neglect.
Price filed a proposed class-action lawsuit in July 2015 alleging
her caseload had ballooned to forty-three children -- more than
twice the statutory cap. Her claim, which is based on Section 31-
25-2-5, names the Department and its director as defendants and
seeks an order mandating or enjoining Defendants to take all
necessary steps to comply with Section 5.
Defendants moved to dismiss Price's complaint on two grounds: lack
of subject-matter jurisdiction and failure to state a claim upon
which relief can be granted. The trial court dismissed the
complaint under Rule 12(B)(6) for failing to state a claim.
The state Supreme Court holds that Price is not entitled to the
extraordinary remedy of a judicial mandate. Under the supreme
court's mandate statute and case law interpreting it, such relief
is available only to compel a specific, ministerial act, and only
if the plaintiff is clearly entitled to that relief. Price seeks
to compel the Department (and its director) to comply with the
strict caseload requirements set forth in Section 31-25-2-5. But
this statute requires only a particular outcome caseloads cannot
exceed seventeen children per case manager and does not require
the Department to take specified steps to achieve that outcome.
Thus, the statute is not susceptible to a judicial mandate to
compel compliance with its terms. In addition, we reject Price's
argument that Section 5 gives her a private right of action to
enforce the statute's caseload limits.
The Court of Appeals held that Price had no private right of
action because Section 5 was intended to benefit the public
generally and not particular individuals
A judicial mandate will issue only when the law imposes a clear
duty on the defendant to perform a specific, ministerial act and
the plaintiff is clearly entitled to that relief.
The supreme court doubts the Department itself (as opposed to its
director) is a proper defendant to a mandate action, given the
various definitions of person under Section 34-6-2-103. In order
to enable the court to enforce its mandate, or administer the
proper penalty for disobedience, it is necessary that the
officials derelict in performance of duty should be proceeded
against personally.
But Defendants did not raise this argument, so the supreme court
will not address it.
The specific, ministerial acts subject to judicial mandate are to
be determined solely from the law imposing the duty, and courts
cannot impose a mandate remedy different than what is specified in
the applicable law.
Courts do not have license to define or prescribe a duty to act.
The requirement of a specific, ministerial act leaves no room for
judicial improvisation regarding the underlying legal duty.
Because ministerial acts are those done only pursuant to law, in a
fixed manner, in specific circumstances, and without discretion,
they necessarily cannot be elaborated upon.
Thus, a court cannot expound upon what particular act a duty
compels; it can only command performance of an existing duty
required by law.
Judicial mandate is not proper here because Section 31-25-2-5 does
not compel the performance of a specific, ministerial act.
It is not enough that Section 31-25-2-5 speaks in mandatory terms
such as department shall ensure and department shall comply. To be
susceptible to a judicial mandate, Section 5 must also compel the
performance of a specific act, not just a specific outcome. The
statute does not spell out how the Department is to comply with
the caseload caps. By failing to outline what specific actions the
Department must take to meet caseload requirements, Section 5
affords the Department wide latitude in complying with them.
Section 5, therefore, is not amenable to judicial mandate.
The state supreme court affirms the dismissal of Price's
complaint.
A full-text copy of the Supreme Court's August 28, 2017 Opinion is
available at http://tinyurl.com/ydchyrhofrom Leagle.com.
Kenneth J. Falk -- kfalk@aclu-in.org -- Gavin M. Rose, ACLU of
Indiana, Indianapolis, IN, Attorneys for Appellant.
Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Frances Barrow, Andrea Rahman, Matthew
R. Elliott, Deputy Attorneys General, Indianapolis, IN, Attorneys
for Appellee.
INGHAM COUNTY, MI: Court Dismisses Inmates' Pro Se Suit
-------------------------------------------------------
The United States District Court for the Western District of
Michigan, Southern Division, issued an Opinion dismissing Pro Se
Complaint for failure to state a claim in the case captioned
GEORDAN ARTIS et al., Plaintiffs, v. INGHAM COUNTY JAIL et al.,
Defendants, Case No. 1:17-cv-516 (W.D. Mich.).
This is a civil rights action, originally brought by eight Ingham
County Jail inmates pursuant to 42 U.S.C. Section 1983. Since
filing, the Court has denied Plaintiff Paul Jackson leave to
proceed in forma pauperis, because he had previously filed at
least three cases that were dismissed on the grounds that they
were frivolous, malicious or failed to state a claim. Jackson has
paid his $43.75 portion of the civil action filing fee. The Court
has also granted the motions of James Dalton and Leonard Samuel
Barlow to proceed in forma pauperis. The claims of the other five
plaintiffs (Geordan Artis, Dymarion Jackson, Cornelius Smith,
Willie Lewis, and John Glazier) have been dismissed for lack of
prosecution.
Under the Prison Litigation Reform Act, the Court is required to
dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. The Court must read Plaintiffs'
pro se complaint indulgently and accept Plaintiffs' allegations as
true, unless they are clearly irrational or wholly incredible
Applying these standards, Plaintiffs' action will be dismissed for
failure to state a claim.
Plaintiffs Jackson, Dalton and Barlow are incarcerated at the
Ingham County Jail (ICJ). They sue the ICJ; Ingham County Sheriff
Scott Wriggelsworth; Ingham County Deputies Gaston, Johnson,
Wallace, Perry, Bradley, and Davis (first names unknown); and
Ingham County Sergeant Unknown Nye. Plaintiffs complain generally
about the conditions of their confinement.
Plaintiffs allege, inter alia: there is black mold everywhere and
that numerous post/pods/floors have been closed because of it.
They are instructed not to drink the water without explanation.
Two persons are housed in cells intended for one person.
Plaintiffs identify themselves as Class Action Plaintiffs. The
Court construes this as a request for class certification. For a
case to proceed as a class action, the court must be satisfied on
a number of grounds, including the adequacy of class
representation.
Because Plaintiffs are incarcerated pro se litigants, the Court
finds that they are not appropriate representatives of a class.
Therefore, the Court will deny Plaintiffs' request for class
certification.
Plaintiffs list the nine defendants on the form cover sheet of
their complaint. Beyond that listing, however, Plaintiffs fail to
even to mention any of the individual Defendants in the body of
their complaint. Their allegations therefore fall far short of the
minimal pleading standards under FED. R. CIV. P. 8. Plaintiffs'
claims against the individual Defendants are properly dismissed.
To the extent Plaintiffs seek to impose liability on Defendant
Wrigglesworth because of his supervisory position, their claims
also fail. Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior or vicarious liability.
A plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution. Plaintiffs have failed to allege that Defendant
Wrigglesworth engaged in any active unconstitutional behavior.
Accordingly, they fail to state a claim against him.
Conditions of Confinement
The Eighth Amendment imposes a constitutional limitation on the
power of the states to punish those convicted of crimes.
Punishment may not be barbarous nor may it contravene society's
"evolving standards of decency.
Double Bunking
Plaintiffs' bare claims that they are double-bunked in cells that
were originally designed for one person fail to demonstrate that
their confinement violates either the Eighth or the Fourteenth
Amendment. Bell v. Wolfish, 441 U.S. 520, 541-43 (1979) upholding
double bunking of pretrial detainees in cells originally designed
for one person.
Exercise
The Eighth Amendment entitles prisoners to exercise sufficient to
maintain reasonably good physical and mental health. See Walker v.
Mintzes, 771 F.2d 920-927 (6th Cir. 1985). Plaintiffs, however,
fail to allege facts suggesting that they are not provided an
opportunity sufficient to exercise and maintain fitness. They
allege only that the day room does not permit them to engage in
cardiovascular exercise, not that they were deprived of all
ability to exercise in their cells by, for example, running in
place and doing jumping jacks. Nor do Plaintiffs allege that they
are never permitted out-of-cell exercise. Such allegations fall
short of demonstrating an Eighth Amendment violation.
Toilets
Plaintiffs' allegations concerning the toilet system at ICJ
concern only minimal and incidental harms that do not offend the
Eighth Amendment. They do not constitute the sort of "extreme
deprivations that make out a conditions-of confinement claim.
Black mold
Plaintiffs do not allege that mold from another part of the jail
has become airborne, and they do not allege that the presence of
mold has caused them health problems. Morales v.White, No. 07-
2018, 2008 WL 4584340, holding that allegation that black mold is
located at some place within a housing unit is not sufficient to
support an Eighth Amendment claim). As a consequence, Plaintiffs'
allegations about the presence of mold do not demonstrate the
existence of a sufficiently serious risk to prisoner health to
implicate the Eighth Amendment. Ivey, 832 F.2d at 954.
Showers
A three-minute shower, while brief, does not amount to a
deprivation of basic sanitation within the meaning of the Eighth
Amendment. Although Plaintiffs may wish for more time in the
shower, knowing the limitations on their shower time, they should
be able to rinse, lather, and rinse again their entire bodies
within three minutes. No reasonable factfinder could conclude that
a short shower results in the denial of the minimal civilized
measure of life's necessities. Rhodes, 452 U.S. at 347.
Drinking water
Plaintiffs do not claim that they have been denied water nor do
they claim that the water they have been provided is unsafe.
Moreover, Plaintiffs have not alleged that they have suffered any
harm as a result of drinking the water provided at the ICJ.
Plaintiffs have failed to state an Eighth Amendment claim
regarding the ICJ drinking water.
Food on the floor
In Richmond, the Sixth Circuit determined that a prisoner who was
deprived of five meals over three consecutive days, and a total of
seven meals over six consecutive days, did not state a viable
Eighth Amendment claim, because he "does not allege that his
health suffered as a result of not receiving the meals. In
Cunningham, the Sixth Circuit determined that providing a prisoner
only one meal a day for over two weeks was not an Eighth Amendment
violation, because the meals provided were adequate to sustain
normal health. Cunningham, Plaintiffs do not allege that the
prisoner's health suffered as a result of the deprivation, or that
the meals he did receive were inadequate to sustain his health.
Consequently, Plaintiffs do not state a plausible claim.
Access to the courts
An indigent prisoner's constitutional right to legal resources and
materials is not, however, without limit. In order to state a
viable claim for interference with his access to the courts, a
plaintiff must show "actual injury. Lewis v. Casey, 518 U.S. 343,
349 (1996). In other words, a plaintiff must plead and
demonstrate that the shortcomings in the prison legal assistance
program or lack of legal materials have hindered, or are presently
hindering, his efforts to pursue a nonfrivolous legal claim.
Having conducted the review required by the Prison Litigation
Reform Act, the Court determines that Plaintiffs' action will be
dismissed for failure to state a claim.
A full-text copy of the District Court's August 28, 2017 Opinion
is available at http://tinyurl.com/ydxsjqdcfrom Leagle.com.
James Dalton, plaintiff, Pro Se.
Paul Jackson, plaintiff, Pro Se.
Leonard Samuel Barlow, plaintiff, Pro Se.
J&B MECHANICAL: Court Conditionally Certifies Class in "Johnston"
-----------------------------------------------------------------
In the case captioned JACK JOHNSTON, individually and on behalf of
those similarly situated Plaintiff/Counter-Defendant, v. J&B
MECHANICAL, LLC Defendant/Counterclaimant, Civil Action No.
4:17CV-00051-JHM (E.D. Ky.), Judge Joseph H. McKinley, Jr. of the
U.S. District Court for the Western District of Kentucky,
Owensboro Division, granted Johnston's motion to conditionally
certify a collective action and to facilitate notice to the
collective Plaintiffs.
The Plaintiff filed a civil action against the Defendant, alleging
that it failed to pay the correct amount of overtime compensation
to him and others similarly situated in violation of the Fair
Labor Standards Act ("FLSA"). Johnston was employed by J&B
Mechanical from July 18, 2009, through January 21, 2017, as a
millwright laborer and a field foreman. He alleges that he was
one of an estimated 40 to 80 individuals employed by J&B
Mechanical in the past few years as millwrights who served in the
capacity of a helper, laborer, or field foreman. He represents
that all such personnel performed substantially the same work for
the company as millwrights.
Johnston avers that in a normal work week, he would work 50 to 70
hours or more for J&B Mechanicals, and approximately seven to 10
of those hours were spent in travel time to out-of-town work
sites. Johnston alleges that J&B Mechanical did not count its
millwrights' travel time towards their total number of hours
worked for calculation and payment of hourly overtime wages in
violation of the FLSA.
J&B Mechanical filed an answer denying that it failed to pay the
correct amount of overtime compensation. Contemporaneously with
its answer, it filed a counterclaim against Johnston alleging that
Johnston engaged in a pattern and practice of fraud,
misrepresentation, disloyalty, and deceit with respect to time he
reported working at or while traveling to or from out-of-town
worksites.
Johnston now moves the Court to conditionally certify a class of
current and former field foremen, laborers, or helpers, or other
functional equivalents, to approve notice to advise the putative
Plaintiffs of their rights under the FLSA, and to furnish them an
opportunity to opt-in to this action. J&B Mechanical opposes the
conditional certification and certain aspects of Johnston's
proposed notice.
Judge McKinley that Johnston has come forward with the modest
factual showing sufficient to satisfy the fairly lenient standard
governing conditional certification of collective actions under
the FLSA. Accordingly, he granted the Plaintiff's motion to
conditionally certify a collective action and to facilitate notice
to the collective Plaintiffs.
Within 15 days of the date of entry of the Order, the Defendant
shall provide to the Plaintiff the contact information for all
putative class members, including their names, last known
addresses, and last known telephone numbers. He further ordered
that within 15 days of entry of the Order, the parties shall
confer and file with the Court an agreed-upon notice and consent
form consistent with this opinion for Court approval. If the
parties disagree as to any specific language in the notice and
opt-in consent form, the parties shall identify the disputed
language along with supporting memoranda and each party's proposed
language.
Within 15 days of approval of the notice and consent form by the
Court, the Plaintiff shall send the notice and consent form by
first-class mail to all the potential Plaintiffs. All members of
the Notice Group shall be provided 60 days from the date of
mailing the notice and consent form to opt-in to this lawsuit.
All consent forms will be deemed to have been filed with the Court
the date they are stamped as received, and the Plaintiff's counsel
shall file them electronically on a weekly basis, at a minimum.
The parties shall file a joint status report, detailing their
compliance with the Order, within 15 days of the close of the opt-
in period.
A full-text copy of the Court's Sept. 1, 2017 Memorandum Opinion
and Order is available at https://goo.gl/ZtCZx4 from Leagle.com.
Jack Johnston, Plaintiff, represented by Andrew Dutkanych, III --
ad@bdlegal.com -- Biesecker Dutkanych & Macer LLC.
Jack Johnston, Plaintiff, represented by Douglas Briody, Siesky
Law Firm, PC, Karolina Viehe, Siesky Law Firm, PC, Kyle F.
Biesecker, Biesecker Dutkanych & Macer LLC & Lane C. Siesky,
Siesky Law Firm, PC.
J&B Mechanical, LLC, Defendant, represented by Jeffrey Calabrese,
Stoll Keenon Ogden PLLC, John O. Sheller, Stoll Keenon Ogden PLLC
& Steven T. Clark, Stoll Keenon Ogden PLLC.
J&B Mechanical, LLC, Counter Claimant, represented by Jeffrey
Calabrese -- jeff.calabrese@skofirm.com -- Stoll Keenon Ogden
PLLC, John O. Sheller -- john.sheller@skofirm.com -- Stoll Keenon
Ogden PLLC & Steven T. Clark -- steven.clark@skofirm.com -- Stoll
Keenon Ogden PLLC.
Jack Johnston, Counter Defendant, represented by Andrew Dutkanych,
III, Biesecker Dutkanych & Macer LLC, Douglas Briody, Siesky Law
Firm, PC, Karolina Viehe, Siesky Law Firm, PC, Kyle F. Biesecker,
Biesecker Dutkanych & Macer LLC & Lane C. Siesky, Siesky Law Firm,
PC.
JANSSEN PHARMA: Gets Third Defense Verdict in Xarelto Case
----------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that for plaintiffs in Xarelto litigation, the third time was not
the charm.
A jury in the third bellwether trial over the blood thinner
Xarelto has sided with defendants Janssen Pharmaceuticals Inc. and
Bayer -- again. The verdict, rendered on Aug. 18, came about
three hours after the jury began deliberating and despite the
absence of star defense attorney Beth Wilkinson --
bwilkinson@wilkinsonwalsh.com -- The trial also was in Jackson,
Mississippi, not New Orleans.
Statements from both Bayer and Janssen noted that the verdict was
the third defense win in the Xarelto litigation.
"The jury's decision reflects the facts of this case and the
appropriateness of Xarelto's (rivaroxaban) FDA-approved design and
labeling," wrote Sarah Freeman, a spokeswoman for Janssen, which
is part of Johnson & Johnson. "We will continue to defend against
the allegations made in this litigation."
Bayer spokeswoman Sasha Damouni Ellis added in an emailed
statement, "Plaintiffs' attorneys in these cases have presented
multiple theories to juries regarding the alleged inadequacy of
the Xarelto label, and all three juries have rejected their claims
and found in favor of the companies."
One of the lead plaintiffs' attorneys, Andy Birchfield --
andy.birchfield@beasleyallen.com -- a principal at Beasley, Allen,
Crow, Methvin, Portis & Miles in Montgomery, Alabama, stood by the
plaintiffs' claims -- in particular, that the defendants should
have instructed doctors to conduct a simple blood test that could
assess a patient's risk of bleeding. He also showed no signs of
backing down.
"We will continue fighting for the thousands of innocent victims
injured or killed by this drug," he wrote. "The makers of Xarelto
need to be candid about the risks posed by this blood thinner.
Johnson & Johnson, Janssen Pharmaceuticals and Bayer Healthcare
engaged in aggressive direct-to-consumer, physician marketing and
advertising campaigns, but gave little weight to the dangers of
Xarelto because they were more focused on their business plan than
patient safety."
More than 18,000 cases allege that Xarelto, an anticoagulant used
to treat blood clots, caused plaintiffs to suffer from
uncontrollable internal bleeding.
This month's 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.
Ms. Wilkinson, of Washington, D.C.'s Wilkinson Walsh + Eskovitz,
scored speedy defense verdicts on May 3 and June 12 in the first
two Xarelto trials.
This time, Janssen relied on Richard Sarver --
rsarver@barrassousdin.com -- of Barrasso Usdin Kupperman Freeman &
Sarver, who was involved in the first Xarelto trial and is based
in New Orleans. Bayer was represented by Lyn Pruitt of Mitchell
Williams in Little Rock, Arkansas, and Walter T. Johnson at
Watkins & Eager in Jackson, Mississippi.
Aside from the verdict, another aspect of the third trial remained
the same: All the juries have taken between two to three hours to
make their decision. [GN]
JOHNSON & JOHNSON: Advocacy Aligns with Chamber Tort Reform Bid
---------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that pay attention to mass torts litigation and it's hard not to
notice a certain feedback loop between Johnson & Johnson's
products liability docket and the tort reform agenda of the U.S.
Chamber of Commerce.
The Chamber likes to use real-world stories of lawsuits run amok
to fuel its advocacy, and it's got no shortage of examples, thanks
to Johnson & Johnson. The group often points to J&J cases when it
lobbies to tighten venue rules, limit plaintiffs bar advertising
and curb third-party litigation funding.
Meanwhile J&J raises alarm bells about the very same issues in its
court fights, echoing the Chamber's agenda and creating courtroom
sideshows that air the group's pet issues but have little apparent
effect in those suits.
And then there's John Beisner, chairman of the mass torts practice
at Skadden, Arps, Slate, Meagher & Flom, who's a top lawyer to
both.
While coordination between companies and trade associations is a
common litigation and lobbying strategy, the J&J-Chamber ties are
notable for their closeness, constancy and for being unusually
reciprocal. Typically, it's an association that carries water for
the industry but J&J is also a champion for the Chamber and boosts
the organization's broader tort reform positions.
It can make it hard to tell where J&J's advocacy ends and the
Chamber's begins. Whether the dynamic is intentionally
choreographed or borne of aligned interests, plaintiffs lawyers
going up against the New Jersey-based conglomerate have come to
expect that Mr. Beisner's arguments in court will echo the
Chamber's advocacy.
"They've got the same mouthpiece," said Texas plaintiffs attorney
W. Mark Lanier. "They've got the same source of money, they've
got commonality of directors, and they parrot the same mission."
Michael Krauss, a professor at George Mason University's Antonin
Scalia Law School who teaches about legal ethics and torts, said
the Chamber likely sees the flood of suits against Johnson &
Johnson as a proxy for its tort reform fights. J&J is like the
"canary in the coal mine" for the Chamber, said Mr. Krauss.
"If J&J gets crushed, a lot of its other members get crushed," he
said. "The Chamber sees the world the same way that Johnson &
Johnson sees the world."
Mr. Beisner did not respond to a request for comment. But in an
earlier interview, he denied the existence of any "special
relationship."
The Chamber files "numerous amicus briefs every year in support of
a wide array of companies and comment on various things," he said.
Johnson & Johnson, he said, is "a member, but there are a lot of
other members, hundreds of members."
There's no doubt the Chamber's advocacy on behalf of one industry
player can pay wider dividends. A significant win on tort reform
this past year came in a fight for a different drugmaker, Bristol-
Myers Squibb Co. Yet the U.S. Supreme Court's decision in that
case, deemed a game-changer for mass torts, prompted a Missouri
judge to immediately halt a talcum powder trial against J&J.
In addition to Mr. Beisner's dual role, Johnson & Johnson general
counsel Michael Ullmann was a board member of the Chamber's
Institute for Legal Reform as of 2015, according to the most
recent publicly available information. Chamber officials refused
to provide more recent data or confirm whether he was still a
board member.
In an emailed statement, Harold H. Kim, executive vice president
of the Chamber's Institute for Legal Reform, said that the group
"has advocated for reforms to the country's civil justice system
on behalf of the entire business community," not just Johnson &
Johnson. "Lawsuit abuse adversely affects our national economy and
stifles innovation and job creation," Kim wrote. "We will
continue to be a voice for commonsense legal reforms."
LITIGATION OVERDRIVE
Johnson & Johnson is fending off tens of thousands of products
liability lawsuits over talcum powder products, its transvaginal
mesh devices, hip implants and widely used prescription
medications including antipsychotic Risperdal and blood thinner
Xarelto. (A description of ongoing legal proceedings in the
company's most recent quarterly report filed with the U.S.
Securities and Exchange Commission goes on for more than 10
pages.)
A host of law firms in addition to Mr. Beisner's Skadden have been
involved in those cases. Among them: Drinker Biddle & Reath and
Shook, Hardy & Bacon. [GN]
JOHNSON & JOHNSON: Call for Woman Talc Master "Troubling"
---------------------------------------------------------
Amanda Bronstad, writing for New Jersey Law Journal, reports that
a federal judge who appointed two women to lead the plaintiffs'
team in nationwide talcum powder litigation in New Jersey has
called their recent objection to her appointment of a special
master "troubling" because it focused on gender.
"The suggestion that gender should play a role in the selection of
a special master is completely without merit," U.S. District Judge
Freda Wolfson wrote in an Aug. 18 letter confirming the
appointment of retired U.S. District Judge Joel Pisano as special
master in more than 2,000 cases alleging Johnson & Johnson's
talcum powder products caused women to get ovarian cancer.
Mr. Pisano, who served as a U.S. district judge in New Jersey from
2000 to 2015, is now counsel at Newark-based Walsh Pizzi O'Reilly
Falanga.
Leigh O'Dell -- Leigh.ODell@BeasleyAllen.com -- and Michelle
Parfitt, who were named in December to head the talcum powder
litigation, had suggested the names of three former judges, all of
whom are women, to serve as special master instead of Mr. Pisano
"because this multidistrict litigation involves such a significant
and serious women's public health issue," according to Judge
Wolfson's letter.
"I find plaintiffs' objection to be troubling, and not meriting
further discussion," she wrote.
Ms. O'Dell, a principal at Beasley, Allen, Crow, Methvin, Portis &
Miles in Montgomery, Alabama, declined to comment about the
matter. But in an Aug. 21 response, she and Ms. Parfitt, a senior
partner at Ashcraft & Gerel in Alexandria, Virginia, apologized
"for any unintended offense." They asked Judge Wolfson to
reconsider the appointment.
They also advanced another argument against appointing
Mr. Pisano: His firm's representation of other pharmaceutical
manufacturers such as a subsidiary of Merck & Co. Inc. and Pfizer
Inc., which has been named in cases linking mesothelioma to
cosmetic products made from talcum powder.
The objections to Judge Wolfson's planned appointment of Pisano
come as Johnson & Johnson has filed a motion for the court to
oversee the possible testing of 92 containers of its baby powder
stored "under lock and key in a controlled physical environment"
at a museum at its headquarters in New Brunswick, New Jersey.
Johnson & Johnson is claiming that plaintiffs' attorneys want to
test the samples, which span 125 years, for use in thousands of
cases across the country as evidence.
"As this court is aware, plaintiffs are currently investigating
the link between our clients' ovarian cancers and talcum powder
containing asbestos fibers," wrote O'Dell and Judge Parfitt,
joined by liaison counsel Christopher Placitella, a shareholder at
Cohen, Placitella & Roth in Red Bank, New Jersey. "The perception
of the litigants and the public dictate that the parties and the
court should proceed carefully in selecting a master if there is
any question concerning the ties of the proposed master's law firm
to either side."
The battle over the naming of a special master and the discovery
skirmish over bottles of talcum powder at Johnson & Johnson's
museum are the latest developments in the litigation, which
includes thousands more cases in state courts in Missouri,
California, New Jersey and Delaware. On Aug. 21, a Los Angeles
jury handed up a record $417 million verdict. Juries in four
Missouri trials have rendered similar verdicts between $55 million
and $110 million.
Plaintiffs lawyers in 12 state court cases have asked that Johnson
& Johnson to turn over the baby powder samples from its museum.
That prompted Johnson & Johnson to file an Aug. 16 motion seeking
a protective order over the containers to prevent what it called
"destructive testing," the results of which "may be used to
support expert witness testimony in this action and in thousands
of pending actions and future actions here and in courts across
the country." The requests could reduce an already limited supply
of bottles, threatening Johnson & Johnson's ability to do its own
testing, wrote defense attorney
Susan Sharko -- susan.sharko@dbr.com -- a partner at Drinker
Biddle & Reath in Florham Park, New Jersey.
In an Aug. 23 opposition, Parfitt called Johnson & Johnson's "far-
reaching request" an attempt to halt discovery and nothing more.
Johnson & Johnson also has supported Mr.Pisano's appointment. In
an Aug. 23 letter, Ms. Sharko noted that federal rules only
prohibited a special master from having a connection to the
parties in the case.
Mr. Pisano declined to comment about his appointment. In an Aug.
23 letter, he said he had no conflicts. He said he had limited to
no involvement in the Pfizer and Merck matters, though he noted
that some of his colleagues had represented another defendant in
the MDL, Imerys Talc America Inc., a talc manufacturer, while at
their former firm, New Jersey's Connell Foley. He said he would
ensure those attorneys were "walled off" from his work on the MDL.
As to not being a woman, he said that he was "associated with a
women-owned firm, the majority of my former law clerks are women,
I have been married to the same woman for 46 years" and "my
dentist is a woman." [GN]
JOHNSON & JOHNSON: GC Mulls Strategy After Massive Talc Verdict
---------------------------------------------------------------
Sue Reisinger, writing for Law.com, reports that the $417 million
verdict against Johnson & Johnson -- over claims its baby powder
containing talc caused ovarian cancer -- was surely a bitter pill
for general counsel Michael Ullmann and his legal department to
swallow.
Mr. Ullmann, a J&J in-house counsel since 1989, will now have to
help his company fend off 4,800 similar suits from emboldened
plaintiffs across the country, according to litigation notes in
J&J's latest financial filing with the U.S. Securities and
Exchange Commission. And the number is likely to continue rising
at a rapid clip following this massive verdict in the Los Angeles
Superior Court.
New Brunswick, New Jersey-based Johnson & Johnson lost three baby
powder cases in a row in Missouri before changing outside legal
teams. It then won its fourth case on March 3 with a new defense
team of Bart Williams and Manuel Cachan of the Los Angeles office
of Proskauer Rose.
But the new team couldn't save Mr. Ullmann and J&J in the
California case. So what does a general counsel do now?
Brackett Denniston III, the former general counsel at General
Electric Co. until 2015 and now a senior counsel at Goodwin
Procter in Boston, spoke in general about what a GC on the losing
end of a big verdict could do.
"I sure had a few [losses]," Mr. Denniston acknowledged, adding
that it's "the nature of what general counsel do" when they tackle
risk.
First, he said, he would do a post-mortem to understand what went
wrong in the case and how to reverse it. "Of the losing verdicts
I had, and I had some beauts, only one survived an appeal. So
appeals usually right the wrongs," he said.
At the same time, Mr. Denniston said, the GC has to think about
internal and external communications. "Right away you've got to
explain it to the CEO and to the board. And you've got to be an
adult about it, be candid."
"Most boards and CEOs understand that in the world of litigation
today, and investigations today, you are living in a perilous
climate," the former GE general counsel continued. "So you can
wake up one day like J&J did with a nearly $500 million verdict."
He added that a company also needs to address the public and the
press in a thoughtful way. "Your point should not just be that
we'll appeal, but also why you think it [the verdict] was wrong,"
he said.
It sounds like that is exactly what J&J is doing. Carol Goodrich,
a J&J spokeswoman, declined a request for an interview with Mr.
Ullmann, but said the company would appeal the verdict "because we
are guided by the science, which supports the safety of Johnson's
baby powder."
Ms. Goodrich noted that in April, the National Cancer Institute's
Physician Data Query Editorial Board wrote, "The weight of
evidence does not support an association between perineal talc
exposure and an increased risk of ovarian cancer."
"Ovarian cancer is a devastating diagnosis and we deeply
sympathize with the women and families impacted by this disease,"
Goodrich said. But based on the science, she added, "We will
continue to defend the safety of Johnson's baby powder." The next
trial is scheduled for Oct. 16 back in Missouri.
Litigation was not Mr. Ullmann's early field of expertise. He
joined J&J 28 years ago as a mergers and acquisitions attorney,
according to his company bio. He worked his way up to general
counsel of the worldwide medical devices division at the company
before being named J&J's corporate general counsel in 2012.
In March 2016, Mr. Ullmann spoke about an early talc case loss as
part of a panel discussing "Global Concerns of a General Counsel"
at Columbia Law School. His remarks were carried on the law
school's website.
News of the $72 million verdict spread quickly through social
media, Mr. Ullmann said in the article, so the company had to
respond in "the court of public opinion" while waiting for an
appeal.
Mr. Ullmann described how J&J cited studies showing no causal link
between baby powder and cancer, and dispatched medial experts to
validate its position in the media.
But even in such dark days of litigation losses, Mr. Ullmann found
a silver lining. The business itself can have rewards, he said.
"I love knowing that everything I do is related to human health
care," he added, advising students to "like what you do." [GN]
JOHNSON & JOHNSON: New Evidence Emerge in $417MM Talc Verdict
-------------------------------------------------------------
Amanda Bronstad, writing for Law.com, reports that California
jurors who awarded $417 million on Aug. 21 in a talcum powder
trial may well have been influenced by three new pieces of
evidence, including an emailed photo that arrived just as the
trial started, according to plaintiffs' attorneys in the case.
The jury, in Los Angeles Superior Court, handed up a verdict
awarding Eva Echeverria $70 million in noneconomic damages and
$347 million in punitive damages after finding that Johnson &
Johnson failed to warn that its baby powder could cause her to get
ovarian cancer. ALM monitored the jury verdict through Courtroom
View Network, which covered the trial. Ms. Echeverria was
diagnosed with ovarian cancer in 2007.
Thousands of women have brought lawsuits making similar claims,
most of which are in California, Missouri and New Jersey.
Plaintiffs' attorney Allen Smith, of The Smith Law Firm in
Ridgeland, Mississippi, has handled all six of the previous
trials, five of which were in Missouri. A seventh never went to a
jury after the judge granted a mistrial. Juries hearing cases
linking talcum powder to cancer have previously announced four
plaintiffs' verdicts, coming to a total of $300 million in awards,
the highest of which was $110 million.
Mr. Smith credited the Aug. 21 award to three new pieces of
evidence that other jurors hadn't heard before:
-- Evidence that baby powder products made by other companies
sold at Walmart and Dollar Tree had warnings on the bottles about
the risks of ovarian cancer. Plaintiffs' lawyers found out about
the labels after a client of Ted Meadows, a principal at Beasley,
Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, one
of the members of the trial team, emailed a photo of one such
warning to them just before the Los Angeles trial began. "That
was very much news to us," Mr. Meadows said. "The way it played
out in trial, I think it was news to J&J."
-- Evidence that two individuals involved in the Cosmetic
Industry Review, which has deemed talcum powder to be safe, had
received payments from Johnson & Johnson for speeches and other
engagements. Mr. Smith said he discovered the payments while
cross-examining the group's former director, Alan Andersen, who
was a defense witness.
-- Evidence that a Johnson & Johnson epidemiologist, Dr.
Douglas Weed, had been sanctioned in a separate case in North
Carolina over lying under oath about whether he had notes to his
expert report, plaintiffs attorneys said.
"J&J brought these unbelievable and non-credible witnesses on an
issue so important like this," Mr. Smith said. "Couple that with
the fact other companies are warning and have been warning for
eight to 12 months now. That was new evidence that was very
compelling."
Spokeswoman Carol Goodrich declined to address the specifics of
the case. She said in a statement: "We will appeal the verdict
because we are guided by the science, which supports the safety of
Johnson's baby powder. In April, the National Cancer Institute's
Physician Data Query Editorial Board wrote, 'The weight of
evidence does not support an association between perineal talc
exposure and an increased risk of ovarian cancer.' We are
preparing for additional trials in the U.S. and we will continue
to defend the safety of Johnson's baby powder."
At the start of trial, Johnson & Johnson's lawyers objected
numerous times to plaintiff attorney Mr. Smith's opening statement
and sought a mistrial minutes later.
Johnson & Johnson was represented by Bart Williams and
Manuel Cachan, both Los Angeles partners at Proskauer Rose, the
same lawyers who in March got the only defense verdict over talcum
powder.
The new evidence that came into the California case could play a
role in the next talcum powder trial, which is set for Oct. 16 in
Missouri.
"We certainly think it is evidence that should be presented, and
we'll make every attempt to do so," Mr. Meadows said. [GN]
K12 INC: Court Partly Grants Bid to Dismiss "Tarapara" Suit
-----------------------------------------------------------
Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California granted in part and denied in part
the Defendants' motion to dismiss the case captioned BABULAL
TARAPARA, et al., Plaintiffs, v. K12 INC., et al., Defendants,
Case No. 16-cv-4069-PJH (N.D. Cal.).
This is a proposed class action, alleging securities fraud in
violation of Section 10(b) of the Securities Exchange Act of 1934,
and Rule 10b-5 promulgated thereunder, and control-person
liability under Section 20(a). The Plaintiffs allege that they
purchased shares of K12 stock during the proposed Class Period
(Oct. 10, 2013 to Oct. 27, 2015). They allege that K12
encountered problems with operating its online schools -- in
particular, the Agora Cyber Charter School, the Tennessee Virtual
Academy, the California Virtual Academies, and the Colorado
Virtual Academy. They claim that during a Feb. 4, 2014 earnings
call, Davis gave misleading answers to questions about Agora.
In the Consolidated Amended Class Action Complaint ("CAC"), the
Plaintiffs allege that throughout the proposed Class Period, the
Defendants made materially false and/or misleading statements and
failed to disclose material adverse facts about K12's business,
operations, and prospects, including that K12 was publishing
misleading advertisements about students' academic progress,
parent satisfaction, their eligibility for UC and CSU admission,
class sizes, the individualized and flexible nature of K12's
instruction, hidden costs, and the quality of the materials
provided to students.
These allegations are divided among three "general categories" of
actionable statements (or omissions) made during the proposed
Class Period. These include false and misleading statements
and/or omissions regarding Agora, false and misleading statements
and/or omissions regarding students' academic and Scantron test
results, and false and misleading statements and/or omissions
concerning the quality and effectiveness of K12's academic
services and offerings.
They assert that the "truth" emerged at various points during the
proposed Class Period, through (i) the June 26, 2014 announcement
of Agora's RFP process; (ii) the Aug. 14, 2014 disclosure of the
TNVA enrollment cap and Agora's interest in self-management; (iii)
K12's Oct. 9, 2014 report confirming that Agora would assume
responsibility for its own management; (iv) Davis' suggestion on
Oct. 30, 2014 that regulators were just beginning to understand
the dynamics of an online school program; and (v) the publication
of the Online Charter School Study and K12's disclosure of the
California AG's industry-wide inquiry on Oct. 27, 2015.
The Plaintiffs filed the present action on July 20, 2016, and
filed the CAC on Dec. 2, 2016. The Defendants seek an order
dismissing the claims asserted against them, for failure to state
a claim. The Defendants argue that the CAC fails to state a claim
because it amounts to improper "puzzle pleading;" because it fails
to allege an actionable misstatement or omission; because the
allegations do not support a strong inference of scienter; because
it fails to allege facts showing loss causation; and because it
does not state a claim against the individual defendants under
Section 20(a).
Judge Hamilton, granted in part and denied in part the Defendants'
motion. With regard to falsity, scienter, and loss causation, the
Judge finds that the Plaintiffs have stated a claim with regard to
the Agora statements (or at least with regard to the failure to
disclose the non-renewal of the contract), have not stated a claim
with regard to the Scantron statements (and cannot), and have not
stated a claim with regard to the quality and effectiveness
statements (but might be able to do so in an amended complaint).
Thus, the motion to dismiss the CAC as it pertains to the Agora
statements is denied. The motion to dismiss the CAC as it
pertains to the Scantron statements is granted. The dismissal is
with prejudice. The motion to dismiss the CAC as it pertains to
the quality and effectiveness Statements is granted with leave to
amend.
Judge Hamilton ordered that any amended complaint will be filed no
later than Oct. 2, 2017. No new parties or claims will be added
without leave of the Court. In addition, apart from the ruling,
Judge Hamilton directed the Plaintiffs to focus on shortening the
complaint by eliminating allegations that are not essential or
relevant to their securities fraud claim.
According to her, the CAC includes numerous lengthy passages which
appear to have as their sole purpose to criticize the quality of
the educational services provided by K12. But many of those
passages are of only marginal relevance to the Section 10(b)
claims because none of the alleged false statements or omissions
directly relate to those particular allegations. The Plaintiffs
have also included numerous allegations relating to events that
occurred before and after the proposed Class Period, without
clarifying what -- if any -- connection there may be between those
events and the events alleged to have occurred during the Class
Period.
Thus, while the CAC may not be a true "puzzle-style" complaint,
taken as a whole it is far from being a complaint that complies
with Rule 8(b)'s requirement that the Plaintiff provide a short
and plain statement of the claim showing that the pleader is
entitled to relief.
In particular, Judge Hamilton notes that the CAC includes numerous
details relating to events that occurred before and after the
Class Period, as well as details of events that do not seem to
have any bearing on the claims asserted in the complaint other
than to emphasize plaintiffs' underlying contention that K12 was
offering a mediocre product which it was touting as a premier
product.
This includes most of the references to the Colorado Virtual
Academy; the references to the Tennessee Virtual Academy; the
references to the California Virtual Academies; the lengthy
summary of the Online Schools report published Oct. 27, 2015 (last
day of the Class Period); and the description of the settlement of
the case filed against K12 by the California AG and the provisions
of the July 2016 judgment.
If it is the Plaintiffs' belief that some of these seemingly
irrelevant allegations do in fact support the elements of the
claims of alleged false statements or omissions, the Judge says,
they must make that connection clear in the amended complaint. If
no connection can be made, such allegations should be omitted.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/AClWXK from Leagle.com.
Babulal Tarapara, Plaintiff, represented by Casey Edwards Sadler -
- csadler@glancylaw.com -- Glancy Prongay & Murray LLP.
Babulal Tarapara, Plaintiff, represented by Kevin Francis Ruf --
kruf@glancylaw.com -- Glancy Prongay & Murray LLP, Leanne Heine
Solish -- lheine@glancylaw.com -- Glancy Prongay & Murray LLP,
Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay &
Murray LLP & Robert Vincent Prongay -- RProngay@glancylaw.com --
Glancy Prongay & Murray LLP.
Mark Beadle, Plaintiff, represented by Casey Edwards Sadler,
Glancy Prongay & Murray LLP, Kevin Francis Ruf, Glancy Prongay &
Murray LLP, Leanne Heine Solish, Glancy Prongay & Murray LLP,
Lionel Z. Glancy, Glancy Prongay & Murray LLP & Robert Vincent
Prongay, Glancy Prongay & Murray LLP.
Gil Tuinenburg, Plaintiff, represented by Avraham Noam Wagner --
avi@thewagnerfirm.com -- The Wagner Firm.
K12 Inc., Defendant, represented by Kevin H. Metz --
kevin.metz@lw.com -- Latham & Watkins, Peter Allen Wald --
peter.wald@lw.com -- Latham & Watkins LLP & Stephen Paul Barry --
stephen.barry@lw.com -- Latham and Watkins LLP.
Ronald J. Packard, Defendant, represented by James E. Anklam --
james.anklam@friedfrank.com -- Fried, Frank, Harris Shriver and
Jacobson LLP, pro hac vice, James D. Wareham --
james.wareham@friedfrank.com -- Fried, Frank, Harris Shriver and
Jacobson LLP, pro hac
vice & Alexander Guy Davis -- aldavis@jd12.law.harvard.edu --
Kirkland and Ellis LLP.
Nathaniel A. Davis, Defendant, represented by Kevin H. Metz,
Latham & Watkins, Peter Allen Wald, Latham & Watkins LLP & Stephen
Paul Barry, Latham and Watkins LLP.
James J. Rhyu, Defendant, represented by Kevin H. Metz, Latham &
Watkins, Peter Allen Wald, Latham & Watkins LLP & Stephen Paul
Barry, Latham and Watkins LLP.
Timothy L. Murray, Defendant, represented by Kevin H. Metz, Latham
& Watkins, Peter Allen Wald, Latham & Watkins LLP & Stephen Paul
Barry, Latham and Watkins LLP.
Marwill C. Wallace, Defendant, Pro Se.
Plinio Kawakubo, Movant, represented by Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP.
LUXOTTICA RETAIL: Faces "Tenagila" Suit in S.D. Fla.
----------------------------------------------------
A class action lawsuit has been filed against Luxottica Retail
North America. The case is styled as Gracelynn Tenagila,
individually and on behalf of others similarly situated, Plaintiff
v. Luxottica Retail North America doing business as: LensCrafters
an Ohio corporation, Defendant, Case No. 2:17-cv-14311-DMM (S.D.
Fla., September 5, 2017).
Luxottica Retail operates as Sunglass Hut, a retail chain located
all over the U.S.[BN]
The Plaintiff is represented by:
Robert E. Gordon, Esq.
Gordon & Doner
4114 Northlake Boulevard
2nd Floor
Palm Beach Gardens, FL 33410-3197
Tel: (561) 799-5070
Fax: 799-4050
Email: rgordon@fortheinjured.com
- and -
Steven G Calamusa, Esq.
Gordon and Doner PA
4114 Northlake Blvd
Palm Beach Gardens, FL 33410
Tel: (561) 799-5070
Fax: (561) 799-4050
Email: SCalamusa@ForTheInjured.com
- and -
Theodore Jon Leopold, Esq.
Cohen Milstein Sellers & Toll, PLLC
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
Tel: (561) 515-1400
Fax: (561) 515-1401
Email: tleopold@cohenmilstein.com
LUXOTTICA RETAIL: Faces "Infante" Suit in N.D. Calif.
-----------------------------------------------------
A class action lawsuit has been filed against Luxottica Retail
North America. The case is styled as Kathleen Infante,
individually and on behalf of others similarly situated, Plaintiff
v. Luxottica Retail North America, Inc. d/b/a Lenscrafters, Inc.,
Defendant, Case No. 3:17-cv-05145 (N.D. Cal., September 5, 2017).
Luxottica Retail operates as Sunglass Hut, a retail chain located
all over the U.S.[BN]
The Plaintiff appears PRO SE.
MACQUARIE GROUP: Faces Investor Class Action, Harassment Claims
---------------------------------------------------------------
Jessica Rapana, writing for 9Honey News, reports that a former
Macquarie banker cut off a female assistant's ponytail and another
took "upskirting" photos of a female colleague, according to
shocking new claims about the investment bank's toxic and
predatory culture.
A group of clients have accused Macquarie Group of fostering
harassment and predatory behaviour and failing to take appropriate
disciplinary action, according to a report on Sept. 5 by Fairfax
Media.
The allegations are set out in a 26-page letter by Macpherson
Kelley Lawyers sent to Macquarie and the Australian Securities and
Investments Commission pertaining to a separate and unrelated
matter.
Macpherson Kelley Lawyers are representing the group of investors
in a planned class action against Macquarie Group, accusing the
bank of artificially inflating the price of a small mining company
before a sudden collapse wiped out many of its investors.
However, the letter has subsequently thrust the bank's alleged
"alpha-male" culture into the spotlight. There is no suggestion
the former employees who are the subject of the class action were
involved in sexual harassment at the bank.
"That culture led to a workplace defined by behaviour such as
rampant drug taking leading to reckless trading after lunches,
sexist and chauvinistic behaviour including an adviser engaging in
predatory behaviour towards a female staff member and Macquarie
choosing not to terminate that adviser because of the amount of
commission the adviser earned," the letter reads.
Fairfax Media reported former Macquarie employees told the
publisher female desk assistants were "regularly preyed upon by
several brokers, who were never held to account".
The brokers involved in the allegations no longer worked at the
bank but continued to work in the finance industry, the report
said.
One source told the publisher about a particular incident when a
stockbroker used scissors to cut off a desk assistant's ponytail
in 2013 then "put the hair on her desk, right in front of her".
"She was so shocked she didn't say anything, and really only
started talking about it at the Christmas party about a month
later," the source said.
"Everyone was laughing about it, it was just a funny story to
them. It was difficult to be a woman there and maintain a sense
of respect. Particularly when no one had your back," said another
former staffer.
While at least two staff reportedly complained about the attack to
an office manager, no disciplinary action had been taken.
There are also accusations of a female staff member being secretly
photographed by a male colleague on at least two occasions,
including one incident of "upskirting".
Formal disciplinary action was not taken on either occasion,
Fairfax Media reported.
In a statement issued on Sept. 5, Macquarie Group said it treated
all allegations of inappropriate or illegal behaviour with "the
utmost seriousness".
"The allegations made by the lawyers, which appear to be an
attempt to solicit clients, lack any credible evidence or source,"
the statement read.
"Importantly, we note that although this will be the fourth
article on this matter, no litigation against Macquarie has
commenced.
"None of the workplace behaviour allegations raised by Fairfax
involve current staff. The allegations were either never
previously put to Macquarie, or those that were made were reviewed
and appropriate action taken."
The statement added that Macquarie had overhauled its retail
advisory business, which included appointing a new management
team, new systems, controls and training and substantial financial
investment. [GN]
MADISON GLOBAL: Settlement in "Surdu" Suit Has Prelim. Approval
---------------------------------------------------------------
In the case captioned ALEXANDRU SURDU, DINO TITO, ANASTASIA
MAYFAT, CIPRIAN GROSU and LUIS LOPEZ, on behalf of themselves and
those similarly situated, et al., Plaintiffs, v. MADISON GLOBAL,
LLC, d/b/a NELLO, NELLO BALAN and THOMAS MAKKOS, Defendants, No.
15 Civ. 6567 (HBP) (S.D. N.Y.), Magistrate Judge Henry Pitman of
the U.S. District Court for the Southern District New York granted
the Plaintiffs' motion for preliminary approval of the Settlement
Agreement and other related relief.
The Plaintiffs commenced the action on Aug. 19, 2015, alleging
that the members of the Fair Labor Standards Act ("FLSA")
collective and the putative New York Labor Law ("NYLL") class are
or were employed by the Defendants as tipped food service workers,
which the complaint defines as servers, bussers, runners, and
bartenders. The complaint further alleges that the Defendants (i)
failed to pay the minimum wage by improperly applying the FLSA and
NYLL's tip credit allowance; (iii) unlawfully retained portions of
the food service workers' tips and distributed them to non-tip-
eligible employees; (iii) failed to reimburse food service workers
for uniform purchase and maintenance costs and (iv) failed to
provide food service workers with wage statements and notices as
required by the NYLL. The Plaintiffs filed an amended complaint
on May 10, 2016, adding retaliation claims on behalf of Surdu and
Tito.
The parties engaged in extensive discovery to develop their claims
and defenses. According to their calculations, the Plaintiffs and
the putative class members are owed approximately $375,000 in
misappropriated tips. They have not submitted any estimate of the
class' other elements of damages.
In September 2016, the parties engaged in an arm's-length
negotiation during an hours-long mediation session with mediator
Ralph S. Berger. At the mediation, the parties reached an
agreement on the settlement amount. They thereafter negotiated
the remaining terms of the settlement, which are memorialized in
the Settlement Agreement.
The Settlement Agreement provides that the Defendants, without
conceding the validity of plaintiffs' claims or admitting
liability, agree to create a common settlement fund of $342,500.
From the settlement fund, Surdu, Tito, Mayfat, Grosu and Lopez
will each receive an $8,500.00.00 service award, a settlement
claims administrator will receive a fee2 to administer the
settlement and counsel for plaintiffs will receive no more than
$114,166.66, or one-third of the total settlement amount, in
attorneys' fees and costs, subject to the Court's approval.
The Settlement Agreement provides that the claims administrator
will allocate the remainder of the settlement proceeds to those
class members who validly file a claim form as follows:
a. All Class Members will receive one point for each week
worked for Nello between Aug.19, 2009 and the date the Agreement
is signed.
b. The Net Settlement Fund will be divided by the aggregate
number of points accrued by all of the Class Members during the
period of Aug. 19, 2009 through the date this Agreement is signed.
c. Each Authorized Claimant's total points will be multiplied
by the Point Value to determine his or her Individual Settlement
Amount.
d. No Authorized Claimant shall receive less than $100. If
any Authorized Claimant's Individual Settlement Amount under this
formula is less than $100, that Authorized Claimant's Individual
Settlement Amount will be increased to $100, with the difference
subtracted from the Net Settlement Fund, and all other Authorized
Claimants' Individual Settlement Amounts recalculated according to
the formula set forth to account for the difference.
Any portion of the net settlement amount not claimed by class
members will revert to the Defendants. For tax purposes,
settlement checks paid to class members will be allocated 33% to
W-2 wage payments and 67% to 1099 non-wage payments for interest,
liquidated damages and statutory penalties.
Additionally, the Settlement Agreement provides that upon final
approval of the Settlement Agreement, each individual who does not
opt out of the class, including those who do not submit a claim
form, will release defendants from all wage and hour claims that
were brought, or could have been brought, in the action through
the date of the Order. It also provides that neither side shall
make any statement to the media about the settlement, other than
the matter has been resolved. Finally, the Settlement Agreement
provides that either party has the right to terminate the
Settlement Agreement if Magistrate Judge Pitman declines to
preliminarily or finally approve the Settlement Agreement, except
if the denial is solely due to attorneys' fees. Additionally, the
Defendants have the right to terminate the Settlement Agreement if
ten percent or more of the putative class members opt out.
Magistrate Judge Pitman granted the Plaintiffs' motion is granted.
He ordered that the proposed class is conditionally certified
pursuant to Rule 23(a) and (b)(3). Alexandru Surdu, Dino Tito,
Anastasia Mayfat, Ciprian Grosu and Luis Lopez are appointed as
the class representatives and the Klein Law Group, P.C. is
appointed as the class counsel. The Settlement Agreement is
approved preliminarily.
The Magistrate Judge ordered the counsel to submit a proposed
revised notice to class members to my chambers no later than Sept.
22, 2017. Within 15 days of the date of the Order, the Defendants
will provide the settlement claims administrator and the
Plaintiffs' counsel with a list each class member. Within 40 days
of the final approval of the notice to class members, the
settlement claims administrator shall mail the revised notice to
the members of the class using each individual's last known
address. The class members will have 45 days from the date the
revised notice is mailed to file a claim form, opt out of the
settlement or file written objections.
Magistrate Judge Pitman shall hold a fairness hearing on Jan. 19,
2018 at 10:00 a.m. No later than Jan. 3, 2018, the counsel for
the Plaintiffs shall move and file a memorandum of law in support
of final approval of the Settlement Agreement, an award of
attorneys' fees and costs and service awards. He directed the
Clerk of the Court to close Docket Items 58 and 66.
A full-text copy of the Court's Sept. 1, 2017 Opinion and Order is
available at https://goo.gl/siZ9AD from Leagle.com.
Alexandru Surdu, Plaintiff, represented by Darren Paul Brian
Rumack, The Klein Law Group.
Dino Tito, Plaintiff, represented by Darren Paul Brian Rumack, The
Klein Law Group.
Anastasia Mayfat, Plaintiff, represented by Darren Paul Brian
Rumack, The Klein Law Group.
Ciprian Grosu, Plaintiff, represented by Darren Paul Brian Rumack,
The Klein Law Group.
Luis Lopez, Plaintiff, represented by Darren Paul Brian Rumack,
The Klein Law Group.
Constantine Haralabopolous, Plaintiff, represented by Darren Paul
Brian Rumack, The Klein Law Group.
Gian Maria Montoro, Plaintiff, represented by Darren Paul Brian
Rumack, The Klein Law Group.
Stefano Naia, Plaintiff, represented by Darren Paul Brian Rumack,
The Klein Law Group.
Adnan Dibra, Plaintiff, represented by Darren Paul Brian Rumack,
The Klein Law Group.
Susanna De Martino, Plaintiff, represented by Darren Paul Brian
Rumack, The Klein Law Group.
Thomas Makkos, Defendant, represented by Noel P. Tripp --
TrippN@jacksonlewis.com -- Jackson Lewis P.C. & Roger H. Briton --
BritonR@jacksonlewis.com -- Jackson Lewis P.C..
Nello Balan, Defendant, represented by Noel P. Tripp, Jackson
Lewis P.C. & Roger H. Briton, Jackson Lewis P.C..
Madison Global, LLC, Defendant, represented by Noel P. Tripp,
Jackson Lewis P.C. & Roger H. Briton, Jackson Lewis P.C..
Bilguun Ganhuyag, ADR Provider, represented by Darren Paul Brian
Rumack, The Klein Law Group.
Francesco Desideri, ADR Provider, represented by Darren Paul Brian
Rumack, The Klein Law Group.
MDL 2284: Court Affirms Denial of Depietris' Appeal
---------------------------------------------------
In the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES
TO: ALL ACTIONS, MDL No. 2284, No. 11-md-02284 (E.D. Pa.), Judge
Gene E. K. Pratter of the U.S. District Court for the Eastern
District of Pennsylvania affirmed the Arborist Panel's decision
denying William and Beth Depietri's warranty claim.
In the fall of 2010, DuPont introduced Imprelis, a new herbicide
designed to selectively kill unwanted weeds without harming non-
target vegetation. After widespread reports of damage to non-
target vegetation, the Environmental Protection Agency ("EPA")
began investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis. In September 2011, DuPont started its own Claim
Resolution Process to compensate victims of Imprelis damage.
Despite this voluntary process, various plaintiffs continued to
pursue their lawsuits, alleging consumer fraud/protection act
violations, breach of express and/or implied warranty, negligence,
strict products liability, nuisance, and trespass claims based on
the laws of numerous states. After months of settlement
discussions, including mediation, the parties came to a settlement
agreement. The Imprelis Class Action Settlement covers three
classes of Imprelis Plaintiffs. Among the three settlement
classes is a property owner class. That class includes all
persons or entities who own or owned property in the United States
to which Imprelis was applied from Aug. 31, 2010 through Aug. 21,
2011, as well as all persons who own or owned property adjacent to
property to which Imprelis was applied and whose trees showed
damage from Imprelis on or before the date of entry of the
Preliminary Approval Order, or Feb. 11, 2013. Under the
Settlement, property owner class members who filed claims by the
claims deadline would receive tree removal (or compensation for
tree removal), payments for replacement trees, tree care and
maintenance payments, and a 15% payment for incidental damages.
The Settlement included a warranty that provided for all benefits
but the 15% incidental damages award for Imprelis damage that
manifested after the claims period closed but before May 31, 2015.
On Feb. 12, 2013, the Court preliminarily approved the Settlement,
and on Sept. 27, 2013, the Court held a Final Fairness Hearing.
On Oct. 17, 2013, it granted the Class Plaintiffs' Motion for
Final Approval of the Settlement.
In September 2013, the Depietris first noticed damage to trees on
their property which, after some investigation, they believed was
caused by Imprelis. In October, 2013, after discovering that it
was too late to join in or opt out of the Class Action Settlement,
they sent a letter to DuPont describing the damage to their trees.
They received no response. The Depietris then filed an Imprelis
action in New Hampshire state court on April 3, 2014. DuPont
removed the case to federal court, and the case was transferred to
this MDL. DuPont moved to dismiss the case, and the Court granted
the motion. The Depietris then filed a warranty claim, which
DuPont denied, concluding that the damage had either manifested
before the claims deadline or that the damage was not caused by
Imprelis. The Depietris appealed to the Arborist Panel, who
denied their claim. Shortly thereafter, DuPont notified the
Depietris that 24 of their trees showed signs of Imprelis damage
and posed "an imminent hazard."
The Depietris appeal the decision of the Imprelis Arborist Panel,
claiming that they were left without a remedy because their damage
was not apparent until after the claims deadline passed and that
the Appeals Panel decision was erroneous and contrary to the
evidence.
In reviewing the evidence before the Panel, Judge Pratter does not
find the Depietris' evidence as compelling as they believe it to
be. As the Panel noted, the Depietris only submitted a handful of
unlabeled photographs to show the damage to the trees, and none of
those photographs objectively proved that Imprelis damage
manifested only after the claims deadline. As to DuPont's
agreement to remove 24 trees that were deemed hazardous, that
agreement and the attribution of the damage to Imprelis in that
agreement do not conflict with the Panel's findings. Though the
Panel expressed skepticism that a 2011 lmprelis application caused
all of the damage, particularly given the size of the property and
the relatively small quantity of lmprelis applied, or that it
would be possible for lmprelis damage of the magnitude claimed to
go unnoticed until the fall of 2013, the Panel ultimately did not
decide whether Imprelis caused the damage to any or all of the
Depietris' trees. Their denial appears, instead, to be based
solely on their determination that there was not sufficient
evidence to show that Imprelis damage manifested only after the
claims deadline had passed.
Based on the evidence presented by the Depietris to the Panel,
Judge Pratter does not determine that the Panel's decision was
arbitrary or capricious. She therefore affirmed the Arborist
Panel decision and denied the Depietris' appeal.
A full-text copy of the Court's Aug. 30, 2017 Memorandum is
available at https://is.gd/8aQdgU from Leagle.com.
MDL 2284: Court Affirms Denial of M. Diericks' Appeal
-----------------------------------------------------
In the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES
TO: ALL ACTIONS, MDL No. 2284, No. 11-md-02284 (E.D. Pa.), Judge
Gene E. K. Pratter of the U.S. District Court for the Eastern
District of Pennsylvania affirmed the Imprelis Arborist Panel's
decision denying Marianne Diericks' warranty claim appeal, seeking
higher ratings for three trees.
In the fall of 2010, DuPont introduced Imprelis, a new herbicide
designed to selectively kill unwanted weeds without harming non-
target vegetation. After widespread reports of damage to non-
target vegetation, the Environmental Protection Agency ("EPA")
began investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis.
In September 2011, DuPont started its own Claim Resolution
Process to compensate victims of Imprelis damage. Despite this
voluntary process, various plaintiffs continued to pursue their
lawsuits, alleging consumer fraud/protection act violations,
breach of express and/or implied warranty, negligence, strict
products liability, nuisance, and trespass claims based on the
laws of numerous states.
After months of settlement discussions, including mediation, the
parties came to a settlement agreement. The Imprelis Class Action
Settlement covers three classes of Imprelis Plaintiffs. Among the
three settlement classes is a property owner class. That class
includes all persons or entities who own or owned property in the
United States to which Imprelis was applied from Aug. 31, 2010
through Aug. 21, 2011, as well as all persons who own or owned
property adjacent to property to which Imprelis was applied and
whose trees showed damage from Imprelis on or before the date of
entry of the Preliminary Approval Order, or Feb. 11, 2013. Under
the Settlement, property owner class members who filed claims by
the claims deadline would receive tree removal (or compensation
for tree removal), payments for replacement trees, tree care and
maintenance payments, and a 15% payment for incidental damages.
The Settlement included a warranty that provided for all benefits
but the 15% incidental damages award for Imprelis damage that
manifested after the claims period closed but before May 31, 2015.
On Feb. 12, 2013, the Court preliminarily approved the Settlement,
and on Sept. 27, 2013, the Court held a Final Fairness Hearing.
On Oct. 17, 2013, it granted the Class Plaintiffs' Motion for
Final Approval of the Settlement.
After receiving compensation through the claims process for her
initial Imprelis claim, Ms. Diericks submitted a warranty claim,
seeking higher ratings for three trees that had originally been
rated for tree care. DuPont sent an inspector to reassess the
three trees, and that inspector determined that the trees had not
declined enough to justify a new rating. Ms. Diericks objected to
the denial of her warranty claim, but did not include any
photographs or other evidence of the decline in condition of her
trees. DuPont again rejected her objection. Ms. Diericks then
appealed her warranty claim to the Appeals Panel and submitted
photographs and a report from an arborist. DuPont voluntarily
reevaluated the claim and offered removal and replacement value
for tree# 6. Ms. Diericks, not satisfied with the removal of only
one of the three trees at issue, continued to pursue her appeal.
The Arborist Panel then denied her appeal, agreeing with DuPont's
offer of compensation for tree# 6 and declining to increase the
ratings for the other two trees.
Judge Pratter finds that Ms. Diericks's appeal focuses on two
trees, which were rated by DuPont as a 2 and which she believes
should be rated higher and removed. She submitted photographic
evidence and the report of an arborist in support of her appeal.
However, after reviewing this evidence, the Judge does not
conclude that the Arborist Panel acted arbitrarily or capriciously
in denying Ms. Diericks's appeal. While the pictures do depict
trees that exhibit some symptoms of Imprelis damage, they do not
unequivocally show the percentage of damage necessary to support a
change in ratings. Because the Arborist Panel carefully weighed
all of the evidence before them and concluded that, in their
expert opinions, the tree ratings should remain the same, Judge
Pratter denied Ms. Diericks's appeal and affirmed the Panel's
decision.
A full-text copy of the Court's Aug. 30, 2017 Memorandum is
available at https://is.gd/yhsLqj from Leagle.com.
MDL 2284: Court Affirms Denial of Merrills' Appeal
--------------------------------------------------
In the case captioned IN RE: IMPRELIS HERBICIDE MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT APPLIES
TO: ALL ACTIONS, MDL No. 2284, No. 11-md-02284 (E.D. Pa.), Judge
Gene E. K. Pratter of the U.S. District Court for the Eastern
District of Pennsylvania affirmed the Imprelis Arborist Panel's
decision denying James and Peggy Merrill's on the technicality of
late filing.
In the fall of 2010, DuPont introduced Imprelis, a new herbicide
designed to selectively kill unwanted weeds without harming non-
target vegetation. After widespread reports of damage to non-
target vegetation, the Environmental Protection Agency ("EPA")
began investigating Imprelis, leading to lawsuits, a suspension of
Imprelis sales, and an EPA order preventing DuPont from selling
Imprelis. In September 2011, DuPont started its own Claim
Resolution Process to compensate victims of Imprelis damage.
Despite this voluntary process, various plaintiffs continued to
pursue their lawsuits, alleging consumer fraud/protection act
violations, breach of express and/or implied warranty, negligence,
strict products liability, nuisance, and trespass claims based on
the laws of numerous states. After months of settlement
discussions, including mediation, the parties came to a settlement
agreement. The Imprelis Class Action Settlement covers three
classes of Imprelis Plaintiffs. Among the three settlement
classes is a property owner class. That class includes all
persons or entities who own or owned property in the United States
to which Imprelis was applied from Aug. 31, 2010 through Aug. 21,
2011, as well as all persons who own or owned property adjacent to
property to which Imprelis was applied and whose trees showed
damage from Imprelis on or before the date of entry of the
Preliminary Approval Order, or Feb. 11, 2013. Under the
Settlement, property owner class members who filed claims by the
claims deadline would receive tree removal (or compensation for
tree removal), payments for replacement trees, tree care and
maintenance payments, and a 15% payment for incidental damages.
The Settlement included a warranty that provided for all benefits
but the 15% incidental damages award for Imprelis damage that
manifested after the claims period closed but before May 31, 2015.
On Feb. 12, 2013, the Court preliminarily approved the Settlement,
and on Sept. 27, 2013, the Court held a Final Fairness Hearing.
On Oct. 17, 2013, it granted the Class Plaintiffs' Motion for
Final Approval of the Settlement.
In August 2013, the Merrills first noticed possible Imprelis
damage to a lilac bush. They did not pursue the issue at that
time, however, because they were told by a lawn care operator that
lilacs were not included in the claims process. In May of 2014,
the Merrills' lawn care operator informed them that some of their
trees appeared to have suffered Imprelis damage. On May 22, 2014,
the Merrills filed a claim with DuPont, and DuPont inspected the
Merrills' property in April 2015. DuPont then denied the
Merrills' claim, after concluding that the damage would have
manifested prior to the June 2013 claims deadline. The Merrills
appealed, claiming that they did not have notice of the damage
before the claims deadline. The Arborist Panel denied their
appeal.
The Merrills appeal the decision of the Imprelis Arborist Panel,
asking the Court to excuse the lateness of their claim because
they did not realize Imprelis damaged their trees until after the
claims deadline.
Judge Pratter held that the Court has addressed the issue of the
Settlement's claims deadlines on multiple occasions, and each
time, the Court has held that class members are bound by the
deadlines set forth in the Settlement Agreement. This case is no
exception.
Because the Appeals Panel found that the damage to the Merrills'
property would have manifested before the claims deadline (and
because the Merrills do not even seem to contest this conclusion),
she affirmed the Panel's decision and denied the Merrills' appeal.
A full-text copy of the Court's Aug. 30, 2017 Memorandum is
available at https://is.gd/QOkrTo from Leagle.com.
MISSOURI: Improvements Sought in SORTS Program After Settlement
---------------------------------------------------------------
Jesse Bogan, writing for St. Louis Post-Dispatch, reports that
John Van Orden is part of one of the most reviled groups in the
state. He's locked up indefinitely as a patient in a secure
mental health facility for sexually violent predators.
He's deemed so dangerous, Missouri holds on to him in anticipation
of what he might do.
Keeping people against their will after they served prison
sentences is a murky area of the law that of course spurs a lot of
lawsuits. But in 2009, Mr. Van Orden scratched out a case by hand
that caught the close eye of federal officials in the Eastern
District of Missouri.
Mr. Van Orden accused the Department of Mental Health of
mistreating him. Not only was a high-profile Clayton law firm
appointed by the court to represent Mr. Van Orden, the team of
Armstrong Teasdale attorneys helped expand the case to an
ambitious class-action lawsuit that dove much deeper than the
original claims.
After years of work, U.S. District Court Judge Audrey Fleissig in
St. Louis agreed with the plaintiffs in 2015 that treatment at Sex
Offender Rehabilitation and Treatment Services, or SORTS, was
essentially a sham because nobody was being released.
Among the findings of the lawsuit, internal emails indicated there
were patients whose risk levels had fallen, partly due to old age
and sickness, yet were left to die in SORTS. Plaintiffs presented
evidence that suggested the annual review process for potential
release wasn't handled professionally.
A door closes
After the win in 2015, the class of sex predators, state officials
and attorneys were supposed to come up with a plan to make
necessary reforms. The state agreed to a proposed settlement that
would have required at least five years of federal oversight of
the SORTS program.
But Mr. Van Orden and his colleagues, as well as their attorneys,
divided.
They couldn't agree on the best and most realistic way forward.
Some didn't think the proposed settlement went far enough. They
didn't like that the lawsuit would be dismissed after the
five-year period of federal oversight. Some feared the state
wouldn't make lasting changes.
The infighting ate up precious time on the clock because the rules
ended up changing.
In January, the U.S. Court of Appeals for the Eighth Circuit
reversed a similar Minnesota case that involved a class of
sexually violent predators who weren't being released from
treatment. The higher court said the treatment in Minnesota
wasn't bad enough to "shock the conscience" as a U.S. District
Court judge had previously determined. Neither malice nor sadism
were shown, the Eighth Circuit found.
The Missouri attorney general's office pounced on the opportunity,
as it argued successfully that the decision from the higher court
applied in the SORTS case here.
"With some reluctance," Judge Fleissig wrote in her order in July
from the federal bench in St. Louis, she dismissed the Van Orden
case.
The eight-year saga seems to be over for now, though there are
rumblings of an appeal.
"It's very, very disappointing, especially to me," Mr. Van Orden,
55, said by phone from the SORTS facility in Farmington. "I got
the door cracked open, as well as the others in the class action."
Seeking improvements
But in the aftermath of the lawsuit, some would argue the system
for sexually violent predators is still changing but it is going
to be a voluntary process rather than one compelled by the federal
government to act.
"The improvements that have been made will continue," said
Debra Walker, spokeswoman for the Department of Mental Health, who
declined to elaborate.
Missouri is one of 20 states that has a law to civilly commit the
most dangerous sex offenders to treatment. Some inmates get
flagged at the end of their prison sentences as possible
candidates for SORTS, which has growing programs in Farmington and
Fulton.
A panel of mental health experts then studies each case, but
prosecutors can override the recommendation. Juries and judges
ultimately decide if the sex offender has a "mental abnormality"
that makes him more likely than not to commit another sex crime if
not confined to a secure facility.
The controversial treatment program for sexually violent predators
started in 1999, partly motivated by claims of a St. Louis County
camp volunteer and day care worker who molested more than two
dozen children and vowed to continue the behavior once he got out
of prison. Usually represented by public defenders, a steady
stream of patients are added to the SORTS roster each year.
By 2013, there were 192 patients at a cost of $24.6 million per
year, or more than $300 a day per person. Nobody had been released
for completing SORTS treatment at that time. Ten had died.
Today, there are 240 patients. The budget is $29.5 million.
But patients say treatment goals and levels are more defined. A
group home has been opened outside the razor wire at the SORTS
facility in Farmington, which is the kind of less restrictive
environment the federal lawsuit sought to create.
"Every state program should be reviewed from time to time. I
believe that very strongly," said Joe Dandurand, a former deputy
attorney general in Missouri who worked on the SORTS case.
"Nothing stays fresh forever."
Though the Department of Mental Health denied a request by the
Post-Dispatch to visit SORTS, patients are reportedly progressing
through treatment more than before. Nine people are on strict
terms of conditional release. Some moved back to their
communities. A few have gone to the group home.
And after working for a shot at freedom, a few sex offenders ended
up violating the terms of their release. Mr. Van Orden said a
couple of them got caught looking at porn or R-rated movies on
their cellphones.
"They still did it thinking they are smarter than these people,"
Mr. Van Orden said. "I am happy that I got the door open and
things were going really good, but it stresses me out that guys
get out and screw up. It hurts all the residents here and the
program."
Mr. Van Orden hopes there's still another shot with the federal
lawsuit to ensure treatment continues to improve.
"I'll tell you this," he said. "There are a lot of guys I see who
go by the rules every day. They follow the process and try like
hell to do good to get out of here." [GN]
MONEYMUTUAL LLC: Court Partly Grants Bid to Dismiss "Rilley"
------------------------------------------------------------
In the case captioned Scott Rilley, Michelle Kunza, Linda Gonzales
and Michael Gonzales, individually and on behalf of the putative
class, Plaintiffs, v. MoneyMutual, LLC, Selling Source, LLC, and
PartnerWeekly, LLC, Defendants, Civil No. 16-4001 (DWF/LIB)(D.
Minn.), Judge Donovan W. Frank of the U.S. District Court for the
District of Minnesota denied the Defendants' motion to dismiss for
lack of personal jurisdiction, and granted in part and denied in
part the Defendants' motion to dismiss for failure to state a
claim.
The Defendants collectively operate a lead-generating business for
various payday lenders. Consumers would go to their website to
fill out an application, and then the Defendants would sell the
application to lenders. The lenders would independently decide
whether to lend consumers money.
Defendant MoneyMutual maintained the website and advertised
nationally on television and the Internet, but had no employees or
officers. Defendant PartnerWeekly, was MoneyMutual's managing
agent. PartnerWeekly would purchase the advertising, operate the
website, and contract with lenders on behalf of MoneyMutual.
Defendant Selling Source, is the sole parent of MoneyMutual and
PartnerWeekly. Selling Source provided common services to the
subsidiaries (like legal and accounting), but did not operate the
day-to-day business.
The Plaintiffs are consumer-borrowers and have filed a purported
class action against the Defendants related to the payday loans.
They first filed their complaint in Minnesota state court, naming
only MoneyMutual as a Defendant. MoneyMutual moved to dismiss for
lack of personal jurisdiction. In Rilley v. MoneyMutual, LLC
(Rilley I), the Minnesota Supreme Court affirmed the finding of
personal jurisdiction. After the U.S. Supreme Court denied
MoneyMutual's petition for certiorari, the Plaintiffs amended the
complaint to add Defendants PartnerWeekly and Selling Source and
to add a claim for violating 18 U.S.C. Section 1962(c) of the
federal Racketeer Influenced and Corrupt Organizations ("RICO")
Act. The Defendants then removed the case to federal court.
The Plaintiffs have alleged in their Amended Complaint claims for:
(i) violating Minnesota's payday-lending statutes, Minnesota
Statute Sections 47.60 and 47.601; (ii) violating Section 1962(c)
of the federal RICO Act; (iii) violating the Minnesota Consumer
Fraud Act, and the Minnesota False Statement in Advertising Act;
(iv) violating the Minnesota Uniform Deceptive Trade Practices
Act; (v) unjust enrichment; (vi) civil conspiracy and aiding and
abetting; and (vii) alter ego/piercing the corporate veil. The
Defendants have moved to dismiss for lack of personal jurisdiction
and for failure to state a claim.
Judge Frank held that the Defendants have failed to show that the
Plaintiffs' RICO claim is not colorable. To start, they seem to
acknowledge that the Plaintiffs' claim is colorable because they
used that claim as a basis for the Court's jurisdiction in their
removal papers. But apart from that, the Defendants have not
shown how the Plaintiffs' RICO claim is so implausible that the
Court does not have subject matter jurisdiction over the claim,
which would be necessary to preclude the Court from exercising
personal jurisdiction pursuant to RICO. Thus, the Court has
personal jurisdiction over all three Defendants for all of the
Plaintiffs' claims and therefore, he denied the Defendants' Motion
to Dismiss for Lack of Personal Jurisdiction.
The Judge finds that the Plaintiffs have failed to plausibly
allege that the Defendants were in the businesses of making
consumer small loans. Their claim under Section 47.60 would need
to be brought against the actual lender. Thus, he dismissed the
Plaintiffs' payday-lending claims to the extent that they are
brought under Section 47.60.
Judge Frank also finds that the Plaintiffs' RICO claim fails
because they have failed to adequately plead a common purpose
among the various lenders. It is not enough that they allege that
the Defendants' purpose was to facilitate illegal loans and that
the various lenders also wanted to sell illegal loans. A so-
called rimless conspiracy does not establish a RICO enterprise.
Without particular allegations regarding the lenders' concerted
effort, their RICO claim fails. Thus, he granted the Defendants'
motion to the extent it seeks dismissal of the Plaintiffs' RICO
claim.
The Judge also granted in part the Defendants' motion to dismiss
the MCFA and FSAA claims to the extent that the Plaintiffs have
failed to identify actionable misstatements. He denied the
Defendants' motion (i) to the extent that it seeks to dismiss the
Plaintiffs' MCFA claim for lack of particularity; and (ii) to the
extent it seeks to dismiss the Plaintiffs' MCFA claim for failing
to plead a causal nexus.
A consumer can proceed with a MUDTPA claim so long as he alleges a
threat of future injury from the deceptive practices. Thus, Judge
Frank concludes that the Plaintiffs do not need to allege harm to
a commercial interest. He therefore granted the Defendants'
motion to dismiss in part. He dismissed the Plaintiffs' MUDTPA
claim to the extent it is based on nonactionable statements.
As for unjust enrichment claim, the Judge says the Plaintiffs'
claim is pleaded in the alternative to its statutory claims. And
at this stage of the litigation, they are allowed to proceed with
alternative theories of law and equity. Thus, he denied the
Defendants' motion to the extent that it seeks to dismiss the
Plaintiffs' claim for unjust enrichment.
Judge Frank concludes that the Plaintiffs have adequately alleged
their claims for civil conspiracy and for aiding and abetting: the
Plaintiffs allege that the Defendants entered into agreements with
various lenders to provide them access to Minnesota to make
illegal payday loans. Further, they s contend that the various
lenders could not circumvent Minnesota law without the Defendants'
help. Such allegations are sufficient to survive a motion to
dismiss. Thus, he denied the Defendants' motion to the extent it
seeks to dismiss the Plaintiffs' claims for civil conspiracy and
aiding and abetting.
Lastly, while it is true that piercing the corporate veil and
alter ego are liability theories which require an underlying tort
claim or statutory claim, courts in Minnesota have allowed them to
be pleaded as independent claims. The Defendants' motion
therefore fails.
Based upon the foregoing, Judge Frank ordered that the Defendants'
Amended Motion to Dismiss for Lack of Personal Jurisdiction and
for Failure to State a Claim is granted in part and denied in part
as follows: (i) the Defendants' Motion to Dismiss for Lack of
Personal Jurisdiction is denied; (ii) their Motion to Dismiss for
Failure to State a Claim is granted in part and denied in part as
follows: (a) the Plaintiffs' claim under Minnesota Statute Section
47.60 is dismissed with Prejudice; (b) the Plaintiffs' RICO claim
is is dismissed with Prejudice; (c) the Plaintiffs' claims under
the Minnesota Consumer Fraud Act, the Minnesota False Statement in
Advertising Act, and the Minnesota Uniformed Deceptive Practices
Act are is dismissed with Prejudice to the extent that they rely
on the nonactionable statements that MoneyMutual offers short-term
loans to people with no other alternatives and that getting a
payday loan can help provide the immediate assistance to avoid
expensive fees; and (d) the remainder of the Defendants' Motion to
Dismiss for Failure to State a Claim is denied.
A full-text copy of the Court's Aug. 30, 2017 Memorandum Opinion
and Order is available at https://is.gd/phfoFk from Leagle.com.
Scott Rilley, Plaintiff, represented by E. Michelle Drake --
emdrake@bm.net -- Berger & Montague, P.C..
Scott Rilley, Plaintiff, represented by Jeffrey Laurence Osterwise
-- josterwise@bm.net -- Berger & Montague, P. C., pro hac vice,
John G. Albanese -- jalbanese@bm.net -- Berger & Montague, PC &
Mark L. Heaney -- mark@heaneylaw.com -- Heaney Law Firm, LLC.
Michelle Kunza, Plaintiff, represented by E. Michelle Drake,
Berger & Montague, P.C., Jeffrey Laurence Osterwise, Berger &
Montague, P. C., pro hac vice, John G. Albanese, Berger &
Montague, PC & Mark L. Heaney, Heaney Law Firm, LLC.
Linda Gonzales, Plaintiff, represented by E. Michelle Drake,
Berger & Montague, P.C., Jeffrey Laurence Osterwise, Berger &
Montague, P. C., pro hac vice, John G. Albanese, Berger &
Montague, PC & Mark L. Heaney, Heaney Law Firm, LLC.
Michael Gonzales, Plaintiff, represented by E. Michelle Drake,
Berger & Montague, P.C., Jeffrey Laurence Osterwise, Berger &
Montague, P. C., pro hac vice, John G. Albanese, Berger &
Montague, PC & Mark L. Heaney, Heaney Law Firm, LLC.
MoneyMutual, LLC, Defendant, represented by Christina Rieck Loukas
-- cloukas@winthrop.com -- Winthrop & Weinstine, PA, Donald J.
Putterman -- ayoung@plylaw.com -- Putterman Landry & Yu LLP, pro
hac vice, Joseph M. Windler -- jwindler@winthrop.com -- Winthrop &
Weinstine, PA, Michelle L. Landry, Putterman Landry & Yu LLP, pro
hac vice & Tobias G. Snyder, Putterman Landry & Yu LLP, pro hac
vice.
Selling Source, LLC, Defendant, represented by Christina Rieck
Loukas, Winthrop & Weinstine, PA, Donald J. Putterman, Putterman
Landry & Yu LLP, pro hac vice, Joseph M. Windler, Winthrop &
Weinstine, PA, Michelle L. Landry, Putterman Landry & Yu LLP, pro
hac vice & Tobias G. Snyder, Putterman Landry & Yu LLP, pro hac
vice.
PartnerWeekly, LLC, Defendant, represented by Christina Rieck
Loukas, Winthrop & Weinstine, PA, Donald J. Putterman, Putterman
Landry & Yu LLP, pro hac vice, Joseph M. Windler, Winthrop &
Weinstine, PA, Michelle L. Landry, Putterman Landry & Yu LLP, pro
hac vice & Tobias G. Snyder, Putterman Landry & Yu LLP, pro hac
vice.
NEW YORK: Court Refuses to Dismiss Suit vs. ACS
-----------------------------------------------
In the case captioned ELISA W., by her next friend Elizabeth
Barricelli, et al., Plaintiffs, v. THE CITY OF NEW YORK, et al.,
Defendants, No. 15 CV 5273-LTS-HBP (S.D. N.Y.), Judge Laura Taylor
Swain of the U.S. District Court for the Southern District of New
York denied the Defendants' motion for partial summary judgment.
On July 8, 2015, the Plaintiffs filed the instant action, on
behalf of themselves and a purported class of Plaintiffs,
asserting claims under the First, Ninth, and Fourteenth Amendments
to the United States Constitution, the Adoption Assistance and
Child Welfare Act of 1980, New York State Social Services Law and
the common law of contracts against the City of New York, the New
York City Administration for Children's Services ("ACS"), ACS
Commissioner Gladys Carrion ("City Defendants"), the New York
State Office of Children and Family Services ("OCFS") and OCFS
Acting Commissioner Sheila J. Poole, stemming from alleged
deficiencies in New York City's foster care system. The
Plaintiffs filed the Amended Complaint on Dec. 29, 2015. The
Court has jurisdiction of the action pursuant to 28 U.S.C. Section
1331 and 1367.
The City Defendants now move for partial summary judgment, seeking
dismissal of six of the Named Plaintiff Children from this action
on the grounds that their claims have become moot.
For the purposes of the summary judgment motion, the only relevant
fact is that six of the Named Plaintiff Children, namely
Alexandria R., Oliva R., Ana-Maria R., Dameon C., Xavion M., and
Elisa W., are no longer in the custody of ACS.
Judge Swain finds that the putative class of children in ACS
custody has every hallmark of an inherently transitory population.
Every member of the class will necessarily leave it, as ACS
oversight terminates when a child reaches 21 years of age. Some
children will enter and leave ACS custody multiple times during
their lives because of factors entirely outside of their control.
While the Court denied the Plaintiffs' first motion for class
certification, that denial was without prejudice to renewal. As
Comer v. Cisneros and Cnty. of Riverside v. McLaughlin make clear,
the Court has the power upon certification of the class to relate
that certification back to the date of the original compliant,
when all of the Named Plaintiff Children were in ACS custody.
That determination is appropriately litigated in the context of
class certification, not by piecemeal consideration of mootness
arguments attacking the standing of individual plaintiffs as of
particular points in the course of the pretrial proceedings.
Accordingly, because she has not yet made a final determination as
to whether the case will proceed as a class action, Judge Swain
denied the Defendants' motion for partial summary judgment
dismissing the six Plaintiffs' claims on the grounds of mootness.
A full-text copy of the Court's Sept. 1, 2017 Memorandum Opinion
and Order is available at https://goo.gl/HcWV4M from Leagle.com.
Ayanna J., Plaintiff, represented by Brittany Lynn Sukiennik --
bsukiennik@cravath.com -- Cravath, Swaine & Moore LLP.
Ayanna J., Plaintiff, represented by Claire Botnick --
cbotnick@cravath.com -- Cravath, Swaine and Moore LLP, Justin
Conrad Clarke -- jcclarke@cravath.com -- Cravath Swaine & Moore
LLP, Marcia Robinson Lowry -- info@abetterchildhood.org -- A
Better Childhood, Molly Montgomery Jamison -- mjamison@cravath.com
-- Cravath, Swaine & Moore, LLP, Nicole Marie Peles --
npeles@cravath.com -- Cravath, Swaine & Moore LLP, Rachel Jennifer
Lamorte -- rlamorte@cravath.com -- Cravath, Swaine & Moore LLP,
Sarah W. Jaffe, A Better Childhood, Scott Bartron Reents, Cleary
Gottlieb Steen & Hamilton LLP & Julie A. North --
jnorth@cravath.com -- Cravath, Swaine & Moore LLP.
Dameon C., Plaintiff, represented by Brittany Lynn Sukiennik,
Cravath, Swaine & Moore LLP, Claire Botnick, Cravath, Swaine and
Moore LLP, Justin Conrad Clarke, Cravath Swaine & Moore LLP,
Marcia Robinson Lowry, A Better Childhood, Molly Montgomery
Jamison, Cravath, Swaine & Moore, LLP, Nicole Marie Peles,
Cravath, Swaine & Moore LLP, Rachel Jennifer Lamorte, Cravath,
Swaine & Moore LLP, Sarah W. Jaffe, A Better Childhood, Scott
Bartron Reents, Cleary Gottlieb Steen & Hamilton LLP & Julie A.
North, Cravath, Swaine & Moore LLP.
Letitia James, Plaintiff, represented by Jennifer L. Levy, Office
of The Public Advocate, Molly Anne Thomas-Jensen, Public Advocate
for the City of New York & Nicole Marie Peles, Cravath, Swaine &
Moore LLP.
Olivia R., Plaintiff, represented by Brittany Lynn Sukiennik,
Cravath, Swaine & Moore LLP, Claire Botnick, Cravath, Swaine and
Moore LLP, Justin Conrad Clarke, Cravath Swaine & Moore LLP,
Marcia Robinson Lowry, A Better Childhood, Molly Montgomery
Jamison, Cravath, Swaine & Moore, LLP, Nicole Marie Peles,
Cravath, Swaine & Moore LLP, Rachel Jennifer Lamorte, Cravath,
Swaine & Moore LLP, Sarah W. Jaffe, A Better Childhood, Scott
Bartron Reents, Cleary Gottlieb Steen & Hamilton LLP & Julie A.
North, Cravath, Swaine & Moore LLP.
Valentina T.C., Plaintiff, represented by Brittany Lynn Sukiennik,
Cravath, Swaine & Moore LLP, Claire Botnick, Cravath, Swaine and
Moore LLP, Justin Conrad Clarke, Cravath Swaine & Moore LLP, Molly
Montgomery Jamison, Cravath, Swaine & Moore, LLP, Rachel Jennifer
Lamorte, Cravath, Swaine & Moore LLP, Sarah W. Jaffe, A Better
Childhood, Scott Bartron Reents, Cleary Gottlieb Steen & Hamilton
LLP & Julie A. North, Cravath, Swaine & Moore LLP.
Matthew V., Plaintiff, represented by Brittany Lynn Sukiennik,
Cravath, Swaine & Moore LLP, Claire Botnick, Cravath, Swaine and
Moore LLP, Justin Conrad Clarke, Cravath Swaine & Moore LLP, Molly
Montgomery Jamison, Cravath, Swaine & Moore, LLP, Rachel Jennifer
Lamorte, Cravath, Swaine & Moore LLP, Sarah W. Jaffe, A Better
Childhood, Scott Bartron Reents, Cleary Gottlieb Steen & Hamilton
LLP & Julie A. North, Cravath, Swaine & Moore LLP.
Mikayla G., Plaintiff, represented by Brittany Lynn Sukiennik,
Cravath, Swaine & Moore LLP, Claire Botnick, Cravath, Swaine and
Moore LLP, Justin Conrad Clarke, Cravath Swaine & Moore LLP, Molly
Montgomery Jamison, Cravath, Swaine & Moore, LLP, Rachel Jennifer
Lamorte, Cravath, Swaine & Moore LLP, Sarah W. Jaffe, A Better
Childhood, Scott Bartron Reents, Cleary Gottlieb Steen & Hamilton
LLP & Julie A. North, Cravath, Swaine & Moore LLP.
Myls J., Plaintiff, represented by Brittany Lynn Sukiennik,
Cravath, Swaine & Moore LLP, Claire Botnick, Cravath, Swaine and
Moore LLP, Justin Conrad Clarke, Cravath Swaine & Moore LLP, Molly
Montgomery Jamison, Cravath, Swaine & Moore, LLP, Rachel Jennifer
Lamorte, Cravath, Swaine & Moore LLP, Sarah W. Jaffe, A Better
Childhood, Scott Bartron Reents, Cleary Gottlieb Steen & Hamilton
LLP & Julie A. North, Cravath, Swaine & Moore LLP.
Jose T.C., Plaintiff, represented by Brittany Lynn Sukiennik,
Cravath, Swaine & Moore LLP, Claire Botnick, Cravath, Swaine and
Moore LLP, Justin Conrad Clarke, Cravath Swaine & Moore LLP, Molly
Montgomery Jamison, Cravath, Swaine & Moore, LLP, Rachel Jennifer
Lamorte, Cravath, Swaine & Moore LLP, Sarah W. Jaffe, A Better
Childhood, Scott Bartron Reents, Cleary Gottlieb Steen & Hamilton
LLP & Julie A. North, Cravath, Swaine & Moore LLP.
City of New York, Defendant, represented by Agnetha Elizabeth
Jacob, New York City Law Department, Jonathan L. Pines, NYC Law
Department, Office of the Corporation Counsel, Lauren Almquist
Lively, New York City Law Department & Neil Anthony Giovanatti,
New York City Law Department.
New York City Administration for Childrens Services, Defendant,
represented by Jonathan L. Pines, NYC Law Department, Office of
the Corporation Counsel, Lauren Almquist Lively, New York City Law
Department & Neil Anthony Giovanatti, New York City Law
Department.
Gladys Carrion, Defendant, represented by Jonathan L. Pines, NYC
Law Department, Office of the Corporation Counsel, Lauren Almquist
Lively, New York City Law Department & Neil Anthony Giovanatti,
New York City Law Department.
Sheila J. Poole, Defendant, represented by Antoinette W.
Blanchette, New York State Office of the Attorney General, Cara
Brown Chomski, State of New York Office of the Attorney General,
Roderick Leopold Arz, New York State Office of the Attorney
General & Samantha Leigh Buchalter, New York State Office of the
Attorney General.
The Legal Aid Society, Intervenor, represented by Celia Goldwag
Barenholtz -- cbarenholtz@cooley.com -- Cooley LLP, Kara Corinne
Wilson -- kwilson@cooley.com -- Cooley LLP, Lisa Freeman, The
Legal Aid Society, Stephanie B. Turner --
stephanie.turner@skadden.com -- Cooley LLP, Tamara A. Steckler,
The Legal Aid Society, Theresa Beth Moser, The Legal Aid Society &
Victoria Anna Foltz -- vfoltz@cooley.com -- Cooley LLP.
Lawyers for Children, Inc., Intervenor, represented by Betsy
Kramer, Lawyers For Children, Celia Goldwag Barenholtz, Cooley
LLP, Kara Corinne Wilson, Cooley LLP, Karen J. Freedman, Lawyers
for Children, Inc., Stephanie B. Turner, Cooley LLP & Victoria
Anna Foltz, Cooley LLP.
The Children's Law Center of New York, Intervenor, represented by
Celia Goldwag Barenholtz, Cooley LLP, Kara Corinne Wilson, Cooley
LLP, Stephanie B. Turner, Cooley LLP & Victoria Anna Foltz, Cooley
LLP.
Center for Family Representation, Intervenor, represented by Audra
Jan Soloway -- asoloway@paulweiss.com -- Paul, Weiss, Rifkind,
Wharton & Garrison LLP, Charles Jordan Hamilton, Paul, Weiss,
Rifkind, Wharton & Garrison LLP, Daniel H. Levi --
dlevi@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison
LLP & Luke Xavier Flynn-Fitzsimmons -- LFLYNN-
FITZSIMMONS@PAULWEISS.COM -- Paul, Weiss, Rifkind, Wharton &
Garrison LLP.
Bronx Defenders, Intervenor, represented by Audra Jan Soloway,
Paul, Weiss, Rifkind, Wharton & Garrison LLP, Charles Jordan
Hamilton, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Daniel H.
Levi, Paul, Weiss, Rifkind, Wharton & Garrison LLP & Luke Xavier
Flynn-Fitzsimmons, Paul, Weiss, Rifkind, Wharton & Garrison LLP.
Brooklyn Defender Service, Intervenor, represented by Audra Jan
Soloway, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Charles
Jordan Hamilton, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Daniel H. Levi, Paul, Weiss, Rifkind, Wharton & Garrison LLP &
Luke Xavier Flynn-Fitzsimmons, Paul, Weiss, Rifkind, Wharton &
Garrison LLP.
Neighborhood Defender Service of Harlem, Intervenor, represented
by Audra Jan Soloway, Paul, Weiss, Rifkind, Wharton & Garrison
LLP, Charles Jordan Hamilton, Paul, Weiss, Rifkind, Wharton &
Garrison LLP, Daniel H. Levi, Paul, Weiss, Rifkind, Wharton &
Garrison LLP & Luke Xavier Flynn-Fitzsimmons, Paul, Weiss,
Rifkind, Wharton & Garrison LLP.
NEW ZEALAND: Crown Draws Up Strategy in Psa Outbreak Class Action
-----------------------------------------------------------------
NZCity reports that the Crown has opened its defence of the class
action lawsuit against MPI over the Psa infection discovered in
kiwifruit orchards in 2010.
The Crown plans to come from a number of angles as it seeks to
defend a class action lawsuit from 212 kiwifruit growers over the
Psa outbreak seven years ago, which devastated the industry.
Crown lawyer Jack Hodder QC says legislation, the law and science
are among the angles he and his team plan to tackle.
Witnesses include Murray Sherwin, director-general of MAF from
2001-10 and Lain Jager, chief executive of kiwifruit marketer and
exporter Zespri.
The lawsuit, led by Strathboss Kiwifruit and Seeka, is claiming
that MAF -- which was later merged into MPI -- was negligent under
the Biosecurity Act in letting the vine-killing Psa virus into New
Zealand from China.
It infected 80 per cent of the country's orchards and is estimated
to have cost the industry up to $930 million in lost exports.
Mr Hodder, however, says the plaintiffs' case falls over in a
number of areas.
"The Crown will say they are misconceived in law and there is no
breach of duty here," he said.
"We have much more public responsibility than a private law claim
saying 'what about me' that cannot be part of the legal
landscape."
Mr Hodder said his team will assert that no specific individual
from MPI is in breach of the duty of care and there is no concrete
evidence to prove the Psa outbreak came from the identified
consignment from Shaanxi in China.
The trial is expected to run another four weeks. [GN]
NORTH DAKOTA: Water Protector Legal Collective Files Class Action
-----------------------------------------------------------------
Tara Houska, writing for Indian Country Today, reports that though
the ground fight against the Dakota Access pipeline project has
ended, the defense of those who stood up against injustice
continues. From last April through February of this year,
thousands of people traveled to North Dakota to stand with
Standing Rock as their people fought to protect the Missouri
River.
In September, Dakota Access deployed several private security
firms, hired an unlicensed military counterintelligence operation,
and colluded closely with both state and federal agencies to end
the peaceful demonstrations of water protectors. The addition of
these hired guns resulted in a dramatic uptick of arrests, use of
force, and numerous human rights violations against those who
chose to exercise their constitutional rights. In total, nearly
600 people were arrested, facing a total of 825 charges.
Wearing goggles, face masks, and hoisting box lids and floor mats,
we crossed the water onto Turtle Island where armed Morton County
Sheriffs were waiting.
Recently, the company behind Dakota Access, Energy Transfer
Partners, filed a lawsuit against Greenpeace, Earth Justice, and
several environmental organizations, alleging a "criminal
enterprise" of misleading indigenous peoples, lying to the public
about the harms of the Dakota Access Pipeline, and even attempting
to redefine "unceded treaty territory."
As water protectors were arrested, a massive legal defense effort
began that continues today.
Morton County is slowly progressing through its backlogged docket
-- in the June accounting, 221 cases had been resolved. Of those
221 cases, 93 were dismissed, three were found 'not guilty', three
were ruled 'pre-trial diversions' (a case in which the defendant
does not admit guilt, case is suspended for one year -- if the
defendant is not arrested again, the case will be dismissed), 114
were plea bargains, and 8 were found 'guilty'.
According to the Freshet Collective, as of July, a total of 499
cases remain open. Remaining charges include: reckless
endangerment, disobedience of safety orders during a riot,
disorderly conduct, physical obstruction of a government function,
engaging in a riot, criminal trespass, preventing arrest,
maintaining a public nuisance, terrorizing, criminal mischief,
tampering with a public service, and inciting a riot.
Seven defendants face federal charges, which will most likely be
decided in North Dakota, unless a change of venue is granted. All
seven defendants have been charged with "participating in a riot,"
which carries a maximum five year sentence, and six of the seven
were charged with "arson," which carries a mandatory minimum of 10
years in prison. One defendant, Red Fawn Fallis, was charged with
"unlawful possession of a weapon" and accused of firing this
weapon. Red Fawn was held for several s in Morton County Jail and
was finally released to a halfway house earlier this summer.
The Water Protector Legal Collective's civil litigation team has
filed one federal class action suit to date, alleging use of
excessive force by law enforcement. That case was filed on
November 28, 2016. The suit seeks damages and injunctive relief
against further indiscriminate use of dangerous weapons such as
impact munitions, explosive teargas grenades and canisters, and
water cannons and hoses, for crowd dispersal. WPLC expects oral
arguments for this case to begin in December of 2017 or Spring of
2018.
In the meantime, water protectors have started resistance camps
all over Turtle Island. Water protectors in Minnesota
successfully blocked construction of the Line 3 pipeline for a
day. Six people were arrested, and released on bond the following
day.
Resistance continues throughout our treaty territories -- the
fight against the Dakota Access pipeline united so many and lit a
spark within new generations. Energy Transfer Partners seeks to
silence us and any allies willing to stand with us moving forward,
they seek to demonize and further divide, as they did for many s
in North Dakota. Big oil paints itself as a victim, but the video
footage and photos show otherwise -- we are unarmed resistors who
were attacked by dogs, private security, treated as "jihadists,"
and subjected to militarized, violent tactics for attempting to
protect the water from contamination and defend our treaty rights.
Stand strong, relatives. [GN]
PEOPLE'S UNITED: Overdraft Fees Class Suit in Connecticut Pending
-----------------------------------------------------------------
Gordon Gibb, writing for LawyersandSettlements.com, reports that
an overdraft fees class action lawsuit appears to be breaking new
ground, and creating even bigger waves in the pool of complaints
over excessive bank fees; namely, re-ordering transactions in such
a way as to force an account into overdraft, thereby affording the
offending bank the opportunity to pocket additional fees.
To that end, a lawsuit initiated in Connecticut asserts, amongst
other allegations, that People's United Bank charges overdraft
fees even when account holders have sufficient funds in an account
to cover all transactions.
The People's United Bank excessive overdraft fees class action
lawsuit was filed in Connecticut by plaintiff Teriann Walker.
Among other allegations, Walker asserts that People's United fails
to adequately explain, define and outline its overdraft protection
services in various 'opt-in' contracts -- or define specific
methods employed to calculate those fees.
Banks have been known to alter the order of transactions from that
of the actual chronological order of debits carried out by account
holders. Consumers may have carried out certain transactions, in
a specific order and with specific dollar amounts with the view to
avoid overdrawing the account and incurring fees. However, there
is no guarantee a bank will abide by, and follow the transaction
order when facilitating the debits. This re-ordering, either
calculated or in random fashion, can succeed in putting an account
into overdraft in deference to the original expectations of the
account holder.
Walker's People's United Bank class action lawsuit appears to push
those allegations into new territory: "Nowhere in the Account
Agreement . . . does the contract anywhere states [sic] that for
purposes of an overdraft fee that [People's United Bank] would
deduct from the funds in the account holds for pending debit card
transactions," the lawsuit states, "or that pending debit card
transactions will be subtracted from the balance to create a lower
artificial balance different than the real balance for purposes of
assessing an overdraft fee."
Various banks have indicated protocols that range from processing
from the highest to the lowest amount (or vice versa), or by check
number. Some advocates have maintained that processing by
transaction order -- in other words, reflecting the chronological
order that the consumer had made the transactions and thus would
expect the transactions to be processed in kind, remains the
fairest system for the consumer. Account holders may undertake
their transactions in a certain order with an eye on their account
balance. Provided the account is debited in the same order, it
would be expected the account would not go into overdraft and thus
would not be dinged for overdraft fees.
However, observers note that most banks do not process
transactions in chronological order, putting the consumer at a
disadvantage.
People's United Bank maintains its headquarters in Bridgeport,
Connecticut. The People's United Bank class action lawsuit
brought by Walker was filed February 21 of this year. The case is
Walker v. People's United Bank et al., Case No. 3:2017-cv-00304 in
Connecticut District Court, for the Second Circuit.
[GN]
PH GLATFELTER: Court Dismisses "Ford" Suit Without Prejudice
------------------------------------------------------------
In the case captioned TERESA FORD, on behalf of herself and all
others similarly situated, et al. Plaintiffs, v. P.H. GLATFELTER
COMPANY, Defendant, Civil Action No. 2:16-cv-278 (S.D. Ohio),
Magistrate Judge Chelsey M. Vascura of the U.S. District Court for
the Southern District of Ohio, Eastern Division, granted the
Plaintiffs' Motion for Partial Voluntary Dismissal, and denied as
moot the Defendant's Motion to Strike.
On March 29, 2016, the Plaintiffs filed the present case as a
purported class action. Their Complaint included various class
action claims against the Defendant regarding the alleged release
of noxious odors and air particulates into, and onto, their
property. On July 20, 2016, the Court issued a Preliminary
Pretrial Order, in which the Court set May 1, 2017, as the due
date for class certification motions. On Jan. 9, 2017, the Court
granted the parties' joint motion for extension of certain case
management deadlines, and moved the deadline to file a motion to
certify a class to Aug. 1, 2017. The parties did not seek further
extension of the class certification motion deadline in their
March 8, 2017 joint motion. Additionally, in the parties' June
29, 2017 Joint Motion to Partially Modify Case Schedule, the
parties requested only a brief extension of the cut-off date for
class-related discovery and the opposition and reply deadlines.
Accordingly, the class certification motion deadline remained
unchanged as Aug. 1, 2017.
On Aug. 24, 2017, the Defendant filed its Motion to Strike
Plaintiffs' Class Allegations. The Defendant sought to strike the
Plaintiffs' Complaint of all class allegations with prejudice due
to the Plaintiffs' failure to comply with the Court's scheduling
order for class certification motions. It also sought an award of
attorneys' fees and expenses due to the Plaintiffs' non-compliance
with the Court's scheduling order and Federal Rule of Civil
Procedure 16(f). Specifically, the Defendant asserts that the
Plaintiff failed to request an extension of the deadline to file
class certification motion, despite being fully aware of missed
deadline.
On Aug. 29, 2017, the Plaintiffs' filed their Motion for Partial
Voluntary Dismissal of Class Allegations. They moved to dismiss
the class allegations from the Complaint, and noted that the
Defendant had consented to the motion. Thus, Magistrate Judge
Vascura granted the Plaintiffs' Motion for voluntary dismissal of
their class allegations pursuant to Federal Rule of Civil
Procedure 41(a)(2). All of their class allegations set forth in
the Complaint are dismissed without prejudice.
Given Plaintiffs' voluntary dismissal of all class allegations,
and that the Defendant sought to strike the class allegations as
the appropriate remedy for the Plaintiffs' failure to comply with
the scheduling orders, she denied as moot the Defendant's Motion
to Strike. In addition, the Magistrate Judge denied the
Defendant's request for attorneys' fees and other expenses. The
Defendant sought sanctions pursuant to Federal Rule of Civil
Procedure 16(f) for the Plaintiffs' failure to comply with the
case schedule. However, the record reflects that the Plaintiffs
have not sought an untimely extension of the case schedule.
Instead, they filed a voluntary dismissal of the class
allegations. Therefore, the Plaintiffs did not violate the case
schedule deadline.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/2Uff6H from Leagle.com.
Theresa Ford, Plaintiff, represented by Brandon T. Brown --
bbrown@ldclassaction.com -- Liddle & Dubin PC, pro hac vice.
Theresa Ford, Plaintiff, represented by Nicholas Coulson, Liddle &
Dubin, PC, pro hac vice, Steven Liddle, Liddle & Dubin, PC, pro
hac vice & Victoria L. Nilles -- vnilles@taftlaw.com -- TAFT
STETTINIUS & HOLLISTER LLP.
Rhonda Leeson, Plaintiff, represented by Brandon T. Brown, Liddle
& Dubin PC, pro hac vice, Nicholas Coulson, Liddle & Dubin, PC,
pro hac vice, Steven Liddle, Liddle & Dubin, PC, pro hac vice &
Victoria L. Nilles, TAFT STETTINIUS & HOLLISTER LLP.
P.H. Glatfelter Company, Defendant, represented by Molly S.
Crabtree -- mcrabtree@porterwright.com -- Porter Wright Morris &
Arthur & Jared Michael Klaus -- jklaus@porterwright.com -- Porter,
Wright, Morris & Arthur LLP.
PORTER MCGUIRE: Court Partly Grants Bid to Dismiss "Brown" Suit
---------------------------------------------------------------
In the case captioned BENITA J. BROWN, ET AL., Plaintiffs, v.
PORTER McGUIRE KIAKONA & CHOW, LLP, a Hawaii limited liability
partnership, ET AL., Defendants, Civil No. 16-00448 LEK-KJM (D.
Haw.), Judge Leslie E. Kobayashi of the District Court for the
District of Hawaii denied (i) Terrazza AOAO's Motion to Dismiss;
(ii) Ko Olina AOAO's Motion for Judgment; and granted in part and
denied in part (i) E&M's Motion to Dismiss and (ii) PMKC's
substantive joinder.
Around August 2004, Plaintiff purchased Apartment No. 176 in the
condominium project known as "Las Brisas, Phase 15" in Ewa Beach,
Hawai'i. Brown obtained a loan to purchase the unit that was
secured by a mortgage on the unit. Las Brisas was managed by the
Association of Apartment Owners of Terrazza/Cortbella/Las
Brisas/Tiburon ("Terrazza AOAO"). The Terrazza AOAO, by and
through PMKC, gave notice that it would sell the Brown Unit at a
public sale pursuant to the former Haw. Rev. Stat. Sections 667-5
to 667-10 ("Chapter 667, Part I"). The public sale was conducted
on or around May 20, 2011, and the Terrazza AOAO submitted the
winning bid.
The Terrazza AOAO executed a quitclaim deed on June 9, 2011, and
the ded was recorded on the same date. Brown lost her unit and
remains liable for the amounts secured by the Brown Mortgage. The
Terrazza AOAO has taken possession, control, and enjoyment of the
Brown Unit and all of its benefits.
Around August 2004, Plaintiffs Craig Connelly and Kristine
Connelly purchased Apartment No. M36-4 in the condominium project
known as "Ko Olina Kai Golf Estates & Villas" in Kapolei, Hawai'i.
The Connellys obtained a loan to purchase the unit that was
secured by a mortgage on the unit. Ko Olina was managed by the
Association of Apartment Owners of Ko Olina Kai Golf Estates and
Villas ("Ko Olina AOAO"). The Ko Olina AOAO, by and through E&M,6
gave notice that it would sell the Connelly Unit at a public sale
pursuant to Chapter 667, Part I. The public sale was conducted on
or around June 17, 2011, and the Ko Olina AOAO submitted the
winning bid. The Ko Olina AOAO executed a quitclaim deed on Aug.
2, 2011, and the deed was recorded on Aug. 9, 2011. The Connellys
lost their unit and remain liable for the amounts secured by the
Connelly Mortgage. The Ko Olina AOAO has taken possession,
control, and enjoyment of the Connelly Unit and all of its
benefits.
On Aug. 10, 2016, the Plaintiffs filed their Class Action
Complaint. The gravamen of the claims in the instant case is the
same as that of the claims in Galima -- a condominium
association's ability to use the nonjudicial process under the
former Chapter 667, Part I. The Complaint in the instant case
alleges the following claims: a claim seeking a declaratory
judgment that (i) the Defendants were not entitled to use Part I;
(ii) the Defendants were required to use Haw. Rev. Stat. Sections
667-21 through 667-42 ("Chapter 667, Part II"); and (iii) because
they did not use Part II, the foreclosures were wrongful ("Count
I"); a wrongful foreclosure claim against the Defendants ("Count
II"); a claim against PMKC and E&M ("Law Firm Defendants") for
violations of the Fair Debt Collections Practices Act
("FDCPA")("Count III"); and a claim against the Defendants for
unfair or deceptive acts or practices ("UDAP") under Haw. Rev.
Stat. Chapter 480 ("Count IV").
The Plaintiffs seek the following relief: compensatory, statutory,
treble, and punitive damages; restitution and disgorgement of
revenues; declaratory and injunctive relief; pre- and post-
judgment interest; attorneys' fees and costs; and any other
appropriate relief.
On Sept. 28, 2016, Defendant Ekimoto & Morris, LLLC ("E&M") filed
a motion to dismiss the Complaint, and Terrazza AOAO filed its
motion to dismiss on Sept. 29, 2016. On Oct. 14, 2016, Defendant
Porter McGuire Kiakona & Chow, LLP ("PMKC") filed a substantive
joinder in the E&M Motion. On Oct. 3, 2016, Ko Olina AOAO filed
its Motion for Judgment on the Pleadings on Counts I-IV of
Plaintiffs' Class Action Complaint, Filed Aug. 10, 2016.
On March 30, 2017, the Court issued an order ruling on the motions
to dismiss in a case that presents substantively similar issues
and claims as those in the instant case, Galima v. Ass'n of
Apartment Owners of Palm Court, et al., CV 16-00023 LEK-KSC
("Galima Order"). It ordered the parties to file memoranda
regarding whether the analysis in the Galima Order applies in the
instant case. E&M, the Ko Olina AOAO, and the Terrazza AOAO filed
their respective memoranda on April 25, 2017. Also on April 25,
107, PMKC filed a joinder in the E&M Galima Memorandum ("PMKC
Galima Joinder"). On May 9, 2017, the Plaintiffs filed their
response to the Defendants' memoranda.
Judge Kobayashi denied (i) Terrazza AOAO's Motion to Dismiss;
(ii)Ko Olina AOAO's Motion for Judgment; and granted in part and
denied in part (i) E&M's Motion to Dismiss and (ii) PMKC's
substantive joinder.
The Judge granted the E&M Motion and the PMKC Joinder insofar as:
the Plaintiffs' claims against E&M and PMKC in Counts II and III
are dismissed with prejudice; and the Plaintiffs' claims against
E&M and PMKC in Count IV are dismissed. Judge Kobayashi denied
the E&M Motion and the PMKC Joinder as to Count I and denied
insofar as the dismissal of Count IV is without prejudice. She
granted the Plaintiffs leave to file an amended complaint that
includes: Count I, as pled in the original Complaint; the claims
that the Plaintiffs alleged against the AOAO Defendants in Counts
II and III of the original Complaint; an amended FDCPA count
against the Law Firm Defendants which addresses the defect
identified in the Order; and the class action allegations, which
she did not address in the Order. The Plaintiffs will file their
amended complaint by Oct. 11, 2017.
Because Judge Kobayashi has given the Plaintiffs leave to file an
amended complaint, the Terrazza AOAO and the Law Firm Defendants
do not need to file answers to the original Complaint. Because
she has not granted the Plaintiffs leave to amend their claims
against the AOAO Defendants, the Terrazza AOAO and the Ko Olina
AOAO must file their respective answers to the amended complaint
by Oc. 25, 2017, and they must obtain leave from the Court before
filing any Rule 12 motions in lieu of their respective answers to
the amended complaint. The Law Firm Defendants must file their
respective answers to the amended complaint by Nov. 1, 2017.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/65ZzYY from Leagle.com.
Benita J. Brown, Plaintiff, represented by Camille S. Bass, Blood
Hurst & O'Reardon, LLP, pro hac vice.
Benita J. Brown, Plaintiff, represented by Chanelle M.C. Fujimoto
-- cfujimoto@imanaka-asato.com -- Imanaka Asato, LLLC, Isam C.
Khoury -- ikhoury@ckslaw.com -- Cohelan Khoury & Singer, pro hac
vice, James J. Hill -- jhill@ckslaw.com -- Cohelan Khoury &
Singer, pro hac vice, Michael L. Iosua -- miosua@imanaka-asato.com
-- Imanaka Asato, LLLC, Steven K.S. Chung -- Eschung@imanaka-
asato.com -- Imanaka Asato, LLLC, Timothy G. Blood --
tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP, pro hac vice &
Timothy D. Cohelan -- tcohelan@ckslaw.com -- Cohelan Khoury &
Singer, pro hac vice.
Craig Connelly, Plaintiff, represented by Camille S. Bass, Blood
Hurst & O'Reardon, LLP, pro hac vice, Chanelle M.C. Fujimoto,
Imanaka Asato, LLLC, Isam C. Khoury, Cohelan Khoury & Singer, pro
hac vice, James J. Hill, Cohelan Khoury & Singer, pro hac vice,
Michael L. Iosua, Imanaka Asato, LLLC, Steven K.S. Chung, Imanaka
Asato, LLLC, Timothy G. Blood, Blood Hurst & O'Reardon, LLP, pro
hac vice & Timothy D. Cohelan, Cohelan Khoury & Singer, pro hac
vice.
Kristine Connelly, Plaintiff, represented by Camille S. Bass,
Blood Hurst & O'Reardon, LLP, pro hac vice, Chanelle M.C.
Fujimoto, Imanaka Asato, LLLC, Isam C. Khoury, Cohelan Khoury &
Singer, pro hac vice, James J. Hill, Cohelan Khoury & Singer, pro
hac vice, Michael L. Iosua, Imanaka Asato, LLLC, Steven K.S.
Chung, Imanaka Asato, LLLC, Timothy G. Blood, Blood Hurst &
O'Reardon, LLP, pro hac vice & Timothy D. Cohelan, Cohelan Khoury
& Singer, pro hac vice.
Porter McGuire Kiakona & Chow, LLP, Defendant, represented by
Duane R. Miyashiro -- dmiyashiro@amkhawaii.com -- Adams Miyashiro
& Krek, LLP, Nenad Krek -- nkrek@amkhawaii.com -- Adams Miyashiro
& Krek, LLP & Jamie Christine S. Madriaga --
jmadriaga@amkhawaii.com -- MacDonald Rudy O'Neill & Yamauchi.
Ekimoto & Morris, LLLC, Defendant, represented by Christopher T.
Goodin -- cgoodin@cades.com -- Cades Schutte LLP & Peter W. Olson
-- polson@cades.com -- Cades Schutte LLP.
AOAO Terrazza/Corbella/Las Brisas/Tiburon, Defendant, represented
by David R. Major -- DMajor@LegalHawaii.com -- Bays Lung Rose &
Holma, Harvey J. Lung -- HLung@LegalHawaii.com -- Bays Lung Rose &
Holma & James G. Diehl -- JDiehl@LegalHawaii.com -- Bays Lung Rose
and Holma.
AOAO Ko Olina Kai Golf Estates and Villas, Defendant, represented
by David J. Minkin -- dminkin@m4law.com -- McCorriston Miller
Mukai MacKinnon, Jessica M. Wan, McCorriston Miller Mukai
MacKinnon & Jordan K. Inafuku, McCorriston Miller Mukai MacKinnon.
PTZ INSURANCE: Seventh Circuit Appeal Filed in "Legg" TCPA Suit
---------------------------------------------------------------
Plaintiffs Christopher Legg and Page Lozano filed an appeal from a
court ruling in their lawsuit titled Christopher Legg, et al. v.
PTZ Insurance Agency, LTD, et al., Case No. 1:14-cv-10043, in the
U.S. District Court for the Northern District of Illinois, Eastern
Division.
As previously reported in the Class Action Reporter, the
Plaintiffs allege that the Defendants violated the Telephone
Consumer Protection Act by calling their cellular telephones using
an automated dialing system, or "robocall," without their express
written consent.
The appellate case is captioned as Christopher Legg, et al. v. PTZ
Insurance Agency, LTD, et al., Case No. 17-8018, in the U.S. Court
of Appeals for the Seventh Circuit.[BN]
Plaintiffs-Petitioners CHRISTOPHER LEGG and PAGE LOZANO,
individually and on behalf of all others similarly situated, are
represented by:
Timothy J. Sostrin, Esq.
KEOGH LAW, LTD
55 W. Monroe Street
Chicago, IL 60603
Telephone: (312) 726-1092
Facsimile: (312) 726-1093
E-mail: tsostrin@keoghlaw.com
Respondents PTZ INSURANCE AGENCY, LTD, an Illinois corporation;
and PETHEALTH, INC., a Canadian corporation, are represented by:
Eric Samore, Esq.
SMITHAMUNDSEN, LLC
150 N. Michigan Avenue
Chicago, IL 60601-0000
Telephone: (312) 894-3200
Facsimile: (312) 997-1843
E-mail: esamore@salawus.com
RECEIVABLES MANAGEMENT: Faces "Coulter" Suit in E.D. Pa.
--------------------------------------------------------
A class action lawsuit has been filed against Receivables
Management Systems. The case is styled as Joshua Coulter,
individually and on behalf of all others similarly situated,
Plaintiff v. Receivables Management Systems and John Does 1-25,
Defendants, Case No. 2:17-cv-03970-JS (E.D. Pa., September 5,
2017).
Receivables Management Systems is a Financial Services
company.[BN]
The Plaintiff is represented by:
Ari Marcus, Esq.
MARCUS& ZELMAN LLC
1500 ALLAIRE AVE SUITE 101
OCEAN, NJ 07712
Tel: (732) 695-3282
Email: ari@marcuszelman.com
RESORT MARKETING: Settles TCPA Class Action in Illinois
-------------------------------------------------------
James Contini, writing for Times Reporter, reports that
recently, a class action settlement agreement was reached by and
among Philip Charvat and various other class members (collectively
referred to as "Plaintiff") against defendants Resort Marketing
Group Inc., Carnival Corporation and PLC, Royal Caribbean Cruises
Ltd., and NCL (Bahamas) Ltd. (collectively referred to as
"Defendant"). The settlement agreement was reached as a result of
a complaint being filed by Charvat on July 23, 2012, against the
above defendants in Federal District Court in Illinois. The
complaint alleges that Resort Marketing Group made automated
telephone calls on behalf of the other defendants, which violated
the Telephone Consumer Protection Act. Charvat alleges that since
Resort Marketing Group never received prior express written
consent from the recipients of the phone calls, they were in
violation of the Telephone Consumer Protect Act. ("Act") This is
the Act that also manages the "Do Not Call List" as well.
This Act imposes significant penalties on companies that knowingly
violate telemarketing restrictions. Generally, it disallows
marketers from making calls using automated dialing equipment and
pre-recorded messages unless the recipient has given prior written
consent to be contacted. Penalties against these callers can be
$500 to $1,500 per call.
On May 16, 2016, the Plaintiff asked that this lawsuit be a Class
Action. The Plaintiff believes that his claims have merit
however, he also acknowledges the expense, time, and risk
associated with continuing this action. Therefore, the parties
have entered into a Settlement Agreement. Some of the terms of
the Settlement Agreement are as follows:
1. The Settlement Agreement requires the Defendant to create a
Settlement Fund worth between $7,000,000 and $12,500,000,
depending on the number of claims filed;
2. The Fund will cover payments to Class Members, an award to
Charvat, court costs, and attorney's fees;
3. Individuals who received pre-recorded telemarketing calls from
Resort Marketing Group, mentioning the other Defendants, between
July 23, 2009, and March 8, 2014, are permissible Class Members;
4. The Settlement Agreement limits the Class Members to those
phone numbers listed in Resort Marketing Group's database; and
5. Class Members, who submit timely claims, may receive payment
for up to three calls per telephone number for $300 per call or a
maximum of $900 per telephone number. These are the maximums and
please note that depending on the number of claims submitted
though, these payment amounts may be significantly less.
If you believe that you may be a Class Member and did not receive
any correspondence regarding this Class Action, please go to
rmgtcpasettlement.comlanding.aspx and submit your phone number to
determine if you are a permissible Class Member.
NOTE: This general summary of the law should not be used to solve
individual problems since slight changes in the fact situation may
require a material variance in the applicable legal advice.
Attorney James F. Contini II is a certified specialist in estate
planning, Trust & Probate Law by the OSBA. He is with the firm
Krugliak, Wilkins, Griffiths & Dougherty Co. LPA in New
Philadelphia. [GN]
RSI ENTERPRISES: "Gibeau" Hits Illegal Collection Calls
-------------------------------------------------------
Kristina Gibeau and Kevin Schellenberger, individually and on
behalf of all others similarly situated, Plaintiffs, v. RSI
Enterprises, Inc., Defendant, Case No. 2:17-cv-01143 (E.D. Wis.,
August 21, 2017), seeks statutory damages together with costs and
reasonable attorneys' fees under the Telephone Consumer Protection
Act, the Fair Debt Collection Practices Act and the Wisconsin
Consumer Act.
RSI Enterprises, Inc. is a debt collection agency with its
principal offices located at 5440 W. Northern Avenue, Glendale,
Arizona 85301. It made collections calls to the cellular telephone
of Kevin Schellenberger using an automatic telephone dialing
system in the attempt to collect a debt incurred by Kristina
Gibeau to a certain Kay Jewelers, thereby exposing Gibeau's debt
to a third party, Schellenberger. Said call threatened civil
action despite the lack of a pending lawsuit, says the Plaintiff.
[BN]
Plaintiff is represented by:
John D. Blythin, Esq.
Shpetim Ademi, Esq.
Mark A. Eldridge, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Tel: (414) 482-8000
Fax: (414) 482-8001
Email: sademi@ademilaw.com
jblythin@ademilaw.com
meldridge@ademilaw.com
SANTEE COOPER: Audit on Nuclear Project to Impact Class Actions
---------------------------------------------------------------
Andrew Brown, writing for The Post and Courier, reports that a
newly released audit shows SCANA and Santee Cooper knew the effort
to construct two nuclear reactors in Fairfield County was failing
more than a year before the ambitious energy project was scrapped
this July.
The audit conducted by Bechtel, the country's largest construction
and civil engineering firm, provides evidence that the partnering
utilities knew of significant flaws with their primary contractor
Westinghouse, but continued to tout the reactors being built at
the V.C. Summer site and advocate for additional funding for a
project already years behind schedule.
Bechtel completed its 130-page report in February 2016, three
months before investor-owned SCANA asked state utility regulators
to increase its share of the total project cost by more than $800
million and approve a fixed-price contract with now-bankrupt
Westinghouse.
All the while, SCANA officials told state regulatory staff members
that they didn't have a physical copy of the report that they
could share -- a statement they contradicted under oath last
month.
The audit was released by Gov. Henry McMaster's office late on
Sept. 4, after the state's Republican leader pushed state-run
Santee Cooper to hand over the document that is at the center of
two legislative investigations into the $9 billion construction
failure.
The governor's office dropped the report to get ahead of an
expected legal challenge by SCANA. The utility's attorneys tried
to keep the document private, arguing that was it was protected
under attorney-client privilege. Gov. McMaster, a former state
attorney general, said the document enjoyed no such protection.
The audit highlighted that Westinghouse lacked a legitimate
construction schedule. It pointed out that the reactor design
that was put together by Westinghouse was "often not
constructible." And it suggested that Westinghouse lacked the
organization needed to complete the project.
Bechtel's findings also suggested that Westinghouse and the other
contractors that circulated through the project over the past
decade weren't "commercially motivated" to finish the reactors.
Eric Boomhower, the director of communications for SCANA, told the
Associated Press that SCANA had made improvements after the audit
was finished.
But the public release of the document could raise serious
problems for investor-owned SCANA and Santee Cooper, which are
already under increasing political and legal pressure following
the reactors' cancellation.
The Bechtel audit has been the primary focus of two legislative
committees in past weeks. State lawmakers had requested the
document and threatened to subpoena it if the utilities didn't
release it.
That fight spilled into the governor's office when Gov. McMaster
ordered the nine-member Santee Cooper board to hand over the audit
under the threat of termination.
"We're not in a fight with the governor's office," Santee Cooper
board chairman Leighton Lord said on Sept. 4. "We're not going to
defy the governor on this."
Santee Cooper also sent the audit to House Speaker Jay Lucas and
Senate President Hugh Leatherman, who established the two
legislative committees to investigate the nuclear failure that has
saddled South Carolina with a financial crisis.
Santee Cooper's attorney advocated against releasing the document,
warning that it could make it more difficult to defend against
class-action lawsuits that have already been filed on behalf of
electric customers. The utility's attorney suggested a judge
should handle the matter.
But Mr. Lord and the rest of the Santee Cooper board shared the
document with lawmakers on Sept. 3, a move that SCANA opposed.
In a letter to Gov. McMaster, an attorney for SCANA argued that
sharing the document could jeopardize "billions of dollars in
damages" that Santee Cooper and SCANA are seeking to collect from
Westinghouse, the lead contractor on the project that filed for
bankruptcy in March.
The investor-owned utility also said that Santee Cooper has "no
authority" to unilaterally release the document, and that if the
report was released to the governor and other lawmakers, it had to
remain legally-privileged information.
That didn't happen.
The timing of the report raises serious questions for SCANA and
Santee Cooper. Less than a year after Bechtel's findings were
completed, the two utilities signed a fixed-price contract with
Westinghouse -- a deal the bankrupt company can no longer fulfill.
By early 2016, the total estimated cost for the two reactors had
increased by billions of dollars and the completion dates for the
first reactor had been pushed back from 2016 to 2020. The
partnering utilities still had not received a legitimate
construction schedule that had been promised since 2009.
The audit raised other warnings, too. Bechtel's staff pointed out
that parts for the reactors were delivered to V.C. Summer years
before they were needed, and some of those expensive components
were possibly at risk of being ruined.
They also highlighted a serious morale problem with the welders,
electricians and engineers working at the site. Those workers
told the Post and Courier that most of the laborers at site were
troubled by the chaos and mismanagement at V.C. Summer for years.
According to the audit, there was more than a 17 percent turnover
in the engineering and management staff at V.C. Summer during the
time that Bechtel employees were on site. Bechtel described this
as "high for a typical nuclear project."
Internal Santee Cooper documents from that time showed that only
0.3 percent of the reactors were being built every month. That
was not nearly enough progress to get the power plants completed
by the end of 2020, when federal tax credits are set to run out.
The engineering documents delivered by Westinghouse, the audit
said, needed hundreds of changes made on site every month in order
to work.
The modular design that Westinghouse successfully pitched to SCANA
and Santee Cooper was one of the biggest impediments to the
project, the audit said.
"While a great idea in theory, their use so far has been a
detriment to the project progress and consequently the budget,"
the report said of the pre-fabricated parts.
"This was a complex project," Mr. Lord said. "It was hard to know
what Westinghouse was doing everyday without real experts working
with them."
After the report was finalized, Santee Cooper reportedly floated
the idea of hiring a third-party construction manager to oversee
the project as it continued.
But SCANA, which held "primary responsibility" in overseeing the
reactors's construction, rejected that proposal. [GN]
SHORETEL INC: Faces Investor Class Action Over Mitel Buyout Deal
----------------------------------------------------------------
Rebekah Carter, writing for Commstrade, reports that there could
be trouble in paradise for the emerging ShoreTel buyout. Recent
news revealed that an investor in ShoreTel Inc. launched a
proposed class action suit against the telecoms business in
federal court, claiming that they had failed to provide all the
information required in their regulatory filings for the Mitel
$530 million buyout.
The shareholder, Louis Scarantino, is arguing against the
solicitation statement that ShoreTel prepared for their upcoming
Mitel takeover, which was filed with the Securities and Exchange
Commission. According to Louis, the telecoms brand failed to
fully include financial metrics necessary for the buyout to take
place.
The Lawsuit
According to the information revealed about the potential suit,
the solicitation statement prepared by ShoreTel doesn't offer up
the complete "material information" necessary for the proposed
Mitel transaction. Because ShoreTel allegedly omitted information
from their report, the deal could be problematic, if the statement
is found to be misleading.
Apparently, the omitted information relates to line item
projections that would generally be used to calculate metrics like
adjusted earnings before interest, gross margin, taxes, and cash
flow between the years of 2018 and 2020. Additionally, the
documents that ShoreTel have filed allegedly miss out comparable
GAAP measures for the years between 2021 and 2027.
The class action suit also outlines that ShoreTel's statement is
missing J.P Morgan's transaction analysis, which would include
information about sum-of-parts analysis, and cash flow too.
Growing Concerns for ShoreTel
Up until now, the potential buyout for ShoreTel seemed to be a
fantastic deal -- and something that could give Mitel the power to
truly compete in the UC space. Unfortunately, problems seem to
keep arising that could render the purchase impossible.
Louis Scarantino isn't the only ShoreTel shareholder to launch a
complaint from a legal perspective. Another investor, Noradura
Frydman, recently filed a proposed class action suit too, stating
that the $7.50 per share offer for ShoreTel shares was too low.
Apparently, the suit outlines that J.P Morgan's analysis suggested
that the implied present value of the company was around $10 per
share. Frydman is also arguing that the deal protections implicit
in the Mitel merger agreement would stop a better deal from coming
along.
So, What Now?
The latest complications are sure to slow down the momentum of the
Mitel and ShoreTel deal. Mitel originally offered to buy out
ShoreTel for $7.50 per share in an attempt to support their cloud
strategy, and present themselves as a UCaaS competitor. ShoreTel
would allow Mitel to achieve UCaaS revenues of somewhere around
$263 million, as well as combined sales of up to $1.3 billion.
Allegedly, ShoreTel is refusing to comment on the struggles that
may lay ahead. The initial case, for those who want to follow it,
is "Louis Scarantino v. ShoreTel Inc. et al". The case will be
held in the United States District Court in Northern California.
[GN]
SPOKEO INC: To Defend FCRA Class Action in District Court
---------------------------------------------------------
Amanda Bronstad, writing for The Recorder, reports that circuit
courts across the country have grappled with the U.S. Supreme
Court's decision on standing last year in Spokeo v. Robins,
granting both sides some victories and setbacks here and there.
But on Aug. 15 before the U.S. Court of Appeals for the Ninth
Circuit, the plaintiffs hit a home run.
Last year, the Supreme Court ruled in Spokeo that a plaintiff must
show more than a mere procedural violation to establish standing
to sue in federal courts. Rather, the court held, a plaintiff
must allege an injury that is "particularized" and "concrete."
The court said the plaintiff in the case,
Thomas Robins, had established injuries particular to him when he
claimed the online "people search" website Spokeo published
inaccurate information about him. But it remanded the case to the
U.S. Court of Appeals for the Ninth Circuit to conduct a more
thorough analysis over whether his claimed injury was "concrete."
On Aug. 15, the Ninth Circuit found that he had made a showing of
concrete harm.
"It does not take much imagination to understand how inaccurate
reports on such a broad range of material facts about Robins's
life could be deemed a real harm," wrote Diarmuid O'Scannlain.
"Ensuring the accuracy of this sort of information thus seems
directly and substantially related to FCRA's goals."
William Consovoy -- will@consovoymccarthy.com -- a partner at
Consovoy McCarthy Park in Arlington, Virginia, who argued for the
plaintiffs, referred requests for comment to Jay Edelson, of
Edelson PC in Chicago.
"We believe the Ninth Circuit issued what will be seen as the
definitive decision articulating Article III standing in the wake
of the Supreme Court's ruling," Mr. Edelson wrote in an emailed
statement. "The Court firmly rejected the 'something more'
doctrine that Spokeo has been pushing for years. As the court
explained, litigants need not show 'additional injury' beyond what
Congress has articulated."
Andrew Pincus, a Washington, D.C., partner at Mayer Brown, argued
for Spokeo.
Spokeo didn't say whether it would seek a rehearing before the
Ninth Circuit or, if need be, petition the U.S. Supreme Court
again. In a press statement, Spokeo said the "case will now
return to the district court, where Spokeo will . . . vigorously
defend the merits."
It was a big win for plaintiffs who file class actions, which are
often brought over violations of statutes such as the U.S. Fair
Credit Reporting Act, the statute at issue in Spokeo. The defense
bar, which has heralded the Supreme Court's holding as a win, has
accused plaintiffs lawyers of bombarding the courts with cases
where there are no concrete injuries.
The Aug. 15 ruling, which was joined by Ninth Circuit Judges Susan
Graber and Carlos Bea, raises the prospects that the case could go
back to the Supreme Court, particularly since circuit courts have
struggled with how to define concrete injuries.
Both sides on remand in Spokeo cited the numerous circuit
decisions in support of their arguments.
The Ninth Circuit on Aug. 15 appeared persuaded by the U.S. Court
of Appeals for the Second Circuit's decision last year in Strubel
v. Comenity Bank. In that case, the Second Circuit ruled that a
plaintiff who had opened a Victoria's Secret credit card had
standing to sue the issuing bank over two violations under the
Truth in Lending Act because she could have been harmed in being
uninformed about her credit. The panel also turned to the U.S.
Court of Appeals for the Third Circuit's Jan. 20 decision in In
re: Horizon Healthcare Services Data Breach Litigation, which
revived a data breach class action after concluding that the
plaintiffs' personal information was a "cognizable injury" that
established standing.
In Spokeo, Mr. Robins claimed the inaccurate information about him
hurt his job prospects. A district judge dismissed the class
action, but the Ninth Circuit reversed in 2014.
Taking up the case again, the panel on Aug. 15 focused on a
portion of the Supreme Court's holding on which many plaintiffs
have relied that found a "concrete" injury needn't be tangible so
long as it relied on a harm that Congress recognized or bore a
"close relationship" to a harm recognized in English or U.S.
courts, such as libel or slander claims.
"We recognize, of course, that there are differences between the
harms that FCRA protects against and those at issue in common-law
causes of action like defamation or libel per se," Mr. O'Scannlain
wrote. But the "relevant point is that Congress has chosen to
protect against a harm that is at least closely similar in kind to
others that have traditionally served as the basis for lawsuit."
[GN]
STATE FARM: Court Approves Narrowed Class Definition in "Durant"
----------------------------------------------------------------
In the case captioned BRETT DURANT, On Behalf of Himself and all
other similarly situated, Plaintiff, v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, a foreign automobile insurance
company, Defendant, Case No. 2-15-CV-01710-RAJ (), Judge Richard
A. Jones of the U.S. District Court for the Western District of
Washington, Seattle, granted the parties' stipulation reagrding
class definition.
On March 9, 2017, the Court issued its Order granting the
Plaintiff's Motion for Class Certification based on the class
definition contained in the Plaintiff's Complaint filed in the
action. On July 10, 2017, it issued its Order denying State
Farm's Motion for Reconsideration of the Court's Order granting
class certification. In its July 10 Order, the Court instructed
the parties to file a stipulation containing any agreed upon
narrower language for the class definition within 45 days of the
date of the July 10 Order.
The parties have met and conferred in response to the Court's
instruction.
They agree and Judge Jones approved that the class definition
should be narrowed to include only the following members: State
Farm insureds in the state of Washington who, from April 19, 2008
to the present, had a Personal Injury Protection claim for medical
or hospital benefits denied, terminated or limited by State Farm
on the grounds that they had reached Maximum Medical Improvement,
using an Explanation of Review form referencing Reason Codes SF546
or SF537.
The parties further agree that State Farm does not waive, and
expressly reserves, its rights to contest and appeal any orders
relating to class certification in the action.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/hnLHNF from Leagle.com.
Brett Durant, Plaintiff, represented by Tyler K. Firkins --
tfirkins@vansiclen.com -- VAN SICLEN STOCKS & FIRKINS.
Brett Durant, Plaintiff, represented by David A. Nauheim --
david@nauheimlaw.com -- NAUHEIM LAW OFFICE.
State Farm Mutual Automobile Insurance Company, Defendant,
represented by David Dworsky -- ddworsky@sheppardmullin.com --
SHEPPARD
MULLIN RICHTER & HAMPTON, pro hac vice, Frank Falzetta --
ffalzetta@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON,
pro hac vice, Gregory S. Worden --
Gregory.Worden@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD &
SMITH LLP, Jennifer M. Hoffman -- jhoffman@sheppardmullin.com --
SHEPPARD MULLIN RICHTER & HAMPTON, pro hac vice & Laura Hawes
Young -- Laura.Young@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD
& SMITH LLP.
STURM FOODS: Court Denies Bid to Decertify Class in "Suchanek"
--------------------------------------------------------------
The United States District Court for the Southern District of
Illinois issued a Memorandum and Order denying both Plaintiff's
and Defendant's Motion to Exclude Expert Witnesses testimonies and
Defendant's Motion for Class Decertification in the case captioned
LINDA SUCHANEK, RICHARD MCMANUS, CAROL CARR, PAULA GLADSTONE, EDNA
AVAKIAN, CHARLES CARDILLO, BEN CAPPS, DEBORAH DIBENEDETTO, and
CAROL RITCHIE, Plaintiffs, v. STURM FOODS, INC. and TREEHOUSE
FOODS, INC., Defendants, Case No. 11-CV-565-NJR-RJD (S.D. Ill.).
This matter is currently before the Court on (1) a motion filed by
Defendants to exclude the expert testimony of Candace Preston
regarding damages pursuant to Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702
(2) a motion filed by Plaintiffs to exclude the expert testimony
of Jeffrey Andrien pursuant to Daubert and Rule 702
(3) a motion for decertification of the class filed by Defendants.
With respect to predominance, the Court found, in pertinent part,
that damages were susceptible to measurement on a class-wide basis
using the Retail Damages and Price Premium Damages models
presented by Plaintiffs' expert Candace Preston. This finding is
now the subject of Defendants' motion to decertify.
The admissibility of expert testimony is governed by Federal Rule
of Evidence 702 and the Supreme Court's opinion in Daubert.
This requires the district court to ensure the following before
admitting expert testimony: First, the expert must be qualified by
knowledge, skill, experience, training, or education; second, the
proposed expert testimony must assist the trier of fact in
determining a relevant fact at issue in the case; third, the
expert's testimony must be based on sufficient facts or data and
reliable principles and methods; and fourth, the expert must have
reliably applied the principles and methods to the facts of the
case.
To determine the average retail price that class members paid for
GSC, Candace Preston obtained data from Information Resources,
Inc. (IRI) for retail sales of GSC in the relevant eight states.
From that data, Preston determined that the average retail price
paid by consumers for GSC in the relevant states was approximately
$0.45 per cup. Defendants have no objection to Preston's
methodology for determining the average retail price of GSC or the
$0.45 figure generated using that methodology.
Preston identified 23 instant coffee products as comparable
products and determined that the average price per cup for those
products was approximately $0.06. Thus, she determined that class
members paid a price premium of approximately $0.38 per serving of
GSC. The price premium, multiplied by the number of units sold,
amounts to a total of $5.415 million in damages.
Andrien opined that the price premium model is the appropriate
method for quantifying damages, not the full refund model. Andrien
also believes, however, that Preston's application of the price
premium methodology is fatally flawed. In pertinent part, Andrien
believes Preston should have used instant and microground coffee
products as comparables instead of instant-only products and that
she should have accounted for the value of single-serve packaging.
Andrien determined that two of the products used by Preston as
comparable Nescafe and Folgers cost approximately $0.10 more when
it is packaged in single-serving packet than when it is packaged
in jars in bulk. Andrien further determined that ground coffee
costs approximately $0.47 more on average when it is packaged in
k-cups than when it is packaged in bulk, tea costs approximately
$0.52 more on average, and other non-coffee products that do not
require a filter to prepare (such as hot chocolate and cappuccino)
cost $0.50 more on average.
Thus, the premiums associated with k-cup packaging are between
$0.47 and $0.52, which is higher than the $0.45 average retail
price of GSC as calculated by Preston. Based on that, Andrien
extrapolated that the actual value of GSC is greater than what
consumers paid for it.
Defendants challenge the reliability of Preston's Retail Damages
Model and her Price Premium Model. The Court analyzes the merits
of Defendants' arguments as to each model in detail in the
discussion that follows, but in short, the Court finds them each
unconvincing. The Court has no doubt that Preston could have done
more, and certain aspects of her methodology may be vulnerable on
cross-examination, but Defendants have not given the Court any
reason to believe that her damages models are so patently
unreliable that they are inadmissible under Rule 702 and Daubert.
Plaintiffs argue that Andrien's analysis is unreliable for the
following five reasons: (1) it ignores that Defendants abandoned
their project to develop a product to directly compete with VIA;
(2) it is premised on the unsubstantiated belief that the VIA
products were similar in composition to GSC; (3) Andrien did not
read and was unaware of the legal rulings, factual findings, and
evidentiary record in this case; (4) two of Andrien's comparator
products were not available during the class period; and (5) it
leads to absurd conclusions.
A couple of these arguments, if thoroughly developed and properly
supported, potentially have merit. But in their current state,
they are simply too cursory to justify striking any portion of
Andrien's testimony.
As for Andrien's unfamiliarity with the evidence regarding the
public's response to GSC, the Court agrees that this is indeed
problematic for him. But it's a problem of credibility, not
admissibility. By opining that the actual value of GSC is greater
than $0.45, Andrien is in essence saying that consumers would have
been willing to pay more for instant coffee in a k-cup than they
paid for ground coffee in a k-cup.
This suggestion seems comically inconsistent with the evidence
presented in this case so far and the realities of the coffee
market in the United States.11 But if that is the story that
Defendants want to present to the jury, it is their gamble to
make. Plaintiffs' counsel can certainly press Andrien about his
counterintuitive conclusion that GSC is worth more than its sale
price on cross-examination.
In sum, Plaintiffs have failed to convince the Court that Jeffrey
Andrien's opinions and analysis are so unreliable that they are
inadmissible under Daubert and Rule 702. Consequently, Plaintiffs'
motion to exclude Andrien's testimony is denied.
As an initial matter, the Court notes that even if Defendants
succeed in showing that neither of Candace Preston's damages
models meets the requirements of Comcast, and Plaintiffs are left
without a way to measure damages on a class-wide basis,
decertification is still not required. It is well-established that
the need for individual assessments regarding reliance/causation
and damages does not preclude class certification entirely; the
Court still has the discretion to certify the case on the issues
that are common to the class, particularly the issue of deception.
For these reasons, Defendants' Motion to Exclude the Expert
Testimony of Candace Preston Regarding Damages is denied.
Defendants' Motion to Decertify the Class is denied. Plaintiffs'
Motion to Exclude the Expert Testimony of Jeffrey Andrien is
denied.
A full-text copy of the District Court's August 28, 2017
Memorandum and Order is available at http://tinyurl.com/y9c2wd56
from Leagle.com.
Linda Suchanek, Plaintiff, represented by Randy L. Gori --
randy@gorijulianlaw.com -- Gori Julian and Associates P.C..
Linda Suchanek, Plaintiff, represented by Chelsea Lauren Fischer
-- cfischer@gorijulianlaw.com -- Gori Julian and Associates P.C.,
D. Todd Mathews -- todd@gorijulianlaw.com -- Gori, Julian &
Associates, PC, David Michael Rosenberg-Wohl -- david@hrw-law.com
-- Hershenson Rosenberg-Wohl,, Megan Myers Arvola, Gori --
mmyers@gorijulianlaw.com -- Julian & Associates, PC & Peter H.
Burke pbourke@burkeharvey.com -- Burke Harvey LLC.
Richard McManus, Plaintiff, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, Joseph Allen Schreiber, Burke Harvey LLC, Peter H.
Burke, Burke Harvey LLC & W. Todd Harvey, Burke Harvey LLC.
Carol Carr, Plaintiff, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, & Peter H. Burke, Burke Harvey LLC.
Paula Gladstone, Plaintiff, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, Michael H. Maizes, Maizes & Maizes LLP & Peter H.
Burke, Burke Harvey LLC.
Edna Avakian, Plaintiff, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, Joseph Allen Schreiber, Burke Harvey LLC & Peter
H. Burke, Burke Harvey LLC.
Charles Cardillo, Plaintiff, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, Joseph Allen Schreiber, Burke Harvey LLC & Peter
H. Burke, Burke Harvey LLC.
Ben Capps, Plaintiff, represented by D. Todd Mathews, Gori, Julian
& Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, Joseph Allen Schreiber, Burke Harvey LLC & Peter
H. Burke, Burke Harvey LLC.
Deborah Dibenedetto, Plaintiff, represented by D. Todd Mathews,
Gori, Julian & Associates, PC, David Michael Rosenberg-Wohl,
Hershenson Rosenberg-Wohl, Joseph Allen Schreiber, Burke Harvey
LLC & Peter H. Burke, Burke Harvey LLC.
Carol J. Ritchie, Plaintiff, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, Joseph Allen Schreiber, Burke Harvey LLC & Peter
H. Burke, Burke Harvey LLC.
Sturm Foods, Inc., Defendant, represented by Aaron J. Weinzierl,
Foley & Lardner, Craig S. Fochler -- cfockler@foley.com -- Foley &
Lardner, Jaclyne D. Wallace -- jwallace@foley.com -- Foley &
Lardner, Patrick G. Walker -- pwalker@farris-law.com -- Farris
Bobango Branan, PLC & Richard Spencer Montei -- rmontei@folwy.com
-- Foley & Lardner.
Treehouse Foods, Inc., Defendant, represented by Aaron J.
Weinzierl, Foley & Lardner, Craig S. Fochler, Foley & Lardner,
Jaclyne D. Wallace, Foley & Lardner & Richard Spencer Montei,
Foley & Lardner.
SUPER MERCADO: Denied "Hernandez" Overtime Pay for Hours Over 40
----------------------------------------------------------------
Carlos Hernandez and Brisa Rojas-Salazar, individually and on
behalf of all those similarly situated, Plaintiffs, v. Super
Mercado Jalisco, Inc., Super Mercado Jalisco II, Inc., Super
Mercado Jalisco #3, Inc., Super Mercado Jalisco #4 Inc., Super
Mercado Jalisco #6, Inc., Super Mercado Jalisco #7, Inc., Jose
Luis Covarrubias, Sebastian Covarrubias, Rocio Covarrubias and
Maria Pelayo, jointly and severally, Defendants, Case No. 1:17-cv-
03162 (N.D. Ga., August 21, 2017) seeks to recover unpaid overtime
premium compensation, liquidated damages, attorney's fees, and
costs and disbursements of the action pursuant to the Fair Labor
Standards Act.
Defendants operate a supermarket chain called Super Mercado
Jalisco. Super Mercado Jalisco has six stores throughout the metro
Atlanta area. Plaintiffs worked for Super Mercado Jalisco in
multiple locations during their employment. Plaintiffs worked for
Super Mercado Jalisco as cooks, cashiers, and general laborers.
They claim to be paid straight-time for all hours worked, despite
working in excess of 40 hours per week throughout their
employment. [BN]
Plaintiff is represented by:
Brandon A. Thomas, Esq.
THE LAW OFFICES OF BRANDON A. THOMAS, PC
1800 Peachtree Street, N.W., Suite 300
Atlanta, GA 30309
Tel: (404) 343-2441
Fax: (404) 352-5636
Email: brandon@brandonthomaslaw.com
SUPERVALU INC: Court Flips Dismissal of Holmes Data Breach Suit
---------------------------------------------------------------
In the case captioned In re: SuperValu, Inc., Customer Data
Security Breach Litigation. Melissa Alleruzzo; Heidi Bell; Rifet
Bosnjak; John Gross; Kenneth Hanff; David Holmes; Steve McPeak;
Gary Mertz; Katherin Murray; Christopher Nelson; Carol Puckett;
Alyssa Rocke; Timothy Roldan; Ivanka Soldan; Melissa Thompkins;
Darla Young, Plaintiffs-Appellants, v. SuperValu, Inc.; AB
Acquisition, LLC; New Albertsons, Inc., Defendants-Appellees,
Electronic Privacy Information Center Amicus on Behalf of
Appellant(s), In re: SuperValu, Inc., Customer Data Security
Breach Litigation Melissa Alleruzzo; Heidi Bell; Rifet Bosnjak;
John Gross; Kenneth Hanff; David Holmes; Steve McPeak; Gary Mertz;
Katherin Murray; Christopher Nelson; Carol Puckett; Alyssa Rocke;
Timothy Roldan; Ivanka Soldan; Melissa Thompkins; Darla Young,
Plaintiffs-Appellees, v. SuperValu, Inc.; AB Acquisition, LLC; New
Albertsons, Inc., Defendants-Appellants, Nos. 16-2378, 16-2528
(8th Cir.), Judge Jane L. Kelly of the U.S. Court of Appeals for
the Eighth Circuit affirmed in part, reversed in part the district
court's dismissal of the Plaintiffs' consolidated complaint.
Plaintiffs are sixteen customers who purchased goods from the
Defendants' grocery stores in Missouri, Illinois, Maryland,
Pennsylvania, Delaware, Idaho, and New Jersey using credit or
debit cards during the period between June and September 2014.
From June 22, 2014, to July 17, 2014, cyber criminals accessed the
computer network that processes payment card transactions for
1,045 of defendants' stores. The hackers installed malicious
software on defendants' network that allowed them to gain access
to the payment card information of defendants' customers
(hereinafter, Card Information), including their names, credit or
debit card account numbers, expiration dates, card verification
value (CVV) codes, and personal identification numbers (PINs). By
harvesting the data on the network, the hackers stole customers'
Card Information.
On Aug. 14, 2014, the Defendants issued a press release notifying
customers of the computer intrusion at their stores. They also
announced that they were conducting an on-going investigation into
the incident, which might uncover additional time frames,
locations and/or at-risk data exposed in the intrusion.
On Sept. 29, 2014, the Defendants announced a second data breach
that took place in late August or early September 2014. Although
their release states that the second intrusion was separate from
the one announced on Aug. 14, 2014, the Plaintiffs dispute this
contention in their complaint, alleging that the two breaches were
related and stemmed from the same security failures.
According to the complaint, hackers gained access to the
Defendants' network because the Defendants failed to take adequate
measures to protect customers' Card Information. The Defendants
used default or easily guessed passwords, failed to lock out users
after several failed login attempts, and did not segregate access
to different parts of the network or use firewalls to protect Card
Information. By not implementing these measures, the Defendants
ran afoul of best practices and industry standards for merchants
who accept customer payments via credit or debit card. Moreover,
the Defendants were on notice of the risk of consumer data theft
because similar security flaws had been exploited in recent data
breaches targeting other national retailers.
As a result of the breaches, the Plaintiffs' Card Information was
allegedly stolen, subjecting them to an imminent and real
possibility of identity theft. Customers allegedly affected by
the breaches filed putative class actions in several district
courts. The Judicial Panel on Multidistrict Litigation
transferred the related actions to the U.S. District Court for the
District of Minnesota for coordinated or consolidated pretrial
proceedings. Pursuant to the district court's order, the
Plaintiffs filed a consolidated amended complaint on June 26,
2015, with 16 the Named Plaintiffs bringing claims on behalf of a
putative class of persons affected by the Defendants' data
breaches. Each of the s16 Plaintiffs shopped at the Defendants'
affected stores using a credit or debit card, and their Card
Information was allegedly compromised in the data breaches.
The complaint states six claims for relief for: (i) violations of
state consumer protection statutes, (ii) violations of state data
breach notification statutes, (iii) negligence, (iv) breach of
implied contract, (v) negligence per se, and (vi) unjust
enrichment.
The Defendants moved to dismiss the complaint under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) which the district court
granted without prejudice, finding that none of the Plaintiffs had
alleged an injury-in-fact and thus they did not have standing.
The court did not address the Defendants' arguments for dismissal
under Rule 12(b)(6). The Plaintiffs appeal the district court's
dismissal, and the Defendants cross-appeal, arguing that the
complaint was alternatively subject to dismissal with prejudice
under Rule 12(b)(6).
Although she concludes that the complaint does not sufficiently
allege a substantial risk of future identity theft, Judge Kelly
nonetheless finds that the Court has subject matter jurisdiction
over this action because Plaintiff Holmes has alleged facts giving
rise to standing.
Because the Plaintiffs have not alleged a substantial risk of
future identity theft, the time they spent protecting themselves
against this speculative threat cannot create an injury.
Accordingly, the Judge concludes that the complaint has not
sufficiently alleged a substantial risk of identity theft, and the
Plaintiffs' allegations of future injury do not support standing
in this case.
Because the complaint contains sufficient allegations to
demonstrate that Holmes suffered an injury in fact, fairly
traceable to the Defendants' security practices, and likely to be
redressed by a favorable judgment, Holmes has standing under
Article III's case or controversy requirement. Since one Named
Plaintiff has standing to bring suit, the district court erred in
dismissing the action for lack of subject matter jurisdiction.
For these reasons, Judge Kelly reversed the district court's
dismissal of Plaintiff Holmes for lack of Article III standing,
affirmed the dismissal as to the remaining Plaintiffs, and
remanded for further proceedings consistent with her Order.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/HAQTml from Leagle.com.
Karen Riebel -- khriebel@locklaw.com -- for Plaintiff-Appellant.
Marc Andre Al, for Defendant-Appellee.
John S. Steward -- Glaw123@aol.com -- for Plaintiff-Appellant.
Marc Rotenberg, for Amicus on Behalf of Appellant(s).
Stephen Paul Safranski -- SSafranski@RobinsKaplan.com -- for
Defendant-Appellee.
Christopher Joseph Quinn, for Plaintiff-Appellant.
Katherine Susan Barrett Wiik -- KBarrettWiik@RobinsKaplan.com --
for Defendant-Appellee.
Richard L. Coffman, for Plaintiff-Appellant.
John J. Driscoll, for Plaintiff-Appellant.
Rhett Anthony McSweeney -- ram@westrikeback.com -- for Plaintiff-
Appellant.
Aron Robinson, for Plaintiff-Appellant.
Ben Barnow -- b.barnow@barnowlaw.com -- for Plaintiff-Appellant.
Alan Jay Butler -- butler@epic.org -- for Amicus on Behalf of
Appellant(s).
Harvey J. Wolkoff -- Harvey.Wolkoff@ropesgray.com -- for
Defendant-Appellee.
Edwin J. Kilpela, Jr. -- ekilpela@carlsonlynch.com -- for
Plaintiff-Appellant.
David Langevin -- dave@WeStrikeBack.com -- for Plaintiff-
Appellant.
David Thomas Cohen -- David.Cohen@ropesgray.com -- for Defendant-
Appellee.
Sunil V. Shenoi -- Sunil.Shenoi@ropesgray.com -- for Defendant-
Appellee.
Christopher L. Ingram -- clingram@vorys.com -- for Defendant-
Appellee.
John L. Landolfi -- jllandolfi@vorys.com -- for Defendant-
Appellee.
Kathryn Elizabeth Wilhelm -- Kathryn.Wilhelm@ropesgray.com -- for
Defendant-Appellee.
Aimee Thomson, for Amicus on Behalf of Appellant(s).
SURFSTITCH GROUP: Gets Restructuring Proposals Amid Class Actions
-----------------------------------------------------------------
Sue Mitchell, writing for Australian Financial Review, reports
that barely a week after the collapse of embattled surf and skate
wear retailer SurfStitch Group, administrators have received a
proposal to restructure and relist the company -- an outcome that
would preserve some value for long-suffering shareholders.
The confidential proposal was received on Sept. 5 before the first
SurfStitch creditors meeting at the company's headquarters at
Burleigh Heads on the Gold Coast.
Administrator John Park, from FTI Consulting, said the proposal
was received from a party who had previously been "involved" with
SurfStitch.
However, he refused to say if it had come from co-founder and
former chief executive Justin Cameron.
"It was submitted on a private and confidential basis at this
stage," Mr Park told journalists.
"All I can say is I have received one [deed of company arrangement
proposal] in a draft format," he said. "It is a proposal to see .
. . a relisting of the vehicle."
Mr Park said he expected to receive more restructuring proposals
and it was "not a given" that shareholders would be wiped out.
Mr Cameron resigned in March 2016 to purportedly pursue a private
equity-backed privatisation proposal, which never eventuated, and
has been keeping a watching brief on the business.
Right opportunity
Mr Cameron told The Australian Financial Review last November he
might attempt to privatise the online retailer if the right
opportunity arose.
"I'm still a significant shareholder in the company," Mr Cameron
said at the time. "Today I continue to maintain a watching brief
on the business and opportunities that may present themselves." He
could not be contacted on Sept. 5.
Crown Financial Group managing director Kim Sundell, who is
SurfStitch's largest creditor after the collapse last year of a
$20 million content deal, said he had been approached by two
parties interested in restructuring SurfStitch.
However, he did not believe the proposal received on Sept. 5 was
from Mr Cameron.
"I'm 90 per cent sure it's not from him, I don't think he'd have
the face to do something like that," Mr Sundell told the AFR on
Sept. 5.
"We were asked if we would compromise our debt and to be
shareholders in the post DOCA company," he said. "We'd consider it
but I'd need to see something more."
Other creditors of the holding company are Herbert Smith Freehills
and SurfStitch chief executive Mike Sonand, who stepped in after
Mr Cameron's departure.
Mr Cameron and co-founder Lex Peterson founded SurfStitch in 2007,
selling boardshorts out of Mr Cameron's garage in Sydney's
Northern Beaches.
The pair floated the company in December 2014, issuing shares at
$1. The stock reached $2.12 in November 2015, valuing the company
at more than $500 million or almost 50 times earnings, following a
spate of acquisitions.
Mr Cameron wanted SurfStitch to become the Amazon Prime of the
action sports world and use documentaries, interviews and surf
cams to engage customers.
Between December 2014 and December 2015, SurfStitch outlaid more
than $120 million in cash and shares on five acquisitions,
including $24 million for Surf Hardware International, $21 million
for Stab, an online surf content platform, and $15 million for
Garage Entertainment, which made action-sports films and videos.
The wheels started to fall off in February 2016, when Mr Cameron,
a former investment banker, backed away from full-year guidance,
saying the company wanted flexibility to invest in content to
drive sales.
Class-action lawsuits
In June 2016, SurfStitch reversed a $20 million content
transaction with Crown Financial Group, leading to an $18.8
million underlying loss. SurfStitch shares plunged 50 per cent to
18.5õ and continued to lose ground, closing at 6.8 cents before
the stock was suspended in May.
SurfStitch was embroiled in legal action with Crown over the
failed content deal and also faced class-action lawsuits from
Quinn Emmanuel and Gadens.
It bought itself breathing space from creditors by appointing John
Park, Quentin Olde and Joseph Hansell of FTI Consulting as
administrators.
SurfStitch chairman Sam Weiss said the appointments were necessary
due to the shareholder class actions, the protracted litigation
with Crown, which is also the largest shareholder, and an ASIC
investigation.
Mr Park said legal proceedings against the parent companies were
stayed following the appointments and the administrators had been
in initial contact with the litigation funders behind the class
actions.
"I can't tell you how they're thinking but I suspect they've gone
from the position where they had proceedings against an ASX-listed
vehicle to a company that's now subject to the provisions of a
voluntary administration restructure,' he said.
"They'll be looking for a palatable commercial outcome."
Mr Park expects to submit his report and restructure proposals in
four to six weeks. [GN]
TAMPA BAY: Court Dismisses "Stapleton" Suit Without Prejudice
-------------------------------------------------------------
Judge James S. Moody, Jr., of the District Court for the Middle
District of Florida, Tampa Division, dismissed without prejudice
the case captioned JANIE STAPLETON, on her own behalf and on
behalf of her minor child, C.P., DAVID PACKEN, on his own behalf
and on behalf of his minor child, D.J., and CARMELO ALVAREZ, JR.
on his own behalf and on behalf of his minor child, K.R.A.,
Plaintiffs, v. TAMPA BAY SURGERY CENTER, INC., Defendant, Case No.
8:17-cv-1540-T-30AEP (M.D. Fla.).
C.P., D.J., and K.R.A. are minor children who were patients at
TBSCI. As patients, the children's parents were required to
provide information to TBSCI, including the children's names,
dates of birth, home addresses, and social security numbers.
TBSCI stored this Sensitive Information electronically in a
patient database.
In May 2017, a hacker breached TBSCI's database and published
C.P., D.J., and K.R.A.'s Sensitive Information on a public file-
sharing website, along with the Sensitive Information of more than
142,000 other TBSCI patients. The Plaintiffs do not allege that
any of the Sensitive Information has been used. Instead, they
allege they are at an increased risk of having their identity
stolen and are compelled to incur the costs of credit
monitoring/identity theft protection. At least one Plaintiff,
C.P.'s mother Janice Stapleton, purchased identity theft
protection.
TBSCI admits that the data breach occurred and that the Sensitive
Information was briefly posted online before being removed. After
the data breach, TBSCI provided free identity protection services
to the Plaintiffs and other potentially affected patients. The
identity theft protection services TBSCI provided locks the
affected patient's credit file to prevent access and sends an
alert if someone attempts to use the patient's information to open
a new line of credit.
In June 2017, the Plaintiffs sued TBSCI in a putative class action
suit for negligence, breach of fiduciary duty, and invasion of
privacy, all under Florida law. TBSCI now moves to dismiss
arguing the Court has no jurisdiction because the Plaintiffs lack
standing.
Judge Moody concludes that the Plaintiffs' allegations of harm are
too speculative to constitute an imminent injury. While they
argue that the mere fact that there was data breach is sufficient
to constitute an imminent injury, the Judge cannot agree with that
sort of ipse dixit reasoning. Something more than the mere data
breach must be alleged before the Plaintiffs can show they have a
substantial risk of injury. Lacking any allegations that would
show any harm is certainly impending, the Plaintiffs failed to
demonstrate standing, and the Court lacks jurisdiction over their
claims.
Accordingly, he granted the Defendant's Motion to Dismiss
Plaintiffs' First Amended Class Action Complaint. The Amended
Complaint is dismissed without prejudice. The Plaintiffs have 30
days to file an amended complaint that alleges an injury in fact
if they are able to do so. Failure to file an amended complaint
within 30 days will result in the case being closed without
further notice. The Judge denied without prejudice as moot the
Plaintiffs' Motion for Class Certification.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/80peix from Leagle.com.
Janie Stapleton, Plaintiff, represented by Jason M. Melton,
Whittel & Melton.
Janie Stapleton, Plaintiff, represented by Jay P. Lechner --
lechnerj@theFLlawfirm.com -- Whittel & Melton.
C. P. David Packen, Plaintiff, represented by Jason M. Melton,
Whittel & Melton & Jay P. Lechner, Whittel & Melton.
Carmelo Alvarez, Jr., Plaintiff, represented by Jason M. Melton,
Whittel & Melton & Jay P. Lechner, Whittel & Melton.
Tampa Bay Surgery Center, Inc., Defendant, represented by Anthony
J. Palermo -- Anthony.Palermo@hklaw.com --, Holland & Knight, LLP,
Jason H. Baruch -- Jason.Baruch@hklaw.com -- Holland & Knight,
LLP, Joseph H. Varner, III -- joe.varner@hklaw.com -- Holland &
Knight, LLP & Scott T. Lashway -- Scott.Lashway@hklaw.com --
Holland & Knight, LLP, pro hac vice.
TITANIUM CONSTRUCTION: Loses Bid to Decertify "Gucciardo" Class
---------------------------------------------------------------
In the case captioned CHARLES GUCCIARDO, Plaintiff, v. TITANIUM
CONSTRUCTION SERVICES, INC., et al., Defendants, No. 16 Civ. 1113
(LGS)(S.D. N.Y.), Judge Lorna G. Schofield of the U.S. District
Court for the Southern District of New York granted the
Plaintiff's motions to certify the class and to appoint Virginia &
Ambinder, LLP, as the class counsel; denied as moot the
Defendants' motion to decertify the conditionally certified class;
and denied the Defendants' request for costs.
On Feb. 12, 2016, the Plaintiffs filed their Complaint, asserting
claims under the Fair Labor Standards Act ("FLSA") and New York
Labor Law ("NYLL"). The Complaint specifically alleges that the
Defendants have a policy and/or plan to violate FLSA and NYLL,
which involves "willfully" and "purposefully" "failing to maintain
proper and complete timesheets and payroll records." The
Complaint further alleges that the Defendants violated FLSA and
NYLL by paying employees by check for hours worked up to 40 hours
per week, and by cash for hours worked above 40 hours per week, at
the employees' regular hourly wage rate.
On June 7, 2016, then-Named Plaintiffs Samaniego and Gucciardo
moved for conditional certification of the FLSA collective, which
the Court granted on Sept. 1, 2016. The Plaintiffs' counsel filed
consent to join forms on behalf of the seven Opt-In Plaintiffs.
On Nov. 22, 2016, then-Named Plaintiffs filed a letter requesting
a pre-motion conference regarding their intended motion for Rule
23 class certification. The Defendants then filed a letter, in
which they stated their intention to oppose the motion on the
ground that the then-Named Plaintiffs Samaniego and Gucciardo were
inadequate class representatives. On Dec.6, 2016, at the
conference, the Court suggested that it likely would find
Samaniego and Gucciardo to be inadequate representatives and not
certify the class, and recommended that Samaniego and Gucciardo be
replaced with "more suitable" individuals from among the Opt-In
Plaintiffs. Although the Court stated that it would consider the
class certification motion, it suggested that the Complaint be
amended to substitute Samaniego and Gucciardo as the Named
Plaintiffs, and cautioned that leave to amend would not be granted
again.
On Jan. 31, 2017, the counsel filed a motion to amend the
Complaint to remove Samaniego as the Named Plaintiff, leaving
Gucciardo as the sole Named Plaintiff. The motion also seeks
class certification under Rule 23 for the NYLL claims. In their
Reply, the then-Named Plaintiffs withdrew the consent to join
forms of all of the three remaining Opt-In Plaintiffs who had not
already withdrawn. The motion for leave to amend the Complaint
was granted, and an Amended Complaint naming Charles Gucciardo as
the sole Named Plaintiff, was filed on Aug. 15, 2017. The motion
to certify the class accordingly is construed as being brought
solely by Gucciardo. The Defendants oppose class certification
and seek to have costs imposed on the Plaintiff.
Judge Schofield granted the Named Plaintiff's motion for class
certification because he has proven, by a preponderance of the
evidence, that Rule 23's requirements are met. The Plaintiff has
alleged, and proffered evidence, that construction workers
employed by Titanium were subject to a common, illegal, overtime
compensation policy. If Plaintiff prevails in showing the
existence of a common policy at trial, each of the individual
class members likely will prevail on their respective claims
against the Defendants, although their individualized damages will
vary.
Judge Schofield concludes that the superiority requirement also is
satisfied. The courts in the Second Circuit regularly find that
superiority is satisfied where, as here, potential class members
are aggrieved by the same policies, the damages suffered are small
relative to the expense and burden of individual litigation, and
some potential class members are currently employed by the
defendants. A class action also would have the benefit of
avoiding inconsistent results that could arise if each class
member were forced to litigate his or her claims separately.
The Defendants' motion to decertify the conditionally certified
class is denied as moot by the Judge because the Plaintiff has
withdrawn the consent to join forms of all the Opt-In Plaintiffs.
Further, the Defendants cite no legal authority to support their
request for the imposition of costs on the Plaintiffs, and may not
move for costs in a sur-reply. Their motion for costs is denied.
The Judge appointed the Plaintiff's counsel, Virginia & Ambinder,
LLP, to serve as the class counsel. Plaintiff's counsel is
responsible for identifying and investigating the claims in this
action and attest that they will commit the necessary resources to
the lawsuit.
For the reasons stated, Judge Schofield ordered that the Plaintiff
is appointed the class representative to sue on behalf of a class
of all nonexempt persons who performed construction work and all
work incidental thereto, including general labor, carpentry,
taping, framing, cleaning and maintenance for Defendants between
Feb. 12, 2010, and July 14, 2017. She approved the proposed
Notice and manner of notice, as modified by the Court. She
directed the Clerk of Court to close the motions at Docket Nos. 70
and 91.
A full-text copy of the Court's Aug. 30, 2017 Amended Opinion and
Order is available at https://is.gd/785ycS from Leagle.com.
Charles Gucciardo, Plaintiff, represented by Lloyd Robert Ambinder
-- lambinder@vandallp.com -- Virginia & Ambinder, LLP.
Charles Gucciardo, Plaintiff, represented by Alison Lee Genova --
agenova@vandallp.com -- Virginia & Ambinder, LLP.
Titanium Construction Services, Inc., Defendant, represented by
Brett Reed Gallaway -- bgallaway@mclaughlinstern.com -- McLaughlin
and Stern, LLP, Lee Scott Shalov -- lshalov@mclaughlinstern.com --
McLaughlin and Stern, LLP & Ralph R. Hochberg --
rhochberg@mclaughlinstern.com -- McLaughlin and Stern, LLP.
Anthony O'Donnell, Defendant, represented by Brett Reed Gallaway,
McLaughlin and Stern, LLP, Lee Scott Shalov, McLaughlin and Stern,
LLP & Ralph R. Hochberg, McLaughlin and Stern, LLP.
TRAVELERS COMMERCIAL: 7th Cir. Affirms Dismissal of "Roppo"
-----------------------------------------------------------
The United States Court of Appeals, Seventh Circuit, affirms the
district court's dismissal of Sabrina Roppo's proposed class
action captioned SABRINA ROPPO, individually and on behalf of
others similarly situated, Plaintiff-Appellant, v. TRAVELERS
COMMERCIAL INSURANCE CO., et al., Defendants-Appellees, No. 15-
3171 (7th Cir.).
Sabrina Roppo brought the proposed class action in state court
against Travelers. Basing the action on several state law claims,
she challenged Travelers's alleged practice of not disclosing the
existence of umbrella policies. Travelers removed the action to
the district court. Ms. Roppo then filed a motion to remand,
claiming that the district court lacked jurisdiction under the
Class Action Fairness Act (CAFA).
The district court denied Ms. Roppo's motion to remand, but
allowed her to file a second amended complaint, which added
Block's defense attorney, Jason Hitchings, and his law firm,
Maisel & Associates, as defendants. Ms. Roppo later filed a third
amended complaint, adding an additional cause of action under the
Racketeer Influenced and Corrupt Organizations Act (RICO). The
defendants then filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). The district court granted this motion
and dismissed with prejudice the complaint's eleven counts.
Ms. Roppo now renews her argument that federal jurisdiction is
lacking and therefore asks us to vacate the district court's
judgment. She also contends that, even if the district court had
jurisdiction, we should reverse its judgment because the third
amended complaint sufficiently states claims of fraudulent
misrepresentation, negligent misrepresentation, and negligence
under Illinois law, as well as violations of the Illinois
Insurance Code and the Illinois Consumer Fraud and Deceptive
Business Practices Act.
The Seventh Circuit cannot agree with her submission and, affirmed
the district court's dismissal of Ms. Roppo's third amended
complaint.
The allegations in the complaint operative at the time of removal,
along with Travelers's disclosure of the relevant umbrella policy
limits, were sufficient for the district court to conclude that it
had subject matter jurisdiction under CAFA, the Seventh Circuit
held. The "local controversy" exception also does not require
remand: Travelers is the "primary" defendant in the action.
Moreover, Ms. Roppo's RICO allegations provide an independent
basis for federal jurisdiction. Finally, the court did not err in
dismissing the third amended complaint because it insufficiently
pleads claims of fraudulent misrepresentation, negligent
misrepresentation, and negligence, as well as violations of the
Illinois Insurance Code, the Illinois Consumer Fraud and Deceptive
Business Practices Act, and RICO, the Seventh Circuit further
held.
A full-text copy of the Seventh Circuit's August 28, 2017 Opinion
is available at http://tinyurl.com/ycm7rbxxfrom Leagle.com.
Mark L. Hanover, 233 S Wacker Dr # 8000, Chicago, IL 60606, USA
for Defendant-Appellee.
Tiffany L. Amlot, 233 S Wacker Dr # 8000, Chicago, IL 60606, USA
for Defendant-Appellee.
Kent David Sinson, 205 W Wacker Dr Ste 1600, Chicago, IL 60606.
for Plaintiff-Appellant.
Kristine M. Schanbacher, 233 S Wacker Dr # 8000, Chicago, IL
60606, USA for Defendant-Appellee.
TROJAN LABOR: Fired "Johnson" for Raising Overtime Claims Issue
---------------------------------------------------------------
William H. Johnson, on her own behalf and all others similarly
situated, Plaintiff, v. Trojan Labor and Complete Development,
Inc., Defendant, Case No. 8:17-cv-01975, (M.D. Fla., August 21,
2017), seeks unpaid wages, liquidated damages, and reasonable
attorney's fees and costs under the Fair Labor Standards Act
including redress for retaliation.
Trojan Labor -- http://trojanlabor.com/-- is a staffing agency
who employed Johnson as a construction worker assigned to its
charter school projects. Johnson was allegedly terminated for
complaining about his unpaid overtime.
Plaintiff is represented by:
W. John Gadd, Esq.
Bank of America Building
2727 Ulmerton Rd. Ste. 250
Clearwater, FL 33762
Tel. (727)524-6300
Email: wjg@mazgadd.com
TYSON FOODS: Court Stays Discovery in Broiler Chicken Suit
----------------------------------------------------------
In the case captioned IN RE: BROILER CHICKEN GROWER LITIGATION,
Case No. 6:17-CV-00033-RJS (E.D. Okla.), Judge Robert J. Shleby of
the U.S. District Court for the Eastern District of Oklahoma
granted the Defendants' Motion to Stay Discovery Pending
Resolution of their Motions to Dismiss.
This is a putative class action centering on antitrust claims that
broiler chicken growers assert against poultry production
companies. The six Named Plaintiff growers allege that beginning
nearly a decade ago the 12 Defendant poultry companies engaged in
illicit anticompetitive activity in concert with others to
artificially suppress grower compensation. The growers contend
the poultry companies met this goal by, among other means: (i)
sharing detailed compensation and business data through a
statistical and research firm called AgriStats; (ii) allowing
access to each other's production facilities; (iii) permitting
high-level employees to move to jobs at each other's companies
without contractual restrictions; and (iv) complying with a "no-
poach" agreement under which the poultry companies agreed not to
recruit or hire growers from each other.
Some growers initially filed suit in this District against the
poultry companies in January 2017. After other growers filed a
second, substantially similar case in this District in March 2017,
the cases were consolidated. The Plaintiffs claim there are
thousands of growers who may join them in this action.
After a June 9, 2017 case management hearing, and pursuant a
subsequent June 14 order, the grower the Plaintiffs jointly filed
the now-governing Consolidated Amended Complaint on July 10, 2017.
They assert two causes of action: 1) Agreement in Restraint of
Trade in Violation of Section I of the Sherman Antitrust Act; and
(ii) Unfair Practices in Violation of Section 202 of the Packers
and Stockyards Acts of 1921.
Under the Court's June 14 order, the Defendant poultry companies
have until Sept. 8, 2017, to file their Motions to Dismiss. The
Plaintiffs must file any oppositions by Oct. 23, 2017, and the
Defendants have until Nov. 22, 2017 to file any reply memoranda.
Thus, unless the parties seek and the court permits an extension,
briefing on initial Motions to Dismiss will be complete in three
months.
In its June 14 order, the Court admonished the Defendants to file
joint submissions rather than individual motions. The Defendants'
Motion to Stay Discovery pending the Court's determination of the
anticipated Motion to Dismiss was filed jointly on July 24.
Since the Defendants filed their Motion to Stay Discovery, the
Plaintiffs have given notice of their intent to issue preservation
subpoenas to 24 third party poultry production companies. Each
subpoena identically sets forth 33 separate categories of
requested documents -- and some categories have up to 10 sub-
parts. The subpoenas seek from these third parties documents on a
broad range of subjects, including the third parties' own internal
management teams; corporate policies; practices with regard to
poultry growers; use of AgriStats; and personnel information.
Judge Shelby finds that the Defendants have met their burden to
show clear hardship to themselves and third parties warranting a
discovery stay in the action pending the resolution of their
initial Motions to Dismiss. While the Plaintiffs may suffer some
delay in litigating their claims, and generally claim that this
delay adds to their continuing financial harm -- assuming for the
moment they are entitled to recover from any Defendant -- the
Judge concludes that on balance, a stay should issue. In the
context of this complex, putative class antitrust action with
potentially thousands of claimants asserting claims of illicit
conduct spanning a decade, a limited delay in discovery to resolve
threshold issues raised at the outset of litigation will not only
prevent potentially unnecessary expenses, it will also serve
judicial economy. For these reasons, he granted the Defendants'
Motion to Stay Discovery38 pending resolution of Motions to
Dismiss filed on Sept. 8, 2017.
A full-text copy of the Court's Sept. 1, 2017 Order is available
at https://goo.gl/seY3jt from Leagle.com.
Haff Poultry, Inc., Plaintiff, represented by Aaron M. Sheanin --
ASheanin@RobinsKaplan.com -- Robins Kaplan, LLP, pro hac vice.
Haff Poultry, Inc., Plaintiff, represented by Charles D. Gabriel -
- cdgabriel@cpblawgroup.com -- Chalmers Pak Burch & Adams, LLC,
pro hac vice, Christina M. Black -- cblack@bm.net -- Berger &
Montague, PC, pro hac vice, Daniel J. Walker, Berger & Montague,
PC, pro hac vice, David M. Wilkerson, Van Winkle Law Firm, pro hac
vice, Eric L. Cramer -- ecramer@bm.net -- Berger & Montague, PC,
pro hac vice, Gary I. Smith, Jr. -- gsmith@hausfeld.com --
Hausfeld, LLP, pro hac vice, Gregory L. Davis, Davis & Taliaferro,
LLC, pro hac vice, Hollis Salzman -- HSalzman@RobinsKaplan.com --
Robins Kaplan LLP, pro hac vice, James J. Pizzirusso --
jpizzirusso@hausfeld.com -- Hausfeld, LLP, pro hac vice, Kellie
Lerner -- KLerner@RobinsKaplan.com -- Robins Kaplan LLP, pro hac
vice, Larry S. McDevitt, Van Winkle Law Firm, pro hac vice, M.
Stephen Dampier, Dampier Law Firm, pro hac vice, Melinda R.
Coolidge -- mcoolidge@hausfeld.com -- Hausfeld, LLP, pro hac vice,
Michael D. Hausfeld -- mhausfeld@hausfeld.com -- Hausfeld, LLP,
pro hac vice, Patrick F. Madden -- pmadden@bm.net -- Berger &
Montague, PC, pro hac vice, Vincent J. Esades, Heins Mills &
Olson, PLC, pro hac vice, W. A. Edmondson, Riggs Abney Neal Turpen
Orbison & Lewis, Warren T. Burns -- wburns@burnscharest.com --
Burns Charest, LLP, pro hac vice, Carol H. Lahman, Mitchell &
DeClerck, PLLC, Caroline Ramsey Taylor -- caroline@wbmllp.com --
Whitfield Bryson & Mason, LLP, David S. Muraskin --
dmuraskin@publicjustice.net -- Public Justice, PC, Donald M.
Bingham -- don_bingham@riggsabney.com -- Riggs Abney Neal Turpen
Orbison & Lewis, Gary E. Mason -- gmason@wbmllp.com -- Whitfield
Bryson & Mason, LLP, pro hac vice, Harlan Hentges, Hentges &
Associates, PLLC, J. Dudley Butler, Butler Farm & Ranch Law Group,
PLLC, Jennifer S. Goldstein -- jgoldstein@wbmllp.com -- Whitfield
Bryson & Mason, LLP, pro hac vice, John C. Whitfield --
john@wbmllp.com -- Whitfield Bryson & Mason, LLP, Larry D. Lahman,
Mitchell & DeClerck, PLLC, M. David Riggs -- driggs@riggsabney.com
-- Riggs Abney Neal Turpen Orbison & Lewis, Roger L. Ediger,
Mitchell & DeClerck, PLLC & Scott E. Cordell, Mitchell & DeClerck,
PLLC.
Johnny Upchurch, Plaintiff, represented by Aaron M. Sheanin,
Robins Kaplan, LLP, pro hac vice, Charles D. Gabriel, Chalmers Pak
Burch & Adams, LLC, pro hac vice, Christina M. Black, Berger &
Montague, PC, pro hac vice, Daniel J. Walker, Berger & Montague,
PC, pro hac vice, David M. Wilkerson, Van Winkle Law Firm, pro hac
vice, Eric L. Cramer, Berger & Montague, PC, pro hac vice, Gary I.
Smith, Jr., Hausfeld, LLP, pro hac vice, Gregory L. Davis, Davis &
Taliaferro, LLC, pro hac vice, Hollis Salzman, Robins Kaplan LLP,
pro hac vice, James J. Pizzirusso, Hausfeld, LLP, pro hac vice,
Kellie Lerner, Robins Kaplan LLP, pro hac vice, Larry S. McDevitt,
Van Winkle Law Firm, pro hac vice, M. Stephen Dampier, Dampier Law
Firm, pro hac vice, Melinda R. Coolidge, Hausfeld, LLP, pro hac
vice, Michael D. Hausfeld, Hausfeld, LLP, pro hac vice, Patrick F.
Madden, Berger & Montague, PC, pro hac vice, Vincent J. Esades,
Heins Mills & Olson, PLC, pro hac vice, W. A. Edmondson, Riggs
Abney Neal Turpen Orbison & Lewis, Warren T. Burns, Burns Charest,
LLP, pro hac vice, Carol H. Lahman, Mitchell & DeClerck, PLLC,
Caroline Ramsey Taylor, Whitfield Bryson & Mason, LLP, David S.
Muraskin, Public Justice, PC, Donald M. Bingham, Riggs Abney Neal
Turpen Orbison & Lewis, Gary E. Mason, Whitfield Bryson & Mason,
LLP, pro hac vice, Harlan Hentges, Hentges & Associates, PLLC, J.
Dudley Butler, Butler Farm & Ranch Law Group, PLLC, Jennifer S.
Goldstein, Whitfield Bryson & Mason, LLP, pro hac vice, John C.
Whitfield, Whitfield Bryson & Mason, LLP, Larry D. Lahman,
Mitchell & DeClerck, PLLC, M. David Riggs, Riggs Abney Neal Turpen
Orbison & Lewis, Roger L. Ediger, Mitchell & DeClerck, PLLC &
Scott E. Cordell, Mitchell & DeClerck, PLLC.
Jonathan Walters, Plaintiff, represented by Aaron M. Sheanin,
Robins Kaplan, LLP, pro hac vice, Charles D. Gabriel, Chalmers Pak
Burch & Adams, LLC, pro hac vice, Christina M. Black, Berger &
Montague, PC, pro hac vice, Daniel J. Walker, Berger & Montague,
PC, pro hac vice, David M. Wilkerson, Van Winkle Law Firm, pro hac
vice, Eric L. Cramer, Berger & Montague, PC, pro hac vice, Gary I.
Smith, Jr., Hausfeld, LLP, pro hac vice, Gregory L. Davis, Davis &
Taliaferro, LLC, pro hac vice, Hollis Salzman, Robins Kaplan LLP,
pro hac vice, James J. Pizzirusso, Hausfeld, LLP, pro hac vice,
Kellie Lerner, Robins Kaplan LLP, pro hac vice, Larry S. McDevitt,
Van Winkle Law Firm, pro hac vice, M. Stephen Dampier, Dampier Law
Firm, pro hac vice, Melinda R. Coolidge, Hausfeld, LLP, pro hac
vice, Michael D. Hausfeld, Hausfeld, LLP, pro hac vice, Patrick F.
Madden, Berger & Montague, PC, pro hac vice, Vincent J. Esades,
Heins Mills & Olson, PLC, pro hac vice, W. A. Edmondson, Riggs
Abney Neal Turpen Orbison & Lewis, Warren T. Burns, Burns Charest,
LLP, pro hac vice, Carol H. Lahman, Mitchell & DeClerck, PLLC,
Caroline Ramsey Taylor, Whitfield Bryson & Mason, LLP, David S.
Muraskin, Public Justice, PC, Donald M. Bingham, Riggs Abney Neal
Turpen Orbison & Lewis, Gary E. Mason, Whitfield Bryson & Mason,
LLP, pro hac vice, Harlan Hentges, Hentges & Associates, PLLC, J.
Dudley Butler, Butler Farm & Ranch Law Group, PLLC, Jennifer S.
Goldstein, Whitfield Bryson & Mason, LLP, pro hac vice, John C.
Whitfield, Whitfield Bryson & Mason, LLP, Larry D. Lahman,
Mitchell & DeClerck, PLLC, M. David Riggs, Riggs Abney Neal Turpen
Orbison & Lewis, Roger L. Ediger, Mitchell & DeClerck, PLLC &
Scott E. Cordell, Mitchell & DeClerck, PLLC.
Myles B. Weaver, Plaintiff, represented by Caroline Ramsey Taylor,
Whitfield Bryson & Mason, LLP, pro hac vice, Daniel M. Cohen,
Cuneo Gilbert & LaDuca, LLP, pro hac vice, Daniel J. Walker,
Berger & Montague, PC, pro hac vice, David S. Muraskin, Public
Justice, PC, pro hac vice, Gary E. Mason, Whitfield Bryson &
Mason, LLP, pro hac vice, Harlan Hentges, Hentges & Associates,
PLLC, J. Dudley Butler, Butler Farm & Ranch Law Group, PLLC, pro
hac vice, Jennifer S. Goldstein, Whitfield Bryson & Mason, LLP,
pro hac vice, John C. Whitfield, Whitfield Bryson & Mason, LLP,
pro hac vice, Aaron M. Sheanin, Robins Kaplan, LLP, Carol H.
Lahman, Mitchell & DeClerck, PLLC, Charles D. Gabriel, Chalmers
Pak Burch & Adams, LLC, Christina M. Black, Berger & Montague, PC,
David M. Wilkerson, Van Winkle Law Firm, Donald M. Bingham, Riggs
Abney Neal Turpen Orbison & Lewis, Eric L. Cramer, Berger &
Montague, PC, Gary I. Smith, Jr., Hausfeld, LLP, Gregory L. Davis,
Davis & Taliaferro, LLC, Hollis Salzman, Robins Kaplan LLP, James
J. Pizzirusso, Hausfeld, LLP, Kellie Lerner, Robins Kaplan LLP,
Larry S. McDevitt, Van Winkle Law Firm, M. Stephen Dampier,
Dampier Law Firm, M. David Riggs, Riggs Abney Neal Turpen Orbison
& Lewis, Melinda R. Coolidge, Hausfeld, LLP, Michael D. Hausfeld,
Hausfeld, LLP, Patrick F. Madden, Berger & Montague, PC, Roger L.
Ediger, Mitchell & DeClerck, PLLC, Scott E. Cordell, Mitchell &
DeClerck, PLLC, Vincent J. Esades, Heins Mills & Olson, PLC, W. A.
Edmondson, Riggs Abney Neal Turpen Orbison & Lewis, Warren T.
Burns, Burns Charest, LLP, pro hac vice & Larry D. Lahman,
Mitchell & DeClerck, PLLC.
Melissa Weaver, Plaintiff, represented by Caroline Ramsey Taylor,
Whitfield Bryson & Mason, LLP, pro hac vice, Daniel M. Cohen,
Cuneo Gilbert & LaDuca, LLP, pro hac vice, Daniel J. Walker,
Berger & Montague, PC, pro hac vice, David S. Muraskin, Public
Justice, PC, pro hac vice, Gary E. Mason, Whitfield Bryson &
Mason, LLP, pro hac vice, Harlan Hentges, Hentges & Associates,
PLLC, J. Dudley Butler, Butler Farm & Ranch Law Group, PLLC, pro
hac vice, Jennifer S. Goldstein, Whitfield Bryson & Mason, LLP,
pro hac vice, John C. Whitfield, Whitfield Bryson & Mason, LLP,
pro hac vice, Aaron M. Sheanin, Robins Kaplan, LLP, Carol H.
Lahman, Mitchell & DeClerck, PLLC, Charles D. Gabriel, Chalmers
Pak Burch & Adams, LLC, Christina M. Black, Berger & Montague, PC,
David M. Wilkerson, Van Winkle Law Firm, Donald M. Bingham, Riggs
Abney Neal Turpen Orbison & Lewis, Eric L. Cramer, Berger &
Montague, PC, Gary I. Smith, Jr., Hausfeld, LLP, Gregory L. Davis,
Davis & Taliaferro, LLC, Hollis Salzman, Robins Kaplan LLP, James
J. Pizzirusso, Hausfeld, LLP, Kellie Lerner, Robins Kaplan LLP,
Larry S. McDevitt, Van Winkle Law Firm, M. Stephen Dampier,
Dampier Law Firm, M. David Riggs, Riggs Abney Neal Turpen Orbison
& Lewis, Melinda R. Coolidge, Hausfeld, LLP, Michael D. Hausfeld,
Hausfeld, LLP, Patrick F. Madden, Berger & Montague, PC, Roger L.
Ediger, Mitchell & DeClerck, PLLC, Scott E. Cordell, Mitchell &
DeClerck, PLLC, Vincent J. Esades, Heins Mills & Olson, PLC, W. A.
Edmondson, Riggs Abney Neal Turpen Orbison & Lewis, Warren T.
Burns, Burns Charest, LLP, pro hac vice & Larry D. Lahman,
Mitchell & DeClerck, PLLC.
Nancy Butler, Plaintiff, represented by Daniel J. Walker, Berger &
Montague, PC, pro hac vice, M. Stephen Dampier, Dampier Law Firm,
pro hac vice, Aaron M. Sheanin, Robins Kaplan, LLP, Carol H.
Lahman, Mitchell & DeClerck, PLLC, Caroline Ramsey Taylor,
Whitfield Bryson & Mason, LLP, Charles D. Gabriel, Chalmers Pak
Burch & Adams, LLC, Christina M. Black, Berger & Montague, PC,
Daniel M. Cohen, Cuneo Gilbert & LaDuca, LLP, David S. Muraskin,
Public Justice, PC, David M. Wilkerson, Van Winkle Law Firm,
Donald M. Bingham, Riggs Abney Neal Turpen Orbison & Lewis, Eric
L. Cramer, Berger & Montague, PC, Gary E. Mason, Whitfield Bryson
& Mason, LLP, pro hac vice, Gary I. Smith, Jr., Hausfeld, LLP,
Gregory L. Davis, Davis & Taliaferro, LLC, Harlan Hentges, Hentges
& Associates, PLLC, Hollis Salzman, Robins Kaplan LLP, J. Dudley
Butler, Butler Farm & Ranch Law Group, PLLC, James J. Pizzirusso,
Hausfeld, LLP, Jennifer S. Goldstein, Whitfield Bryson & Mason,
LLP, pro hac vice, John C. Whitfield, Whitfield Bryson & Mason,
LLP, Kellie Lerner, Robins Kaplan LLP, Larry D. Lahman, Mitchell &
DeClerck, PLLC, Larry S. McDevitt, Van Winkle Law Firm, M. David
Riggs, Riggs Abney Neal Turpen Orbison & Lewis, Melinda R.
Coolidge, Hausfeld, LLP, Michael D. Hausfeld, Hausfeld, LLP,
Patrick F. Madden, Berger & Montague, PC, Roger L. Ediger,
Mitchell & DeClerck, PLLC, Scott E. Cordell, Mitchell & DeClerck,
PLLC, Vincent J. Esades, Heins Mills & Olson, PLC, W. A.
Edmondson, Riggs Abney Neal Turpen Orbison & Lewis & Warren T.
Burns, Burns Charest, LLP, pro hac vice.
Tyson Foods, Inc., Defendant, represented by John D. Harkrider --
jharkrider@axinn.com -- Axinn Veltrop & Harkrider, LLP, pro hac
vice, Kevin H. Kim -- kkim@axinn.com -- Axinn Veltrop & Harkrider,
LLP, pro hac vice, Mark C. Tatum -- mtatum@shb.com -- Shook Hardy
& Bacon, LLP, pro hac vice, Michael S. Cargnel -- mcargnel@shb.com
-- Shook Hardy & Bacon, LLP, pro hac vice, Michael L. Keeley --
mkeeley@axinn.com -- Axinn Veltrop & Harkrider, LLP, pro hac vice,
Robert T. Adams -- rtadams@shb.com -- Shook Hardy & Bacon, LLP,
pro hac vice, Lawrence R. Murphy, Jr. -- murphy@richardsconnor.com
-- Richards & Connor, PLLP, Michael Burrage, Whitten Burrage &
Patrica Sawyer, Whitten Burrage.
Tyson Chicken, Inc., Defendant, represented by John D. Harkrider,
Axinn Veltrop & Harkrider, LLP, pro hac vice, Kevin H. Kim, Axinn
Veltrop & Harkrider, LLP, pro hac vice, Mark C. Tatum, Shook Hardy
& Bacon, LLP, pro hac vice, Michael S. Cargnel, Shook Hardy &
Bacon, LLP, pro hac vice, Michael L. Keeley, Axinn Veltrop &
Harkrider, LLP, pro hac vice, Robert T. Adams, Shook Hardy &
Bacon, LLP, pro hac vice, Lawrence R. Murphy, Jr., Richards &
Connor, PLLP, Michael Burrage, Whitten Burrage & Patrica Sawyer,
Whitten Burrage.
Tyson Breeders, Inc., Defendant, represented by John D. Harkrider,
Axinn Veltrop & Harkrider, LLP, pro hac vice, Kevin H. Kim, Axinn
Veltrop & Harkrider, LLP, pro hac vice, Mark C. Tatum, Shook Hardy
& Bacon, LLP, pro hac vice, Michael S. Cargnel, Shook Hardy &
Bacon, LLP, pro hac vice, Michael L. Keeley, Axinn Veltrop &
Harkrider, LLP, pro hac vice, Robert T. Adams, Shook Hardy &
Bacon, LLP, pro hac vice, Lawrence R. Murphy, Jr., Richards &
Connor, PLLP, Michael Burrage, Whitten Burrage & Patrica Sawyer,
Whitten Burrage.
Tyson Poultry, Inc., Defendant, represented by John D. Harkrider,
Axinn Veltrop & Harkrider, LLP, pro hac vice, Kevin H. Kim, Axinn
Veltrop & Harkrider, LLP, pro hac vice, Mark C. Tatum, Shook Hardy
& Bacon, LLP, pro hac vice, Michael S. Cargnel, Shook Hardy &
Bacon, LLP, pro hac vice, Michael L. Keeley, Axinn Veltrop &
Harkrider, LLP, pro hac vice, Robert T. Adams, Shook Hardy &
Bacon, LLP, pro hac vice, Lawrence R. Murphy, Jr., Richards &
Connor, PLLP, Michael Burrage, Whitten Burrage & Patrica Sawyer,
Whitten Burrage.
Pilgrim Pride Corporation, Defendant, represented by Benjamin L.
Stewart, Bailey Brauer, PLLC, pro hac vice, Carrie C. Mahan, Weil
Gotshal & Manges, LLP, pro hac vice, Clayton E. Bailey, Bailey
Brauer, PLLC, pro hac vice, Kevin J. Arquit, Weil Gotshal &
Manges, LLP, pro hac vice, Harold C. Zuckerman, McAfee & Taft,
Reid E. Robison, McAfee & Taft & William S. Leach, McAfee & Taft.
Perdue Farms, Inc., Defendant, represented by Andrew T. Hernacki,
Venable, LLP, pro hac vice, J. Douglas Baldridge, Venable, LLP,
pro hac vice, Kevin R. Donelson, Fellers Snider Blankenship Bailey
& Tippens, Leonard L. Gordon, Venable, LLP, pro hac vice, Lisa
Jose Fales, Venable, LLP, pro hac vice, Robert P. Davis, Venable,
LLP, pro hac vice & Mark K. Stonecipher, Fellers Snider
Blankenship Bailey & Tippens, pro hac vice.
Koch Foods, Inc., Defendant, represented by Cable M. Frost, Baker
Donelson Bearman Caldwell & Berkowitz, pro hac vice, John G.
Calender, Baker Donelson Bearman Caldwell & Berkowitz, pro hac
vice, Scott W. Pedigo, Baker Donelson Bearman Caldwell &
Berkowitz, pro hac vice, John R. Woodard, III, Coffey Senger &
McDaniel, PLLC & Robert P. Coffey, Jr., Coffey Senger & McDaniel,
PLLC.
Koch Meat Co., Inc., Defendant, represented by Cable M. Frost,
Baker Donelson Bearman Caldwell & Berkowitz, pro hac vice, John G.
Calender, Baker Donelson Bearman Caldwell & Berkowitz, pro hac
vice, Scott W. Pedigo, Baker Donelson Bearman Caldwell &
Berkowitz, pro hac vice, John R. Woodard, III, Coffey Senger &
McDaniel, PLLC & Robert P. Coffey, Jr., Coffey Senger & McDaniel,
PLLC.
Sanderson Farms, Inc., Defendant, represented by Christa C.
Cottrell, Kirkland & Ellis LLP, pro hac vice, Daniel E. Laytin,
Kirkland & Ellis LLP, pro hac vice, Martin L. Roth, Kirkland &
Ellis LLP, pro hac vice, Stacy Pepper, Kirkland & Ellis LLP, pro
hac vice, David L. Bryant, GableGotwals & J. Wesley Pebsworth,
GableGotwals.
Sanderson Farms, Inc., Defendant, represented by Christa C.
Cottrell, Kirkland & Ellis LLP, pro hac vice, Daniel E. Laytin,
Kirkland & Ellis LLP, pro hac vice, Martin L. Roth, Kirkland &
Ellis LLP, pro hac vice, Stacy Pepper, Kirkland & Ellis LLP, pro
hac vice, David L. Bryant, GableGotwals, J. Wesley Pebsworth,
GableGotwals, Christa C. Cottrell, Kirkland & Ellis LLP, pro hac
vice, Daniel E. Laytin, Kirkland & Ellis LLP, pro hac vice, Martin
L. Roth, Kirkland & Ellis LLP, pro hac vice, Stacy Pepper,
Kirkland & Ellis LLP, pro hac vice, David L. Bryant, GableGotwals,
J. Wesley Pebsworth, GableGotwals, Christa C. Cottrell, Kirkland &
Ellis LLP, pro hac vice, Daniel E. Laytin, Kirkland & Ellis LLP,
pro hac vice, David L. Bryant, GableGotwals, J. Wesley Pebsworth,
GableGotwals, Martin L. Roth, Kirkland & Ellis LLP, pro hac vice &
Stacy Pepper, Kirkland & Ellis LLP, pro hac vice.
UBER TECHNOLOGIES: Ex- Employee Files Amicus Brief in Labor Case
----------------------------------------------------------------
Christina Pellegrini, writing for Hello Giggles, reports that
Susan Fowler is still fighting for employee rights at Uber.
As scary as this sounds, women regularly experience harassment and
abuse in the workplace and don't say anything about it. But
former Uber employee Susan Fowler changed the game when she wrote
a blog post chronicling a history of sexism and harassment at the
company. Her truth bomb resulted in an investigation, the huge
#DeleteUBER movement, and Uber CEO Travis Kalanick's departure.
The former employee made a world of difference by speaking out.
And Fowler doesn't plan on stopping anytime soon.
Recently, she filed an amicus brief in a landmark labor law case
going to the Supreme Court.
Are you up on your legalese? If not, an amicus brief is a document
filed by someone who isn't involved in the case. However, they
have a vested interest in the outcome or topic.
This specific case will look into employees giving up their rights
to take collective action against an employer, known as a class-
action suit. Many companies require employees to sign away their
rights to this kind of legal protection. Instead, they solve
issues through arbitration.
What does that mean for Uber? Arbitration benefits companies like
Uber because settling individually costs way less money. Not to
mention, it prevents employees from publicly whistle-blowing on
potentially unlawful activities. The question is: Does this
violate the National Labor Relations Act?
"In addition to the toxic workplace culture faced by Susan Fowler
and others, Uber has been accused repeatedly of systematically
violating a wide-swath of federal and state employment laws in
federal court class actions," Ms. Fowler's lawyer wrote in the
amicus brief.
Uber remains at the heart of many labor-centric lawsuits at the
moment. And this Supreme Court ruling would affect many of them.
Props to Fowler for standing up for what's right!
Here's to justice for Uber employees, as well as better workers'
rights in general. [GN]
UBER TECHNOLOGIES: Sept. 20 Hearing Set on NLRB Arbitration Case
----------------------------------------------------------------
Erin Mulvaney, writing for The Recorder, reports that the National
Labor Relations Board will get a chance to argue against Uber
Technologies Inc. in a key appeal -- over class actions and
employment arbitration clauses -- that is snarled in a federal
appeals court.
A case before the U.S. Court of Appeals for the Ninth Circuit
brought by Uber drivers asks the court to confront whether judges
may enforce an individual arbitration agreement that would prevent
the drivers from joining a class action to sue the company for
allegedly misclassifying them as independent contractors.
The arbitration agreement in question would waive the right to
engage in legal "concerted activity." The court agreed on
Aug. 22 to give the NLRB 10 minutes to argue at the Sept. 20
hearing in San Francisco. Gibson, Dunn & Crutcher's Theodore
Boutrous Jr. will argue for Uber. Shannon Liss-Riordan, who has
led many of the battles in California against Uber, will argue for
the drivers.
The labor board's unopposed motion said the agency will "offer the
court a distinct perspective on the nature and scope" of the
intersection between the National Labor Relations Act and federal
arbitration policy. The board has previously litigated the issue
of whether an individual arbitration agreement violates the labor
act if it permits employees to opt out of the terms. The board
previously has held that those waivers violate the rights of
employees.
Attorneys for drivers contend Uber's arbitration agreements may
interfere with the Ninth Circuit's decision in Morris v. Ernst &
Young, which held that the National Labor Relations Act prohibits
collective action waivers. That case is part of a trio of
consolidated cases before the U.S. Supreme Court, which is set to
hear the dispute in October. NLRB general counsel Richard Griffin
has asked the high court for argument time there, to defend class
actions.
In several actions pending before the Ninth Circuit, drivers have
sought to be considered employees -- rather than independent
contractors -- through forming class actions and attempting to
override arbitration clauses. The right to collectively bargain
and have benefits such as minimum wage, overtime and workers'
compensation protection is reserved for employees under federal
labor law.
The labor board said in court papers in the Ninth Circuit that it
"takes no position on whether Uber's drivers are statutorily
protected 'employees.'"
Uber drivers argue in the Ninth Circuit that the lower court's
class certification order follows a long line of precedent in
which workers "who have been misclassified as independent
contractors have routinely been able to challenge their
classification on a classwide basis."
"Indeed, it would make little sense for workers performing the
same job to have to make such a challenge one-by-one, when the
company itself has set forth a blanket decision to classify them
all as independent contractors, and the district court's ruling
broke no new ground in allowing such a classwide challenge,"
Ms. Liss-Riordan wrote in the drivers' brief.
Uber, in its opening brief, argued that federal district courts
have issued a series of "anti-arbitration and pro-class-
certification orders that have wreaked havoc on Uber's
relationship with its drivers." Uber's Gibson Dunn team said,
"The district court has encouraged as many drivers as possible to
opt out of arbitration and join the class actions pending against
Uber."
The company asked the appeals court to reverse the lower decision
and uphold the arbitration agreements, and to decertify a class of
more than 240,000 drivers. [GN]
UNITED STATES: Breach of Contract Suit vs. USDA Dismissed
---------------------------------------------------------
Judge Robert H. Hodges, Jr., of the U.S. Court of Federal Claims
dismissed the case captioned EDDIE SLAUGHTER, Plaintiff, v. UNITED
STATES OF AMERICA, Defendant, No. 15-403 C (Fed. Cl.).
The Plaintiff sued the United States for breach of contract. He
alleges that the Department of Agriculture ("USDA") did not
provide debt relief promised him pursuant to a consent decree that
resolved the Pigford class action of which he had been a part.
The Defendant filed a motion to dismiss pursuant to Rules 12(b)(1)
and 12(b)(6) for lack of subject matter jurisdiction and for
failure to state a claim.
Slaughter is an African-American farmer who has raised crops and
livestock in Buena Vista, Georgia since the 1980's. He applied
for and received several loans from USDA during that time. Later,
he joined with other farmers in filing a class action against USDA
for discrimination against African-American farmers in connection
with the loan program. The Class was successful in obtaining
various forms of debt relief as a result.
The District Court for the District of Columbia resolved the
Pigford class action in 1999. Mr. Slaughter filed a claim in
Pigford pursuant to one of the mechanisms, known as Track A which
provided that outstanding debts found by specially appointed
adjudicators to be tainted by discrimination would be discharged.
The adjudicator assigned to the Plaintiff's case found
discrimination in connection with some of the Plaintiff's
ownership loans in April 2001. The Plaintiff sought reexamination
of the 2001 adjudication in 2005. The adjudicator affirmed the
2001 discrimination finding involving his ownership loans, but
pointed out on appeal that the 2001 adjudicator had not found
discrimination in connection with the operating and emergency
loans. For this reason, the 2005 adjudicator denied the Plaintiff
relief from his operating and emergency loans. The Plaintiff then
filed a complaint for breach of the consent decree in the Middle
District of Georgia.
The Georgia district court dismissed his breach claim for lack of
jurisdiction the following year. The Plaintiff sued the United
States in this Court for breach of a "settlement agreement" in
2015, arguing that it has exclusive jurisdiction over such
contract disputes. The middle district of Georgia cannot remove
this Court's jurisdiction of contract claims against the United
States, according to Mr. Slaughter. He also notes that the
Government provided him with documents entitling him to relief of
the debt associated with all four loans in question.
The Defendant maintains that the 1099 tax forms sent to the
Plaintiff following the 2001 adjudicator's decision were issued in
error. They were not cancellations of the Plaintiff's debts, and
neither were they contracts. They are tax forms used for
reporting debt forgiveness to IRS. Such forms are not contracts,
and they cannot support such an interpretation of the consent
decree. The consent decree provides relief only where an
adjudicator finds discrimination, not from documentary
correspondence such as 1099-C forms.
Judge Hodges finds that the Plaintiff is correct that this Court's
jurisdiction cannot be limited by a district court, nor can a
party exclude itself from that jurisdiction by the terms of a
contract or otherwise. The Tucker Act grants to the Court of
Federal Claims jurisdiction of claims against the United States
for more than $10,000 arising from an express or implied contract.
The consent decree in this case is not a final settlement
affording the parties substantive rights to specific relief. It
does not provide substantive rights to money damages, injunctive
action, or other relief for class members. It does not require
discharge of the Plaintiff's debts. The decree establishes a
means for the Plaintiff to petition for relief according to
procedures conducted by adjudicators under supervision of the
district court.
As the consent decree is not a contract, and it does not provide
substantive rights to money damages or other relief, Judge Hodges
has no basis for accepting jurisdiction of this case. If this
Court did have jurisdiction to consider the merits of the
Plaintiff's claim, the Judge could not proceed beyond the
pleadings because his complaint does not show a plausible
entitlement to relief. Accordingly, Judge Hodges granted the
Defendant's motion to dismiss pursuant to RCFC 12(b)(1) and
12(b)(6). He directed the Clerk of Court to dismiss the
Complaint. No costs.
A full-text copy of the Court's Sept. 1, 2017 Opinion and Order is
available at https://goo.gl/Ta52GJ from Leagle.com.
EDDIE SLAUGHTER, Plaintiff, represented by Jayna Marie Rust --
jrust@thompsoncoburn.com -- Thompson Coburn, LLP.
USA, Defendant, represented by David M. Kerr, U.S. Department of
Justice.
USA: Faces "Salo" Suit in Court of Federal Claims
-------------------------------------------------
A class action lawsuit has been filed against USA. The case is
styled as Matthew Salo and Gabriela Salo, on behalf of themselves
and all other similarly situated persons and entities, Plaintiffs
v. USA, Defendant, Case No. 1:17-cv-01194-MMS (C.F.C., September
5, 2017).[BN]
The Plaintiff is represented by:
Thomas M. Fulkerson, Esq.
FulkersonLotz LLP
4511 Yoakum Blvd., Suite 200
Houston, TX 77054
Tel: (713) 654-5800
Fax: (713) 654-5801
Email: tfulkerson@fulkersonlotz.com
USA: Faces Y and J Properties Suit in Court of Federal Claims
-------------------------------------------------------------
A class action lawsuit has been filed against USA. The case is
styled as Y and J Properties, Ltd. individually and on behalf of
all other persons similarly situated, Plaintiffs v. USA,
Defendant, Case No. 1:17-cv-01189-MBH (C.F.C., September 5, 2017).
BN]
The Plaintiff is represented by:
Michael D. Sydow, Esq.
Sydow Firm, The
5020 Montrose Boulevard, Suite 450
Houston, TX 77006
Tel: (713) 622-9700
Fax: (713) 552-1949
Email: michael.sydow@thesydowfirm.com
USA: Faces "Bouzerand" Suit in Court of Federal Claims
------------------------------------------------------
A class action lawsuit has been filed against USA. The case is
styled as Angela Bouzerand, Wayne Pesek, Amy Pesek and Fred Paul
Frenger, individually and on behalf of all other similarly
situated, Plaintiffs v. USA, Defendant, Case No. 1:17-cv-01195-VJW
(C.F.C., September 5, 2017).[BN]
The Plaintiff is represented by:
Jay Edelson, Esq.
Edelson PC
350 North LaSalle Street
13th Floor
Chicago, IL 60654
Tel: (312) 589-6370
Fax: (312) 589-6378
Email: jedelson@edelson.com
USA: Faces "Banes" Suit in Court of Federal Claims
--------------------------------------------------
A class action lawsuit has been filed against USA. The case is
styled as Bryant Banes, Neva Banes, Carlton Jones, NB Research,
Inc., on behalf of themselves and others similarly situated,
Plaintiffs v. USA, Defendant, Case No. 1:17-cv-01191-MBH (C.F.C.,
September 5, 2017). [BN]
The Plaintiff is represented by:
Bryant Steven Banes, Esq.
Neel, Hooper & Banes, PC
1800 West Loop South, Suite 1750
Houston, TX 77027-3008
Tel: (713) 629-1800
Fax: (713) 629-1812
Email: bbanes@nhblaw.com
USA TECHNOLOGIES: 3d Cir. Affirms Dismissal of Securities Suit
--------------------------------------------------------------
In the case captioned RYAN FAIN, on behalf of himself and all
others similarly situated, Appellant, v. USA TECHNOLOGIES, INC.;
STEPHEN P. HERBERT; DAVID F. DEMEDIO; JAMES DUNCAN SMITH, Nos. 16-
2436, 16-3796 (3d Cir.), Judge Luis Felipe Restrepo of the U.S.
Court of Appeals for the Third Circuit affirmed the District
Court's judgment dismissing the Plaintiffs' putative securities
class action complaint for failure to plead scienter, and denying
him relief from that order under Federal Rule of Civil Procedure
60(b).
USA Technologies provides wireless networking, cashless
transaction devices, asset monitoring, and other services to
companies in the self-service retail market. In his Amended Class
Action Complaint ("Complaint"), the Plaintiff, on behalf of a
putative class of investors, alleges that USA Technologies and its
individual officers, Stephen P. Herbert, David F. DeMedio, and
James Duncan Smith, violated sections 10(b) and 20(a) of the
Securities and Exchange Act of 1934 and their implementing
provisions.
USA Technologies issued a press release on Sept. 10, 2015
reporting an allocated "bad debt expense" of $47,184 for the
fourth quarter of fiscal year 2015 and $649,528 for FY2015 at
year-end. Three weeks later, on Sept. 29, 2015, USA Technologies
filed a late filing notice indicating that it would have to delay
the filing of its annual 2015 Form 10-K and amend its earlier
September 10 Press Release because management identified
deficiencies in both the design and operating effectiveness of the
Company's internal control over financial reporting. On Sept. 30,
2015, USA Technologies filed its annual Form 10-K acknowledging
"material weakness" in its accounting procedures and restating its
bad debt expense.
On Nov. 13, 2015, Defendants Herbert and Smith offered comments on
the September 30 Restatement during an earnings call to the effect
that USA Technologies had addressed and remediated the significant
deficiency related to the amount of bad debt reserve attributable
to the uncollected customer accounts.
The Plaintiff then filed suit claiming that the September 10 Press
Release was false and misleading in violation of the securities
laws. His claim is premised on two central allegations. First,
he alleges that the Defendants misled investors about the
existence of "significant deficiencies" in USA Technologies'
internal auditing and financial reporting procedures. Second, he
alleges that, as a result, the Defendants misled investors about
USA Technologies' reported net income by failing to identify and
write off a large number of uncollectible small-balance accounts.
Taken together, the essence of his claim is that the Defendants
fraudulently understated the amount of "bad debt" on USA
Technologies' balance sheets in order to artificially prop up USA
Technologies' perceived financial health.
The Defendants moved to dismiss the Complaint, and the District
Court granted the motion on the ground that the Complaint failed
to adequately plead scienter. To support his scienter claim, the
Plaintiff focused on three issues before the District Court: (i)
the simplicity and size of the accounting error, and, relatedly,
that the error violated a clear rule of the Generally Accepted
Accounting Principles; (ii) the resignation of DeMedio and Smith,
the company's CFOs; (iii) and the remedial actions taken by USA
Technologies after the September 30 Restatement. After thoroughly
weighing these allegations, the District Court concluded that they
amounted to little more than allegations of corporate
mismanagement or possible negligence and therefore fell short of
pleading a "strong inference" of scienter that is "at least" as
cogent or compelling as the Defendants' non-culpable explanation.
Two other procedural rulings are relevant to this appeal. First,
the District Court denied leave to amend the Complaint in its
opinion dismissing the Complaint. Second, the Court denied the
Plaintiff's motion for relief from the Order and for leave to file
a Second Amended Class Action Complaint under Federal Rule of
Civil Procedure 60(b)(2) and 60(b)(6). The timely appeal
followed.
Judge Restrepo agreed with the District Court that USA
Technologies' unprompted admission of error in the September 30
Restatement and its later efforts to reformulate its accounting
practices do not nudge the Complaint any closer to adequately
pleading scienter. To the contrary, the Defendants' speedy
response suggests their actions were at worst negligent. When the
Defendants became aware of the error in preparing the annual Form
10-K, they acted immediately to rectify it. The Plaintiff's facts
add up to corporate mismanagement, as the Defendants have
maintained, but nothing more. He therefore affirmed the District
Court's dismissal of the Complaint on this ground.
With respect to the Plaintiff's contention that the District Court
improperly denied leave to amend, Judge Restrepo has little in the
record to aid his analysis of the Plaintiff's curative factual
allegations because the Plaintiff never filed a proposed amended
complaint. Even after the Plaintiff's lengthy briefing of the
issue on appeal, he still does not see how this pleads, with
particularity, an inference of scienter. For one, he does not
allege facts that explain why this change in business focus would
have alerted the Defendants to the existence of previously
undiscovered uncollectible customer accounts, let alone that its
procedures were deficient in doing so in the ordinary course.
Second, even if he did, the Plaintiff does not persuasively
explain why a motivation to secure a "clean audit opinion" would
lead Defendants to knowingly misstate their bad debt figures on
September 10 but then correct them 19 days later. Absent some
specific incentive to downplay the amount of uncollectible debt in
the interim before the September 30 Restatement, these facts do
not plead scienter given this futility. The District Court did
not abuse its discretion in denying leave to amend on these
grounds.
Finally, the Judge concludes that the Plaintiff's argument that
the District Court improperly denied him Rule 60(b) relief fails
because the Plaintiff failed to provide any evidence detailing his
efforts to ascertain facts underlying the Arizona Action at any
time during this litigation. Had he exercised a modicum of
effort, Judge Restrepo thinks the Plaintiff would have discovered
this publicly filed Arizona action in time to develop these points
in discovery in this matter. Instead, the record shows that the
Plaintiff rushed to file his Complaint, now only to regret the
consequences of doing so. It was not an abuse of discretion to
deny Rule 60(b) relief on this ground.
For these, Judge Restrepo affirmed.
A full-text copy of the Court's Aug. 30, 2017 Opinion is available
at https://is.gd/0zCXes from Leagle.com.
Adam M. Apton -- aapton@zlk.com -- [ARGUED] Levi & Korinsky 1101
30th Street, N.W., Suite 115 Washington, DC 20007 Jacob A.
Goldberg -- jgoldberg@rosenlegal.com -- Rosen Law Firm 101
Greenwood Avenue Suite 440 Jenkintown, PA 19046 Counsel for
Appellant.
M. Norman Goldberger -- goldbergerm@ballardspahr.com -- [ARGUED]
Laura E. Krabill -- krabilll@ballardspahr.com -- Ballard Spahr,
1735 Market Street, 51st Floor Philadelphia, PA 19103 Evan W.
Krick -- KRICKEBALLARDSPAHR.COM -- Ballard Spahr, 919 North Market
Street, 11th Floor Wilmington, DE 19801 Counsel for Appellees.
VOLKSWAGEN: Merkel Backs German Diesel Car Owners' Class Action
---------------------------------------------------------------
Reuters reports that Chancellor Angela Merkel's support for
collective lawsuits could force Volkswagen to offer to compensate
owners of diesel cars in Germany as it has done in the United
States over manipulated emissions tests.
VW offered billions of dollars to U.S. customers after its
cheating of emissions tests came to light two years ago.
It has so far rejected any payments for the owners of 8.5 million
affected vehicles in Europe where different legal rules weaken the
chances of customers winning compensation.
"We will probably soon move to (discuss) the legal test case so
that one can also bring about class action lawsuits which I
support in principle," Chancellor Merkel said in a TV debate on
Sept. 3, her strongest endorsement to date of a change in German
law.
"It's completely clear that the car industry must be held
responsible for what it has done," she added in the debate with
Social Democrat (SPD) challenger Martin Schulz before the
Sept. 24 election.
Chancellor Merkel criticized a draft law on the issue submitted by
the SPD as "too bureaucratic", but said she was open to starting
discussions on the matter as early as Sept. 4.
A government spokesman said it was not clear whether the
chancellor's comments would herald a new pre-election push to
agree a common stance on the matter between Chancellor Merkel's
Christian Democrats and Mr. Schulz's Social Democrats, who
currently govern in a grand coalition.
"Car executives have cheated," Mr. Schulz said during the debate.
"With legal test cases we could treat consumers in a similar way
as also in other countries."
The diesel emissions scandal has cost VW, the world's largest
carmaker, as much as $25 billion in fines and compensation
payments.
Chancellor Merkel did announce plans on Sept. 4 to double to 1
billion euros ($1.2 billion) a fund aimed at cleaning up urban
transport infrastructure to try to prevent bans of diesel cars in
some German cities.
The government has come under pressure for not doing enough to
crack down on vehicle pollution and for being too close to
powerful carmakers.
The issue has become a central campaign topic ahead of the
election, prompting the government to summon car bosses to a
summit to discuss how to cut pollution.
Under the U.S legal system, lawyers can file a suit for one client
and have it certified as a class action for those in a similar
situation.
In Germany, by contrast, each plaintiff must file individually and
pay legal fees upfront, a system criticized by consumer lobbies as
hostile to claimants. [GN]
WASHINGTON TRUST: Entitled to Recover Atty Fees in "Cayne" Suit
---------------------------------------------------------------
Judge Ronald E. Bush of the U.S. District Court for the District
of Idaho granted in part and denied in part the Defendant's Motion
for Attorney Fees and Petition for Costs, as to the issue of
entitlement in the case captioned ROBERT CAYNE; RONNIE RIVERA;
SEAN RIVERA; KEN McELROY; individually and on behalf of all others
similarly situated, Plaintiffs, v. WASHINGTON TRUST BANK, a
Washington corporation; and WEST SPRAGUE AVENUE HOLDINGS, LLC, a
Washington limited liability company, Defendants, Case No. 2:12-
cv-000584-REB(D. Idaho).
The Plaintiffs were members of the "Club at Black Rock," a golf
course and residential resort community located on the shores of
Lake Coeur d'Alene, Idaho. Marketed and designed for people of
affluence, the Plaintiffs each paid a large sum of money as a
membership deposit in order to become members of the Club. In
doing so, club members entered into Membership Agreements with the
Club. Those agreements required payment of such membership
deposits but also called for a return of the deposits under
certain conditions, which included termination of membership,
termination of the Membership Plan, and discontinuance of Club
operations.
The Club was owned by a legal entity known as the Club at Black
Rock. Over time, the LLC borrowed more than $12 million from
Defendant Washington Trust Bank. The loans making up that debt
were secured by various means, including security interests in the
real and personal property connected with the Club. When the LLC
fell into significant financial difficulty, the LLC and Washington
Trust negotiated a work-out agreement -- an "Agreement for Deed in
Lieu of Foreclosure." As part of that agreement, Washington Trust
released the LLC from all its debts and liabilities in exchange
for conveyance of the real and personal property associated with
the Club, and released the individual primarily responsible for
the development of the Club from any personal liability for the
indebtedness.
In this certified class action lawsuit, the Plaintiffs brought
claims for breach of contract, misrepresentation/fraud, a consumer
protection act violation, and sought to recover from Washington
Trust the membership deposits they had paid to the Club. The
Court granted in part and denied in part the Defendants' Motion
for Judgment on the Pleadings. Relevant here, the Court ruled
that the Plaintiffs had stated a plausible claim for relief for
breach of contract; however, it dismissed, without prejudice, the
Plaintiffs' claims for misrepresentation/fraud and violation of
the Idaho Consumer Protection Act. After further motion practice,
the Court granted in part and denied in part both the Plaintiffs'
and the Defendants' Motions for Summary Judgment. A two-week jury
trial followed, resulting in a verdict in the Defendants' favor.
Following its rulings on the Plaintiffs' Motion for Judgment as a
Matter of Law and Motion for New Trial (as well as other post-
trial motions), the Court now issues the Decision on whether the
Defendants are entitled to recover attorney fees and costs.
Judge Bush held that pursuant to Rule 23(h), the Defendants are
entitled to recover attorney fees under Idaho Code Section 12-
120(3). When a plaintiff alleges the existence of a commercial
transaction that is the basis for its claim, it is the allegation
that triggers the applicability of Idaho Code Section 12-120(3) --
not whether the commercial transaction, or liability under it, was
actually established in favor of the Plaintiffs.
Judge Bush further held that an award of attorney fees is not
precluded by constitutional protections or public policy. The
Defendants are entitled to recover attorney's fees under Idaho
Code Section 12-120(3). The amount of that award is still under
consideration, because of the voluminous record and because of the
Court's concern over the obvious potential for duplication of
effort, as the Defendants employed three different law firms in
the case, including one that was brought into the case very late
in the process. Therefore, the amount of the attorney fee award
and the reasoning for such an amount will be contained in a
decision which will follow at a later date.
As to their request for $104,358.96 in costs, the Judge held that
the Defendants provide no statute, rule, or other grounds
entitling them to an award of these nontaxable costs. The only
statute identified by them is Idaho Code Section 12-120(3). That
statute governs attorney fees, and does not address nontaxable
costs of the type sought by the Defendants. They have been
awarded their taxable costs pursuant to Local Civil Rule 54.1.
Accordingly, their request for additional costs not taxable under
Local Civil Rule 54.1 is denied by Judge Bush.
Judge Bush granted in part and denied in part the Defendant's
Motion for Attorney Fees and Petition for Costs, as to the issue
of entitlement. A subsequent decision and order will follow,
setting the amount of the award, with judgment.
A full-text copy of the Court's Aug. 30, 2017 Order is available
at https://is.gd/3maczz from Leagle.com.
Robert Cayne, Plaintiff, represented by Douglas S. Marfice --
springel@springelfink.com -- RAMSDEN, MARFICE, EALY & HARRIS, LLP.
Robert Cayne, Plaintiff, represented by Michael B. King --
king@carneylaw.com -- Carney Badley Spellman, PS, pro hac vice,
Adam H. Springel -- aspringel@springelfink.com -- Springel & Fink,
LLP, pro hac vice, Christopher D. Gabbert, RAMSDEN, MARFICE, EALY
& HARRIS,LLP & Michael A. Arata -- marata@springelfink.com --
Springel & Fink, LLP, pro hac vice.
Ronnie Rivera, Plaintiff, represented by Douglas S. Marfice,
RAMSDEN, MARFICE, EALY & HARRIS, LLP, Michael B. King, Carney
Badley Spellman, PS, pro hac vice, Adam H. Springel, Springel &
Fink, LLP, pro hac vice, Christopher D. Gabbert, RAMSDEN, MARFICE,
EALY & HARRIS,LLP & Michael A. Arata, Springel & Fink, LLP, pro
hac vice.
Sean Rivera, Plaintiff, represented by Douglas S. Marfice,
RAMSDEN, MARFICE, EALY & HARRIS, LLP, Michael B. King, Carney
Badley Spellman, PS, pro hac vice, Adam H. Springel, Springel &
Fink, LLP, pro hac vice, Christopher D. Gabbert, RAMSDEN, MARFICE,
EALY & HARRIS,LLP & Michael A. Arata, Springel & Fink, LLP, pro
hac vice.
Ken McElroy, Plaintiff, represented by Douglas S. Marfice,
RAMSDEN, MARFICE, EALY & HARRIS, LLP, Michael B. King, Carney
Badley Spellman, PS, pro hac vice, Adam H. Springel, Springel &
Fink, LLP, pro hac vice, Christopher D. Gabbert, RAMSDEN, MARFICE,
EALY & HARRIS,LLP & Michael A. Arata, Springel & Fink, LLP, pro
hac vice.
Washington Trust Bank, Defendant, represented by Bil G. Childress
-- bchildress@dunnandblack.com -- Dunn & Black, P.S., Marvin L.
Gray, Jr. -- montygray@dwt.com -- Davis Wright Tremaine, LLP, pro
hac vice, Robert A. Dunn -- bdunn@dunnandblack.com -- Dunn &
Black, P.S., pro hac vice, William M. Appleton, APPLETON & PIKE,
Fred B. Burnside -- fredburnside@dwt.com -- Davis Wright Tremaine
LLP, pro hac vice & Rebecca J. Francis -- rebeccafrancis@dwt.com -
- Davis Wright Tremaine, LLP, pro hac vice.
West Sprague Avenue Holdings, LLC, Defendant, represented by Bil
G. Childress, Dunn & Black, P.S., Fred B. Burnside, Davis Wright
Tremaine LLP, pro hac vice, Marvin L. Gray, Jr., Davis Wright
Tremaine, LLP, pro hac vice, Rebecca J. Francis, Davis Wright
Tremaine, LLP, pro hac vice, Robert A. Dunn, Dunn & Black, P.S.,
pro hac vice & William M. Appleton, APPLETON & PIKE.
WELLS FARGO: Sales Pressure Lingers Amid Fake Account Suits
-----------------------------------------------------------
Deon Roberts, writing for The Charlotte Observer, reports that
nearly a year after a fake-accounts scandal toppled its CEO, Wells
Fargo has overhauled its branch and call center practices and
ended product sales goals. But even with such changes, some
employees say the pressure to push products and services is still
a daily reality at the bank.
Wells Fargo has repeatedly said since the scandal that its focus
is on how employees treat customers rather than how many accounts
they open -- a shift in approach after the bank agreed last
Sept. 8 to pay $185 million in fines for accounts opened without
customer knowledge.
But some employees interviewed by the Observer say selling more
products to customers remains the clearest path to advancement at
the bank, and they point to practices they say create the
impression that selling remains the overriding priority at Wells
Fargo.
Employees spoke of branch managers standing nearby to observe
their interactions with customers, and afterward quizzing the
employee on what additional products they might have offered.
To be sure, any customer-facing company has to emphasize selling
or it will go out of business. San Francisco-based Wells Fargo in
particular is trying to boost its bottom line, which has been hurt
by the scandal. And no one is suggesting that employees are
creating fake accounts again.
Still, the employees' comments underscore the challenges in
changing the culture at Wells Fargo and carrying out executives'
promise to shift the priority from sales to customer service. The
bank's culture remains a critical issue a year after the scandal,
as new revelations keep coming up. In the latest twist, Wells on
Aug. 31 disclosed that the number of potentially fraudulent
accounts could total 3.5 million -- a nearly 70 percent jump over
its initial estimates.
Steve Bond, head of compensation for Wells Fargo's community
banking unit, said in an Observer interview that "the sales
pressure's gone" at Wells.
Mr. Bond pointed to Wells' overhaul of its quarterly bonus plan, a
move the bank made after it eliminated sales goals in October. The
new plan, launched in January, is intentionally weighted the
heaviest toward results of customer-experience surveys, Bond said.
"There's not a number of accounts that are being sold that are in
our performance-management plan," Mr. Bond said, noting that a key
focus is on retaining customers. "This is not a sales plan, and
it's not a sales environment."
'It was their job to sell'
The Observer spoke with more than a dozen current and former Wells
employees in nine states about whether the bank's culture has
evolved in the s since the scandal. Some said the sales pressure
has completely disappeared. Others weren't so sure.
Erica Robinson, who left her teller job in California in February,
said her branch at that time was still emphasizing a target of
five products per customer. She said her branch manager would
sometimes mention that figure during morning "huddles" with the
staff.
"It was, 'Hey, just remember we need the five product
relationships with each customer,'" Ms. Robinson said. The list
could include a checking account, savings account, debit card and
two types of loans, like a mortgage or credit card, she said.
"Even though the minimum sales goals were dramatically reduced for
bankers, they were still expected to produce, as it was their job
to sell," Ms. Robinson said. She said she quit because of stress
created in her branch to meet the new customer-service measures.
THIS IS NOT A SALES PLAN, AND IT'S NOT A SALES ENVIRONMENT.
Steve Bond, head of compensation for Wells Fargo's community
banking unit
The Committee for Better Banks, a coalition of industry workers
that pushes for better working conditions in the industry, cited
"blatant examples of continuing pressure" at Wells this year in a
petition to the bank.
Ending sales goals "on paper" has had a positive impact, but
"sales pressure still exists in many workplaces," says the
document by the group, which had criticized Wells Fargo's sales
practices before the accounts scandal blew up.
In one example, Erin Mahoney, organizing coordinator for the
committee, said the group has received reports of Wells Fargo call
center employees in Arizona being allowed to leave work early in
exchange for opening credit-card accounts.
In January, the employees had goals only on Fridays, Ms. Mahoney
told the Observer. But by April the goals had expanded to every
day of the week, she said. Workers have been allowed to go home
an hour early if they got two credit card applications in that
day, she said. And as soon as they got three applications, they
could leave right away, she said, noting the goals have changed
often "to keep the pressure up."
In a statement, Wells Fargo disputed such claims, saying, "We
don't require a number of products per customer and we do not
offer go home early goals."
"Our focus is on ensuring a positive customer experience and
meeting their financial needs," the bank said.
. . . IT SEEMS TO BE THAT THE WAY TO GET PROMOTED, THE WAY TO MOVE
UP, AT WELLS FARGO HASN'T CHANGED, AND THAT WAY IS TO PROVE
YOURSELF BY SALES AND NOT SO MUCH BY CUSTOMER SERVICE.
California attorney Jonathan Delshad, whose office continues to
hear from former Wells Fargo employees who describe sales pressure
as remaining at the bank
Bond, the compensation head, said quarterly bonuses are based on
customer surveys, growth in customers who use Wells as their
primary bank, and growth in customer balances in areas like
deposits and investments. And those goals aren't tied to
individual performance, he said, but to each branch as a whole.
That rewards the entire branch for taking care of customers, he
said.
"To me, I think that profoundly shifts how our employees work
together in the branch," said Bond, who is based in Charlotte.
In a statement, Wells Fargo also said its new bonus plan "includes
greater oversight and controls than ever before, and helps foster
an engaging environment for team members where they can succeed."
Laura Hay, of New York-based compensation-consulting firm Pearl
Meyer, said it's important to keep in mind that branch jobs remain
sales positions at Wells Fargo, the same as most other banks.
"Wells Fargo is a for-profit business," said Ms. Hay, who is based
in Charlotte and heads Pearl Meyer's national banking team.
"There should be expectations of the branch staff that they are
appropriately selling the bank's products and services. Producing
revenue is their role."
She said Wells Fargo's new compensation plan is better than the
old because of its focus on customer experience and branch growth
in measures like deposits and loan balances. That's different
than Wells' prior plan, which the industry would call a "widgets"
approach, focusing sales on account openings and volume, she said.
'Prove yourself by sales'
California attorney Jonathan Delshad said his office continues to
hear from former Wells employees who describe sales pressure as
remaining at the bank, even after the scandal arose.
"We still do receive emails and interest from people who have left
this year saying that they're still asked to do things that they
feel are unethical as far as their sales practices go," said Mr.
Delshad. He represents former Wells employees who sued the bank
last year in a class-action case over claims they were demoted or
fired for not meeting sales goals.
"The feeling that we get from former employees is that while they
may have done away with actual quotas . . . it seems to be that
the way to get promoted, the way to move up, at Wells Fargo hasn't
changed, and that way is to prove yourself by sales and not so
much by customer service," he said.
Wells Fargo has taken a growing number of steps to turn itself
around since revelations that sales quotas pushed employees to
open possibly millions of deposit and credit card accounts without
customer permission. The bank's chairman announced plans to step
down after receiving weak support from shareholders who had voted
on his re-election in April.
Leading the turnaround of the community banking division embroiled
in the scandal is Charlotte-based Mary Mack, who in July took on
the role after heading Wells' brokerage operation. Under Mack, the
bank has taken various steps, including changes to community
banking leadership structures to help tighten controls. Wells has
also said it will rely on mystery shopping and other means to
monitor bad behavior.
Timothy Taylor, a Wells Fargo personal banker in the branch at
Third and Tryon streets in uptown Charlotte, is among employees
who say they feel no pressure to sell.
"We're definitely making it a little more customer-friendly, a
little more customer-focused," said Mr. Taylor, who joined Wells
in 2012 as a teller in Gaston County. He said even before the
scandal erupted he never felt pressure to sell customers products
they didn't want or need.
"The changes that we have made definitely are moving in the right
direction," said Mr. Taylor. "It's continuing to align with our
original objective, which is to help our customers succeed
financially."
But some current and former employees told the Observer that sales
pressure plays a role in discussions conducted by branch managers
with employees after they talk to customers.
"They were tracking every interaction that you had throughout the
day," said a personal banker who left the company earlier this
year and didn't want her name published because she's a part of a
class-action lawsuit against Wells.
"If the conversation didn't yield any sales, then it was, 'Well,
what did you do for this client, and what else could you have
done, and how else can you bring them back to see how we can help
them?'" the personal banker said. "They wanted the results, and
the results were still, of course, sales."
THEY'RE STILL ASKING, 'WHAT DID YOU DO WITH THE CLIENT? WHY DID
YOU DO THAT? WHY DIDN'T YOU DO THIS?'
Financial adviser who works in a Wells Fargo branch in California
One financial adviser who works in a California branch described
seeing bankers meeting throughout the day with the branch manager
to talk about what products were offered, even though sales goals
were gone.
"How is that any different?" said the adviser, who didn't want his
name published over concerns about retaliation. "They're still
asking, 'What did you do with the client? Why did you do that? Why
didn't you do this?'"
"If you're sitting with a client and you forget to do something
and you're getting reprimanded because you didn't talk about a
credit card, that's still getting pressured for not doing
something," he said. "They still want them to open new accounts
and refer the business to a business partner like myself or a
mortgage banker."
Mr. Bond, the Wells Fargo compensation head, said the bank
"absolutely" wants branch managers observing and coaching
employees to make sure they are providing a good customer
experience.
"It's around service," Mr. Bond said. "We're not coaching for
sales. Sometimes that might result in a sale. But that's not
always the outcome."
In the coming months, the bank plans to provide all branch
managers with training to be more effective at handling such
conversations, he said, noting that the bank had quickly rolled
out the new compensation plan earlier this year.
'Culture reinforces behavior'
Even as Wells Fargo marks one year since the scandal and keeps
overhauling its practices, the company remains under investigation
for the fake accounts and other practices disclosed since the
scandal, including claims that it improperly charged customers to
lock in mortgage interest rates. The company has also come under
scrutiny this summer for its auto-insurance practices.
Wells' mounting issues have fueled calls by some members of
Congress for new hearings into the bank, whose then-CEO testified
twice on Capitol Hill last year about the accounts scandal. On
Aug. 31, after the disclosure that even more fake accounts might
have been created, some of those lawmakers renewed demands for
hearings.
"Congress also can't look the other way," Massachusetts Democratic
Sen. Elizabeth Warren tweeted. "We need the Wells Fargo hearing
Dems called for..."
Ms. Hay, the compensation expert, said even with all the changes
Wells Fargo has made to its bonus structure, the potential for bad
behavior remains, as it would with any company's compensation
plan. The key is for Wells Fargo to avoid the high-pressure sales
culture that got it into trouble and to have proper controls in
place, she said.
"The culture was so pressurized for those individuals where they
were having inappropriate behaviors come out of it," she said.
"Culture reinforces behavior."
Richard Clayton, research director for CtW Investment Group, which
advocates for labor union pension funds that own shares of Wells
Fargo and other companies, said work remains for the bank to reach
its vision of becoming a company where sales are no longer the
chief focus.
"It's going to take a while to reorient the corporate culture at
Wells Fargo toward customer service," he said. "You can't turn an
ocean liner around in just a second." [GN]
WELLS FARGO: Fake Account Disclosure May Impact Settlement
----------------------------------------------------------
The Business Times reports that WELLS Fargo & Co's disclosure that
its sales people opened significantly more potentially
unauthorised accounts than previously stated may jeopardise the
US$142 million class action settlement with customers that won
preliminary approval from a judge in July. [GN]
YAHOO INC: Must Face Data Breach Class Action, Judge Rules
----------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that a U.S. judge
said Yahoo must face nationwide litigation brought on behalf of
well over 1 billion users who said their personal information was
compromised in three massive data breaches.
The Aug. 30 decision from U.S. District Judge Lucy Koh in San
Jose, California, was a setback for efforts by Verizon
Communications Inc, which paid $4.76 billion for Yahoo's Internet
business in June, to limit potential liability.
The breaches occurred between 2013 and 2016, but Yahoo was slow to
disclose them, waiting more than three years to reveal the first.
Revelations about the scope of the cyber attacks prompted Verizon
to lower its purchase price for the company.
In a 93-page decision, Judge Koh rejected Yahoo's contention that
breach victims lacked standing to sue, and said they could pursue
some breach of contract and unfair competition claims.
"All plaintiffs have alleged a risk of future identity theft, in
addition to loss of value of their personal identification
information," the judge wrote.
Judge Koh said some plaintiffs also alleged they had spent money
to thwart future identity theft or that fraudsters had misused
their data.
Others, meanwhile, could have changed passwords or canceled their
accounts to stem losses had Yahoo not delayed disclosing the
breaches, the judge said.
While many claims were dismissed, Judge Koh said the plaintiffs
could amend their complaint to address her concerns.
"We believe it to be a significant victory for consumers, and will
address the deficiencies the court pointed out," John Yanchunis, a
lawyer for the plaintiffs who chairs an executive committee
overseeing the case, said in an interview. "It's the biggest data
breach in the history of the world."
Verizon spokesman Bob Varettoni said the New York-based company
declined to comment on pending litigation.
Yahoo is now part of a Verizon unit called Oath.
In court papers, Yahoo had argued that the breaches were "a
triumph of criminal persistence" by a "veritable 'who's who' of
cybercriminals," and that no security system is hack-proof.
On March 15, the U.S. Department of Justice charged two officers
of the Russian Federal Security Service and two hackers in
connection with the second breach in late 2014.
The August 2013 breach affected more than 1 billion accounts,
while the 2014 breach affected more than 500 million. A third
breach occurred in 2015 and 2016.
The case is In re: Yahoo Inc Customer Data Security Breach
Litigation, U.S. District Court, Northern District of California,
No. 16-md-02752. [GN]
ZOCDOC INC: Geisman Appeals S.D.N.Y. Orders to Second Circuit
-------------------------------------------------------------
Plaintiff Radha Geismann, M.D., P.C., filed an appeal from the
District Court's opinion & order dated July 28, 2017, and order
for deposit in interest bearing account dated August August 7,
2017, in the lawsuit entitled Geismann v. ZocDoc, Inc., Case No.
14-cv-7009, in the U.S. District Court for the Southern District
of New York (New York City).
As previously reported in the Class Action Reporter on August 7,
2017, Judge Louis L. Stanton granted the Defendant's motion for
leave to deposit $13,900 with the Clerk in satisfaction of its
offer of settlement.
In 2014, the Plaintiff filed a complaint in Missouri state court,
alleging that it received two unsolicited faxes from ZocDoc, in
violation of the Telephone Consumer Protection Act of 1991.
Geismann seeks between $500 and $1,500 for each alleged TCPA
violation, an injunction prohibiting ZocDoc from sending similar
faxes in the future, and costs. It also filed a motion for class
certification.
The appellate case is captioned as Geismann v. ZocDoc, Inc., Case
No. 17-2692, in the United States Court of Appeals for the Second
Circuit.[BN]
Plaintiff-Appellant Radha Geismann, M.D., P.C., individually and
on behalf of All Others Similarly Situated, is represented by:
Aytan Yehoshua Bellin, Esq.
BELLIN & ASSOCIATES LLC
85 Miles Avenue
White Plains, NY 10606
Telephone: (914) 358-5345
Facsimile: (212) 571-0284
E-mail: aytan.bellin@bellinlaw.com
Defendant-Appellee Zocdoc, Incorporated, is represented by:
Bryan K. Clark, Esq.
VEDDER PRICE P.C.
222 North LaSalle Street
Chicago, IL 60601
Telephone: (312) 609-7810
E-mail: bclark@vedderprice.com
- and -
Charles J. Nerko, Esq.
VEDDER PRICE P.C.
1633 Broadway
New York, NY 10019
Telephone: (212) 407-7700
E-mail: cnerko@vedderprice.com
- and -
Matthew Allen Jacober, Esq.
LATHROP & GAGE LLP
7701 Forsyth Boulevard
Clayton, MI 63105
Telephone: (314) 613-2800
Facsimile: (314) 613-2250
E-mail: mjacober@lathropgage.com
* Employers Need to Think About Arbitration Agreements Again
------------------------------------------------------------
Anthony J. Oncidi, Esq. -- aoncidi@proskauer.com -- of Proskauer
Rose LLP, in an article for Mondaq, reports that jury panels in
the Los Angeles Superior Court (which is often referred to as "The
Bank" by the plaintiffs' bar) have recently delivered
multimillion-dollar verdicts to former-employee plaintiffs. Many
employers doing business in California already have insulated
themselves from such disasters by adopting comprehensive
arbitration regimes, which would require that such cases be heard
by a retired judge or employment lawyer rather than a jury of the
employee's (not the employer's) peers.
In one recent case involving alleged wrongful termination and
racial discrimination, the jury awarded the former employee $16.6
million, which is the largest such verdict in California state
history. The verdict consisted of $373,514 in lost wages; $2.5
million in emotional distress damages; and $13.8 million in
punitive damages. Added to this will be another $1 million or so
in prevailing-party attorney's fees that will go to the former
employee's lawyer. Another Los Angeles jury recently awarded $15
million to a former employee who claimed he was discriminated
against on the basis of a disability. That verdict consisted of
$5 million in lost wages and emotional distress damages and $10
million in punitive damages.
The fact that such monster verdicts are stalking the land pushes
up the settlement value of all cases -- and the risk of not
settling means the employer is subjecting itself to funding the
winnings of those who play the California litigation lottery. The
best antidote? Arbitration agreements. Although arbitration is
hardly a panacea and carries with it a number of significant
limitations and disadvantages, the time has come for employers to
shut down this game by choosing arbitration once and for all.
The top three reasons for adopting an employment arbitration
agreement today are:
Arbitrators generally provide reasonable awards that fairly
compensate an employee who has actually suffered some form of
discrimination, harassment or other wrongful treatment. Unlike a
jury, however, they generally do not get carried away and award
gargantuan amounts of money for alleged emotional distress and
punitive damages -- both of which are basically unlimited under
California law.
The mere existence of an arbitration agreement functions as a form
of "Wolfsbane" that wards off the most aggressive plaintiffs'
lawyers. Once they find out their client signed an arbitration
agreement, they know they have no chance of ever bamboozling a
gullible jury into awarding them millions of dollars and they will
usually drop the case or settle it on the cheap.
The arbitration agreement can and should include a class-action
waiver provision. This means that any employee who signs such an
agreement agrees not to lead or participate in a class action
against the employer. These provisions are perfectly legal (even
in employee-friendly California) and alone justify the adoption of
such an agreement. [GN]
* FTC Issues Closing Letter to Four Cos. Over Made in USA Claims
----------------------------------------------------------------
C. Ryan Barber, writing for The National Law Journal, reports that
at a fiery rally on Aug. 22 that resembled his campaign events,
President Donald Trump reiterated his call to bring manufacturing
back to the United States, saying he wants "more products stamped
with the letters 'Made in the USA.'"
But that labeling can land companies in trouble with federal
regulators over deceptive marketing claims.
In recent weeks, the Federal Trade Commission has revved up
enforcement of allegedly deceptive "Made in USA" marketing,
resolving accusations that four companies' advertising violated
the agency's requirement that products be "all or virtually all"
manufactured in the United States to live up to domestic origin
claims.
The agency issued each of the four companies a so-called "closing
letter" -- an administrative tool in which staff will decline to
recommend a formal enforcement action on the showing that a
company has agreed to make changes to marketing and labeling. With
the recent spurt of activity, the FTC ended a four-month dry
spell. It had last issued a closing letter over a "Made in USA"
claim in April to Innovative Office Products over its marketing of
standing desks.
The latest closing letter was received by Excel Industries, a
Kansas-based company that runs the Hustler Turf Equipment and
BigDog Mower Co. lawn mower brands. In the letter, FTC attorney
Julia Ensor noted that while Excel Industries assembles the mowers
and "performs some manufacturing functions in the United States,
certain mowers incorporate significant imported content."
The FTC decided not to pursue the investigation further, she
wrote, in light of Excel Industries' plan to phase out "Made in
USA" decals, update its marketing materials and revise its claims
to say "Designed and assembled in USA" and "Made in USA of US and
Global Parts."
The company's plan also included an increasingly more common step
in the annals of "Made in USA" compliance: deleting old social
media posts. Similar letters have in general noted that companies
agreed to an "updating," "revising" or "modifying" of their posts
on Instagram, Facebook and other social media sites.
An FTC spokeswoman declined to comment on the Excel Industries
letter, saying the agency can't reveal the details of confidential
investigations. A spokeswoman for the company declined to comment.
Earlier this month, the FTC sent closing letters to three
companies over their "Made in USA" claims. Hoshizaki America
Inc., a Georgia-based manufacturer of commercial ice machines,
agreed to a "comprehensive remedial action plan" that included
"updating YouTube videos," according to an Aug. 7 letter to the
company's lawyer, Bryan Cave senior counsel Daniel Schwartz --
dcschwartz@bryancave.com -- in Washington. Mr. Schwartz could not
immediately be reached for comment.
On Aug. 11, the FTC sent a closing letter to Florida-based Thales
e-Security over "Made in USA" claims on some of the company's data
security products. Among other steps, the company's plan included
"reviewing catalogues, signage, packaging and social media content
to ensure the accuracy of claims for affected products," according
to a letter the FTC sent to James Kearney, a partner in the Tysons
Corner, Virginia, office of Womble Carlyle Sandridge & Rice.
And the agency sent a closing letter to Georgia-based Harimatec
Inc. over product samples the company sent to a potential
customer. According to the FTC's letter, the company said it had
"inadvertently" claimed that the samples were "Made in USA" and
notified the potential customer after discovering the error.
Harimatec's lawyer, FisherBroyles partner Chris Pey in New York,
declined to comment on the letter.
With the recent flurry of activity, the FTC has now sent 15
closing letters this year over "Made in USA" claims for everything
from standing desks to coffee makers. That total puts the FTC on
pace to fall short of the 29 letters it issued last year. In
2015, the FTC sent 28 closing letters concerning "Made in the USA"
claims.
* Senate Set to Vote on CFPB's New Arbitration Rules
----------------------------------------------------
Paul Bland and Karla Gilbride, writing for Huffington Post, report
that when Gary Childress of Raleigh, North Carolina learned in
July 2008 that he was being deployed to Iraq as part of his Army
National Guard service, one of the things he did before reporting
for duty was to contact Bank of America, where he and his wife
Anne had a credit card account. He wanted to let the bank know
that he was on active-duty status because under the Servicemembers
Civil Relief Act or SCRA, a law passed by Congress in 2003 to
reduce burdens on military families, all interest rates on debts
that servicemembers owed before going on active status must be
reduced to 6%. This interest rate protection was significant to
the Mr. Childresses, who owed over $5000 on their Bank of America
credit card with an interest rate of around 27% when Gary left for
Iraq.
Bank of America began sending Anne Childress monthly statements
suggesting that the interest rate on the account had been reduced
to 6% as the SCRA requires. But according to a lawsuit the bank
just settled in federal court in North Carolina, these statements
were deceptive. In fact, the bank was actually continuing to
charge a much higher interest rate. And the Childresses were not
alone; the bank's own internal audits, as well as an investigation
conducted by the Office Of the Comptroller of the Currency,
revealed that nearly 130,000 servicemembers and their families
were affected by Bank of America's illegal and deceptive
practices, which went on for over a decade.
One of the other families affected was Jackie and Raymond Love of
Garrett, Indiana, who had a mortgage with Bank of America with an
interest rate of 7% when Raymond was deployed to Iraq in 2004.
Like the Childresses, the Loves asked Bank of America to reduce
their monthly payments to 6% in accordance with the SCRA, and Bank
of America began issuing monthly statements suggesting that it had
complied, but later investigations showed that the Loves' mortgage
rate was not in fact reduced. What's worse, the formula Bank of
America used to make it appear that the Loves' rate had been
reduced to 6%, known as interest subsidization, caused the Loves'
mortgage payments to be recorded as late even when they paid on
time, which in turn damaged their credit score. The Loves filed
for bankruptcy in 2011, and their house was sold at auction.
In 2015, the Childresses and others filed a class action lawsuit.
And in July of 2017, they reached a settlement with Bank of
America that will award nearly $30 million, after fees and
expenses, to the approximately 130,000 military families who were
overcharged and deceived by the bank. The cheated servicemembers
will not need to file claims in order to receive compensation
under the settlement; the amount owed to each class member will be
calculated based on Bank of America's records, and checks will be
sent out automatically. If any class members can't be found or
their checks go uncashed, the remaining funds will be donated to
nonprofits that provide assistance to servicemebers and veterans.
This class action lawsuit was possible because Bank of America
does not force its credit card customers to enter into arbitration
provisions that ban class actions. But most banks do. In fact, in
a comprehensive report to Congress in 2015, the Consumer Financial
Protection Bureau (CFPB) found that over half of credit card
contracts include provisions requiring customers to settle
disputes in private arbitration rather than in court, and nearly
all of those provisions ban class actions. Moreover, the CFPB's
study found that large banks were far more likely than small banks
and credit unions to include forced arbitration provisions and
class action bans in their account agreements. The CFPB study
found that where bank arbitration clauses ban class actions, only
an infinitesimal number of consumers ever go to arbitration; more
than 99.9% of cases just disappear and no consumers receive
anything.
So if another large bank systematically overcharged servicemembers
interest in violation of the SCRA and lied about it like Bank of
America did, those affected would not have been able to join
together in a class action lawsuit like the Childresses and Loves.
Instead, they would each be forced to go up against the bank by
themselves in a secretive arbitration proceeding, where
confidentiality rules would prevent each servicemember from
sharing information with others. Given the many demands on
military families' time, most people affected by such a scheme
would never even find out that their rights had been violated, let
alone pursue in arbitration the money they were owed. And instead
of paying nearly $30 million to around 130,000 military families
as Bank of America did, a bank with an arbitration provision
banning class actions would have paid nothing, or at most might
only have to pay out a few thousand dollars to a handful of
servicemembers if any went forward with arbitration.
Now, the Senate will soon be asked to decide whether it is better
if Americans can enforce consumer protection laws, as the
servicemembers in these cases did, or if it's better to let banks
pocket millions of dollars in illegal profits at the expense of
those who defend our nation.
That's because, on July 19, 2017, the Consumer Financial
Protection Bureau issued its long-awaited rule that prohibits
banks and payday lenders from using forced arbitration clauses to
strip consumers of their ability to bring class actions against
them. If that rule is permitted to go into effect, all military
families, and all American consumers, will be able to join
together in a class action lawsuit like the Childresses and others
did if they were harmed by widespread illegal conduct in the
financial sector, no matter who their lender happens to be.
Unfortunately, on July 25, the U.S. House of Representatives voted
to repeal the CFPB's rule under the Congressional Review Act, a
law that allows Congress to throw out any federal regulation
issued within the last sixty days. Big banks want the Senate to
follow suit, and pundits suggest that the vote will be close.
So it's time for Senators to decide whose side they're on: big
Wall street banks who don't want consumers to be able to hold them
accountable in court for their actions, or military families and
other everyday Americans who want to be able to join forces and
fight back when banks rip them off. America is watching.
[GN]
* Trump Administration Changes Stance on Arbitration Agreements
---------------------------------------------------------------
The Guardian reports that as Donald Trump celebrates Labor Day by
proposing to slash taxes for CEOs such as himself, it may come as
a shock that a president who was previously best known for firing
people on TV might not have been completely sincere in his promise
to put "American workers first".
And like most things he says, it's hard to tell what that's
supposed to mean. This is the same man who, as a candidate, said
US workers' salaries were "too high", something even the most
reactionary politician knows not to say out loud.
So when he proclaims that "lower taxes on American business means
higher wages for American workers", the fact that this statement
is demonstrably false is beside the point: as a new report from
the Institute for Policy Studies shows, the job growth rate for
corporations that paid the least amount in taxes over the past
eight years was negative 1%, compared to 6% for the private sector
as a whole; businesses for the most part spent tax breaks not on
job creation but on stock buybacks and executive pay.
It's also beside the point whether Trump actually believes
corporate tax cuts benefit workers. They benefit him, and the
people he goes golfing with, and that's all that matters. This is
a president who embodies rent-seeking at its purest.
Consider the Department of Labor, an otherwise low-profile
department targeted in Trump's budget proposal for a 21% funding
cut, the largest of any federal agency after the Environmental
Protection Agency and State Department.
The Department of Labor is known mostly for enforcing overtime and
minimum wage rules under the Fair Labor Standards Act, and
probably wouldn't be on Trump's radar were it not for the fact
that it has hit his businesses with 24 violations for failing to
pay workers.
Trump's original pick to run the department, Carl's Jr CEO Andy
Puzder, shared with Trump a long list of FLSA violations; his fast
food business is one of the worst offenders in an industry well
known for ripping off workers.
Under Mr. Puzder's replacement, Alex Acosta, the Department of
Labor has taken measures to ensure deadbeat employers will go
unpunished. These include ending a policy holding businesses
responsible for violations committed by subcontractors, rescinding
disclosure requirements for law firms engaging in union busting,
overturning rules to prevent companies from misclassifying
employees as independent contractors (making them ineligible for
overtime, unemployment insurance and workers compensation), and
excluding many workers from overtime by lowering the disqualifying
income threshold former president Barack Obama had raised from
just over $23,000 to $47,000.
The Trump Department of Labor has also taken steps to hobble the
Occupational Safety and Health Administration (OSHA), an agency
established by Richard Nixon whose workplace safety mission isn't
normally an area of partisan contestation.
Nevertheless, under Trump, the Department of Labor has delayed
rules protecting workers from lung disease caused by exposure to
silica and beryllium, barred union representatives from certain
health and safety inspections and, in a petty but symbolic move,
erased a tally of deaths from workplace accidents from the
Occupational Safety and Health Administration website.
The Department of Labor isn't the only arena for Trump's assault
on workers. He has overturned Obama-era executive orders
requiring federal contractors to disclose labour and safety
violations, and companies to disclose race and gender pay gaps;
equal pay for women had been one of Ivanka Trump's personal causes
until it suddenly wasn't.
And at the Supreme Court, Trump's solicitor general made the
highly unusual move of switching sides in a case on whether
companies could force workers to sign mandatory arbitration
agreements and thereby lose their right to file class action
lawsuits; the Trump administration chose to argue against its own
agency, which had found this to be a violation of workers' rights.
Trump's most lasting legacy for workers is likely to be his
Supreme Court pick, Neil Gorsuch, who is poised to be the deciding
vote in a case that will financially cripple public sector unions
and speed the slow death of organised labour in the US.
It's hard to imagine a more anti-worker agenda from any president,
much less one claiming the mantle of champion of the American
worker. Yet despite this record, Trump continues to show up at
factories wearing a hardhat and taking credit for saving jobs that
have already been shipped overseas.
To say he's done nothing wouldn't be a fair assessment. It's just
nothing he promised workers, who were sold a president who would
repeal the North American Free Trade Agreement and stand up to
China, and instead got their overtime and workers comp taken away.
The business term for this is bait and switch. It's a practice
Trump knows well. As a businessman, he promised to pay his
workers, contractors and creditors, and frequently didn't. He
isn't the first president to get elected pledging to run
Washington like he runs his business. But at least, in this
regard, he was the most honest. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Copyright 2017. All rights reserved. ISSN 1525-2272.
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