/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/171006.mbx C L A S S A C T I O N R E P O R T E R Friday, October 6, 2017, Vol. 19, No. 198 Headlines AIC COMMUNICATIONS: Judge Awards $32MM in TCPA Class Action AMERICAN REALTY: Grant Thornton Appeals Ruling in Securities Suit APPLE INC: Court Denies Albrechtsen's Forma Pauperis Appeal APPLE INC: Faces "Morgan" Suit in Northern Dist. of California APPLE HOSPITALITY: Settlement in "Moses" Has Prelim. Approval ARCELOR MITTAL: Seventh Circuit Appeal Filed in Supreme Auto Suit ARRIUM: Class Action Against Former Management "Imminent" BANK MUTUAL: "Kowalski" Suit Moved to Eastern Dist. of Wisconsin BANK MUTUAL: "Wollenburg" Suit Moved to E.D. Wisconsin BIG LOTS: Court Partly Grants Bid to Stay "Willis" Suit BLACKROCK INC: Obtains Favorable Ruling in Securities Suit BLATT HASENMILLER: Bid to Strike Judgment Offer in "Spice" Denied BLUEGREEN VACATIONS: Faces "Vederman" Suit in S.D. Florida BRUMBAUGH & QUANDAHL: Bid to Dismiss "Washington" Partly OK'd BUCKS COUNTY, PA: Faces CA Lawsuit for Posting Mug Shots Online CANADA: Trial in Inmate Death Begins, Ont. Class Action Certified CHEESECAKE FACTORY: Rodriguez Appeals Judgment to Second Circuit CHIPOTLE MEXICAN: Can't Depose Chief Marketing Officer CITGO PETROLEUM: "Alexis" Suit Seeks Unpaid Wages under FLSA CLYDESDALE BANK: Faces Class Action Over Tailored Business Loans CNOVA NV: Reaches $28.5MM Settlement in U.S. Over IPO DO: Sued for Allegedly Causing Food Poisoning EDUCATIONAL CREDIT: Court Certifies Class in "Reyes" CIPA Suit ENZYMOTEC LTD: Jan. 24 Securities Settlement Fairness Hearing Set EQUIFAX INC: CFPB May Use Powers Under Dodd-Frank Act After Hack EQUIFAX INC: Faces "Zweig" Suit in E.D. New York EQUIFAX INC: Faces "Mohamedali" Suit in N.D. Georgia EQUIFAX INC: Faces "Galpern" Suit in N.D. California EQUIFAX INC: Beekman Sues over Consumers Data Breach EQUIFAX INC: Faces "Clark" Suit over Consumers Data Breach EQUIFAX INC: Faces "Gottesman" Suit over Consumers Data Breach EQUIFAX INC: Mardock Sues over Data Cybersecurity Incident EQUIFAX INC: Faces "McDowell" Suit over Data Breach EQUIFAX INC: Faces "Vita" Suit in Northern Dist. of Georgia EQUIFAX INFORMATION: Faces "Levy" Suit in E.D. New York EXPERIAN SERVICES: $650K Attys' Fees Awarded in "Rodriguez" FACEBOOK INC: St. John Appeals Order in Campbell Suit to 9th Cir. FACEBOOK INC: Settles Investor Lawsuit Over Control of Company FACEBOOK INC: Scraps Non-Voting Share Class Plan Prior to Trial FCA US: Jeep Wrangler Lawsuit Says Sand Causes Damage FLORIDA: Marijuana Law Challenged Over Black Farmer License GC SERVICES LIMITED: Appeals Court Allows Class Action to Proceed GOOGLE INC: Class Action Mulled Over Name Search Ban Violations GOVERNMENT EMPLOYEES: Court Denies Bid to Remand "Stone" Suit HAMILTON TOWNSHIP, NJ: Dec. 18 Settlement Approval Hearing Set HOME CAPITAL: Court Approves Settlement Agreement HOUSTON, TX: Homeowners Sue Over Hurricane Harvey Flooding HYLAND'S INC: Hammack Appeals Decision in "Forcellati" Class Suit IMPERIAL BANK: Depositors Mull Class Action Over Collapse INT'L PAPER: Court Allows Class Action Over Flooding to Proceed INTERNAL REVENUE: 10th Cir. Affirms Dismissal of AFSP Suit JACOB TRANSPORTATION: Limo Drivers Class in "Greene" Certified JOHNSON & JOHNSON: Sen. Sparks to Represent Firms in Class Suit JPMORGAN CHASE: Court Denies Bid to File TAC in Ponzi Scheme Suit JUNO THERAPEUTICS: Robbins Arroyo Probes Officers and Directors KNIGHT TRANSPORTATION: Truck Driver Allowed to Amend Complaint LON SMITH: Appeals Class Certification Ruling MAXWELL & MORGAN: Court Denies Class Certification in "Lowe" MDL 2639: Jammers Inc. Appeals Ruling to 9th Cir. MDL 2639: Alessi Appeals Ruling to Ninth Circuit MDL 2639: Barrios Appeals Decision to 9th Circuit MDL 2639: Bobadilla Appeals Ruling to 9th Circuit MDL 2639: Brady Appeals Ruling to Ninth Circuit MDL 2639: Galandak Appeals Ruling to 9th Circuit MDL 2639: Mahoney Appeals Ruling to Ninth Circuit MDL 2664: Court Dismisses Data Security Breach Suit MERCEDES-BENZ: Garick Sues over Radiator in 4-Matic Wagon Car MERGERS MARKETING: District Court Refuses to Remand "Alame" Suit MILAGRO OF MICHICAN: "Santillan" Suit Seeks unpaid OT under FLSA MILLENNIUM PRODUCTS: Ference Appeals Order in "Retta" Class Suit MURRAY GOULBURN: Farmers' Class Action Over Milk Price Pending NIDEC MOTOR: Faces "Spivak" Suit in California Superior Court NORTHERN MARIANAS: Settlement Trustee Seeks Tenant for Building NUTRACEUTICAL CORP: 9th Cir. Splits From Other Circuits OVERTON SECURITY: "McMillian" FLSA Claim Tossed w/ Leave to Amend OXNARD, CA: "Kittel" Suit Moved to Central District of California PATH INC: Attorneys Want $1.6MM Cut of App Privacy Deal PATRIOT NATIONAL: Safirstein Metcalf Files Class Action Lawsuit PENSKE LOGISTICS: Class Deal in "Rodriguez" Has Prelim. Nod PHC INC: First Circuit Appeal Filed in Maz Partners Class Suit PIGGLY WIGGLY: Court Partly Grants Bid to Dismiss ERISA Suit PPI, INC "Rosenberg" Suit Moved to Southern District of Florida RECEIVABLE MANAGEMENT: Faces "Phillips" Suit in N.D. Georgia RESTAURANT DELIVERY: Court OK's FLSA Notice in "Roberson" SFBSC MANAGEMENT: Some Class Members Object to Wage Settlement RON HILL: Court Denies Bid to Treat as Class Action ROYAL BANK: Freddie Mac Appeals Decision in N.J. Carpenters Suit SEPHORA USA: Court Dismisses State Law Claims in "Duran" SO. CAL PETROLEUM: "Rosales" Suit Moved to C.D. California SOUTH CAROLINA: Ridgeland Inmates' Claims Separated for Review SOUTHGOBI RESOURCES: Provides Update on Ontario Class Action ST. LOUIS, MO: ACLU Files Suit Over Civil Rights Violations STARBUCKS CORP: Court Denies Bid to Stay Discovery in FCRA Suit TD BANK: Pays Compensation for Shortchanging Customers TEMPLE TERRACE, FL: Certification of Rental Housing Class Denied TENNESSEE: Class Suit Filed Over Drivers' License Suspensions TIM HORTON: Franchisor Accuses Board Members of Leaking Data TINTRI INC: Robbins Arroyo Files Class Action TOKYO ELECTRIC: Ordered to Pay Former Fukushima Residents TRICOR AMERICA: Velarde Seeks Premium Wages under Labor Code TRIDENT ASSET: Faces "Burden" Suit in Northern Dist. of Georgia TROTT LAW: Continues to Defend Class Action Over FDCPA Violations UBER TECHNOLOGIES: Ninth Circuit Appeal Filed in "O'Connor" Suit UBER TECHNOLOGIES: O'Connor Appeals N.D. Calif. Order to 9th Cir. UNITED STATES: Review on Two Vets' Discharge Status Ordered UNIVERSITY OF MIAMI: ERISA Plaintiff Directed to Clarify Claims VEOLIA: Class Actions Over Role in Flint Water Crisis Pending VEON LTD: Court Denies Motion to Dismiss Securities Class Action VERMONT: Investors File Class Action Over Role in Jay Peak Fraud VIRGIN AMERICA: Court Denies Discovery Request in "Bernstein" VIVA LABS: Court Denies Move to Dismiss "Tracton" VOLVO CARS: Faces Class Action Over XC90 Sensus System Issues WILSHIRE COMMERCIAL: Court Extends Pre-Trial Schedule in "Diggs" * Group of College Professors Supports CFPB's Arbitration Rule * Military Groups Join Democrats' Defense of Arbitration Rule * Supreme Court to Address Arbitration Issues in New Term Asbestos Litigation ASBESTOS UPDATE: Painter Testifies in Asbestos Removal Case ASBESTOS UPDATE: Asbestos Attys Voice Support for Transparency ASBESTOS UPDATE: Asbestos Tiles Discovered at Temple University ASBESTOS UPDATE: Pa. Court Tosses Plaintiff Expert Testimony ASBESTOS UPDATE: Ainslie Shops Fluffy Clean-up Begins ASBESTOS UPDATE: Payout for Kin Killed by Asbestos from IRA Bomb ASBESTOS UPDATE: HFD Fined for Asbestos Violations During Fire ASBESTOS UPDATE: Indian Co. Set to Buy 50K Tons of Asbestos ASBESTOS UPDATE: Asbestos Found at Auckland's Langham Hotel ASBESTOS UPDATE: Misdiagnosis Prompts Call for Greater Awareness ASBESTOS UPDATE: Insurers Face Headwinds in Bid to Audit Payouts ASBESTOS UPDATE: Exposed Workers Urged to Sue Japanese Gov't. ASBESTOS UPDATE: J&J Knew About Asbestos in Talc Decades Ago ASBESTOS UPDATE: Mesothelioma Victim Awarded $6.8MM Jury Verdict ASBESTOS UPDATE: Off-Roading Can Expose Riders to Asbestos ASBESTOS UPDATE: Appeals Court Rejects "Bare-Metal" Defense ASBESTOS UPDATE: Sonoma State University Ordered to Pay $2.9MM ASBESTOS UPDATE: Shipyard Worker's Family Gets Asbestos Payment ASBESTOS UPDATE: Shield Vital to Protect Vets' Asbestos Claims ASBESTOS UPDATE: Johnson & Johnson Facing Asbestos Talc Suits ASBESTOS UPDATE: Rogers Corp. Had 616 Pending Claims at June 30 ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at June30 ASBESTOS UPDATE: AMETEK Still Faces Asbestos Lawsuits at June 30 ASBESTOS UPDATE: Exelon Unit Had US$81.0MM Reserves at June 30 ASBESTOS UPDATE: Exelon Expects Additional Exposure at June 30 ASBESTOS UPDATE: BGE Still Defends Asbestos Claims at June 30 ASBESTOS UPDATE: Rexnord Estimates $37MM Liability at June 30 ASBESTOS UPDATE: Transocean Units Had 23 Claims at June 30 ASBESTOS UPDATE: Transocean Unit Had 168 Injury Suits at June 30 ASBESTOS UPDATE: Standard Motor Faces 1,595 Cases at June 30 ASBESTOS UPDATE: Summary Judgment Favors Foster Wheeler, Warren ASBESTOS UPDATE: Court Denies John Crane's Summary Judgment Bid ASBESTOS UPDATE: NY App. Div. Reverses Owens Summary Judgment ASBESTOS UPDATE: PI Suit vs. Volkswagen in "Haynes" Dismissed ASBESTOS UPDATE: NY App. Div. Denies Re-Argument Bid in "Warren" ********* AIC COMMUNICATIONS: Judge Awards $32MM in TCPA Class Action ----------------------------------------------------------- Sam Knef, writing for St. Louis Record, reports that after finding in favor of plaintiffs in a trial in August over violations of the Telephone Consumer Protection Act (TCPA), a federal court judge has awarded $32.4 million in damages, or $10 per violation. In a case against FreeEats.com and AIC Communications, U.S. District Judge E. Richard Webber of the Eastern District of Missouri found that the TCPA statutory damages clause of $500 per violation is constitutional, "but a specific damages award may be unconstitutional if it is 'so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.'" The case involved a six-day telemarketing campaign that placed 3.2 million telephone calls. A jury trial had been held in the Eastern District of Missouri from Aug. 7-16, after which the court granted the plaintiffs' motion for judgment as a matter of law. The lead plaintiff was Ron Golan. The defendants in post-trial motions had asked for a reduction of damages to 10 cents per call, for a total award of $324,249, according to Webber's ruling issued Sept. 7. They argued that excessive-damage awards violate the Constitution. Had the $500 per violation been awarded, the total judgment against defendants would have amounted to $1.6 billion. Webber wrote that courts are "hesitant" to declare a statutory damage provision unconstitutional. He wrote that in relation to the TCPA, "the $500 per violation damages provision is meant to address harms that are otherwise unquantifiable such as invasions of privacy, unwanted disruptions, tied-up phone lines, and wasted time spent answering unwanted phone calls." Webber ruled that a $1.6 billion award would be "unreasonable and wholly disproportionate to the offense." He wrote that $10 fine per call reflects the "severity" in the case against FreeEats.com and AIC Communications "as well as respecting the purposes of the TCPA to have a deterrent effect and to account for unquantifiable losses including the invasions of privacy, unwanted interruptions and disruptions at home, and the wasted time spent answering unwanted solicitation calls or unwanted voice messages." He further wrote that the amount also takes into account the "significant" time and expense necessary to notify the class and distribute awards. [GN] AMERICAN REALTY: Grant Thornton Appeals Ruling in Securities Suit ----------------------------------------------------------------- Grant Thornton LLP filed an appeal from a court ruling in the consolidated lawsuit styled In re American Realty Capital Properties, Inc. Litigation, Case No. 15-mc-40, in the U.S. District Court for the Southern District of New York (New York City). The appellate case is captioned as In re American Realty Capital Properties, Inc. Litigation, Case No. 17-2858, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter on Sept. 22, 2017, American Realty Capital Properties, Inc. and other defendants filed with the U.S. Court of Appeals for the Second Circuit a petition for permission to appeal orders granting class certification in the case. According to VEREIT, Inc. and VEREIT Operating Partnership, L.P.'s Form 10-Q Report filed with the Securities and Exchange Commission on August 3, 2017, for the quarterly period ended June 30, 2017, between October 30, 2014 and January 20, 2015, the Company and certain of its former officers and directors, among other individuals and entities, were named as defendants in ten securities class action complaints filed in the District Court. The District Court consolidated these actions under the caption In re American Realty Capital Properties, Inc. Litigation, No. 15-MC- 00040 (AKH) (the "SDNY Consolidated Securities Class Action"). The plaintiffs filed a second amended class action complaint on December 11, 2015, which asserted claims for violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.[BN] Petitioner Grant Thornton LLP is represented by: Gary F. Bendinger, Esq. SIDLEY AUSTIN LLP 787 7th Avenue New York, NY 10019 Telephone: (212) 839-5387 Facsimile: (212) 839-5599 E-mail: gbendinger@sidley.com Respondents Teachers Insurance and Annuity Association of America, College Retirement Equities Fund (TIAA-CREF), College Retirement Equities Fund, TIAA-CREF Equity Index Fund, TIAA-CREF Real Estate Securities Fund, TIAA-CREF Large Cap Value Index Fund, TIAA-CREF Small Cap Blend Index Fund, TIAA-CREF Life Real Estate Securities Fund, TIAA-CREF Life Equity Index Fund, TIAA-CREF Bond Index Fund, Noah Bender, City of Tampa General Employees Retirement Fund, and James W. Edwards, Jr., individually and on behalf of all others, are represented by: Darren J. Robbins, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-7423 E-mail: darrenr@rgrdlaw.com Respondent Simon Adabi is represented by: Joseph H. Weiss, Esq. WEISS & LURIE 1500 Broadway New York, NY 10036 Telephone: (212) 682-3025 E-mail: jweiss@weisslawllp.com Respondents Corsair Select 100, L.P.; Corsair Select Master Fund, Ltd.; Corsair Capital Partners, L.P.; Corsair Select, L.P.; Corsair Capital Partners 100, L.P.; and Corsair Capital Investors, Ltd., are represented by: Thomas M. Skelton, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway White Plains, NY 10601 Telephone: (914) 997-0500 Facsimile: (914) 997-0035 E-mail: tskelton@lowey.com Respondents IRA FBO John Esposito and Berney Harris, individually and on behalf of all others similarly situated, are represented by: Howard T. Longman, Esq. STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Telephone: (212) 687-7230 Facsimile: (212) 490-2022 E-mail: hlongman@ssbny.com Respondents New York City Fire Officers Variable Supplements Fund, Board of Education Retirement System of the City of New York, Teachers' Retirement System of the City of New York, Variable A, New York City Police Superior Officers Variable Supplements Fund, New York City Employees' Retirement System, New York City Firefighters Variable Supplements Fund, Teachers' Retirement System of the City of New York, New York City Police Pension Fund, and New York City Fire Department Pension Fund are represented by: Julie Goldsmith Reiser, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Washington, DC 20005 Telephone: (202) 589-2269 Facsimile: (202) 408-4699 E-mail: jreiser@cohenmilstein.com Respondents Mitchell Ellis and Bonnie Ellis are represented by: Adam M. Apton, Esq. LEVI & KORSINSKY LLP 1101 30th Street, NW Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 333-2121 E-mail: AApton@zlk.com Respondents Union Asset Management Holding AG, KBC Asset Management NV and Sheet Metal Workers' National Pension Fund are represented by: Donald Migliori, Esq. MOTLEY RICE LLC 321 South Main Street Providence, RI 02903 Telephone: (401) 457-7700 E-mail: dmigliori@motleyrice.com Respondent Paul Matten is represented by: William Scott Holleman, Esq. JOHNSON & WEAVER, LLP 99 Madison Avenue New York, NY 10016 Telephone: (212) 802-1486 E-mail: scotth@johnsonandweaver.com Respondent State Teachers Retirement Systems of Ohio is represented by: Glen DeValerio, Esq. BERMAN TABACCO One Liberty Square Boston, MA 02109 Telephone: (617) 542-8300 Facsimile: (617) 542-1194 E-mail: kdevalerio@bermantabacco.com Respondent Bernard Priever is represented by: Robert Craig Finkel, Esq. WOLF POPPER LLP 845 3rd Avenue New York, NY 10022 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: rfinkel@wolfpopper.com Respondent Sjunde Ap-Fonden is represented by: Geoffrey C. Jarvis, Esq. GRANT & EISENHOFER P.A. 123 Justison Street Wilmington, DE 19801 Telephone: (302) 622-7000 Facsimile: (302) 622-7100 E-mail: gjarvis@gelaw.com Respondent Stuart Rubinstein is represented by: Gregory Mark Nespole, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4693 E-mail: nespole@whafh.com APPLE INC: Court Denies Albrechtsen's Forma Pauperis Appeal ----------------------------------------------------------- In the case captioned MARK A. ALBRECHTSEN on behalf of himself and a class of others similarly situated, Plaintiff, v. APPLE, INC. c/o CT Corporation System, Registered Agent, 818 W 7th Street, Suite 930 Los Angeles, CA 90017, Defendant, No. 1:17-cv-01664-TWP- TAB (S.D. Ind.), Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, denied the Plaintiff's request to proceed on appeal without prepayment of the appellate fees of $505. Judge Pratt explained that an appeal may not be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. She found no objectively reasonable argument the Plaintiff could present to argue that the disposition of the action was erroneous. In fact, the Plaintiff agreed with the Court's determination that it lacked subject matter jurisdiction. To the extent the pro se Plaintiff wishes to challenge the Court's decision not to certify the action as a class action, that too is not an objectively reasonable claim. In pursuing an appeal, therefore, the Plaintiff is acting in bad faith because to sue in bad faith means merely to sue on the basis of a frivolous claim, which is to say a claim that no reasonable person could suppose to have any merit. Accordingly, his appeal is not taken in good faith. For this reason, Judge Pratt denied the Plaintiff's request for leave to proceed on appeal in forma pauperis. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/Z3pjqa from Leagle.com. MARK A. ALBRECHTSEN, on behalf of himself and a class of others similarly situated, Plaintiff, Pro Se. APPLE, INC., Defendant, represented by Thomas Eugene Mixdorf -- thomas.mixdorf@icemiller.com -- ICE MILLER LLP. APPLE INC: Faces "Morgan" Suit in Northern Dist. of California -------------------------------------------------------------- A class action lawsuit has been filed against Apple, Inc. The case is captioned as Deonn Morgan, Lydia Zepeda, Sophia Ivy Kelly Okorocha, and Jennifer Zielinski, individually and on behalf of themselves and all others similarly situated, the Plaintiffs, v. Apple, Inc., the Defendant, Case No. 3:17-cv-05277-RS (N.D. Cal., Sep. 12, 2017). The case is assigned to the Hon. Richard Seeborg. Apple Inc. is an American multinational technology company headquartered in Cupertino, California that designs, develops, and sells consumer electronics.[BN] The Plaintiffs are represented by: Gregory F Coleman, Esq. GREG COLEMAN LAW PC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247 0080 Facsimile: (865) 522 0049 E-mail: greg@gregcolemanlaw.com - and - Hassan Ali Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street, N.W., Suite 1000 Washington, DC 20036 Telephone: (202) 973 0900 Facsimile: (202) 973 0950 E-mail: hzavareei@tzlegal.com - and - Annick Marie Persinger, Esq. TYCKO & ZAVAREEI LLP 483 Ninth Street, Suite 200 Oakland, CA 94607 Telephone: (510) 254 6808 Facsimile: (202) 973 0950 E-mail: apersinger@tzlegal.com - and - E. Powell Miller, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841 2200 Facsimile: (248) 652 2852 E-mail: epm@millerlawpc.com - and - Sharon S Almonrode, Esq. 950 W. University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841 2200 E-mail: ssa@millerlawpc.com - and - Sophia Jaclyn Goren, Esq. TYCKO AND ZAVAREEI LLP 1828 L Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973 0900 Facsimile: (202) 973 0950 E-mail: sgoren@tzlegal.com APPLE HOSPITALITY: Settlement in "Moses" Has Prelim. Approval ------------------------------------------------------------- Magistrate Judge Steven M. Gold of the U.S. District Court for the Eastern District of New York preliminarily approved the class action settlement in the case captioned SUSAN MOSES, on behalf of herself and all others similarly situated, Plaintiff, v. APPLE HOSPITALITY REIT INC., Defendant, Case No. 1:14-cv-03131 (SMG) (E.D. N.Y.). The Parties have entered into a Stipulation of Settlement dated Aug. 25, 2017 to settle the litigation for $5.5 million. For the purposes of the Settlement only, Magistrate Judge Gold preliminarily certifies the Settlement Class described as any person in the United States who participated in the DRIPs for Apple REIT Seven and/or Apple REIT Eight from July 17, 2007 to June 27, 2013 inclusive. He preliminarily appointed Susan Moses as the Class Representative of the Class; and Salas Wang LLC, Eccleston Law, LLC, and Law Office of Christopher J. Gray, P.C. as the Interim Class Counsel. Magistrate Judge Gold preliminarily approved the Settlement. A Final Fairness Hearing will be held by the Court on Jan. 16, 2018 at 4:30 p.m. He approved the substance and requirements of the Notice. No later than Oct. 10, 2017, the Interim Class Counsel will mail, or cause to be mailed, the Notice to those Class members who can be identified through reasonable effort. Not later than Oct. 20, 2017, the Interim Class Counsel will also cause a summary notice to be published via PR Newswire or another national wire service and will establish a website that will (at a minimum) provide Class members with access to this Order, the Stipulation of Settlement, the Notice, and all of the papers before the Court on the Motion. The Magistrate Judge consider any objections, and comments in support of or in opposition to the Settlement, the Plan of Allocation, or any request by counsel for an award of attorneys' fees and reimbursement of litigation expenses, only if such comments and any supporting papers are in writing and filed with the Clerk of the Court, United States District Court for the Eastern District of New York, 225 Cadman Plaza East, Room 130, Brooklyn, NY 11201, and copies of all such papers are served, on or before Dec. 29, 2017 upon each of the following by U.S. Mail and e-mail: Jeffrey M. Salas SALAS WANG, LLC 73 West Monroe, Suite 219 Chicago, IL 60603 (312) 803-4963 (312) 244-3151 (fax) jsalas@salaswang.com James J. Eccleston Stephany D. McLaughlin ECCLESTON LAW, LLC 55 West Monroe, Suite 610 Chicago, IL 60603 (312) 332-0000 (312) 332-0003 (fax) jeccleston@ecclestonlaw.com Christopher J. Gray Michael J. Giarrusso LAW OFFICE OF CHRISTOPHER J. GRAY, P.C. 360 Lexington Avenue, 14th Floor New York, New York 10017 (212) 838-3221 (212) 937-3139 (fax) chris@investorlawyers.net Any replies to any objections or comments will be filed and served no later than Jan. 5, 2018. Persons who intend to object to the Settlement, the Plan of Allocation, and/or any request by counsel for an award of attorneys' fees and reimbursement of litigation expenses and desire to present evidence at the Final Fairness Hearing must include in their written objections the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the Final Fairness Hearing. All parties are notified that the final approval of the Settlement would result in the dismissal, with prejudice, of all claims in the Litigation. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/bvQCNx from Leagle.com. Susan Moses, Plaintiff, represented by Christopher J. Gray -- christopher.j.gray@hud.gov -- Law Offices of Christopher J. Gray, P.C.. Susan Moses, Plaintiff, represented by James J. Eccleston -- JEccleston@ecclestonlaw.com -- Eccleston Law Offices, P.C., Jeffrey M. Salas -- jsalas@salaswang.com -- Salas Wang LLC, pro hac vice & Christine Elizabeth Goodrich -- cgoodrich@faruqilaw.com -- Faruqi & Faruqi, LLP. Marsha Wilchfort, Plaintiff, represented by Lee Squitieri -- lee@sfclasslaw.com -- Squitieri & Fearon, LLP. Apple Hospitality REIT, Inc., Defendant, represented by Elizabeth F. Edwards -- eedwards@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr. -- jmcmahan@glvlawfirm.com -- McGuirewoods LLP, Michelle M. Christian -- mchristian@seyfarth.com -- McGuirewoods LLP, pro hac vice, Marwill Beil -- mbeil@mcguirewoods.com -- McGuireWoods, Richard L. Jarashow -- rjarashow@mcguirewoods.com -- McGuire Woods LLP & Stanley A. Roberts, McGuireWoods LLP. Glade M. Knight, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Bryan Peery, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Kent W. Colton, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Glenn W. Bunting, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Ronald A. Rosenfeld, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Anthony Francis Keating, III, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Lisa B. Kern, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Bruce H. Matson, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Michael S. Waters, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. Robert M. Wily, Defendant, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marwill Beil, McGuireWoods & Richard L. Jarashow, McGuire Woods LLP. ARCELOR MITTAL: Seventh Circuit Appeal Filed in Supreme Auto Suit ----------------------------------------------------------------- Supreme Auto Transport, LLC, Douglas Baker, Peter Kreutzfeldt, Mark P. Lynch and Cynthia K. Seley filed an appeal from a court ruling in their lawsuit titled Supreme Auto Transport, LLC, et al. v. Arcelor Mittal USA, Inc., et al., Case No. 1:08-cv-05468, in the U.S. District Court for the Northern District of Illinois, Eastern Division. The lawsuit arose from alleged violations of antitrust laws. The appellate case is captioned as Supreme Auto Transport, LLC, et al. v. Arcelor Mittal USA, Inc., et al., Case No. 17-2910, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript information sheet was due September 29, 2017; and -- Appellant's brief is due on or before October 25, 2017, for Douglas Baker, Peter Kreutzfeldt, Mark P. Lynch, Cynthia K. Seley and Supreme Auto Transport, LLC.[BN] Plaintiffs-Appellants SUPREME AUTO TRANSPORT, LLC, A Michigan Corporation, on behalf of themselves and all others similarly situated, PETER KREUTZFELDT, DOUGLAS BAKER, CYNTHIA K. SELEY and MARK P. LYNCH are represented by: Christopher Lovell, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 61 Broadway New York, NY 10006 Telephone: (212) 608-1900 Facsimile: (212) 719-4677 E-mail: clovell@lshllp.com Defendant-Appellee ARCELOR MITTAL USA, INC., is represented by: Andrew S. Marovitz, Esq. MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 782-0600 Facsimile: (312) 706-8651 E-mail: amarovitz@mayerbrown.com Defendant-Appellee UNITED STATES STEEL CORPORATION is represented by: Daniel I. Booker, Esq. REED SMITH LLP 225 Fifth Avenue Reed Smith Centre Pittsburgh, PA 15222-0000 Telephone: (412) 288-3132 Facsimile: (412) 288-3063 E-mail: dbooker@reedsmith.com Defendant-Appellee NUCOR CORPORATION is represented by: Todd Jay Ehlman, Esq. WINSTON & STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Telephone: (312) 558-5600 E-mail: tehlman@winston.com Defendant-Appellee GERDAU AMERISTEEL CORPORATION is represented by: Jacob Hamann, Esq. EIMER STAHL LLP 224 S. Michigan Avenue Chicago, IL 60604-2516 Telephone: (312) 660-7614 E-mail: jhamann@eimerstahl.com Defendant-Appellee STEEL DYNAMICS, INCORPORATED, is represented by: Joel G. Chefitz, Esq. MCDERMOTT, WILL & EMERY LLP 444 W. Lake Street Chicago, IL 60606-0029 Telephone: (312) 984-6484 Facsimile: (312) 984-7700 E-mail: jchefitz@mwe.com Defendant-Appellee AK STEEL HOLDING CORPORATION is represented by: Kevin J. Mahoney, Esq. SEYFARTH SHAW LLP 233 S. Wacker Drive Chicago, IL 60606-6448 Telephone: (312) 460-5737 Facsimile: (312) 460-7537 E-mail: kmahoney@Seyfarth.com Defendant-Appellee SSAB SWEDISH STEEL CORPORATION is represented by: John W. Treece, Esq. SIDLEY AUSTIN LLP One S. Dearborn Street Chicago, IL 60603-0000 Telephone: (312) 853-7000 Facsimile: (312) 853-7036 E-mail: jtreece@sidley.com Defendant-Appellee COMMERCIAL METALS, INC., is represented by: Angela M. Liu, Esq. DECHERT LLP 35 W. Wacker Drive Chicago, IL 60601-1608 Telephone: (312) 646-5800 Facsimile: (312) 646-5858 E-mail: angela.liu@dechert.com ARRIUM: Class Action Against Former Management "Imminent" --------------------------------------------------------- Luke Griffiths, writing for The Advertiser, reports that aggrieved Arrium shareholders say a class action against the company's former management is imminent thanks to the backing of a mystery international backer. Arrium Shareholders United spokesman Robert Dadge said the group's 700 members had entered into a non-disclosure agreement with an overseas legal firm and that the launch of a claim against Arrium's former management was "imminent". Although unable to reveal the identities of the legal team or the person he said would fund the action, Mr Dadge -- whose Arrium investment has cost him $60,000 -- said they were "definitely not Mickey Mouse types". "There seems to be a black hole of money in early 2016, leading up to the administration . . . a strong possibility that the company was trading while insolvent," he said. Mr Dadge's comments come a day after Arrium administrator, KordaMentha, announced that it had commenced the distribution of $500 million to unsecured creditors. [GN] BANK MUTUAL: "Kowalski" Suit Moved to Eastern Dist. of Wisconsin ---------------------------------------------------------------- In the lawsuit captioned as RUSSELL SCHUMEL, ALEX JAMES KOWALSKI and HOLLY KAY KOWALSKI, Individually And On Behalf Of All Others Similarly Situated, the Plaintiffs, v. BANK MUTUAL CORPORATION, MICHAEL T. CROWLEY, JR., DAVID A. BAUMGARTEN, RICHARD A. BROWN, MARK C. HERR, MIKE I. SHAFIR, DAVID C. BOERKE, LISA A. MAUER, ROBERT B. OLSON, THOMAS H. BUESTRIN, WILLIAM J. MIELKE and ASSOCIATED BANC-CORP, Case No. 2017-cv-006201, the Defendants removed the case on Sep. 13, 2017 from the Circuit Court of Milwaukee County, Wisconsin, to United States District Court for the Eastern District of Wisconsin. The District Court Clerk assigned Case No. 2:17-cv-01240-PP to the proceeding. According to the complaint, Bank Mutual and Associated on July 20, 2017, announced that they had entered into an agreement pursuant to which each share of Bank Mutual common stock will be converted into the right to receive 0.422 shares of Associated common stock. The Operative Complaint alleges that, based on Associated's July 19, 2017 closing stock price of $24.60 per share, the all-stock transaction was valued at approximately $482 million. The Operative Complaint further alleges that the Merger Consideration "is inadequate and undervalues" Bank Mutual. The Plaintiffs assert state law causes of action for breach of fiduciary duty and for aiding and abetting against Associated and Bank Mutual. The Plaintiffs purport to bring this action as a class action on behalf of themselves and "all other holders of Bank Mutual common stock who are being and will be harmed" by the Defendants' actions. The Plaintiffs allege that there are approximately 45,932,253 outstanding shares of Bank Mutual common stock.[BN] Attorneys for Defendant Associated Banc-Corp: Howard A. Pollack, Esq. Michael B. Apfeld, Esq. John L. Kirtley, Esq. GODFREY & KAHN, S.C. 833 East Michigan Street, Suite 1800 Milwaukee, WI 53202-5615 Telephone: (414) 273 3500 Facsimile: (414) 273 5198 E-mail: hpollack@gklaw.com mbapfeld@gklaw.com jkirtley@gklaw.com - and - Rachelle Silverberg, Esq. WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, NY 10019 Telephone: 212 403 1299 Facsimile: 212 403 2299 E-mail: RSilverberg@wlrk.com BANK MUTUAL: "Wollenburg" Suit Moved to E.D. Wisconsin ------------------------------------------------------ In the lawsuit captioned as FREDERICK WOLLENBURG, On Behalf Of Himself and All Others Similarly Situated, the Plaintiffs, v. BANK MUTUAL CORPORATION, MICHAEL T. CROWLEY, JR., DAVID A. BAUMGARTEN, WILLIAM J. MIELKE, THOMAS H. BUESTRIN, ROBERT B. OLSON, MARK C. HERR, DAVID C. BOERKE, RICHARD A. BROWN, LISA A. MAUER, MIKE I. SHAFIR and ASSOCIATED BANC-CORP, the Defendants, Case No. 2017-cv-007312, the Defendants removed the case on Sep. 13, 2017, from the Circuit Court of Milwaukee County, Wisconsin, to United States District Court for the Eastern District of Wisconsin. The District Court Clerk assigned Case No. 2:17-cv- 01242-PPto the proceeding. According to the complaint, Bank Mutual and Associated announced on July 20, 2017, that the parties had entered into an agreement pursuant to which each share of Bank Mutual common stock will be converted into the right to receive 0.422 shares of Associated common stock. The Operative Complaint alleges that, based on Associated's July 19 closing stock price of $24.60 per share, the all-stock transaction was valued at approximately $482 million. The Operative Complaint further alleges that the Merger Consideration "is inadequate and undervalues" Bank Mutual. The Plaintiffs assert state law causes of action for breach of fiduciary duty and for aiding and abetting against Associated and Bank Mutual. The Plaintiffs purport to bring this action as a class action on behalf of themselves and "all other holders of Bank Mutual common stock who are being and will be harmed" by the Defendants' actions. The Plaintiffs allege that there are approximately 45,932,253 outstanding shares of Bank Mutual common stock.[BN] Attorneys for Defendant Associated Banc-Corp: Howard A. Pollack, Esq. Michael B. Apfeld, Esq. John L. Kirtley, Esq. GODFREY & KAHN, S.C. 833 East Michigan Street, Suite 1800 Milwaukee, WI 53202-5615 Telephone: (414) 273 3500 Facsimile: (414) 273 5198 E-mail: hpollack@gklaw.com mbapfeld@gklaw.com jkirtley@gklaw.com - and - Rachelle Silverberg, Esq. WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, NY 10019 Telephone: 212 403 1299 Facsimile: 212 403 2299 E-mail: RSilverberg@wlrk.com BIG LOTS: Court Partly Grants Bid to Stay "Willis" Suit ------------------------------------------------------- In the case captioned ALAN WILLIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BIG LOTS, INC., et al., Defendants, Civil Action No. 2:12-cv-604 (S.D. Ohio), Judge Kimberly A. Jolson of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted in part and denied in part the Defendants' Motion To Stay Pending Rule 23(f) Appeal. This is a securities class action in which the Plaintiffs allege that the Defendants unlawfully inflated the value of Big Lots' stock during the period from March 2, 2012 to Aug. 23, 2012 by concealing the company's true financial condition. On March 17, 2017, the Court issued an Opinion and Order granting the Motion filed by Lead Plaintiff, City of Pontiac General Employees' Retirement System, for class certification and for the appointment of itself and Teamsters Local 237 Additional Security Benefit Fund as Class Representatives and the law firm Robbins Geller Rudman & Dowd LLP as Class Counsel ("Underlying Motion"). Two weeks later, the Defendants filed a Motion To Stay Dissemination Of Notice To Class Members Pending Rule 23(f) Appeal. On May 4, 2017, the Court issued a Report and Recommendation recommending that the Defendants Motion be granted in part and denied in part. More specifically, the Undersigned recommended that the Court direct the parties to prepare the class notice for publication and mailing, but not permit dissemination of the notice until the Sixth Circuit has resolved the petition for permissive leave to appeal. Judge Jolson added that if that petition is granted, she may then consider a renewed Motion to Stay. The Court adopted the Report and Recommendation on June 8, 2017, and thus dissemination of class notice was stayed. It also stated that if the Defendants' petition for appeal is granted, they could renew the Motion to Stay. The Sixth Circuit granted the Defendants' petition for appeal on Aug. 23, 2017. Although the Plaintiffs agree that a stay of dissemination of class notice should continue pending appeal, they oppose the Defendants' request to stay the remainder of the proceedings. Consequently, the Defendants filed the instant Motion on Aug. 28, 2017. Judge Jolson concludes that although questions remain about the Defendants' likelihood of success on appeal, the landscape has changed insomuch as the Sixth Circuit has granted the Defendants' petition for appeal. As the Court explained in In re Polyurethane Foam Antitrust Litig., the defendants' burden with respect to a showing a likelihood of success on the merits is two-fold: the defendants must show a likelihood that the Rule 23(f) petition will be granted, and that the Sixth Circuit will reverse" the certification decision. Here, the Defendants have satisfied the first part of that burden. As to the second, there is at least some merit to their position concerning the likelihood of success given that the Sixth Circuit has yet to consider the price maintenance theory. Thus, even if this factor is a neutral or continues to weigh against a stay (albeit less so in light of the procedural posture), it is not a prerequisite and must be balanced with the potential harms and the public interest which weigh in favor of a stay. The Judge further concludes that the Defendants would suffer only a minimal burden if required to comply with the deadline for expert reports. As the Plaintiffs explain, the parties were in the midst of completing expert discovery on Aug. 23, 2017, when the Sixth Circuit granted the Defendants' petition to appeal. Specifically, the Plaintiffs served their expert reports on July 24, 2017, the Defendants' expert reports are due on Sept. 22, 2017, and the Plaintiffs' rebuttal reports are due on Oct. 27, 2017. Thus, the Motion to Stay is denied in part as it relates to expert reports. However, Judge Jolson agrees that absent a stay of the remaining expert discovery and the summary judgment deadline, significant costs and judicial resources may be expended unnecessarily, which is counter to the interests of the parties, the Court, and the public. This is not a situation where, as the Plaintiffs' contend, a stay would do nothing more than unnecessarily delay the resolution of this litigation. Because the Sixth Circuit's decision may define the contours of this case going forward, the Motion to Stay is granted in part. Based on these, Judge Jolson granted in part and denied in part the Defendants' Motion. More specifically, the parties are ordered to comply with the deadlines for expert reports, but the remaining case deadlines are stayed pending resolution of the interlocutory appeal in the Sixth Circuit. Further, the stay of dissemination of class notice continues. Any party may, within 14 days after the Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due 14 days after objection, and no reply will be filed without leave of Court. The District Judge, upon consideration of the motion, will set aside any part of the Order found to be clearly erroneous or contrary to law. The Order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. A full-text copy of the Court's Sept. 19, 2017 Opinion and Order is available at https://is.gd/vsjxR4 from Leagle.com. Alan Willis, Plaintiff, represented by Austin P. Brane -- ABrane@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice. Alan Willis, Plaintiff, represented by Brian E. Cochran -- bcochran@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, pro hac vice, Brian K. Murphy -- murphy@mmmb.com -- Murray Murphy Moul + Basil LLP, David W. Mitchell -- davidm@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Kevin A. Lavelle -- klavelle@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice & Joseph F. Murray -- murray@mmmb.com -- Murray Murphy Moul + Basil LLP. City of Pontiac General Employees' Retirement System, Plaintiff, represented by Brian E. Cochran, Robbins Geller Rudman Dowd LLP, pro hac vice, David W. Mitchell, Robbins Geller Rudman & Dowd LLP, pro hac vice, Joseph F. Murray, Murray Murphy Moul Basil LLP, Austin P. Brane, Robbins Geller Rudman & Dowd LLP, pro hac vice, Kevin A. Lavelle, Robbins Geller Rudman & Dowd LLP, pro hac vice & Lucas F. Olts, Robbins Geller Rudman & Dowd LLP, pro hac vice. Teamsters Local 237 Additional Security Benefit Fund, Plaintiff, represented by Joseph F. Murray, Murray Murphy Moul Basil LLP. Big Lots, Inc., Defendant, represented by John Joseph Kulewicz -- jjkulewicz@vorys.com -- Vorys Sater Seymour & Pease, William Darrell Kloss, Jr. -- wdklossjr@vorys.com -- Vorys Sater Seymour & Pease, Caitlin N. Fitzpatrick -- cfitzpatrick@cravath.com -- Cravath, Swaine & Moore LLP, pro hac vice, David A. Herman, Cravath, Swaine & Moore LLP, pro hac vice, Matthew P. Hendrickson -- matthew.hendrickson@skadden.com -- Cravath, Swaine & Moore LLP, pro hac vice, Michael A. Paskin -- mpaskin@cravath.com -- Cravath, Swaine & Moore LLP, pro hac vice & Timothy G. Cameron -- tcameron@cravath.com -- Cravath, Swaine & Moore, LLP, pro hac vice. Steven S. Fishman, Defendant, represented by John Joseph Kulewicz, Vorys Sater Seymour & Pease, William Darrell Kloss, Jr., Vorys Sater Seymour & Pease, Caitlin N. Fitzpatrick, Cravath, Swaine & Moore LLP, pro hac vice, David A. Herman, Cravath, Swaine & Moore LLP, pro hac vice, Matthew P. Hendrickson, Cravath, Swaine & Moore LLP, pro hac vice, Michael A. Paskin, Cravath, Swaine & Moore LLP, pro hac vice & Timothy G. Cameron, Cravath, Swaine & Moore, LLP, pro hac vice. Joe R. Cooper, Defendant, represented by John Joseph Kulewicz, Vorys Sater Seymour & Pease, William Darrell Kloss, Jr., Vorys Sater Seymour & Pease, Caitlin N. Fitzpatrick, Cravath, Swaine & Moore LLP, pro hac vice, David A. Herman, Cravath, Swaine & Moore LLP, pro hac vice, Matthew P. Hendrickson, Cravath, Swaine & Moore LLP, pro hac vice, Michael A. Paskin, Cravath, Swaine & Moore LLP, pro hac vice & Timothy G. Cameron, Cravath, Swaine & Moore, LLP, pro hac vice. Charles W Haubiel II, Defendant, represented by John Joseph Kulewicz, Vorys Sater Seymour & Pease. Charles W. Haubiel II, Defendant, represented by William Darrell Kloss, Jr., Vorys Sater Seymour & Pease, Caitlin N. Fitzpatrick, Cravath, Swaine & Moore LLP, pro hac vice, David A. Herman, Cravath, Swaine & Moore LLP, pro hac vice, Matthew P. Hendrickson, Cravath, Swaine & Moore LLP, pro hac vice, Michael A. Paskin, Cravath, Swaine & Moore LLP, pro hac vice & Timothy G. Cameron, Cravath, Swaine & Moore, LLP, pro hac vice. Timothy A. Johnson, Defendant, represented by William Darrell Kloss, Jr., Vorys Sater Seymour & Pease, Caitlin N. Fitzpatrick, Cravath, Swaine & Moore LLP, pro hac vice, David A. Herman, Cravath, Swaine & Moore LLP, pro hac vice, John Joseph Kulewicz, Vorys Sater Seymour & Pease, Matthew P. Hendrickson, Cravath, Swaine & Moore LLP, pro hac vice, Michael A. Paskin, Cravath, Swaine & Moore LLP, pro hac vice & Timothy G. Cameron, Cravath, Swaine & Moore, LLP, pro hac vice. BLACKROCK INC: Obtains Favorable Ruling in Securities Suit ---------------------------------------------------------- Sarah Krouse, writing for Dow Jones Newswires, reports that investors could have a more difficult time suing exchange-traded fund managers for misrepresenting risks following a California court decision in favor of ETF giant BlackRock Inc. A group of investors who lost money during a wild day of ETF trading in 2015 accused BlackRock's iShares unit of leaving out certain warnings about what could go wrong in fund documents. BlackRock said in court documents that its warnings were adequate. Because of the way ETF shares are created and sold, those investors were unable to link their holdings to a specific registration statement that they said misrepresented certain risks and therefore couldn't sue, according to San Francisco Superior Court Judge Curtis E.A. Karnow. In his ruling on Sept. 18, the judge said investors who purchase securities after they are first issued are unable to sue under a specific section of securities law. The case showcases the evolving legal and regulatory infrastructure surrounding the relatively nascent ETF market as the products gain popularity and are tested by market events, according to fund lawyers. Globally ETFs hold $4.2 trillion in assets, up from less than a trillion a decade ago. BlackRock's iShares unit is the biggest ETF provider in the world, with $1.5 trillion in assets at the end of June. The court's decision could limit investors' ability to sue ETF providers for leaving out or misrepresenting risks in fund registration statements in the future, these lawyers say. If the decision stands, "no retail investor will ever be able to sue for a false registration statement or prospectus" for ETFs, said Reed Kathrein -- reed@hbsslaw.com -- an attorney for the investors at Hagens Berman Sobol Shapiro LLP. He said he plans to appeal the decision. While ETFs share some similarities with mutual funds, their structure and mechanics are distinct, and subject to different rules. ETFs trade on exchanges like stocks and typically track the performance of indexes. They have some tax and trading advantages over mutual funds and have pulled in hundreds of billions of dollars in investor cash in recent years. But the same structure that has made ETFs popular trading and investing products also makes it impossible for individual investors to track when the shares they own were issued and for fund providers to see who owns them in real time, industry experts and lawyers say. Shares in mutual funds are purchased from fund managers themselves. ETF providers first create and redeem shares in their funds in large blocks with so-called authorized participants in exchange for baskets of securities. This is referred to as the primary market and shares are then sold to individual investors and others in the so-called "secondary market." The investors who brought the class-action suit against BlackRock lost money on Aug. 24, 2015, when large stock share-price declines triggered a wave of trading halts and dozens of ETFs traded at sharp discounts to the sum of their holdings. Those investors alleged in part that BlackRock failed to clearly state the risks of buying and selling ETFs using particular order types, even though the fund firm had known for years that such risks existed. BlackRock defended its disclosures and successfully argued that retail investors bringing the case must be able to link their shares to registration statements that were misleading when shares were first issued to authorized participants. That, however, isn't possible, BlackRock said. Shares in ETFs are "fungible and cannot be traced by plaintiffs to any other particular registration statement or amendment thereto, much less one that was materially false and misleading when the shares were first sold in the primary market," BlackRock said in court documents. Investors in the California case unsuccessfully argued that shares they bought after the publication of fund sales documents that they say omitted certain risks should be covered by that material. Other courts could interpret current regulations differently, fund lawyers say. "It's a very interesting precedent," to apply the standard of linking a specific security to a particular registration statement to ETFs, said Jay Baris -- jbaris@mofo.com -- chair of Morrison & Foerster LLP's investment management practice. There are other avenues for ETF investors to sue investment managers, but one such option requires proving that the money manger intended to mislead investors, which is a more difficult standard to meet, fund lawyers say. [GN] BLATT HASENMILLER: Bid to Strike Judgment Offer in "Spice" Denied ----------------------------------------------------------------- In the case captioned GLORIA SPICE, on behalf of herself and all others similarly situated, Plaintiff, v. BLATT, HASENMILLER, LEIBSKER & MOORE LLC, Defendant, Cause No. 1:16-CV-366-TLS (N.D. Ind.), Judge Theresa L. Springmann of the U.S. District Court for the Northern District of Indiana denied the Plaintiff's Motion to Strike Offer of Judgment. Plaintiff Spice, on behalf of herself and all other similarly situated, has filed a class action complaint alleging violations of the Fair Debt Collection Practice Act. On May 26, 2017, she filed a motion to certify the class. This matter is before the Court on the Plaintiff's June 12, 2017, Motion to Strike Offer of Judgment that the Defendant submitted to the Plaintiff on June 9, 2017, pursuant to Federal Rule of Civil Procedure 68. The Defendant offered to allow judgment in favor of the Plaintiff, individually, in the amount of $1,100 in damages, plus costs and reasonable attorneys' fees. The Plaintiff argues that the offer should be deemed ineffective as an improper attempt to "pick off" the class representative by putting her in the position to choose between accepting the offer and abandoning the class for her own pecuniary benefit, or rejecting the offer and face the potential that she will bear the costs the Defendant incurs after the offer date. The Defendant contends that it properly exercised its right under Rule 68 by making a reasonable offer, and that the Rule contains no exception for class actions. Judge Springmann finds no basis to strike the offer of judgment, or to otherwise rule on its effect. She also declines to grant the alternative relief requested in a footnote in the Plaintiff's Motion. The Plaintiff asks that if the Court chooses not to deem the offer ineffective, that the Plaintiff be provided 14 days after the date of the Court's order to reconsider the Rule 68 offer. Just as the Court cannot force the Plaintiff to accept an offer, neither can it force the Defendant to keep the offer open for longer than the time set forth in Rule 68(a). Finally, Judge Springmann notes that its decision is not a statement about whether the Plaintiff would face the payment of costs under Rule 68(d) if a class is certified but the Plaintiff's individual award does not exceed the amount of the Defendant's offer. That issue is not before the Court, and it would be premature to offer any views at this point in the proceedings. For the reasons stated, Judge Springmann denied the Plaintiff's Motion to Strike Offer of Judgment. A full-text copy of the Court's Sept. 19, 2017 Opinion and Order is available at https://is.gd/p4HPLY from Leagle.com. Gloria Spice, Plaintiff, represented by Joseph M. Panvini -- jpanvini@consumerlawinfo.com -- Thompson Consumer Law Group PLLC. Gloria Spice, Plaintiff, represented by Russell S. Thompson, IV -- rthompson@consumerlawinfo.com -- Thompson Consumer Law Group PLLC. Blatt Hasenmiller Leibsker & Moore LLC, Defendant, represented by David M. Schultz -- dschultz@hinshawlaw.com -- Hinshaw & Culbertson LLP, Jennifer J. Kalas -- jkalas@hinshawlaw.com -- Hinshaw & Culbertson LLP & Christopher M. Manhart -- cmanhart@bhlmlaw.com -- Blatt Hasenmiller Leibsker & Moore LLC. BLUEGREEN VACATIONS: Faces "Vederman" Suit in S.D. Florida ---------------------------------------------------------- A class action lawsuit has been filed against Bluegreen Vacations Unlimited, Inc. The case is titled as Michael Vederman, individually and on behalf of all others similarly situated, the Plaintiff, v. Bluegreen Vacations Unlimited, Inc., a Florida corporation, the Defendant, Case No. 9:17-cv-81025-WPD (S.D. Fla., Sep. 13, 2017). The case is assigned to the Hon. Judge William P. Dimitrouleas. Bluegreen Corporation is an American private vacation ownership company based in Boca Raton, Florida.[BN] The Plaintiff is represented by: Stefan Louis Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S Biscayne Blvd, 28th Floor Miami, FL 33131 Telephone: (877) 333 9427 Facsimile: (888) 498 8946 E-mail: law@stefancoleman.com BRUMBAUGH & QUANDAHL: Bid to Dismiss "Washington" Partly OK'd ------------------------------------------------------------- In the case captioned TAMERRA WASHINGTON, Plaintiff, v. BRUMBAUGH & QUANDAHL, P.C., LLO.; KIRK E. BRUMBAUGH; and MARK QUANDAHL, Defendants, No. 8:15-CV-444 (D. Neb.), Judge John M. Gerrard of the U.S. District Court for the District of Nebraska denied Washington's motion for class certification, and B&Q's motion to dismiss and its motion for contempt; and granted in part and denied in part the parties' cross-motions for summary judgment. Tamerra Washington incurred a debt in 2011. That bill went unpaid, so the creditor retained Defendant B&Q to pursue legal action against her. On Sept. 18, 2015, B&Q filed suit against Washington in Douglas County Court. Washington, proceeding pro se, filed a general denial to the complaint. A few weeks later, B&Q served Washington with discovery requests, including interrogatories and requests for admissions. Through those documents, B&Q sought general information from Washington about the existence of the debt, and Washington's prior payment history, if any. In its request for admissions, B&Q asked Washington, among other questions, to admit or deny owing the debt, which it listed at $7,571. B&Q's discovery requests also contained limited information on where and how Washington should submit her answers. Soon thereafter, Washington filed this lawsuit, claiming violations of the Nebraska Consumer Protection Act ("NCPA") and Fair Debt Collection Practices Act ("FDCPA"). Washington claims that B&Q routinely engages in abusive debt collection practices by (i) incorrectly instructing pro se debtors that certain answers must be "filed" and "sworn"; and (ii) failing to inform the debtors of their right to object to discovery-related inquiries as permitted under the Nebraska Rules of Discovery. Based on those allegations, Washington moves for certification of four Plaintiff Classes -- two under the FDCPA, and two under the NCPA. There are over 1,200 pages of highly contentious argument and evidence currently before the Court. Those filings correspond to five pending motions, which include Washington's motion for class certification, B&Q's motion to dismiss, the parties' cross-motions for summary judgment, and B&Q's motion for contempt. The proposed FDCPA classes -- Class One and Class Two -- consist of pro se Nebraska residents who were sued by B&Q during the one year period prior to the filing of the complaint in this matter. Those classes differ, according to Washington, only in the type of violation alleged. In other words, Class 1 consists of pro se debtors who were served by B&Q with requests for admissions indicating that the recipient is to swear to the answers under oath and that the recipient's responses are to be filed with the Court. Class Two, on the other hand, consists of pro se debtors who were served by B&Q with any discovery which failed to inform the recipient of the right to object to any discovery requests. The proposed NCPA classes -- Class Three and Class Four -- are materially identical to those just described, but include Nebraska residents who were sued by B&Q in the past four years, as opposed to the past 12 months. Judge Gerrard concludes that Washington has failed to satisfy her burden, and that the prerequisites of Rule 23(a) are not satisfied. Accordingly, Washington's motion for class certification will be denied. The Judge further concludes that Washington has Article III standing to pursue her claims under the FDCPA. Therefore, B&Q's motion for summary judgment will be denied on those grounds. While Quandahl claims to have had no involvement in Washington's state court proceedings, his bar identification number is listed as a signatory on the allegedly false and misleading discovery requests. Based on that evidence, the Judge cannot say, as a matter of law, that Quandahl is not -- and was not -- a "debt collector" for purposes of FDCPA liability. Accordingly, Quandahl's motion for summary judgment on these grounds will be denied. With respect to Washington's claims that B&Q's requests for admissions are false, misleading, and unconscionable because they incorrectly imply that the recipient's answers must be "sworn" and "filed," Judge Gerrard finds that B&Q's instructions are materially false, and that Washington is entitled to summary judgment on those grounds. As noted throughout, B&Q's instructions incorrectly imply that, in order to comply with discovery related procedures, the debtor must find a notary public and then file their responses with the court. Washington's motion will be granted. The Judge finds Washington's arguments that B&Q acted improperly by asking her to admit matters that she had previously denied and that the discovery forms failed to include information regarding the response date and where the responses should be sent fail for at least two reasons. First, B&Q's discovery documents clearly state that answers are required within 30 days of the service thereof and both contain information about where the answers should be sent. Additionally, Judge Gerrard has found no authority to suggest that a debt collector is prohibited from seeking admissions whenever a pro se debtor has filed a general denial to the underlying complaint. Thus, because B&Q's request for admissions was not false or misleading in the manner in Washington alleges, B&Q's motion for summary judgment on these grounds will be granted. An NCPA claim requires a showing that not just one, but many Nebraska citizens are affected by a defendant's practices. And because Washington is not entitled to class certification on her claims, it does not appear that she can make that showing. While the Court is inclined to grant B&Q summary judgment on the NCPA claims, Washington will be provided until Oct. 7, 2017 to show cause why summary judgment should not be entered as to those claims. If no objection is filed, summary judgment will be entered for B&Q, and against Washington, with respect to Washington's claims under the NCPA. Judge Gerrard, upon full consideration of B&Q's argument, the Court is not convinced that contempt is appropriate on these facts. That said, he insists that, in future proceedings, the parties tone down the persistent finger-pointing that often accompanies their briefing and argument. Such behavior does nothing to advance the issues and arguments that actually matter, and unnecessarily expands the already voluminous record. Therefore, B&Q is entitled to summary judgment on each of Washington's FDCPA claims with the exception of Count I, which alleges violations based on the "sworn" and "filed" language described. With respect to that claim, Washington is entitled to summary judgment, and statutory damages in the amount of $1,000. But it is unclear, at least at this point, if Defendant Quandahl shares in that liability. In other words, because genuine issues of material fact remain as to whether Quandahl is or was a "debt collector," the Judge is unable to determine whether, if at all, Quandahl is liable. Accordingly, at this juncture, the claims remaining for disposition are Washington's NCPA claims and her claim against Quandahl based on the "sworn" and "filed" language of B&Q's discovery request. Judge Gerrard, for the reasons stated, (i) denied Washington's motion for class certification; (ii) denied as moot B&Q's motion to dismiss for failure to state a claim; (iii) granted in part and denied in part B&Q's motion for summary judgment; (iv) granted in part and denied in part Washington's motion for partial summary judgment; and (v) denied B&Q's motion for contempt. The Judge directed Washington to show cause, on or before Oct. 7, 2017, why summary judgment should not be entered as to her NCPA claims. The Clerk of the Court will enter a show cause deadline of Oct. 7, 2017. This matter is referred to the Magistrate Judge for case progression as to Washington's remaining, unresolved claim against Quandahl. A full-text copy of the Court's Sept. 19, 2017 Memorandum and Order is available at https://is.gd/WMT66k from Leagle.com. Tamerra F. Washington, Plaintiff, represented by O. Randolph Bragg -- rand@horwitzlaw.com -- HORWITZ, HORWITZ LAW FIRM. Tamerra F. Washington, Plaintiff, represented by Pamela A. Car -- pacar@cox.net -- CAR, REINBRECHT LAW FIRM & William L. Reinbrecht -- pacwlr@earthlink.net -- CAR, REINBRECHT LAW FIRM. Brumbaugh & Quandahl, P.C., LLO., Defendant, represented by Karl E. Von Oldenburg -- karlvonoldenburg@bqlaw.com -- BRUMBAUGH, QUANDAHL LAW FIRM & W. Gregory Lake -- glake@bqlaw.com -- BRUMBAUGH, QUANDAHL LAW FIRM. Kirk E. Brumbaugh, Defendant, represented by Karl E. Von Oldenburg, BRUMBAUGH, QUANDAHL LAW FIRM & W. Gregory Lake, BRUMBAUGH, QUANDAHL LAW FIRM. Mark Quandahl, Defendant, represented by Karl E. Von Oldenburg, BRUMBAUGH, QUANDAHL LAW FIRM & W. Gregory Lake, BRUMBAUGH, QUANDAHL LAW FIRM. BUCKS COUNTY, PA: Faces CA Lawsuit for Posting Mug Shots Online --------------------------------------------------------------- US News reports that a lawyer for a man who sued a Pennsylvania county jail for posting his mug shot online says nearly 70,000 former inmates could have claims in a class-action lawsuit, though the county being sued disputes that. Attorney Jonathan Shub, Esq. -- jshub@kohnswift.com -- of Kohn Swift & Graf, P.C., represents Daryoush Taha, 46, a Sicklerville, New Jersey, man arrested on disorderly conduct and other charges in 1998. Those charges were expunged two years later. Taha sued the Bucks County jail after his mug shot and arrest information were included in 2011 on a county website where people could look up current and former jail inmates. After the lawsuit, the county removed all mug shots and most inmates' arrest information two years later. The county lost its appeal of a judge's ruling last year that it violated federal law and that Taha's case can go forward as a class action. The Pennsylvania Criminal History Record Information Act prohibits sharing a person's arrest record with anyone outside of law enforcement if the person isn't convicted of a crime. Shub contends the county could be on the hook for between $1,000 and $10,000 in punitive damages for each person whose picture was posted on the website -- about 68,000 of them -- or between $68 million and $680 million. The county isn't commenting on the lawsuit, but has argued in court filings that the posting of the inmates' names amounts to a single violation of the act, meaning the total punitive damages the county faces would simply be $1,000 to $10,000. Shub disagrees. "We think we can prove willfulness and each posting of another name is a willful violation," Shub said. "Bucks County faces a serious predicament." Temple University law professor Ken Jacobsen, an expert on class- action lawsuits, isn't so sure. Jacobsen said because the court didn't find Taha experienced any actual damages by having his name and picture posted, a jury might be hard-pressed to award punitive damages to Taha -- let alone tens of thousands of others. "It's going to be interesting to see how damages are proved for these 60,000 other people," Jacobsen said. Copyright 2017 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. [GN] CANADA: Trial in Inmate Death Begins, Ont. Class Action Certified ----------------------------------------------------------------- Habiba Nosheen, writing for CBC News, reports that Deb Abrams has been preparing for the last four years to walk into a London courthouse and face the person charged with killing her 29-year- old son, Adam Kargus. "This has been going on for almost four years," Ms. Abrams tells CBC's The Fifth Estate in an interview for an upcoming documentary set to air later this year. "I have to stay strong for my son." "I want justice for Adam . . . so that there isn't another Adam." Anthony George, Kargus's cellmate inside the Ontario provincial jail, Elgin-Middlesex Detention Centre (EMDC), has been charged with second-degree murder in connection with his death on Oct 31, 2013. The trial started on Sept. 25 and is expected to last three weeks. A class action lawsuit was certified on behalf of over 10,000 EMDC inmates against the Province of Ontario. The claim seeks over $300 million in damages on behalf of inmates incarcerated there. The statement of claim alleges an unsafe environment, overcrowding, lack of care, lack of supervision and lack of sanitary conditions. It also alleges that the jail fostered an atmosphere of "violence, brutality and intimidation." EMDC has been embroiled in one lawsuit after another over allegations that inmates' rights are routinely violated inside the detention center. Six staff were fired after Kargus' death for failing to do their jobs. However, three of the guards were able to get their jobs back in April 2017 after an Ontario's grievance settlement board found that the actions of the guards that led to their firing in this case, "have gone on for years, if not decades, and they were open and obvious." High number of deaths The board ruled that, "there can be no questions that managers were aware of the practices at EMDC that deviated from written policy . . ." One guard who worked at EMDC for decades shares concerns for the high number of deaths at EMDC. "No one deserves to die in an institution like that. And that's something that's become too prevalent at that jail," he spoke to The Fifth Estate about his time there on the condition that we protect his identity because he fears retribution. "It's tough to really feel any sympathy for what goes on in there. But, I've said all along, nobody deserves to die in there." Back in her hometown of Sarnia, Ont., Ms. Abrams acknowledges that her son Adam had a drug addiction and had struggled to stay clean when he landed in jail. A tattoo with his name is inked on her left forearm. Around her neck, she wears a silver necklace that holds the vial of ashes of her son. A bumper sticker on her jeep reads, "Justice for Adam." She pulls out the last letter her son wrote to her from jail before he died in which he promises to turn his life around. "Dear Mom, I just wanted to write to express my honest to God gratitude for all your support in all of this . . . My heart and soul are filled with love to know I have such support . . . I am going to seek counseling upon my release." "He didn't get that chance," Ms. Abrams says holding the letter in her hands. [GN] CHEESECAKE FACTORY: Rodriguez Appeals Judgment to Second Circuit ---------------------------------------------------------------- Plaintiff Robert Rodriguez filed an appeal from a District Court judgment dated August 15, 2017, in the lawsuit titled Rodriguez v. The Cheesecake Factory Incorporated, Case No. 16-cv-2006, in the U.S. District Court for the Eastern District of New York. As previously reported in the Class Action Reporter, the District Court tossed the putative class action ruling that the Plaintiff -- a diner, who said he was misled into leaving suggested 40 and 60 percent gratuities -- was given all the relevant information he needed before tipping. Judge Joan M. Azrack dismissed without leave to amend the suit brought by Robert Rodriguez who claimed that, although he split his bill with a companion, his portion of the bill listed "suggested gratuity" percentages for the entirety of the check. Judge Azrack pointed out that Mr. Rodriguez, who claims he tipped based on the receipt's suggestion, acknowledged also receiving a copy of the entire bill, which included the same suggested gratuity totals. The appellate case is captioned as Rodriguez v. The Cheesecake Factory Incorporated, Case No. 17-2854, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant Robert Rodriguez, individually and on behalf of all others similarly situated, is represented by: Richard M. Hendler, Esq. LAW OFFICES OF RICHARD M. HENDLER 10-14 Bond Street Great Neck, NY 11021 Telephone: (516) 984-6900 Defendant-Appellee The Cheesecake Factory Incorporated is represented by: Brian Thomas Carney, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 1 Bryant Park New York, NY 10036 Telephone: (212) 872-8156 Facsimile: (212) 872-1002 E-mail: bcarney@akingump.com CHIPOTLE MEXICAN: Can't Depose Chief Marketing Officer ------------------------------------------------------ In the case captioned MARTIN SCHNEIDER, et al., Plaintiffs, v. CHIPOTLE MEXICAN GRILL, INC., Defendant, Case No. 16-cv-02200-HSG (KAW) (N.D. Cal.), Judge Kandis A. Westmore of the District Court for the Northern District of California denied the Plaintiffs' request to depose Mark Crumpacker, who is the Defendant's Chief Marketing Officer. On April 27, 2015, the Defendant began its advertising campaign, "G-M-Over It." In this campaign, it represented that it was becoming the first fast food chain in the United States to have a GMO free menu that uses "only non-GMO ingredients." On April 22, 2016, the Plaintiffs filed the instant putative class action against the Defendant. They allege that the Defendant violated California, Maryland, Florida, and New York consumer protection laws when it began advertising that its foods were free of genetically modified organisms ("GMOs"). The Plaintiffs allege that the campaign is misleading because the Defendant: (i) serves protein products such as beef, chicken, and pork from poultry and livestock that have been raised on GMO feed; (ii) serves dairy products such as cheese and sour cream derived from cows raised on GMO feed; and (iii) sells beverages such as Coca-Cola and Sprite that are loaded with corn-syrup derived from GMO corn. The Plaintiffs now seek to represent four classes, made up of all persons residing in California, Maryland, Florida, and New York, during the period April 27, 2015 to the present, who purchased and/or paid for Chipotle Food Products. On Sept. 8, 2017, the parties filed a joint discovery letter regarding a dispute over the Plaintiffs' proposed deposition of Mr. Mark Crumpacker. Judge Westmore finds that the Plaintiffs have failed to identify any unique personal knowledge by Mr. Crumpacker. As an initial matter, the Plaintiffs generally fail to identify what information they believe Mr. Crumpacker has that has not been otherwise produced in discovery. Instead, they only state that Mr. Crumpacker has not been fully examined on issues relevant to this case, but do not specify what those issues are. More significantly, even if Mr. Crumpacker has knowledge on these unidentified issues, the Plaintiffs do not explain why Mr. Crumpacker has unique personal knowledge of the facts. The evidence cited to by them confirms that Mr. Crumpacker has knowledge, but does not necessarily show that he had unique knowledge. The Plaintiff then points to a number of e-mails that Mr. Crumpacker was a part of, but again, this does not suggest unique knowledge given the other individuals who were on the e- mails, several of whom were deposed by the Plaintiffs. All of this evidence shows that Mr. Crumpacker worked with other individuals, many of whom were deposed by the Plaintiffs. Thus, the Plaintiffs have failed to show that Mr. Crumpacker has unique, non-repetitive language that would warrant a deposition. Accordingly, Plaintiffs have failed to meet their burden. Accordingly, Judge Westmore denied the Plaintiffs' request to depose Mr. Crumpacker. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/TlUbpL from Leagle.com. Martin Schneider, Plaintiff, represented by Donald R. Hall -- dhall@kaplanfox.com -- Kaplan Fox and Kilsheimer, pro hac vice. Martin Schneider, Plaintiff, represented by Frederic S. Fox -- ffox@kaplanfox.com -- Kaplan Fox & Kilsheimer, pro hac vice, Linda M. Fong -- lfong@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Mario Man-Lung Choi -- mchoi@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Matthew B. George -- mgeorge@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP & Laurence D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP. Sarah Deigert, Plaintiff, represented by Donald R. Hall, Kaplan Fox and Kilsheimer, pro hac vice, Frederic S. Fox, Kaplan Fox & Kilsheimer, pro hac vice, Linda M. Fong, Kaplan Fox & Kilsheimer LLP, Mario Man-Lung Choi, Kaplan Fox & Kilsheimer LLP, Matthew B. George, Kaplan Fox & Kilsheimer LLP & Laurence D. King, Kaplan Fox & Kilsheimer LLP. Theresa Gamage, Plaintiff, represented by Donald R. Hall, Kaplan Fox and Kilsheimer, pro hac vice, Frederic S. Fox, Kaplan Fox & Kilsheimer, pro hac vice, Linda M. Fong, Kaplan Fox & Kilsheimer LLP, Mario Man-Lung Choi, Kaplan Fox & Kilsheimer LLP, Matthew B. George, Kaplan Fox & Kilsheimer LLP & Laurence D. King, Kaplan Fox & Kilsheimer LLP. Nadia Parikka, Plaintiff, represented by Donald R. Hall, Kaplan Fox and Kilsheimer, pro hac vice, Frederic S. Fox, Kaplan Fox & Kilsheimer, pro hac vice, Linda M. Fong, Kaplan Fox & Kilsheimer LLP, Mario Man-Lung Choi, Kaplan Fox & Kilsheimer LLP, Matthew B. George, Kaplan Fox & Kilsheimer LLP & Laurence D. King, Kaplan Fox & Kilsheimer LLP. Chipotle Mexican Grill, Inc., Defendant, represented by Charles C. Cavanagh -- ccavanagh@messner.com -- Messner Reeves, Adam M. Royval -- aroyval@messner.com -- Messner Reeves, Allison Dodd -- adodd@messner.com -- Messner Reeves, Jacqueline Raquel Guesno -- jguesno@messner.com -- Messner Reeves, Kristina M. Wright -- wright@messner.com -- Messner Reeves & Sascha Von Mende Henry -- shenry@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP. CITGO PETROLEUM: "Alexis" Suit Seeks Unpaid Wages under FLSA ------------------------------------------------------------ MARK ALEXIS, ET AL, the Plaintiffs, v. CITGO PETROLEUM CORPORATION, the Defendant, Case No. 2:17-cv-01159-UDJ-KK (W.D. La., Sep. 12, 2017), seeks to recover all unpaid compensation, an equal amount of liquidated damages, attorneys' fees, costs and any and all other amounts permitted by law, pursuant to the Fair Labor Standards Act. The Plaintiffs bring this lawsuit individually and on behalf of other similarly situated employees of Defendant CITGO Petroleum Corporation. The Plaintiffs assert that CITGO willfully violated the provisions of the FLSA by depriving Plaintiffs and other similarly situated employees of their lawful wages and overtime at the proper rate for time spent working. According to the complaint, for more than three years prior to the filing of this Complaint, CITGO has intentionally committed violations of the FLSA by, among other things, refusing to pay employees for time spent before and after their scheduled shifts relieving the outgoing shift and providing pertinent operating information to the incoming shift. Citgo Petroleum is a Venezuelan-owned American refiner, transporter and marketer of transportation fuels, lubricants, petrochemicals and other industrial products.[BN] The Plaintiffs are represented by: Somer G. Brown, Esq. COX, COX, FILO, CAMEL & WILSON, LLC 723 Broad Street Lake Charles, LA 70601 Telephone: (337) 436 6611 Facsimile: (337) 436 9541 E-mail: somer.brown@coxcoxfilo.com CLYDESDALE BANK: Faces Class Action Over Tailored Business Loans ---------------------------------------------------------------- Chris Menon, writing for Mortgage Solutions, reports that Clydesdale Bank is to be the subject of a class action lawsuit concerning allegedly mis-sold small business loans by the same claims firm representing victims of Royal Bank of Scotland's Global Restructuring Group. RGL Management, which is representing the claimants, believes there could be as many as 1,000 or more small businesses which would join the action. However, it has been criticised for taking a significant percentage of any compensation. The so-called Tailored Business Loans offered by Clydesdale Bank were taken out between 2002 and 2012, and allegedly came with hidden break clauses which imposed large penalties on the firms if they tried to pay back the loans early. In response to the news, Clydesdale Bank issued the following statement: "We have seen media reports of a potential claim being considered in relation to Tailored Business Loans, however we have not received any such claim to date from RGL Management Ltd. It is therefore not possible to comment on speculation around any potential case or the basis for any claim." "In relation to Tailored Business Loans, this is a long-standing historical matter, which has been subject to significant scrutiny and which the bank has been working through with customers as part of a wide-ranging remediation programme, in an open and transparent manner. We have made significant progress in resolving the vast majority of cases. Where we have reached a final agreement with customers, the cost of this has been covered by existing provisions as extensively disclosed in our financial reports," it added. GBP1.6 billion in damages James Hayward, CEO of RGL told Mortgage Solutions that pre-action correspondence with Clydesdale will take place in the next 3-4 months. Prior to that he is undertaking a marketing campaign involving press advertising to try and build the number of claimants from the hundreds to around 1,000. "If we have 1,000 claimants we'll be asking for over GBP1.6 billion in damages, which is when it starts to get interesting." Mr. Hayward explained that in return for RGL assuming all the financial risk of litigation it never takes more than 50% of the compensation awarded to claimants. He added: "These people don't have anywhere else to go, as but for us they would have no redress. Clydesdale has told claimants: 'come to us and we'll compensate you' but that is unrealistic. It is a bit like a rapist saying to the victim, 'it was consensual'." RGL is running a similar claim on behalf of small businesses against the Royal Bank of Scotland's now defunct Global Restructuring Group. It alleges that GRG helped bankrupt these businesses to boost profits. Mortgages Separately, Clydesdale Bank Intermediaries has announced the launch of its lowest ever fixed rate mortgage. It is offering a two-year fixed rate of 1.24%, as well as a five-year fixed rate of 1.89%. The bank is expanding its range of 60% loan-to-value (LTV) products and reducing rates on a number of other products by up to 0.2%. The new rates are: * two-year fixed at 1.24% and an arrangement fee of GBP999 (loans GBP80,000-GBP499,999) or GBP1,499 (loans GBP500,000 - GBP1m); * five-year fixed at 1.89% and an arrangement fee of GBP999 (loans GBP80,000-GBP499,999) or GBP1,499 (loans GBP500,000 - GBP1m); * five-year fixed at 2.04% and no arrangement fee (loans GBP80,000-GBP1m). The new products are available for purchase and remortgage applications. [GN] CNOVA NV: Reaches $28.5MM Settlement in U.S. Over IPO ----------------------------------------------------- Jonathan Stempel, writing for Reuters, that Cnova NV, the e- commerce arm of French retailer Groupe Casino, agreed to pay $28.5 million to settle litigation in the United States claiming it defrauded investors in connection with its November 2014 initial public offering. The all-cash, preliminary settlement was filed on September 22 with the U.S. District Court in Manhattan, and it requires a judge's approval. It resolves claims that Cnova inflated its share price by overstating net sales and profit, failed to properly write down the value of damaged and returned items and concealed employee misconduct and accounting irregularities at a Brazilian unit. Cnova denied wrongdoing and liability but settled to avoid the risks and costs of litigation, which sought class action status, court papers show. The plaintiffs are led by Jaideep Khanna and Michael Schwabe, and their law firm Brower Piven plans to apply for legal fees of up to one-third of the settlement fund, court papers show. Cnova had gone public at $7 per share, but its share price had fallen by about two-thirds by the time litigation began. The Netherlands-based company in December 2015 announced an investigation into inventory mismanagement at Brazilian warehouses, and two months later told investors they could no longer rely on some of its financial statements. Cnova was delisted from Nasdaq in March, after Casino tendered for nearly all its outstanding shares in the United States, regulatory filings show. The case is In re Cnova NV Securities Litigation, U.S. District Court, Southern District of New York, No. 16-00444. [GN] DO: Sued for Allegedly Causing Food Poisoning --------------------------------------------- Stefanie Tuder, writing for NY Eater, reports that Do, the Instagram-famous, raw cookie dough shop that garners hours-long lines, is being sued for allegedly causing at least two cases of food poisoning. Two Manhattan College students have brought a class-action lawsuit against the eight-month-old confectionary, alleging owner Kristen Tomlan knowingly lied about the safety of her product. Do's website calls the raw cookie dough "completely safe to consume" because of pasteurized egg product and heat-treated flour. "That means NO chance of food-borne illness or the risk that comes along with eating raw flour products. At last, worry- free treats you can't get sick from!" the site says. Except Julia Canigiani and Katherine Byrne say they both got sick minutes after eating at Do, experiencing diarrhea, heartburn, and more. The suit, in full below and first reported by the Post, also cites eight other Yelp reviews that allege sickness. According to the Mayo Clinic, food poisoning can begin "within hours of eating contaminated food." Canigiani and Byrne are suing for unspecified damages on behalf of anyone who got sick after eating at Do. Update: Do tells Eater that, "We stand behind the safety of our products and our representations about our products. We will fully and faithfully defend ourselves against any and all false accusations." [GN] EDUCATIONAL CREDIT: Court Certifies Class in "Reyes" CIPA Suit -------------------------------------------------------------- Judge Cynthia Bashant of the U.S. District Court for the Southern District of California granted the Plaintiff's Motion for Class Certification in the case captioned AJ REYES, individually and on behalf of all others similarly situated, Plaintiff, v. EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Defendant, Case No. 15-cv-00628- BAS-AGS (S.D. Cal.). ECMC is a guaranty agency in the Federal Family Education Loan Program ("FFELP") under the Higher Education Act of 1965. As such, ECMC helps to administer the FFELP as a guarantor of federal student loans on behalf of the United States Department of Education. In carrying out this role, the company is tasked with engaging in reasonable and documented collection activities on loans that have gone into default. Reyes brings the putative class action against the Defendant alleging violations of California's Invasion of Privacy Act ("CIPA"). The Plaintiff now moves for certification of a proposed class pursuant to Federal Rule of Civil Procedure 23 described as all individuals who, between Aug. 2, 2014, to March 31, 2015, inclusive, participated in an inbound telephone conversation with a live representative of ECMC that was: (i) placed to an ECMC phone line with a 0 in the Info field for the audio file that contained the verbiage this call is being recorded; (ii) made from a telephone number that includes a California area code; and (iii) transmitted via cellular telephone. ECMC filed an opposition -- arguing generally that the Plaintiff fails to satisfy the requirements of Rule 23 -- to which the Plaintiff replied. Both parties also submitted supplemental briefing. One of the strongest justifications for the class action device is its regulatory function. Violations of CIPA, which aims to protect California residents from secret recording, are likely to go unrecognized due to the secretive nature of invasions of privacy. Consequently, the statute is unlikely to achieve optimal deterrence without the prospect of a class action suit designed to vindicate many individual claims at once. The Plaintiff has met the requirements of Rule 23(a), (b)(2), and (b)(3). Accordingly, Judge Bashant granted the Plaintiff's Motion for Class Certification. She certified the injunctive relief portion of the proposed class action under Rule 23(b)(2) and the monetary damages portion under Rule 23(b)(3). The Judge certified the class described as all individuals who, between Aug. 2, 2014, to March 31, 2015, inclusive, participated in an inbound telephone conversation with a live representative of ECMC that was: (i) placed to an ECMC phone line that used the non- mandatory message setting for its admonition that the call is being recorded; (ii) made from a telephone number that includes a California area code (i.e., 209, 213, 310, 323, 408, 415, 424, 442, 510, 530, 559, 562, 619, 626, 650, 657, 661, 707, 714, 760, 805, 818, 831, 858, 909, 916, 925, 949, or 951); (iii) transmitted via cellular telephone; and (iv) recorded without the caller's consent. Judge Bashant appointed the Plaintiff as the class representative and the Law Offices of Ronald A. Marron as the class counsel. Pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), the parties will meet and confer, and submit to the Court an agreed- upon form of class notice that will advise individual members of, among other things, the nature of the action, the relief sought, the right of class members to intervene or opt out, and the binding effect of a class judgment on members under Rule 23(c)(3). The parties will also jointly submit a plan for dissemination of the proposed notice. The proposed notice and plan of dissemination will be filed with the Court on or before Oct. 17, 2017. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/k6CTiU from Leagle.com. A J Reyes, on behalf of himself, and all others similarly situated, Plaintiff, represented by Alexis M. Wood -- admin@consumersadvocates.com -- Law Offices of Ronald A. Marron. A J Reyes, on behalf of himself, and all others similarly situated, Plaintiff, represented by Kas L. Gallucci, Law Offices of Ronald A. Marron, Ronald Marron, Law Office of Ronald Marron & Daniel G. Shay, Law Offices of Daniel G. Shay. Educational Credit Management Corporation, Defendant, represented by David J. Kaminski -- kaminskid@cmtlaw.com -- Carlson and Messer & Martin Schannong -- schannom@cmtlaw.com -- Carlson & Messer LLP. ENZYMOTEC LTD: Jan. 24 Securities Settlement Fairness Hearing Set ----------------------------------------------------------------- The following statement is being issued by Saxena White P.A. in regard to a proposed class action settlement. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY IN RE ENZYMOTEC LTD. SECURITIES LITIGATION Civ. Action No. 2:14-cv-5556 (JMV) (JBC) LEGAL NOTICE TO: ALL PERSONS OR ENTITIES (1) WHO PURCHASED OR OTHERWISE ACQUIRED ENZYMOTEC COMMON STOCK FROM SEPTEMBER 27, 2013 TO AUGUST 4, 2014, INCLUSIVE (THE "SETTLEMENT CLASS PERIOD"), AND WERE DAMAGED THEREBY; AND/OR (2) PURCHASED AND/OR CAN TRACE YOUR PURCHASE OF SHARES OF ENZYMOTEC COMMON STOCK ISSUED IN THE INITIAL PUBLIC OFFERING ("IPO") THAT OCCURRED ON OR ABOUT SEPTEMBER 27, 2013 AND WERE DAMAGED THEREBY; AND/OR (3) PURCHASED AND/OR CAN TRACE YOUR PURCHASE OF SHARES OF ENZYMOTEC COMMON STOCK ISSUED IN THE SECONDARY PUBLIC OFFERING ("SPO") THAT OCCURRED ON OR ABOUT FEBRUARY 27, 2014, AND WERE DAMAGED THEREBY PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of New Jersey (the "Court"), that the above-captioned litigation (the "Litigation") has been certified, for settlement purposes only, as a class action on behalf of the Settlement Class, as set forth in the full printed Notice of Pendency and Proposed Settlement of Class Action (the "Notice"). YOU ARE ALSO NOTIFIED that pursuant to an Order of the Court, a hearing will be held on January 24, 2018, at 10:30 a.m., before the Honorable John Michael Vazquez, United States District Judge, at the Martin Luther King Building & United States Courthouse, 50 Walnut Street, Newark, New Jersey 07101, for the purpose of determining (1) whether the proposed settlement of the Action for the sum of $6,500,000.00 in cash should be approved by the Court as fair, reasonable, and adequate, which would result in this Litigation being dismissed with prejudice against the Released Persons1 as set forth in the Stipulation of Settlement dated March 29, 2017; (2) whether the Plan of Allocation of settlement proceeds is fair, reasonable, and adequate and therefore should be approved; and (3) whether the application for fees and expenses in connection with this Litigation should be approved. If you purchased or otherwise acquired Enzymotec common stock, your rights may be affected by this Litigation and the settlement thereof. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action and a copy of the Proof of Claim and Release Form, you may obtain copies by writing to Enzymotec Ltd. Securities Litigation, Claims Administrator, Epiq Systems, Inc., PO Box 4079 Portland, OR 97208-4079, or by downloading this information at www.EnzymotecSecuritiesLitigation.com. If you are a Settlement Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release Form postmarked no later than December 26, 2017, establishing that you are entitled to a recovery. You will be bound by any judgment rendered in the Litigation unless you request to be excluded, in writing, to the above address, postmarked by January 3, 2018. Any objection to any aspect of the settlement must be filed with the Clerk of the Court no later than January 3, 2018, and received by the following no later than January 3, 2018: Lead Plaintiffs' Counsel SAXENA WHITE P.A. Lester R. Hooker 5200 Town Center Circle, Suite 601 Boca Raton, Florida 33486 Telephone: (561) 394-3399 CARELLA, BYRNE, CECCHI OLSTEIN, BRODY & AGNELLO, P.C. James E. Cecchi 5 Becker Farm Road Roseland, New Jersey 07068 Telephone: (973) 994-1700 RYAN & MANISKAS, LLP Richard A. Maniskas 995 Old Eagle School Rd., St. 311 Wayne, Pennsylvania 19087 Telephone: (484) 588-5516 Counsel for Defendants KATTEN MUCHIN ROSENMAN LLP Richard H. Zelichov 575 Madison Avenue New York, New York 10022-2585 Telephone: (212) 940-8800 If you have any questions about the Settlement, you may call 844- 418-6627 or contact Lead Plaintiffs' Counsel at the address listed above. PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE. DATED: September 5, 2017 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY 1 Unless otherwise defined herein, all capitalized terms shall have the same meanings as set forth in the Notice of Pendency and Proposed Settlement of Class Action. [GN] EQUIFAX INC: CFPB May Use Powers Under Dodd-Frank Act After Hack ---------------------------------------------------------------- PYMNTS reports that add the Consumer Financial Protection Bureau to the list of federal agencies expected to punish Equifax for the massive security breach that exposed the personal data of around 143 million Americans. According to a Reuters news report, the consumer finance watchdog, created after the 2008 financial crisis, will utilize the wide- ranging powers it has used with Wall Street to come down on Equifax. The Federal Trade Commission and the Department of Justice are already investigating the cyberattack. In addition, Equifax is being sued by the state of Massachusetts, and is also facing a class-action lawsuit filed on behalf of 28 million small businesses impacted by the breach and another suit just filed by Summit Credit Union. Because Equifax is not strictly a financial company, there was uncertainty over whether the CFPB has the power to penalize the firm for the breach. But legal experts said it is likely to weigh in using powers it wields under the 2010 Dodd-Frank Act. "Its Dodd-Frank mandate gives the CFPB authority to investigate Equifax even without cybersecurity rules," said Quyen Truong, a partner at law firm Stroock & Stroock & Lavan who was the assistant director and deputy general counsel for the CFPB until early 2016. The CFPB and legal experts said the regulator could pursue Equifax under an aspect of the Dodd-Frank Act that bans unfair, deceptive and abusive acts and practices (UDAAP). Based on this aspect of the law, the CFPB even fined Equifax in January for allegedly deceiving consumers about the usefulness and cost of credit score information they bought. A CFPB spokesperson declined to say whether the agency already has plans to open an investigation. In addition to forcing companies to take certain actions or desist from damaging behaviors, the CFPB can fine them up to $1 million per day if a company knowingly violates the law. U.S. Senator Elizabeth Warren wrote a letter to the CFPB, which she helped create, stating that it may require additional powers to ensure closer federal oversight of credit reporting agencies. [GN] EQUIFAX INC: Faces "Zweig" Suit in E.D. New York ------------------------------------------------ A class action lawsuit has been filed against Equifax, Inc. The case is entitled as Marc Zweig, the Plaintiff, v. Equifax, Inc., the Defendant, Case No. 1:17-cv-05366-RJD-SMG (E.D.N.Y., Sep. 13, 2017). The case is assigned to the Hon. Judge Raymond J. Dearie. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367 7100 Facsimile: (631) 367 1173 E-mail: srudman@rgrdlaw.com EQUIFAX INC: Faces "Mohamedali" Suit in N.D. Georgia ---------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is captioned as Sakina Mohamedali and Ben Allanoff, individually and on behalf of all others similarly situated, the Plaintiffs, v. Equifax, Inc., a Georgia Corporation, the Defendant, Case No. 1:17-cv-03501-TWT (N.D. Ga., Sep. 12, 2017). The case is assigned to the Hon. Judge Thomas W. Thrash, Jr. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiff is represented by: Bryan L. Clobes, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 1101 Market Street, Suite 2650 Philadelphia, PA 19107 Telephone: (215) 864 2800 Facsimile: (215) 864 2810 E-mail: bclobes@caffertyclobes.com - and - Daniel O. Herrera, Esq. CAFFERTY FAUCHER, LLP - PA 1717 Arch Street, Suite 3610 Philadelphia, PA 19103 Telephone: (215) 864 2800 Facsimile: (215) 864 2810 - and - Edward Adam Webb, Esq. G. Franklin Lemond, Jr., Esq. WEBB, KLASE & LEMOND, LLC 1900 The Exchange, SE, Suite 480 Atlanta, GA 30339 Telephone: (770) 444 0773 E-mail: eadamwebb@hotmail.com flemond@webbllc.com EQUIFAX INC: Faces "Galpern" Suit in N.D. California ---------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is captioned as Andrew Galpern, the Plaintiff, v. Equifax, Inc. and Trusted ID, Inc., the Defendants, Case No. 5:17-cv-05265- BLF (N.D. Cal., Sep. 12, 2017). The case is assigned to the Hon. Beth Labson Freeman. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiff is represented by: Corey Benjamin Bennett, Esq. Teresa Denise Allen, Esq. Scott Edward Cole, Esq. SCOTT COLE & ASSOCIATES 1970 Broadway, Ninth Floor Oakland, CA 94612 Telephone: (510) 891 9800 Facsimile: (510) 891 7030 E-mail: cbennett@scalaw.com tallen@scalaw.com scole@scalaw.com - and - Timothy Paul Rumberger, Esq. LAW OFFICES OF TIMOTHY P. RUMBERGER 1339 Bay Street Alameda, CA 94501 Telephone: (510) 841 5500 Facsimile: (510) 521 9700 E-mail: tim@rumbergerlaw.com EQUIFAX INC: Beekman Sues over Consumers Data Breach ---------------------------------------------------- Bernadette Beekman, Elizabeth Twitchell James Freeman-Hargis, and Douglas Diamond individually and on behalf of all others similarly situated, the Plaintiffs, v. Equifax Inc., the Defendant, Case No. 1:17-cv-03492-TCB (N.D. Ga., Sep. 12, 2017), seeks to remedies, among others, statutory damages under the Fair Credit Reporting Act and state consumer protection statutes, reimbursement of out-of-pocket losses, other compensatory damages, further and more robust credit monitoring services with accompanying identity theft insurance beyond Equifax's current one-year offer, and injunctive relief including an order requiring Equifax to implement improved data security measures. According to the complaint, on September 7, 2017, Equifax disclosed a nationwide data breach affecting an estimated 143 million American consumers. According to the press release published by Equifax, criminals exploited a U.S. website application vulnerability to access the Company's consumer and commercial credit reporting databases from mid-May 2017 through July 2017. The information stolen primarily included names, Social Security numbers, birth dates, addresses, driver's license numbers, credit card numbers, credit dispute documents, and other personally identifiable information. Equifax purportedly discovered the unauthorized access to its databases as early as July 29, 2017 and engaged an independent cybersecurity firm to conduct a forensic review to determine the scope of the intrusion, including the specific data impacted. Equifax also reported the criminal access to its databases to law enforcement at this time. Unbelievably, however, Equifax chose not to inform consumers about this massive breach until September 7, 2017. The Data Breach resulted from Equifax's failure to implement adequate security measures to safeguard consumers' PII and having willfully ignored known weaknesses in its data security, including prior hacks into its systems and those of its subsidiaries, along with the weaknesses those previous intrusions identified. Unauthorized parties routinely attempt to gain access to and steal information from networks and information systems -- especially from entities like Equifax, which are known to possess the valuable personal and financial information of a large number of individuals and entities. As a result of Equifax's willful failure to prevent the breach, the Plaintiffs and Class members have been exposed to fraud, identity theft, and financial harm. Although Equifax claims that it has found no evidence of unauthorized activity on its core consumer or commercial credit reporting databases, Plaintiffs and other Class members will become victims of identity fraud in the future, given the breadth of the PII that was exposed during the Data Breach. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiffs are represented by: David A. Bain, Esq. LAW OFFICES OF DAVID A. BAIN, LLC 1230 Peachtree Street, Suite 1050 Atlanta, GA 30309 Telephone: (404) 724 9990 Facsimile: (404) 724 9986 E-mail: dbain@bain-law.com - and - Timothy G. Blood, Esq. Thomas J. O'Reardon II, Esq. BLOOD HURST & O'REARDON LLP 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 338 1100 Facsimile: (619) 338 1101 E-mail: tblood@bholaw.com toreardon@bholaw.com - and - Janine L. Pollack, Esq. Thomas H. Burt, Esq. Correy A. Kamin, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545 4600 Facsimile: (212) 686 0114 E-mail: pollack@whafh.com burt@whafh.com kamin@whafh.com - and - Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 70 West Madison Street, Suite 1400 Chicago, IL 60602 Telephone: (312) 984 0000 Facsimile: (312) 214 3110 E-mail: malmstrom@whafh.com EQUIFAX INC: Faces "Clark" Suit over Consumers Data Breach ---------------------------------------------------------- JOSEPH CLARK, MEGHAN CLARK, and RUTH REYES, on behalf of themselves and all others similarly situated, the Plaintiffs, v. EQUIFAX INC., the Defendant, Case No. 1:17-cv-03497-MHC (N.D. Ga., Sep. 12, 2017), seeks remedies including but not limited to compensatory damages, reimbursement of out-of-pocket costs, statutory damages under the Fair Credit Reporting Act, credit monitoring services provided by a third party vendor unaffiliated with Equifax, and injunctive relief including improvements to Equifax's data security systems. The case is a data breach class action on behalf of 143 million consumers whose sensitive personal information including Social Security numbers, birth dates, names, addresses, and in some instances driver's license numbers, credit card numbers, and other personal information (collectively "Personally Identifiable Information" or "PII") was stolen from Defendant Equifax Inc. in a cyber-attack. Equifax failed to adequately safeguard consumers' Identifiable Information. Lack of proper safeguards provided a means for unauthorized intruders to access Equifax's computer network and steal consumers' highly sensitive PII. Armed with this sensitive information, data thieves can commit a variety of crimes including, e.g., taking out loans in another person's name, opening new financial accounts in another person's name, using the victim's information to obtain government benefits, filing a fraudulent tax return using the victim's information, obtaining a driver's license in the victim's name but with another person's photograph, and giving false information to police during an arrest. As a result of the breach, Plaintiffs and Class members have been exposed to a heightened and imminent risk of fraud and identity theft. Plaintiffs and Class members must now and in the future closely monitor their financial accounts to guard against identity theft. Class members may be faced with fraudulent debt and may incur out of pocket costs for, e.g., purchasing credit monitoring services, credit freezes, credit reports, or other protective measures to deter and detect identity theft. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiffs are represented by: E. Michelle Drake, Esq. BERGER & MONTAGUE, P.C. 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594 5933 Facsimile: (612) 584 4470 E-mail: emdrake@bm.net - and - Sherrie Savett, Esq. Shanon Carson, Esq. Jon Lambiras, Esq. BERGER & MONTAGUE, P.C. 1622 Locust St. Philadelphia, PA 19103 Telephone: (215) 875 3000 Facsimile: (215) 875 4604 E-mail: ssavett@bm.net scarson@bm.net jlambiras@bm.net EQUIFAX INC: Faces "Gottesman" Suit over Consumers Data Breach -------------------------------------------------------------- MICHAEL GOTTESMAN, SOLOMON HESNEY, ELIZABETH CHAKAN, and DAVID POLLAK, Individually and on Behalf of all Others Similarly Plaintiffs, v. EQUIFAX, INC, the Defendant, Case No. 1:17-cv- 03498-ELR (N.D. Ga., Sep. 12, 2017), seeks to recover damages caused to Plaintiffs and the Class and Subclasses by Equifax's violations of law, including state data breach statutes, and injunctive relief requiring Equifax to properly safeguard the Class's Personal Information on its computer system or alternatively, remove such Personal Information from its computer system. According to the complaint, on July 29, 2017, however, Equifax discovered that it had failed in that responsibility. From mid-May through July 2017, criminals exploited an Equifax U.S. website application vulnerability gaining unauthorized access to https://www.equifaxsecurity2017.com/consumer-notice/ certain files. The accessed files included personal consumer information, such as names, Social Security numbers, birth dates, addresses, and in some instances, driver's license numbers. In addition, the accessed files also included credit card numbers for approximately 209,000 consumers and certain dispute documents, which included personal identifying information, for approximately 182,000 consumers were accessed -- which are also included in the definition of "Personal Information". Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiffs are represented by: David Worley, Esq. James M. Evangelista, Esq. Kristi Stahnke McGregor, Esq. EVANGELISTA WORLEY, LLC 8100A Roswell Road, Suite 100 Atlanta, GA 30350 Telephone: (404) 205 8400 E-mail: jim@ewlawllc.com david@ewlawllc.com kristi@ewlawllc.com - and - Gary S. Graifman, Esq. Jay I. Brody, Esq. KANTROWITZ GOLDHAMER & GRAIFMAN, P.C. 747 Chestnut Ridge Road Chestnut Ridge, NY 10977 Telephone: (845) 356 2570 E-mail: ggraifman@kgglaw.com jbrody@kgglaw.com EQUIFAX INC: Mardock Sues over Data Cybersecurity Incident ---------------------------------------------------------- APRIL MARDOCK, individually and on behalf of all others similarly situated, the Plaintiff, v. EQUIFAX, INC., the Defendant, Case No. 17-03499 (N.D. Ga., Sep. 12, 2017), seeks remedies, among others reimbursement of out-of-pocket losses, other compensatory damages, any available statutory damages, further and more robust credit monitoring services with accompanying identity theft insurance, and injunctive relief including an order requiring Equifax to implement improved data security measures. The Plaintiff bring this class action case against Defendant Equifax for its massive failure to secure and safeguard consumers' personally identifiable information ("PII") which Equifax collected from various sources in connection with the operation of its business as a consumer credit reporting agency, and for failing to provide timely, accurate and adequate notice to Plaintiff and other consumers that their PII had been stolen and precisely what types of information were stolen. According to the complaint, on September 7, 2017, Equifax disclosed the occurrence of a cybersecurity incident in which unauthorized persons gained access to the PII of approximately 143 million U.S. consumers held by Equifax. Based on its investigation, Equifax stated that the period of unauthorized access lasted approximately 10 weeks, from mid-May through July 2017. According to Equifax, the information accessed includes names, Social Security numbers, birth dates, addresses, and, in some instances, driver's license numbers. In addition, Equifax has admitted that credit card numbers for approximately 209,000 U.S. consumers, and certain other documents with personal identifying information for approximately 182,000 U.S. consumers, were accessed. Equifax has admitted that it discovered the Data Breach on July 29, 2017, but delayed informing the public until September 7, 2017. Equifax has not stated why it failed to disclose the Data Breach to consumers for nearly six weeks. However, after Equifax learned of the Data Breach but before it was disclosed to the public, Equifax executives sold at least $1.8 million worth of shares of Equifax stock. It has been reported that its Chief Financial Officer John Gamble sold shares worth $946,374, its president of U.S. information solutions, Joseph Loughran, exercised options to dispose of stock worth $584,099, and its president of workforce solutions, Rodolfo Ploder, sold $250,458 of stock on August 2, 2017. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiff is represented by: James M. Evangelista, Esq. David J. Worley Kristi Stahnke McGregor EVANGELISTA WORLEY, LLC 8100 A. Roswell Road, Suite 100 Atlanta, GA 30350 Telephone: (404) 205 8400 Facsimile: (404) 205 8395 E-mail: david@ewlawllc.com jim@ewlawllc.com kristi@ewlawllc.com - and - Ariana J. Tadler, Esq. Andrei V. Rado, Esq. Henry Kelston, Esq. MILBERG LLP One Pennsylvania Plaza, 50th Floor New York, NY 10119 Telephone: (212) 594 5300 Facsimile: (312) 346 0022 E-mail: atadler@milberg.com arado@milberg.com hkelston@milberg.com EQUIFAX INC: Faces "McDowell" Suit over Data Breach --------------------------------------------------- ANDREW MCDOWELL, JENNIFER PARKER, MORGAN MCCLUNG, CHEVERA BLAKEMORE, COLTON GREGORY, OLIVIA DAVIS, PATRICK DAVIS BARBARA QUEENEN, LILY ZHOU, MAGGIE MCKINNEY, ASHLEY MIRANDA HALL, CHRIS ALLISON, JOE SPELLMAN, CLAIBORNE REED, CHRISTOPHER TAMBURELLO, PAUL FALKENBERG, TOM CRUMLY, WILLIAM MORIARTY, DOUGLAS HAMMEL, AMANDA LOTS, ANN MARIE WALSH, DANIEL WALSH, RONALD PARKER, JOSIE LOU SMITH, LARA KNEBEL, JOE YODER, DESIRAE BROADHEAD, RONALD BROWN, ASHLIE ATKINSON, REBEKAH RHODES, KYLE HANNAH, COURTNEY FINCH, MICHAEL FINCH, HERSCHEL SIGALL, MEREDITH VILLINES, NICHOLAS WATSON, JESSICE WATSON, GREGORY KESDEN, KEITH REISMAN, JASON PIPPIN, ROBIN SMITH, ANTHONY DIMMAGIO, KURT ZENDE, And CAROL BARBER, individually and on behalf of all others similarly situated, the Plaintiffs, v. Equifax, Inc. the Defendant, Case No. 1:17-cv-03502-TCB (N.D. Ga., Sep. 12, 2017), seeks all remedies available under their respective state data breach statutes, including but not limited to damages, equitable relief, including injunctive relief, treble damages, reasonable attorneys' fees and costs, as provided by the applicable laws. This action arises from a months-long data breach experienced by Equifax during the spring and summer of 2017. Through this breach, hackers were able to exploit "a garden variety website flaw" to obtain a massive amount of the most sensitive personal data available, acquiring the full names, Social Security Numbers, birth dates, addresses and drivers license numbers of over 143 million Americans. Beyond the severity and scope of the pilfered data, the Equifax breach also stands out for the way the company handled the breach once it was discovered. Although Equifax was aware of the breach as early as July 2017, it did nothing to apprise affected individuals -- almost 50% of the U.S. population -- until September 7, 2017. During that time, three Equifax executives were permitted to sell more than $1.8 million worth of stock in the days following the company's discovery of the breach. Noted security researcher Brian Krebs described Equifax's response to the breach as "completely broken at best, and little more than a stalling tactic or sham at worst." Of particular concern, the website the company created to inform people whether they were affected by the breach would provide results seemingly at random: "In some cases, people visiting the site were told they were not affected, only to find they received a different answer when they checked the site with the same information on their mobile phones." Further, in the course of providing remedial measures to affected consumers, Equifax offers a year's worth of credit monitoring services that in turn require the user to agree to binding arbitration, thereby foregoing any legal remedy in the courts for harm caused by Equifax's data breach. Doing so also lowers the cost to Equifax for future credit monitoring services as many victims of the breach, including Plaintiffs, will not succumb to forgoing their legal rights to redress in court. As a result of the staggering array of personal information that has been compromised, Plaintiff and Class members will have to remain vigilant for the rest of their lives to combat potential identity theft arising from the critical (and in some instances, irreplaceable) data that are in the hands of cyber criminals, who may use such data for any purpose, at any point, in perpetuity. Despite all best efforts of Plaintiff and Class Members, or any other third party to scrub these data from the World Wide Web, they are potentially forever recoverable by anyone who wishes to find them. Equifax's acts, practices, and omissions violate the laws of numerous states, and Plaintiffs bring this action on behalf of themselves, a nationwide class, and multiple state subclasses. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiffs are represented by: David M. Cohen, Esq. COMPLEX LAW GROUP, LLC 40 Powder Springs Street Marietta, GA 30064 Telephone: (770) 200 3100 Facsimile: (770) 200 3101 E-mail: dcohen@complexlaw.com - and - Allen Carney, Esq. CARNEY BATES & PULLIAM, PLLC 519 W. 7th Street Little Rock, AR 72201 Telephone: (501) 312 8500 Facsimile: (501) 312 8505 E-mail: acarney@cbplaw.com EQUIFAX INC: Faces "Vita" Suit in Northern Dist. of Georgia ----------------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is captioned as Nancy M. Vita, Horace C. Ramey, James A. Black, Jimmie Moore, Thomas A. Williams, Daniel R. Dalton, and Brittany S. Dalton, individually and on behalf of all others similarly situated, the Plaintiffs, v. Equifax, Inc., the Defendant, Case No. 1:17-cv-03484-SCJ (N.D. Ga., Sep. 12, 2017). The case is assigned to the Hon. Judge Steve C Jones. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiffs are represented by: Bradley W. Pratt, Esq. THE PRATT LAW FIRM, P.C. 4401 Northside Parkway, NW, Suite 520 Atlanta, GA 30327 Telephone: (404) 939 6101 Facsimile: (404) 939 4750 E-mail: bpratt@theprattfirm.com - and - Charles L. Clay, Jr., Esq. CHUCK CLAY & ASSOCIATES, LLC 4401 Northside Parkway, NW, Suite 520 Atlanta, GA 30327 Telephone: (404) 949 8118 Facsimile: (404) 949 8159 E-mail: chuck@chuckclay.com - and - Christopher Baker Hall, Esq. Peter Andrew Lampros, Esq. HALL & LAMPROS, LLP 1230 Peachtree Street, NE Promenade Two, Suite 950 Atlanta, GA 30309 Telephone: (404) 876 8100 Facsimile: (404) 876 3477 E-mail: chall@hallandlampros.com alampros@hallandlampros.com EQUIFAX INFORMATION: Faces "Levy" Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Equifax Information Services, LLC. The case is captioned as Daniel Levy, individually and on behalf of all others similarly situated, the Plaintiff, v. Equifax Information Services, LLC and Does 1 through 10, the Defendant, Case No. 1:17-cv-05354-JBW-LB (E.D.N.Y., Sep. 12, 2017). The case is assigned to the Hon. Judge Jack B. Weinstein. Equifax is a global provider of information solutions and human resources business process outsourcing services for businesses, governments and consumers. Equifax maintains databases of consumer and business information derived from numerous sources including credit, financial assets, telecommunications and utility payments, employment, income, demographic and marketing data. The Company uses statistical techniques and proprietary software tools to analyze all data to create solutions and services for its clients.[BN] The Plaintiff is represented by: Amir J. Goldstein, Esq. 166 Mercer Street, Suite 3A New York, NY 10012 Telephone: (212) 966 5253 Facsimile: (212) 941 8566 E-mail: AJG@consumercounselgroup.com EXPERIAN SERVICES: $650K Attys' Fees Awarded in "Rodriguez" ----------------------------------------------------------- In the case captioned Sue Rodriguez, et al., Plaintiffs, v. Experian Services Corp., et al., Defendants, Case No. 2:15-cv- 03553-R-MRW (C.D. Cal.), Judge Manuel L. Real of the U.S. District Court for the Central District of California, Western Division, granted Lead Plaintiff's Counsel's petition for an award of attorneys' fees and costs. The Court has granted final approval to the Settlement of the class action. The Lead Plaintiff's Counsel, the Schwaba Law Firm and Nicholson Law Firm, PA, appointed by the Court as the Class Counsel for the purposes of the Settlement have petitioned the Court for an award of attorneys' fees in compensation for the services provided to the Lead Plaintiffs and the Class, and reimbursement of expenses incurred in connection with the prosecution of this action, to be paid out of the Settlement Fund established pursuant to the Settlement. Having reviewed the fee application and the supporting materials filed therewith, and having heard the presentation made by the Class Counsel during the final approval hearing, Judge Real awarded the Class Counsel $650,000 as attorneys' fees in the action, which includes their costs of prosecution of the action. The attorneys' fees will be paid and reimbursement of expenses will be made in the manner and procedure provided for in the stipulations of Settlement. Judge Real also awarded the Lead Plaintiffs $2,000 for an incentive fee award and reimbursement for their lost time in connection with their prosecution of the action. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/nx96qd from Leagle.com. Sue Rodriguez, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice. Sue Rodriguez, Plaintiff, represented by R. Kevin Fisher -- rkf@fkslaw.net -- Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Deborah Sumlin, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Laurie Amagan, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba -- ADMIN@VERDICTNC.COM -- Schwaba Law Firm, pro hac vice. Taaliba Warden, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Nick Nichols, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Steed Rollins, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Debbie Houston, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Courtney Dusseau, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Vito Andrisani, Plaintiff, represented by Edward H. Nicholson, Jr., Nicholson Law Firm PA, pro hac vice, R. Kevin Fisher, Fisher and Krekorian & Andrew J. Schwaba, Schwaba Law Firm, pro hac vice. Experian Services Corp., Defendant, represented by Levi William Heath -- levi.heath@BTLaw.com -- Barnes and Thornburg LLP, Jonathan Boustani -- Jonathan.Boustani@btlaw.com -- Barnes and Thornburg LLP & Mark W. Bayer -- Mark.Bayer@btlaw.com -- Barnes and Thornburg LLP, pro hac vice. Experian Information Solutions, Inc., Defendant, represented by Jaclyn B. Stahl -- jstahl@jonesday.com -- Jones Day, Levi William Heath, Barnes and Thornburg LLP, Jonathan Boustani, Barnes and Thornburg LLP & Mark W. Bayer, Barnes and Thornburg LLP, pro hac vice. Experian Holdings, Inc., Defendant, represented by Levi William Heath, Barnes and Thornburg LLP, Jonathan Boustani, Barnes and Thornburg LLP & Mark W. Bayer, Barnes and Thornburg LLP, pro hac vice. CPL Holdings, Inc., Defendant, represented by Jaclyn B. Stahl, Jones Day & John A. Vogt, Jones Day. LowerMyBills.com, Inc., Defendant, represented by Jaclyn B. Stahl, Jones Day & John A. Vogt, Jones Day. Stephen Brian Heymann, Defendant, represented by Levi William Heath, Barnes and Thornburg LLP, Jonathan Boustani, Barnes and Thornburg LLP & Mark W. Bayer, Barnes and Thornburg LLP, pro hac vice. Steve Kranzler, Defendant, represented by Jaclyn B. Stahl, Jones Day & John A. Vogt, Jones Day. Mitchell Viner, Defendant, represented by Jaclyn B. Stahl, Jones Day & John A. Vogt, Jones Day. FACEBOOK INC: St. John Appeals Order in Campbell Suit to 9th Cir. ----------------------------------------------------------------- Objector Anna W. St. John filed an appeal from a court ruling in the lawsuit entitled Matthew Campbell, et al. v. Facebook, Inc., Case No. 4:13-cv-05996-PJH, in the U.S. District Court for the Northern District of California, Oakland. As previously reported in the Class Action Reporter on Sept. 1, 2017, Judge Phyllis J. Hamilton granted the Plaintiffs' motions for final approval, attorneys' fees and costs, and service awards for the class representatives; and overruled the objection of Anna St. John. The case was filed on Dec. 30, 2013. This is a certified class action alleging violations of the federal Electronic Communications Privacy Act and California's equivalent, the Invasion of Privacy Act. Plaintiffs Campbell and Michael Hurley, as the class representatives, allege that Facebook's practice of scanning its users' messages without consent violates these statutes. The appellate case is captioned as MATTHEW CAMPBELL; MICHAEL HURLEY, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees v. ANNA W. ST. JOHN, Objector-Appellant v. FACEBOOK, INC., Defendant-Appellee, Case No. 17-16873, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- September 22, 2017 -- Mediation Questionnaire due; -- October 16, 2017 -- Transcript shall be ordered; -- November 14, 2017 -- Transcript shall be filed by court reporter; -- December 26, 2017 -- Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1; -- January 26, 2018 -- Appellee's answering brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1; and -- The optional appellant's reply brief shall be filed and served within 21 days of service of the appellee's brief, pursuant to FRAP 32 and 9th Cir. R. 32-1.[BN] FACEBOOK INC: Settles Investor Lawsuit Over Control of Company -------------------------------------------------------------- Michelle Castillo, writing for CNBC, reports that Facebook on September 22 settled a lawsuit over issuing reclassified shares that some investors argued would decrease the value of their investment, and announced it was abandoning that plan. The class action shareholder lawsuit was intended to block Facebook from issuing reclassified C shares, which some investors argued could cause shares to lose billions of dollars of value when they were traded. The new C shares would be publicly listed but come with no voting rights. The classification would have allowed Facebook CEO Mark Zuckerberg to keep voting control of the company, even if he decided to lower his total ownership stake. The lawsuit said the new structure would have meant that Zuckerberg could own as little as 2 percent of the company and still keep voting control. In a note on Facebook in April 2016, Zuckerberg wrote the plan was created in order to allow him and his wife Priscilla Chan to donate money to solving global issues like curing diseases, improving education and climate change. It would also still allow him to stay "committed" to improving and leading Facebook, including helping the company grow internet access around the world, improve its artificial intelligence and develop virtual and augmented reality. The trial was scheduled to begin September 22, and Zuckerberg was scheduled to take the stand. Other people who were expected to testify include Facebook board members Marc Andreessen, CEO of the Bill & Melinda Gates Foundation Susan Desmond-Hellmann, and former White House chief of staff Erskine Bowles. [GN] FACEBOOK INC: Scraps Non-Voting Share Class Plan Prior to Trial --------------------------------------------------------------- Oliver Renick and Sarah Frier, writing for Bloomberg News, report that Silicon Valley spent more than a decade finding ways to give company founders more control. When Facebook Inc. tried to follow suit, shareholders pushed back. Google started it with a 2004 initial public offering that gave co-founders Larry Page and Sergey Brin voting rights well beyond their economic stakes in the search giant. Groupon Inc., Zynga Inc. and Facebook did it too, and this year Snap Inc. sold stock with no voting rights at all. In each case, investors went along, buying into the argument that founders need control so they can carry out their long-term visions. Sometimes shareholders sued, and invariably lost. In 2015, Facebook doubled down with a proposed new share class to solidify co-founder Mark Zuckerberg's grip on the social media giant forever, even if he sold almost all his stock. Shareholders sued again, and this time they won. Facebook scrapped its plans on Sept. 22, just days before a class action lawsuit challenging the move was set to go to trial. "This really is the death knell for existing companies trying to adopt a non-voting share class," said Ken Bertsch, executive director at the Council of Institutional Investors, a nonprofit group that advocates for strong corporate governance. There are other signs of sentiment shifting. In political and regulatory spheres, there's a new push to rein in U.S. internet companies, which have grown to become the world's most valuable public corporations in recent years. In capital markets, S&P Global Inc. recently barred stocks with multiple share classes from joining its main U.S. indexes -- excluding Snap, although Facebook was grandfathered in. And London Stock Exchange Group Plc unit FTSE Russell announced a list of more than 30 companies it would bar from its indexes unless they raised the percentage of voting rights accorded to public investors. MSCI Inc., another major index provider, also spoke out against these structures recently. "When you create these special classes of shares that are not aligned with the economic interests of the shareholders, some will say that's poor corporate governance," George Maris, portfolio manager at Janus Capital, said. "It's essentially trying to have your cake and eat it too. You want someone else's money but the class is divorced from what the shareholders want." In the tech sector, these special share arrangements often originate with venture capital investors when companies are private. Travis Kalanick had an elaborate way of maintaining control of Uber Technologies Inc., for example. But even private companies are starting to have to answer to shareholder scrutiny: Kalanick resigned earlier this year after a series of scandals at the ride-hailing provider. The lawyers challenging Facebook said that with Zuckerberg taking back his plan, they "achieved everything we could have hoped to obtain," according to Lee Rudy -- lrudy@ktmc.com -- a partner at Kessler Topaz Meltzer & Check LLP. "This case is important in the ongoing struggle between Silicon Valley and the belief that founders should maintain ultimate control," Stuart Grant, an attorney for shareholders at law firm Grant & Eisenhofer, said. "Once you ask for public money, that changes." Not everyone's convinced Mr. Zuckerberg's decision will dilute other founders' control. Mr. Zuckerberg, for his part, said he made the decision because Facebook's stock had appreciated so much he didn't need a new class of shares to retain control. Facebook shares are up about 30 percent in the last 12 months, valuing the company at $495 billion through Friday, Sept. 22. They slipped as much as 3.2 percent to $165.12 Monday, Sept. 25, the biggest intraday decline since June 12. The suit against Facebook also contained embarrassing revelations that the CEO may not have wanted to discuss in court. So the company may have scrapped the plan to avoid blushes, rather than appease outside shareholders. Mr. Zuckerberg also is dealing with several political crises, most notably investigations into whether Facebook ads were used by Russia to sow discord ahead of the U.S. presidential election last year. And while index providers wield power because hundreds of billions of dollars are invested against their benchmarks, it's not clear if their dim view of multiple-class structures is enough to dissuade a founder who wants to retain control. "If S&P and indexes had said they won't include the stock, then a company like Facebook would say fine, don't put us in the index -- --- it's a question of who wags the dog," said Matt Maley, an equity strategist at Miller Tabak & Co. [GN] FCA US: Jeep Wrangler Lawsuit Says Sand Causes Damage ----------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Jeep Wrangler radiator sludge lawsuit alleges the engines circulate sand through the cooling systems, causing the sand to settle in the radiators, oil cooling systems and heater cores. This allegedly creates sludge that blocks vital heating and cooling systems. The proposed 2012-2017 Jeep Wrangler class-action lawsuit says the two lead plaintiffs suffered from heater problems that cost each plaintiff more than $1,000 to repair. Both customers say their Jeep Wranglers were defective when they were shipped from the plant due to leftover sand in the cylinder heads. The sand allegedly travels through the systems and block vital components related to the HVAC systems. Because sand shouldn't be there in the first place, routine maintenance allegedly does nothing to fix the alleged damage to the Pentastar engines and radiators. It's a problem Jeep owners have complained about for years. The Texas owner of a 2012 Wrangler said there was no heat on the driver's side of the vehicle, so the owner checked the coolant. "I checked my overflow tank and found about 3" of sand in the bottom. The service manager at the Jeep dealership said he did not have a recall, campaign or service bulletin on this and it would not be covered by Jeep. He said he'd not heard of the issue, but when he asked fellow service managers they had heard of it in older Wranglers. This is a pretty outrageous issue if you ask me. Nobody but Jeep dealers have serviced the vehicle, so where would significant amounts of sand-like residue come from to get into the cooling system?" Another Jeep owner says taking the SUV back to dealers for heating problems has turned into a bad habit. "I will be bringing in my Jeep for the third time to have the heat fixed. The passenger side heat feels warmer than the drivers side. After having my Jeep for six days, they ended up replacing the heater core (again!) and flushing the coolant to rid the system of any casting sand." -- 2012 Jeep Wrangler owner / Eureka, Missouri And the owner of a 2013 Jeep Wrangler complained the coolant was an abnormal color when the SUV had only 28,000 miles. "The vehicle was taken to the dealer to get a coolant flush where it was diagnosed that there was casting sand in the coolant. The vehicle was repaired; however, upon returning the vehicle home, the contact inspected the coolant system and noticed that it had been contaminated by sand particles." The Wrangler lawsuit alleges the only fix is to replace the engines to get rid of damage from sand in the cylinder heads. A similar Wrangler class-action lawsuit was filed in June 2017 that alleges leftover engine casting sand causes sludge that blocks the radiators. The Jeep Wrangler radiator sludge lawsuit was filed in the U.S. District Court for the Southern District of New York - Malizia et. al. v. FCA US, LLC. [GN] FLORIDA: Marijuana Law Challenged Over Black Farmer License ----------------------------------------------------------- Jim Saunders and Dara Kam, writing for The News Service of Florida, report that a lawsuit filed on September 22 challenges the constitutionality of part of a new state law that requires a coveted medical-marijuana license to go to a black farmer. Columbus Smith, a black farmer from Panama City, filed the lawsuit, alleging that the law is so narrowly drawn that only a handful of black farmers could qualify for the license. The lawsuit contends that the measure is what is known as an unconstitutional "special law." The law, passed during a June special session, was designed to carry out a November constitutional amendment that broadly legalized medical marijuana in Florida. A key part of the law was expanding the number of licenses that would be awarded to operators in what could turn into a highly lucrative industry. While the law called for an overall increase of 10 licenses by Oct. 3, it also specified that one license go to a black farmer who had been part of settled lawsuits about discrimination by the federal government against black farmers. The law also said that the black farmer who receives a license would have to be a member of the Black Farmers and Agriculturalists Association-Florida Chapter. The lawsuit said Smith meets the qualification of being part of the litigation about discrimination against black farmers. But it said he has not been allowed to join the black farmers association, effectively preventing him from receiving a license. "There is no rational basis for limiting the opportunity of black farmers to obtain a medical marijuana license to only the few members of that class of black farmers who are also member of a specific private association," said the lawsuit, filed in Leon County circuit court. The Florida Constitution bars "special" laws, in part, that relate to "grant of privilege to a private corporation." The lawsuit alleges that the medical-marijuana law violates that part of the Constitution. The lawsuit names the Florida Department of Health, which is responsible for awarding licenses, as the defendant. It seeks an injunction against issuing a license under the part of the law related to black farmers. Licenses to grow, process and dispense medical marijuana have been one of the most-controversial issues in the rapidly developing industry. Representatives of the Black Farmers and Agriculturalists Association-Florida Chapter said on September 22 they could not comment on the lawsuit until their attorneys had time to review it. Health officials granted the first medical marijuana licenses in 2015, after the Legislature authorized non-euphoric medical marijuana for patients with severe epilepsy, muscle spasms or cancer. Nurseries that had been in business for 30 years or longer in Florida and grew at least 400,000 plants were eligible to apply. In expanding the number of licenses this year, the Legislature carved out a license for black farmers who complained that they were shut out from applying for the original licenses because none of the black farmers met the eligibility criteria. Part of the reason that the black farmers don't have operations as expansive as their white and Hispanic counterparts may be blamed on discriminatory lending practices by the U.S. Department of Agriculture that led to a class-action lawsuit, known as "Pigford I," filed in 1981. A second lawsuit, called "Pigford II," was finally settled by a federal judge in 2011. Many of the claimants have yet to receive their portions of the $1.3 billion settlement, and others have died waiting for the cases to be resolved. "They have carved out most of the small farmers, not only the black farmers, but the small farmers. We can't compete with those companies. It's just a shame. It's a travesty. Again, going back 30 years ago with the USDA, the same thing you saw in Pigford I and Pigford II. It's the same thing again, right here in the state of Florida. It's not right," Howard Gunn, an Ocala farmer who is the president of the black farmers' association, said in 2015. [GN] GC SERVICES LIMITED: Appeals Court Allows Class Action to Proceed ----------------------------------------------------------------- Chandra Lye, writing for Florida Record, reports that the U.S. Court of Appeals for the 11th Circuit has vacated a lower court's decision to deny class-action status in a lawsuit involving debt collection. Ronnie Dickens had appealed a decision by the U.S. District Court for the Middle District of Florida to not grant class-action certification in his suit against GC Services Limited Partnership. "We are happy with the 11th Circuit's ruling and look forward to proceeding with the case in the district court," James Davidson, Dickens' attorney, told the Florida Record. Dickens had filed the suit after receiving a debt collection letter from the company that indicated that GC Services was looking to collect a debt he allegedly incurred from Synchrony Bank. In the letter, the company allegedly said that if he disputed the claim, "we will obtain verification of the debt from our client and send it to you," according to the appeals court ruling. However, Dickens, who contested the debt, sued the company and claimed the letter violated the Fair Debt Collection Practices Act. In his claim, he argued that the letter failed to clarify that he needed to dispute the debt in writing before the collector would seek verification from its client, Synchrony Bank. He also alleged that the letter was false, deceptive or misleading. However, GC Services indicated in a declaration from Mark Schordock, its executive vice president of operations, that its policy was to get written verification of the debt even if the company was informed in a non-written manner that the consumer disputed the debt. Dickens attempted to get class certification for the case because GC Services allegedly sent over 9,000 similar letters to other individuals in Florida. However, the U.S. District Court for the Middle District of Florida denied a class certification of his complaint. He argued that the court abused its discretion by deciding he was not "an adequate class representative and that a class-action was not the superior method of adjudicating the putative class's claims." The appellate court sided with the plaintiff and vacated the district court's denial of class certification. The appeals court then sent the case back to the district court for further proceedings. "We therefore vacate the district court's denial of class certification and remand this case to the district court for a new class certification determination," the appeals court said in the decision. [GN] GOOGLE INC: Class Action Mulled Over Name Search Ban Violations --------------------------------------------------------------- Andrew Duffy, writing for Ottawa Citizen, reports that new and startling evidence of Google's ability to possibly defeat court- ordered publication bans has emerged as an Ottawa law firm prepares a class-action lawsuit against the search engine giant. The Citizen has found that, in two high-profile Ontario cases, Google searches aimed at finding online news coverage of the trials will return "related searches" that include the names of individuals shielded by the courts. These inadvertent disclosures provide fresh examples of how Google could be undermining court-ordered publication bans put in place to protect crime victims and young offenders. Meanwhile, Ottawa lawyer Michael Crystal said he intends to launch a class-action lawsuit on behalf of those whose right to remain anonymous may have been breached by Google search algorithms. "I am quite concerned this violation may create a chill in the court process if not confronted," Mr. Crystal said. "Complainants in sexual assault matters often come forward on the basis that their identities will be protected." In recent weeks, the Citizen has discovered that Google's powerful search engine can link a protected name to court coverage, and court coverage to a protected name. In one high-profile Ontario case, anyone using common search terms to retrieve news stories about the trial produces a list of "related searches" that includes the name of a protected sexual assault victim. In another much-publicized case, the "related searches" list includes the court-protected name of a child abuser. It means that someone who doesn't know the protected name of a victim or offender can, in certain cases, be linked to them through the "related searches" function. Google's list of related searches often appear at the bottom of a search page in dark blue hyperlinks. (Related search links do not always appear: The search engine requires a certain volume of associated searches for it to trigger related search results.) The tool was first unveiled by Google in 2008. In an official blog from the company's Google News team, it was promoted as a way for web surfers to browse the news, "perhaps finding connections between stories that you hadn't seen." "As is normal for Google News," the blog noted, "there are no human editors involved in selecting related searches: These suggestions are automatically generated based on an algorithm to determine terms related to your search." Google Canada officials reiterated on Sept. 22 that they will act on individual complaints and remove search results that violate local laws. The latest developments follow a Citizen story that revealed Google's search engine can link the protected names of young offenders and victims to online media coverage. Computer experts believe such links are an unintended consequence of math-based algorithms that can produce results informed by what other people have searched for online. In six high profile cases documented by the Citizen, searching the name of a young offender or victim -- shielded by court order -- will return results with online media coverage of their court cases, even though their names do not appear anywhere in the news stories. The same held true for high profile cases in Montreal and Windsor. The problem was first discovered by Citizen court reporter Gary Dimmock, who was troubled when he found that a Google search of a young offender's name linked to his stories. Mr. Dimmock asked editors to investigate the situation and ensure that the Citizen hadn't accidentally encoded the youth's name onto the paper's website. A subsequent investigation found the problem did not lie with the newspaper's online source code or with the digital forms that reporters and editors use to describe stories and photos. In fact, further inquiries revealed that a similar issue existed in at least five other high-profile Ottawa cases in which publication bans were issued. Michael Crystal said he's now searching for people affected by the situation in order to put together a class-action lawsuit. The Citizen's findings, he said, suggest the legal regime that protects the identities of crime victims has been dangerously weakened by the advance of technology. Already, he noted, many sexual assault victims are reluctant to face their abuser in court and to endure cross-examination. How many will come forward, he asked, if the courts can't guarantee their identities will be protected? "You will have people who will think twice before agreeing to participate in litigation in criminal sexual matters. This is a major issue," he said. Former CBC Radio executive-producer Alan Conter, now a Concordia University journalism professor, said the federal government may have to modernize the Criminal Code's publication ban provisions to keep up with search engine technology. "Google is not directly violating the publication ban: the algorithms are such that it allows that to happen," Mr. Conter said. "That's why I think the law might need to be clarified -- to capture the 21st century notion of what constitutes publication." Google handles more than 3.5 billion searches a day, and dominates the search engine landscape. [GN] GOVERNMENT EMPLOYEES: Court Denies Bid to Remand "Stone" Suit ------------------------------------------------------------- Judge Benjamin H. Settle of the U.S. District Court for the Western District of Washington, Tacoma, denied the Plaintiffs' motion to remand the case captioned MEGAN STONE and CHRISTINE CAROSI, Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant, Case No. C16-5383 BHS (W.D. Wash.). Stone was involved in a hit and run car accident on May 22, 2014. She had an automobile insurance policy with Defendant GEICO. Stone was unable to use her car for about 105 days while GEICO investigated her claim and while her car was being repaired. On June 17, 2015, Stone filed a class action complaint against GEICO in Pierce County Superior Court, claiming that GEICO failed to pay her for "loss of use" damages. Stone sought to certify the class of all GEICO insureds with Washington policies issued in Washington State, where GEICO determined the loss to be covered under the Underinsured Motorist ("UIM") coverage, and their vehicle suffered a loss requiring repair, or the vehicle was totaled, during which time they were without the use of their vehicle, for a day or more. Stone claimed there would be about 5,000 class members and the average damages would be about $140 per class member. Based on these numbers, Stone alleged the amount in controversy would be at most $700,000. She asserted a single breach of contract claim, and sought compensatory damages, injunctive and equitable relief, and attorney's fees. On Feb. 18, 2016, Stone deposed GEICO's Rule 30(b)(6) designee, David Antonacci. Antonacci testified that about 18,000 GEICO insureds had filed UIM claims during the class period in Washington. Antonacci further testified that GEICO possessed information regarding the average price it paid for rental cars during the class period. These numbers were produced in a supplemental response to a discovery request showing that the average daily rate is approximately $35/day. On May 10, 2016, Stone filed an amended complaint, which added Carosi as a Named Plaintiff. The Plaintiffs' amended complaint contains the same proposed class definition, class allegations, breach of contract claim, and requests for relief. On May 16, 2016, the Plaintiffs moved for class certification of the same class pled in their original complaint. To support their motion, they provided a declaration from their statistician, Dr. Bernard Siskin, who explained how the number of class members and the average damages per class member could be determined. On May 20, 2016, GEICO removed the action to this Court under the Class Action Fairness Act, alleging the proposed class may include as many as 22,929 members and the average damages may be $321.30 per class member. Based on these numbers, GEICO asserts there is potentially $7,367,087.70 in controversy. On June 14, 2016, the Plaintiffs moved to remand. On July 28, 2016, the Court granted the Plaintiffs' motion to remand. On Aug. 11, 2016, GEICO filed a motion for reconsideration. On Oct. 12, 2016, the Court granted GEICO's motion, vacated its previous order, and issued an amended order denying the Plaintiffs' motion to remand. After the Court denied remand, the parties engaged in discovery regarding the Court's subject matter jurisdiction. On Aug. 8, 2017, the Court granted GEICO's motion to compel in part and denied it in part. In relevant part, the Court concluded that the Plaintiffs asserted a coverage dispute and may be entitled to attorney's fees under Olympic Steamship Co. v. Centennial Ins. Co. On Aug. 3, 2017, the Plaintiffs moved to remand. On Aug. 21, 2017, GEICO responded. On Aug.25, 2017, the Plaintiffs replied. Judge Settle finds that the Plaintiffs' evidence shows that, at most, GEICO possessed subjective knowledge that damages could potentially exceed the jurisdictional limit. Such knowledge does not trigger the second removal period. He further finds that the Plaintiffs fail to present any plausible argument that awardable fees would potentially be less in this highly contested matter. Therefore, he concluded that, with the addition of Olympic Steamship fees, the amount in controversy easily exceeds $5,000,000. Accordingly, Judge Settle denied the Plaintiffs' motion to remand. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/rsyMmU from Leagle.com. Megan Stone, Plaintiff, represented by Stephen M. Hansen -- steve@stephenmhansenlaw.com -- LAW OFFICES OF STEPHEN M. HANSEN. Megan Stone, Plaintiff, represented by Scott P. Nealey -- snealey@nealeylaw.com -- NEALEY LAW, pro hac vice. Christine Carosi, Plaintiff, represented by Stephen M. Hansen, LAW OFFICES OF STEPHEN M. HANSEN & Scott P. Nealey, NEALEY LAW, pro hac vice. GEICO General Insurance Company, Defendant, represented by Andrea H. McNeely -- amcneely@gth-law.com -- GORDON THOMAS HONEYWELL LLP, Joshua Grabel -- jgrabel@lrrc.com -- LEWIS ROCA ROTHGERBER CHRISTIE, pro hac vice & Stephanie L. Bloomfield -- sbloomfield@gth-law.com -- GORDON THOMAS HONEYWELL LLP. HAMILTON TOWNSHIP, NJ: Dec. 18 Settlement Approval Hearing Set -------------------------------------------------------------- The following release was issued on Sept. 24 by The Notice Company, Inc.: A Settlement has been reached in the lawsuit entitled Gray v. Board of Education of the Township of Hamilton, Mercer County, No. MER-L-747-14, pending in the Superior Court of New Jersey, Law Division, Mercer County. Visit www.HamiltonRetirees.com for complete information. What Is This Case About? The lawsuit alleges that the Hamilton Township Board of Education ("Board") breached its obligations to make cash payments in lieu of prescription drug coverage to certain retirees, and in some instances to their dependents, by stopping such payments, and that this benefit is owed to Class Members both retroactively and prospectively. The parties have agreed to settle, but the Settlement does not constitute an admission of any liability by any party. Who is Included in the Settlement? "Class Members" included in the Settlement consist of five Subclasses: Subclass "A" consists of the Administrators/Supervisors defined as follows: All retired employees that were formerly employed by the Hamilton Township Board of Education pursuant to a collective bargaining agreement with the Hamilton Township Administrators and Supervisors Association and retired from the Board on or before July 1, 2011, and the dependents of such employees. These employees and their dependents received annual cash payments in lieu of the prescription drug coverage pursuant to the terms of Article 4, Sec. 11.2 of the parties' collective bargaining agreement, and their payments stopped in breach of the collective bargaining agreement in or about July 2011 for the dependents of the Association retirees who had declared single coverage; in or about July 2012 for all the dependents of the Association retirees; and in or around July 2013 to all Association retires. Subclass "B" consists of Hamilton Township Education Association ("HTEA") members who contracted to receive the annual maximum in prescription drug copayments as provided by the School Employees' Health Benefits Program ("SEHBP") and defined as follows: All retired employees that were formerly employed by the Hamilton Township Board of Education and were employed pursuant to collective bargaining agreements with the Hamilton Township Education Association and retired from the Board on or before July 1, 2012. These employees received annual cash payments in lieu of the prescription drug coverage pursuant to the terms of the parties' collective bargaining agreements, and their payments stopped in or around July 2013. Subclass "C" consists of Hamilton Township School Secretaries Association ("HTSSA") members who contracted to receive the annual maximum in prescription drug copayments as provided by the SEHBP and defined as follows: All retired employees that were formerly employed by the Hamilton Township Board of Education and were employed pursuant to collective bargaining agreements with the Hamilton Township School Secretaries Association and retired from the Board on or before July 1, 2011. These employees received annual cash payments in lieu of the prescription drug coverage pursuant to the terms of the parties' collective bargaining agreements, and their payments stopped in or around July 2013. Subclass "D" consists of HTEA members who contracted to receive a defined payment of $500.00 per year and defined as follows: All retired employees that were formerly employed by the Hamilton Township Board of Education and were employed pursuant to collective bargaining agreements with the Hamilton Township Education Association and retired from the Board on or before July 1, 2012. These employees received annual cash payments of $500.00 per year in lieu of the prescription drug coverage pursuant to the terms of the parties' collective bargaining agreements, and their payments stopped in or around July 2013. Subclass "E" consists of HTSSA members who contracted to receive a defined payment of $500.00 per year and defined as follows: All retired employees that were formerly employed by the Hamilton Township Board of Education and were employed pursuant to collective bargaining agreements with the Hamilton Township School Secretaries Association and retired from the Board on or before July 1, 2011. These employees received annual cash payments of $500.00 in lieu of the prescription drug coverage pursuant to the terms of the parties' collective bargaining agreements, and their payments stopped in or around July 2013. What Does the Settlement Provide? The Board has agreed to pay $17,000,000 to the members of all 5 subclasses as a total The Board has agreed to pay $17,000,000 to the members of all 5 subclasses as a total settlement. Payment of $4,000,000, representing past payments due, will be paid in two payments. The first half will be paid within thirty (30) days of entry of the Final Approval Order (if the Settlement is approved by the Court) and the second half will be paid in or around January 2018. These payments are intended to result in all class members being paid the amounts they would have received if they were paid through December 31, 2017 (if the benefit had not been stopped). The $13,000,000 in remaining settlement monies will be paid in prospective payments over a ten (10) year period, with one (1) payment made at the beginning of each year, the first of which will be made in in January 2019, and the remaining payments made in January of each of the following nine years. With respect to Class Members who died prior to January 1, 2017: The Board has agreed to pay to each Class Member's estate the Class Member's share of the amounts due up until the date of death (for each year the member was alive on January 1 of a given year). With respect to Class Members who died after January 1, 2017: The Board has agreed to pay to the Class Members estate both retroactive payments. All remaining prospective payments will be paid to the Class Members' estates on the same schedule (provided the Board is notified of the death by the estate's administrator). With respect to Class Members who are dependents, once a dependent "ages out" (exceeds the age of 26 years), any retroactive payment remaining due shall cease. What Are Your rights? If you do nothing, Class Members will be bound by the Court's decisions. If you do not want the benefits of the Settlements and, instead, you want to keep your right to sue the Board (subject to applicable statutes of limitation), you must exclude yourself from the Settlement Class by writing to the Class Administrator at the following address: Hamilton Exclusions c/o The Notice Company P.O. Box 455 Hingham, MA 02043 The Court will exclude from the Class any Class Member who submits a written exclusion request, which must be signed, dated and state that you are excluding yourself from the Class in the case of Gray v. Hamilton Township Board of Education, No. MER-L-747-14. To be valid, exclusion requests must be postmarked on or before OCTOBER 24, 2017. If you do not exclude yourself, you may object to the Settlement, or enter an appearance through counsel, by filing an objection with the Court and sending copies to Class Counsel and Defendant's Counsel, as follows: Clerk of the Superior Court Mercer County Courthouse P.O. Box 8068 Trenton, NJ 08650-0068 Class Counsel: Richard A. Friedman, Esq. Zazzali, Fagella, Nowak, Kleinbaum & Friedman, P.C. 150 West State Street Trenton, NJ 08901 Robert M. Schwartz, Esq. Schwartz Law Group, LLC Monroe Office Center at Forsgate 12 Centre Drive Monroe Township, NJ 08831 Defendant's Counsel: Patrick F. Carrigg, Esq. Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC 136 Franklin Corner Road, Unit B-2 Lawrenceville, NJ 08648 The deadline to file objections or a notice of appearance is OCTOBER 24, 2017. When is the Final Hearing? The Court will hold a hearing on DECEMBER 18, 2017 at 3:00 p.m. at the Mercer County Courthouse, 175 South Broad Street, Trenton, New Jersey, to consider whether to approve the Settlements and a request for attorneys' fees. This date may change so please check the website. You or your own lawyer may appear and speak at the hearing at your own expense. Should You Submit Updated Contact Information? If you qualify as a Class Member but you are not sure if the Board has your current address, or if you are the authorized representative of the estate of a Class Member, you should complete a Contact Update Form available at www.HamiltonRetirees.com or by writing to the Class Administrator at the address shown below. For More Information: Call toll free 1-800-921-7820, visit www.HamiltonRetirees.com, write to Class Counsel, or write to Hamilton Class Administrator, c/o The Notice Company, P.O. Box 455, Hingham, MA 02043. PLEASE DO NOT CONTACT THE COURT [GN] HOME CAPITAL: Court Approves Settlement Agreement ------------------------------------------------- On February 13, 2017, an action styled McDonald v Home Capital Group Inc., et al. was commenced in the Ontario Superior Court of Justice ("Court") on behalf of persons who acquired Home Capital Group Inc.'s ("HCG", TSX: HCG, CUSIP: 436913107, ISIN: CA4369131079) shares between November 5, 2014 to July 10, 2015 ("Class Period"). The action is related to Home Capital Group's allegedly misleading disclosure in relation to mortgage origination practices and changes in mortgage origination during the Class Period. A settlement of the action in the amount of $29,500,000, paid for the benefit of affected class members has been approved by the Court. The settlement is a compromise of disputed claims and is not an admission of liability or wrongdoing by HCG or any other defendant named in the action. If you acquired Home Capital Group Inc. shares during the Class Period, you may be eligible for compensation. In order to recover any such compensation, you must submit a completed Claim Form to RicePoint Administration Inc. no later than January 22, 2018. NOTE: If you do not timely submit a Claim Form, you will not be entitled to any compensation; and, unless you have previously opted out, you will not be entitled to pursue any other action in respect of those claims. For more information about the Settlement, your rights and how to exercise them, please contact the Claims Administrator at: Home Capital Securities Litigation c/o RicePoint Administration Inc. PO Box 4454, Toronto Station A, 25 The Esplanade Toronto, ON M5W 4B1 Tel: 1-866-432-5534 E-mail: homecapital@ricepoint.com Or Class Counsel (Siskinds LLP) at: Michael G. Robb 680 Waterloo Street London, ON N6A 3V8 Tel: 1-877-672-2121 x 2380 Fax: 519-672-6065 E-mail: michael.robb@siskinds.com [GN] HOUSTON, TX: Homeowners Sue Over Hurricane Harvey Flooding ---------------------------------------------------------- Brien Straw, writing for Houston Public Media, reports that Kingwood homeowners are taking state officials to court over flooding that occurred during Hurricane Harvey. They've joined residents west of the city which are suing the federal government. The individual lawsuit claims state and federal officials chose to protect some homes from flooding at the expense of others. In legal terms it's called inverse condemnation. Attorney Paul Danzinger explains what that means. It's called inverse condemnation. Attorney Paul Danzinger, Esq. of Danziger & De Llano, LLP explains what that means. "The state does not have the right to take your property without providing you, just compensation." Danzinger says. Danzinger says he's representing over 300 homeowners so far that he believes deserve to be reimbursed for being flooded. The reason: when the U.S. Army Corps of Engineers opened the dams at the Barker and Addicks reservoirs, and the San Jacinto River Authority released water from Lake Conroe, they chose to take property by flooding it. "United States Supreme Court has determined that a flooding is considered a taking. And once you have essentially taking by the state, we're going to be alleging that the state must compensate the people for that take." says Danzinger. When asked for their side of the story, the Army Corps of Engineers said they don't comment on ongoing litigation and the San Jacinto River Authority didn't respond to email and phone requests for comments. However, they have posted responses to many of the issues addressed in the lawsuit on their website. [GN] HYLAND'S INC: Hammack Appeals Decision in "Forcellati" Class Suit ----------------------------------------------------------------- Objector Ashley Hammack filed an appeal from a court ruling in the lawsuit entitled Enzo Forcellati, et al. v. Hyland's, Inc., et al., Case No. 2:12-cv-01983-ODW-MRW, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the District Court issued an Order granting the parties' Motion for Final Approval of Class Action Settlement, and Plaintiffs' Motion for an Award of Attorneys' Fees, Costs, and Incentive Awards in the case. On February 7, 2017, the Court granted preliminary approval of a proposed class action settlement between the parties in this Consolidated Action. In the Preliminary Approval Order, the Court provisionally certified a Settlement Class of all persons in the United States who purchased the following Hyland's products on or after March 8, 2008: (i) Cold 'n Cough 4 Kids, (ii) Cough Syrup with 100% Natural Honey, (iii) Sniffles 'n Sneezes 4 Kids, (iv) Cold Relief Strips 4 Kids with Zinc, (v) Nighttime Cold 'n Cough 4 Kids, (vi) Complete Flu Care 4 Kids, (vii) Baby Teething Gel, (viii) Baby Cough Syrup, (ix) Baby Gas Drops, (x) Baby Infant Earache Drops, and (xi) Baby Nighttime Tiny Cold Syrup. The appellate case is captioned as Enzo Forcellati, et al. v. Hyland's, Inc., et al., Case No. 17-56374, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 12, 2017; -- Transcript is due on November 13, 2017; -- Appellant Ashley Hammack's opening brief is due on December 21, 2017; -- Appellees Enzo Forcellati, Hyland's, Inc., Lisa Roemmich, Standard Homeopathic Company and Standard Homeopathic Laboratories, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellees ENZO FORCELLATI, on Behalf of Himself and all Others Similarly Situated, and LISA ROEMMICH, on behalf of themselves and all others similarly situated, are represented by: Scott Bursor, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 E-mail: scott@bursor.com - and - Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 N. California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: ltfisher@bursor.com - and - Nadeem Faruqi, Esq. FARUQI & FARUQI LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 E-mail: nfaruqi@faruqilaw.com - and - Benjamin Heikali, Esq. Barbara Ann Rohr, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard Los Angeles, CA 90024 Telephone: (424) 256-2884 Facsimile: (424) 256-2885 E-mail: Bheikali@faruqilaw.com brohr@faruqilaw.com - and - Ronald A. Marron, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 E-mail: ron@consumersadvocates.com Objector-Appellant ASHLEY HAMMACK is represented by: Michael F. Creamer, Jr., Esq. LAW OFFICE OF MICHAEL CREAMER 5375 Industrial Drive Huntington Beach, CA 92649 Telephone: (714) 901-8504 Defendants-Appellees HYLAND'S, INC.; STANDARD HOMEOPATHIC LABORATORIES, INC.; and STANDARD HOMEOPATHIC COMPANY are represented by: Jeffrey B. Margulies, Esq. Spencer Stephen Persson, Esq. Stephanie Anne Stroup, Esq. FULBRIGHT & JAWORSKI LLP 555 South Flower Street, 41st Floor Los Angeles, CA 90071 Telephone: (213) 892-9200 E-mail: jeff.margulies@nortonrosefulbright.com spencer.persson@nortonrosefulbright.com stephanie.stroup@nortonrosefulbright.com IMPERIAL BANK: Depositors Mull Class Action Over Collapse --------------------------------------------------------- Margaret Njugunah, writing for Capital Business, reports that Imperial Bank depositors have written to the Central Bank of Kenya with a list of demands they want to be met in a bid to recover money lost after the bank's 2015 closure by the CBK. MMC Africa Law which is instituting a class action on behalf of Imperial Bank depositors says their clients want CBK held legally responsible for the collapse of mid-tier lender. The law firm has asked the CBK to share the annual financial reports of the bank between 2011 and 2015, CBK onsite inspection reports and inspection reports in respect of the bank among other demands. The letter addressed to CBK Governor Dr Patrick Njoroge warned of the intentions of the depositors to move to a constitutional court after 14 days should the regulator fail to adhere to the demands. "Unless we receive your admission of liability together with the aforesaid documents and information within the next 14 days from the date of receipt of this letter, our clients intend to commence legal proceedings against CBK with a view of recovering all deposits held and lost in the said bank, consequential damages and interest and to compel you to provide the information as the case may be. The attendant costs shall be borne by CBK," the letter reads in part. In August, the High Court granted a 12-month extension of the receivership of Imperial Bank Limited. The move followed an agreement with stakeholders to enable the regulator to move on with seeking a potential strategic investor that will revive the bank. In October 2015, CBK said it was aware of unsafe business conditions at the bank, prompting the decision to close the institution. [GN] INT'L PAPER: Court Allows Class Action Over Flooding to Proceed --------------------------------------------------------------- NorthEscambia.com reports that a federal judge has approved a class action notice in a lawsuit against International Paper over flooding in several neighborhoods. The class action suit against IP claims that flooding during record rainfall in April 2014 was caused by failure of the "Kingsfield Road Dam", located on IP's mill property in Cantonment. The plantiffs claim IP was negligent by not properly maintaining or removing the dam. Chief Judge M. Casey Rodgers of the United States District Court for the Northern District of Florida has granted class action status to a lawsuit brought on behalf of owners of real property as of April 29, 2014, in the Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills subdivisions in Cantonment. "We are pleased that the Federal Court has Certified this Class Action against International Paper, on behalf of the residents of Bristol Park and Asbury Hills subdivisions. We look forward to fighting for our clients at the trial which is set to begin February 20, 2018," said J.J. Talbott, one of the plantiff attorneys in the case. The lawsuit claims that between 10:30 and 11:30 p.m., a large "swell" or "wave" of water breached and overflowed into Eleven Mile Creek, including the Bristol Park and Ashbury Hills subdivisions, Devine Farms Road and other surrounding areas, as a result of International Paper's dam or levee. Both residential areas are located in "Flood Zone X" on flood insurance maps, meaning they are not in special flood hazard areas and require no mandatory flood insurance. The failure, the lawsuit asserts, was the result of IP's negligence in maintaining the Eleven Mile Creek Dam and levee, failure to counteract continued development, failed to control debris buildup in and around the dam, and of a failure to notify those downstream of the potential or ultimate failure of the levee system. The lawsuit seeks damages for loss and damage to personal and real property, diminished property values, loss of enjoyment, mental anguish, loss of income and additional expenses due to the flooding in the neighborhoods. International Paper has denied responsibility for the flooding, contending that he flooding was caused by the rainfall during the April 29-30 storm. In a May 2014 statement, International Paper told NorthEcambai.com: "On April 29, 2014, the Pensacola Mill experienced the storm/flood event that the rest of the county experienced. There was significant erosion and wash-out of an inactive erosion control structure near Kingsfield Road. The structure was previously used to control erosion at this now abandoned outfall point, but it has been out of service since the mill completed transition to the pipeline in October of 2012. "Our heartfelt thoughts and prayers go out to all those who have been directly affected by the area floods. Many of our team members were impacted by this event. On April 29, record storm water flows from across the entire 48-square mile watershed of Elevenmile creek rapidly exceeded the capacity of the creek. During and after the storm, the Pensacola mill continued to discharge to our pipeline, which bypasses the Elevenmile creek watershed. No part of the mill's waste treatment facility failed or collapsed during or after the storm event. We have fully communicated with both state and local agencies regarding the impacts of the storm on the Pensacola mill." [GN] INTERNAL REVENUE: 10th Cir. Affirms Dismissal of AFSP Suit ---------------------------------------------------------- The United States Court of Appeals, Tenth Circuit, issued an Order and Judgment affirming the judgment of the District Court dismissing Plaintiff's claim for lack of subject matter in the case captioned GERARDO RIVERA; OSCAR PRIETO; HECTOR BACA; JUAN DOMINGUEZ; STEVE WILSON; ELIJIO BORJA; MIRIAM GRANADOS, Plaintiffs-Appellants, v. INTERNAL REVENUE SERVICE; JOHN KOSKINEN; UNITED STATES OF AMERICA, Defendants-Appellees, No. 16-2277 (10th Cir.). Plaintiffs-Appellants in the case are Miriam Granados, a tax- return preparer doing business as Columbia Tax Service, and six of her clients. Plaintiffs filed a class-action complaint against the Internal Revenue Service challenging its voluntary Annual Filing Season Program (AFSP) for certain tax-return preparers and the IRS' investigation of Columbia and audits of Client tax returns prepared by Columbia. The AFSP is a voluntary program offered by the IRS that allows non-credentialed tax-return preparers to be listed on the IRS' online Directory of Federal Tax Return Preparers if they complete continuing education courses, pass an exam and comply with other elements of the program. The AFSP's purpose is to encourage tax-return preparers who are not attorneys, certified public accountants, or registered agents to complete continuing education courses in order to increase their knowledge of relevant federal tax law. The IRS began offering this program after the D.C. Circuit held that the IRS lacked authority to issue a rule requiring non-credentialed tax- return preparers to register with the IRS and comply with similar requirements. The complaint alleges the IRS is being more intrusive and aggressive than necessary in auditing the Clients' tax returns, and has violated the Clients' basic rights in the course of these audits by ignoring crucial evidence, disallowing lawful deductions, issuing defective and misleading notices, and harassing and intimidating them. Based on these allegations, Plaintiffs assert three substantive claims against the IRS and IRS Commissioner under the Administrative Procedures Act (APA). In Count 1, Columbia asks the court to invalidate the AFSP on the ground that it exceeds the IRS' statutory authority. In Count 2, both Columbia and the Clients assert that the IRS' harassment and intimidation" of the Clients constitutes a final agency action that is contrary to their constitutional rights. Similarly, in Count 3, the Clients allege that the IRS violated their constitutional rights and was arbitrary and capricious in issuing tax deficiency notices to them. As relief, Plaintiffs seek a declaration that the IRS actions of which they complain are unconstitutional and in violation of federal law and an order enjoining these actions. Under the doctrine of sovereign immunity, the United States may not be sued without its consent and the existence of consent is a prerequisite for jurisdiction. The APA's sovereign immunity waiver does not apply if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought. As relevant here, there are two statutes that forbid the relief Plaintiffs seek with respect to the IRS' investigations and audits: the Anti-Injunction Act (AIA) and the tax exception provision of the Declaratory Judgment Act (DJA). It is clear from the complaint, and undisputed by Plaintiffs here, that the IRS is conducting the investigations, audits and other actions complained of as part of the agency's tax assessment and collection efforts. Accordingly, Counts 2 and 3 of the complaint, in which Columbia and the Clients seek an order enjoining the IRS' investigations, audits and notices of deficiency towards them and a declaration that they are unconstitutional and in violation of federal law, fall within the prohibitions stated in the AIA and DJA and therefore outside of the waiver of sovereign immunity provided in the APA. Plaintiffs apparently accept that the AIA and DJA bar Count 3 of their complaint, in which they seek to invalidate and enjoin the notices of deficiency the IRS issued the Clients, because Plaintiffs concede in their opening brief that the district court lacked jurisdiction over this claim. In portraying Count 2 as a constitutional claim, Plaintiffs also appear to be assuming that such claims are per se exempt from the prohibition on suits seeking to restrain the IRS' tax assessment and collection activities. This is incorrect. Claims seeking to restrain the assessment or collection of taxes are prohibited by the AIA, "notwithstanding that plaintiffs have couched [them] in constitutional terms. The Tenth Circuit concluded that Plaintiffs' claims seeking to enjoin the IRS' investigation and audits, Counts 2 and 3 in the amended complaint, are for the purpose of restraining the assessment and collection of taxes and are therefore barred by the AIA and the DJA and not covered by the waiver of sovereign immunity provided in the APA. The Tenth Circuit therefore affirmed the district court's dismissal of these claims for lack of jurisdiction. Under Article III of the Constitution, standing is a prerequisite to subject matter jurisdiction that we must address, sua sponte if necessary, when the record reveals a colorable standing issue. These elements are: (1) that it has suffered an injury in fact that is concrete, particularized and actual or imminent; (2) that there is a causal connection between the injury and the conduct complained of, and (3) that the injury will likely be redressed by a favorable decision. Elsewhere in the complaint, Columbia and the Clients assert they have been injured by the IRS targeting Columbia for criminal investigation and targeting its clients for audits and examinations in retaliation for Columbia opting not to participate in the AFSP. Assuming these allegations sufficiently allege an injury in fact to Columbia, the complaint still fails to allege or explain any causal connection between this injury and the existence of the AFSP. Nor is it apparent how the relief sought with respect to Count 1, invalidation of the AFSP, is likely redress this alleged injury. The Tenth Circuit therefore concluded that Columbia does not have standing to pursue this claim, and that subject matter jurisdiction is lacking for Count 1 as a result. A full-text copy of the Tenth Circuit's September 18, 2017 Order and Judgment is available at http://tinyurl.com/ycpsxkagfrom Leagle.com. JACOB TRANSPORTATION: Limo Drivers Class in "Greene" Certified -------------------------------------------------------------- Judge Gloria M. Navarro of the U.S. District Court for the District of Nevada granted the Plaintiffs' Motion for Class Certification in the case captioned ROBERT GREENE, THOMAS SCHEMKES, and GREGORY GREEN on behalf of themselves and all others similarly situated, Plaintiffs, v. JACOB TRANSPORTATION SERVICES, LLC, a Nevada Corporation doing business as executive Las Vegas; JAMES JIMMERSON, an individual, CAROL JIMMERSON, an individual, and Does 1 through 50, inclusive, Defendants, Case No. 2:09-cv- 00466-GMN-CWH (D. Nev.). The case arises out of limousine drivers claiming that the Defendants failed to pay them minimum wage and overtime payments. On March 10, 2009, Green initiated the case alleging state law minimum wage claims and federal claims under the Fair Labor Standards Act ("FLSA"). Specifically, the Plaintiffs assert that the Defendants extracted additional work from its employees without having to pay them for the work being performed, and that the Defendants required employees to perform work activities before, after, and in-between picking up and dropping off clients 'off-the-clock' for which they were not compensated. Following a series of motions, the Court previously dismissed Green's state law claims, which he appealed. On Jan. 27, 2015, the Ninth Circuit issued the Memorandum reversing and remanding the case back to this Court. On, Sept. 28, 2015, the Court ordered the consolidation of the Plaintiffs' cases and on Nov. 18, 2015, the Plaintiffs filed their consolidated Complaint. The Plaintiffs' Amended Complaint alleges FLSA violations, and various state law violations pursuant to Nevada Constitution. On Sept. 6, 2016, the Plaintiffs filed the instant Motion for Class Certification. They seek to certify the class described as all current and former employees of the Defendants who worked as limousine drivers at any time during the relevant limitation periods alleged herein as measured from the date of the filing of the Lead Case No: 2:09-CV-00466-GMN-CWH and continuing until the time of judgment after trial. Judge Navarro finds that the Plaintiffs have satisfied all the Rule 23(a) requirements and the Rule 23(b) requirements. She further finds that the Plaintiffs' attorneys, Mark Thierman and Joshua Buck are adequate to be appointed as certified class counsel. Accordingly, Judge Navarro granted the Plaintiffs' Motion for Class Certification and their Motion to Strike. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/Kjshbv from Leagle.com. Robert Greene, Plaintiff, represented by Mark R. Thierman, Thierman Buck, LLP. Robert Greene, Plaintiff, represented by Jason J. Kuller -- jason@kullerlaw.com -- Kuller Law PC, Joshua D. Buck, Thierman Buck, LLP & Leah Lin Jones, Thierman Buck, LLP. Gregory Green, Plaintiff, represented by Mark R. Thierman, Thierman Buck, LLP, Jason J. Kuller, Kuller Law PC, Joshua D. Buck, Thierman Buck, LLP & Leah Lin Jones, Thierman Buck, LLP. Thomas Schemkes, Plaintiff, represented by Mark R. Thierman, Thierman Buck, LLP, Jason J. Kuller, Kuller Law PC, Joshua D. Buck, Thierman Buck, LLP & Leah Lin Jones, Thierman Buck, LLP. Carol Jimmerson, Defendant, represented by James J. Jimmerson, Jimmerson Hansen, P.C. & Mario P. Lovato, Lovato Law Firm, P.C.. Jacob Transportation Services, LLC, Defendant, represented by Mario P. Lovato, Lovato Law Firm, P.C.. James Jimmerson, Defendant, represented by Mario P. Lovato, Lovato Law Firm, P.C.. Jacob Transportation Services, LLC, Consol Counter Claimant, represented by Ikenna K. Odunze, Jimmerson Hansen, PC, James J. Jimmerson, Jimmerson Hansen, P.C. & Mario P. Lovato, Lovato Law Firm, P.C.. Thomas Thatcher Schemkes, Consol Counter Defendant, represented by Jason J. Kuller, Kuller Law PC, Joshua D. Buck, Thierman Buck, LLP & Mark R. Thierman, Thierman Buck, LLP. JOHNSON & JOHNSON: Sen. Sparks to Represent Firms in Class Suit --------------------------------------------------------------- Mack Burke, writing for Norman Transcript, reports that State Sen. John Sparks, D-Norman, is lining up to defend a group of pharmaceutical companies against state legal action, but he won't make his arguments at the Capitol. Sparks, a defense attorney with the firm Odom, Sparks and Jones, is part of a legal team representing Johnson & Johnson, Janssen Pharmaceuticals Inc., Janssen Pharmaceutical Inc. and Ortho- McNeil-Janssen Pharmaceuticals Inc., which are among more than a dozen drug companies the state is suing for alleged fraudulent marketing. Sparks' involvement has raised questions about the possibility of a conflict of interest. Senior partner Ben Odom said it isn't an issue, precisely because Sparks isn't representing the state. "The thing that's prohibited here is if John [Sparks] had been an attorney for the state," Odom said. "You can't draw two checks from the state. "The reason for that prohibition, the part about why you don't want to have somebody drawing two checks, is then somebody says, 'Oh! Go sue somebody in my district and then hire me to be the lawyer for the state there.' See, that would be a problem. But we're the opposite of that." Odom said the state is often involved in suits and proceedings, so it's not an uncommon position for legislators in the legal field. "There are many types of cases where the state of Oklahoma can become a party to the lawsuit," he said. "For example, any time the district attorney files a case, it's the state of Oklahoma vs. [defendant]. That's the style of the case, but it's very clear and obvious that members of the legislature can and have for decades represented people on opposite sides of cases from the state of Oklahoma. "Those people are entitled to a fair day in court and fair representation, and we don't think that that poses a conflict." Gina Hendryx, general counsel for the Oklahoma Bar Association, said the defendants could file a motion to disqualify Sparks, but the result of such a motion would be a question of fact for the trial court judge, in this case Judge Thad Balkman. "If someone were to try to pose a direct conflict, and I'm not going to get into whatever hypothetical that might be in term's of John's legislative work, he can always abstain from voting or be excused from the process," Odom said. "I think John is an extremely ethical person. I think that's his reputation in Norman and I don't think, at the end of the day, there's anything there on this." Despite public concerns over the case, nobody from the Attorney General's office was willing to comment on the possibility of a conflict of interest with Sparks arguing against the state. Odom said the firm is regarding it as a business matter, and as senior partner, he -- not Sparks -- should be the one to speak on the issue. "I let John [Sparks] speak for the senator stuff and I speak for the law firm," he said. The case: Oklahoma Attorney General Mike Hunter filed the class action lawsuit in July and called it the beginning of a fight to "hold these companies accountable, slow the opioid crisis gripping the state and build a healthier Oklahoma." Hunter alleged in the petition that the companies abused power and resources by overselling opioids to Oklahomans while underselling addiction risks. "[The companies] wanted to increase their opioid sales, and increase they did. By 2009, Oxycontin retail sales reached $3 billion," the suit read. "By 2015, the number of Oklahoma drug overdose deaths had reached 823, with the number of prescription drug overdose deaths greater than the number of overdose deaths from alcohol and all illegal drugs combined. "Deceptive marking campaigns and the resulting opioid abuse and addiction epidemic caused, and continues to cause, the state of Oklahoma, its businesses, communities and citizens to bear enormous social and ecumenic costs including increased health care, criminal justice and lost work productivity expenses." The American Academy of Pain Medicine also was named in the suit, which alleges the parties violated the Oklahoma Medicaid False Claims Act, Oklahoma Medicaid Program Integrity Act and Oklahoma Consumer Protection Act. Some of the companies named in the suit have issued statements in their defense. "[Janssen Pharmaceuticals Inc.] recognizes opioid abuse is a serious public health issue that must be addressed," Janssen spokesperson Jessica Castles Smith said in July. "At the same time, we firmly believe Janssen has acted responsibly and in the best interests of patients and physicians with regard to these medicines, which are FDA-approved and carry FDA-mandated warnings about possible risks on every product label." According to an Associated Press report, the drug companies are seeking a protective order to prevent the attorney general's office from gathering information from their companies through the discovery process until after the court rules on a request to dismiss the lawsuit. The state is seeking compensation for damages, costs and punitive damages. [GN] JPMORGAN CHASE: Court Denies Bid to File TAC in Ponzi Scheme Suit ----------------------------------------------------------------- The United States District Court for the District of Massachusetts issued a Memorandum of Decision and Order denying Plaintiffs' Motion for Leave to File Third Amended Verified Complaint in the case captioned EDMUND J. MANSOR and ROBERTA M. MANSOR, Plaintiffs, v. JPMORGAN CHASE BANK, N.A., Defendant, Civil Action No. 12- 10544-JGD (D. Mass.). The plaintiffs, Edmund J. Mansor and Roberta M. Mansor, were investors in what turned out to be a 150 million dollar Ponzi scheme. By their initial complaint, the plaintiffs claimed that JPMorgan knowingly aided and abetted the Millennium Bank fraud, aided and abetted the conversion of investor funds by Wise and his associates, and breached fiduciary duties owed to the plaintiffs and members of the putative class. The plaintiffs filed a First Amended Verified Class Action Complaint. Therein, the Hollises and the Mansors asserted claims against JPMorgan, on behalf of themselves and all others similarly situated, for aiding and abetting common law fraud, aiding and abetting conversion, deceit and violation of the California Business and Professions Code Sections 17200. The Bank responded by filing a motion to dismiss and to strike. The defendant argues that the motion should be denied on the grounds that the proposed amendment is untimely and fails to state a viable claim for relief. It also argues that the motion should be denied because it seeks to hold JPMorgan liable for conduct that occurred prior to its acquisition of WaMu, and amounts to little more than an attempted end-run around the jurisdictional limitations of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). Although the court determined that FIRREA's jurisdictional limitations would not preclude claims based solely on JPMorgan's alleged post-purchase misconduct, and that the First Amended Complaint alleged conduct that occurred after JPMorgan's acquisition of WaMu, the court found that those allegations were nevertheless inadequate to state a claim under any Count of the Complaint. As a result, the court allowed JPMorgan's motion to dismiss the First Amended Complaint in its entirety. However, because this court determined that the plaintiffs should be given a final opportunity to amend their pleading, the dismissal of the First Amended Complaint was without prejudice to the plaintiffs' ability to file an amended complaint within 30 days of the date of the 2014 Order. JPMorgan filed a motion to dismiss the Second Amended Complaint. As in the case of its motion to dismiss the First Amended Complaint, JPMorgan argued that the Second Amended Complaint should be dismissed for lack of subject matter jurisdiction under FIRREA, for failure to comply with the heightened pleading requirements of Fed. R. Civ. P. 9(b), and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). It also requested, as an alternative to dismissal, that the court enter an order further limiting the scope of the potential class in order to encompass only those investors who had been defrauded by Millennium Bank and harmed by JPMorgan's actions. JPMorgan's motion to dismiss the Second Amended Complaint, the court again addressed the defendant's argument that FIRREA deprives the court of subject matter jurisdiction over any claims relating to WaMu's conduct prior to JPMorgan's acquisition of its assets in September 2008. The court ruled, as it did in its 2014 Order, that under FIRREA, federal courts lack subject matter jurisdiction over claims that relate to the acts or omissions of a failed banking institution, but have not been exhausted through the FDIC's administrative claims process, including claims asserted against a purchasing bank when the claim is based on the conduct of the failed institution rather than the purchaser's independent misconduct. It also ruled that because the Mansors did not comply with FIRREA's statutory claims process, this court lacks jurisdiction over any claims against JPMorgan that relate to any act or omission of WaMu prior to its acquisition by the defendant. Accordingly, the court held that to the extent the Mansors' aiding and abetting claim was based upon WaMu's pre-purchase conduct rather than the independent, post-acquisition conduct of JPMorgan, it was subject to FIRREA's jurisdictional bar, and must be dismissed. Therefore, they claimed that Williams took affirmative steps to insure that the fraud could continue unabated. Because this court found that Williams' alleged actions in lifting restraints in October 2008, January 2009 and February 2009 could arguably be attributed to JPMorgan, and were sufficient to state a claim for aiding and abetting the Millennium Bank scheme, it denied JPMorgan's motion to dismiss Count I of the Second Amended Complaint. Following the issuance of the 2016 Order, the parties proceeded to engage in extensive discovery relating to the plaintiffs' aiding and abetting claim. They also pursued third-party discovery relating to that claim. The plaintiffs filed their instant motion for leave to amend their complaint on December 12, 2016. By their motion, the plaintiffs are seeking leave to file a Third Amended Verified Complaint that includes a claim for civil conspiracy against JPMorgan based on the same facts as those alleged in the Second Amended Complaint. The plaintiffs contend that because the proposed claim is premised upon the same facts that support their aiding and abetting claim, the amended complaint will not expand the scope of discovery, cause undue delay or otherwise prejudice JPMorgan. They further argue that their motion should be allowed because it is the only means by which the members of the putative class may recover all of their alleged losses. Accordingly, the plaintiffs are seeking to expand the scope of their recovery by holding JPMorgan liable for the entire Millennium Bank fraud. The plaintiffs argue that the court should apply the standard established by Fed. R. Civ. P. 15(a). Under that Rule, leave to amend is freely given when justice so requires absent an adequate basis to deny amendment such as futility, bad faith, undue delay or a dilatory motive. However, JPMorgan contends that the court should apply the good cause" requirement of Fed. R. Civ. P. 16(b) rather than the freely given standard of Rule 15(a) because the plaintiffs filed their motion to amend long after the March 13, 2015 deadline for filing the Second Amended Complaint. Because the plaintiffs complied with this deadline, they contend that Rule 15(a) should govern their present motion. This court finds that it is not necessary to finally resolve this issue because the motion would be denied under either standard. Therefore, for purposes of this analysis, this court will rely on the more liberal amendment standard of Rule 15(a). Futility The defendant contends that the motion to amend should be denied not only because it is untimely, but also because it is futile. Specifically, JPMorgan argues that the plaintiffs have failed to cite a single additional fact they have learned since filing the Second Amended Complaint" or to present any other reasons to justify the delay in filing their motion. Although the plaintiffs insist that their proposed claim is predicated solely upon JPMorgan's own post-acquisition misconduct, they cannot escape the fact that it relates to WaMu's conduct. As described in detail in this court's 2016 Order, the plaintiffs claim that the alleged Ponzi scheme was initiated at WaMu, was carried out with the knowledge and assistance of WaMu employees, and was ongoing at the time JPMorgan acquired WaMu's assets. Furthermore, Williams' relationship with Wise and the Hoegels, and her alleged involvement in any conspiracy, was developed while she was working for WaMu, well before JPMorgan appeared on the scene. By seeking to hold JPMorgan jointly and severally liable for what was in reality the continuation of an alleged conspiracy that was created under WaMu and substantially carried out through WaMu, the plaintiffs are functionally, albeit not formally attempting to assert a claim against a failed bank. Under FIRREA, the plaintiffs may not avoid that reality through strategic pleading. Accordingly, the proposed conspiracy claim is jurisdictionally barred and the motion to amend must be denied as futile. Untimeliness Even if the proposed claim were not futile, the motion to amend would still be denied because it is untimely. This case has been pending since 2012, and the plaintiffs have amended their complaint on two prior occasions. Moreover, there is no question that the plaintiffs delayed in filing their instant motion to amend. As the plaintiffs' own pleadings illustrate, the proposed conspiracy claim is based on the same alleged facts as those that support the existing claim for aiding and abetting common law fraud. The Mansors' effort to justify the delay in asserting a conspiracy claim is entirely unpersuasive. Thus, the plaintiffs contend that after this court issued the 2016 Order, they uncovered additional information supporting the existence of a conspiracy. However, plaintiffs' counsel concedes that he obtained the information used to prepare Wise's affidavit during a meeting that was held in February 2015. Therefore, the plaintiffs were in possession of that information prior to filing the Second Amended Complaint on March 13, 2015. In any event, the lack of any substantive differences between the facts alleged in the Second Amended Complaint and the facts alleged in the proposed Third Amended Complaint belie the plaintiffs' assertion that they uncovered new evidence and could not have brought a conspiracy claim earlier. The plaintiffs' undue delay in filing their motion to amend warrants the denial of the motion. The court also finds that the motion should be denied because the addition of a new claim at this juncture in the case would cause prejudice to the defendant. The First Circuit has emphasized that motions to amend are especially disfavored where their timing prejudices the opposing party by requiring a re-opening of discovery with additional costs, a significant postponement of the trial, and a likely major alteration in trial tactics and strategy. Here, there can be little question that the addition of a conspiracy claim would prejudice JPMorgan by injecting [an entire] new theory of relief into the litigation. Finally, the court finds that allowance of the motion would further delay the resolution of this protracted litigation. Pursuant to the current pre-trial schedule, fact discovery is expected to be completed by the end of this month, and any request for class certification must be filed by November 21, 2017. There is little if any likelihood that the parties would be able to comply with the current deadlines if the motion were allowed. Moreover, given the often contentious and hard fought nature of this case, the introduction of a conspiracy claim would almost certainly result in additional motion practice that would further delay resolution of this matter. Accordingly, the court concludes that the plaintiffs' motion to amend should be denied for these reasons as well. A full-text copy of the District Court's September 18, 2017 Memorandum of Decision and Order is available at http://tinyurl.com/yb86jmwdfrom Leagle.com. Edmund J. Mansor, Plaintiff, represented by Keith L. Miller, Law Offices of Keith L. Miller, 58 Winter St # 4, Boston, MA 02108, USA Edmund J. Mansor, Plaintiff, represented by Michael R. Lorigas -- mlorigas@kttlaw.com -- Kozyak, Tropin & Throckmorton, LLP, pro hac vice, Tal J. Lifshitz -- tjl@kttlaw.com -- Kozyak, Tropin & Throckmorton, LLP, pro hac vice, Thomas A. Tucker Ronzetti -- tr@kttlaw.com -- Kozyak Tropin & Throckmorton, P.A., pro hac vice & William H. Gagas -- wgagas@kbn-law.com -- Law Office of William H. Gagas. Roberta M. Mansor, Plaintiff, represented by Keith L. Miller, Law Offices of Keith L. Miller, Michael R. Lorigas, Kozyak, Tropin & Throckmorton, LLP, pro hac vice, Tal J. Lifshitz, Kozyak, Tropin & Throckmorton, LLP, pro hac vice, Thomas A. Tucker Ronzetti, Kozyak Tropin & Throckmorton, P.A., pro hac vice & William H. Gagas, Law Office of William H. Gagas. JPMorgan Chase Bank, N.A., Defendant, represented by Beth I.Z. Boland -- bboland@foley.com -- Foley & Lardner LLP, Rachel M. Blise -- rblise@foley.com -- Foley & Lardner LLP, pro hac vice, Courtney Worcester -- cworcester@foley.com -- Foley & Lardner LLP, Michael Thompson -- mxthompson@foley.com -- Foley & Lardner LLP, Redi Kasollja -- rkasollja@foley.com -- Foley & Lardner LLP & Stephen J. Quinlan, Foley & Lardner LLP. Office of the Comptroller of the Currency, Interested Party, represented by Peter C. Koch, Office of the Comptroller of the Currency. JUNO THERAPEUTICS: Robbins Arroyo Probes Officers and Directors --------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP is investigating whether certain officers and directors of Juno Therapeutics, Inc. (NASDAQGS: JUNO) breached their fiduciary duty to shareholders by engaging in self-dealing and issuing materially false and misleading statements regarding the side effects of its lead product candidate, JCAR015. Investors Survive Defendants' Motion to Dismiss in Securities Class Action Juno is currently the subject of a federal securities class action alleging that between June 4, 2016 and November 22, 2016, Juno officials understated the risks associated with JCAR015. In July 2016, in addition to finally disclosing several patient deaths associated with the drug, Juno revealed that the FDA issued a clinical hold. On June 14, 2017, U.S. District Judge Ricardo Martinez issued an order in the securities class action denying defendants' motion to dismiss. Juno Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. Leonid Kandinov Robbins Arroyo LLP Tel No: (619) 525-3990 E-mail: LKandinov@robbinsarroyo.com [GN] KNIGHT TRANSPORTATION: Truck Driver Allowed to Amend Complaint -------------------------------------------------------------- In the case captioned VALERIE SAMPSON, on behalf of herself and on the behalf of all others similarly situated, Plaintiff, v. KNIGHT TRANSPORTATION, INC., Defendant, Case No. C17-0028-JCC. (W.D. Wash.), John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, granted Plaintiff's motion for leave to amend her class action complaint. Sampson worked as a truck driver for the Defendant from May 2015 to January 2016. During her employment, Sampson alleges Knight did not comply with wage and hour laws that applied to its employees residing in Washington. On Oct. 14, 2016, Sampson filed a class action lawsuit against Knight on behalf of all current and former driver employees of Knight who at any time from July 1, 2013 through the date of final disposition, worked as drivers for the company while residing in the State of Washington. Sampson claims, among other things, that Knight failed to pay its drivers minimum wage, failed to pay for rest periods, made unlawful payroll deductions and did not keep accurate time records for the hours worked by its drivers. At a status conference on Feb. 22, 2017, the Court ordered the parties to provide a proposed schedule for class certification briefing. The parties initially agreed that briefing would be completed on Sept. 8, 2017. On June 29, 2017, the parties stipulated to an extension of the class certification briefing deadline to Oct. 23, 2017. The Court has not set a discovery cutoff date or a deadline for filing amended pleadings. On Aug. 2, 2017, Sampson conducted a deposition of Knight's Chief Operations Officer, Kevin Quast. During the deposition, Quast stated that Knight employs and oversees truck drivers who reside in Washington under three different "business lines:" Knight Dry Van; Knight Port Services; and Knight Refrigerated. Sampson worked for only the Dry Van business. Quast stated that the different business lines are part of one corporate structure that is headed by the same executive officers. Beneath the corporate executive level, the entities have different management structures. The businesses all share the same payroll department and payroll processing system. Quast testified that the rate of pay for drivers in the three businesses is essentially the same. After learning that Port Services and Refrigerated were separate entities from Knight, each of which employed truck drivers residing in Washington, Sampson's counsel interviewed David Raymond), a truck driver formerly employed by Port Services and Refrigerated. On Aug. 18, 2017, Sampson filed a motion asking the Court for leave to amend her complaint in order to add Raymond as an additional class representative as well as Refrigerated and Port Services as the Defendants. In the proposed amended complaint, Raymond alleges the same claims against Refrigerated and Port Services as Sampson initially brought against Knight. The Parties have since stipulated to an extension of the class certification briefing deadline to Feb. 16, 2018. Judge Coughenour finds that Sampson and Raymond's claims raise common questions of fact or law. To resolve their claims, both Sampson and Raymond would have to establish that Knight, Refrigerated, and Port Services were using unlawful pay practices and failing to follow several Washington employment regulations. Since the Plaintiff's claims are identical, they necessarily turn on the same questions of law that would determine the Defendant's liability. For these reasons, Sampson's motion to amend is appropriate whether tested under the Rule 15 standard or the Rule 20 standard. Given Quast's awareness of Sampson's lawsuit, Judge Coughenour does not see how Refrigerated or Port Services would be prejudiced by having to now defend against the identical claims brought by Raymond. Accordingly, he finds that Raymond's claims relate back to the date that Sampson's complaint was initially filed. For these reasons, Judge Coughenour granted the Plaintiff's motion for leave to amend her class action complaint. He directed the Plaintiff to file her amended class action complaint within 14 days of the Order. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/rFORXt from Leagle.com. Valerie Sampson, Plaintiff, represented by Erika L. Nusser -- enusser@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Valerie Sampson, Plaintiff, represented by Greg Alan Wolk, REKHI & WOLK, P.S., Hardeep S. Rekhi, REKHI & WOLK, P.S. & Toby James Marshall -- tmarshall@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Knight Transportation, Inc, Defendant, represented by Jeffrey B. DeGroot -- jeffrey.degroot@dlapiper.com -- DLA PIPER US LLP & Anthony Todaro -- anthony.todaro@dlapiper.com -- DLA PIPER US LLP. LON SMITH: Appeals Class Certification Ruling --------------------------------------------- Denise Johnson, writing for Claims Journal, reports a Texas roofer has filed an appeal disputing a class action finding in a case involving allegations of hail solicitation that could impact 3000 of its customers. The appeals case could have implications for contractors who act as public adjusters illegally leading to class action lawsuits. The underlying case involves damage to the plaintiffs' roof due to a May 2011 hailstorm. The plaintiffs, Joe and Stacci Key, notified their insurance carrier and signed a contract with A-1/Lon Smith Roofing and Construction for roof replacement in the amount of $33,769.50. The plaintiffs received $18,926.69 from their homeowners' insurer and paid that amount to A-1. To collect the balance owed, A-1 filed suit against the plaintiffs, obtaining a default judgment. The plaintiffs challenged the default judgment and obtained a judgment voiding it. A-1 appealed. The plaintiffs then filed a declaratory judgment against the roofer, indicating the contract was null and void since it wasn't licensed to act as a public adjuster. They also alleged violations under Texas' Deceptive Trade Practices Act and requested class certification for both claims. In its appeal, A-1 (also known as Lon Smith Roofing and Construction) claims the Court of Appeals erred in siding with the trial court's decision affirming the class action, citing that the trial court didn't perform a vigorous enough analysis and didn't resolve dispositive issues. A-1 also noted class members signed several versions of the contract and some include an arbitration provision. They point out the Key's contract contained an arbitration provision that wasn't referenced in the trial plan. A-1 also disputes the Court of Appeals findings that LSRC acted as a public adjuster. It denies it advocated for the plaintiffs or discussed insurance coverage or exclusions applicable to the roof replacement. Lastly, the roofer disputes the Keys are owed any reimbursement, since they were made whole with the replacement of the roof. Steve Badger, Esq. -- sbadger@zelle.com -- a partner with Zelle LLP's Dallas office, said previously that the primary reason for the dramatic increase in the number of hail claims in Texas are contractors that inject themselves into the claims process. He explained how they solicit homeowners using door hangers, call centers and other means to aggressively market to homeowners with the promises of a free roof. Badger said the homeowner then signs an agreement giving the contractor the right to negotiate the insurance claim and install the roof for the amount of the insurance proceeds. "It is not surprising that Lon Smith has filed a further appeal," said Badger. "This is a bet the company case for them. If this class action is upheld, they will be forced to refund millions of dollars in roofing project payments. That would likely force them into bankruptcy." Despite two statutes enacted in 2005 and 2013 to curtail the unauthorized practice of public adjusting (UPPA) among contractors, the problem is still rampant, according to Badger, a vocal advocate against hail fraud abuse. "An important aspect of this case is that it has brought awareness to the widespread problem involving the unauthorized practice of public adjusting. Texas law clearly prohibits contractors from negotiating insurance claims on behalf of building owners," Badger said. "This case has been a wakeup call for contractors engaged in this improper conduct. They know now that they are at great risk if they attempt to negotiate insurance claims." The Court of Appeals case is Lon Smith & Associates, Inc. and A-1 Systems, Inc., DBA Lon Smith Roofing and Construction v. Joe Key and Stacci Key. [GN] MAXWELL & MORGAN: Court Denies Class Certification in "Lowe" ------------------------------------------------------------ In the case captioned Michael Lowe, Plaintiff, v. Maxwell & Morgan PC, Defendant, No. CV-15-02481-PHX-DLR (D. Ariz.), Judge Douglas L. Rayes of the U.S. District Court for the District of Arizona denied both Lowe's motion for class certification and M&M's related motion to strike. Lowe formerly owned and resided at real property governed by the Village of Copper Basin Community Association ("VCB"), to which he was required to pay periodic assessments. In 2012, VCB filed an action against Lowe in Apache Junction Justice Court after he failed to make those payments. M&M represented VCB before the Justice Court, and on Jan. 31, 2014, successfully obtained a default judgment against Lowe in the amount of $6,349.69, plus interest. This total included $4,546.65 in unpaid assessments, $1,267.50 in attorneys' fees, and $535.54 in costs. Additionally, the Justice Court Judgment awarded VCB all costs and attorney fees incurred after submission of this judgment for entry by the Court in collecting the amounts listed in this Judgment. M&M later filed the Justice Court Judgment in Maricopa County Superior Court, presumably to domesticate it in Maricopa County for collection purposes. On July 14, 2015, M&M simultaneously filed in the Superior Court Action an Application for Amount of Attorney Fees Incurred Post-Judgment, Pre-Garnishment and an Application for Garnishment. The Post-Judgment Fee Application requested an award of $1,175.52, representing $875 in post- judgment attorneys' fees and $300.52 in post-judgment costs. Although those amounts had not yet been approved by the Superior Court, the Garnishment Application incorporated them. On Aug. 14, 2015, Lowe tendered $6,760 to M&M, representing the sum certain awarded by the Justice Court Judgment. M&M refused to accept the payment, however, because it did not also cover the post-judgment attorneys' fees and costs that M&M had requested and included in the Writ, but which had yet been approved by the Superior Court. The Superior Court later approved M&M's post- judgment attorneys' fees and costs on Sept. 9, 2015. Lowe asserts that post-judgment attorneys' fees and costs incurred in collecting the underlying judgment are not authorized under Arizona law, and that M&M's method of garnishing those fees and costs in his case is part of a larger debt collection pattern. He alleges that M&M utilizes a form template for all default and uncontested judgments it prepares and obtains against those similarly situated to him, and that this template routinely includes boilerplate language regarding otherwise impermissible post-judgment costs and fees. Lowe further claims that M&M regularly includes post-judgment fees and costs in its garnishment applications before those amounts have been approved by a court of competent jurisdiction. Consequently, the garnishment writs that M&M obtains are for amounts greater than the sums certain awarded in the underlying judgments. On Dec. 7, 2015, Lowe initiated this action alleging that M&M's post-judgment litigation strategy violates the Fair Debt Collection Practices Act ("FDCPA"). He claims that he is but one among many who have been subject to M&M's post-judgment fee collection efforts, and therefore seeks to certify the following two classes: a. All natural persons to whom, in the one year prior to Dec. 7, 2015 through the date of class certification, the Defendant garnished or attempted to garnish post-judgment fees and/or costs incurred in the collection of an underlying judgment. b. All natural persons against whom, in the one year prior to Dec. 7, 2015 through the date of class certification, the Defendant requested or caused writs of garnishment to issue that included attorneys' fees and/or costs before those fees and/or costs were awarded by a court of competent jurisdiction. M&M opposes class certification. Judge Rayes denied M&M's motion to strike for three reasons. First, Lowe assures the Court that omission of the phrase "through the date of class certification" from the putative class definitions in his initial motion was a clerical error. Second, the putative class definitions contained in Lowe's reply memorandum are consistent with the definitions described in his complaint. Finally, M&M conceded at oral argument that it has not been prejudiced by the omission because it had notice of the relevant time frame from the complaint, the discovery completed thus far, and statements made in the motion for class certification referencing a class size based on the extended period. Judge Rayes Court finds that that both putative classes satisfy the four Rule 23(a) prerequisites for class certification, but that neither are appropriate for class-wide resolution under Rule 23(b). Accordingly, he denied Lowe's motion for class certification. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/FB89Qs from Leagle.com. Michael Lowe, Plaintiff, represented by Douglas Clark Wigley -- dwigley@dessauleslaw.com -- Dessaules Law Group. Michael Lowe, Plaintiff, represented by Francis Robert Connelly, II -- rconnelly@dessauleslaw.com -- Dessaules Law Group & Jonathan Adam Dessaules -- jdessaules@dessauleslaw.com -- Dessaules Law Group. Maxwell & Morgan PC, Defendant, represented by Tomio B. Narita -- tnarita@snllp.com -- Simmonds & Narita LLP. MDL 2639: Jammers Inc. Appeals Ruling to 9th Cir. ------------------------------------------------- Plaintiffs Jammers, Inc., and City Nights Hospitality, LLC, filed an appeal from a court ruling in their lawsuit styled Jammers, Inc., et al. v. Top Rank, Inc., et al., Case No. 2:15-cv-03493- RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the lawsuit is brought for damages as a proximate result of the Defendants' alleged failure to disclose to the Nevada Athletic Commission the injuries suffered by Manny Pacquiao prior to the fight between him and Floyd Mayweather held on May 2, 2015. The lawsuit was consolidated in the multidistrict litigation titled In Re: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, MDL No. 2:15-ml-02639-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Jammers, Inc., et al. v. Top Rank, Inc., et al., Case No. 17-56372, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 13, 2017; -- Transcript is due on November 13, 2017; -- Appellants City Nights Hospitality, LLC and Jammers, Inc.'s opening brief is due on December 22, 2017; -- Appellees Robert Arum, Todd DuBoef, Home Box Office, Inc., Michael Koncz, Floyd Mayweather Jr., Mayweather Promotions, LLC, Emmanuel Pacquiao and Top Rank, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants JAMMERS, INC., individually, and on behalf of all others similarly situated, DBA Flight Restaurant/Flights Beer Bar; and CITY NIGHTS HOSPITALITY, LLC, DBA 48 Lounge, are represented by: Laurence David King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com - and - Caleb Lucas-Hansen Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (562) 216-7387 E-mail: caleb.marker@zimmreed.com - and - Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 348-6415 E-mail: hlr@zimmreed.com Defendants-Appellees TOP RANK, INC., EMMANUEL PACQUIAO, MICHAEL KONCZ, ROBERT ARUM, TODD DUBOEF, and HOME BOX OFFICE, INC., are represented by: Jeffrey Barker, Esq. Daniel Petrocelli, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: jbarker@omm.com dpetrocelli@omm.com Defendants-Appellees MAYWEATHER PROMOTIONS, LLC, and FLOYD MAYWEATHER, Jr., are represented by: Mark Tratos, Esq. GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway Suite # 400 North Las Vegas, NV 89169 Telephone: (702) 792-3773 E-mail: tratosm@gtlaw.com MDL 2639: Alessi Appeals Ruling to Ninth Circuit ------------------------------------------------ Plaintiff Gerald F. Alessi filed an appeal from a court ruling in the lawsuit entitled Gerald Alessi v. Top Rank, Inc., et al., Case No. 2:15-cv-06585-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The lawsuit was consolidated in the multidistrict litigation titled In Re: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, MDL No. 2:15-ml-02639-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The litigation arose from the Defendants' alleged failure to disclose to the Nevada Athletic Commission the injuries suffered by Manny Pacquiao prior to the fight between him and Floyd Mayweather held on May 2, 2015. The appellate case is captioned as Gerald Alessi v. Top Rank, Inc., et al., Case No. 17-56382, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 16, 2017; -- Transcript is due on November 13, 2017; -- Appellant Gerald F. Alessi's opening brief is due on December 26, 2017; -- Appellees Robert Arum, Todd DuBoef, Home Box Office, Inc., Michael Koncz, Floyd Mayweather Jr., Mayweather Promotions, LLC, Emmanuel Pacquiao and Top Rank, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant GERALD F. ALESSI, On Behalf of Himself and All Others Similarly Situated, is represented by: Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 348-6415 E-mail: hlr@zimmreed.com - and - Caleb Lucas-Hansen Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (562) 216-7387 E-mail: caleb.marker@zimmreed.com - and - Laurence David King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com - and - Nancy A. Kulesa, Esq. LEVI & KORSINSKY LLP 733 Summer Street, Suite 304 Stamford, CT 06901 Telephone: (203) 992-4523 Facsimile: (212) 363-7171 E-mail: nkulesa@zlk.com - and - Mark C. Rifkin, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4653 E-mail: rifkin@whafh.com Defendants-Appellees TOP RANK, INC., ROBERT ARUM, TODD DUBOEF, EMMANUEL PACQUIAO, MICHAEL KONCZ and HOME BOX OFFICE, INC., are represented by: Jeffrey Barker, Esq. Daniel Petrocelli, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: jbarker@omm.com dpetrocelli@omm.com Defendants-Appellees FLOYD MAYWEATHER, Jr., and MAYWEATHER PROMOTIONS, LLC, are represented by: Mark Tratos, Esq. GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway, Suite # 400 North Las Vegas, NV 89169 Telephone: (702) 792-3773 E-mail: tratosm@gtlaw.com MDL 2639: Barrios Appeals Decision to 9th Circuit ------------------------------------------------- Plaintiffs Enrique Barrios, Chamar Bynum, Felix Natal, David Smith and Christopher Vallaro filed an appeal from a court ruling in their lawsuit titled Enrique Barrios, et al. v. Emmanuel Pacquiao, et al., Case No. 2:15-cv-06233-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The lawsuit was consolidated in the multidistrict litigation titled In Re: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, MDL No. 2:15-ml-02639-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The litigation arose from the Defendants' alleged failure to disclose to the Nevada Athletic Commission the injuries suffered by Manny Pacquiao prior to the fight between him and Floyd Mayweather held on May 2, 2015. The appellate case is captioned as Enrique Barrios, et al. v. Emmanuel Pacquiao, et al., Case No. 17-56381, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 16, 2017; -- Transcript is due on November 13, 2017; -- Appellants Enrique Barrios, Chamar Bynum, Felix Natal, David Smith and Christopher Vallaro's opening brief is due on December 26, 2017; -- Appellees Robert Arum, Todd DuBoef, Home Box Office, Inc., Michael Koncz, Floyd Mayweather Jr., Mayweather Promotions, LLC, Emmanuel Pacquiao and Top Rank, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants ENRIQUE BARRIOS, CHRISTOPHER VALLARO, FELIX NATAL, CHAMAR BYNUM and DAVID SMITH, individually and on behalf of all others similarly situated, are represented by: Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 348-6415 E-mail: hlr@zimmreed.com - and - Caleb Lucas-Hansen Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (562) 216-7387 E-mail: caleb.marker@zimmreed.com - and - Linda Marie Fong, Esq. Laurence David King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lfong@kaplanfox.com lking@kaplanfox.com - and - Todd S. Garber, Esq. FINKELSTEIN BLANKINSHIP FREI-PEARSON AND GARBER LLP 445 Hamilton Avenue, Suite 605 White Plains, NY 10601 Telephone: (914) 298-3281 Facsimile: (914) 824-1561 E-mail: tgarber@fbfglaw.com - and - Thomas James McKenna, Esq. GAINEY MCKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 683-3402 E-mail: tjmckenna@gme-law.com - and - Kevin Peter Roddy, Esq. WILENTZ GOLDMAN & SPITZER P.A. 90 Woodbridge Center Drive Woodbridge, NJ 7095 Telephone: (732) 636-8000 Facsimile: (732) 726-6686 E-mail: kroddy@wilentz.com Defendants-Appellees EMMANUEL PACQUIAO, TOP RANK, INC., MICHAEL KONCZ, ROBERT ARUM, TODD DUBOEF and HOME BOX OFFICE, INC., are represented by: Jeffrey Barker, Esq. Daniel Petrocelli, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: jbarker@omm.com dpetrocelli@omm.com Defendants-Appellees FLOYD MAYWEATHER, Jr., and MAYWEATHER PROMOTIONS, LLC, are represented by: Mark Tratos, Esq. GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway, Suite # 400 North Las Vegas, NV 89169 Telephone: (702) 792-3773 E-mail: tratosm@gtlaw.com MDL 2639: Bobadilla Appeals Ruling to 9th Circuit ------------------------------------------------- Plaintiffs Victor Bobadilla, Lisette Nazario, Evans Nycole and Jason Schofield filed an appeal from a court ruling in their lawsuit entitled Victor Bobadilla, et al. v. Top Rank, Inc., et al., Case No. 2:15-cv-06231-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The lawsuit was consolidated in the multidistrict litigation titled In Re: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, MDL No. 2:15-ml-02639-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The litigation arose from the Defendants' alleged failure to disclose to the Nevada Athletic Commission the injuries suffered by Manny Pacquiao prior to the fight between him and Floyd Mayweather held on May 2, 2015. The appellate case is captioned as Victor Bobadilla, et al. v. Top Rank, Inc., et al., Case No. 17-56386, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 16, 2017; -- Transcript is due on November 13, 2017; -- Appellants Victor Bobadilla, Lisette Nazario, Evans Nycole and Jason Schofield's opening brief is due on December 26, 2017; -- Appellees Robert Arum, Todd DuBoef, Home Box Office, Inc., Michael Koncz, Floyd Mayweather Jr., Mayweather Promotions, LLC, Emmanuel Pacquiao and Top Rank, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants VICTOR BOBADILLA, LISETTE NAZARIO, JASON SCHOFIELD and EVANS NYCOLE, individually and on behalf of all other similarly situated, are represented by: Laurence David King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com - and - Caleb Lucas-Hansen Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (562) 216-7387 E-mail: caleb.marker@zimmreed.com - and - Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 348-6415 E-mail: hlr@zimmreed.com - and - Kevin Peter Roddy, Esq. WILENTZ GOLDMAN & SPITZER P.A. 90 Woodbridge Center Drive Woodbridge, NJ 7095 Telephone: (732) 636-8000 Facsimile: (732) 726-6686 E-mail: kroddy@wilentz.com Defendants-Appellees TOP RANK, INC., ROBERT ARUM, EMMANUEL PACQUIAO, HOME BOX OFFICE, INC., MICHAEL KONCZ and TODD DUBOEF are represented by: Jeffrey Barker, Esq. Daniel Petrocelli, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: jbarker@omm.com dpetrocelli@omm.com Defendants-Appellees MAYWEATHER PROMOTIONS, LLC, and FLOYD MAYWEATHER, Jr., are represented by: Louis Smith, Esq. GREENBERG TRAURIG LLP 200 Park Avenue P.O. Box 677 Florham Park, NJ 07932 Telephone: (973) 360-7900 E-mail: smithlo@gtlaw.com - and - Mark Tratos, Esq. GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway, Suite # 400 North Las Vegas, NV 89169 Telephone: (702) 792-3773 E-mail: tratosm@gtlaw.com MDL 2639: Brady Appeals Ruling to Ninth Circuit ----------------------------------------------- Appellants Bill Brady, Paul Brodsky, Marcy Lokietz and Howard Miller filed an appeal from a court ruling in their lawsuit entitled Bill Brady, et al. v. Home Box Office, Inc., et al., Case No. 2:15-cv-07093-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The lawsuit was consolidated in the multidistrict litigation titled In Re: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, MDL No. 2:15-ml-02639-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The litigation arose from the Defendants' alleged failure to disclose to the Nevada Athletic Commission the injuries suffered by Manny Pacquiao prior to the fight between him and Floyd Mayweather held on May 2, 2015. The appellate case is captioned as Bill Brady, et al. v. Home Box Office, Inc., et al., Case No. 17-56384, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 16, 2017; -- Transcript is due on November 13, 2017; -- Appellants Bill Brady, Paul Brodsky, Marcy Lokietz and Howard Miller's opening brief is due on December 26, 2017; -- Appellees Robert Arum, Todd DuBoef, Home Box Office, Inc., Michael Koncz, Floyd Mayweather Jr., Mayweather Promotions, LLC, Emmanuel Pacquiao and Top Rank, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants BILL BRADY, Individually and On Behalf of All Other Similarly Situated, HOWARD MILLER, PAUL BRODSKY and MARCY LOKIETZ are represented by: Gregory Michael Egleston, Esq. Thomas James McKenna, Esq. GAINEY MCKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 683-3402 E-mail: egleston@gme-law.com tjmckenna@gme-law.com - and - Laurence David King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com - and - Caleb Lucas-Hansen Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (562) 216-7387 E-mail: caleb.marker@zimmreed.com - and - Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 348-6415 E-mail: hlr@zimmreed.com - and - Cullin O'Brien, Esq. CULLIN O'BRIEN LAW, P.A. 6541 NE 21st Way Fort Lauderdale, FL 33308 Telephone: (561) 676-6370 Facsimile: (561) 320-0285 E-mail: cullin@cullinobrienlaw.com Defendants-Appellees HOME BOX OFFICE, INC., EMMANUEL PACQUIAO, MICHAEL KONCZ, ROBERT ARUM and TODD DUBOEF are represented by: Jeffrey Barker, Esq. Daniel Petrocelli, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: jbarker@omm.com dpetrocelli@omm.com Defendants-Appellees MAYWEATHER PROMOTIONS, LLC, FLOYD MAYWEATHER, Jr., and TOP RANK, INC., are represented by: Mark Tratos, Esq. GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway, Suite # 400 North Las Vegas, NV 89169 Telephone: (702) 792-3773 E-mail: tratosm@gtlaw.com MDL 2639: Galandak Appeals Ruling to 9th Circuit ------------------------------------------------ Plaintiffs David Galandak, Robert Martinez and Susan Medina filed an appeal from a court ruling in their lawsuit styled David Galandak, et al. v. Top Rank, Inc., et al., Case No. 2:15-cv- 06227-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The lawsuit was consolidated in the multidistrict litigation titled In Re: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, MDL No. 2:15-ml-02639-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The litigation arose from the Defendants' alleged failure to disclose to the Nevada Athletic Commission the injuries suffered by Manny Pacquiao prior to the fight between him and Floyd Mayweather held on May 2, 2015. The appellate case is captioned as David Galandak, et al. v. Top Rank, Inc., et al., Case No. 17-56387, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 16, 2017; -- Transcript is due on November 13, 2017; -- Appellants David Galandak, Robert Martinez and Susan Medina's opening brief is due on December 26, 2017; -- Appellees Robert Arum, Todd DuBoef, Home Box Office, Inc., Michael Koncz, Floyd Mayweather Jr., Mayweather Promotions, LLC, Emmanuel Pacquiao and Top Rank, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants DAVID GALANDAK, ROBERT MARTINEZ and SUSAN MEDINA, Individually, and on behalf of all others similarly situated, are represented by: Robert R. Duncan, Esq. DUNCAN LAW GROUP, LLC 161 N. Clark Street, Suite 2500 Chicago, IL 60601 Telephone: (312) 202-3283 E-mail: rrd@duncanlawgroup.com - and - Laurence David King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com - and - Caleb Lucas-Hansen Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (562) 216-7387 E-mail: caleb.marker@zimmreed.com - and - Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 348-6415 E-mail: hlr@zimmreed.com Defendants-Appellees TOP RANK, INC., EMMANUEL PACQUIAO, HOME BOX OFFICE, INC., ROBERT ARUM, TODD DUBOEF and MICHAEL KONCZ are represented by: Jeffrey Barker, Esq. Daniel Petrocelli, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: jbarker@omm.com dpetrocelli@omm.com Defendants-Appellees TOP RANK, INC., EMMANUEL PACQUIAO and HOME BOX OFFICE, INC., are represented by: Britt M. Miller, Esq. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606-4637 Telephone: (312) 782-0600 Facsimile: (312) 706-8763 E-mail: bmiller@mayerbrown.com - and - Esteban Rodriguez, Esq. O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 E-mail: erodriguez2@omm.com Defendants-Appellees MAYWEATHER PROMOTIONS, LLC, and FLOYD MAYWEATHER, Jr., are represented by: Mark Tratos, Esq. GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway, Suite # 400 North Las Vegas, NV 89169 Telephone: (702) 792-3773 E-mail: tratosm@gtlaw.com MDL 2639: Mahoney Appeals Ruling to Ninth Circuit ------------------------------------------------- Plaintiffs Paul Mahoney, John Day, Brian Denis Flynn, Heather McDonald, Gary Rempel and Angela Thill filed an appeal from a court ruling in their lawsuit styled Paul Mahoney, et al. v. Emmanuel Pacquiao, et al., Case No. 2:15-cv-03376-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the lawsuit is an action for damages as a proximate result of the Defendants' alleged failure to disclose to the Nevada Athletic Commission the injuries suffered by Manny Pacquiao prior to the fight between him and Floyd Mayweather held May 2, 2015. The lawsuit was consolidated in the multidistrict litigation titled In Re: Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, MDL No. 2:15-ml-02639-RGK-PLA, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Paul Mahoney, et al. v. Emmanuel Pacquiao, et al., Case No. 17-56379, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 16, 2017; -- Transcript is due on November 13, 2017; -- Appellants John Day, Brian Denis Flynn, Paul Mahoney, Heather McDonald, Gary Rempel and Angela Thill's opening brief is due on December 26, 2017; -- Appellees Robert Arum, Todd DuBoef, Home Box Office, Inc., Michael Koncz, Floyd Mayweather Jr., Mayweather Promotions, LLC, Emmanuel Pacquiao and Top Rank, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants PAUL MAHONEY, Individually and on behalf of all others similarly situated, BRIAN DENIS FLYNN, JOHN DAY, HEATHER MCDONALD, ANGELA THILL and GARY REMPEL are represented by: Courtney E. Curtis, Esq. Paul B. Derby, Esq. John J. O'Kane, IV, Esq. SKIERMONT DERBY LLP 800 Wilshire Blvd., Suite 1450 Los Angeles, CA 90017 Telephone: (213) 788-4500 Facsimile: (213) 788-4545 E-mail: ccurtisives@skiermontderby.com pderby@skiermontderby.com jokane@skiermontderby.com - and - Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN 324 S. Beverly Drive Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com - and - Francis M. Gregorek, Esq. Betsy C. Manifold, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street San Diego, CA 92101 Telephone: (619) 239-4599 Facsimile: (619) 234-4599 E-mail: gregorek@whafh.com manifold@whafh.com - and - Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Laurence David King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com - and - Edgardo Morales Lopez, Esq. LAW OFFICES OF EDGARDO M. LOPEZ 3600 Wilshire Boulevard, Suite 1716 Los Angeles, CA 90010 Telephone: (213) 380-3939 Facsimile: (213) 596-3772 E-mail: edlopezlaw@aol.com - and - Caleb Lucas-Hansen Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (562) 216-7387 E-mail: caleb.marker@zimmreed.com - and - Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 348-6415 E-mail: hlr@zimmreed.com Defendants-Appellees EMMANUEL PACQUIAO, TOP RANK, INC., MICHAEL KONCZ, ROBERT ARUM, TODD DUBOEF, and HOME BOX OFFICE, INC., are represented by: Jeffrey Barker, Esq. Daniel Petrocelli, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: jbarker@omm.com dpetrocelli@omm.com - and - Esteban Rodriguez, Esq. O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 E-mail: erodriguez2@omm.com Defendants-Appellees FLOYD MAYWEATHER, Jr., and MAYWEATHER PROMOTIONS, LLC, are represented by: Mark Tratos, Esq. GREENBERG TRAURIG LLP 3773 Howard Hughes Parkway, Suite # 400 North Las Vegas, NV 89169 Telephone: (702) 792-3773 E-mail: tratosm@gtlaw.com MDL 2664: Court Dismisses Data Security Breach Suit --------------------------------------------------- In the case captioned IN RE: U.S. OFFICE OF PERSONNEL MANAGEMENT DATA SECURITY BREACH LITIGATION. This Document Relates To: ALL CASES, Misc. Action No. 15-1394 (ABJ), MDL Docket No. 2664 (D. D.C.), Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia dismissed the Plaintiffs' Consolidated Amended Complaint ("CAC") and the NTEU Complaint for lack of subject matter jurisdiction based on both standing and sovereign immunity grounds. A number of lawsuits were filed around the country after the data breaches at OPM and KeyPoint were announced. The United States Judicial Panel on Multidistrict Litigation transferred all actions that were pending elsewhere to this Court for coordinated or consolidated proceedings, and the Plaintiffs filed two amended complaints, which are the operative documents in this matter. The Plaintiffs in the CAC assert that OPM violated the Privacy Act, the Little Tucker Act, and the Administrative Procedure Act ("APA"), and that KeyPoint is liable for negligence, negligent misrepresentation and concealment, invasion of privacy, breach of contract, and violations of the Fair Credit Reporting Act and various state statutes governing unfair and deceptive trade practices and data security. They seek declaratory and injunctive relief against both defendants. OPM and KeyPoint each filed motions to dismiss the CAC, arguing that the Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because the Plaintiffs do not have standing and defendants are shielded by sovereign immunity, and that plaintiffs failed to state a claim under Rule 12(b)(6). The NTEU Plaintiffs assert a single claim against the Acting Director of OPM, alleging that the agency violated their constitutional right to informational privacy. They seek declaratory and injunctive relief. OPM has moved to dismiss the NTEU complaint for lack of standing and for failure to state a claim. Judge Jackson notes that the right to bring a claim for damages under the Privacy Act is expressly limited to those who can demonstrate that they have suffered actual economic harm as a result of the government's statutory violation. The law is clear that the statute does not create a cause of action for those who have been merely aggrieved by, or are even actively worried about, the fact that their information has been taken. Neither the Administrative Procedure Act nor the Little Tucker Act supplies a cause of action against the government to enforce its information security obligations, and no court has expressly recognized a right to data security arising under the Constitution. Therefore, Judge Jackson granted the Defendants' motions to dismiss, and dismissed the Plaintiffs' CAC and the NTEU Complaint for lack of subject matter jurisdiction based on both standing and sovereign immunity grounds. The Judge concludes that the CAC fails to state a claim under the Privacy Act and the Little Tucker Act, and that the NTEU complaint fails to state a constitutional claim. Judge Jackson finds, applying the case law it is required to follow, that neither set of the Plaintiffs has pled sufficient facts to demonstrate that they have standing. Moreover, even if they had the right to enter the courthouse, they did not bring a claim with them that the Court can hear. The Plaintiffs have failed to overcome the arguments that the federal Defendants are immune from suit under the Privacy Act and the Administrative Procedure Act, and that KeyPoint is shielded by government contractor immunity, so the Court lacks subject matter jurisdiction to hear those claims. Moreover, Judge Jackson finds that the Plaintiffs have failed to state claims upon which relief can be granted. They seek damages for improper disclosure of information and for a failure to maintain adequate safeguards under the Privacy Act, but they have not alleged that private information was "disclosed," as opposed to stolen, and they have not alleged facts to show that their claimed injuries were the result of the agency's failures. The Plaintiffs have not stated a claim for breach of contract under the Little Tucker Act since they have not shown that OPM entered into a contract with them or that any contract was breached, and they have not alleged any violation of the United States Constitution. A full-text copy of the Court's Sept. 19, 2017 Memorandum Opinion is available at https://is.gd/R5MzeF from Leagle.com. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Plaintiff, represented by Daniel C. Girard -- dcg@girardgibbs.com -- GIRARD GIBBS LLP, pro hac vice. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Plaintiff, represented by Gary Edward Mason -- gmason@wbmllp.com -- WHITFIELD BRYSON & MASON LLP & Jordan Elias -- je@girardgibbs.com -- GIRARD GIBBS LLP, pro hac vice. ROBERT CRAWFORD, Plaintiff, represented by Daniel C. Girard -- je@girardgibbs.com -- GIRARD GIBBS LLP, pro hac vice, Gary Edward Mason, WHITFIELD BRYSON & MASON LLP, Jordan Elias, GIRARD GIBBS LLP, pro hac vice, Adam E. Polk, GIRARD GIBBS LLP, pro hac vice & Christopher K. Hikida -- ckh@girardgibbs.com -- GIRARD GIBBS LLP, pro hac vice. ADAM DALE, Plaintiff, represented by Daniel C. Girard, GIRARD GIBBS LLP, pro hac vice, Gary Edward Mason, WHITFIELD BRYSON & MASON LLP, Jordan Elias, GIRARD GIBBS LLP, pro hac vice, Adam E. Polk, GIRARD GIBBS LLP, pro hac vice & Christopher K. Hikida, GIRARD GIBBS LLP, pro hac vice. NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, represented by Paras N. Shah, NATIONAL TREASURY EMPLOYEES UNION. STEPHEN HOWELL, Plaintiff, represented by Paras N. Shah, NATIONAL TREASURY EMPLOYEES UNION. JOHN ORTINO, Plaintiff, represented by Paras N. Shah, NATIONAL TREASURY EMPLOYEES UNION. MARY C. WOO, Plaintiff, represented by Anna C. Haac -- ahaac@tzlegal.com -- TYCKO & ZAVAREEI, LLP, Hassan A. Zavareei -- hzavareei@tzlegal.com -- TYCKO & ZAVAREEI, LLP & Norman E. Siegel -- siegel@stuevesiegel.com -- STUEVE SIEGEL HANSON LLP. TERESA J. MCGARRY, The Honorable, Plaintiff, represented by Daniel C. Girard, GIRARD GIBBS LLP, pro hac vice & Denis F. Sheils -- dsheils@kohnswift.com -- KOHN, SWIFT & GRAF, P.C.. VICTOR W. HOBBS, Plaintiff, represented by Behram Parekh, KIRTLAND & PACKARD LLP. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant, represented by Andrew Evan Carmichael, U.S. DEPARTMENT OF JUSTICE, Elizabeth J. Shapiro, U.S. DEPARTMENT OF JUSTICE & Joseph Evan Borson, U.S. DEPARTMENT OF JUSTICE. DONNA SEYMOUR, Defendant, represented by Andrew Evan Carmichael, U.S. DEPARTMENT OF JUSTICE, Elizabeth J. Shapiro, U.S. DEPARTMENT OF JUSTICE & Joseph Evan Borson, U.S. DEPARTMENT OF JUSTICE. KEYPOINT GOVERNMENT SOLUTIONS, Defendant, represented by Alexander H. Southwell -- asouthwell@gibsondunn.com -- GIBSON, DUNN & CRUTCHER, L.L.P., Francis Joseph Warin -- fwarin@gibsondunn.com -- GIBSON, DUNN & CRUTCHER, LLP & Jason J. Mendro, GIBSON, DUNN & CRUTCHER, LLP. BETH F. COBERT, Defendant, represented by Andrew Evan Carmichael, U.S. DEPARTMENT OF JUSTICE, Elizabeth J. Shapiro, U.S. DEPARTMENT OF JUSTICE & Joseph Evan Borson, U.S. DEPARTMENT OF JUSTICE. KATHERINE ARCHULETA, Defendant, represented by Andrew Evan Carmichael, U.S. DEPARTMENT OF JUSTICE & Joseph Evan Borson, U.S. DEPARTMENT OF JUSTICE. ELAINE D. KAPLAN, Defendant, Pro Se. JOHN BERRY, Defendant, Pro Se. MERCEDES-BENZ: Garick Sues over Radiator in 4-Matic Wagon Car ------------------------------------------------------------- RICHARD K. GARICK, individually and on behalf of all others similarly situated, the Plaintiff, v. MERCEDES-BENZ USA, LLC, the Defendant, Case No. 17CV13927 (Mass. Super. Ct., Sep. 12, 2017), seeks to enjoin Mercedes-Benz USA, LLC from continuing to engage in an unfair and deceptive acts or practices. The Plaintiff files this class action complaint on behalf of himself and on behalf of all others similarly situated who own or lease certain defective model year 2004 or earlier Mercedes-Benz C-Class and CLK Class vehicles designed, manufactured, distributed, sold and/or leased by defendant Mercedes-Benz USA, LLC. According to the complaint, on February 11, 2005, Garick purchased a 2003 Mercedes-Benz 320C 4-Matic Wagon, VIN No. WDBRH84J43D419244 from a MBUSA authorized dealership in Haverhill, Essex County, Massachusetts. MBUSA expressly and impliedly warranted that the Class Vehicles were free from any and all design and/or manufacturing defects and that they were fit for its ordinary purpose of providing reasonably reliable and safe transportation. These representations and warranties proved false as at all times, MBUSA knew about radiator issues with the Class Vehicles. This includes, without limitation, MBUSA's issuance of Dealer Technical Bulletin P-B-27.55/50 identifying catastrophic issues with the radiator and transmission systems in several Mercedes-Benz models, including, specifically, the Vehicle purchased by Garick and the other Class Vehicles. MBUSA's DTB acknowledged that certain Mercedes-Benz models equipped with a radiator manufactured and/or supplied by Valeo were defective. This defect allowed coolant from the radiator to mix with and contaminate the transmission fluid, causing damage to the vehicle, including the transmission and torque converter The Class Vehicles' radiators are uniformly and inherently defective in materials, design and workmanship because the Radiator Defect will inevitably cause extensive damage to the Class Vehicles by damaging the drivetrain and requiring replacement of the transmission, torque converter, and radiator. As a result of the Radiator Defect, the Class Vehicles experience premature breakdowns and mechanical failures, including but not limited to loss of forward propulsion, acceleration surging, significant delays in acceleration, stalling, and the inability to use the transmission gears. These conditions present a safety hazard because of sudden and unexpected breakdowns and mechanical failures that Class Vehicles can experience while in operation. Thus, the Class Vehicles and their transmissions among other things can fail, suddenly and unexpectedly, at any time and under any driving condition or speed, thereby contributing to traffic accidents, which can result in personal injury or death. In addition to the safety hazards, the financial costs of the Radiator Defect to consumers can be exorbitant because consumers will be required to pay thousands of dollars both to diagnose and repair the Radiator Defect and to repair the extensive damage that it causes to a vehicle's drivetrain, as well as damage that often requires replacement of the transmission, torque converter and radiator. Mercedes-Benz is a global automobile manufacturer and a division of the German company Daimler AG. The brand is known for luxury vehicles, buses, coaches, and trucks. The headquarters is in Stuttgart, Baden-Wurttemberg.[BN] The Plaintiff is represented by: Joshua N. Garick, Esq. LAW OFFICES OF JOSHUA N. GARICK, P.C. 100 TradeCenter, Suite G-700 Woburn, MA 01801 Telephone: (617) 600 7520 E-mail: Joshua@GarickLaw.com MERGERS MARKETING: District Court Refuses to Remand "Alame" Suit ---------------------------------------------------------------- Judge Brian C. Wimes of the U.S. District Court for the Western District of Missouri, Western Division, denied Plaintiff Alame's Motion to Remand the case captioned QUINTON ALAME, Plaintiff, v. MERGERS MARKETING, d/b/a Background Screeners of America, Defendant, Case No. 5:17-CV-06066-BCW (W.D. Mo.). On April 27, 2017, the Plaintiff filed this putative class action in the Circuit Court of Clinton County, Missouri, alleging claims against the Defendant for violation of the Fair Credit Reporting Act ("FCRA"). The Defendant timely removed the Plaintiff's claims to this Court on May 26, 2017, asserting federal question jurisdiction under 28 U.S.C. Section 1331. The Plaintiff seeks remand to state court. The Court notes that the Defendant filed a motion to dismiss before the Plaintiff's motion to remand; however, because the Plaintiff's motion is jurisdictional in nature, the Court first considers the Plaintiff's motion. The Plaintiff's motion to remand argues that the allegations of the complaint are inadequate to confer Article III standing. In opposition, the Defendant argues the Plaintiff has standing to proceed in federal court based on his FCRA claims because he alleges more than "a bare procedural violation." Judge Wimes finds that although the Plaintiff does not allege that the inaccurate information about his residential history led to the loss of any job or other opportunity, the Plaintiff alleges that the consumer report generated by the Defendant gave the inaccurate impression that he frequently moves from location to location. The threat to a consumer's livelihood is caused by the very existence of inaccurate information in his credit report and the likelihood that such information will be important to one of the many entities who make use of such reports. Consequently, the Plaintiff's allegations are not of the type amounting to a mere procedural violation; rather, the Plaintiff has sufficiently alleged a material risk of harm. The Judge concludes that the Plaintiff's allegations are sufficiently concrete to confer Article III standing. Accordingly, Judge Wimes denied the Plaintiff's Motion to Remand. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/D8lJgv from Leagle.com. Quinton Alame, Plaintiff, represented by Charles Jason Brown, Brown & Watkins, LLC. Quinton Alame, Plaintiff, represented by Jayson A. Watkins, Brown & Watkins, LLC. Mergers Marketing, Defendant, represented by Steven H. Schwartz -- sschwartz@bjpc.com -- Brown & James, PC, Derek H. MacKay -- dmackay@bjpc.com -- Brown & James, PC, Ross Thomas Weimer -- rweimer@bjpc.com -- Brown & James, PC & Todd A. Lubben -- tlubben@bjpc.com -- Brown & James, PC. MILAGRO OF MICHICAN: "Santillan" Suit Seeks unpaid OT under FLSA ---------------------------------------------------------------- OSCAR GARCIA SANTILLAN, individually and behalf of others similarly situated, the Plaintiff, v. EL MILAGRO OF MICHIGAN, INC., a Michigan Corporation, doing business a El Milagro, and HENRY PENA, an individual, the Defendants, Case No. 1:17-cv-00826 (W.D. Mich., Sep. 12 , 2017), seeks to recover unpaid overtime wages, pursuant to the Fair Labor Standards Act. According to the complaint, the Defendants misclassified Plaintiff and those similarly situated as exempt and failed to pay overtime at a rate of one and one-half times his regular rate for hours worked in excess of 40 hours during workweek.[BN] The Plaintiff is represented by: Robert Anthony Alvarez, Esq. Victoria L. Smalley, Esq. AVANTI LAW GROUP, PLLC 600 28th St. SW Wyoming, MI 49509 Telephone: (616) 257 6807 E-mail: ralvarez@avantilaw.com MILLENNIUM PRODUCTS: Ference Appeals Order in "Retta" Class Suit ---------------------------------------------------------------- Objector Justin Ference filed an appeal from a court ruling in the lawsuit entitled Jonathan Retta, et al. v. Millennium Products, Inc., et al., Case No. 2:15-cv-01801-PSG-AJW, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Jonathan Retta, et al. v. Millennium Products, Inc., et al., Case No. 17-56375, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter on Sept. 5, 2017, the District Court has given final approval to an $8.25 million deal struck among consumers, Whole Foods and a kombucha beverage maker in a mislabeling suit over the product's antioxidant, alcohol and sugar content, overruling objections to approximately $2 million in attorneys' fees. U.S. District Judge Philip S. Gutierrez on August 22 granted motions for final approval of the class action settlement agreed to by consumers led by Jonathan Retta in their suit against Whole Foods Market Inc. and GT's Kombucha maker Millennium Products Inc., saying that only four out of 173,000 class members objected to the terms of the settlement that awards $2.063 million in attorneys' fees and $18,121 in costs. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 13, 2017; -- Transcript is due on November 13, 2017; -- Appellant Justin Ference's opening brief is due on December 22, 2017; -- Appellees George Thomas Dave, Roseline Lewis, Jessica Manire, Millennium Products, Inc., Nina Pedro, Jonathan Retta, Kirsten Schofield and Whole Foods Market, Inc.'s answering brief is due on January 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellees JONATHAN RETTA, KIRSTEN SCHOFIELD and JESSICA MANIRE, on Behalf of Themselves and all Others Similarly Situated, are represented by: Lawrence Timothy Fisher, Esq. Yeremey O. Krivoshey, Esq. BURSOR & FISHER, P.A. 1990 N. California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: ltimothy@bursor.com ykrivoshey@bursor.com Plaintiffs-Appellees NINA PEDRO and ROSELINE LEWIS are represented by: Shehnaz M. Bhujwala, Esq. KHORRAMI BOUCHER, LLP 444 S. Flower Street Los Angeles, CA 90071 Telephone: (213) 596-6000 E-mail: bhujwala@boucher.la - and - John A. Yanchunis, Esq. MORGAN & MORGAN, PA 201 North Franklin Street Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@forthepeople.com Plaintiff-Appellee ROSELINE LEWIS is represented by: Clayeo Arnold, Esq. ARNOLD LAW FIRM 865 Howe Avenue, Suite 300 Sacramento, CA 95825 Telephone: (916) 777-7777 Facsimile: (916) 924-1829 E-mail: clay@justice4you.com Objector-Appellant JUSTIN FERENCE is represented by: Bradley David Salter, Esq. LAW OFFICE OF BRADLEY D. SALTER 24 Malialani Place Lahaina, HI 96761 Telephone: (808) 298-7873 Defendant-Appellee MILLENNIUM PRODUCTS, INC., is represented by: Scott Voelz, Esq. O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 E-mail: svoelz@omm.com Defendant-Appellee WHOLE FOODS MARKET, INC., is represented by: David A. Crane, Esq. LTL ATTORNEYS LLP 300 South Grand Avenue, 14th Floor Los Angeles, CA 90071 Telephone: (213) 612-8900 Facsimile: (213) 612-3773 E-mail: david.crane@ltlattorneys.com MURRAY GOULBURN: Farmers' Class Action Over Milk Price Pending -------------------------------------------------------------- Adele Ferguson, writing for Australian Financial Review, reports that in August 2014, the then-boss of Murray Goulburn, Gary Helou, told investors "the industry is too fragmented and the promise of consolidation will come through evolution, not revolution." He said Murray Goulburn wouldn't take part in the consolidation because it had too much on its plate. Mr. Helou made a series of blunders during his five years at the helm of the milk processing giant, but on industry consolidation he was spot on. What he didn't realise was that it would be Murray Goulburn at the centre of the consolidation, as the hunted rather than hunter. Fast forward to today, and the multi-billion dollar dairy industry is standing on a precipice, waiting for a circuit breaker to help the industry get back on track after a horror 2016 when some farmers went to the wall. Some believe it could be the sale or break-up of Murray Goulburn, which has been a barrier to consolidation. Its policy has been to take all-comers, which means it has a relatively inefficient supply base and has been reluctant to encourage farmers to consolidate and improve efficiency. Dairy is one of Australia's leading rural industries in terms of adding value across the supply chain. According to the latest industry figures from 2016, it is a $13.7 billion farm, manufacturing and export industry, comprising 6000 farms, around 120 factories and employs 38,000 people. On September 21, Murray Goulburn told the ASX it had received a number of confidential, non-binding indicative proposals and it would provide an update at its annual general meeting next month. It said "these proposals have ranged from the sale of certain assets to whole of company transactions". It dismissed media speculation that it had received an offer of $1.20 a unit from an international bidder. Since, Murray Goulburn's new chief executive Ari Mervis announced a strategic review there has been a constant supply of names of speculated bidders, ranging from local to international. Some names are legitimate, while others are no doubt a ploy by investment bankers to create competitive tension in a company that is clearly distressed. Whether it is taken out in a merger, forms a joint venture or becomes a break-up proposition for private equity or a combination of bidders wanting different assets, Murray Goulburn's fate will be sealed in the coming months. What that fate looks like will largely depend on farmers, given the listed co-operative's constitution. According to a note from Macquarie Equities, "with a book value per share of around $1.30 and farmers have purchased shares at $1- $1.20, so we think any whole company proposal would need to reflect good value to achieve the 75-90 per cent required farmer sign-off (under various structures)." It will be interesting to see whether farmers will be driven purely by price or other factors will come into play, such as preferring to be part of an Australian-owned operator such as Bega Cheese, which has been widely tipped in the media as an interested party for a full takeover or some key assets. Bega is a stockmarket darling, run by the highly regarded chief executive Barry Irwin who has the added attraction to farmers of still being a dairy farmer. Bega has been paying solid farmgate prices to farmers and didn't get caught up in retrospective pricing, which was triggered by Murray Goulburn in April 2016 and plunged the industry into crisis. If Bega bought Murray Goulburn it would catapult it to the biggest milk processor in the country and generate synergies. Another interested party is speculated to be Parmalat, which is more likely to be interested in buying discrete assets for the domestic market. In the past few years Parmalat has acquired a few assets including Tamar Valley, which includes the Ski yoghurt brands and Harvey Fresh, so it is willing to invest. The talk is it would potentially partner with parent French diary giant Lactalis to split local and international assets. Saputo has also been named as a potential bidder, but it is more likely to be interested in certain assets, ditto for Kirin's Lion Dairy and Drinks, which owns National Foods. Others speculated in the media to be kicking the tyres include Arla Foods from Denmark, which is an unknown quantity for farmers. There has also been talk of Goodman Fielder, Inner Mongolia Fuyang Farming and a couple of Chinese companies. Based on a farmgate value of production of $4.3 billion in 2015- 16, dairy is the third largest industry behind beef and wheat, which makes it attractive for foreign buyers with deep pockets. For Murray Goulburn shareholders, a quick sale would be ideal given it is battling trust issues with farmers and is yet to stabilise its milk intake as farmers continue to defect to rivals offering higher farmgate prices. To put it into perspective, in 2016 Murray Goulburn's milk intake was 3.5 billion litres, falling to 2.7 billion litres in 2017. Its guidance for 2018 was downgraded in June to 2.5 billion, then to 2.3 billion in July and more lately to 2 billion litres in August. Milk intake can't be underestimated. When intake falls, profits fall, processing plants become underutilised, which puts downward pressure on the share price and encourages more good farmers to leave -- something it can't afford. The upshot is the less efficient farmers remain. The conundrum for Murray Goulburn is it is battling a battered reputation and a stretched balance sheet, which means its farmgate prices aren't as attractive as some of its competitors. In 2017-18 Murray Goulburn opened farmgate prices at $4.70 a kg for milk solids but within two weeks it was forced to raise them to $5.20 in an attempt to stem the flow of defections. A final farmgate price above $5.20 remains under review but it will need to be debt funded, which isn't ideal for a company with a stretched balance sheet. In the year to June 30, 2017, Murray Goulburn reported a loss of $370 million loss after a series of writedowns and processing plant closures. Revenue was down 10 per cent and the board suspended its dividend. It is why something has to give at Murray Goulburn. The most attractive assets for domestic milk processors are the white milk processing sites that Murray Goulburn invested in to service the Coles private label contracts signed three years ago. It will be interesting to see if they contain a change of control clause and what that means. Against this backdrop, the company faces a class action, is being investigated by ASIC and the competition regulator ACCC has taken legal action in the Federal Court, alleging unconscionable conduct and misleading farmers in relation to forecasting a milk price of $6.05 when it allegedly knew dairy commodity prices were falling globally. The class action concerns the alleged misleading and deceptive representations by Murray Goulburn in its May 2015 Product Disclosure Statement and a breach of continuous disclosure rules in relation to the likely downward revision of its expected revenues and profits in financial year 2016. There is no doubt that change is needed in an industry that is battling on many fronts, not least the relatively high costs of labour, a sub-scale dairy farmer base, cheap milk and brand owners that haven't done a great job differentiating their product from $1 milk. A merger or asset sale would mean one less competitor in an industry dominated by skinny margins and powerful supermarket chains that have screwed down milk prices. If someone takes a more rational approach, some value might come back into the market. [GN] NIDEC MOTOR: Faces "Spivak" Suit in California Superior Court ------------------------------------------------------------- A class action lawsuit has been filed against Nidec Motor Corporation. The case is captioned as David Spivak, Pounds Gurtha and all others similarly situated and as an aggrieved employee on behalf of other aggrieved employees under the Labor Code Private Attorneys General Act of 2004, the Plaintiffs, v. Does 1 through 50; Motion Control Engineering Inc.; Motion Control Engineering Inc. a Delaware corporation; Nidec Motor Company; and Nidec Motor Corporation, a Delaware corporation, the Defendants, Case No. 34- 2017-00219048-CU-OE-GDS (Cal. Super. Ct., Sep. 13, 2017). Nidec Motor manufactures commercial, industrial, and appliance motors and controls.[BN] The Plaintiff is represented by Walter L Haines, Esq., in California. NORTHERN MARIANAS: Settlement Trustee Seeks Tenant for Building --------------------------------------------------------------- Bryan Manabat, writing for Variety News, reports that the second and third floors of the former Retirement Fund building on Capital Hill are available for lease, but it is difficult to find a suitable tenant for the space, according to Settlement Fund trustee Joyce C.H. Tang. In a report filed with federal court, Ms. Tang said government agencies that are interested in leasing the space do not have sufficient funding. According to the report, the second and third floors of the facility, now known as Settlement Fund Building, were previously occupied by FEMA after Typhoon Soudelor in 2015 at the rate of $17,236.50 per month ($1.50 per s.f.), with an additional $5,745.50 per month for utilities. "The Settlement Fund would like to explore the possibility of obtaining consent to lease space to private tenants so that it can maximize rental revenue," Tang stated in the report. However, the "building sustained some damage from Typhoon Soudelor and also requires maintenance work. The damage from Soudelor is below the deductible. The proposals for repair are estimated to be between $76,632.46 and $103,518.19, excluding construction management cost. Because of the labor shortage in Saipan, work that should cost a fraction of this amount is double or triple the normal cost. The Settlement Fund has budgeted $270,000 for the repair and maintenance of the building." Judicial building loan As for the judicial building loan, the report said it matured on March 1, 2015. "The loan balance as of Sept. 30, 2016 was $4,303,213.80. In FY 2017, the [CNMI] government made payments totaling $942,772.53. The outstanding balance as of Sept. 15, 2017 [was] $3,667,219.28 (including interest)." According to the report, the government, with the help of the NMI judiciary, has applied for a U.S. Department of Agriculture loan for $12,000,000 to pay off the judicial building loan and to expand the judiciary building and other facilities. In Sept. 2016, Public Law 19-67 was signed authorizing the government to borrow from the USDA for these purposes. "The Settlement Fund was informed that the USDA loan application is being reviewed by the Guam and Hawaii USDA offices, and will be forwarded to the USDA headquarters in Washington, D.C. by Oct. 1, 2017 for final review." Lawsuit The report likewise updated the court about NMI Retirement Fund v. Sword and Express Electronics, Civil Action No. 12-0086 filed in the CNMI Superior Court by the NMI Retirement Fund. "It was not assumed by the Settlement Fund and was not identified as an asset to be transferred to the Settlement Fund in the settlement agreement," the report said. "The lawsuit alleged a breach of contract and unjust enrichment claim by the plaintiff, the Retirement Fund, against defendants, Gerhard Sword, individually, and Express Electronics, involving a defective audit software they had supplied to the Retirement Fund." The Settlement Fund notified the Office of the AG on March 14, 2016 that the court would be dismissing this lawsuit. "The lawsuit remained with the Retirement Fund and was dismissed by the court on April 27, 2016." Expenses The report also mentioned that the CNMI government agreed to reimburse the Settlement Fund for the trustee ad litem fees in the amount of $694,998.30, to be paid in 24 equal monthly installments of $28,958.26 per month. The balance was paid in full on June 15, 2016. Civille & Tang LLC served as trustee ad litem from Sept. 14, 2012 to Sept. 30, 2013. For its total personnel expenses, the Settlement Fund budgeted $777,712 in fiscal year 2016, but the actual expenses amounted to $649,719. In FY 2017, the personnel budget was $751,954 while the actual expenses totaled $680,481. As for the Settlement Fund's total professional fees, the FY 2016 budget allotted $824,542 while the actual expenses amounted to $311,446. In FY 2017, the budget was $671,000 while the actual expenses totaled $286,747. In the Settlement Fund's proposed FY 2018 budget, $816,080 was set aside for personnel expenses and $945,000 for total professional fees. The Settlement Fund has three consultants: Wilshire Investments as its investment consultant; Milliman Inc. as its actuary consultant; and Ernst & Young as its auditor. Investment accounts The balance in the Settlement Fund's investment accounts for FY 2017, as of Aug. 31, 2017, was $72.599 million. "The Settlement Fund's current investment policy is very conservative because the Settlement Fund will not be able to take high levels of capital markets risk," the report stated. It added that its investment consultant has calculated the amount needed in order for the Settlement Fund to be fully funded. "Subject to certain assumptions, an infusion of an additional $468 million is required to fully fund the Settlement Fund. The trustee plans to engage the government in discussions regarding options available to obtain this funding." In the past two years, the trustee told the court, the CNMI government has been making weekly payments of $1 million to the Settlement Fund. These $1 million weekly payments provide the cash flow needed for bi-weekly benefit payments without having to liquidate the Settlement Fund's investment The CNMI government is able to make the weekly payments, partly because of increased Saipan casino gross revenue tax collected in 2016 and 2017, the trustee said, adding that the casino gross revenue tax has developed into a primary source of revenue for the government. But the report also said reliance on the casino GRT is very risky, adding that the continuing payment of the casino GRT to the government at the current rate is, at best, uncertain. The Settlement Fund was created by the federal court on Sept. 30, 2013 to pay pension benefits to members of the Retirement Fund who opted to become members of the NMI Settlement Fund. Under the agreement that settled retiree Betty Johnson's class action against the CNMI, the government must make minimum annual payments each year to pay 75 percent of the full benefits of the class members. As of Sept. 2017, there are 3,035 settlement class members, 72 of whom are active CNMI government employees. [GN] NUTRACEUTICAL CORP: 9th Cir. Splits From Other Circuits ------------------------------------------------------- Elliott J. Joh, Esq., of Squire Patton Boggs (US) LLP, in an article for National Law Review, wrote that as regular class action litigators are aware, Rule 23(f) provides a potential safety valve in case of an adverse class certification order: within 14 days, a party may file a petition to the applicable court of appeals seeking interlocutory appeal of the order. However, if a litigant first files a motion for reconsideration after the 14-day time limit, and then -- after the motion is denied months later -- files a Rule 23(f) petition, is the appellate court without jurisdiction to consider the petition? In Lambert v. Nutraceutical Corp., the Ninth Circuit answered that question in the negative, finding that the 14-day deadline is not jurisdictional, and therefore may be equitably tolled by such a motion. Practitioners are advised, however, not to assume that other courts (particularly the Third Circuit, and likely the Tenth and Eleventh Circuits as well) would allow the Rule 23(f) deadline to be so tolled. The case concerns a product known as "Cobra Sexual Energy," which is an aphrodisiac dietary supplement that its manufacturer Nutraceutical marketed as enhancing sexual performance. Cobra Sexual Energy had not, however, received approval from the Food and Drug Administration ("FDA"), and thus the plaintiff Lambert alleged that the product's label violated several FDA rules. Lambert brought a consumer class action for violations of California's Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act. The lower district court initially certified the class, but then granted Nutraceutical's motion to decertify on the basis that Lambert failed to provide key evidence necessary to apply his classwide model for damages. Ten days after the order, Lambert informed the district court during a status conference that he intended to file a motion for reconsideration of the decertification order. The district court instructed Lambert to file his motion ten days later, which he did. Three months later, the district court denied Lambert's motion for reconsideration, which prompted Lambert to file his Rule 23(f) petition 14 days afterwards. Thus, from the time of the district court's decertification order to the time of Lambert's Rule 23(f) petition, more than 4 months had passed -- far exceeding the 14- day time limit of Rule 23(f). The Ninth Circuit acknowledged that Lambert's petition would be time-barred according to the plain language of Rule 23(f), but then concluded that the rule's time limit is not jurisdictional. Rather, because the time limit is contained in a rule promulgated by the Supreme Court, rather than in a Congressional statute, the time limit is merely a matter of procedural "claims-processing." A deadline contained in a statute, on the other hand, "delineates the classes of cases or persons within a court's adjudicatory authority," and a party's failure to adhere to such a deadline removes a court's authority over the subject matter. The Court primarily relied on the Supreme Court's decision in Eberhart v. U.S., 545 U.S. 12 (2005), in arriving at its conclusion. The non-jurisdictional nature of the Rule 23(f) deadline means that equitable exceptions, such as tolling, may apply to avoid or soften the deadline. Such equitable exceptions are meant to allow a "good faith litigant" to have his day in court, and depend on whether the litigant "pursued his rights diligently" and whether external circumstances (such as a deadline imposed by the district court) affected the litigant. Accordingly, "[a]ll circuits to consider tolling the Rule 23(f) deadline have held that the deadline may be tolled when a litigant files a motion for reconsideration within the fourteen-day deadline." This exception did not apply to Lambert, however, because he filed his motion for reconsideration 20 days after the district court's decertification order. The Ninth Circuit nonetheless held that the equitable factors weighed in plaintiff's favor: "because Lambert informed the court orally of his intention to seek reconsideration of the decertification order and the basis for his intended filing within fourteen days of the decertification order and otherwise acted diligently, and because the district court set the deadline for filing a motion for reconsideration with which Lambert complied, the Rule 23(f) deadline should be tolled." The Court acknowledged that the Third Circuit in Gutierrez v. Johnson & Johnson, 523 F.3d 187 (3d Cir. 2008), reached the opposite conclusion, and that the Tenth and Eleventh Circuits would likely not allow a district court's scheduling order to affect or toll the Rule 23(f) deadline. Accordingly, litigants should continue to adhere to the 14-day Rule 23(f) deadline, but should also be aware that failure to do so under certain circumstances may not preclude the Ninth Circuit from considering the petition. [GN] OVERTON SECURITY: "McMillian" FLSA Claim Tossed w/ Leave to Amend ----------------------------------------------------------------- In the case captioned DEMARIO McMILLIAN, Plaintiff, v. OVERTON SECURITY SERVICES, INC., Defendant, Case No. 17-cv-03354-JSC (N.D. Cal.), Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted the Defendant's motion to dismiss the FLSA claim with leave to amend. The Defendant is a security company that provides security services to clients throughout California. The Plaintiff is a security guard at the Bay Street Shopping Center in Emeryville, California. He has been employed by the Defendant since January 2017 as an hourly, non-exempt employee and is paid an hourly rate for his services. The Plaintiff filed suit in Alameda County Superior Court on April 14, 2017 alleging violations of California state law. On June 7, 2017, the court dismissed the action without prejudice. The Plaintiff subsequently filed the instant case on June 9, 2017, alleging violations of the FLSA and the California Labor Code. He brings his FLSA claims as a collective action pursuant to 29 U.S.C. Section 216(b). The Plaintiff claims (i) the Defendant failed to pay overtime compensation for all hours worked in excess of forty hours; (ii) the Defendant failed to pay minimum wage because the Defendant failed to reimburse him and the collective members for work-related expenses; and (iii) the Defendant failed to properly pay them for off-the-clock hours when security-related incidents occur near the end of shifts. The Defendant's 12(b)(6) moves to dismiss the FLSA claim. Judge Corley granted the Defendant's motion to dismiss the FLSA claim without prejudice. The complaint fails to allege facts showing that there was a given week in which the Plaintiff was entitled to but denied (i) overtime wages, (ii) minimum wages, or (iii) off-the-clock wages. Instead, the Plaintiff asserts generalized allegations that he and the putative Class and Collective members are not compensated with minimum wages, agreed- upon wages, or overtime wages for time spent working after the scheduled conclusion of a work shift. The Plaintiff's conclusory allegations repeat the statutory language and fail to identify a specific pay period. The Defendant argues that because the Plaintiff's pleadings are insufficient to satisfy 12(b)(6), the Court should decline to exercise supplemental jurisdiction under 28 U.S.C. Section 1367(a) and dismiss the remaining California state law claims. Because the Judge granted the motion to dismiss under 12(b)(6) with leave to amend, it is premature to consider the Defendant's argument that the Court should decline to exercise supplemental jurisdiction. Judge Corley directed the Plaintiff to file his amended complaint, if any, within 20 days of the date of the Order. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/WhwBzr from Leagle.com. Demario McMillian, Plaintiff, represented by Carolyn Hunt Cottrell -- ccottrell@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP. Demario McMillian, Plaintiff, represented by David Christopher Leimbach -- dleimbach@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP & Mira Pearl Karageorge -- mkarageorge@gmail.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP. Overton Security Services, Inc., Defendant, represented by Damon M. Thurston -- thurston@rankinlaw.com -- Rankin, Sproat, Mires, Reynolds, Shuey & Mintz. OXNARD, CA: "Kittel" Suit Moved to Central District of California ----------------------------------------------------------------- The class action lawsuit titled April Kittel, Individually, and on behalf of all others similarly situated, the Plaintiff, v. City of Oxnard, a California municipality; Sylvia Paniagua, in her individual and official capacities; Eric Sonstegard, in his individual and official capacities; and DOES 1-10, inclusive, the Defendants, Case No. 56-02017-00499300, was removed on Sep.12, 2017 from the Ventura County Superior Court, to the U.S. District Court for Central District of California (Western Division - Los Angeles). The District Court Clerk assigned Case No. 2:17-cv- 06709-MWF-GJS to the proceeding. The case is assigned to the Hon. Judge Michael W. Fitzgerald. Oxnard is a city in the United States, located along the coast of Southern California. It is the 19th most populous city in California and the most populous in Ventura County.[BN] The Plaintiff is represented by: William August Salzwedel, Esq. J GRANT KENNEDY LAW OFFICES 141 Duesenbery Drive Suite 4 Westlake Village, CA 91362 Telephone: (805) 497 4511 Facsimile: (805) 497 3014 E-mail: williamsalzwedel@yahoo.com The Defendants are represented by: Brian P Walter, Esq. Hengameh S Safaei, Esq. Joshua Andrew Goodman, Esq. LIEBERT CASSIDY WHITMORE APC 6033 West Century Boulevard 5th Floor Los Angeles, CA 90045-6415 Telephone: (310) 981 2000 Facsimile: (310) 337 0837 E-mail: bwalter@lcwlegal.com hsafaei@lcwlegal.com jgoodman@lcwlegal.com PATH INC: Attorneys Want $1.6MM Cut of App Privacy Deal ------------------------------------------------------- Kat Greene, writing for Law360, report that the attorneys who worked out a $5.3 million deal with tech companies including Twitter, Instagram and Yelp in a consolidated proposed class action over alleged user privacy violations asked a California federal judge on September 22 to award $1.6 million in fees for their work. U.S. District Judge Jon S. Tigar granted preliminary approval to the settlement in July, moving forward a deal that would resolve five-year-old claims that the companies' apps for Apple's iOS were created in such a way as to unlawfully upload and disseminate users' personal information without their knowledge or consent, court records show. Now, the counsel that represented the proposed class say they should be paid 30 percent of that sum for their efforts, owing to the case's length and the significant resources it took to prosecute, according to September 22nd's motion. The attorneys had done thousands of hours of work on the case before it settled, they said. "As the court has itself noted, this case was fiercely litigated," class counsel said in the filing. "The hours class counsel expended to investigate, litigate and settle the claims against the app defendants were driven in substantial part by the complexity and novelty of the issues presented and each app defendant's tenacious defense of the claims against it." The consumers' attorneys are seeking just under $1.6 million in fees, plus $150,000 in costs and another $195,000 to pay each lead plaintiff a $15,000 award, according to September 22nd's filing. The consumers had accused Twitter Inc., Yelp Inc., Instagram LLC, Foursquare Labs Inc., Foodspotting Inc., Gowalla Inc., Kik Interactive Inc. and Kong Technologies Inc., formerly known as Path, of invasion of privacy and intrusion upon seclusion, as well as a claim against Apple Inc. for aiding and abetting such activity and for misrepresentation, according to filings in the case. The settlement would release most of those claims, save the misrepresentation claim against Apple, which was resolved in a stipulated order earlier this month. The deal covers a proposed class of an estimated 7 million claimants who downloaded the companies' iOS apps on their Apple devices and activated the "Add Friends," "Find Friends" or "Suggested Friends" feature, whichever variation was offered by the relevant app. The class period, which is different for each defendant, covers a time period of 2009 through 2012. The defendants in the suit haven't made many appearances in court this year as the parties reached and hammered out the details of their settlement, according to the case docket. Apple and the consumers agreed to dismiss any claims against the company that weren't covered by the settlement, and Judge Tigar approved that stipulation earlier this month, according to filings in the case. The consumers are represented by David M. Given, Esq. -- dmg@phillaw.com -- and Nicholas A. Carlin, Esq. -- nac@phillaw.com -- of Phillips Erlewine Given & Carlin LLP, Michael Von Loewenfeldt, Esq. -- loewenfeldt@kerrwagstaffe.com -- Frank Busch, Esq. -- busch@kerrwagstaffe.com -- and James M. Wagstaffe, Esq. -- wagstaffe@kerrwagstaffe.com -- of Kerr & Wagstaffe LLP, Jennifer Sarnelli, Esq. -- jsarnelli@gardylaw.com -- of Gardy & Notis LLP, Jeff Edwards, Esq. -- jeff@edwards-law.com -- and Carl Schwenker, Esq. Apple is represented by Robert B. Hawk and Stacy Hovan of Hogan Lovells. The settling defendants have been represented by Durie Tangri LLP, Perkins Coie LLP, Fenwick & West LLP and Dhillon Law Group Inc. The consolidated case is Marc Opperman et al. v. Path Inc. et al., case number 3:13-cv-00453, in the U.S. District Court for the Northern District of California. [GN] PATRIOT NATIONAL: Safirstein Metcalf Files Class Action Lawsuit --------------------------------------------------------------- Safirstein Metcalf LLP and The Grant Law Firm, PLLC announce that they have filed a class action lawsuit against Patriot National, Inc. ("Patriot National" or the "Company") (NYSE:PN) on behalf of purchasers of Patriot National common stock during the period of March 3, 2016 and November 14, 2016 ("Class Period"). This action was filed in the Southern District of New York and is captioned Kayce v. Patriot National, Inc. et al. No. 17-07164. If you purchased common stock of Patriot National during the Class Period, and would like more information about the shareholder class action, please contact Safirstein Metcalf LLP at 1-800-221- 0015, or email info@SafirsteinMetcalf.com If you wish to serve as lead plaintiff, you must move the Court no later than November 21, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The Complaint alleges that, throughout the Class Period, Defendants made affirmative misstatements concerning the purpose and need for the stock repurchase program (the "Stock Repurchase Program") and falsely represented that its purpose was to increase the Company's stock price because it did not accurately reflect the Company's value, and directly manipulated the price of the Company's stock through the Stock Repurchase Program. The Complaint alleges that the true purpose of the Stock Repurchase Program was to artificially inflate the market price of the Company's stock to enable Steven Mariano, the Company's controlling shareholder, to provide fewer shares to private equity investors pursuant to a previously executed agreement and to maintain his control position. On November 14, 2016, the Company announced that it was expanding the Stock Repurchase Program from $15 million to $40 million. With this change in the Stock Repurchase Program, the Company characterized the increase (along with a special dividend) as a reward to shareholders for their patience. Investors, however, now saw the exposed truth -- the Stock Repurchase Program was not about the Company's concern that the stock was significantly undervalued but to aid Mariano. Following this revelation, the stock price dropped nearly 10% on very high volume and continued to trade on very high volume for two more days, closing on November 16 at over 12% lower than the stock price prior to the announcement. About Safirstein Metcalf LLP Safirstein Metcalf LLP focuses its practice on shareholder rights. The law firm also practices in the areas of antitrust and consumer protection. All of the Firm's legal endeavors are rooted in its core mission: provide investor and consumer protection. About The Grant Law Firm For over 30 years, Lynda J. Grant has represented aggrieved investors and consumers in a variety of actions, and has run The Grant Law Firm, PLLC for over seven years. She also has been heralded as one of the top woman attorneys in corporate governance, and has won significant governance changes in many of the country's largest corporations. [GN] PENSKE LOGISTICS: Class Deal in "Rodriguez" Has Prelim. Nod ----------------------------------------------------------- Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California granted Rodriguez's unopposed motion for preliminary certification of the class, preliminary approval of the settlement and approval of the proposed notice to the putative class in the case captioned CHARLES RODRIGUEZ, individually and on behalf of all similarly situated current and former employees, Plaintiff, v. PENSKE LOGISTICS, LLC, a Delaware Limited Liability Company, and DOES 1 through 10, inclusive Defendant, No. 2:14-CV-02061-KJM-CKD (E.D. Cal.). Rodriguez worked as a driver for Penske for nearly 15 years before his separation from the company in July 2013. During that time, Rodriguez worked as a non-exempt employee, paid on a "by-the-mile" or "piece rate" basis. Rodriguez filed the complaint on Sept. 5, 2014, alleging Penske did not pay for pre- and post-trip inspections, nor did its piece rate method of payment account for 10-minute rest breaks that should have been compensated. He further alleges he was subject to policies that did not permit him to be relieved of all duties during break periods; was subject to an improper accounting policy; was not paid premium wages, or at least minimum wage, for non-compliant break periods; was provided inaccurate itemized wage statements for which the basis for pay and calculation could not be performed by a reasonable person; and was not timely paid all wages owed and due upon separation. Based on these allegations, Rodriguez brings the following eight claims on behalf of the putative class: (i) failure to pay minimum wages; (ii) failure to provide paid 10-minute rest periods; (iii) failure to provide duty-free rest periods or compensation in lieu thereof; (iv) failure to provide duty-free meal periods or compensation in lieu thereof; (v) knowing and intentional failure to provide itemized wage statements; (vi) failure to pay wages at termination; (vii) violations of the Unfair Competition Law; and (viii) violations of the Private Attorneys General Act ("PAGA"). Rodriguez seeks conditional certification of the class described as all California-based non-exempt truck driver employees who worked under a 'piece rate' or 'pay-by-the-mile' compensation policy from Sept. 5, 2010 through to the earlier of (i) Preliminary Approval of the Court or (ii) Nov. 1, 2016. Although the complaint proposed subclasses corresponding to each of the first seven claims in the complaint, Rodriguez seeks certification only of the broader class described. The parties have stipulated to the existence of that class for purposes of settlement. In January 2015, the Court issued an initial scheduling order, which created a cut-off for dispositive motions to be heard no later than June 16, 2016. After neither of the parties timely filed a dispositive motion, the Court advanced the date of the final pretrial conference. The parties asked for additional time in light of their pending negotiations, which the Court granted. On Oct. 3, 2016, the parties filed a joint notice of settlement. On Nov. 16, 2016, Rodriguez filed the motion for preliminary certification of the class, preliminary approval of the settlement and approval of the proposed notice to the putative class. Under the proposed agreement, the Defendant agrees to pay a Gross Settlement Amount of $850,000 for all claims. The agreed $850,000 will be the Defendant's total payment, which will be used to pay the following: (i) the Attorney Fees, not to exceed $255,000 or 30 percent of the Settlement Amount, and Expenses not to exceed $10,000; (ii) the Service Fee Award, as approved by the Court, not to exceed $3,000; (iii) the Administrative Expenses, as approved by the court, not to exceed $25,000; (iv) a $10,000 PAGA award, to be paid to the California Labor and Workforce Development Agency ("LWDA"); (v) the aggregate of all Individual Settlement Amounts of Class Participants; (vi) the Employee's Taxes and Required Withholding associated with the Individual Settlement Amounts; and (vii) the Employer's Taxes associated with the portion of the Individual Settlement Amounts related to wages. The settlement will be distributed to class members based on the number of weeks worked for defendant during the relevant time period, after deducting the employee's taxes and required withholdings. The settlement agreement contemplates a notice period for class members to opt out of the settlement or to file an objection regarding its fairness. A settlement administrator will send a first proposed notice to all putative class members and then a second should any of the first set be returned as undeliverable. Once notice is sent out, the class members are automatically part of the settlement unless they opt out of the settlement by the response deadline. The Class members may also file objections to the settlement and subsequently appear at the second fairness hearing. Notably, the settlement agreement includes two safeguards should the number of settlement class members change. First, if three percent or more of the class timely opts out, then the Defendant has the exclusive right to void the agreement. Second, if the number of settlement class members exceeds 796 individuals, then the Gross Settlement Amount will be proportionally increased to reflect those additional members. In this case, the Defendant has stipulated that a class may be certified for settlement purposes only but it denies each and all of the allegations, claims, and contentions brought by Rodriguez and contends that it complied in good faith with California and federal wage and hour laws. Judge Mueller granted preliminary certification of the class; granted preliminary approval of the settlement, and granted approval of the proposed notice to the putative class. She appointed Rodriguez as the representative of the class and Desai Law Firm, P.C. as the class counsel. The Judge modified the parties' stipulated schedule, and adopted the following schedule in this case: a. Deadline for Defendant to submit class list to Claims Administrator: Oct. 3, 2017 b. Deadline for Claims Administrator to mail Class Notice: Oct. 15, 2017 c. Deadline for Class Members to postmark Objections or Requests for Exclusion-timely Notice mailed: Nov. 14, 2017 d. Deadline for Class Members to postmark Objections or Requests for Exclusion-remailed Notices: Nov. 27, 2017 e. Motion for Final Approval to be filed by Dec. 29, 2017 f. Final Approval Hearing: Jan. 26, 2018 A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/jnewbd from Leagle.com. Charles Rodriguez, Plaintiff, represented by Aashish Y. Desai -- aashish@desai-law.com -- Desai Law Firm, P.C.. Penske Logistics, LLC, Defendant, represented by Adam C. Smedstad -- ASMEDSTAD@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice, Andrew J. Butcher -- ABUTCHER@SCOPELITIS.COM -- Scopelitis, Garvin, Light, Hanson and Feary, PC, pro hac vice, Christopher Chad McNatt, Jr. -- CMCNATT@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, LLP, James H. Hanson -- JHANSON@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice & Megan E. Ross -- MROSS@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary. PHC INC: First Circuit Appeal Filed in Maz Partners Class Suit -------------------------------------------------------------- Plaintiff MAZ Partners LP filed an appeal from a court ruling in its lawsuit styled MAZ Partners LP v. Shear, et al., Case No. 1:11-cv-11049-PBS, in the U.S. District Court for the District of Massachusetts, Boston. The appellate case is captioned as MAZ Partners LP v. Shear, et al., Case No. 17-1904, in the United States Court of Appeals for the First Circuit. As previously reported in the Class Action Reporter, Defendant Bruce A. Shear filed an appeal from a court ruling in the lawsuit. That appellate case is captioned as MAZ Partners LP v. Shear, Case No. 17-1821. The lawsuit is a shareholder class action arising from a corporate merger. The docket of the Appellate Case states that Appearance form, Docketing Statement, and Transcript Report/Order form were due September 28, 2017.[BN] Plaintiff-Appellant MAZ PARTNERS LP, on behalf of itself and all others similarly situated, is represented by: Patricia I. Avery, Esq. Adam Blander, Esq. WOLF POPPER LLP 845 3rd Avenue New York, NY 10022-0000 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: pavery@wolfpopper.com ablander@wolfpopper.com Plaintiff-Appellant MAZ PARTNERS LP, on behalf of itself and all others similarly situated, and Plaintiff PETER BLAKESLEE, individually and on behalf of all others similarly situated, are represented by: Chet Barry Waldman, Esq. WOLF POPPER LLP 845 3rd Avenue New York, NY 10022-0000 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: CWaldman@wolfpopper.com - and - Norman Berman, Esq. Nathaniel L. Orenstein, Esq. BERMAN TABACCO 1 Liberty Sq., 8th Floor Boston, MA 02109 Telephone: (617) 542-8300 E-mail: nberman@bermandevalerio.com norenstein@bermantabacco.com Plaintiff PETER BLAKESLEE, individually and on behalf of all others similarly situated, is represented by: Patrick J. Sheehan, Esq. WHATLEY KALLAS LLP 60 State St., 7th Floor Boston, MA 02109-0000 Telephone: (61) 573-5118 E-mail: psheehan@whatleykallas.com Defendants PHC, INC., BRUCE A. SHEAR, DONALD E. ROBAR, DOUGLAS J. SMITH, HOWARD W. PHILLIPS, WILLIAM F. GRIECO, DAVID E. DANGERFIELD, ACADIA HEALTHCARE COMPANY, INC., and ACADIA MERGER SUB, LLC, are represented by: Leonard H. Freiman, Esq. Richard M. Zielinski, Esq. GOULSTON & STORRS PC 400 Atlantic Avenue Boston, MA 02110-3333 Telephone: (617) 482-1776 Facsimile: (617) 574-7579 E-mail: lfreiman@goulstonstorrs.com rzielinski@goulstonstorrs.com - and - James H. Hulme, Esq. Matthew M. Wright, Esq. ARENT FOX LLP 1717 K Street, NW Washington, DC 20036 Telephone: (202) 775-5767 E-mail: james.hulme@arentfox.com matthew.wright@arentfox.com Defendant-Appellee BRUCE A. SHEAR, Defendants DONALD E. ROBAR, DOUGLAS J. SMITH, HOWARD W. PHILLIPS, WILLIAM F. GRIECO, DAVID E. DANGERFIELD, ACADIA MERGER SUB, LLC, and ACADIA HEALTHCARE COMPANY, INC.., are represented by: Nadia Abdulhamid Patel, Esq. ARENT FOX LLP 1717 K Street, NW Washington, DC 20036 Telephone: (202) 857-6000 E-mail: nadia.patel@arentfox.com Defendants ACADIA HEALTHCARE COMPANY, INC., and ACADIA MERGER SUB, LLC, are represented by: Douglas S. Curran, Esq. KIRKLAND & ELLIS LLP 300 N LaSalle Street Chicago, IL 60654 Personal: 312-862-2596 E-mail: douglas.curran@kirkland.com Defendant ACADIA MERGER SUB, LLC, is represented by: Whitney L. Becker, Esq. KIRKLAND & ELLIS LLP 300 N LaSalle Street Chicago, IL 60654 Personal: 312-862-2596 E-mail: whitney.becker@kirkland.com PIGGLY WIGGLY: Court Partly Grants Bid to Dismiss ERISA Suit ------------------------------------------------------------ In the case captioned Dana Spires, et al., Plaintiffs, v. David R. Schools, et al., Defendants, Civil Action No. 2:16-616-RMG (D. S.C.), Judge Richard Mark Gergel of the U.S. District Court for the District of South Carolina, Charleston Division, granted in part and denied in part the Piggly Wiggly Defendants' motion to dismiss, and denied the Noteholder Defendants' motion to dismiss. The Plaintiffs are former employees of Piggly Wiggly Carolina Company, Inc. ("PWCC") or Greenbax Enterprises, Inc. ("Company") They are participants in the PWCC and Greenbax Employee Stock Ownership Plan and Trust ("Plan") and assert various claims under the Employee Retirement Income Security Act of 1974 ("ERISA"), for themselves and for others similarly situated. Defendants Robert G. Masche, William Edenfield, Joseph T. Newton, III, Burton R. Schools, and David R. Schools ("Fiduciary Defendants") allegedly controlled the Company's board of directors, were the Company's top executives, and controlled the "Plan Committee," which directed the voting of Company stock held by the Plan. The Plaintiffs also allege that the Fiduciary Defendants improperly moved assets from the Company to Defendants Joanne Newton Ayers and Marion Newton Schools ("Noteholder Defendants"), who allegedly are Company insiders or family members of Company insiders. The Plaintiffs allege Company management and directors eventually agreed to wind down the company and to sell substantially all the Company's remaining assets to C&S Wholesale Grocers, Inc. on Sept. 4, 2014. The sale and winding down was approved on Dec. 12, 2014. On Feb. 26, 2016, Plaintiffs filed the present putative class action, asserting six causes of action against the Defendants. In count one, they allege the Fiduciary Defendants breached their fiduciary duties under ERISA. In count two, they allege the Fiduciary Defendants breached their fiduciary duties under ERISA by failing to bring a derivative action against the Company's management and board of directors. In count three, the Plaintiffs allege co-fiduciary liability under 29 U.S.C. Section 1105 against the Fiduciary Defendants. In count four, they allege the Fiduciary Defendants engaged in transactions prohibited by 29 U.S.C. Section 1106. In count five, they seek equitable relief against all the Defendants. On June 20, 2016, the Piggly Wiggly Defendants (all Defendants other than the Noteholder Defendants) moved to dismiss the amended complaint. The Piggly Wiggly Defendants argue that the Plaintiffs' claims are time barred, that the actions the Plaintiffs complain of were corporate acts unrelated to the Plan, that the Plaintiffs fail to meet the pleading standard for a stock-drop claim set forth in Fifth Third Bancorp v. Dudenhoeffer, that Plaintiffs lack standing because they suffered no injury-in- fact, and that the Plaintiffs fail to allege prohibited transactions. The Noteholder Defendants moved to dismiss on June 23, 2016, arguing that the transaction Plaintiffs complain of did not involve the Plan or Plan assets, and that Defendant Joanne Newton Ayers is not a party-in-interest under ERISA. Judge Gergel denied the Piggly Wiggly Defendant's motion to dismiss as to the statute of limitations argument, without prejudice to their ability to argue a statute of limitations defense after discovery. When the "last action which constituted a part of the breach" occurred, when "the fiduciary could have cured the breach," whether the Defendants engaged in "fraud or concealment," and when "the Plaintiff had actual knowledge of the breach" are disputed questions of fact. He also denied the Piggly Wiggly Defendants' motion to dismiss as to the arguments raised in section IV.B of their memorandum in support of the motion. The Judge agrees with Judge Rebecca R. Pallmeyer's analysis and holds that the voting of shares held by an ESOP is the use or management of a Plan asset. He further denied the Piggly Wiggly Defendants' motion to dismiss as to the arguments raised in section IV.D.2 of their memorandum in support of the motion. He finds that the extensive allegations contained in its 83 pages and 288 numbered paragraphs are sufficient to state with requisite detail why a derivative action would have been successful -- i.e., that the persons in control of the corporation acted in a manner unfairly prejudicial to the Company and the Plan as stockholder, and that corporate assets were wasted. Judge Gergel granted the Piggly Wiggly Defendants' motion to dismiss as to paragraphs 254(c), 254(d), and 254(e) of the amended complaint. He says alleging that the Fiduciary Defendants should have found new directors to lead the Company may state a claim, but alleging that the Fiduciary Defendants should have found a new company (or other asset) for the ESOP to own cannot. He denied the Piggly Wiggly Defendants' motion to dismiss as to the argument that the Plaintiffs lack standing. He expresses no opinion on whether the Plaintiffs can prove causation, but they have certainly alleged it, even by the pleading standard the Piggly Wiggly Defendants propose. The Judge further denied the Piggly Wiggly Defendants' and Noteholder Defendants' motions to dismiss as to count five of the complaint. He finds that the Plaintiffs allege the Fiduciary Defendants engaged in or caused the Company to engage in violative transactions and that the Noteholder Defendants participated in those transactions knowledge that they violated ERISA. The Plaintiffs therefore state a claim under 29 U.S.C. Section 1132(a)(3) for equitable relief. Finally, because the Judge holds the Plaintiffs have stated a claim for an antecedent breach of fiduciary duty, he denied the motion to dismiss as to count three. The Piggly Wiggly Defendants' motion to dismiss count three (co-fiduciary liability) is premised on the purported failure to state a claim for an antecedent breach of fiduciary duty. For these reasons, Judge Gergel granted in part and denied in part the Piggly Wiggly Defendants' motion to dismiss. He dismissed the claims asserted in paragraphs 254(c), 254(d), and 254(e) of count one and the claims regarding above-market leases and excessive executive compensation asserted in count four of the complaint. He otherwise denied the Piggly Wiggly Defendants' motion to dismiss. He further denied the Noteholder Defendants' motion to dismiss. A full-text copy of the Court's Sept. 19, 2017 Order and Opinion is available at https://is.gd/j9eZbt from Leagle.com. Dana Spires, Plaintiff, represented by Alice W. Parham Casey -- tparham@wyche.com -- Wyche Law Office. Dana Spires, Plaintiff, represented by Christopher Braden Schoen - - cschoen@wyche.com -- Wyche Law Office, David J. Ko -- dko@kellerrohrback.com -- Keller Rohrback LLP, pro hac vice, Eric Bauman Amstutz -- eamstutz@wyche.com -- Wyche Law Office, Erin M. Riley -- eriley@kellerrohrback.com -- Keller Rohrback Law Office, pro hac vice, Gary A. Gotto -- ggotto@kellerrohrback.com -- Keller Rohrback, pro hac vice, Henry L. Parr, Jr. -- hparr@wyche.com -- Wyche Law Office, John C. Moylan, III -- jmoylan@wyche.com -- Wyche Law Office & Wade S. Kolb, III -- wkolb@wyche.com -- Wyche PA. Glenn Grant, Plaintiff, represented by Alice W. Parham Casey, Wyche Law Office, Christopher Braden Schoen, Wyche Law Office, David J. Ko, Keller Rohrback LLP, pro hac vice, Eric Bauman Amstutz, Wyche Law Office, Erin M. Riley, Keller Rohrback Law Office, pro hac vice, Gary A. Gotto, Keller Rohrback, pro hac vice, Henry L. Parr, Jr., Wyche Law Office, John C. Moylan, III, Wyche Law Office & Wade S. Kolb, III, Wyche PA. Tom Miranda, Plaintiff, represented by Christopher Braden Schoen, Wyche Law Office, David J. Ko, Keller Rohrback LLP, pro hac vice, Erin M. Riley, Keller Rohrback Law Office, pro hac vice, Gary A. Gotto, Keller Rohrback, pro hac vice, Henry L. Parr, Jr., Wyche Law Office & Alice W. Parham Casey, Wyche Law Office. Susan Mohle, Plaintiff, represented by Christopher Braden Schoen, Wyche Law Office, David J. Ko, Keller Rohrback LLP, pro hac vice, Erin M. Riley, Keller Rohrback Law Office, pro hac vice, Gary A. Gotto, Keller Rohrback, pro hac vice, Henry L. Parr, Jr., Wyche Law Office & Alice W. Parham Casey, Wyche Law Office. David R Schools, Defendant, represented by Andrew David Salek- Raham -- asalek@groom.com -- Groom Law Group, pro hac vice, Lars C. Golumbic -- lgolumbic@groom.com -- Groom Law Group, pro hac vice, Lovic A. Brooks, III -- lovic.brooks@janiklaw.com -- Brooks Law Firm, Mark L. Bieter -- mbieter@groom.com -- Groom Law Group, pro hac vice, Natasha S. Fedder -- nfedder@groom.com -- Groom Law Group, pro hac vice, Sarah M. Adams -- sadams@groom.com -- Groom Law Group, pro hac vice, Sean C. Abouchedid -- sabouchedid@groom.com -- Groom Law Group, pro hac vice, Steven G. Janik -- steven.janik@janiklaw.com -- Janik LLP & Monica B. Towle -- monica.towle@janiklaw.com -- Janik LLP. William A Edenfield, Jr, Defendant, represented by Andrew David Salek-Raham, Groom Law Group, pro hac vice, Lars C. Golumbic, Groom Law Group, pro hac vice, Lovic A. Brooks, III, Brooks Law Firm, Mark L. Bieter, Groom Law Group, pro hac vice, Natasha S. Fedder, Groom Law Group, pro hac vice, Sarah M. Adams, Groom Law Group, pro hac vice, Sean C. Abouchedid, Groom Law Group, pro hac vice, Steven G. Janik, Janik LLP & Monica B. Towle, Janik LLP. Robert G Masche, Defendant, represented by Andrew David Salek- Raham, Groom Law Group, pro hac vice, Lars C. Golumbic, Groom Law Group, pro hac vice, Lovic A. Brooks, III, Brooks Law Firm, Mark L. Bieter, Groom Law Group, pro hac vice, Natasha S. Fedder, Groom Law Group, pro hac vice, Sarah M. Adams, Groom Law Group, pro hac vice, Sean C. Abouchedid, Groom Law Group, pro hac vice, Steven G. Janik, Janik LLP & Monica B. Towle, Janik LLP. Joseph T Newton, III, Defendant, represented by Andrew David Salek-Raham, Groom Law Group, pro hac vice, Lars C. Golumbic, Groom Law Group, pro hac vice, Lovic A. Brooks, III, Brooks Law Firm, Mark L. Bieter, Groom Law Group, pro hac vice, Natasha S. Fedder, Groom Law Group, pro hac vice, Sarah M. Adams, Groom Law Group, pro hac vice, Sean C. Abouchedid, Groom Law Group, pro hac vice, Steven G. Janik, Janik LLP & Monica B. Towle, Janik LLP. Burton R Schools, Defendant, represented by Andrew David Salek- Raham, Groom Law Group, pro hac vice, Lars C. Golumbic, Groom Law Group, pro hac vice, Lovic A. Brooks, III, Brooks Law Firm, Mark L. Bieter, Groom Law Group, pro hac vice, Natasha S. Fedder, Groom Law Group, pro hac vice, Sarah M. Adams, Groom Law Group, pro hac vice, Sean C. Abouchedid, Groom Law Group, pro hac vice, Steven G. Janik, Janik LLP & Monica B. Towle, Janik LLP. Piggly Wiggly Carolina Company Inc & Greenbax Enterprises Inc Employee Stock Option Plan and Trust Plan Committee, Defendant, represented by Andrew David Salek-Raham, Groom Law Group, pro hac vice, Lars C. Golumbic, Groom Law Group, pro hac vice, Lovic A. Brooks, III, Brooks Law Firm, Mark L. Bieter, Groom Law Group, pro hac vice, Natasha S. Fedder, Groom Law Group, pro hac vice, Sarah M. Adams, Groom Law Group, pro hac vice, Sean C. Abouchedid, Groom Law Group, pro hac vice, Steven G. Janik, Janik LLP & Monica B. Towle, Janik LLP. Joanne Newton Ayers, Defendant, represented by Brian C. Duffy -- bduffy@duffyandyoung.com -- Duffy and Young. Marion Newton Schools, Defendant, represented by Brian C. Duffy, Duffy and Young. PPI, INC "Rosenberg" Suit Moved to Southern District of Florida --------------------------------------------------------------- The class action lawsuit titled Elizabeth Rosenberg, on behalf of themselves and all others similarly situated, the Plaintiff, v. PPI, Inc., doing business as: Isle Casino Racing Pompano Park, a Florida Corporation, the Defendant, Case No. CACE-17-015827, was removed on Sep.12, 2017 from 17th Judicial Circuit for Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft Lauderdale). The District Court Clerk assigned Case No. 0:17-cv-61784-RNS to the proceeding. The case is assigned to the Hon. Judge Robert N. Scola, Jr. Isle Casino Racing Pompano Park is located in Pompano Beach, Florida and is within easy driving distance from Miami, Ft. Lauderdale and the Treasure Coast.[BN] The Plaintiff is represented by: Chad Evan Levy, Esq. THE LAW OFFICES OF LEVY & LEVY, P.A. 1000 Sawgrass Corporate Parkway, Suite 588 Sunrise, FL 33323 Telephone: (954) 763 5722 Facsimile: (954) 763 5723 E-mail: chad@levylevylaw.com - and - David Mitchell Cozad, Esq. DAVID M. COZAD, ATTORNEY AT LAW, P.A. 1083 N. Collier Blvd., Unit 342 Marco Island, FL 34145 Telephone: (954) 816 5355 Facsimile: (321) 600 2083 The Defendant is represented by: David Axelman, Esq. BRYAN CAVE LLP Southeast Financial Center, Suite 400 200 South Biscayne Boulevard Miami, FL 33131 Telephone: (786) 322 7395 Facsimile: (786) 322 7495 E-mail: david.axelman@bryancave.com RECEIVABLE MANAGEMENT: Faces "Phillips" Suit in N.D. Georgia ------------------------------------------------------------ A class action lawsuit has been filed against Receivable Management Group, Inc. The case is captioned as Brittany Phillips, individually and on behalf of all others similarly situated, the Plaintiff, v. Receivable Management Group, Inc. and John Does 1- 25, the Defendant, Case No. 1:17-cv-03500-CAP-WEJ (N.D. Ga., Sep. 12, 2017). The case is assigned to the Hon. Judge Charles A. Pannell, Jr. The Defendant is a collection agency.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS ZELMAN, LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (845) 367 7146 Facsimile: (732) 298 6256 E-mail: yzelman@marcuszelman.com RESTAURANT DELIVERY: Court OK's FLSA Notice in "Roberson" --------------------------------------------------------- The United States District Court for the Middle District of Florida, Tampa Division, issued an Order and Judgment granting Plaintiff's Motion for Issuance of Notice Pursuant to Section 216(b) of Fair Labor Standards Act in the case captioned DAVID ROBERSON, Individually and on behalf of all other similarly situated individuals, Plaintiff, v. RESTAURANT DELIVERY DEVELOPERS, LLC d/b/a DOORSTEP DELIVERY, Defendant, Case No. 8:17- cv-769-T-33MAP (M.D. Fla.). Roberson worked as a driver for an entity doing business as Doorstep Delivery, using his own car to ferry food from restaurants to hungry people at their homes. Although, he wore a uniform and worked during set shifts, Doorstep Delivery classified Roberson as an independent contractor, an incorrect classification, Roberson says. He claims that other Doorstep Delivery drivers have also been wrongly classified as independent contractors and would be interested in joining his proposed FLSA collective action seeking overtime and minimum wages. But Restaurant Delivery claims Roberson has not sufficiently shown that it employed him or any other driver or that Restaurant Delivery is, in fact, Doorstep Delivery. The FLSA expressly permits collective actions against employers accused of violating the FLSA's mandatory overtime provisions. In prospective collective actions brought pursuant to Section 216(b), potential plaintiffs must affirmatively opt into the collective action. No employee will be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. In his Motion, Roberson argues that a similarly situated class of Doorstep Delivery drivers exists across the country and would be interested in joining the collective action. Roberson points outs that. three delivery drivers have already opted in to join the case and four have submitted affidavits, attesting that they have been subjected to a similar policy of being classified as an independent contractor for their delivery driver duties, not getting paid time-and-a-half for the hours that they work beyond forty each week, and not receiving minimum wage for all work weeks. The Court disagrees with Restaurant Delivery's assertion that granting the Motion would be futile as Restaurant Delivery Developers does not know the names or addresses of Doorstep Delivery drivers. Restaurant Delivery Developers presents no authority for the proposition that a motion for conditional certification may be denied on futility grounds. And there is reason to believe that Restaurant Delivery Developers has access to information regarding drivers' identities. Indeed, the Doorstep Delivery website lists the same four members of Restaurant Delivery Developers as the founders of Doorstep Delivery. And one member of Restaurant Delivery Developers, Daniel Sinor, remarks in his affidavit that through a family corporation, he had access to information on some aspects of the restaurant food delivery business" and was able to acquire a copy of Roberson's contract with another company. Therefore, a court-approved notice will be sent to Doorstep delivery drivers. What remains to be determined is the form that notice will take. Roberson proposes to send the notice to drivers nationwide who have worked for Doorstep Delivery three years before this action was initiated. Restaurant Delivery Developers raises no objections in its response to the proposed scope of the class or the proposed notice. But the Court does not approve the sending of follow-up communications by Roberson's counsel to potential opt-in plaintiffs. The Court determines that it is not necessary to send any class members reminder post cards. Sending a putative class member notice of this action is informative, sending them a reminder is redundant. Restaurant Delivery Developers is directed to provide a list of the potential opt-in plaintiffs' names, last-known mailing addresses, last-known telephone numbers, email addresses, work locations and dates of employment to Roberson's counsel. If Restaurant Delivery Developers is unable to provide these information, Roberson may move to distribute the notice by different means, like posting notice on the Doorstep Delivery website. A full-text copy of the District Court's September 18, 2017 Order and Judgment is available at http://tinyurl.com/ybcot74ofrom Leagle.com. David Roberson, Plaintiff, represented by Eric Jacob Lindstrom -- elindstrom@eganlev.com -- Egan, Lev & Siwica, PA. David Roberson, Plaintiff, represented by Shannon E. Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, PC & Thomas Fowler -- tfowler@llrlaw.com -- Lichten & Liss-Riordan, PC, pro hac vice. Restaurant Delivery Developers, LLC, Defendant, represented by Steven Greg Wenzel, Wenzel Fenton Cabassa, PA, 1110 N Florida Ave Tampa, FL 33602. SFBSC MANAGEMENT: Some Class Members Object to Wage Settlement -------------------------------------------------------------- Gordon Gibb, writing for California Labor News, reports that a California wage and hour lawsuit alleging exotic dancers toiling in the Bay area were underpaid, has been settled after a US District Court Judge earlier in September granted her approval to the $5 million settlement. However, the settlement was not without its detractors, including some members of the class who formally objected to the settlement, characterizing it as 'a pittance.' The wage & hour lawsuit is Roe et al. v. SFBSC Management LLC et al., Case No. 14-cv-03616, in the US District Court for the Northern District of California. The lawsuit was launched as a putative class action in August, 2014 by a collective of dancers alleging wage and hour violations against SFBSC Management LLC, an enterprise managing strip clubs in the Bay area of San Francisco. Plaintiffs accuse SFBSC of improperly classifying dancers as independent contractors, thus cheating them out of fair wages and overtime that would otherwise be their due as bone fide employees of SFBSC. One of the class representatives in the wage & hour lawsuit appeared before US Magistrate Judge Laurel Beeler to express her concern with the settlement. "I'm here in part because I do think [the settlement is] unfair to dancers who don't know their options, and I'm one of the few who does, and I think it's a responsibility of people with more privilege to speak up," said dancer Poohrawn Mehraban, who identified herself as a student at UC Berkeley and a stripper for about four years. "We're an easily exploited demographic. Most of us are young and largely uneducated . . . " Ms. Mehraban, who filed her own lawsuit September 12 with the help of her wage & hour lawyer, appeared before Judge Beeler two days later, on September 14. "My largest concern is that this would set precedent for dancers who don't bring cases to court, and for the community, this will just confirm that the rumors are true: the law is never on your side." Ms. Mehraban also suggested that prior to becoming involved in the wage & hour lawsuit, she had heard from other dancers having brought wage & hour claims, and had been told that "it wasn't worth it." As noted above, two days prior to her appearance before Magistrate Beeler, Ms. Mehraban filed her own lawsuit against Gold Club SF LLC, alleging that she had been let go from her job due to her participation in the putative class action. That case is Mehraban v. Gold Club SF LLC, Case No. 3:17-cv-05288, in the US District Court for the Northern District of California. The proposed settlement, according to Ms. Mehraban's wage and hour lawyer, contains various provisions and would also provide class participants with up to $800 in relief. However attorney Shannon Liss-Riordan of Lichten & Liss-Riordan PC, characterized the settlement, on behalf of Ms. Mehraban and other objectors to the settlement, as inadequate -- estimating dancers at two, of the nine clubs named in the suit should be entitled to $40 million in damages, thus damages for the entire proposed class would likely exceed $100 million. The objectors also noted that some dancers have historically received larger payouts after their claims were individually arbitrated (ironically, SFBSC had put forward a motion to compel arbitration, but the motion was denied on grounds of unconscionability). Objectors also cited multiple deals in various other jurisdictions that succeeded in resolutions that saw class members who were also exotic dancers receive upwards of $17,000 each in restitution. Undaunted by the objectors' positions, Beeler approved the $5 million wage & hour settlement, for which the parties involved filed motions for preliminary approval this past March. The settlement provides up to $2 million in cash payments for hours worked by 4,681 dancers, $1 million for an alternate "dance fee payment" compensation program that pays a per-performance cost, and fees for plaintiffs' attorneys that are to be capped at $1 million. As part of the settlement, the defendants agreed to change their business practices so that dancers can opt to be either employees or independent professional entertainers, according to their own choosing. Dancers who opt in to the putative class action agree to release any wage and hour claims brought under the Fair Labor Standards Act. The defendants in two more recent cases were added, back in March, when the plaintiffs in the putative class action wage & hour lawsuit amended their complaint to include the nightclubs named in the most recent lawsuits. Those cases, as reported by Law 360 (09/14/17) are Hughes v. S.A.W. Entertainment Ltd., Case No. 3:16-cv-03371, and Pera et al. v. Saw Entertainment Ltd., Case No. 3:17-cv-00138, in the US District Court for the Northern District of California. [GN] RON HILL: Court Denies Bid to Treat as Class Action --------------------------------------------------- The United States District Court for the Northern District of Florida, Pensacola Division, issued an order denying Plaintiff's Motions for Ex-Parte Treat as a Class Action and Preliminary Injunction in the case captioned KEVIN FOSTER-BEY, Plaintiff, v. RON HILL, et al, Defendants, Case No. 3:16cv629-LC-CJK (N.D. Fla.). This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). No objections have been filed. Having considered the Report and Recommendation, the Court has determined that the Report and Recommendation should be adopted. Plaintiff's Ex Parte Motion to Treat as a Class Action is denied. Plaintiff's Motion for Preliminary Injunction is denied. A full-text copy of the District Court's September 18, 2017 Order is available http://tinyurl.com/y7an226tfrom Leagle.com. KEVIN FOSTER-BEY, Plaintiff, Pro Se. ROYAL BANK: Freddie Mac Appeals Decision in N.J. Carpenters Suit ---------------------------------------------------------------- Federal Home Loan Mortgage Corporation filed an appeal from a District Court order dated September 14, 2017, in the lawsuit styled New Jersey Carpenters Health Fund v. The Royal Bank of Scotland Group PLC, et al., Case No. 08-cv-5310, in the U.S. District Court for the Southern District of New York (New York City). The appellate case is captioned as New Jersey Carpenters Health Fund v. The Royal Bank of Scotland Group PLC, et al., Case No. 17- 2859, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellee New Jersey Carpenters Health Fund, on Behalf of Itself and All Others Similarly Situated, is represented by: Christopher Lometti, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 88 Pine Street New York, NY 10005 Telephone: (212) 838-7797 Facsimile: (212) 838-7745 E-mail: clometti@cohenmilstein.com Appellant Federal Home Loan Mortgage Corporation is represented by: Christopher P. Johnson, Esq. MCKOOL SMITH, PC 1 Bryant Park New York, NY 10036 Telephone: (212) 402-9400 E-mail: cpjohnson@mckoolsmith.com Defendants-Appellees The Royal Bank of Scotland Group PLC and Greenwich Capital Holdings, Inc., are represented by: James Gaal Gamble, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 E-mail: jgamble@stblaw.com Defendants-Appellees Greenwich Capital Markets, Inc., DBA RBS Greenwich Capital, Deutsche Bank Securities Incorporated, RBS Securities Inc., and Wells Fargo Advisors, LLC, FKA Wachovia Securities, LLC, are represented by: Alan C. Turner, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2472 E-mail: aturner@stblaw.com Defendants-Appellees NovaStar Mortgage Funding Trust, Series 2006- 3; NovaStar Mortgage Funding Trust, Series 2006-4; NovaStar Mortgage Funding Trust, Series 2006-5; NovaStar Mortgage Funding Trust, Series 2006-6; Novastar Mortgage Funding Corporation; Hartman Gregory S. Metz; W. Lance Anderson; Scott F. Hartman; Novastar Mortgage Incorporated and Gregory S. Metz are represented by: Steven J. Fink, Esq. LAW OFFICE OF STEVEN J. FINK PLLC 81 Main Street White Plains, NY 10005 Telephone: (646) 802-6976 E-mail: steven.fink@sjfinkpllc.com Defendants-Appellees NovaStar Mortgage Funding Trust, Series 2007- 1; NovaStar Mortgage Funding Trust, Series 2007-2; and Mark A. Herpich are represented by: William F. Alderman, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105 Telephone: (415) 773-5944 E-mail: walderman@orrick.com SEPHORA USA: Court Dismisses State Law Claims in "Duran" -------------------------------------------------------- The United States District Court for the Northern District of California issued an Order dismissing state law claims in the case captioned JESSICA DURAN, Plaintiff, v. SEPHORA USA, INC., Defendant, Case No. 17-cv-01261-WHO (N.D. Cal.). Sephora requested that the Court decline to exercise supplemental jurisdiction over the state claims, because the state law claims predominate over the Fair Labor Standard Act claim and because exceptional circumstances exist in that there are three other consolidated class actions pending in California state court that assert overlapping state law claims. In her Third Amended Complaint, plaintiff Jessica Duran alleges six causes of action against Sephora. Of those causes of action, five are state claims and only one, her FLSA claim, is federal. Duran asserts the following state law wage and hour claims: (i) failure to pay wages based on failure to pay overtime or double- time in accordance with California law, failure to include non- discretionary bonuses in the calculation of the overtime rate, and failure to pay wages within 72 hours after termination; (ii) Unfair Competition under Bus. & Prof. Code Section 17200; (iii) violation of California Labor Code Section 226 (based on failure to provide accurate wage statements); (iv) violation of California Labor Code Section 212 based on failure to provide a negotiable check; and (v) a claim for civil penalties under California's Private Attorneys General Act (PAGA). 28 U.S.C Section 1367(a) provides that in any civil action of which the district courts have original jurisdiction, the district courts have supplemental jurisdiction over all other claims that are so related to claims in the action within the original jurisdiction that they form part of the same case or controversy. A state law claim is part of the same case or controversy when it shares a 'common nucleus of operative fact' with the federal claims and the state and federal claims would normally be tried together. State Law Claims Substantially Predominate Over Federal FLSA Claim State law claims substantially predominate over federal claims when litigating the state claims in federal court can be seen as allowing a federal tail to wag what in substance is a state dog. Allen v. Cty. of Monterey, No. C-06-07293 RMW, 2007 WL 3070973. Duran has five separate state law claims for failure to pay wages owed, violation of Section 17200, violation of California Labor Code Sections 226 and 212, and civil penalties under PAGA. The one federal cause of action is a violation of FLSA, and that claim is specifically tied to the same conduct that forms part of the basis of Duran's state law claim for failure to pay wages owed. Duran bases her FLSA claim on Sephora's failure to include employees' non-discretionary bonuses in the calculation of the overtime hourly rates. Duran's first cause of action under California law for failure to pay wages owed also relies on this same allegation; failure to include non-discretionary bonuses in calculating base overtime rate. The overlap between the one federal claim and one of her five state claims is high. Moreover, the one state claim for failure to pay wages owed not only covers all portions of her FLSA claim, but adds other more extensive allegations of failure to pay wages including not being paid the correct hourly wage, not having overtime or double time paid for all hours worked, and no payment within 72 hours of termination. Given the significant overlap between pending cases, the lack of prejudice to plaintiff, and the resulting judicial efficiencies, the predominance of the state law claims counsels strongly in favor of declining supplemental jurisdiction in this case. Other Compelling Reasons for Declining Jurisdiction Under this subsection of Section 1367(c), supplemental jurisdiction may be declined where exceptional circumstances" exist that provide other compelling reasons. Here, the circumstances are exceptional. There are three cases in state court that have similar claims that have been coordinated, and Judge Karnow is aware of and willing to accommodate Duran's state law claims in those proceedings. It makes the most sense for all state law overtime claims to be litigated in one forum. This will achieve significant judicial economies and allow an orderly determination of whether and how Sephora failed to pay overtime at the correct rate. There is also no unfairness to Duran, given Judge Karnow's willingness to modify the case schedule to allow her claims to be fully litigated there. Duran's state law claims predominate over the federal claim. Exceptional circumstances also exist. The Court declines to exercise supplemental jurisdiction over Duran's state law claims; those claims are dismissed without prejudice. A full-text copy of the District Court's September 18, 2017 Order is available at http://tinyurl.com/y7auadrefrom Leagle.com. Jessica Duran, Plaintiff, represented by Alejandro Pedro Gutierrez, HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISMAN & GUTIERREZ APC, Hathaway Building, 5450 Telegraph Road, #200 Ventura, CA 93003 Jessica Duran, Plaintiff, represented by Brian Daniel Hefelfinger -- bdh@calemploymentcounsel.com -- Palay & Hefelfinger, APC & Daniel Jay Palay -- djp@calemploymentcounsel.com -- Palay Law Firm. Sephora USA, Inc., Defendant, represented by Andrew Ralston Livingston -- alivingston@orrick.com -- Orrick Herrington & Sutcliffe LLP, Alexandra Elena Heifetz, Orrick Herrington Sutcliffe LLP, 405 Howard St., San Francisco, CA 94105 & Alexandra H. Stathopoulos, Orrick Herrington Sutcliffe LLP. SO. CAL PETROLEUM: "Rosales" Suit Moved to C.D. California ---------------------------------------------------------- The class action lawsuit titled David Rosales, on behalf of himself, and all others similarly situated, the Plaintiff, v. So. Cal Petroleum Transport, Inc., doing business as: Superior Tank Lines, a California corporation, and Does 1 through 50, inclusive, the Defendant, Case No. BC667537, was removed on Sep.12, 2017 from the Los Angeles Superior Court, to the U.S. District Court for Central District of California (Western Division - Los Angeles). The District Court Clerk assigned Case No. 2:17-cv-06789-JAK-PLA to the proceeding. The case is assigned to the Hon. Judge John A. Kronstadt. So. Cal Petroleum supplies refined petroleum products, gasoline, diesel, and ethanol.[BN] The Plaintiff is represented by: David G Spivak, Esq. Caroline Tahmassian Zarneh, Esq. SPIVAK LAW FIRM 16530 Ventura Boulevard Suite 312 Encino, CA 91436 Telephone: (818) 582 3086 Facsimile: (818) 582 2561 E-mail: david@spivaklaw.com caroline@spivaklaw.com The Defendant is represented by: Sean A O'Brien, Esq. Amy R Patton, Esq. PAYNE AND FEARS LLP 4 Park Plaza Suite 1100 Irvine, CA 92614 Telephone: (949) 851 1100 Facsimile: (949) 851 1212 E-mail: sao@paynefears.com arp@paynefears.com SOUTH CAROLINA: Ridgeland Inmates' Claims Separated for Review -------------------------------------------------------------- In the case captioned Randy Mast, #338517; Thomas Caron, #370853; William Taylor, #306746; Shawn Pearson, #200290; Byron Pou, #350729; Isaac Bradley, #315370; Tony Middleton, #3666657; Jeffery Bethea, #340959; Samuel Taylor, #366299; Julius Manigault, #362635; James Hailey, #363373; M. Williams, #357023; J. Perry, #357361; and L. Thomas, #339893, Plaintiffs, v. Ridgeland Correctional Institution, et al., Defendant, C/A No. 1:17-2038- MBS-SVH (D.S.C.), Plaintiffs seek to file a class action lawsuit pursuant to 42 U.S.C. Section 1983. This complaint is filed by fifteen pro se inmates incarcerated at Ridgeland Correctional Institution, a facility of the South Carolina Department of Corrections (SCDC). Plaintiffs filed the within complaint concerning the living conditions of the cells at Ridgeland Correctional, inside of RH which is considered the lock up unit. The United States Court of Appeals for the Fourth Circuit has held that pro se prisoners cannot bring a class action lawsuit. The competence of a layman representing himself is clearly too limited to allow him to risk the rights of others. Holding that a pro se prisoner's suit is confined to redress for violation of his own personal rights and not one by him as a knight-errant for all prisoners. While this Circuit has not ruled on the issue of whether multiple prisoner plaintiffs are allowed to join under Rule 20 of the Federal Rules of Civil Procedure, or the issue of fee payment in a case filed by multiple prisoners, the United States Court of Appeals for the Eleventh Circuit addressed these issues in Hubbard v. Haley, 262 F.3d 1194, 1198 (11th Cir. 2001), and found that prisoners may not join in one action. The Hubbard court reasoned that, because the plain language of the Prison Litigation Reform Act (PLRA), requires each prisoner proceeding in forma pauperis to pay the full filing fee, it was appropriate to sever the claims and require each prisoner to file a separate lawsuit. Hubbard, 262 F.3d at 1198. Even in light of more flexible holdings in other circuits regarding permissive joinder of multiple prisoner plaintiffs. Accordingly, the United States District Court for the District of South Carolina concludes that the claims of the 15 Plaintiffs should be separated for initial review. A full-text copy of the District Court's September 18, 2017 Order is available at http://tinyurl.com/y92ohuo5from Leagle.com. Randy Mast, Inmates of Ridgeland Correctional Institution, Plaintiff, Pro Se SOUTHGOBI RESOURCES: Provides Update on Ontario Class Action ------------------------------------------------------------ SouthGobi Resources Ltd. (TSX:SGQ)(HKSE:1878) ("SouthGobi" or the "Company") announces the September 18, 2017 decision of the Ontario Court of Appeal, which dismissed the Company's appeal of the original Ontario lower court decision to permit the plaintiff to commence and proceed with a class action (the "Class Action") against the Company claiming damages under the Ontario Securities Act in connection with the Company's restatement of certain financial statements previously disclosed in the Company's public fillings (the "Restatement"). Concurrently, the Ontario Court of Appeal allowed the plaintiff's appeal of the original Ontario lower court decision to dismiss the plaintiff's leave motion against certain of the Company's former officers and directors and made an order granting leave for the plaintiff to proceed against such former officers and directors of the Company in relation to the Restatement. As a result, the plaintiff is now permitted to proceed with the Class Action against both the Company and the former officers and directors of the Company. The Company intends to seek leave to appeal to the Supreme Court of Canada. The Company firmly believes that it has a strong defence and will continue to vigorously defend itself against the Class Action through independent Canadian litigation counsel retained by the Company for this purpose. The Company confirms that it carries Directors and Officers Liability Insurance which is responsive to the Class Action as against both the Company and the former officers and directors of the Company. For more details in respect of the Class Action lawsuit, please refer to the Company's Management's Discussion and Analysis for the quarter ended June 30, 2017, and, in particular, the sub- section on "Class Action Lawsuit" of the "Regulatory Issues and Contingencies" available on the SEDAR website at www.sedar.com and the website of the Hong Kong Stock Exchange at www.hkexnews.hk. About SouthGobi SouthGobi, listed on the Toronto and Hong Kong stock exchanges, owns and operates its flagship Ovoot Tolgoi coal mine in Mongolia. It also holds the mining licences of its other metallurgical and thermal coal deposits in South Gobi Region of Mongolia. SouthGobi produces and sells coal to customers in China. [GN] ST. LOUIS, MO: ACLU Files Suit Over Civil Rights Violations ----------------------------------------------------------- Sarah Fenske, writing for River Front Times, reports that the ACLU of Missouri has filed a class action lawsuit against the city of St. Louis on behalf of protesters -- alleging the city has retaliated against them for expressing their right to free speech, unreasonably seized them, applied undue force and violated their due process rights with methods including "kettling," gassing them and spraying them without fair warning. The lawsuit was filed in federal court on behalf of lead plaintiffs Maleeha Ahmad and Alison Dreith, who was also pepper- sprayed at the downtown protest. Dreith is also executive director of NARAL Pro-Choice Missouri. Both Dreith and Ahmad were protesting downtown on the afternoon of Friday, September 15. That was just hours after the announcement that former St. Louis police officer Jason Stockley had been found not guilty of murder -- and well before any of the damage that would result later in the weekend following the end of organized protests. Neither has been charged with any crime. "I think everyone deserves the same rights as I do. I just want peace and justice," Ahmad said in a prepared statement. "If it hadn't been for my fellow peaceful protestors -- strangers who came to my aid -- I don't know how my eyesight would be today. I would have been left out in the sun, on the ground, with my face burning." "St. Louis should be a place where all people feel safe against retaliation from law enforcement, and all should receive due process," Dreith said in a statement. "We should strive to be a place where every citizen feels supported by the communities we call home. This is the vision that drives us into the streets and inspires us to hold our leaders accountable when they betray our values." Because it's a class action suit, the ACLU action seeks to represent all others who similarly had their constitutional rights violated during the protests. On both September 22 and on September 17, the ACLU alleges, protesters and bystanders had chemical weapons used against them without proper protocol. The suit also alleges that officers interfered with people lawfully recording them. And, the suit alleges, claims police officers surrounded protesters -- a tactic called kettling -- and pepper sprayed them in the face, even pulling off their goggles to ensure a direct hit. "While long shifts and being the subject of the protest is understandably challenging for police, that is no excuse for violating the Constitution," Tony Rothert, legal director of the ACLU of Missouri, said in a statement. [GN] STARBUCKS CORP: Court Denies Bid to Stay Discovery in FCRA Suit --------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued an Order denying Defendant' Motion for Protective Order Staying Discovery in the case captioned JONATHAN SANTIAGO ROSARIO, individually and on behalf of all others similarly situated, Plaintiff, v. STARBUCKS CORPORATION, Defendant, No. 2:16-cv-01951 RAJ (W.D. Wash.). Plaintiff Jonathan Santiago Rosario brings a putative class action alleging that Defendant Starbucks Corporation violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. Section 1681b(b)(3), in relation to its use of pre-employment background checks. Starbucks filed a motion to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 23(d)(1)(D). The parties stipulated to an extension of all discovery deadlines for a period of 91 days. Plaintiff served Starbucks with interrogatories, requests for production, and a notice of intent to serve a subpoena on a third party, Accurate Background, LLC. A district court has discretion under Federal Rule of Civil Procedure 26(c) to limit discovery for good cause to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Starbucks argues that a stay of discovery pending resolution of its Motion to Dismiss is warranted because Plaintiff is unable to state a claim for relief. While the Court has discretion to issue a protective order to that effect, a motion to dismiss alone, is not a ground for staying discovery. By filing this Motion on the basis of its belief that its motion to dismiss will dispose of Plaintiff's claim, Starbucks essentially seeks a ruling on its motion to dismiss. The party that objects to the requested discovery carries a heavy burden of showing why discovery was denied. Starbucks argues that a stay would free the parties from the burden and expense of unnecessary discovery, but offers no other reason why discovery should be delayed. At this stage in the proceedings, the Court is not convinced that Plaintiff will be unable to state a claim for relief. Starbucks has not met its burden to show that there is good cause for this Court to issue a protective order staying discovery. For these reasons, the Court denies Defendant's Motion for Protective Order Staying Discovery. A full-text copy of the District Court's September 18, 2017 Order is available http://tinyurl.com/y8ne4u4sfrom Leagle.com. Jonathan Santiago Rosario, Plaintiff, represented by James A. Francis, FRANCIS & MAILMAN PC, pro hac vice. Jonathan Santiago Rosario, Plaintiff, represented by John Soumilas, FRANCIS & MAILMAN PC, pro hac vice, Lauren K.W. Brennan, FRANCIS & MAILMAN PC, pro hac vice, Erika L. Nusser, TERRELL MARSHALL LAW GROUP PLLC & Beth E. Terrell, TERRELL MARSHALL LAW GROUP PLLC. Starbucks Corporation, Defendant, represented by James E. Howard, DAVIS WRIGHT TREMAINE. TD BANK: Pays Compensation for Shortchanging Customers ------------------------------------------------------ Colin Woodard, writing for Press Herald, reports TD Bank customers in Maine and around the country saw the shiny "Penny Arcade" coin counting machines unplugged, covered up and eventually carried away from the lobbies of their local branches last summer. In recent weeks, they've received cards in the mail hinting at why: a notice that they were eligible members of a class action settlement against the bank over the Penny Arcades, which had allegedly been shortchanging customers for years. The problem with the festive machines was first uncovered by NBC television's "Today" show, which in April 2016 tested machines at five New York City TD Bank branches and found all of them were undercounting, some by a penny or two on the dollar, one by 15 percent. "Today" also tested rival Coinstar machines and found those to be completely accurate. Before the segment even aired, the Toronto-based bank -- whose U.S. subsidiary is headquartered in New Jersey -- announced it was pulling all Penny Arcades from service to be evaluated. They never returned to operation. That's in part because of a class action lawsuit filed shortly thereafter at a federal court in New Jersey by attorney Stephen DeNittis, who already had notoriety for his role as co-lead counsel in a class action suit against Subway alleging its footlong subs were shorter than advertised. The settlement he helped negotiate with Subway was thrown out by a federal appeals court on Aug. 25 after the judge deemed it was "no better than a racket" because it benefited only the plaintiff's attorneys, who would have collected $525,000. The Penny Arcade settlement, however, has proved enduring and awards $7.5 million to people who used the machines between April 11, 2010, and July 12, 2017. The attorneys received $1.9 million and plaintiffs named in the suit $65,000. TD Bank's New Jersey-based spokesman, Matthew Doherty, declined to discuss the settlement or what went wrong with the Penny Arcades. "We don't comment on litigation," he said by email. DeNittis did not respond to interview requests. The class action payments will be made automatically to those who were TD Bank account holders at the time, but non-customers who used the Penny Arcades have to submit a claim form online (at www.pennyarcadesettlement.com) by Oct. 27. Most claimants will receive a refund of 0.26 percent of their Penny Arcade transactions during the period, likely a dollar or less for a casual user or a child cashing out a piggy bank. The original suit alleged TD Bank's machines "continuously undercounted coins placed in them by consumers for years and resulted in the loss of millions of dollars for consumers." TD Bank subsequently tested more than 1,000 Penny Arcades twice and found net undercounts of between 0.117 percent and 0.090 percent, according to court documents. TD purchased Portland-based Banknorth in 2008, and it began introducing the Penny Arcades throughout Maine. The counting machines were free for bank customers, but an 8 percent fee was levied on non-customers. [GN] TEMPLE TERRACE, FL: Certification of Rental Housing Class Denied ---------------------------------------------------------------- In the case captioned LEA FAMILY PARTNERSHIP Ltd., a Florida Limited Partnership, on behalf of itself and others similarly situated Plaintiff, v. CITY OF TEMPLE TERRACE, FLORIDA, and LEN VALENTI, in his official capacity as "Housing Compliance Officer" and individually, Defendant, Case No. 8:16-cv-3463-T-30AAS (M.D. Fla.), Jduge James S. Moody, Jr. of the U.S. District Court for the Middle District of Florida, Tampa Division, denied the Plaintiff's Motion for Class Certification. The root of the Plaintiff's lawsuit is that the City of Temple Terrace's Rental Housing Program is unconstitutional. The Program requires that dwelling owners complete a permit application before leasing their units. The application states that by applying for a permit, the property owner consents to the periodic inspections of the dwelling unit for violations of the minimum housing code and other related codes at any reasonable time. Failure to complete the application precludes owners from leasing their units. Thus, the Plaintiff argues, the Program "coerces" consent to inspections from owners who wish to lease their dwellings. The Plaintiff owns and rents at least six dwellings in the City of Temple Terrace. It alleges that at least three of its dwellings were inspected by the City one or more times, and that it did not voluntarily and knowingly consent to any of the inspections. The Plaintiff alleges that it has paid a total of at least $3,800 in application fees to the City since the Program began. In the Plaintiff's Motion, the Plaintiff claims that the City has "coerced" consent from potentially thousands of people by requiring all owners interested in leasing their dwellings to submit the requisite application that provides consent to inspect the dwellings. It moves to certify the class under Federal Rule of Civil Procedure 23 described as all owners of residential dwellings located within the City of Temple Terrace: (i) whose dwelling was subject to the City's Program; (ii) who submitted an initial application for the City's Rental Housing Ordinance Program at any time during the Class Period for such dwelling; (iii) who paid an initial fee to the City of Temple Terrace with their Rental Housing Ordinance Program application; and, (iv) whose dwelling was unoccupied at the time of the initial inspection performed by the City. To define its class, the Plaintiff relies on records from the City's computer software programs used to record information associated with the Program: ZOLL and SunGard NaviLine. These programs record information such as unit owners and addresses, the amount paid for a permit application, whether an inspection has taken place, and other information. Judge Moody finds that the Plaintiff cannot meet the two elements of Rule 23, ascertainability and numerosity, given the data the it has collected. At this point, the Plaintiff has not provided the Court with an administratively feasible means for determining which units were unoccupied during initial inspection after owners applied for a permit application to lease the units. It also has not provided the Court with evidence that other owners of dwellings subject to the Program had units that were unoccupied during the initial inspection. Accordingly, the Judge concludes that the Plaintiffs' Motion for Class Action Certification must be denied. Accordingly, Judge Moody denied the Plaintiff's Motion for Class Certification. The parties have 90 days from the date of the Order to conduct discovery on the issue of whether the City's records, including the two computer software programs used for enforcement of the Program, record whether a dwelling is unoccupied during initial inspection. Upon expiration of the 90 days, the Plaintiff may refile its Motion for Class Certification if it can present further evidence on the issues of ascertainability and numerosity. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/puOp38 from Leagle.com. Lea Family Partnership Ltd., Plaintiff, represented by Christa L. Collins -- clc@harmonwoodslaw.com -- Harmon Woods Parker & Abrunzo, P.A.. Lea Family Partnership Ltd., Plaintiff, represented by J. Andrew Meyer -- andrew@jandrewmeyer.com -- J. Andrew Meyer, P.A. & Jack Light Townsend, Sr. -- info@jacktownsend.com -- Law Office of Jack L. Townsend, Sr, PA. City of Temple Terrace, Florida, Defendant, represented by Donovan Adam Roper -- ddayes@roperandroper.com -- Roper & Roper, PA. TENNESSEE: Class Suit Filed Over Drivers' License Suspensions ------------------------------------------------------------- Fox 13 reports that a federal class action lawsuit has been filed challenging Tennessee's suspension of more than a quarter of a million driver's licenses of people, because they could not afford to pay traffic tickets. The lawsuit was filed by attorneys for the Civil Rights Corps, the National Center for Law and Economic Justice, Just City, and the law firm Baker Donelson Bearman Caldwell & Berkowitz. The lawsuit claims the suspensions prevent Tennesseans from getting jobs, health care, child care, etc. "The suspensions also raise profound racial justice concerns," the lawsuit claims, saying African-American drivers are four times more likely to lose their licenses for nonpayment of traffic tickets than white drivers. The lawsuit was brought in the United States District Court for the Middle District of Tennessee at Nashville against the Commissioner of the Tennessee Department of Safety, Rutherford and Wilson counties and their court clerks, and Mt. Juliet and Lebanon, Tennessee and their clerks. In Shelby County, FOX13 learned 85 percent of people who have their licenses taken away are African American. If you are a black person, you are seven times more likely to have your license suspended. Cedrick Price lives in Memphis and is a part of a shocking statistic. Price said, "I can't get my license back." He cannot afford to pay his speeding ticket, and according to information we received from Just City Memphis, failure to pay fines for suspended licenses affects far more African Americans. Josh Spickler, Executive Director for Just City, said, "A large number of the suspensions of driver's license is in the state have been of people who can't afford it and simply can't afford the reinstatement fees in the exorbitant court costs and fines that have been levied against them." According to Just City, between 2012 and 2016, black drivers were nearly four times more likely to have their license suspended across Tennessee. Spickler said the numbers are even higher here. "It disproportionately affects people of color." Spickler said, "This keeps people from working, keeps people from getting healthcare, keeps people from getting their kids to school." Price said he feels the pain and is still currently trying to find the money to pay his hefty fines. He also finds public transportation is his only option. [GN] TIM HORTON: Franchisor Accuses Board Members of Leaking Data ------------------------------------------------------------ Janet Sparks, writing for Blue Maumau, reports Tim Horton franchisees are once again preparing themselves for a court battle against their franchisor, all in the effort to maintain store profitability in Canada, and, now, also in the United States. Restaurant Brands International threw a new obstacle in the franchisees' pathway, publicly accusing them of leaking confidential corporate information to a Canadian news journal. Since Restaurant Brands International acquired Tim Hortons coffee and doughnut chain in 2014, franchisees have found themselves fighting against the direction the corporation is taking with its management team, prompting them to file a purported class action lawsuit. The Great White North Franchisee Association (GWNFA) stated on September 22 that their board members have been served with notices of default in relation to The Globe and Mail News article dated September 15, 2017. Jon Domanko, head of legal in Tim Hortons' subsidiary TDL Group Corp., affirmed that all GWNFA board members had been served. The association website posted, "It is alleged that Board Members have directed, authorized and/or permitted the provision of confidential information to Don Schroeder [former CEO of Tim Hortons] who in turn communicated confidential information to The Globe and Mail. That is false and we know of no facts to support it." A report in Owens Sounds Sun Times confirmed that. Domanko said he never received confidential data from the franchisee association, nor did he disclose any confidential information regarding Tim Hortons. In the article, correspondence from Schroeder is quoted in the Globe and Mail September 15 report about franchisees asking corporate for price increases to offset upcoming minimum wage price hikes in Ontario and Alberta. GWNFA said that in its view, the sole purpose of the notices of default is to continue the pattern of conduct of TDL "to intimidate GWNFA and the efforts of the franchisees to associate in order to advance their interests consistent with their rights under the Arthur Wishart Act." It further states that in doing so, TDL is actively and in bad faith interfering with franchisees' right to associate and directly or indirectly penalizing or threatening franchisees who choose to associate. "That pattern of conduct will no longer be tolerated and we are in the process of directing our counsel, Himelfarb Proszanski, to take appropriate legal action to restrain such conduct including a claim seeking damages." The Globe and Mail News reported last June that there was discontent among Tim Hortons franchisees over Restaurant Brands International's efficiency drive to spread south of the Canadian border, and RBI felt the friction was posing a threat to the chain's plans for significant expansion in the United States. Franchisees also voiced their opinion that their franchisor was pushing some expenses to store owners and, in some cases, modifying products and operations to save money or boost corporate profit margins. As a result, The Great White North Franchisee Association was formed last March, and has now set up a U.S. division to provide Tim Horton store owners there with a way to voice their concerns "about the increasing mismanagement" of the chain's operations. Restaurant Brands International (QSR.TO) proclaims it is one of the world's largest quick service restaurant companies with more than $28 billion in system-wide sales and over 23,000 restaurants in more than 100 countries and U.S. territories. Restaurant Brands was formed in 2014 when 3G Capital-backed Burger King acquired Tim Hortons for $11 billion, with assistance from Berkshire Hathaway. Popeyes Louisiana Kitchen was acquired by RBI in March 2017. Last June, Elias Diaz Sese stepped down as president of Tim Hortons. His responsibilities were taken over by Daniel Schwartz, chief executive officer of RBI, which also owns Burger King and Popeyes Louisiana Kitchen. A Globe and Mail News report stated, "RBI carries a significant debt load, with nearly $10-billion (U.S.) in long-term borrowings, and relies heavily on cash flow from Tim Hortons to service that debt. Last year, the chain accounted for 57 per cent of RBI's adjusted EBITDA, even though there are more than three times as many Burger King outlets. (EBITDA stands for earnings before interest, taxes, depreciation and amortization.)" The same day Elias Diaz Sese resigned, a Toronto Tim Hortons franchisee, with the backing of the GWNFA, filed a $500 million (Canadian) lawsuit seeking class-action status on behalf of the chain's roughly 3,500 Canadian restaurant owners against RBI and its top executives, claiming they misused money from the franchisees' ad fund. The lawsuit states that as of December 14, 2014, the fund has collected nearly $700 million. The Toronto Sun reported that each franchisee contributes 3.5 percent of their gross sales to the fund. The purported class action complaint states that when RBI acquired Tim Hortons, its TDL Group Corp. started to charge administrative and operational expenses, such as the costs of franchisee training, to the fund. The franchisee also alleges that TDL failed to provide statements of the fund's operations, which is required by franchise agreements. RBI executives issued a statement saying they disagree strongly and deny all the allegations the franchisees have made about the Tim Hortons business operations and the brand. While only having seen the press reports, restaurant analyst John Gordon, founder of Pacific Management Consulting Group, noted that this latest action from RBI was a very unfortunate diversion. "A judge will rule whether there was really any confidential proprietary brand information involved. It seems not. RBI needs a great culture and successful franchisees in all three brands to meet its investor promise to expand the brands across the world. 100% "asset light" franchisors can't go to war with their franchisees " Keith Miller, chair of the Coalition of Franchisee Associations and multi-unit franchisee of Subway, said unfortunately, it's the norm during disputes for the franchisor to go after and target franchisee board members, and threaten their livelihoods. He explained, "It scares other franchisees from being engaged, leaving the board isolated while they are trying to protect those that are scared away. While I don't have firsthand knowledge in this case, I have served with many franchisees on many brands over the years, and all are keenly aware of not negatively impacting the brand they are part of. After all, they are heavily invested in that brand, they don't want to diminish their own investment." [GN] TINTRI INC: Robbins Arroyo Files Class Action --------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP announces that a class action complaint was filed against Tintri, Inc. (NASDAQGM: TNTR) in the U.S. District Court for the Central District of California. The complaint is brought on behalf of all purchasers of Tintri securities pursuant to the company's Registration Statement and Prospectus issued in connection to the company's initial public offering on or about June 30, 2017 (the "IPO"), for alleged violations of the Securities Act of 1933 by Tintri officers and directors. Tintri, Inc. develops and markets an enterprise cloud platform combining cloud management software technology and a range of all-flash storage systems for virtualized and cloud environments in the United States and internationally. According to the complaint, in connection with its IPO, Tintri represented in its Registration Statement and Prospectus that the company was intending to extend their position as a leader in providing enterprise cloud solutions to large organizations and CSPs in accordance to their growth strategy. However, the complaint alleges that Tintri failed to disclose that during and after the company's IPO the company was experiencing waning sales. On September 7, 2017, Tintri held an earnings conference call for the second quarter of 2018 during which Tintri CEO stated "Q2 revenue grew 27% over the same quarter a year ago, at the low end of our expectations," and explained that "distraction, disruption and some sales attrition occurred during and after our IPO." On this news, Tintri stock plummeted and now currently trades below $5.00 per share -- less than 65% of its IPO price. Tintri Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. Leonid Kandinov, Esq. Robbins Arroyo LLP Tel: (619) 525-3990 E-mail: LKandinov@robbinsarroyo.com [GN] TOKYO ELECTRIC: Ordered to Pay Former Fukushima Residents --------------------------------------------------------- Reuters reports that a court in Japan on September 22 ordered Tokyo Electric Power (Tepco) to pay compensation to a group of former Fukushima residents, the second such ruling following the 2011 earthquake and nuclear disaster, Japanese media reported. However, the ruling by the Chiba district court, east of Tokyo, did not find the government liable for compensation, in contrast to a March ruling in another court that ordered both the government and Tepco to pay compensation to a separate group of evacuees. Tepco is facing mounting legal claims over the disaster, with about 12,000 former Fukushima residents filing about 30 similar class action lawsuits seeking compensation, media reports said. In the Chiba case, a group of 45 residents sought damages totaling about 2.8 billion yen ($25 million) for the emotional distress of fleeing their homes as radiation spread from the meltdowns at Tepco's Fukushima Daiichi plant after an earthquake and tsunami more than six ago. Tepco was ordered to pay a total of 376 million yen ($3.36 million) for 42 of the evacuees, Kyodo and Jiji reported. Tepco on September 22said it would review the contents of the ruling before making a response. Some 15,000 people died in March 2011 when three reactors at the Fukushima Daiichi plant suffered meltdowns after a magnitude 9 earthquake triggered a tsunami that devastated a swathe of Japan's northeastern coastline. Tepco has long been criticized for ignoring the threat posed by natural disasters to the Fukushima plant and both the company and government were lambasted for their handling of the crisis. In December, the government nearly doubled its projections for costs related to the disaster to 21.5 trillion yen ($192 billion), increasing pressure on Tepco to step up reform and improve its performance. [GN] TRICOR AMERICA: Velarde Seeks Premium Wages under Labor Code ------------------------------------------------------------ JOAN VELARDE individually, and on behalf of all others similarly situated, the Plaintiff, v. TRICOR AMERICA, INC., UNITY COURIER SERVICE, INC. and DOES 1 to 100, inclusive, the Defendants, Case No. 17CIV04141 (Cal. Super. Ct., Sep. 12, 2017), seeks to recover premium Wages, restitution and declaratory relief, and penalties as permitted by applicable law, plus interest, and attorneys' fees and costs under California Labor Code. According to the complaint, the Defendants have had a consistent, policy of requiring non-exempt employees within the State of California, including Plaintiff, to work through meal periods and work at least five hours without a meal period and failing to pay such employees' hour of pay at the employees' regular rate of compensation for each workday.[BN] The Plaintiff is represented by: Briand Chase, Esq. Jerusalem F. Beligan, Esq. BSNAR CHASE LLP 1301 Dove Street, Suite 120 Newport Beach, CA 92660 Telephone: (949) 752 2999 Facsimile: (949) 752 2777 E-mail: bchase@bisnarchase.com jbeligan@bisnarchase.com TRIDENT ASSET: Faces "Burden" Suit in Northern Dist. of Georgia --------------------------------------------------------------- A class action lawsuit has been filed against Trident Asset Management, LLC. The case is captioned as Lavonne Burden, on behalf of herself and all other similarly situated, the Plaintiff, v. Trident Asset Management, LLC and OPS 9, LLC, the Defendants, Case No. 1:17-cv-03496-LMM-AJB (N.D. Ga., Sep. 12, 2017). The case is assigned to the Hon. Judge Leigh Martin May.[BN] Trident Asset is collection agency. The Plaintiff is represented by: Marques J. Carter, Esq. LAW OFFICE OF MARQUES J. CARTER 3400 Chapel Hill Road, Suite 100 Douglasville, GA 30135 Telephone: (888) 332 7252 Facsimile: (866) 842 3303 E-mail: mcarter@consumerlawinfo.com TROTT LAW: Continues to Defend Class Action Over FDCPA Violations ----------------------------------------------------------------- Melissa Nann Burke, writing for Detroit News, reports that legislation proposed by U.S. Rep. Dave Trott is drawing the ire of consumer groups who say it would allow attorneys and law firms to sidestep federal law barring abusive debt-collection practices such as making false threats and pressuring people to pay debts they don't actually owe. Critics also say the bill could pose a conflict of interest for Rep. Trott, a Birmingham Republican who is planning to retire next year, by potentially benefiting his former foreclosure law firm in Farmington Hills. The firm, Trott Law PC, is one of Michigan's largest foreclosure firms and has been sued in federal court for alleged violations of the Fair Debt Collection Practices Act. The law firm disputes the allegations. Rep. Trott sold his stake in the law firm nearly three years ago after he was elected to Congress and denies any conflict. He says his critics misunderstand the law in Michigan, where lenders can foreclose without going to court. By contrast, his legislation would exempt lawyers from liability under the Fair Debt Collection Practices Act only to the extent that they are representing a client in court. The Fair Debt Collection Practices Act prohibits certain debt- collection practices, such as attempting to collect unauthorized amounts. "The technical correction proposed in HR 1849 would not help Rep. Trott or his former law firm in any way, and the legislation would have no impact on the frivolous lawsuit," Trott spokeswoman Katie Vincentz said. Rep. Trott's bill would also exempt licensed attorneys engaged in litigation from the supervision and enforcement authority of the Consumer Financial Protection Bureau, which has gone after several law firms in recent years for questionable debt-collection practices. Supporters of the legislation say lawyers are already regulated by the state supreme courts that license them, and that Congress and federal agencies shouldn't interfere. "This limited, targeted and common-sense bill clarifies that attorneys engaged in litigation should not be subject to interference by federal agencies," Rep. Trott said at a hearing of the House Subcommittee on Financial Institutions and Consumer Credit. "We must protect the system against any attempts to tip the scales of justice by interference with our independent judiciary." But April Kuehnhoff, a staff attorney with the National Consumer Law Center in Boston, has concerns about eliminating liability for what she calls debt-collection "mills" -- large legal practices that generate and file tens of thousands of debt collection cases a year. Some of these firms have gotten in trouble in recent years for tactics such as filing false or misleading pleadings, filing lawsuits in the wrong venue far from a debtor's home and filing suits without any meaningful review of account-level documentation of the alleged debt. Another high-pressure strategy used by some attorneys leans on consumers to "settle" a case in the hallway outside the courtroom when he or she arrives for court without their own lawyer, Ms. Kuehnhoff said. "All of these practices are litigation-related practices that attorneys are engaging in, and debt collection is a huge portion of what happens in trial courts around the country," she said. "The idea that state regulators or bar advocates or the courts themselves are going to be able to take care of all of this is really unrealistic. These regulators are overwhelmed dealing with other important regulatory matters." Rep. Trott said the concerns are overblown. "If you're in court and doing something bad, you've got, potentially, opposing counsel, the state bar, the judge -- so I think there's adequate protection there," Rep. Trott said in an interview. Brian Marshall, policy counsel for the advocacy group Americans for Financial Reform, said one of the reasons Congress adopted the Fair Debt Collection Practices Act in 1977 was empowering consumers to sue to enforce their rights under the law. Rep. Trott's bill would exempt lawyers from being sued to the extent they are litigating on behalf of a client. "You can file a bar complaint against a lawyer, but it's not like you could take a lawyer to court to get compensation or relief from the wrongdoing," Mr. Marshall said. With this legislation, Rep. Trott is doing a "favor" for debt- collection law firms and attorneys by giving them a competitive advantage over non-attorney collectors, Marshall said. "We think lawyers should follow the law, and Rep. Trott disagrees," Marshall said. "He wants to create a carve-out so that lawyers and law firms can engage in abusive tactics that anyone else without a bar card would be prohibited from doing." But Trott stressed that, with his legislation, the Fair Debt Collection Practices Act would still cover lawyers' activities out of court, such as calls to debtors and demand letters. Ms. Kuehnhoff suggested the bill would complicate enforcement efforts, creating a situation in which false or deceptive statements made in a letter to a consumer could be punished, but the same statement filed in court could not be. "You would end up with this very odd solution where the same statement could be a violation in one place and not a violation made in another place," she said. Rep. Trott's bill is backed by ACA International, an association of credit and collection professionals; the Commercial Law League of America; and the National Creditors Bar Association. The legislation also is supported by the American Bar Association, which says the measure is narrowly tailored to exempt creditor lawyers engaged in legal proceedings, and would not create a broad exemption for non-litigation activities. The Federal Trade Commission has recommended the change for years. Congress initially exempted attorneys when it adopted the Fair Debt Collection Practices Act. But a few lawyers abused the system, calling debtors frequently late at night, making false threats and engaging in other practices that would have been prohibited were they considered debt collectors under the law. Congress responded in 1986, saying attorneys hired by creditors could be held liable under the law if they "regularly" engage in debt collection. The courts have interpreted that liability to extend to litigation-related activities, such as filing a lawsuit on behalf of a client. Anne P. Fortney, partner emerita with the Maryland-based law firm Hudson Cook, said that interpretation has created somewhat of a cottage industry for plaintiffs attorneys who routinely sue law firms over "technical but harmless" violations of the Fair Debt Collection Practices Act, resulting in penalties and attorney fees. She said plaintiffs suing law firms over legal pleadings often have not suffered any harm, but courts have found that they can be sued over technical violations of the law for information they included in a legal complaint, for harmless errors, or even mistakes that benefit the consumer. She offered an example involving venue. The Fair Debt Collection Practices Act requires a debt collector to sue in the locality in which the debtor lives or signed the contract at issue. A federal appellate court recently said a debtor could sue a law firm for filing a collection lawsuit in the wrong judicial sub- district in Cook County, Illinois -- a technical violation of the law -- even though the court selected was within the debtor's same county. The debtor alleged no harm, and was not dragged into a far-flung court, Ms. Fortney said. "The whole point of this bill is there's a distinction between someone who collects debts as a business and someone engaged in the practice of law," Ms. Fortney said. "The benefits overall are clear, and whatever problems are being discussed or raised are really speculative." Consumer advocates say some violations of the Fair Debt Collection Practices Act are harmful. They highlight suits filed by the Consumer Financial Protection Bureau against firms such as the Georgia-based Frederick J. Hanna & Associates, which the bureau slapped with a $3.1 million penalty in 2015. The bureau alleged the Hanna firm made misrepresentations to consumers by filing collection lawsuits signed by attorneys when the attorneys had little or no involvement. The bureau said the suits were created through automated processes by non-lawyer staffers, allowing them to generate hundreds of thousands of suits. One attorney signed more than 130,000 collection suits over two years, according to the bureau. The federal consumer bureau also accused the firm of filing faulty or unsubstantiated evidence in court in the form of sworn statements from clients. In some cases, the bureau said, the clients lacked the specific documents or details showing the debt was accurate and enforceable. In Michigan, Ann Arbor attorney Andrew J. McGuinness in 2015 filed a proposed class-action lawsuit against Trott Law PC and Trott individually, alleging in part that they violated federal and state collection practices laws by sending certain "deceptive" form letters in an effort to foreclose on hundreds of thousands of homes. The plaintiffs claim that the letters could give consumers the false impression that they were from an attorney when, the suit alleges, attorneys were not involved in a meaningful way in drafting, reviewing or sending the letters. The firm and Rep. Trott are fighting the suit, saying in court records the letters were not misleading, and denying any violations of state or federal law. U.S. District Judge David Lawson in Detroit last year ruled that three types of claims against the firm and Trott could move forward, while he dismissed others. The firm did not respond to calls for comment. [GN] UBER TECHNOLOGIES: Ninth Circuit Appeal Filed in "O'Connor" Suit ---------------------------------------------------------------- Plaintiffs Douglas O'Connor, Thomas Colopy, Matthew Manahan and Elie Gurfinkel filed an appeal from a court ruling in the lawsuit titled DOUGLAS O'CONNOR; THOMAS COLOPY; MATTHEW MANAHAN; ELIE GURFINKEL, individually and on behalf of all others similarly situated v. UBER TECHNOLOGIES, INC., Case No. 3:13-cv-03826-EMC, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter on Sept. 18, 2017, Judge Edward M. Chen entered an order regarding corrective notice, and granting in part and denying in part the Plaintiffs' administrative motion to file under seal. On Aug. 31, 2017, the District Court concluded that the Class Counsel's e-mail communication to Class Members was misleading and that a corrective notice was required to protect the rights of absent class members. It ordered the parties to meet-and-confer and to propose the contents of the corrective notice, as well as a means to distribute it. The appellate case is captioned as Douglas O'Connor, et al. v. Uber Technologies, Inc., Case No. 17-16859, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- September 21, 2017 -- Mediation Questionnaire due; -- October 13, 2017 -- Transcript shall be ordered; -- November 13, 2017 -- Transcript shall be filed by court reporter; -- December 22, 2017 -- Appellants' opening brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1; -- January 22, 2018 -- Appellee's answering brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1; and -- The optional appellants' reply brief shall be filed and served within 21 days of service of the appellee's brief, pursuant to FRAP 32 and 9th Cir. R. 32-1.[BN] UBER TECHNOLOGIES: O'Connor Appeals N.D. Calif. Order to 9th Cir. ----------------------------------------------------------------- Plaintiffs Douglas O'Connor, Thomas Colopy, Elie Gurfinkel and Matthew Manahan filed an appeal from a court ruling in their lawsuit titled Douglas O'Connor, et al. v. Uber Technologies, Inc., Case No. 3:13-cv-03826-EMC, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter on Sept. 18, 2017, Judge Edward M. Chen entered an order regarding corrective notice, and granting in part and denying in part the Plaintiffs' administrative motion to file under seal. On Aug. 31, 2017, the District Court concluded that the Class Counsel's e-mail communication to Class Members was misleading and that a corrective notice was required to protect the rights of absent class members. It ordered the parties to meet-and-confer and to propose the contents of the corrective notice, as well as a means to distribute it. The appellate case is captioned as Douglas O'Connor, et al. v. Uber Technologies, Inc., Case No. 17-16863, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 16, 2017; -- Transcript is due on November 14, 2017; -- Appellants Thomas Colopy, Elie Gurfinkel, Matthew Manahan and Douglas O'Connor's opening brief is due on December 26, 2017; -- Appellee Uber Technologies, Inc.'s answering brief is due on January 26, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants DOUGLAS O'CONNOR, THOMAS COLOPY, MATTHEW MANAHAN and ELIE GURFINKEL, individually and on behalf of all others similarly situated, are represented by: Matthew David Carlson, Esq. LICHTEN & LISS-RIORDAN, P.C. 466 Geary Street, Suite 201 San Francisco, CA 94102 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: mcarlson@llrlaw.com - and - Shannon Liss-Riordan, Esq. Adelaide Pagano, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street Boston, MA 02116 Telephone: (617) 994-5800 E-mail: sliss@llrlaw.com apagano@llrlaw.com Defendant-Appellee UBER TECHNOLOGIES, INC., is represented by: Theodore J. Boutrous, Jr., Esq. Theane Evangelis Kapur, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7804 Facsimile: (213) 229-6804 E-mail: tboutrous@gibsondunn.com tkapur@gibsondunn.com - and - Joshua S. Lipshutz, Esq. GIBSON, DUNN & CRUTCHER LLP 555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 E-mail: jlipshutz@gibsondunn.com - and - Kevin Joseph Ring-Dowell, Esq. GIBSON, DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, CA 92612 Telephone: (949) 451-3800 E-mail: kringdowell@gibsondunn.com UNITED STATES: Review on Two Vets' Discharge Status Ordered ----------------------------------------------------------- Julia Bergman, writing for The Day, reports a Connecticut judge is asking the Army to reconsider its denial to upgrade the discharge status of two Connecticut former soldiers, who allege that they, and tens of thousands of Army veterans across the country, received less than honorable discharges for behavior later attributed to post-traumatic stress disorder and other mental health conditions. Judge Warren Eginton of the U.S. District Court of Connecticut on September 19 directed the Army to review the claims of Steve Kennedy, 31, and Alicia Carson, 28, and report back to the court within 90 days. Kennedy, of Fairfield, who served in the Army, and Alicia Carson, who served in the Army and the Connecticut Army National Guard but now lives in Alaska, filed a class-action lawsuit on April 17 in U.S. District Court in Bridgeport on behalf of approximately 60,000 less-than-honorably discharged post 9/11 Army veterans with PTSD. The suit claims that the Army "routinely" fails to treat soldiers' serious mental health conditions, and instead gives them less- than-honorable discharges, "often because of infractions related to mental health crises." Veterans with these kinds of discharges are usually ineligible for crucial health and retirement benefits and for state benefits such as property tax exemptions. And the discharges also can make it difficult for veterans to get a job. Kennedy returned from a yearlong deployment in Iraq with severe PTSD and depression that the Army did not adequately diagnose or treat, according to the suit. "Rather than giving veterans with PTSD the treatment they need, the Army is kicking them out and denying them benefits that would help make them whole," Kennedy said in a statement. After he got back from Iraq, Kennedy abused alcohol, self- mutilated and began having suicidal thoughts despite leading his team to top performance marks, the suit alleges. He didn't seek help because he feared being labeled weak and losing the trust of members of his unit, the lawsuit says. After being told he could not take leave to attend his own wedding, Kennedy went absent without leave, or AWOL. He was given a "general" discharge and dismissed from the Army on July 27, 2009. The Army board twice rejected Kennedy's requests to upgrade his discharge status. Initially, Kennedy, who is the Connecticut team leader for Iraq and Afghanistan Veterans of America, sued individually, but amended his suit and refiled a federal class-action. It has yet to be classified as a class-action lawsuit, and that effort is on hold while the Army performs its review. A 2014 memo from then-Defense Secretary Chuck Hagel was supposed to make it easier for veterans like Kennedy and Carson to upgrade their discharge status. The memo directed review boards to give liberal consideration to PTSD-based applications. A class-action lawsuit filed by Vietnam combat veterans also seeking to upgrade their discharges due to PTSD, led, in part, to the Hagel memo being released. Eginton also was the judge in that case. In a statement, Kennedy said the Army review board "has systematically failed in its duty of correcting inequitable discharges, furthering the injustice against us and compounding the stigma around mental health in the military." The Department of Defense issued guidance in August to clarify Hagel's 2014 memo, explaining that the liberal consideration policy includes conditions resulting from post-traumatic stress disorder, traumatic brain injury, sexual assault or sexual harassment. Carson, a former Southington resident, deployed to Afghanistan with the Army in early 2010 and within five months was promoted from assistant gunner to gunner. Her command also recommended she be placed in a Special Forces unit, the suit says. When she returned to the U.S., Carson was diagnosed by clinicians from the departments of Defense and Veterans Affairs with PTSD and traumatic brain injury. She got a doctor's note excusing her from drills, but the National Guard gave her a general discharge because of her absences, the suit says. The lawsuit seeks to upgrade Kennedy and Carson's discharges to honorable and to compel the Army to fairly adjudicate PTSD applications. Kennedy and Carson are represented by law student interns Jordan Goldberg, Catherine McCarthy, Jonathan Petkun, Giovanni Sanchez and Helen White, and supervising attorneys Aaron Wenzloff, Esq.-- aaron.wenzloff@yale.com -- and Michael Wishnie, Esq. -- michael.wishnie@yale.edu -- of the Yale Law School Veterans Legal Services Clinic. [GN] UNIVERSITY OF MIAMI: ERISA Plaintiff Directed to Clarify Claims --------------------------------------------------------------- In the case captioned KEITH GOULD, Plaintiff, v. UNIVERSITY OF MIAMI, Defendant, Case No. 16-25233-CIV-WILLIAMS/SIMONTON (S.D. Fla.), Magistrate Judge Andrea M. Simonton of the U.S. District Court for the Southern District of Florida denied the Defendant's Motion to Dismiss and ordered the Plaintiff to file an Amended Complaint which sets forth a more definite statement of the claims he asserted. Gould filed a Class Action Complaint against his former employer, the University, pursuant to the Employee Retirement Income Security Act ("ERISA"). The Complaint alleges one count of Breach of Fiduciary duty pursuant to 29 U.S.C. Section 1132 (a)(3), which asserts that the University violated its fiduciary duty under ERISA by failing to extend to the Plaintiff, and members of the putative class, the opportunity to participate in the plans. The Plaintiff contends that as a result of the breach of fiduciary duty, the Plaintiff, and the class, suffered harm including the lost value of the Plan benefits, and that the University was unjustly enriched. The Plaintiff seeks class certification, an equitable award of all make-whole relief to which the Plaintiff and the Class are entitled, and an equitable award to remedy the University's unjust enrichment, attorneys' fees, costs, and interest, as permitted by law, and any other relief to which the Plaintiff and class are entitled. The Defendant has filed a Motion to Dismiss contending, among other things, that the Plaintiff, as a volunteer faculty member, was not eligible to participate in the ERISA plans at issue, save one supplemental retirement plan, in which the Plaintiff elected to not participate. Judge Simonton agrees with the Defendant on this point and concludes that the Complaint as drafted is ambiguous and confusing, and fails to satisfy Rules 8 and 10. Specifically, in the Complaint, the Plaintiff has failed to set forth allegations pertaining to each plan in a manner that makes clear which plans the Plaintiff contends he and other members of the class are entitled to participate. The lack of clarity in the Complaint cannot be cured by the Plaintiff identifying the specific plans in opposition to the Motion to Dismiss. The Judge determines that it is appropriate to sua sponte direct the Plaintiff to file a more definite statement. To that end, she directed the Plaintiff to file an Amended Complaint which identifies which ERISA and other benefit plans offered by the University Plaintiff Gould alleges that he was eligible to participate; describes other similarly-situated University employees and the ERISA and other benefit plans that those persons claim they are entitled to participate; and provides a clear recitation of the relief he seeks including whether the he and other potential class members seek to receive specific benefits under the plans at issue, seek to be enrolled in particular plans, and/or seek to restore losses to the relevant plans. While the Plaintiff need not set forth every claim advanced in the Amended Complaint and all relief sought therein in detail, the Plaintiff must provide enough information to allow the Defendant and the Court to know the basis of the Plaintiff's ERISA claims, sufficient for the Defendant to file an appropriate responsive pleading, and for the Court to assess the viability of those claims. Judge Simonton ordered the Plaintiff to file his Amended Complaint within 20 days from the date of the Order. She denied the Defendant's Motion to Dismiss Plaintiff's Complaint without prejudice to file a Motion to Dismiss after the Plaintiff files his Amended Complaint. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/h59V4O from Leagle.com. Keith Gould, Plaintiff, represented by Gregg I. Shavitz -- gshavitz@shavitzlaw.com -- Shavitz Law Group. Keith Gould, Plaintiff, represented by Stephen Churchill -- steve@fairworklaw.com -- Fair Work, P.C, pro hac vice & Paolo Chagas Meireles -- pmeireles@shavitzlaw.com -- Shavitz Law Group, P.A.. University Of Miami, Defendant, represented by Edward Soto -- edward.soto@weil.com -- Weil Gotshal & Manges, Jonathan R. Gartner -- jonathan.gartner@weil.com -- Weil, Gotshal & Manges LLP, pro hac vice & Nicholas J. Pappas -- nicholas.pappas@weil.com -- Weil, Gotshal & Manges LLP, pro hac vice. VEOLIA: Class Actions Over Role in Flint Water Crisis Pending ------------------------------------------------------------- AFP reports that Veolia's hopes of taking advantage of municipal privatizations and promised Trump administration public works projects to expand its U.S. presence, are being strained by its role in water crises in Flint, Michigan and other cities. The French water and waste management giant has targeted five percent revenue growth in North America in 2017, with the United States expected to lead the way. But Veolia's operations have not been without controversy, especially in Flint, where a lead contaminated water system became a notorious symbol of American social injustice. The contamination harmed thousands of children and was seen as the cause of 12 fatalities due to Legionnaires disease. Veolia continues to face numerous investigations and class-action lawsuits connected to the crisis. Veolia also has run into controversy in Pittsburgh, Pennsylvania, which also suffered from elevated levels of lead in its water system. [GN] VEON LTD: Court Denies Motion to Dismiss Securities Class Action ---------------------------------------------------------------- Gainey McKenna & Egleston on Sept. 24 provided Class Action update regarding VEON, Ltd. ("VEON" or the Company") (NASDAQ:VEON), previously known as VimpelCom, Ltd. On December 9, 2016, Lead Plaintiff in the action filed an amended class action complaint. The amended complaint asserts claims on behalf of all persons or entities that purchased VimpelCom securities (now VEON) between December 4, 2010 and November 3, 2015 inclusive (the "Class Period"), and seeks to pursue violations of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10(b)-5 promulgated thereunder. Recently, the Court issued an important decision which denied the Company's attempt to dismiss the class action. In particular, the Court's decision denied Defendants' motion to dismiss and sustained most of the claims in the amended class action complaint. A copy of the amended class action complaint and the Court's decision can be found at www.gme-law.com. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] VERMONT: Investors File Class Action Over Role in Jay Peak Fraud ---------------------------------------------------------------- Anne Galloway, writing for VTDigger, reports that plaintiffs in a lawsuit against the state allege that Bill Stenger, the former CEO and president of Jay Peak Resort, paid $25,000 to immigration attorneys in "kickbacks" for each new investor the lawyers brought into the projects. New evidence shows that the $25,000 fee agreement was a fill-in- the-blank form Mr. Stenger sent to immigration attorneys. Payment was to be made within seven days of receipt of a copy of an investor's temporary visa approval by U.S. Citizenship and Immigration Service. In the document provided, Jianming Shen, a New York City attorney, signed an agreement form with Mr. Stenger in 2010. Wei Wang and four other plaintiffs in the lawsuit against the state say they were unaware that the attorneys they hired to help them through the EB-5 visa process were also getting payments from Mr. Stenger. The investors say state officials with the Vermont EB-5 Regional Center, who were responsible for overseeing Jay Peak, never took action to investigate allegations about the so-called "finders fees," which were brought to their attention in 2012. Separate lawsuits have been filed by the investors against attorney Anthony Korda, who represented foreigners in early projects, including Hotel Jay and Tram Haus Lodge, and Shen, who was allegedly paid by Stenger to "funnel" 70 investors into a bogus biomedical facility in Newport. Case against state heads to court The first hearing in the investors' case against the state would be on Sept. 25 in Lamoille County Superior Court where arguments regarding discovery would be laid out by the Barr Law Group, on behalf of the investors, and the Vermont Attorney General's office, which is defending 10 current and former state officials and three state agencies. Megan Shafritz, the lead lawyer for the state, has said Vermont officials have "absolute immunity" in the case, which protects them "from the burdens of discovery and litigation generally." Ms. Shafritz has urged the court to block the release of documents and the deposition of a key witness in the investors' case until after the court has ruled on a motion to dismiss, which the attorney general's office has yet to file. Attorneys for the state asked for an extension in early September. The Lamoille County Superior Court put a stay on discovery in July. Russell Barr, the owner of Stowe Aviation and Barr Law Group, is the lead attorney in the class action investor lawsuit against the state, which alleges that the regional center acted as a partner in the Jay Peak fraud. Unless the court allows discovery, Barr says, the truth will never come out about how state officials allowed Mr. Stenger and Jay Peak owner Ariel Quiros to defraud 890 EB-5 investors and ultimately helped to cover up the fraud. "The state will argue [in court] that they cannot be brought to justice and, more importantly, no fact finding or truth seeking discovery can even take place," Mr. Barr said in an email. A letter from the U.S. Citizenship and Immigration Service bolsters the plaintiffs' assertion that the Vermont EB-5 Regional Center officials stood by as the Jay Peak developers defrauded investors over an eight-year period. Last month, USCIS threatened to terminate the state regional center citing "the Regional Center's failure to provide adequate oversight and monitoring of its projects allowed the alleged malfeasance by Quiros and Stenger to occur and jeopardize the Regional Center's ability to promote economic growth within EB-5 program requirements, as well as the EB-5 investors' investments." The investor lawsuit cites the USCIS notice of intent to terminate the Vermont EB-5 Regional Center as proof that the state was complicit in the fraud. Messs. Quiros and Stenger are accused of misusing more than $200 million in foreign investor funds. The two developers collected about $490 million through the Vermont EB-5 program from 2008 through April 13, 2016. On that date, federal regulators brought 52 counts of securities fraud against Messrs. Quiros and Stenger. Both men remain under criminal investigation, have pleaded no contest to the charges and have agreed to the facts in the Securities and Exchange Commission case. The Ponzi-like scheme started when Messrs. Stenger and Quiros used investor money to purchase the resort instead of investing in specific developments as promised, according to the SEC. Mr. Quiros is accused of stealing as much as $191.8 million, according to federal regulators who say he couldn't have perpetrated the fraud without the aid of Mr. Stenger, who was the front man for the operation and had direct dealings with investors. A state 'cover up'? In February 2012, Douglas Hulme, owner of Rapid USA, an EB-5 middleman who worked for Jay Peak, announced to 100 immigration attorneys that he no longer had faith in representations about the finances made by Messrs. Stenger and Quiros. In the case against the state, investors say that immediately after Mr. Hulme's announcement, James Candido, the former director of the Vermont EB-5 Regional Center, reassured investors that the Jay Peak projects were a safe investment. Based on assurances from Mr. Candido, investors believed that the state was properly monitoring the projects and protecting their investments. But Mr. Candido was actually protecting the Jay Peak developers from scrutiny, according to the lawsuit. He and other officials with the commerce agency "misrepresented state oversight" and the "viability" of the Jay Peak projects "in order to induce investors into becoming investors," the Barr Law Group writes. In March, a month after Mr. Hulme's revelations, an investor wrote to John Cronin, the then-director of the Vermont Department of Financial Regulation, with "deep concerns" about Jay Peak. Cronin responded by email that the Vermont Securities Division "was not conducting an investigation of Jay Peak." Not long after, Michael Gibson, of USAadvisors.org, a group that analyzes EB-5 projects, warned state officials that they were failing to properly oversee the marketing of the projects to foreign investors. Mr. Gibson alleged in an April 2012 letter to Cronin, Candido and John Kessler, the general counsel for the commerce agency, that the Jay Peak developers were giving immigration attorneys "finders fees" for new investors in the projects. He warned that the state should investigate the matter immediately, because finders fees violate securities laws, which prohibit immigration attorneys who are supposed to be representing investors from simultaneously representing the interests of developers. State officials ignored Mr. Gibson's advice and worked "directly with their Jay Peak partners" to engage in a "crusade of obfuscation and frivolous accusations" against Mr. Hulme and Rapid USA Visas, "resulting in an outright cover-up," according to the lawsuit. "Continuing as if there was nothing wrong, and continuing to concoct the outward appearance of legitimacy," state officials touted the next phase of the Jay Peak projects, Barr writes. In September 2012, Gov. Peter Shumlin, Rep. Peter Welch, Sens. Patrick Leahy and Bernie Sanders, participated in a daylong press conference at Jay Peak, in which Messrs. Stenger and Quiros announced that having completed $200 million worth of projects at the Jay Peak Resort, they would use more than $500 million in additional EB-5 funds to bring four more large-scale projects to the Northeast Kingdom, including a biomedical facility (AnC Bio Vermont), a conference center and marina, an office and retail block on Main Street in Newport, a new airport terminal in Coventry, a window manufacturing plant and an indoor and outdoor Olympic athletic center at Burke Mountain Resort. Four months later, the developers announced the completion of Hotel Jay. The lawsuit alleges that Stenger and Quiros double sold the top floor of the hotel to two separate groups of investors with the blessing of the Vermont EB-5 Regional Center. Messrs. Stenger and Quiros seized ownership of the Tram Haus Lodge without the consent or knowledge of investors in 2013. Six months later, investors in the first project at Jay Peak complained that they had been mistreated. In a memo to state officials, Tony Sutton, a plaintiff in the lawsuit, detailed the failure of the Vermont EB-5 Regional Center to protect investors. Pat Moulton, the commerce secretary at the time, claimed the Vermont EB-5 Regional Center did not have the authority to vet the Jay Peak projects and that Sutton and the other investors had not "identified a violation of any of the federal laws and regulations governing the EB-5 program." In an email, Ms. Moulton "discounted" the investors concerns and said it was "not only unreasonable, but impossible, to expect reporting of where individual dollars are spent in a multi- investor project." Investor funds were supposed to be held in escrow. Instead, the money was commingled from the beginning. A state investigation of Jay Peak wasn't launched until March 2015, three years after allegations of financial improprieties first surfaced. Even then, the state did not put a halt to the Ponzi scheme. Messrs. Stenger and Quiros continued to bring in new investors right up until the SEC shut them down in April 2016. [GN] VIRGIN AMERICA: Court Denies Discovery Request in "Bernstein" ------------------------------------------------------------- In the case captioned JULIA BERNSTEIN, et al., Plaintiffs, v. VIRGIN AMERICA, INC., Defendant, Case No. 15-cv-02277-JST (JSC) (N.D. Cal.), Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California denied the Defendant's discovery letter brief seeking (i) written discovery and depositions of 10% of the absent class members, or 180 individuals; and (ii) a continuance of the current Sept. 22, 2017 discovery cut-off to allow it the opportunity to conduct this additional discovery. It is not Defendant's first attempt to pursue discovery of absent class members. It previously sought documents, interrogatory responses, and depositions from each absent class member, or 1,800 individuals. That request was denied. Judge Corley explained that the broad discovery the Defendant seeks -- depositions, document requests, and interrogatories -- is not appropriate for a certified class, and that if the Defendant believes liability involves significant individual questions, it should move to decertify the class. Until then, she would treat the lawsuit as a class action. The Defendant did not move to decertify the class. Instead, it appealed the Court's July 28, 2017 order to Judge Tigar, who affirmed the Court's decision and denied the Defendant's motion for relief. The Defendant subsequently filed the discovery request pending before the Court. The Plaintiff opposes the request. The Defendant maintains its same position -- that discovery of the class is appropriate and raises no new arguments regarding the necessity of the requested discovery. Moreover, the Defendant's argument that its due process rights entitle it to discovery of all available defenses has been rejected by the Ninth Circuit. Finally, the request comes too late as discovery closes this Friday and the Defendant has not shown good cause for extending the discovery deadline. Accordingly, Judge Corley denied the Defendant's request. A full-text copy of the Court's Sept. 19, 2017 Order is available at https://is.gd/OgAy5z from Leagle.com. Julia Bernstein, Plaintiff, represented by Monique Olivier -- monique@dplolaw.com -- Duckworth Peters Lebowitz Olivier LLP. Julia Bernstein, Plaintiff, represented by Alison L. Kosinski -- alison@ktlawsf.com -- Kosinski & Thiagaraj, LLP, Chiharu Gina Sekino, Shepherd Finkelman Miller & Shah, LLP, Emily Ann Thiagaraj -- emily@ktlawsf.com -- Kosinski & Thiagaraj, LLP, James Edward Miller, Shepherd Finkelman Miller & Shah, LLP, James C. Shah, Shepherd Finkelman Miller & Shah, LLP & Kolin C. Tang, Shepherd Finkelman Miller & Shah, LLP. Esther Garcia, Plaintiff, represented by Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, Alison L. Kosinski, Kosinski & Thiagaraj, LLP, Chiharu Gina Sekino, Shepherd Finkelman Miller & Shah, LLP, Emily Ann Thiagaraj, Kosinski & Thiagaraj, LLP, James Edward Miller, Shepherd Finkelman Miller & Shah, LLP, James C. Shah, Shepherd Finkelman Miller & Shah, LLP & Kolin C. Tang, Shepherd Finkelman Miller & Shah, LLP. Lisa Marie Smith, Plaintiff, represented by Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, Alison L. Kosinski, Kosinski & Thiagaraj, LLP, Chiharu Gina Sekino, Shepherd Finkelman Miller & Shah, LLP, Emily Ann Thiagaraj, Kosinski & Thiagaraj, LLP, James Edward Miller, Shepherd Finkelman Miller & Shah, LLP, James C. Shah, Shepherd Finkelman Miller & Shah, LLP & Kolin C. Tang, Shepherd Finkelman Miller & Shah, LLP. Virgin America, Inc., Defendant, represented by Robert Jon Hendricks -- rhendricks@morganlewis.com -- Morgan, Lewis & Bockius LLP, Jennifer Adkins Tomlin -- jtomlin@morganlewis.com -- Morgan, Lewis & Bockius LLP & Nancy Villarreal -- nancy.villarreal@morganlewis.com -- Morgan Lewis & Bockius LLP. VIVA LABS: Court Denies Move to Dismiss "Tracton" ------------------------------------------------- The United States District Court for the Southern District of California issued an Order denying Defendant's Motion to Dismiss Complaint and Motion to Strike Allegations in the case captioned SYNDI TRACTON, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. VIVA LABS, INC., Defendant, Case No. 16-cv-2772-BTM-KSC (S.D. Cal.). Plaintiff Syndi Tracton brings a putative consumer class action against Defendant for marketing its Organic Extra Virgin Coconut Oil as both inherently healthy and a healthy alternative to butter, despite that the Coconut Oil's total fat and saturated fat content make it unhealthy, and a less healthy alternative. Plaintiff claims that Defendant deceptively markets its coconut oil through representations it makes on its product labels, website, and Amazon.com (Amazon). Plaintiff pleads five causes of action on behalf of the putative class: (1) violations of the California Unfair Competition Law ("UCL"), California Business and Professions Code Sections 17200, et seq.; (2) violation of the False Advertising Law ("FAL"), California Business and Professions Code Sections 17500, et seq.; (3) violation of the Consumer Legal Remedies Act ("CLRA"), California Civil Code Sections 1750, et seq.; (4) breach of express warranty, California Commercial Code Section 2313(1); and (5) breach of implied warranty of merchantability, California Commercial Code Section 2314. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a cognizable legal theory or sufficient facts to support a legal claim. When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. In deciding a motion to dismiss, a court may consider the facts alleged in the complaint, exhibits attached to the complaint, and documents whose authenticity is not questioned and upon which the plaintiff's complaint necessarily relies on, even if not physically attached to the complaint. Standing to Pursue Claims Based on Defendant's Website To adequately plead a claim under the UCL or FAL, a plaintiff must have suffered injury in fact as a result of the unfair competition. Cal. Bus. & Prof. Code Sections 17204, 17535. First, Plaintiff argues that despite not alleging reliance, she can nevertheless pursue these claims because Defendant directs consumers to its website on the product label and encourages them to learn about the many health benefits of its coconut oil by visiting its website. However, because the Complaint does not allege that she relied on misrepresentations made on Defendant's website, Plaintiff does not have standing to proceed on these claims Second, Plaintiff argues that she is not stating a claim for relief as to the falsity of representations on Defendant's website, but instead referencing the website because it is highly relevant to various issues in the case. Given the early stage of this action, the Court concludes that Plaintiff's references to the website may be relevant. Because Plaintiff's claims are also based on statements other than those on Defendant's website, the Court denies Defendant's motion to dismiss. Standing to Pursue Injunctive Relief Defendant challenges Plaintiff's Article III standing to pursue injunctive relief because Plaintiff does not allege that she would purchase the coconut oil for cooking or consumption again. To establish that she has standing, a plaintiff must show that (1) she suffered an injury in fact; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be "redressed by a favorable decision" Plaintiff contends that she has met her burden by alleging that: if she could be assured that any health and wellness labelling on the Coconut Oil was lawful and not misleading, she would consider purchasing the product in the future, including for uses other than direct consumption, if she could be assured that its price matched its true value in a fair and honest marketplace. Thus, were [Defendant] to remove the false and misleading claims, plaintiff may desire to purchase the Coconut Oil in the future for cosmetic purposes other than direct consumption if the subsequent marketplace pricing was based on fair and honest labelling. This Court recognized that there were circumstances in which a plaintiff could adequately allege standing, stating: "it is an exaggeration to claim that injunctive relief would never be available in false advertising cases. There are cases where a consumer would still be interested in purchasing the product if it were labeled properly for example, if a food item accurately stated its ingredients. In these types of cases that do not involve claims that a product does not work or perform as advertised, injunctive relief may still be available." The Court finds that this case presents the appropriate circumstances. Taking the allegations in the light most favorable to Plaintiff, she has alleged that she would purchase the coconut oil again in the future. Plaintiff has, therefore, sufficiently pled a real and immediate threat of continued harm. Accordingly, Defendant's motion to dismiss is denied as to Plaintiff's request for injunctive relief. Misrepresentation-Based Claims Plaintiff asserts misrepresentation claims under California's UCL, FAL and CLRA. California's UCL prohibits any unlawful, unfair or fraudulent business act or practice. Cal. Bus. & Prof. Code Section 17200. The false advertising law prohibits any "unfair, deceptive, untrue, or misleading advertising. Cal. Bus. & Prof. Code Section 17500. California's CLRA prohibits "unfair methods or competition and unfair or deceptive acts or practices. Reasonable Consumer Test Defendant argues that Plaintiff's UCL, FAL, and CLRA claims should be dismissed because she fails to plausibly allege that a reasonable consumer is likely to be deceived by the alleged false advertising. Defendant, likewise, argues that because Plaintiff alleges that it is well established that diets generally high in saturated fatty acids increase the risk of CHD, her claims that the label is false or misleading should be dismissed. However, as Plaintiff notes, she does not dispute that saturated fats may be harmful, but instead that Defendant's labeling claims are intended to convince consumers that the product is healthy, and to conceal or distract from the fact the Coconut Oil is almost entirely saturated fat. Plaintiff alleges that these claims, taken individually and in context of the label as a whole, are false and misleading because the Coconut Oil is not 'healthy, nor does it positively boost nutrition' given its saturated fat, which adversely affects cholesterol levels and increases risk of CHD, stroke, and other morbidity. Viewing the facts and representations in the light most favorable to Plaintiff, the Court cannot hold at this juncture that it would be impossible for Plaintiff to prove that a reasonable consumer would be deceived by Defendant's representations. Accordingly, the Court declines to dismiss Plaintiff's UCL, FAL, and CLRA claims based on the reasonable consumer test. Reliance and Causation Prongs Defendant also moves to dismiss Plaintiff's misrepresentation claims on the ground that she has failed to sufficiently plead reliance. Defendant largely renews its arguments that Plaintiff's reliance on the misrepresentations is unreasonable. As already held, this is not a rare situation" that would allow the Court to dismiss the Plaintiff's claims at this juncture. A review of Plaintiff's allegations reveals that she has adequately pled reliance. She claims that when deciding whether to purchase Defendant's coconut oil, she read and relied on the representations made on the product's label, as well as on the Amazon product page. Plaintiff further alleges that she "would only have been willing to pay less, or unwilling to purchase it at all, absent the false and misleading labeling. Defendant's motion to dismiss is denied on this ground. Violations of the FDA and Sherman Laws First, Defendant argues that technical violations of the FDA are not actionable under the UCL because misbranded food under these regulations are not automatically misleading. Under both the federal and California labeling regulations, a food product is deemed misbranded when its label contains any statement that is false or misleading in any particular. Plaintiff has alleged sufficient facts to at least create an issue of fact that a reasonable consumer is likely to be deceived by Defendant's representations of the coconut oil. At this juncture, Plaintiff has thus adequately pled a violation of Cal. Health & Safety Code Section 110660. Plaintiff specifically alleges that the coconut oil is misbranded because its label bears nutrient content claims even though it does not meet the requirements to make such claims. Because the coconut oil does not meet these regulatory requirements, Plaintiff alleges that it cannot bear the term healthy and is misbranded. Thus, Plaintiff has pled sufficient facts to allege that the coconut oil is misbranded under these three separate FDA regulations. Second, Defendant argues that Plaintiff has not alleged any injury from the alleged violations of the FDA regulations. A review of Plaintiff's allegations reveals that when deciding whether to purchase Defendant's coconut oil, she relied on the representations that are the basis of the FDA violations. She specifically alleges that she relied on claims such as making it a healthy addition to your daily life through dietary supplementation, free of. trans fats, and contains MCTs for energy and weigh management. She further claims that absent these representations, she would have only been willing to pay less, or unwilling to purchase it at all. Plaintiff has, therefore, alleged sufficient facts to support that she relied on these representations. Accordingly, Defendant's motion to dismiss is denied as to Plaintiff's UCL unlawful claim. UCL Claim Defendant contends that Plaintiff has failed to state a claim based on all three independent prongs of the UCL. Plaintiff alleged that Defendant's sale of the coconut oil was unfair because Defendant's conduct was immoral, unethical, unscrupoulous, or substantially injurious to consumers and the utility of its conduct, if any, does not outweigh the gravity of the harm to its victims. She further claims that the harm to consumers caused by increased consumption of the Coconut Oil due to the deceptive claims is not outweighed by the benefit of increased profits gained from the deceptive claims. The Court finds that these allegations are enough to survive a motion to dismiss. Therefore, Defendant's motion is denied as to Plaintiff's unlawful claim under the UCL. Breach of Express Warranty Defendant moves to dismiss Plaintiff's breach of express warranty claim arguing that the claim is based on "highly subjective claims" that are not actionable. Plaintiff alleges that throughout the Coconut Oil label, [Defendant] made affirmations of fact or promises, or descriptions of goods, that the product is a healthy addition to your daily life through dietary supplementation, and cooking, will boost nutrition' and provides 'many health benefits. Drawing all inferences in the light most favorable to Plaintiff, the Court must find that Plaintiff has adequately alleged her breach of express warranty claim. Defendant's motion to dismiss this claim is, therefore, denied. Breach of Implied Warranty of Merchantability Defendant also moves to dismiss Plaintiff's breach of implied warranty claim, arguing that Plaintiff fails to allege that the coconut oil is not fit for ordinary use. Under California's Commercial Code Section 2314, a warranty that the goods shall be merchantable is implied in a contract for their sale. The California Supreme Court has defined "merchantability" as a product that conforms to the promises or affirmations of fact made on the container or label or as a product that fits the ordinary purpose for which such good is used. The Court finds that Plaintiff has sufficiently pled a breach of implied warranty. Though Plaintiff does not allege that the coconut oil is not fit for ordinary use, she does allege that Defendant has failed to conform to the promises or affirmations made on its label. Moreover, as already discussed above, Plaintiff has at least sufficiently alleged that a reasonable person would be deceived by the representations made on the label. Therefore, it is not enough at this juncture that the ingredient list expressly discloses the product's saturated fat content. Thus, Plaintiff's claim survives. Injury Lastly, Defendant argues that Plaintiff's UCL, FAL, and CLRA claims should be dismissed because she has failed to allege any damages model by which the Court could measure her restitutionary relief. Plaintiff has alleged that she lost money as a result of Defendant's deceptive claims and practices in that she not receive what she paid for when purchasing the Coconut Oil. Defendant's motion to dismiss Plaintiff's misrepresentation claims is, therefore, denied. Motion to Strike Defendant moves to strike Plaintiff's allegations concerning Defendant's website, as well as Plaintiff's proposed class allegations. Plaintiff's allegations concerning Defendant's website cannot support her misrepresentation claims, it is unclear at this juncture whether they can be considered immaterial. As to Defendant's motion to strike Plaintiff's class allegations, the Court similarly concludes that these issues are best resolved at the class certification stage. While it is true that a defendant can pre-emptively petition the court to deny class certification under Rule 23, here, Defendant moves to strike the class allegations pursuant to Rule 12. Defendant "has not answered in this case, discovery has not yet commenced, and no motion for class certification has been filed. Defendant's motions to dismiss and strike allegations in the Complaint are denied. A full-text copy of the District Court's September 18, 2017 Order is available at http://tinyurl.com/ycztor2vfrom Leagle.com. Syndi Tracton, Plaintiff, represented by Jack Fitzgerald, The Law Office of Jack Fitzgerald, PC, Hillcrest Professional Building, 3636 Fourth Avenue, Suite 202, San Diego, California 92103 Syndi Tracton, Plaintiff, represented by Melanie Rae Persinger, The Law Office of Jack Fitzgerald, Hillcrest Professional Building, 3636 Fourth Avenue, Suite 202, San Diego, California 92103, Paul K. Joseph -- Paul@pauljosephlaw.com -- The Law Office of Paul K. Joseph, PC & Trevor Flynn -- trevor@jackfitzgeraldlaw.com -- Hillcrest Professional Building. Viva Labs, INC., Defendant, represented by Ana Tagvoryan -- ATagvorgan@BlankRome.com -- Blank Rome LLP & Safia G. Hussain -- Shussain@BlankRome.com -- Blank Rome LLP. VOLVO CARS: Faces Class Action Over XC90 Sensus System Issues ------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Volvo XC90 Android Auto lawsuit alleges the SUVs were marketed and sold as being compatible with the Android Auto feature when in fact they are not. Android Auto is described as a smartphone application for Google Android cell phones and designed to work with the display screen of the Google Android user's car. A user can control their smartphone through the car's touchscreen display, steering wheel buttons and by voice commands. Volvo's marketing materials allegedly pushed the in-car technology user interface called "Sensus" that was, or would eventually be, compatible with Android Auto. Plaintiff Robert Middien claims Volvo started selling Volvo XC90 crossover SUVs in 2014, and in 2015 Volvo began selling the 2016 XC90, but did not sell a 2015 XC90. The plaintiff claims Volvo specifically focused on the Sensus system by emphasizing its compatibility with Android Auto. But the plaintiff says Volvo would sometimes falsely market that Sensus on the Volvo XC90 was compatible with Android Auto, yet at other times Volvo would advertise that Sensus would eventually be compatible with Android Auto in the future. However, the lawsuit alleges the Sensus never was, and never will be, compatible with Android Auto in XC90s SUVs. In December 2016, Volvo added Android Auto to the 2017 XC90s and offered upgrades to create compatibility with Android Auto. However, those upgrades were only available for 2017 XC90 models that had been built after April 2016 and allegedly not available for any 2016 models. The plaintiff says Volvo now admits on its website the Sensus system on the 2016 XC90 is not and never will be compatible with Android Auto. The lawsuit includes this alleged statement from Volvo: "For installation of Android Auto to be possible, the car must be equipped with two USB ports (USB hub). If the car has only one USB port then it is not possible to use Android Auto. It is not possible to install Android Auto on the XC90 or XC90 Twin Engine model year 2016 since they do not have the USB hub. It is not possible to retrofit the USB hub on these models." According to the plaintiff, the 2014 and 2016 Volvo XC90s have only one USB port and it's not possible to install Android Auto and impossible to retrofit the USB hubs. In addition, the lawsuit alleges the 2017 Volvo XC90s manufactured before April 2016 also have only one USB port, making it impossible to install Android Auto. The plaintiff says about 29,000 SUVs are affected by the problem, and every owner and lessee paid too much for their SUVs that were marketed as compatible with Android Auto. The proposed class-action lawsuit includes all U.S. consumers who purchased or leased a new 2014 or 2016 Volvo XC90 or a new 2017 Volvo XC90 with a Sensus systems incompatible with Android Auto. The Volvo XC90 Android Auto lawsuit was filed in the U.S. District Court for the District of Massachusetts - Robert Middien, et. al., v. Volvo Cars of North America, LLC. The plaintiff is represented by Shapiro Haber & Urmy LLP. [GN] WILSHIRE COMMERCIAL: Court Extends Pre-Trial Schedule in "Diggs" ---------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order extending the time set forth in the pre-trial scheduling order for the briefing schedule on motion on alleged capacity of Defendant's automatic telephone dialing system and expert designation dates in the case captioned FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, Plaintiffs, v. WILSHIRE COMMERCIAL CAPITAL, LLC a California limited liability company dba WILSHIRE CONSUMER CREDIT, Defendant, Case No. 2:15-CV-01428-WBS-AC (E.D. Cal.). Plaintiffs have disclosed their expert and he has produced a report; however, Plaintiffs' designated expert, Mr. Jeffrey A. Hansen, due to medical reasons, including a recent surgery, has been unable to sit for a deposition regarding his current findings, and will not be able to do so until after the rebuttal expert disclosure/report deadline. Defendant will need to depose Plaintiffs' expert, currently scheduled for October 12, 2017, and have the transcript reviewed by its expert before filing the motion on the ATDS system, and before filing the rebuttal expert report. The Parties have cooperated with discovery in anticipation of this motion, and have professionally resolved any issues that have arisen. Plaintiffs have consulted their expert, and he is available on October 12, 2017, for a deposition. Once the Plaintiff's expert's deposition, is complete, Defendant will be able to designate a rebuttal expert, and the parties will be able to brief the issue of capacity. The Court, at the behest of the parties, modifies the schedule as follows: -- Discovery concerning the alleged capacity of defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs will be continued to November 13, 2017. -- Plaintiffs are ordered to produce their designated expert for deposition on October 12, 2017 in San Diego. -- With regard to expert testimony intended solely for rebuttal, those experts will be disclosed and reports produced in accordance with Federal Rule of Civil Procedure 26(a)(2) on or before October 25, 2017. -- A hearing for motion regarding the alleged capacity of Defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs will take place on January 16, 2018 at 1:30 p.m. -- Any motion regarding the alleged capacity of defendant's Automatic Telephone Dialing System to make autodialed calls to Plaintiffs must be filed by November 30, 2017 -- Opposition thereto must be filed by December 18, 2017, and Reply to that Opposition must be filed by January 4, 2018. -- Following the hearing on the motion regarding the capacity of Defendant's alleged Automatic Telephone Dialing System on January 16, 2018 at 1:30 p.m., the Court will conduct a case management conference to reset the current Pretrial Conference date of January 29, 2018 and trial date of March 27, 2018. -- A Joint Status Report shall be filed no later than January 2, 2018. A full-text copy of the District Court's September 18, 2017 Order is available at http://tinyurl.com/yc9e277sfrom Leagle.com. Verina Freeman, Plaintiff, represented by Bryan Kemnitzer, Kemnitzer Barron & Krieg, PC., 445 Bush St 6th Fl San Francisco, CA 94108 Verina Freeman, Plaintiff, represented by Scott D. Owens, Scott D. Owens, P.A., 3800 S Ocean Dr #235, Hollywood, FL 33019, USA, pro hac vice & Elliot Jason Conn -- Elliot@kbklegal.com -- Kemnitzer Anderson Barron and Ogilvie LLP. Valecea Diggs, Plaintiff, represented by Bryan Kemnitzer, Kemnitzer Barron & Krieg, PC, Scott D. Owens, Scott D. Owens, P.A., pro hac vice & Elliot Jason Conn, Kemnitzer Anderson Barron and Ogilvie LLP. Wilshire Commercial Capital L.L.C., Defendant, represented by Anthony Angelo Molino -- Molino@molinolawfirm.com -- Molino and Berardino, APLC, Benjamin John Carter, Molino & Berardino, APLC, 4751 Wilshire Blvd Ste 207, Los Angeles, CA, 90010-3860, Steven Reed Berardino -- sberardino@molinolawfirm.com -- Molino & Berardino, APLC & Michelle Cooper -- mcooper@molinolawfirm.com -- Molino & Berardino, APLC. * Group of College Professors Supports CFPB's Arbitration Rule -------------------------------------------------------------- Maria Lamagna, writing for MarketWatch, reports that a group of college professors is rallying in support of consumers' right to sue. Some 423 law school, university and college professors are sending a letter to two senators, encouraging them to support a rule the Consumer Financial Protection Bureau has passed. The CFPB announced a final version of the rule in July that would ban companies from putting "mandatory arbitration clauses" in their contracts, language that prohibits consumers from bringing class-action suits against them. It applies to institutions that sell financial products, including bank accounts and credit cards. Rather than being allowed to sue, consumers who sign such a contract have to resolve disputes with companies through privately appointed individuals known as arbitrators, allowing companies to save time and money and avoid negative publicity. "Class action lawsuits are an important means of protecting consumers harmed by violations of federal or state law," the letter says. "Class actions enable a court to see that a company's violations are widespread and to order appropriate relief." The CFPB's mandatory arbitration rule was in the news recently in the aftermath of a security breach at credit reporting agency Equifax, when consumer advocates said that breach showed why suing financial institutions can be important. After the breach, consumers filed numerous class-action suits against Equifax. "This is a prime example of why we need the CFPB rule," said George Slover, senior policy counsel at Consumers Union, a consumer advocacy group based in Yonkers, N.Y. Members of the House in July voted to repeal that rule, which now faces a vote in Senate. Depending on the Senate's schedule, it's unclear when or if the vote will take place. If the Senate does not vote against it, firms will be required to comply with the rule starting in March 2018. It would not apply to contracts entered into before that. The professors are sending the letter on Sept. 25 because it is Sept. 25, the anniversary of when Congress passed the Seventh Amendment to the U.S. Constitution in 1791, which states: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." "The right of access to the courts was so important to our founders that they enshrined the right to a jury trial in both the Sixth and Seventh Amendments," said Imre Szalai, a professor at Loyola University New Orleans College of Law, in a statement. Critics of the CFPB rule have said class-action suits actually don't help consumers. Many of the critics are Republicans, who have opposed the bureau, saying it is too powerful. The professors are sending their letter to one Republican, Senator Mike Crapo of Idaho, who is the chair of the Senate Committee on Banking, Housing and Urban Affairs, and one Democrat, Senator Sherrod Brown of Ohio, who is a member of that committee. The House's vote against the rule was "critical to ensuring the bureau doesn't provide trial lawyers with a regulatory windfall at consumers' expense," said Rob Nichols, the president and CEO of the trade group American Bankers Association, in a previous statement. "Members of the House took a much-needed step toward checking the power of a rogue agency and its attempt to impose a bad rule on American consumers," said Lisa Rickard, the president of the U.S. Chamber Institute for Legal Reform and David Hirschman, the president and CEO of the U.S. Chamber Center for Capital Markets Competitiveness, in a joint statement after the vote. Both are part of the U.S. Chamber of Commerce. "Our arbitration rule was the result of more than five years of careful research and open deliberation," said David Mayorga, a CFPB spokesman. "We found that blocking group lawsuits makes it nearly impossible for most consumers to get justice and relief for wrongdoing." Professors who are sending the letter include Creola Johnson, a professor at the Ohio State University Moritz College of Law, David Cluchey, a professor of law emeritus at the University of Maine School of Law in Portland and Jean Sternlight, a professor of law at the University of Nevada, Las Vegas Boyd School of Law. Ms. Sternlight said in a Sept. 25 Law360 article "Sept. 25 is the anniversary of Congress' passage of the Seventh Amendment to the U.S. Constitution, which provides a right to jury trial in civil cases. That right is increasingly in jeopardy, as the fine print of contracts from many banks, nursing homes, for-profits schools, credit monitoring services and other companies strip away our day in court. Forced arbitration clauses, typically coupled with class action bans, prevent Americans from accessing courts or banding together in group litigation when companies violate the law. Instead, no matter how many people have been harmed, such clauses usually require people to go it alone before a private arbitrator, typically chosen by the company, in a secretive proceeding with virtually no right of review." "A new rule by the federal Consumer Financial Protection Bureau, the independent watchdog created after the financial crisis, helps restore our constitutional rights. Specifically, this rule, adopted after years of study, prevents banks, credit reporting companies and other financial companies from using fine-print forced arbitration clauses to prevent their customers from participating in class action lawsuits brought against the company. The rule restores transparency and accountability to our justice system and allows people to exercise their Seventh Amendment rights. "But the rule is in jeopardy. The House of Representatives has voted to block the rule and the Senate may soon follow suit. That's why I have joined with over 400 other law professors and academics from all 50 states to support the CFPB. We urge our Senators to allow the rule to take effect. "When Equifax misplaces our trust and exposes sensitive financial information of 143 million Americans; when Wells Fargo opens 3.5 million fake accounts without customer permission; and when for- profit schools use deception to get students deep in debt for a worthless degree, people need group access to the courts. They can't go it alone against a big company, especially when consumers may not know they have been harmed, and when the amount that a company steals from each person is often too small to justify hiring an attorney or taking the time to fight, whether in court or in arbitration. "For many years, the U.S. Chamber of Commerce and various business interests have campaigned to convince the world that arbitration is necessarily quicker and cheaper than litigation, and that class actions only benefit lawyers, and not class members. Yet, many advocates for consumers say that forced arbitration is unfair and that class actions help consumers by providing compensation and deterring future unlawful conduct. "Faced with these debates, the CFPB spent three years collecting and analyzing massive amounts of data and produced a comprehensive report, hundreds of pages long. The report found that forced arbitration typically deters consumers from bringing claims in any forum, and that class actions are far more helpful to consumers than individual arbitration. In particular, just a few hundred financial consumers even filed arbitration claims in a typical year. However, the data show that, over five years, 160 million consumer class members who were not forced into arbitration were awarded $2.2 billion in relief -- after deducting attorneys' fees. "Taking a detailed look at cases involving banks' deceptive overdraft fee practices, the CFPB found that class actions brought on this issue alone allowed millions of Americans to recover nearly $1 billion of damages as well as important nonmonetary relief, all of which deters future legal violations. By contrast, the consumer watchdog learned that when people who were covered by forced arbitration clauses were defrauded by unfair overdraft fees or other similar financial misconduct they were not likely to know that they had been harmed, even less likely to realize that the harm was illegal, and certainly not likely to try to bring an individual arbitration claim over quite a small amount of money. This, together with the fact that federal and state investigative agencies are typically underfunded, is why class actions remain a critically important means of enforcing our laws. "The CFPB's well-grounded data and analysis provide solid support for the arbitration rule. Yet lobbyists opposing the arbitration rule have mischaracterized the CFPB's data. They have claimed that arbitration is better for consumers because people supposedly earn $5,389 on average in arbitration but only $32 on average in class actions. "That argument is completely deceptive. The $5,389 figure is based on the average cash award in the CFPB study for the only 16 people per year in the entire country who the study found won cash awards in arbitration. These are extreme outlier results. For the most part, when a company steals a small amount from a lot of people, those people won't get over $5,000 if a class action ban requires them to pursue individual arbitration; they will get nothing, because only people with a lot of money at stake typically take the time and expense to pursue a case in arbitration. Compare the 16 people a year who won in consumer financial arbitrations to the 32 million who recovered billions in class actions. Companies are afraid of the deterrent power of class actions and are trying to use arbitration to avoid having to follow the law. "We cannot let dishonest lobbyist pitches doom a rule that restores accountability when companies like Wells Fargo and Equifax harm millions of people. It is time for Americans who value their Seventh Amendment rights to speak out and insist that their senators vote to preserve access to our justice system. "[GN] * Military Groups Join Democrats' Defense of Arbitration Rule ------------------------------------------------------------- Doug Sword, writing for Roll Call, reports that service member and veterans groups on September 20 criticized a Republican effort to overturn the Consumer Financial Protection Bureau's rule barring mandatory arbitration in many consumer contracts. The groups joined Sen. Jack Reed, D-R.I., ranking member of the Senate Armed Services Committee and a member of the Senate Banking Committee, to oppose Senate Republicans' plan to pass a measure that would repeal the CFPB rule. The rule took effect on September 25, but the agency is giving companies until March 2018 to comply. "Our membership has stated unequivocally that we will not accept a future where our military veterans' financial protections are chipped away to increase the margins of the financial sector," said John Kamin, assistant director of the American Legion's Veterans Employment & Education Division. The American Legion opposes the repeal effort, he said. Republicans are trying to repeal the CFPB rule under the Congressional Review Act. The House voted 231-190 on July 25 to pass a repeal measure. The White House has said the president would sign the repeal measure. The CFPB rule bars consumer contracts with banks, cell phone companies and others from including clauses that waive a consumer's right to join class-action suits, instead offering arbitration as the only option to settle disputes other than individual litigation. Proponents say the rule will expand the legal rights of consumers. Opponents say it will mainly serve to enrich class-action lawyers. "The rule is extremely important to people," Reed said. "That's been highlighted by the Equifax breach, it's been highlighted by some of the disputes regarding Wells Fargo." Under the CRA, the Senate can repeal the rule with a simple majority. No Democrats are expected to back it. But the Senate has to act within 60 legislative days of the rule's July 19 publication. The House passed the repeal over the opposition of all Democrats and one Republican. The Senate parliamentarian will determine when that clock runs out, a staffer said. Service members on active duty are already more protected than many consumers. Two existing laws prohibit arbitration agreements -- and cap interest rates on loans -- for some products. But the groups said on September 20 that companies have found ways around the laws. John McElligott, co-chairman of the Guard and Reserve Committee of The Military Coalition, said some members of the military are being held during deployment to clauses in contracts signed before they joined the military. The coalition's 32 members include the Veterans of Foreign Wars and associations representing the Navy, Army, Air Force and Marines. "Unfortunately, companies have found a way around these laws," McElligott said. "They routinely bury forced arbitration clauses in the fine print of their contracts." Current and former service members were among those that Wells Fargo signed up for unauthorized accounts, he said. A practice that led to $185 million in fines last year and the CEO explaining the actions before Congressional committees. The bank established 3.5 million accounts unauthorized by customers. The rule "must be supported, protected and fully enforced," he said. McElligott said that active duty service members are also more vulnerable to identity theft than civilians. The report that as many as 143 million Americans had personal information stolen in a breach at the credit-reporting firm Equifax is particularly troubling, he said. Equifax has mandatory arbitration clauses in its contracts, though it said arbitration clauses would not be part of the free services customers can receive to deal with the effects of the breach. The arbitration rule is the result of an "unholy alliance" between Democrats and trial attorneys, House Financial Services Chairman Jeb Hensarling said in the House debate on the repeal measure. If the rule goes into effect, consumers' main avenue for redress will be through class-action suits, which would benefit trial lawyers, the Texas Republican said. A CFPB study of four years of class-action lawsuits in financial services disputes found that out of $2.7 billion in awards to consumers, $424 million in fees went to attorneys. The study also found consumers rarely went to arbitration because most of their disputes with banks and other providers were over amounts far smaller than the cost of arbitration. [GN] * Supreme Court to Address Arbitration Issues in New Term --------------------------------------------------------- Ian Millhiser, writing for ThinkProgress, reports that the Supreme Court returns Oct. 2 from its summer vacation for the first full term where Neil Gorsuch will occupy a seat at the far end of the Court's bench. And the Court will open this term with a trio of cases that are very likely to immunize many employers from consequences for their illegal actions. The three cases -- National Labor Relations Board v. Murphy Oil USA, Ernst & Young LLP v. Morris, and Epic Systems v. Lewis -- all involve employment contracts cutting off employee's rights to sue their employer for legal violations. In at least one case, employees were required to sign the contract as a condition of beginning work. In another, employees were forced to give up their rights as a condition of keeping their job. These contracts contained two restrictions on the employees: 1) a "forced arbitration" provision, which requires any legal disputes between the employer and the employee to be resolved in a privatized arbitration system; and 2) a provision prohibiting employees from bringing class actions or other collective suits against their employers. Requiring private arbitration favors employers over employees. As an Economic Policy Institute study determined, employees are less likely to prevail before an arbitrator than before a court, and they typically receive less money from an arbitrator when they do prevail. Banning class action suits, meanwhile, effectively permits employers to violate the law with impunity, so long as they do not do too much harm to any individual employee. If an employer cheats one employee out of $300,000 worth of wages, for example, that employee is likely to be able to find a lawyer who will take his case on a contingency basis -- meaning that the lawyer gets a percentage of what the employee collects from the employer if they win. If the same employer cheats 10,000 employees out of $30 each, however, no lawyer is going to represent any one of these workers on a contingency basis. Plus, few employees are likely to bother with a $30 suit. It's too much hassle, and too expensive to hire a lawyer who won't work on contingency. The solution to this problem is a class action suit, which allows the 10,000 employees to join together in a single case litigated by a single legal team. Banning such class actions effectively leaves these employees without remedy. As one federal judge explained, "the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30." The employer's claim that they can combine a forced arbitration clause with a class action ban arises out of two previous Supreme Court cases that took an extraordinarily creative view of a nearly 100-year-old law. In 1925, Congress enacted the Federal Arbitration Act to allow, as Justice Ruth Bader Ginsburg once explained, "merchants with relatively equal bargaining power" to agree to resolve their disputes through arbitration. Beginning in the 1980s, however, the Court started to read this law expansively to permit forced arbitration between businesses and relatively powerless consumers and employees. Then, the Court got even more aggressive. By its own terms, the Federal Arbitration Act exempts "workers engaged in foreign or interstate commerce." Nevertheless, in its 5-4 decision in Circuit City v. Adams, the Supreme Court held that the Act applies to most workers engaged in foreign or interstate commerce. Thus, forced arbitration clauses in employment contracts were given special protected status, even though the federal law governing these clauses says otherwise. Similarly, Justice Antonin Scalia wrote for a 5-4 Court in AT&T Mobility v. Concepcion that the Federal Arbitration Act has penumbras, formed by emanations from its guarantees that give it life and substance. The right of businesses to insert class action bans, Scalia claimed, is one of these penumbras contained in the 1925 law. And so businesses gained the power to add no class action clauses to their forced arbitration agreements, even if a ban on class actions violates state law -- and despite the fact that the Federal Arbitration Act says nothing about class actions. Nevertheless, the employees in Murphy Oil and its companion cases hope that another provision of law will protect them from signing away their right to join a class action. A provision of the National Labor Relations Act (NLRA) provides that "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Several lower courts have held that an employee's right to engage in "concerted activities" protects their right to join class actions, and they cite multiple previous Supreme Court decisions which lend credibility to this claim. In a world governed by the text of the law, employees would have a strong case that they cannot be forced to give up their right to bring class action litigation. But we live in a world governed by Circuit City and Concepcion -- both of which demonstrate the Supreme Court's willingness to take liberties with the law in forced arbitration cases. [GN] Asbestos Litigation ASBESTOS UPDATE: Painter Testifies in Asbestos Removal Case ----------------------------------------------------------- Don Hopey, writing for Pittsburgh Post-Gzette, reported that Raymond H. Sida, a house painter by trade, testified that developers Ramesh and Vikas Jain tried to bribe him to take responsibility for a massive, illegal asbestos removal operation at the 135-acre former Westinghouse research property in Churchill that they own. At the Allegheny County Health Department hearing, Mr. Sida said the Jains offered him $100,000, two houses -- one for his mother -- and a $5 an hour raise from his $19 an hour rate, if he would agree to take the blame for the illegal asbestos removal work, which was discovered by a Churchill Borough building inspector in February and halted by the health department in May. They also offered his mother a car, Mr. Sida said. The Jains have denied any involvement in the asbestos removal work, and Attorney Maurice Nernberg, who represents them, declined to comment on Mr. Sida's testimony. "I don't represent Mr. Sida. I'm not telling you anything else. I have no comment on what he said." The Allegheny County Health Department levied the largest asbestos related fines in its history -- $1.47 million against the Jains and $451,400 against Mr. Sida -- in June, alleging that more than 130,000 square feet of floor tile and pipe insulation containing asbestos were removed from two large buildings at the former George Westinghouse Research and Technology Park earlier this year. In addition, according to the health department enforcement orders, the work was performed by untrained workers who were not provided any protective clothing or breathing masks and who didn't post warning signs, allowed asbestos dust to be vented into the air outside the buildings, and did not dispose of the material in a landfill licensed to accept hazardous materials. Mr. Sida said the workers were all undocumented workers from Guatemala. Mr. Sida, 51, who worked as a painter in New York City for more than 20 years before he was hired by the Jains five years ago, confirmed all of those allegations in his hearing testimony, but claimed he was only following orders issued either by Ramesh Jain or his son, Vikas, who, he said, told him the tile contained "safe" levels of asbestos. "I had checked on the crew and saw they were cutting and ripping insulation from around the pipes. I knew that wasn't right," Mr. Sida said. "I asked RJ (Ramesh Jain) why they were doing that and he said, 'Don't worry about it.' He told me to keep my mouth shut and not to tell anybody about the asbestos removal." When he asked more questions he was pulled off of the Churchill job and sent to work at another Jain property in Beckley, W.Va. After three days there he was told the Churchill job had been shut down, and Vikas Jain called him and told him to come back to Pittsburgh. "I asked to what purpose. He said, 'To take the blame,' " Mr. Sida testified. "I said no and he got very angry. He promised the world -- money, house, a car. 'We'll pay you if you take the blame. Please, my father can't go through this.' " Mr. Sida denied he was the owner of Pintura Construction, LLC, the company that employed the asbestos removal workers, as the original health department enforcement order claimed, saying that the Jains created the company and forged his signature on bank documents and corporate papers. "This is orchestrated fraud by the Jains perpetrated on a painter who was an hourly employee for five years," Ken Hardin, Mr. Sida's attorney, said in an opening statement at the hearing, which was held to determine Mr. Sida's ability to pay the fine. The Jains went through a similar hearing on their ability to pay their fine in August, but the hearing was closed to the public and news media at their request. Jason Willis, assistant solicitor for the health department's air quality division, said the department had determined Mr. Sida "would not have the ability to pay," and agreed to waive that issue. ACHD hearing Officer Max Slater delayed ruling on a motion by Mr. Hardin to dismiss the case and have the enforcement order set aside, pending testimony from two more witnesses, including Brad Sommer, an attorney hired by the Jains to represent Mr. Sida. Mr. Slater continued the hearing but set no date for its resumption. The health department is still seeking information about where the asbestos-containing material was taken. "The department is trying to ascertain the truth the best we can and find out what happened to the asbestos that was removed," Mr. Willis said. Mr. Sida testified the tile and pipe insulation was put into plastic bags and taken by pickup truck to dumpsters in front of the workers' residence, another Jains-owned property about 2 miles from the Westinghouse property. The dumpsters were removed when filled and replaced with an empty one. Mr. Sida also said the material was taken by truck to the Motel 6 on Banksville Road in Banksville, another Jains-owned property, where it was "put in a dumpster, or sometimes when the dumpster was full, behind the building." Shannon Sandberg, a health department air quality engineer who attended the hearing, said the department is trying to determine where the asbestos material was landfilled but tracking isn't required on dumpsters that are supposed to contain only non- hazardous materials. Sampling at the redevelopment project work site by the ACHD found the tile and pipe insulation to contain up to 65 percent amosite asbestos, which studies have found to cause cancer. ASBESTOS UPDATE: Asbestos Attys Voice Support for Transparency -------------------------------------------------------------- Sara Corcoran, writing for Huffington Post, reported that with hundreds of attorneys gathered in San Francisco for the annual Perrin Conference "asbestos summit," it seems a good time to note that a new documentary featuring alleged fraud with asbestos litigation earned a heated reception in Texas. For trend spotters, the raucous film debate coupled with comments from the summit may hint at a softening in victims' lawyers' opposition to controversial efforts to increase transparency in asbestos trust funds holding billions of dollars for people who will become sick or die. In the state that some call Ground Zero for the start of the asbestos litigation, Canadian journalist Paul Johnson offered a work-in-progress screening of his "UnSettled: Inside the Strange World of Asbestos Lawsuits" at The University of North Texas College of Law/Dallas on September 20. The after-movie discussion panel included nationally prominent asbestos trial attorneys Jeffrey Simon and Charles Siegel. In a startling exchange, at least by asbestos-community standards, both Simon and Siegel discounted impacts of a hotly-debated recent Texas law increasing transparency for asbestos trust funds. The issue is controversial in many states and is being debated in the U.S. Congress. The American Association for Justice, the leading national trial lawyer group, has however steadfastly opposed the transparency movement, usually called "FACT Act" after the federal "furthering asbestos claims transparency" legislative proposal. The "UnSettled" panel tension comes amid a shifting landscape for America's longest-running toxic-substances litigation. A 2014 North Carolina case called "Garlock," named for the gasket maker seeking bankruptcy protection, featured a federal judge finding "evidence suppression" by victims' attorneys in all 15 cases examined. That milestone figures prominently in Johnson's film, which has been screened in Washington, DC, and several state capitals. In Garlock, the federal court reduced suggested liability by about a billion dollars, and the discoveries led the gasket company to file suit against Jeffrey Simon's firm and others, alleging violations of civil RICO, the "racketeering influenced corrupt organization" laws usually associated with gangsters. According to attorney Michael Magner, of Jones Walker who represents Simon Greenstone, Garlock and Simon Greenstone (and other parties) agreed to dismiss the RICO case and Simon Greenstone's RICO and fraud based counterclaim against Garlock. He added, the motion to dismiss was granted purely on procedural grounds and the district court did not consider the evidence. Similar civil RICO cases are pending and one dozen U.S. State Attorneys General are now investigating leading asbestos trusts, worried, among other things, that required reimbursements to Medicare and Medicaid have not been made. There are other controversies: Another of the Texas post-movie panelists, Dallas-based journalist Christine Biederman, is suing in state court to pry open 20-year-old documents related to the so-called "Baron & Budd coaching memo" that was referenced in the Garlock case. In "UnSettled," it is noted that some people think the memo teaches witnesses to lie. One of the questions Johnson raised with his panelists/critics is whether the current system really works for the victims, and do lawyers take too much of the money? The Record noted that question went "largely unanswered." But trend-watchers take note: The opening panel in the Perrin summit included a new report indicating that less than 25 percent of the total money spent on asbestos litigation goes to help victims. Meanwhile, yet another nationally prominent trial attorney, Joe Rice of South Carolina, responded to a question about the effects of FACT laws by saying they would be "no big deal." Johnson says he's considering whether he should incorporate the comments from the Dallas screening into his film, along with the new information about how much money the victims actually receive -- which, he notes, is one of the major points of his movie. The director said the film will be released this fall and other screenings are being planned, including a "major screening" in Pennsylvania in October. Going forward, let's now see if the American Association for Justice follows the lead of its two prominent attorneys supporting greater transparency for the management of asbestos trusts. Heck - - maybe even Baron & Budd attorneys will now stop fighting the release of the infamous "coaching memo" deposition documents -- all for the greater good of transparency. Now, that might give Johnson's movie a true Hollywood ending. ASBESTOS UPDATE: Asbestos Tiles Discovered at Temple University --------------------------------------------------------------- Jillian Duff, writing for Mesothelioma.com, reported that asbestos floor tiles were discovered during remodeling and removed shortly thereafter at Temple University's Center City (TUCC) building. Upon discovery, the fifth floor was closed to classes and staff and faculty offices were relocated. An asbestos remediation firm was called in the next day to confirm the presence of the hazardous material. In accordance with Pennsylvania asbestos laws, 10 days ahead of work TUCC filed a remediation plan and permit application with the city to remove the asbestos tile. That firm pulled up the tile, put down a sealant, and captured any residual dust and debris. Inserting new vinyl tile and sealing cracks "contained" the asbestos. Plus, a new layer of carpet was added. Pennsylvania is known for its asbestos exposure. From 1999 to 2015, approximately 2,779 residents died from mesothelioma. The state has the second highest mesothelioma rate in the country. The highest death rates occur in metropolitan areas surrounding Pittsburg and Philadelphia (where TUCC is located). Philadelphia has a significant history of activity in industries where asbestos-containing products were widely used. Workers exposed to asbestos may be at risk for asbestos cancer. "There was never any risk to Temple students or staff or employees or faculty because there was that double layer of encapsulation," said Director of TUCC William Parshall. The fifth floor air was tested before, during, and after the construction. Post-work results were negative, but the school hired another independent asbestos contractor to also test the air. Those results were negative as well. "The type of asbestos found in tile is not as dangerous as people think because it isn't the type of asbestos that is friable, meaning the fibers don't get into the air easily," added Parshall. Temple University isn't the only higher education institution with asbestos problems. At least 90 University of Maryland buildings were found to contain asbestos in October of last year. At the beginning of 2016, asbestos was discovered in Harvard University's housing. In 2015, the University of Montana pushed its needed asbestos abatement work off until 2017 when it could request state legislature funding. "I feel like [Temple] should put something out there like, 'Hey, just a heads up," said Junior Financial Planning Major Alyssa Klauder whose class moved from the fifth floor to the third without any explanation. ASBESTOS UPDATE: Pa. Court Tosses Plaintiff Expert Testimony ------------------------------------------------------------ HarrisMartin Publishing reported that a Pennsylvania court has found expert testimony proffered by the plaintiffs in an asbestos- containing talc case to be inadmissible, saying that one expert used a "mishmash of scientifically accepted methodologies." In the Sept. 25 opinion, the Pennsylvania Court for Commons Pleas for Philadelphia County found that the plaintiffs' experts modified, varied and, eventually, deviated from generally accepted methodology. In reaching this conclusion, the court granted defense motions to preclude the experts' testimony. The plaintiffs alleged in their complaint that Sally Brandt was exposed to asbestos in Cashmere Bouquet brand cosmetic talc. ASBESTOS UPDATE: Ainslie Shops Fluffy Clean-up Begins ----------------------------------------------------- Kirsten Lawson, writing for Canberra Times, reported that asbestos removalists will encase the first floor and roof space of a building at the Ainslie shops in plastic to remove the dangerous loose-fill asbestos that has tainted the building for almost 50 years. Edgar's Inn on the ground floor will close for two weeks after this weekend's trading while the 10-day removal is underway. Work Safety Commissioner Greg Jones said the removal company, Caylamax, would access the first floor space from behind, setting up a decontamination chamber at the back first-floor entry to the building. Fully-suited removalists would enter and leave the flat through the decontamination chamber, which would ensure no asbestos fibres left the building. The loose-fill asbestos would be double-bagged, removed the same way, and taken to the Mugga Lane tip. The area will be scaffolded, and the government says what the community will see is mostly just the plastic cover. Mr. Jones said the inside of the first-floor would be stripped, including carpet, internal walls and ceilings, which would be taken to the West Belconnen asbestos dump site. The wall cavities would be cleaned, and the cavities between the corner building and the neighbouring building would be cleaned from the inside. Equipment would allow removalists to vacuum down the wall cavities, then cameras would be lowered to check on the success of removing fibres, he said. Work on Fluffy-contaminated houses has shown extensive contamination in wall cavities and sub-floors. The internal surfaces of the cleaned flat would be sprayed to catch remnant fibres, then the building would be tested -- including testing downstairs at Edgar's -- before it would be declared safe for use. Negative-air suction units would be set up to ensure no fibres or dust escaped the building during the clean-up, he said, insisting that neighbouring businesses, local residents and visitors could continue to use the shops as usual in complete safety. Air monitoring would be done inside and outside the building and if any abnormal readings were recorded work would stop. "There is no risk to those people in that area or those tenants and customers next door," Mr. Jones said. The clean-up process was the same as being used in the demolition of the more than 1000 Fluffy asbestos-contaminated houses in Canberra, Mr. Jones said. "The principals and the processes are exactly the same," he said. Investigations in February and March showed the Fluffy asbestos installed in the ceiling of the corner building at Ainslie, No 1 Edgar Street, had migrated into the ceiling of the neighbouring building, which houses a newsagency and laundromat on the ground floor and a therapeutic massage business on the first floor. A positive sample was also returned from the building next to that, which houses a bakery and takeaway. Mr. Jones said Nos 3 and 5 would be cleaned probably in February when trade at the shops was quieter. The leaking roof would be replaced at the same time. The clean-up of the Ainslie shops asbestos has angered residents who have been forced to sell their houses to the government under the mass buyback and demolition. Residents say if the Ainslie shops building can be made safe, their homes should likewise have been considered safe. But Mr Jones said Nos 1, 3 and 5 would ultimately have to be demolished, like the homes. A government spokeswoman denied any inconsistency, pointing out that some people were still living in their Fluffy homes, with the buyback and demolition allowing them to stay until 2020. A small number had refused to join the scheme and remained in their homes under asbestos management plans. Mr. Jones said the Ainslie shops building would continue to have an asbestos management plan after the clean-up, which would be regularly reviewed. Decisions on how the space could be used would depend on the asbestos management plan. Asked whether the floor of the floor upstairs flat would be taken up to clean underneath, Mr. Jones said Worksafe has waiting for advice on what state the floor was in and how it linked to the ceiling of Edgar's below. In March, Mr. Jones said his best guess was that Nos 1 and 3 would have to be demolished within three to five years, but the government now says the buildings might be allowed to stand longer, depending on the report of the asbestos assessors. The work is being paid for by building owner Jeff Darwin. The government says workers or tenants with health concerns should contact their doctor for advice. ASBESTOS UPDATE: Payout for Kin Killed by Asbestos from IRA Bomb ---------------------------------------------------------------- Mark Edwards, writing for Belfast Telegraph, reported that compensation has been paid to the family of a police officer who died after being exposed to asbestos following the IRA's Brighton bombing. Jonathan Woods, a Metropolitan Police officer, was one of the first on the scene after the 1984 attack and became known as its sixth victim. He contracted mesothelioma, an aggressive form of lung cancer, and died last year. Mr. Woods' widow Sharon sued the Metropolitan and Sussex Police for compensation, saying emergency service staff were not warned of the risks of asbestos during the clean-up operation. Mr. Woods' family received an undisclosed payout in an out-of- court settlement, the Argus newspaper in Brighton reported. The police officer issued a writ against both Sussex Police and the Met in August 2014, claiming he was not given adequate protection at the site of the blast. Sussex Police accepted liability, but he passed away in 2015 before his case was finalised. Sussex Police said: "The claim involving the one deceased Metropolitan Police officer was settled in February this year. "The claim amount was split between Sussex Police and the Met Police. We will not be going into the details of the amount of the settlement." The IRA carried out the attack in October 1984 in a bid to kill Margaret Thatcher and her Cabinet during the Conservative Party conference. Lawyers for the Woods' family said the former bomb squad officer spent 14 days sifting through dust and rubble by hand. The legal case is thought to be the first civil suit of its kind from a police officer working at the scene of a terror attack. The Brighton Argus reported that lawyers said Mr. Woods had been accompanied by 14 other officers from the Met and 15 Sussex officers who may have suffered the same exposure. Sussex Police sent letters to 154 people but said they had received no further legal claims. Solicitor Andrew James, representing Mr .Woods' family, said: "When the bomb blew up, it collapsed the building into the basement. "Jonathan Woods and 15 Met and 15 Sussex Police officers picked through the dust in the basement, which it turns out was contaminated with blue asbestos, but weren't protected. "In 1984 they would definitely have known the risks of asbestos. There had been a big publicity campaign a couple of years before. It can be 60 years before the effects start to show themselves, but once you are exposed you are always at risk." ASBESTOS UPDATE: HFD Fined for Asbestos Violations During Fire -------------------------------------------------------------- Jobeth Devera, writing for Hawaii News Now, reported that two and a half months after a fire ripped through the Marco Polo highrise in Moiliili, the Honolulu Fire Department is being fined over asbestos exposure concerns. An investigation by the Hawaii Occupational Safety and Health Division (HIOSH) found that HFD violated workplace safety standards by failing to reduce the level of potential asbestos exposure for firefighters. The citation said HFD failed to conduct immediate decontamination procedures following the fire. "Only one company bagged their turn-out gear and equipment at the scene and the rest of the companies did not do so until they returned to their stations. Some fire fighters did not bag their contaminated turn-out gear until the end of their shift i.e. next morning. As a result, the fire trucks and/or the fire stations may be contaminated with asbestos and/or other hazardous materials," the citation said. The penalties, classified as serious, resulted in a $7,000 fine for HFD. Hawaii Fire Fighters Association President Bobby Lee filed the complaint one week after the deadly blaze. "We approached the department and asked them to take proactive safety measures and they refused, they disregarded us, so they left us no choice but to involve HIOSH," Lee said. Asbestos is commonly used as a fire retardent and insulation material in older buildings. Its fibers are microscopic and can easily be inhaled. Prolonged exposure to asbestos can lead to serious health problems, including cancer. "Our firefighters cannot help the public if they're not kept as safe as possible," said Lee. "In the end, all we want is for this department and this leadership to do their job and put firefighters and public safety first." The fire department says it's still reviewing the citation and will release a statement. Meantime, officials still haven't released the cause of the fire that killed three people. Several units remain boarded up and clean up efforts continue. The Hawaii Salvation Army was on property this weekend offering residents additional assistance. So far, the nonprofit said it's helped eight displaced families find permanent housing. "I think it's sinking in, the degree of damage and even the personal trauma they're experiencing, so now they're coming out and saying we really need help," said Anna Stone, Director of The Salvation Army's Family Services Office and Pathway of Hope. HFD must pay the fine within 20 days of receiving the notice. The department also has until November 2 to abate the violations. In July, Hawaii News Now reported HFD was under scrutiny for other issues regarding the Marco Polo response. Lee said he was unhappy with how executives handled it, and that resources were lacking. "When you're looking at a five-alarm fire, it really is a fire that requires all of the command people to be there, especially the executive staff," Lee said in July. "You got civilian deaths, you got over 100 firefighters there on scene. I was somewhat disappointed that the executive staff, that they weren't there." Lee says an expensive HFD mobile command unit should've been utilized, but wasn't. "There's no reason for it not to be there," Lee said. "That's what we bought, or the department bought that truck for. They spent a lot of money, public money, to have that resource available to our firefighters. To not only protect them, but to protect the public. And there's absolutely no reason for it not to be there." ASBESTOS UPDATE: Indian Co. Set to Buy 50K Tons of Asbestos ----------------------------------------------------------- Counterview reported that an anti-asbestos campaign organization has expressed the fear that an Indian company is all to import 50,000 tonnes of the hazardous commodity which allegedly causes cancer. Quoting 'The Mirror', a well-known daily newspaper of Zimbabwe, it says that this follows after the Government of Zimbabwe "muscling its efforts to reopen the Shabani Mashaba Mines (SMM)". A principal supplier of asbestos, the state-run company was shut down amid financial scandals back in 2004, but is likely to "reopen at full capacity employing up to 5,000 workers", says the Occupational and Environmental Health Network India (OEHNI), underlining, this has happened "because the Indian company has shown keen interest in importing 50,000 tonnes of SMM's asbestos annually." OEHNI notes, this is happening even though, "in recognition of its harmful effects, asbestos mining is banned in India for the last three decades". However, it adds, " Industries exploit legal loopholes and import vast quantities of asbestos and produce various products, directly increasing public health risks and subject workers to occupational diseases." Asbestos, when inhaled, causes asbestosis, an inflammatory scarring of lung tissues, which leads to permanent and irreversible damage to the respiratory system, weakening the immune system and overall functioning of the body. According to studies, it can also lead to lung cancer, cancer of mesothelioma and various other organ cancers. "The risk associated with the use of asbestos is far greater than the benefits, ipso facto global consensus on banning the use of asbestos except for India", says OEHNI in its statement, but avoids naming the company. "The asbestos sheets used in roofing on anganwadis and other public spaces expose children and adults alike to the harmful effects of asbestos", it says, insisting, "The Indian company in question needs to be investigated. The Government of India has the responsibility to protect its citizens through unilateral action to ban mining, import, production, sale and consumption of all materials based on asbestos with immediate effect." Underlining that the problem lies at the policy level, OEHNI, quoting the Rotterdam Convention, an international treaty to investigate, monitor and restrict trans-boundary transportation of toxic substances, says that the Indian delegation has "stubbornly disagreed and has repeatedly blocked listing of chrysotile (white asbestos) in Rotterdam Convention Hazardous Substances list (Annex III)". "Even the subcontinental neighbours, Nepal and Sri Lanka, are well on their way to permanently ban production and consumption of asbestos", it says, adding, yet, "Our administration and governing politicians continue to ignore the constitutional and judicial rights of our own less fortunate brothers and sisters." Earlier, in a letter to the President of India, OEHNI's national coordinator, Jagdish Patel, reminded him how India helped block the inclusion of the chrysotile (white asbestos) in the Rotterdam Convention Hazardous Substances list (Annex III), despite the fact that some 60 countries "including Japan, Europe, Australia, and also International Labour Organization and World Health Organization, firmly believe that 'safe and controlled use' of asbestos is not possible". "The convention had put an eye opening figure that more than 100,000 people die each year from various asbestos related diseases including a rare cancer of mesothelioma", Patel said, adding, this runs against the Union Environment Ministry's Vision Statement that says, "Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out". ASBESTOS UPDATE: Asbestos Found at Auckland's Langham Hotel ----------------------------------------------------------- New Zealand Herald reported that asbestos has been found in the ceilings of a small number of rooms at the Langham Hotel in Auckland. The bonded asbestos was detected in an area of the hotel currently under construction as a result of a routine test, the hotel's communications team said in a statement. "The health and safety of our guests, employees and contractors are our highest priority. "As a safety precaution and after consultation with the head contractor BUILT (NZ) Pty Ltd, the work site has been closed until further testing can be completed," the statement said. The area had been fully contained from the public throughout the building works and no guests or staff were able to access it. "There is no risk to any guests or staff at the hotel." All areas of the up-market hotel, which often hosts VIP visitors to New Zealand, continued to operate as normal. "We are complying with all health and safety requirements and will continue to monitor the situation." According to a 2016 statement on the government's Worksafe website, asbestos was New Zealand's number one killer in the workplace with some 170 people dying each year from asbestos- related diseases. Due to its strength, durability and resistance to fire and water, asbestos was widely used in building products and materials until the 1990s. Regulations were changed last year to protect as many people as possible from exposure to asbestos fibres. According to the website of New Zealand asbestos removal company Asbestos Solutions, bonded asbestos, as opposed to the more fragile "friable asbestos", contains asbestos fibres "that are bound within the matrix of the material it's contained within". "Bonded asbestos is more difficult to damage and cause the release of fibres by hand and includes materials such as asbestos cement sheeting. "However, bonded asbestos containing materials that have been subjected to weathering, physical damage, water damage, fire or other conditions may contain exposed fibres which could be released upon disturbance." ASBESTOS UPDATE: Misdiagnosis Prompts Call for Greater Awareness ---------------------------------------------------------------- Georgia Hitch, writing for ABC, reported that an Australian woman whose asbestos-related cancer was misdiagnosed twice says doctors and patients need to be more aware of the symptoms of mesothelioma. Two months ago Ruth Rose and her husband, Geoff, from Tuross in NSW, were getting ready for the trip of a lifetime -- they were headed to New York to travel along Route 66. But when she got off the plane in New York, Ms. Rose could barely breathe. "I was shocked to find that I had a chest cavity full of fluid, because it'd never entered my head that that was the problem," she said. Her lung had collapsed; one doctor said it resembled a sponge full of water. "I remembered that my brother had fluid with his mesothelioma, so I told them I'd been exposed to asbestos and [the doctors] knew what to look for, then," Ms. Rose said. "It gave them the clue to do further tests to prove that that's what it was." After surgery to drain the fluid, a biopsy from the lining of Ms. Rose's lung confirmed she had developed the asbestos-related cancer that her brother is also fighting. "It was like I was outside my body, like it was happening to somebody else not me," she said. Mesothelioma is a terminal cancer with few treatment options. It is almost exclusively caused by asbestos, but it is difficult to diagnose. It was an extreme way for Ms. Rose to find out, especially after she had sought help from her doctor for chest pain and shortness of breath -- common symptoms of mesothelioma -- twice in the week before her trip. "[My GP] sent me in to the hospital where they said they were going to do an ultrasound of my abdomen -- thinking it was a gall stone -- and a chest x-ray," Ms. Rose said. "But because they were so busy and short-staffed, they did the ultrasound and said, 'double your [medication] and go home, you're fine, no chest x- ray'." On the second occasion, a day before she flew out, her doctor told her to call paramedics. "And they said, 'look we've been watching you breathe, you seem to be okay, you've probably pulled a muscle in your back, you're right to fly'," Ms. Rose said. Symptoms similar to other conditions Part of the problem was how similar the symptoms of the disease were to a range of other conditions like asthma and emphysema, said Dr. Samantha Herath from not-for-profit integrated cancer treatment centre Chris O'Brien Lifehouse. "It's not easy, definitely not easy to diagnose at the beginning," she said. "Having vigilance and a patient saying that they had exposure helps to raise red flags, and even at specialist levels it's a combined diagnosis that requires a biopsy." In Ms. Rose's case, she told her doctor when her brother was diagnosed last year that she had been exposed to the toxic substance. She lived in Wittenoom -- a former asbestos mining town in West Australia that has since been closed after growing health concerns -- for 11 years with her brother during the 1970s and 80s. "Neither of us thought to mention it," Ms. Rose said. "I didn't really believe I was seriously ill, I didn't know what it was, but I'm a tough old girl." Ms. Rose said even with what she knew from her brother's experience, she had no idea she could also have the disease. "I probably was getting little signals but didn't realise it," she said. "I put it all down to my age . . . I just didn't bother going to see anyone because I just didn't think anything was seriously wrong." Greater awareness of symptoms needed Ms. Rose's misdiagnosis experience was not an isolated incident, said National Asbestos Diseases Foundation president Barry Robson. "It's a terrible terrible story, but it highlights the fact that most GPs in this day and age, even with all the publicity of all the dangers of asbestos, can still misdiagnose an asbestos-related disease," he said. Mr. Robson said he was concerned that public awareness of the dangers of asbestos were slipping, despite it occurring across the country. "I think people have got a bit complacent," he said. "The possibility of being exposed is still there; we keep trying to make the public aware that the danger of asbestos is still present in our community." In August, asbestos was found in the Alice Springs Hospital pathology building, and has also been discovered in Perth Children's Hospital. It has been a long-standing issue in Canberra, with a number of homes insulated with Mr. Fluffy still to be demolished. After spending 11 days in a New York hospital, Ruth is now back home trying to work out exactly how far her mesothelioma has progressed. She said she knew she would not beat the cancer, but was determined to make the most of the time she had left. "I'm going to have the biggest party you can imagine and invite all my friends, I don't want them celebrating after I've gone," Ms. Rose said. ASBESTOS UPDATE: Insurers Face Headwinds in Bid to Audit Payouts ---------------------------------------------------------------- Jeff Montgomery, writing for Law360, reported that insurers' bid for deeper audits of asbestos injury trust payouts on behalf of Philips North America hit skeptical questioning in Delaware's Chancery Court, and reminders that the insurers appeared to have already agreed to nothing more. Vice Chancellor Joseph R. Slights III told John S. Favate of Hardin Kundla McKeon & Poletto PA, counsel to six insurance companies involved, that there are arguments that "you don't have the right to question" the trust's conclusions, based on a settlement approved in 2009 and shored up in 2015 Chancery Court opinion. "You gave up that right in this document," the vice chancellor said to Favate, referring to the settlement agreement. "Now you're asking me to give you something more than what you bargained for." Hundreds of millions in asbestos injury payouts have been approved by the T.H. Agriculture & Nutrition Asbestos Personal Injury Trust for claims processed both before and after THAN sought Chapter 11 protection in 2008. The debtor came to bankruptcy court with a prepackaged Chapter 11 plan under which the trust would be funded with $900 million from insurance companies and Philips North America, the U.S. unit of Koninklijke Philips Electronics NV. The insurers sued in 2014, arguing that outlays appear to be headed significantly higher and that trust settlements might have been based on fraud, including reliance on doctors entangled in fraud disputes elsewhere. An amended, six-claim complaint filed in April included three breach of contract counts as well as a claim of interference with a contract, a request for declaratory judgment and a demand for specific performance. The trust and associated entities, meanwhile, sought dismissal. "We believe these claimants were treated by doctors who have a pattern of falsifying diagnoses," or benefited from miscalculations, Favate said. "The whole purpose of audits is to monitor how payments are made, to make sure our payments are not being affected by miscalculation or fraud." Trust attorneys rejected the complaints and said THAN had complied with its duties to the insurers, the ultimate payors of the damage claims. Sander L. Esserman of Stutzman Bromberg Esserman & Plifka PC, counsel to the trust, said the insurers already have moved through one audit cycle and "now, in desperation, they're asking for more" as another annual audit looms, despite years of litigation already. "This is very 11th hour and very contrived, in my opinion, in light of the record and what's been done and what the trust has agreed to and what the trust had agreed to do in all future audits," Esserman said. "It's our view that they got what they bargained for. There's been no evidence of accounting error. There's been no evidence of fraud submitted to the court." Vice Chancellor Slights said the insurers appeared to be asking the court to write audit protocols that they themselves left unspecified under an earlier agreement and court decisions that now control the process. "The parties have agreed that this is a clear and unambiguous provision," Vice Chancellor Slights said of the audit right, noting that Vice Chancellor John W. Noble declined to be drawn into disputes over detailed arrangements when he handled the case and key rulings before his retirement last year. Vice Chancellor Slights added: "You didn't bargain for the court to intervene and I'm not going to be drawn into what it's going to look like. Why should I do that now when the vice chancellor said he wasn't going to do it in in 2015?" Favate argued that the insurers' objections were raised only in recent years because the potential for fraud was unclear, and said that Vice Chancellor Noble concluded that the insurers had broad audit rights. "We're not asking for the ability to second-guess the trust," Favate said. "We're not asking for the ability to become a shadow claim reviewer." Kenneth H. Frenchman of McKool Smith PC, counsel for Philips Electronics North America Corp., said an expansion of the insurers' audit provision would eventually bring challenges to every claim. "The agreement says the trust has to determine if there's been an accounting error. They have done that," Frenchman said. "They want this court to make those determinations. That's not what the bankruptcy plan said. That's not what the agreement said. They don't get to second-guess." Esserman said that the insurers' demands could potentially lead to release of secret evaluation and weighting methods used by the trust to arrive at settlement amounts. "If it gets out, you're basically telling the world or other people how claims are being valued," Esserman said, "and they can, being good lawyers, fashion their claims to fit the formulas." Vice Chancellor Slights said he would take the arguments under advisement. The insurance companies are represented by John S. Favate and Henry T.M. LeFevre-Snee of Hardin Kundla McKeon & Poletto PA and Marc C. Casarino of White and Williams LLP. Philips Electronics North America Corp. is represented by David J. Baldwin and Jennifer C. Wasson of Potter Anderson & Corroon LLP and Kenneth H. Frenchman of McKool Smith PC. The T.H. Agriculture & Nutrition LLC Asbestos Personal Injury Trust is represented by Daniel K. Hogan and Garvan F. McDaniel of Hogan McDaniel and Sander L. Esserman, Steven A. Felsenthal and David A. Klinger of Stutzman Bromberg Esserman & Plifka PC. The case is AIU Insurance Co. et al v. Philips Electronics North America et al, case number 9852, in the Delaware Court of Chancery. ASBESTOS UPDATE: Exposed Workers Urged to Sue Japanese Gov't. ------------------------------------------------------------- Japan Times reported that the labor ministry said it will encourage individual former asbestos plant workers who suffered mesothelioma or other health damage, and relatives of such workers who have died, to file damages lawsuits against the government. The ministry decided to make the unusual move because such lawsuits need to be settled before the government pays damages to the victims. There are 2,314 workers exposed to asbestos who are believed eligible to receive damages but who have not yet filed lawsuits against the government, according to the ministry. The ministry plans first to send related leaflets to 756 whose names and addresses are known. In October 2014, the Supreme Court for the first time found the government responsible for asbestos pollution affecting plant workers in Osaka Prefecture, ruling that it was illegal for the government to neglect to oblige asbestos plant operators to install exhaust air ducts. Following the ruling, the ministry decided to pay damages, under certain conditions, after settling lawsuits with victims. As of the end of August, a total of some JPY2.1 billion had been paid to 236 plaintiffs, while 197 others were in the process of claiming JPY1.5 billion. ASBESTOS UPDATE: J&J Knew About Asbestos in Talc Decades Ago ------------------------------------------------------------ Sydney Ziverts, writing for Consumer Safety, reported that Johnson & Johnson may be in trouble again if newly released documents from a trial in St. Louis, MO, is any indication. Not only did the large pharmaceutical company know about the link between talcum powder and ovarian cancer -- as has been revealed in previous trials -- but a revealing memo shows that the company may have been aware that the crushed talc it used in its baby powder and body powder products was contaminated with asbestos, a known carcinogen. Earlier in September, lawyers representing more than 50 women in a talcum powder lawsuit unveiled documents that they claim indicate J&J was aware of asbestos fibers in its talc-based products over the course of several decades. These documents appear to contradict other memos, presented by the company's legal team, that claim asbestos "has never been found and it never will." Concerned that asbestos may have tainted talc used in the company's products, a J&J official suggested the company move toward using corn starch in its consumer products rather than talc. According to a Bloomberg News report, inspection officials at Johnson & Johnson found traces of two types of asbestos in talc sourced from a Vermont mine. A 1973 memo details their findings, while a 1974 booklet describes asbestos contaminating talc obtained from a mine the company bought in Italy. These revelations add a new wrinkle to the already embattled pharmaceutical and consumer products company. To date, juries have found the company liable in four cases, with more than $700 million in damages being paid to women diagnosed with ovarian cancer (or their surviving family members). Asbestos, Talc & Ovarian Cancer While there is still some debate over how big of a role talc plays in causing ovarian cancer, there is little doubt that asbestos is the primary cause of some types of cancer, and a contributory cause for others. Mesothelioma is the most directly linked cancer to be caused by asbestos. It most commonly develops in the lining of the lungs, but it can also originate in the abdomen or heart. Although rare, mesothelioma is extremely deadly, with most patients dying in less than a year after diagnosis. Other cancers that have been linked to asbestos include cancers of the colon, lungs, pharynx (throat), stomach, rectum -- and ovaries. In fact, after mesothelioma, the two cancers most closely linked with asbestos are ovarian cancer and laryngeal cancer, according to a variety of scientific studies. However, most of those studies have focused on occupational exposure to asbestos, primarily because industrial workplaces factories, mines, shipyards, and construction sites have seen the highest amounts of asbestos exposure. Very few studies have been done on direct exposure through asbestos-contaminated talc -- mostly because many people believed Johnson & Johnson and other companies when they said their talc-based products were asbestos free. Talcum Powder & Ovarian Cancer Guide With this new evidence that asbestos may have been found in baby powder and body powder products for decades, it will likely strengthen the lawsuits against J&J, given that there is an already established medical link between asbestos and cancer. Even if the exact role that talc plays in ovarian cancer -- and it is clear that there is some role, given that talc particles have been found in ovarian tumors going back to at least the 1970s -- is still unknown, the additional evidence of asbestos exposure is likely to increase the number of women seeking to make the consumer products company pay. This particular class action lawsuit covers more than 50 women who filed in St. Louis, Missouri, and based on how it is going so far, it could be J&J's most expensive yet. Previously, the company had tried to get the suit thrown based on a recent Supreme Court ruling that limits state courts' ability to consider complaints filed by out-of-state plaintiffs. However, a federal judge dismissed Johnson & Johnson's claims, deciding that the plaintiffs had filed their initial complaints well before the established deadline. In any case, the company so far has refused to settle any of the claims made against it, a strategy that has proven costly and time consuming. Whether this new evidence becomes a tipping point that makes the giant multinational corporation consider a new approach remains to be seen. What to Do If You Used Talcum Powder For decades, many women were told they should use baby powder as part of their daily feminine hygiene routine. This in spite of the fact that Johnson & Johnson knew about medical studies potentially tying the mineral to ovarian cancer. So what should women do now? * First, stop using talcum powder on or near your genitals. This includes powdering undergarments, sanitary napkins, tampons, or other products that may be used near your vagina. * If you exhibit any signs or symptoms of ovarian cancer, talk to your doctor and get them checked immediately. Early detection is important to survival for any form of cancer. * If you are diagnosed with ovarian cancer after years of using talcum powder products, talk to a lawyer who can help you understand your legal rights. You may be eligible for compensation to pay for treatment and related expenses, and most reputable attorneys will evaluate your case for free. ASBESTOS UPDATE: Mesothelioma Victim Awarded $6.8MM Jury Verdict ---------------------------------------------------------------- A Superior Court jury in Boston returned a verdict of $6.8 million dollars against New England Insulation, a Canton company that distributed and installed asbestos insulation material until the early 1970s. Former Massachusetts insulator Timothy Ross passed away due to mesothelioma, an asbestos-related cancer, on Aug. 19, 2013. His widow, Amy Ross, pursued this case individually and on behalf of his estate. "Our family, including my children, are very pleased that justice was served," said Ross. "Were he here, I know my husband would be greatly appreciative of the team that represented him and the jury for their hard work and dedication." This is the second multi-million-dollar verdict in two weeks for the Thornton Law Firm and co-counsel Waters & Kraus against New England Insulation. On Sept. 21, 2017, another Boston jury returned a verdict of $7.55 million for Gerald Sylvestre, a former New Hampshire power plant worker currently undergoing treatment for mesothelioma. "We're very happy with the verdict reached by the jury," said attorney Andrew Wainwright of Thornton Law Firm. "They recognized the pain the Ross family endured through the years and rightfully held New England Insulation responsible for their actions." Thornton Law Firm was founded in 1978 by Michael Thornton and two other attorneys doing groundbreaking work for victims of mesothelioma and other asbestos-related diseases. Now the leading injury law firm in Massachusetts and the largest plaintiff law firm in New England, the firm has 18 attorneys representing thousands of clients in a wide variety of plaintiff-side work. Thornton Law Firm has represented asbestos victims in New England for nearly 40 years and this commitment led the firm to aid in the creation of the Thornton House, which provides housing for mesothelioma and asbestos disease patients and families. ASBESTOS UPDATE: Off-Roading Can Expose Riders to Asbestos ---------------------------------------------------------- Safety and Health reported that people who participate in "off- roading" in certain areas of the United States may be exposed to cancer-linked substances, including asbestos, according to researchers at the Cincinnati Children's Hospital Medical Center. The researchers looked at 15 previous studies and reports to determine the risk caused by off-road vehicle use in regions known to have hazardous mineral fibers in the soil or unpaved road surfaces. Dust churned up by four wheel-drive vehicles, all- terrain vehicles, motorcycles and other vehicles intended for off- highway use can contain naturally occurring asbestos and erionite -- an asbestos-like substance found in sedimentary rocks in the western United States and Appalachian Mountains. Researchers found 665 cases in which the two materials were present in the soil in five Western states. About 80 percent were within 20 miles of an off-road vehicle trail, and almost one-third were within one mile. "ORVs have been designed to operate in rugged, unpaved terrain, and they can produce copious amounts of dust," Chris Wolfe, an epidemiologist and lead author of the study, said in a press release. "This puts riders -- particularly children -- at risk of inhalation exposure, but the dust can also be blown to other areas and may pose a risk to others." Wolfe suggests that riders either avoid these locations altogether or wear safety masks and eyewear to reduce exposure. The study was published online July 20 in the International Journal of Hygiene and Environmental Health. ASBESTOS UPDATE: Appeals Court Rejects "Bare-Metal" Defense ----------------------------------------------------------- Jonathan Stempel, writing for Reuters, reported that a federal appeals court said manufacturers of "bare-metal" products can be held liable for negligence in maritime cases for asbestos-related injuries that are a reasonably foreseeable result of their conduct. Ruling on an issue that has divided federal courts, the 3rd U.S. Circuit Court of Appeals revived negligence claims by Roberta Devries and Shirley McAfee, widows of two former U.S. Navy officers who said their husbands contracted cancer from asbestos exposure. ASBESTOS UPDATE: Sonoma State University Ordered to Pay $2.9MM -------------------------------------------------------------- Ryan Estes, writing for Sonoma State Star, reported that Sonoma State University must pay faculty and staff who worked in Stevenson Hall and other buildings a total of $2.9 million in damages for violations of occupational health and safety laws concerning the improper handling of asbestos, a Sonoma County judge has decided. The judgment, awarded in September by judge Nancy Case Shaffer, is part of a whistleblower lawsuit filed by Thomas Sargent, a university employee who claimed SSU forced him to resign after raising alarms about how the school was handling asbestos at Stevenson Hall and other locations. "We are happy about the ruling," said Gina Voight, chapter president of the CSU employees union at Sonoma State and administrative coordinator of the department of kinesiology. "We hope this will open the door for all 23 campuses to address asbestos problems as well as challenge Cal-OSHA's outdated standards of what acceptable levels of asbestos are." SSU President Judy K. Sakaki has said the university will appeal the decision. The award is in addition to $387,000 that a jury awarded to Sargent in March after finding both the California State University Board of Trustees and Sargent's direct supervisor, Craig Dawson, liable. The court awarded Sargent the money for lost income, mental suffering and emotional distress as a result of being forced to leave. "We hope that the results of this case will prompt the university to change its behavior," said Dustin Collier, primary lawyer for Sargent. "Mr. Sargent and his attorneys are committed to protecting all of its workers' with a safe place of employment." Under Shaffer's order, the school will distribute a quarter of the $2.9 million to 232 teachers, administrative assistants and other university employees who worked in Stevenson Hall between May 1, 2013 and March 6, 2015. The amount is about $3,100 each. The remaining three-quarters of the penalties will go to the Labor and Workforce Development Agency and the Occupational Health and Safety Administration. An appeal will place a hold on the collection and distribution of any penalty awards until after the appeals court resolves it. The university spent approximately $3.5 million in legal fees to fight the case and take it to trial. Sargent, an environmental health and safety specialist at Sonoma State, said he noticed unsafe practices starting in 2012, with the treatment of asbestos materials in Stevenson Hall and other buildings, and voiced his concerns to Dawson, his immediate superior. According to the lawsuit, Sargent, a 24-year employee of SSU, contends faculty retaliated against him and forced him to resign for reporting the unsafe conditions. "When the trial concluded earlier this year, the jury made factual findings about the number and type of OSHA violations committed by the Sonoma State campus," said Collier. "However, the jury does not have the power to determine the amount of penalties that are owed. Only a judge can." Shaffer awarded Sargent his job back on Sept. 21 ruling. His reinstatement is on hold during the appeal process. Meanwhile, the Sonoma Chapter of the California Faculty Association had filed a grievance over the asbestos with the university, hired a consultant and worked with OSHA for independent testing. "We are advocating for the health and safety for faculty, staff and students," said Elaine Newman, chapter president of CFA at Sonoma State and professor in the mathematics and statistics department. The test results from OSHA's independent study said the air in any building did not exceed the legal threshold for asbestos fibers. In a written statement to its members, the CFA decided late August to withdraw its grievance because they "don't believe they can convince an arbitrator that the campus has violated our contract when the test results are in the legal range." The statement also cautioned members, saying though the results were within legal range, it does not mean air quality is necessarily safe; only that there haven't been any findings that the campus had too much asbestos as established by government code. Sakaki said in a campus-wide email that Stevenson Hall did not pose a safety risk. "It is important for everyone to know that the jury in the case found that Stevenson Hall is a safe and healthful environment," she said. According to Sakaki, Sonoma State has been "regularly conducting air monitoring tests in Stevenson and other older buildings," and have tested more than 100 samples over the past year. All but two showed no detectable asbestos fibers, she said. Of the two samples that did prove positive for fibers, both "were barely over the detection threshold and well within the range that Cal/OSHA considers acceptable," she said. "Nothing is more important than the safety of our employees and students," she said. "If conditions should ever warrant it, the university would take all appropriate steps to abate the hazards and protect the well-being of our students, faculty and staff." OSHA's website says there is a permissible asbestos exposure limit of 0.1 fiber per cubic centimeter for work in all industries. However, that asbestos PEL is a target guideline for regulatory purposes only and does not establish any level of "safe" asbestos exposure. "The Sonoma State community should be aware that there is a separate lawsuit pending right now," Collier said. "In that case, we are seeking penalties for the same OSHA violations to the extent they occurred after March 6, 2015 as well as alleging additional OSHA violations that were not known during the Sargent case." Collier alleges they have tests that prove the same violations still exist at Sonoma State to this day and that the university continues to allow its faculty and staff to work in unsafe environments, not just at Stevenson Hall but other buildings as well. Some new OSHA violations surround the campus' electrical grid and electrician training/certification protocols. Details about how often the university will be testing for asbestos and what maintenance will be done to control the problem were not available. For questions about specifics, the STAR was directed to Craig Dawson, director of environmental health and safety on campus, who was out of the office. Dawson administers the asbestos management plan on campus. ASBESTOS UPDATE: Shipyard Worker's Family Gets Asbestos Payment --------------------------------------------------------------- STV.tv reported that the family of a former shipyard worker in Edinburgh who died after coming into contact with asbestos has been awarded more than GBP340,000 in compensation. Lord Clarke ruled the relatives of George Manson should receive the payout because Henry Robb Ltd, which admitted liability for the exposure, did not do enough to protect him from the substance. Mr. Manson, originally from Dalkeith in Midlothian, died aged 81 in February 2016 from mesothelioma, an aggressive cancer. The lethal condition has affected many shipyard workers who came into contact with asbestos in the 1960s and 1970s. Lord Clarke made the ruling in a written judgment that was issued at the Court of Session in Edinburgh. Mr. Manson worked in the shipyard, which was located in Leith, before moving to England with his family in the 1970s. Mr. Manson came into contact with asbestos during his time at the yard. The court heard asbestos can cause mesothelioma. Mr. Manson was diagnosed with the illness in July 2015 and his condition deteriorated quickly. Lawyers acting for Henry Robb agreed the company did not do enough to stop Mr. Manson from being exposed to asbestos. In a hearing held earlier this year, Lord Clarke was asked to determine the amount of compensation that should be awarded to Mr. Manson's family. After hearing evidence Mr. Mason was a member of a "very close" family and his relatives were devastated by his death, Lord Clarke ruled payment should be set at GBP340,634. Lord Clarke wrote: "When the deceased was diagnosed with his fatal condition in July 2015, the family were informed that the deceased would be likely to live only for a few months. "In the event the deceased survived for about ten months but his condition deteriorated rapidly and within two months of diagnosis he could not really help himself. "Although his family had been warned that the deceased was going to die, his death itself came as a great shock to all of them." ASBESTOS UPDATE: Shield Vital to Protect Vets' Asbestos Claims -------------------------------------------------------------- James Bauerle, writing for The Journal Gazette, reported that retired Army Brigadier Gen. James Bauerle is vice chairman and legislative chairman of the Military Veterans Coalition of Indiana. There are some hard truths embedded in the history of asbestos: Exposure to the deadly mineral continues to claim thousands of lives a year, with military veterans in their 60s and older overrepresented among the victims. And there is a limited amount of money to pay for their injuries. Uncontrolled litigation and gaming the system are depleting the funds available for sick veterans. The Furthering Asbestos Claim Transparency Act is a much-needed reform to a system that currently favors unscrupulous lawyers at the expense of legitimate asbestos claimants. Veterans deserve the right to sue over their exposure to asbestos, which was ubiquitous in Navy ships and military installations until the 1970s. But recovery options are limited, and plaintiffs' lawyers have driven virtually all the big asbestos manufacturers into bankruptcy. This leaves a dwindling number of companies and asbestos bankruptcy trusts with a limited pool of assets to pay future claims. These trusts are typically under the control of the plaintiffs' lawyers themselves -- the equivalent of putting the foxes in charge of the henhouse. An audit of one of the biggest trusts found that 41 percent of claimants had no disease or a less severe condition than claimed. More recent investigations have uncovered evidence of widespread fraud. People only have one set of lungs and when they receive the tragic diagnosis of mesothelioma, the deadly cancer associated with asbestos exposure, they need all the help they can get. And by preventing the trusts from sharing information among themselves, with civil courts or with outside entities like Medicare and the Veterans Administration, lawyers can quietly multiply a single legitimate case into numerous fraudulent claims. Lawyers typically collect 30 percent or more of what their clients receive, and by manipulating claims to boost their fees they leave less money for future, equally deserving victims. The roughly 60 asbestos trusts outstanding currently hold more than $30 billion in assets, but they are being drained at a rapid pace. Lawyers have clustered their cases in jackpot districts to maximize recoveries at the expense of future claimants. The situation is particularly dire for veterans, who genuinely can claim to have been exposed to asbestos in multiple locations as they moved from ship to ship or from barracks to depot. I'm not suggesting they shouldn't be able to recover based on such varied work histories. But it is important for multiple claims to be disclosed and made available to a judge so everybody involved knows up front what a person has claimed and what they've been paid for so far. The FACT Act would address some of this gamesmanship by requiring the trusts to make quarterly reports with the bankruptcy court detailing claimants' names and their claims against the trust. It doesn't require them to disclose settlement amounts, and it doesn't require disclosure of sensitive information like Social Security numbers. Ohio passed its own version of FACT in 2013. Despite the claims of plaintiffs' lawyers, there has been no appreciable delay in the resolution of cases since the law went into effect. It's time to enact federal legislation to bring order and transparency to the entire asbestos bankruptcy system. ASBESTOS UPDATE: Johnson & Johnson Facing Asbestos Talc Suits ------------------------------------------------------------- Matt Mauney, writing for Asbestos.com, reported that recently unsealed documents from a lawsuit against consumer goods and pharmaceutical giant Johnson & Johnson revealed the company knew for decades its talc products may have contained deadly asbestos fibers. The files show Johnson & Johnson was alerted of asbestos contamination risks in the early 1970s and trained employees to reassure the public its iconic baby powder products were never contaminated with the carcinogenic mineral. It is the latest chapter in the ongoing controversy over the alleged link between talcum powder and cancer. The lawsuit -- filed on behalf of more than 50 women in St. Louis -- is among more than 5,000 talc-related claims against J&J. Most of the lawsuits blame the company's talc products for causing women to develop ovarian cancer, but previous lawsuits link talc to mesothelioma, a rare cancer caused almost exclusively by exposure to asbestos. In 2016, a Los Angeles Superior Court jury awarded Philip Depoian $18 million against talc supplier Whittaker, Clark & Daniels. It remains the largest verdict for mesothelioma linked to talcum powder. The St. Louis-based lawsuit against J&J alleges talc used in the company's products "is not now, nor has it ever been, free from asbestos and asbestiform fibers." Johnson & Johnson Ensures Products are Asbestos-Free The U.S. Food and Drug Administration (FDA) requires testing to ensure talcum powder products are asbestos free. In the lawsuit, J&J supplied documents showing tests of its talc dating back to 1972, finding no traces of asbestos. But federal regulations on talcum powder didn't exist until 1973. A statement on the company's website reads: "Since the 1970s, talc used in consumer products has been required to be asbestos-free, so JOHNSON'S talc products do not contain asbestos, a substance classified as cancer-causing. JOHNSON'S Baby Powder products contain only U.S. Pharmacopeia (USP) grade talc, which meets the highest quality, purity and compliance standards." Talc products were popular through the mid-1970s, and many continue to be used today. The natural mineral can be found in many pharmaceuticals and cosmetics as well as in chalk, rubber and ceramics. Considered one of the world's softest minerals and coveted for its ability to absorb moisture, talc has been mined from deposits interwoven with asbestos fibers. According to the unsealed documents in the lawsuit, J&J officials expressed concern over possible asbestos contamination from talc mined in Vermont and Italy. One official suggested the company should start using corn starch in its consumer products instead of talc. A J&J research scientist also reportedly persuaded one of the company's talc suppliers -- the Val Chisone mine in Italy -- to stop distributing English- language versions of a 1974 informational booklet that revealed talc from the mine contained trace amounts of asbestos. "The business threat is that it can raise doubts on the validity of the documentation of purity and safety of talc," the scientist said in the document. How Asbestos in Talc Can Cause Cancer Inhaling or ingesting asbestos fibers can lead to serious diseases, including asbestosis, lung cancer and mesothelioma. Some studies suggest asbestos fibers can accumulate in the ovaries of women, potentially leading to ovarian cancer. Using talc products on the genitals could be to blame, but there is still much debate regarding exposure pathways. Dr. Barry Castleman, an asbestos risk consultant, told Bloomberg that even trace amounts of asbestos in products such as baby powder can pose a cancer risk. "It is a problem even if it's found in small amounts in talc, especially because it's used by children and women," Castleman said. J&J spokesman Ernie Knewitz cited the FDA's regulations when defending his company in an emailed statement to Bloomberg. "We are confident that our talc products are, and always have been, free of asbestos, based on decades of monitoring, testing and regulation," Knewitz said. "Historical testing of samples by the FDA, numerous independent laboratories, and numerous independent scientists have all confirmed the absence of asbestos in our talc products." A 2012 study from the FDA found no traces of asbestos in dozens of talc-containing cosmetic products. However, the agency acknowledged the results were not conclusive since only four or the nine requested talc suppliers submitted samples. According to the statement on J&J's website, "The company's sources for talc are routinely evaluated using a sophisticated battery of tests designed to ensure compliance with all global standards." Pharmaceutical Giant Continues to Fight Lawsuits J&J has been held liable by five juries related to links between its talc products and ovarian cancer, including a $417 million verdict in August. In the last two years, the company has been hit with more than $600 million in jury awards. None of those cases are related to asbestos, however. The first asbestos-related lawsuit against J&J expected to go to trial involves California resident Tina Herford, who allegedly developed mesothelioma from breathing in the company's Baby Powder and Shower to Shower products between 1956 and 1993. Unlike failure-to-warn lawsuits against asbestos insulation manufacturers, who intentionally added the toxic mineral to products, claims against talc companies gives plaintiffs a new angle -- negligence in the failure to detect a contaminant and falsely ensuring a product's safety. Although Herford's case is the first set for trial against J&J, there have been several notable asbestos-related verdicts against other talc manufacturers. In April 2015, a California woman won a $13 million lawsuit against Colgate-Palmolive. The jury ruled Judith Winkel developed mesothelioma from asbestos in the company's Cashmere Bouquet talcum powder. That same year, a New York jury awarded $10.55 million in a wrongful death case against R.T. Vanderbilt. In the record-setting 2016 case against Whittaker, Clark & Daniels, the jury ruled Depoian developed mesothelioma after he was exposed to asbestos-contaminated talc his father brought home from working in a barber shop. ASBESTOS UPDATE: Rogers Corp. Had 616 Pending Claims at June 30 --------------------------------------------------------------- Rogers Corporation had 616 outstanding claims related to asbestos- related matters at June 30, 2017, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The Company states, "For the six months ended June 30, 2017, 175 claims were dismissed and 9 claims were settled. Settlements totaled approximately US$1.2 million for the six months ended June 30, 2017. "We, like many other industrial companies, have been named as a defendant in a number of lawsuits filed in courts across the country by persons alleging personal injury from exposure to products containing asbestos. We have never mined, milled, manufactured or marketed asbestos; rather, we made and provided to industrial users a limited number of products that contained encapsulated asbestos, but we stopped manufacturing these products in the late 1980s. Most of the claims filed against us involve numerous defendants, sometimes as many as several hundred. "We recognize a liability for asbestos-related contingencies that are probable of occurrence and reasonably estimable. In connection with the recognition of liabilities for asbestos related matters, we record asbestos-related insurance receivables that are deemed probable. Our estimates of asbestos-related contingent liabilities and related insurance receivables are based on an independent actuarial analysis and an independent insurance usage analysis prepared annually by third parties. The actuarial analysis contains numerous assumptions, including general assumptions regarding the asbestos-related product liability litigation environment and company-specific assumptions regarding claims rates (including diseases alleged), dismissal rates, average settlement costs and average defense costs. The insurance usage analysis considers, among other things, applicable deductibles, retentions and policy limits, the solvency and historical payment experience of various insurance carriers, the likelihood of recovery as estimated by external legal counsel and existing insurance settlements. "We review our asbestos-related forecasts annually in the fourth quarter of each year unless facts and circumstances materially change during the year, at which time we would analyze these forecasts. Currently, these analyses project liabilities and related insurance receivables over a 10-year period. It is probable we will incur additional costs for asbestos-related claims following this 10-year period, but we do not believe that any related contingencies are reasonably estimable beyond such period based on, among other things, the significant proportion of future claims included in the analysis and the lag time between the date a claim is filed and its resolution. Accordingly, no liability (or related asset) has yet been recorded for claims that may be asserted subsequent to 2026. "As of December 31, 2016, the asbestos-related claims and insurance receivables for the 10-year projection period were US$52.0 million and US$48.4 million, respectively. As of June 30, 2017, there have been no changes to these projections. "The defense and settlement costs of our asbestos-related product liability litigation have been substantially covered by insurance. We have identified continuous coverage for primary, excess and umbrella insurance from the 1950s through the mid-1980s, except for a period in the early 1960s, with respect to which we have entered into an agreement for primary, but not excess or umbrella, coverage. In addition, we have entered into a cost sharing agreement with most of our primary, excess and umbrella insurance carriers to facilitate the ongoing administration and payment of claims by the carriers. The cost sharing agreement may be terminated by any party, but will continue until a party elects to terminate it. The agreement has not been terminated, however, we expect to exhaust individual primary, excess and umbrella coverages over time, and there is no assurance that such exhaustion will not accelerate due to additional claims, damages and settlements or that coverage will be available as expected. Accordingly, while we believe it is reasonably possible that we may incur losses and defense costs in excess of our accruals in the future, we do not have sufficient data to provide a reasonable estimate or range of such losses and defense costs, at this time. "The amounts recorded for the asbestos-related liability and the related insurance receivables were based on facts known at the time and a number of assumptions. However, projecting future events, such as the number of new claims to be filed each year, the average cost of disposing of such claims, the length of time it takes to dispose of such claims, coverage issues among insurers and the continuing solvency of various insurance companies, as well as the numerous uncertainties surrounding asbestos litigation in the United States could cause the actual liability and insurance recoveries for us to be higher or lower than those projected or recorded. "There can be no assurance that our accrued asbestos liabilities will approximate our actual asbestos-related settlement and defense costs, or that our accrued insurance recoveries will be realized. We will continue to vigorously defend ourselves and believe we have substantial unutilized insurance coverage to mitigate future costs related to this matter." A full-text copy of the Form 10-Q is available at https://is.gd/i5zzph ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at June30 ---------------------------------------------------------------- Rockwell Automation, Inc., continues to face personal injury lawsuits filed by people claiming exposure to asbestos in certain product components, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The Company states, "We (including our subsidiaries) have been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of our products many years ago. Currently there are a few thousand claimants in lawsuits that name us as defendants, together with hundreds of other companies. In some cases, the claims involve products from divested businesses, and we are indemnified for most of the costs. However, we have agreed to defend and indemnify asbestos claims associated with products manufactured or sold by our former Dodge mechanical and Reliance Electric motors and motor repair services businesses prior to their divestiture by us, which occurred on January 31, 2007. "We are also responsible for half of the costs and liabilities associated with asbestos cases against the former Rockwell International Corporation's divested measurement and flow control business. But in all cases, for those claimants who do show that they worked with our products or products of divested businesses for which we are responsible, we nevertheless believe we have meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos-containing components, and the lack of any impairing medical condition on the part of many claimants. We defend those cases vigorously. Historically, we have been dismissed from the vast majority of these claims with no payment to claimants. "We have maintained insurance coverage that we believe covers indemnity and defense costs, over and above self-insured retentions, for claims arising from our former Allen-Bradley subsidiary. Our insurance carrier entered into a cost share agreement with us to pay the substantial majority of future defense and indemnity costs for Allen-Bradley asbestos claims. We believe that this arrangement will continue to provide coverage for Allen-Bradley asbestos claims throughout the remaining life of the asbestos liability. "We also have rights to historic insurance policies that provide indemnity and defense costs, over and above self-insured retentions, for claims arising out of certain asbestos liabilities relating to the divested measurement and flow control business. We initiated litigation against several insurers to pursue coverage for these claims, subject to each carrier's policy limits, and the case is now pending in Los Angeles County Superior Court. In September 2016, we entered into settlement agreements with certain insurance company defendants, and we continue to pursue our claims against the remaining defendants. We believe these settlement agreements will continue to provide partial coverage for these asbestos claims throughout the remaining life of asbestos liability. "The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on our experience defending asbestos claims, we do not believe these lawsuits will have a material effect on our business, financial condition or results of operations. "We have, from time to time, divested certain of our businesses. In connection with these divestitures, certain lawsuits, claims and proceedings may be instituted or asserted against us related to the period that we owned the businesses, either because we agreed to retain certain liabilities related to these periods or because such liabilities fall upon us by operation of law. In some instances, the divested business has assumed the liabilities; however, it is possible that we might be responsible for satisfying those liabilities if the divested business is unable to do so. "In connection with the spin-offs of our former automotive business, semiconductor systems business and avionics and communications business, the spun-off companies have agreed to indemnify us for substantially all contingent liabilities related to the respective businesses, including environmental and intellectual property matters. "In conjunction with the sale of our Dodge mechanical and Reliance Electric motors and motor repair services businesses, we agreed to indemnify Baldor Electric Company for costs and damages related to certain legal, legacy environmental and asbestos matters of these businesses arising before January 31, 2007, for which the maximum exposure would be capped at the amount received for the sale." A full-text copy of the Form 10-Q is available at https://is.gd/fq0SRs ASBESTOS UPDATE: AMETEK Still Faces Asbestos Lawsuits at June 30 ---------------------------------------------------------------- AMETEK, Inc., continues to defend itself against a number of asbestos-related lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. AMETEK states, "The Company (including its subsidiaries) has been named as a defendant in a number of asbestos-related lawsuits. Certain of these lawsuits relate to a business which was acquired by the Company and do not involve products which were manufactured or sold by the Company. In connection with these lawsuits, the seller of such business has agreed to indemnify the Company against these claims (the "Indemnified Claims"). The Indemnified Claims have been tendered to, and are being defended by, such seller. The seller has met its obligations, in all respects, and the Company does not have any reason to believe such party would fail to fulfill its obligations in the future. To date, no judgments have been rendered against the Company as a result of any asbestos-related lawsuit. The Company believes it has strong defenses to the claims being asserted and intends to continue to vigorously defend itself in these matters." A full-text copy of the Form 10-Q is available at https://is.gd/YZsWKL ASBESTOS UPDATE: Exelon Unit Had US$81.0MM Reserves at June 30 -------------------------------------------------------------- Exelon Corporation's subsidiary, Exelon Generation Company, LLC, had reserved US$81 million at June 30, 2017, for asbestos-related claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The Company states, "At June 30, 2017 and December 31, 2016, Generation had reserved approximately US$81 million and US$83 million, respectively, in total for asbestos-related bodily injury claims. As of June 30, 2017, approximately US$21 million of this amount related to 224 open claims presented to Generation, while the remaining US$59 million of the reserve is for estimated future asbestos-related bodily injury claims anticipated to arise through 2050, based on actuarial assumptions and analyses, which are updated on an annual basis. On a quarterly basis, Generation monitors actual experience against the number of forecasted claims to be received and expected claim payments and evaluates whether an adjustment to the reserve is necessary." A full-text copy of the Form 10-Q is available at https://is.gd/TIaMR1 ASBESTOS UPDATE: Exelon Expects Additional Exposure at June 30 -------------------------------------------------------------- Exelon Corporation disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that there is a reasonable possibility that Exelon may have additional exposure to estimated future asbestos-related bodily injury claims in excess of the amount accrued and the increases could have a material adverse effect on future results of operations and cash flows of the Company and its subsidiaries Exelon Generation Company, LLC, Commonwealth Edison Company, PECO Energy Company and Baltimore Gas and Electric Company. The Company states, "On November 22, 2013, the Supreme Court of Pennsylvania held that the Pennsylvania Workers Compensation Act does not apply to an employee's disability or death resulting from occupational disease, such as diseases related to asbestos exposure, which manifests more than 300 weeks after the employee's last employment-based exposure, and that therefore the exclusivity provision of the Act does not preclude such employee from suing his or her employer in court. The Supreme Court's ruling reverses previous rulings by the Pennsylvania Superior Court precluding current and former employees from suing their employers in court, despite the fact that the same employee was not eligible for workers compensation benefits for diseases that manifest more than 300 weeks after the employee's last employment-based exposure to asbestos. Since the Pennsylvania Supreme Court's ruling in November 2013, Exelon, Generation, and PECO have experienced an increase in asbestos-related personal injury claims brought by former PECO employees, all of which have been reserved for on a claim by claim basis. Those additional claims are taken into account in projecting estimates of future asbestos-related bodily injury claims. "On November 4, 2015, the Illinois Supreme Court found that the provisions of the Illinois' Workers' Compensation Act and the Workers' Occupational Diseases Act barred an employee from bringing a direct civil action against an employer for latent diseases, including asbestos-related diseases that fall outside the 25-year limit of the statute of repose. The Illinois Supreme Court's ruling reversed previous rulings by the Illinois Court of Appeals, which initially ruled that the Illinois Worker's Compensation law should not apply in cases where the diagnosis of an asbestos related disease occurred after the 25-year maximum time period for filing a Worker's Compensation claim. Since the Illinois Supreme Court's ruling in November 2015, Exelon, Generation, and ComEd have not experienced a significant increase in asbestos-related personal injury claims brought by former ComEd employees. "There is a reasonable possibility that Exelon may have additional exposure to estimated future asbestos-related bodily injury claims in excess of the amount accrued and the increases could have a material adverse effect on Exelon's, Generation's, ComEd's, PECO and BGE's future results of operations and cash flows." A full-text copy of the Form 10-Q is available at https://is.gd/TIaMR1 ASBESTOS UPDATE: BGE Still Defends Asbestos Claims at June 30 ------------------------------------------------------------- Exelon Corporation disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that its subsidiary, Baltimore Gas and Electric Company, continues to face asbestos-related claims. The Company states, "Since 1993, BGE and certain Constellation (now Generation) subsidiaries have been involved in several actions concerning asbestos. The actions are based upon the theory of "premises liability," alleging that BGE and Generation knew of and exposed individuals to an asbestos hazard. In addition to BGE and Generation, numerous other parties are defendants in these cases. "Most asbestos claims which have been resolved relating to BGE and certain Constellation subsidiaries have been dismissed or resolved without any payment and a small minority of these cases has been resolved for amounts that were not material to BGE or Generation's financial results. Presently, there are an immaterial number of asbestos cases pending against BGE and certain Constellation subsidiaries." A full-text copy of the Form 10-Q is available at https://is.gd/TIaMR1 ASBESTOS UPDATE: Rexnord Estimates $37MM Liability at June 30 ------------------------------------------------------------- Rexnord Corporation estimates US$37.0 million potential liability for the asbestos-related claims as of June 30, 2017, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended June 30, 2017. The Company states, "The Company's subsidiaries are involved in various unresolved legal actions, administrative proceedings and claims in the ordinary course of business involving, among other things, product liability, commercial, employment, workers' compensation, intellectual property claims and environmental matters. The Company establishes accruals in a manner that is consistent with accounting principles generally accepted in the United States for costs associated with such matters when liability is probable and those costs are capable of being reasonably estimated. Although it is not possible to predict with certainty the outcome of these unresolved legal actions or the range of possible loss or recovery, based upon current information, management believes the eventual outcome of these unresolved legal actions, either individually or in the aggregate, will not have a material adverse effect on the financial position, results of operations or cash flows of the Company. "In connection with its sale of the Company, Invensys plc ("Invensys") provided the Company with indemnification against certain contingent liabilities, including certain pre-closing environmental liabilities. The Company believes that, pursuant to such indemnity obligations, Invensys is obligated to defend and indemnify the Company with respect to the matters relating to the Ellsworth Industrial Park Site and to various asbestos claims. The indemnity obligations are subject, together with indemnity obligations relating to other matters, to an overall dollar cap equal to the purchase price, which is an amount in excess of US$900 million. The following paragraphs summarize the most significant actions and proceedings: * In 2002, Rexnord Industries, LLC ("Rexnord Industries") was named as a potentially responsible party ("PRP"), together with at least ten other companies, at the Ellsworth Industrial Park Site, Downers Grove, DuPage County, Illinois (the "Site"), by the United States Environmental Protection Agency ("USEPA"), and the Illinois Environmental Protection Agency ("IEPA"). Rexnord Industries' Downers Grove property is situated within the Ellsworth Industrial Complex. The USEPA and IEPA allege there have been one or more releases or threatened releases of chlorinated solvents and other hazardous substances, pollutants or contaminants, allegedly including but not limited to a release or threatened release on or from the Company's property, at the Site. The relief sought by the USEPA and IEPA includes further investigation and potential remediation of the Site and reimbursement of USEPA's past costs. Rexnord Industries' allocated share of past and future costs related to the Site, including for investigation and/or remediation, could be significant. All previously pending property damage and personal injury lawsuits against the Company related to the Site have been settled or dismissed. Pursuant to its indemnity obligation, Invensys continues to defend the Company in known matters related to the Site and has paid 100% of the costs to date. * Multiple lawsuits (with approximately 300 claimants) are pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain brakes and clutches previously manufactured by the Company's Stearns division and/or its predecessor owners. Invensys and FMC, prior owners of the Stearns business, have paid 100% of the costs to date related to the Stearns lawsuits. Similarly, the Company's Prager subsidiary is a defendant in two pending multi-defendant lawsuits relating to alleged personal injuries due to the alleged presence of asbestos in a product allegedly manufactured by Prager. Additionally, there are numerous individuals who have filed asbestos related claims against Prager; however, these claims are currently on the Texas Multi-district Litigation inactive docket. The ultimate outcome of these asbestos matters cannot presently be determined. To date, the Company's insurance providers have paid 100% of the costs related to the Prager asbestos matters. The Company believes that the combination of its insurance coverage and the Invensys indemnity obligations will cover any future costs of these matters. "In connection with the Company's acquisition of The Falk Corporation ("Falk"), Hamilton Sundstrand provided the Company with indemnification against certain products-related asbestos exposure liabilities. The Company believes that, pursuant to such indemnity obligations, Hamilton Sundstrand is obligated to defend and indemnify the Company with respect to the asbestos claims, and that, with respect to these claims, such indemnity obligations are not subject to any time or dollar limitations. "Falk, through its successor entity, is a defendant in multiple lawsuits pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain clutches and drives previously manufactured by Falk. There are approximately 100 claimants in these suits. The ultimate outcome of these lawsuits cannot presently be determined. Hamilton Sundstrand is defending the Company in these lawsuits pursuant to its indemnity obligations and has paid 100% of the costs to date. "Certain Water Management subsidiaries are also subject to asbestos litigation. As of June 30, 2017, Zurn and numerous other unrelated companies were defendants in approximately 7,000 asbestos related lawsuits representing approximately 17,000 claims. Plaintiffs' claims allege personal injuries caused by exposure to asbestos used primarily in industrial boilers formerly manufactured by a segment of Zurn. Zurn did not manufacture asbestos or asbestos components. Instead, Zurn purchased them from suppliers. These claims are being handled pursuant to a defense strategy funded by insurers. "As of June 30, 2017, the Company estimates the potential liability for the asbestos-related claims as well as the claims expected to be filed in the next ten years to be approximately US$37.0 million, of which Zurn expects its insurance carriers to pay approximately US$28.0 million in the next ten years on such claims, with the balance of the estimated liability being paid in subsequent years. The US$37.0 million was developed based on actuarial studies and represents the projected indemnity payout for current and future claims. There are inherent uncertainties involved in estimating the number of future asbestos claims, future settlement costs, and the effectiveness of defense strategies and settlement initiatives. As a result, actual liability could differ from the estimate described herein and could be substantial. The liability for the asbestos-related claims is recorded in Other liabilities within the condensed consolidated balance sheets. "Management estimates that its available insurance to cover this potential asbestos liability as of June 30, 2017, is approximately US$241.9 million, and believes that all current claims are covered by insurance. However, principally as a result of the past insolvency of certain of the Company's insurance carriers, certain coverage gaps will exist if and after the Company's other carriers have paid the first US$165.9 million of aggregate liabilities. "As of June 30, 2017, the Company had a recorded receivable from its insurance carriers of US$37.0 million, which corresponds to the amount of this potential asbestos liability that is covered by available insurance and is currently determined to be probable of recovery. However, there is no assurance that US$241.9 million of insurance coverage will ultimately be available or that this asbestos liability will not ultimately exceed US$241.9 million. Factors that could cause a decrease in the amount of available coverage include: changes in law governing the policies, potential disputes with the carriers regarding the scope of coverage, and insolvencies of one or more of the Company's carriers. The receivable for probable asbestos-related recoveries is recorded in Other assets within the condensed consolidated balance sheets. A full-text copy of the Form 10-Q is available at https://is.gd/RqIXP7 ASBESTOS UPDATE: Transocean Units Had 23 Claims at June 30 ---------------------------------------------------------- Transocean Ltd. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that there are 23 asbestos-related claims against its subsidiaries pending as of June 30, 2017, in Mississippi and Louisiana with regards to their drilling operations. The Company states, "In 2004, several of our subsidiaries were named, along with numerous other unaffiliated defendants, in 21 complaints filed on behalf of 769 plaintiffs in the Circuit Courts of the State of Mississippi, and in 2014, a group of similar complaints were filed in Louisiana. "The plaintiffs, former employees of some of the defendants, generally allege that the defendants used or manufactured asbestos containing drilling mud additives for use in connection with drilling operations, claiming negligence, products liability, strict liability and claims allowed under the Jones Act and general maritime law. The plaintiffs generally seek awards of unspecified compensatory and punitive damages, but the court- appointed special master has ruled that a Jones Act employer defendant, such as us, cannot be sued for punitive damages. "At June 30, 2017, 15 plaintiffs have claims pending in Mississippi and eight plaintiffs have claims pending in Louisiana in which we have or may have an interest. "We intend to defend these lawsuits vigorously, although we can provide no assurance as to the outcome. We historically have maintained broad liability insurance, although we are not certain whether insurance will cover the liabilities, if any, arising out of these claims. Based on our evaluation of the exposure to date, we do not expect the liability, if any, resulting from these claims to have a material adverse effect on our condensed consolidated statement of financial position, results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://is.gd/Njds92 ASBESTOS UPDATE: Transocean Unit Had 168 Injury Suits at June 30 ---------------------------------------------------------------- Transocean Ltd. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017, that one of its subsidiaries was a defendant in approximately 168 asbestos-related injury lawsuits as of June 30, 2017. The Company states, "One of our subsidiaries has been named as a defendant, along with numerous other companies, in lawsuits arising out of the subsidiary's manufacture and sale of heat exchangers, and involvement in the construction and refurbishment of major industrial complexes alleging bodily injury or personal injury as a result of exposure to asbestos. "As of June 30, 2017, the subsidiary was a defendant in approximately 168 lawsuits, some of which include multiple plaintiffs, and we estimate that there are approximately 182 plaintiffs in these lawsuits. "For many of these lawsuits, we have not been provided with sufficient information from the plaintiffs to determine whether all or some of the plaintiffs have claims against the subsidiary, the basis of any such claims, or the nature of their alleged injuries. "The operating assets of the subsidiary were sold and its operations were discontinued in 1989, and the subsidiary has no remaining assets other than insurance policies, rights and proceeds, including (i) certain policies subject to litigation and (ii) certain rights and proceeds held directly or indirectly through a qualified settlement fund. The subsidiary has in excess of US$1.0 billion in insurance limits potentially available to the subsidiary. "Although not all of the policies may be fully available due to the insolvency of certain insurers, we believe that the subsidiary will have sufficient funding directly or indirectly, including from settlements and payments from insurers, assigned rights from insurers and coverage-in-place settlement agreements with insurers to respond to these claims. "While we cannot predict or provide assurance as to the outcome of these matters, we do not expect the ultimate liability, if any, resulting from these claims to have a material adverse effect on our condensed consolidated statement of financial position, results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://is.gd/Njds92 ASBESTOS UPDATE: Standard Motor Faces 1,595 Cases at June 30 ------------------------------------------------------------ Approximately 1,595 cases were outstanding at June 30, 2017, for which Standard Motor Products, Inc., may be responsible for any related liabilities in connection to its former brake business, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The Company states, "In 1986, we acquired a brake business, which we subsequently sold in March 1998 and which is accounted for as a discontinued operation. When we originally acquired this brake business, we assumed future liabilities relating to any alleged exposure to asbestos-containing products manufactured by the seller of the acquired brake business. In accordance with the related purchase agreement, we agreed to assume the liabilities for all new claims filed on or after September 2001. Our ultimate exposure will depend upon the number of claims filed against us on or after September 2001 and the amounts paid for indemnity and defense thereof. At June 30, 2017, approximately 1,595 cases were outstanding for which we may be responsible for any related liabilities. Since inception in September 2001 through June 30, 2017, the amounts paid for settled claims are approximately US$22.1 million. "In evaluating our potential asbestos-related liability, we have considered various factors including, among other things, an actuarial study of the asbestos related liabilities performed by an independent actuarial firm, our settlement amounts and whether there are any co-defendants, the jurisdiction in which lawsuits are filed, and the status and results of settlement discussions. As is our accounting policy, we consider the advice of actuarial consultants with experience in assessing asbestos-related liabilities to estimate our potential claim liability. The methodology used to project asbestos-related liabilities and costs in our actuarial study considered: (1) historical data available from publicly available studies; (2) an analysis of our recent claims history to estimate likely filing rates into the future; (3) an analysis of our currently pending claims; and (4) an analysis of our settlements to date in order to develop average settlement values. "The most recent actuarial study was performed as of August 31, 2016. The updated study has estimated an undiscounted liability for settlement payments, excluding legal costs and any potential recovery from insurance carriers, ranging from US$31 million to US$47.7 million for the period through 2059. The change from the prior year study was a US$2.3 million decrease for the low end of the range and a US$3.4 million decrease for the high end of the range. The decrease in the estimated undiscounted liability from the prior year study at both the low end and high end of the range reflects our actual experience over the prior twelve months, our historical data and certain assumptions with respect to events that may occur in the future. Based on the information contained in the actuarial study and all other available information considered by us, we have concluded that no amount within the range of settlement payments was more likely than any other and, therefore, in assessing our asbestos liability we compare the low end of the range to our recorded liability to determine if an adjustment is required. "Based upon the results of the August 31, 2016 actuarial study, a favorable adjustment to the asbestos liability was not recorded in our consolidated financial statements as the difference between our recorded liability and the liability in the actuarial report at the low end of the range was not material. Future legal costs, which are expensed as incurred and reported in loss from discontinued operations in the accompanying statement of operations, are estimated, according to the updated study, to range from US$42.7 million to US$78.6 million for the period through 2059." A full-text copy of the Form 10-Q is available at https://is.gd/gVPfiF ASBESTOS UPDATE: Summary Judgment Favors Foster Wheeler, Warren --------------------------------------------------------------- Judge Eduardo C. Robreno of the U.S. District Court of Delaware approves and adopts the August 30, 2017 Report and Recommendation filed by Magistrate Judge Sherry R. Fallon finding that there are no genuine disputes as to any material facts, thereby granting the motion for summary judgment filed by Foster Wheeler Energy Corporation and Warren Pumps, LLC. The case is ICOM HENRY EVANS, et al., Plaintiffs, v. ALFA LAVAL, INC., et al., Defendants, Civil Action No. 15-681, (D. Del.). A full-text copy of the Order dated September 26, 2017, is available at https://is.gd/WGk2XP from Leagle.com. Icom Henry Evans, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC. Icom Henry Evans, Plaintiff, represented by Charles E. Soechting, Jr., pro hac vice & Samuel I. Iola, pro hac vice. Johanna Elaine Evans, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC & Samuel I. Iola, pro hac vice. General Electric Company, Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. IMO Industries, Inc., Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. ASBESTOS UPDATE: Court Denies John Crane's Summary Judgment Bid --------------------------------------------------------------- Judge Eduardo C. Robreno of the U.S. District Court of Delaware issued an order adopting the August 30, 2017 Report and Recommendation filed by Magistrate Judge Sherry R. Fallon, finding the existence of a genuine dispute as to a material fact, thereby denying the motion for partial summary judgment regarding punitive damages filed by John Crane, Inc. The case is ICOM HENRY EVANS, et al., Plaintiffs, v. ALFA LAVAL, INC., et al., Defendants, Civil Action No. 15-681, (D. Del.). A full-text copy of the Order dated September 26, 2017, is available at https://is.gd/eCgLSG from Leagle.com. Icom Henry Evans, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC. Icom Henry Evans, Plaintiff, represented by Charles E. Soechting, Jr., pro hac vice & Samuel I. Iola, pro hac vice. Johanna Elaine Evans, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC & Samuel I. Iola, pro hac vice. General Electric Company, Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. IMO Industries, Inc., Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon. ASBESTOS UPDATE: NY App. Div. Reverses Owens Summary Judgment ------------------------------------------------------------- The First Department of the Appellate Division of the Supreme Court of New York unanimously reverses the Order entered January 31, 2017, which granted the motion of Defendant International Paper Company for summary judgment, dismissing Plaintiff's products liability claims as against it, granted the motion of Defendant Owens-Illinois, Inc., for summary judgment dismissing plaintiffs' products liability claims and common-law negligence claim as against it, and sua sponte dismissed the remainder of plaintiffs' claims against International Paper Company and Owens- Illinois, and reinstates the claims. The First Department explains that the re-sizing of wood laminate doors with asbestos-containing cores resulted in the incidental release of asbestos dust into Plaintiffs' facilities. In any event, International Paper Company and Owens-Illinois both failed to make out their prima facie burdens as movants, inasmuch as no testimony, either expert or lay, was proffered regarding the foreseeability that the doors, and thus their core, would be cut for their use as paneling. To the extent that the order sua sponte dismissed the complaint, that portion of the order is not appealable as of right. However, given the extraordinary nature of the sua sponte relief, that is, dismissal of the complaint, the First Department nostra sponte deems the notice of appeal from that portion of the order to be a motion for leave to appeal, grant such leave, and reverse the order. The appealed case ALL CRAFT FABRICATORS, INC., at al., Plaintiffs- Appellants, v. ATC ASSOCIATES, INC., et al., Defendants, INTERNATIONAL PAPER COMPANY, et al., Defendants-Respondents, Index No. 156897/13, (1st Dept. App. N.Y.). A full-text copy of the Order dated September 26, 2017, is available at https://is.gd/drnHvv from Leagle.com. Cullen and Dykman LLP, New York (Timothy J. Flanagan of counsel), for appellants. Forman Watkins & Krutz LLP, Lake Success (Thomas M. Toman, Jr. of counsel), for International Paper Company, respondent. Riley Safer Holmes & Cancila LLP, New York (Joshua D. Lee of counsel), for Owens-Illinois, Inc., respondent. ASBESTOS UPDATE: PI Suit vs. Volkswagen in "Haynes" Dismissed ------------------------------------------------------------- Judge Eduardo C. Robreno of the U.S. District Court of Delaware has issued an order approving and adopting the August 22, 2017 Report and Recommendation, filed by Magistrate Judge Sherry R. Fallon, granting Volkswagen Group of America, Inc.'s unopposed motion to dismiss after finding that the Court lacks jurisdiction over the movant. The case is HAROLD HAYNES, et al., Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants, Civil Action No. 16-607, (D. Del.). A full-text copy of the Order dated September 26, 2017, is available at https://is.gd/LLHtPl from Leagle.com. Harold Haynes, Plaintiff, represented by Adam Balick, Balick & Balick, LLC. Harold Haynes, Plaintiff, represented by Michael Collins Smith, Balick & Balick, LLC, Andrew Caulfield Dalton, Dalton & Associates P.A. & Bartholomew J. Dalton, Dalton & Associates P.A.. Judy Haynes, Plaintiff, represented by Adam Balick, Balick & Balick, LLC, Michael Collins Smith, Balick & Balick, LLC, Andrew Caulfield Dalton, Dalton & Associates P.A. & Bartholomew J. Dalton, Dalton & Associates P.A.. IMO Industries, Inc., Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. IMO Industries, Inc., Cross Claimant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. ASBESTOS UPDATE: NY App. Div. Denies Re-Argument Bid in "Warren" ---------------------------------------------------------------- The First Department of the Appellate Division of the Supreme Court of New York denies the separate motions for re-argument filed by J-M Manufacturing Company, Inc., and Theresa Warren, as well as the alternative motion of J-M Manufacturing for leave to appeal to the Court of Appeals from the decision and order of the Court, entered on June 15, 2017. The Case In Re NEW YORK CITY ASBESTOS LITIGATION. THERESA WARREN, ETC., Plaintiff-Respondent, v. AMCHEM PRODUCTS, INC., ET AL., Defendants, J-M MANUFACTURING COMPANY, INC., Defendant-Appellant, Index No. 190281/14, (1st Dept. App. N.Y.). A full-text copy of the Order dated September 26, 2017, is available at https://is.gd/gvZHMr from Leagle.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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