/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/171020.mbx C L A S S A C T I O N R E P O R T E R Friday, October 20, 2017, Vol. 19, No. 208 Headlines ABSOLUTE RESOLUTIONS: Court Strikes Aguirre Class Cert. Bid ADDICTIVE BEHAVIORAL: Kuri, et al. Seek to Certify Class ALLSTATE PROPERTY: Settlement in "Larey" Suit Has Initial OK AMBIT ENERGY: Ct. Denies Move to Dismiss Consumer Protection Suit AMERICAN EXPRESS: Court Denied Class Cert. Bid in "Heilmann" ANGIE'S LIST: "Strauss" Suit Seeks to Certify 2 Classes ANSELMO LINDBERG: Court Denies Motion to Certify Class as Moot ARBITECH LLC: Denial of Arbitration in Trade Secrets Suit Upheld ASSET RECOVERY: "Lamb" Case Dismissed Without Prejudice BANCO BRADESCO: NY Court Allows Investor Claims to Proceed BELL-MARK TECHNOLOGIES: "Berger" Suit Alleges FLSA Violations BLUE STAR FARMS: Court Denies Martinez's Bid to Certify Class BRAD LIVINGSTON: "Johnson" Suit Seeks Class Certification BRINKER INT'L: Court Grants Dismissal of Internet Access Suit BSN MEDICAL: Court Denied Placeholder Bid to Certify Class CABLE MARKETING: "Hobbs" Suit Seeks to Certify FLSA Class CARIBBEAN CRUISE: Court Strikes Duplicative Bid to Certify Class CATHOLIC BISHOPS CONFERENCE: Class Certification Bid Denied CAWLEY & BERGMANN: Placeholder Bid for Class Certification Filed CBE GROUP: Placeholder Bid for Class Certification Filed CELADON TRUCKING: "Ratliff" Suit Seeks to Certify Class CELGENE CORP: Certification of 3 Classes Sought in Revlimid Case CEMPRA INC: "Franchi" Suit Alleges Securities Act Violation CHICAGO, IL: Court Grants Class Certification in "Conyers" CHRYSLER GROUP: Court Denies "Cox" Motion for Class Certification CHSPSC LLC: Court Certifies Arkansas Residents Class in "Mounce" COOK COUNTY, IL: Bid to Certify Class in "Rogers" Terminated COOK COUNTY, IL: Williams File Amended Motion to Certify Class CORECIVIC: "Dodson" Suit Asks Court to Certify Diabetics Class CREDENCE RESOURCE: Placeholder Bid for Class Certification Filed CSAA INSURANCE: Court Denies Motion to Certify Class as Moot CVS: Class Suit by Store Detectives May Proceed DCM SERVICES: Machnik Files "Damasco" Bid for Class Certification DEBT RECOVERY: Faces "Nunez" Suit in E. Dist. New York DEVON ENERGY: Martinez Seeks to Certify Safety Consultants Class ENSIGN UNITED: Wins Summary Judgment in Calif. WARN Act Suit EQUIFAX INC: Faces "Baker" Suit in Minnesota ESSENDANT INC: Alpha Tech Suit Seeks to Certify Class FELDCO FACTORY: Joint Bid for Conditional Certification Granted FIFTH GENERATION: Court Denies Singleton Class Certification Bid FOREMOST INSURANCE: Court Denied as Moot Bid to Certify Class FOX RESTAURANT: "Pae" Suit Seeks to Certify Classes of Servers FRANK & ISRAEL: CHC Systems Seeks Class Certification FULENWIDER ENTERPRISES: Holland Seeks to Certify FLSA Class GARDENS OF FOUNTAIN: "Jones" Suit Seeks to Certify FLSA Class GEORGIA: Faces Class Suit over Special Education Program GLOBAL CREDIT: Court Denies Bid to Certify Class as Premature GREAT CIRCLE: "Bush" Suit Seeks to Certify Case Managers Class GULFPORT ENERGY: Safety & Completions Consultants Class Okayed H & J INT'L: Faces "Liu" Suit in E. Dist. New York HEARTLAND PAYMENT: Settlement Class in "Rudel" Suit Okayed HEIDI WASHINGTON: "Arnold" Suit Seeks to Certify Prisoners Class HELIX ENERGY: "Hugee" Suit Seeks to Certify FLSA Class HEMMER LAW: Placeholder Bid for Class Certification Filed HOGAN TRANSPORTATION: Court Certifies Class in "Fairfax" Suit HOUSTON, TX: Faces Class Suit over Serial Rapist HOUSTON, TX: 5th Cir. Appeal over Prison Bail Policies Underway HUNTER WARFIELD: Placeholder Bid for Class Certification Filed JACKSONVILLE, FL: "Chapman" Suit Seeks to Certify Classes JP MORGAN CHASE: Faces "Denton" Suit in E. Dist. Va. KERRI BARKLEY: Court Denied Jacobs' Motion to Certify Class KING PLASTIC: "Fusic" Suit Seeks to Certify Factory Workers Class KLUEVER & PLATT: Court Grants Righeimer Class Certification Bid KNIGHT TRANSPORTATION: "Ratliff" Suit Seeks to Certify Class KOHL'S CORPORATION: Renewed Class Certification Bid Underway LABELLE HOMEHEALTH: Court Certifies Class in "Richert" Suit LEE N' EDDIES: Urban Elevator's Class Certification Bid Denied LESTER'S ACTIVEWEAR: Faces "Young" Suit in S.D. New York LTI TRUCKING: "Ratliff" Suit Seeks to Certify Class MARRIOTT INTERNATIONAL: Parrott Seeks to Notify Class Members MCCARTHY & BURGESS: Placeholder Bid for Class Certification Filed MED-CARE DIABETIC: Court Grants Motion for Class Certification MESILLA VALLEY TRANS: "Ratliff" Suit Seeks Class Certification MICHAELS STORES: Court Narrows Claims in "Rowe" Suit MIDLAND CREDIT: "Grigsby" Suit Alleges FDCPA Violation MIDLAND CREDIT: Placeholder Bid for Class Certification Filed MIZUHO BANK: "Greene" Suit Seeks to Certify 2 Classes MONTGOMERY, NY: Court Denies Motion for Class Certification NEW YORK, NY: Class Suit Filed over Bail System NORTH AMERICAN BANCARD: Bid for Leave to File Under Seal Okayed NURTURE INC: Wins Bid to Dismiss "Birdsong" Suit O'REILLY AUTOMOTIVE: Court Grants Bid for Remand in "Courtright" OCWEN LOAN: Court Denies Move to Dismiss "McWhorter" FDCPA Suit ON-LINE ADMINISTRATORS: Court Certifies 2 Classes in "Trenz" Suit OWL INC: Perez et al. Suit Seeks to Certify Class PARKING REVENUE: Court Dismissed "Franklin" Case PERMANENTE MEDICAL: Court Okays Accord in Call-Center Nurses Suit PRECISION MOTOR: "Ratliff" Suit Seeks Class Certification PROCESSING SOLUTIONS: Denial of "Baillie" Class Cert Reversed PROFESSIONAL TRANSPORTATION: Class Cert. Bid in "Cooksey" Nixed QI ENTERPRISES: Faces "Ramirez" Suit in Calif. Super. Ct. RBC BEARINGS: Court Grants Reynoso's Bid for Class Certification ROYAL CARIBBEAN: Passengers Sue over Travel During Harvey RSI ENTERPRISES: Class Certification Bid in "Machnik" Terminated RUSSELL P. GOLDMAN: "Carney" Suit Seeks to Certify Class SAFELITE FULFILLMENT: Ontiveros "Suit" Seeks Class Certification SAM HOUSTON: Tex. App. Flips Denial of Arbitration in Class Suit SCANA CORP: Delmater Sues over Abandoned Nuke Plant Project SLIDE FIRE: Faces Class Suit by Vegas Shooting Victims SMITH TRANSPORT: "Ratliff" Suit Seeks to Certify Class SONIC CORP: Vanderzanden and Carlton Sue over Data Breach ST. LOUIS, MO: "Ahmad" Suit Seeks to Certify Class STARKIST CO: Must Defend Against Price-Fixing Claims SPX CORPORATION: Denial of Injunction in ERISA Suit Affirmed STARWOOD HOTELS: Heilmann Sues over Loyalty Points STATE UNIVERSITY OF NEW YORK: Faces Tennis Players' Suit STEPTOE & JOHNSON: "Houck" Plaintiff Seeks to Notify Class STRATEGY ANESTHESIA: Court Denied Bid for Class Certification SYLVIA MATHEWS BURWELL: Court Denied Class Certification as Moot TARGET CORPORATION: Faraji Seeks to Certify Class & Subclasses TNJ ENTERPRISES: "Gomez" Suit Seeks to Certify FLSA Class TRUGREEN LIMITED: Morris et al. Seek Opt-In Rights Notice TURNER OIL: "Stanley" Suit Seeks to Certify Landmen Class TWITTER INC: Investors' Suit over Stock Price Drop Underway UNITED AIRLINES: "Pumputyte" Suit Seeks Certification of Class WAL-MART ASSOCIATES: "Magadia" Suit Seeks to Certify 3 Classes UBER TECH: Two Women Sue over Sexual Assault by Drivers UBER TECH: Faces Securities Suit by Irving Firemen's Fund UBIQUITI NETWORKS: December 19 Settlement Fairness Hearing Set UNITED COLLECTION: Placeholder Class Cert. Bid Filed in "Derosia" UNITED SITE: Court Conditionally Certifies Technicians Class UNITED STATES: 9th Cir. Rules in Suit over Immigrant Bail UNITED STATES: ACLU Files Suit in Los Angeles over Deportation UNITED STATES: Calif. Judge Permits Privacy Class Suit v. FBI US STEEL: Shareholders Sue over Earnings Loss, Stock Plunge WELLS FARGO: Officers Must Defend Against Shareholder Action WESTMINSTER MANAGEMENT: Tenants Sue over Predatory Fees WEYERHAEUSER COMPANY: Faces Suit Over Products Liability Act WHOLE FOODS: Faces "Banus" Class Suit over POS System WISE COMPANY: "Miller" Suit Seeks Certification of Class WOOD GROUP: "Salinas" Suit Seeks to Certify FLSA Class WORD ENTERPRISES: Court Certifies Delivery Drivers Class ZODIAC U.S.: $952,000 Settlement in "Cuzick" Case Has Initial OK * Supreme Court Hearing over Class Action Waiver Begins Asbestos Litigation ASBESTOS UPDATE: BNSF Railway Still Faces PI Claims at June 30 ASBESTOS UPDATE: Ashland Had 55,000 Open Claims at June 30 ASBESTOS UPDATE: Hercules Had 12,000 Open Claims at June 30 ASBESTOS UPDATE: Gardner Insurance Coverage Suit at Phase II ASBESTOS UPDATE: ITT Units Had 27,000 Claims Pending at June 30 ASBESTOS UPDATE: 3rd Cir. Invalidates Bare Metal Defense ASBESTOS UPDATE: Central Indiana Court Vacated for Remediation ASBESTOS UPDATE: Phila Ct. Rejects Methods for Detecting Asbestos ASBESTOS UPDATE: Solons Seek Clarity on Cases in Baltimore ASBESTOS UPDATE: Contractor Sues Montana for Inaction on Dumping ASBESTOS UPDATE: Woman Who Ate Asbestos as Child Has Rare Cancer ASBESTOS UPDATE: Industry Upset with Higher Asbestos Verdicts ASBESTOS UPDATE: Cabinet Maker Dies from Asbestos Exposure ASBESTOS UPDATE: Manchester Man Killed of Asbestos from Work ASBESTOS UPDATE: Head Start Moves Out After Asbestos Find ASBESTOS UPDATE: Ill. High Ct. Issues Landmark Litigation Opinion ASBESTOS UPDATE: Motion Aims for Recusal Over Non-Disclosure ASBESTOS UPDATE: NY App. Div. Orders "DeMartino" Appeal Withdrawn ASBESTOS UPDATE: PI Claims vs. Whirlpool, et al., Dismissed ASBESTOS UPDATE: Disclosures Protective Order Issued in "Thrash" ASBESTOS UPDATE: PI Suit vs. Conwed Corporation Dismissed ASBESTOS UPDATE: Nooter's Coverage in Various Policies Determined ********* ABSOLUTE RESOLUTIONS: Court Strikes Aguirre Class Cert. Bid ----------------------------------------------------------- In the lawsuit styled Carmen Aguirre, the Plaintiff, v. Absolute Resolutions Corp., et al., the Defendants, Case No. 1:15-cv-11111 (N.D. Ill.), the Hon. Judge Rebecca R. Pallmeyer entered an order denying Defendants' motion to dismiss under Rule 12(b)(1) for lack of standing. According to the docket entry made by the Clerk on September 27, 2017, Plaintiff's motion for class certification is stricken without prejudice to renewal. Status conference was set for October 19, 2017, at 9:00 a.m. The Court encouraged the Parties to explore possible settlement. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=DVDx7q1r ADDICTIVE BEHAVIORAL: Kuri, et al. Seek to Certify Class -------------------------------------------------------- In the lawsuit styled CRYSTAL KURI, On Behalf of Herself and All Others Similarly Situated, the Plaintiffs, v. ADDICTIVE BEHAVIORAL CHANGE HEALTH GROUP, L.L.C, the Defendant, Case No. 2:16-cv-02685-JAR-JPO (D. Kan.), the Plaintiffs ask the Court to conditionally certify a class of: "all hourly employees of Defendant Addictive Behavioral Change Health Group, L.L.C., employed from October 5, 2013, to the Present as nurses." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=BSt2jb17 The Plaintiffs are represented by: Phillip M. Murphy II, Esq. LAW OFFICE OF PHILLIP M. MURPHY, II 4717 Grand Ave., Ste. 250 Kansas City, MO 64112 Telephone: (913) 661 2900 Facsimile: (913) 312 5841 E-mail: Phillip@phillipmurphylaw.com ALLSTATE PROPERTY: Settlement in "Larey" Suit Has Initial OK ------------------------------------------------------------ In the lawsuit styled MICHAEL H. LAREY, individually and on behalf of all others similarly situated, the Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, the Defendant, Case No. 4:14-cv-04008-SOH (W.D. Ark.), the Hon. Judge Susan O. Hickey entered an order: 1. preliminarily approving a Stipulation and Proposed Settlement as fair, adequate, and reasonable; 2. granting Plaintiffs' motion for preliminary approval of the Proposed Settlement in all material respects, subject to further consideration at the Final Approval Hearing; 3. granting Plaintiff's motion for preliminary class certification for settlement purposes only: "all Persons in Arkansas who had a Covered Loss, where estimated labor depreciation was initially deducted from the claim payment, and where the claim was paid at less than the limit of liability (accounting for deductible) as set forth on the declarations page of the applicable Policy"; Excluded from the Class are: (1) Persons who received indemnification payment(s) for full replacement cost with no initial deduction of any estimated labor depreciation; (2) Persons who received indemnification payment(s) in the full amount of limit of liability shown on the declarations page of their Policy; (3) Allstate and its affiliates, officers, and directors; (4) Members of the judiciary and their staff to whom this action is assigned; and (5) Class Counsel; and 4. preliminary appointing Michael H. Larey as representative of the Class. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=sUiWjV0B AMBIT ENERGY: Ct. Denies Move to Dismiss Consumer Protection Suit ----------------------------------------------------------------- The United States District Court for the Western District of New York issued a Decision and Order denying Defendant's Motion to Dismiss Plaintiff's Complaint in the case captioned SCOTT LAZAREK AND HENRY BRETON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. AMBIT ENERGY HOLDINGS, LLC, AMBIT NEW YORK, LLC, and AMBIT NORTHEAST, LLC Defendants, Case No. 15-CV-6361-FPG (W.D.N.Y.). Defendants moved to dismiss Plaintiffs' complaint. Plaintiffs Scott Lazarek and Henry Breton are former customers of Ambit Energy. Ambit is an energy service company (ESCO) that purports to help customers budget their household expenses and avoid the highs and lows of the usual energy bill. Plaintiffs initiated this class action lawsuit against Ambit for violations of New York and Maryland consumer protection laws and for unjust enrichment. Plaintiffs allege that, when they discontinued their services with Ambit, the company used at least two illegal tactics to charge them undisclosed fees. According to Plaintiffs, Ambit first failed to tell them their budget payments were not covering all amounts due and second added unexpected budget billing settlement charges to their final bills. Defendants argue that Plaintiffs' complaint should be dismissed for three reasons. First, Defendants argue that the Court should refrain from exercising jurisdiction over this case because it involves a utility and, for that reason, the New York and Maryland Public Service Commissions have primary jurisdiction over the dispute. Second, Defendants argue that the complaint should be dismissed under Federal Rule of Civil Procedure 8(a) for failure to satisfy the notice-pleading requirement. Third, Defendants argue that the complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Primary Jurisdiction The doctrine of primary jurisdiction represents a version of the administrative exhaustion requirement. A claim that requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body, raises primary jurisdiction questions. Id. Defendants assert that, because this case involves a public utility, the Court should allow New York and Maryland Public Service Commissions to resolve the billing disputes at issue. The Court disagrees. The billing dispute at issue in this case does not implicate either of these policy concerns. The complaint does not challenge the rate that Defendants charged for natural gas or electricity. Rather, Plaintiffs allege that Defendants charged more than that rate applied to the amount of energy used. Resolving that issue will not compromise the regulation of natural gas or electricity and does not require specialized knowledge. Accordingly, the Court declines to refrain from exercising jurisdiction over this case. Failure to Satisfy Rule 8(a) Rule 8(a) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. In other words, the complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests. That requirement demands more than an unadorned, the defendant- unlawfully-harmed-me accusation. A formulaic recitation of the elements of a cause of action" or naked assertion devoid of further factual enhancement will not do. "Nothing in Rule 8 prohibits collectively referring to multiple defendants where the complaint alerts defendants that identical claims are asserted against each defendant." Vantone Group Ltd. Liability Co. v. Yangpu NGT Indus. Co., No. 13-CV-7639, 2014 WL 354676, at *4 (S.D.N.Y. July 2, 2015). Here, Plaintiffs allege that Ambit Energy Holdings and Ambit New York acted jointly in billing Plaintiff Lazarek and Ambit Energy Holdings and Ambit Northeast acted jointly in billing Plaintiff Breton. Plaintiffs need not elaborate further on each defendant's role in that conduct to comply with Rule 8(a). The test under Rule 8(a) is simply whether Defendants have received adequate notice of the claims. Because the Court finds that Plaintiffs provided Defendants with notice of the claims asserted against them, there is no basis for dismissal pursuant to Rule 8(a). Failure to State a Claim under Rule 12(b)(6) To succeed on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the defendant must show that the complaint contains insufficient facts to state a claim for relief that is plausible on its face. Plausibility is not akin to a probability requirement. Rather, plausibility requires more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Defendants challenge the sufficiency of Plaintiffs' allegations under the New York General Business Law, Maryland's Consumer Protection Act, and unjust enrichment. The New York General Business Law The New York General Business Law section 349-d(3)3 prohibits any person who sells or offers for sale any energy services for, or on behalf of, an ESCO" from engag[ing] in any deceptive acts or practices in the marketing of energy services. The scope of Section 349 is intentionally broad. To state a claim under it, a plaintiff must allege "first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act. First, Ambit argues that Plaintiffs' allegations are not factually accurate. This argument holds no water. For the purposes of a motion to dismiss, the Court must take all of the factual allegations in the complaint as true. Second, Ambit argues that Plaintiffs do not plausibly allege that the challenged act was materially misleading. Ambit argues that Plaintiffs' allegations are not plausible because consumers are charged with the knowledge of publically available information. Plaintiffs are not asserting that Defendants misled them by charging the difference between the average amount billed and the actual amount of energy that he used. Rather, Plaintiffs are alleging that the numbers do not add up. Ambit, without explanation, charged an amount that exceeded the difference between the energy billed and the energy used. No publicly available information warned Plaintiffs that Ambit might require them to pay ambiguous, unaccounted for, and unexpected expenses. Third, Ambit argues that Plaintiffs do not plausibly allege that the challenged act caused the alleged injury. Defendants argue that Ambit charged Plaintiff Lazarek only for energy that he consumed. For that reason, Defendants argue Plaintiff Lazarek was not injured. Again, Defendants misunderstand Plaintiffs' allegations and the Court's consideration of factual assertions at the pleading stage. Plaintiffs allege that Ambit charged Lazarek fees in excess of what he owed for energy that he actually consumed. That, according to Plaintiffs, is the source of Lazarek's injury. In reviewing a motion to dismiss, the Court must assume that Plaintiffs' allegations are true. Because the Court finds Plaintiffs sufficiently stated a claim under the New York General Business Law, there is no basis to dismiss this portion of the complaint. Maryland's Consumer Protection Act Maryland's Consumer Protection Act prohibits false, falsely disparaging, or misleading commercial practices. A plaintiff bringing a claim under Section 13-301 must allege (1) an unfair or deceptive practice or misrepresentation, (2) reliance, and (3) that the practice or misrepresentation caused the plaintiff injury. Ambit argues that Plaintiffs' allegations under Section 13-301 are insufficient because those allegations lack factual support, fail to plead reliance, fail to plead causation, and fail to plead materiality. Plaintiffs allege that Breton chose Ambit over his local utility company because he was interested in saving money on energy charges. That allegation supports Plaintiffs' assertion that Breton relied on the omission because it is substantially likely that Breton would not have chosen Ambit over his local utility company had Ambit disclosed the omitted information. Because the Court finds Plaintiffs sufficiently stated a claim under Maryland's Consumer Protection Act, there is no basis to dismiss this portion of the complaint. Unjust Enrichment A person who is unjustly enriched at the expense of another is subject to liability in restitution. Defendants argue that Plaintiffs' unjust enrichment claim should be dismissed because it fails to meet Federal Rule of Civil Procedure 9(b)'s heightened pleading standard, it fails to assert which state law applies, and it fails to state a plausible claim for relief on behalf of consumers outside of New York and Maryland. Defendants argue that Plaintiffs' unjust enrichment claim should be dismissed because it fails to meet Federal Rule of Civil Procedure 9(b)'s heightened pleading standard, it fails to assert which state law applies, and it fails to state a plausible claim for relief on behalf of consumers outside of New York and Maryland. The Court disagrees in all respects. First, Rule 9(b)'s heightened pleading standard does not apply to Plaintiff's unjust enrichment claim. Second, Defendants argue that Plaintiffs failed to plead which state's law applies to their unjust enrichment claims and that this failure alone is sufficient to dismiss Plaintiffs' unjust enrichment claim. The Court disagrees. The elements of unjust enrichment are similar in every state and Defendants have made no showing that any differences in various states' laws are material at this stage of the litigation. Third, Defendants argue that the complaint is devoid of any allegations that would plausibly give rise to a claim for relief on behalf of any non-New York or Maryland putative class members. This argument, made prior to discovery pertaining to a class certification motion, is premature. Plaintiffs have alleged that Defendants offer the allegedly deceptive budget-billing plan at issue in several markets across the United States. Defendants may raise their objections regarding class certification in a Rule 23 motion. For these reasons, Defendants' Motion to Dismiss is denied. A full-text copy of the District Court's September 28, 2017 Decision and Order is available at http://tinyurl.com/yayz2wks from Leagle.com. Scott Lazarek, Plaintiff, represented by Seth Richard Lesser, Klafter Olsen & Lesser LLP, 1250 Connecticut Ave., N.W.. Suite 200. Washington,DC 20036. Scott Lazarek, Plaintiff, represented by Steven L. Wittels -- slw@wittelslaw.com -- Henry Breton, Plaintiff, represented by Seth Richard Lesser, Klafter Olsen & Lesser LLP & Steven L. Wittels. Ambit Energy Holdings, LLC, Defendant, represented by Brian Laudadio -- blaudadio@bsk.com -- Bond Schoeneck & King PLLC, Michael W. Stockham -- Michael.Stockham@tklaw.com -- Thompson & Knight LLP, pro hac vice, Stephen C. Rasch -- Stephen.Rasch@tklaw.com -- Thompson & Knight LLP, pro hac vice & Edward P. Hourihan, Jr. -- ehourihan@bsk.com -- Bond Schoeneck & King PLLC. Ambit New York, LLC, Defendant, represented by Brian Laudadio, Bond Schoeneck & King PLLC, Michael W. Stockham, Thompson & Knight LLP, pro hac vice, Stephen C. Rasch, Thompson & Knight LLP, pro hac vice & Edward P. Hourihan, Jr., Bond Schoeneck & King PLLC. Ambit Northeast, LLC, Defendant, represented by Brian Laudadio, Bond Schoeneck & King PLLC, Michael W. Stockham, Thompson & Knight LLP, pro hac vice, Stephen C. Rasch, Thompson & Knight LLP, pro hac vice & Edward P. Hourihan, Jr., Bond Schoeneck & King PLLC. AMERICAN EXPRESS: Court Denied Class Cert. Bid in "Heilmann" ------------------------------------------------------------ According to the docket entry made by the Clerk of Court on October 3, 2017, in the lawsuit styled William Heilmann, the Plaintiff, v. American Express Bank, FSB, et al., the Defendants, Case No. 1:17-cv-06942 (N.D. Ill.), the Hon. Judge John J. Tharp Jr. held that the Plaintiff's motion for class certification is denied without prejudice. The Court noted that the motion acknowledges that it is being filed at this time only to prevent the plaintiff from being "picked off" by an attractive settlement offer. The Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), obviates the need for such prophylactic motions. See also Conrad v. Boiron, Inc., 869 F.3d 536, 541 (7th Cir. 2017); Laurens v. Volvo Cars of North America, LLC, 868 F.3d 622, 628 (7th Cir. 2017); Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545 (7th Cir. 2017); Chapman v. First Index, Inc., 796 F.3d 783, 786-87 (7th Cir. 2015). The pending motion for class certification is dismissed without prejudice to its refiling when the plaintiff is prepared to substantively brief the motion or in accordance with a future scheduling order entered by the Court. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=EeUWCMeY In the Motion, the Plaintiff asks the Court to certify a class of: "all American Express Starwood Preferred Guest (TM) ("SPG")- branded credit card holders who qualified for an SPG Starpoints (TM) welcome bonus but who did not receive such points within the stated timeframe or not at all." Excluded from the Class are Defendants and any of their respective officers, directors or employees, the presiding judge, Class counsel and members of their immediate families, and persons or entities who timely and properly exclude themselves from the Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=D6FNeiXA The Plaintiff is represented by: William M. Sweetnam, Esq. SWEETNAM LLC 100 North La Salle Street, Suite 2200 Chicago, IL 60602 Telephone: (312) 757 1888 E-mail: wms@sweetnamllc.com ANGIE'S LIST: "Strauss" Suit Seeks to Certify 2 Classes ------------------------------------------------------- In the lawsuit styled STEVE STRAUSS d/b/a CLASSIC TREE CARE, the Plaintiff, v. ANGIE'S LIST, INC., the Defendant, Case No. 2:17-cv- 02560-JAR-TJJ (D. Kan.), the Plaintiff asks the Court to certify two classes. National Class: "(i) all persons in the United States who, within the applicable statute of limitations, paid any sums or gave anything of value to Angie's List in exchange for the promotion, advertisement or marketing of such person's goods or services; and (ii) all persons in the United States who, within the applicable statute of limitations, did not pay Angie's List to promote, market or advertise their goods or services, but whose goods or services were of a kind and character reasonably fungible with goods or services sold or provided directly to consumers by Service Providers who did pay Angie's List to market, advertise and/or promote their goods and services and with whom such persons were in competition"; and Kansas Class: "(i) all persons in the state of Kansas who, within the applicable statute of limitations, paid any sums or gave anything of value to Angie's List in exchange for the promotion, advertisement or marketing of such person's goods or services; and (ii) all persons in the state of Kansas who, within the applicable statute of limitations, did not pay Angie's List to promote, market or advertise their goods or services, but whose goods or services were of a kind and character reasonably fungible with goods or services sold or provided directly to consumers by Service Providers who did pay Angie's List to market, advertise and/or promote their goods and services and with whom such persons were in competition". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=mA5ZBi37 The Plaintiff is represented by: Corbyn W. Jones, Esq. William C. Odle, Esq. Michael J. Gorman, Esq. James F.B. Daniels, Esq. McDOWELL, RICE, SMITH & BUCHANAN 605 W. 47th Street, Suite 350 Kansas City, MO 64112 Telephone: (816) 753 5400 Facsimile: (816) 753 9996 E-mail: cjones@mcdowellrice.com wodle@mcdowellrice.com mgorman@mcdowellrice.com jdaniels@mcdowellrice.com ANSELMO LINDBERG: Court Denies Motion to Certify Class as Moot -------------------------------------------------------------- In the lawsuit styled ELISA WOLTER and MARIA G. BOK, by her daughter and next friend EILISA WOLTER, individually and on behalf of a class, the Plaintiffs, v. ANSELMO LINDBERG OLIVER, LLC, the Defendant, Case No. 1:16-cv-04205 (N.D. Ill.), the Hon. Judge Robert W. Gettleman entered an order: 1. granting Defendant's motion for summary judgment; 2. dismissing case for lack of standing; and 3. denying Plaintiffs' motion to certify class as moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=RsCzBGjZ ARBITECH LLC: Denial of Arbitration in Trade Secrets Suit Upheld ---------------------------------------------------------------- The Court of Appeals of California for Fourth District, Division Three, issued an Opinion affirming the Order of the District Court denying Defendant's Second Motion to Compel Arbitration in the case captioned ARBITECH, LLC, Plaintiff and Appellant, v. JESSICA HACKNEY, Defendant and Respondent, No. G053744 (Cal. App.). Arbitech, founded in 2000, is an independent distributor of data center products, primarily name-brand computer hardware used in data centers. The marketplace for data center products is highly competitive, and employees have access to valuable trade secret information. When Arbitech hired Hackney to work as a sales coordinator in, she was asked to sign a confidentiality agreement, promising not to disclose trade secrets. She also promised in writing to follow the strict confidentiality provisions outlined in the employee handbook. After 11 years of employment, Hackney left Arbitech and went to work for a competitor, PNH. Arbitech filed a lawsuit against Hackney and PNH, and they in turn filed a cross-complaint. Arbitech's lawsuit alleged misappropriation of trade secrets, breach of contract, and breach of the implied covenant of good faith and fair dealing. It also sought an accounting and declaratory relief. Arbitech alleged PNH recruited Hackney to obtain Arbitech's trade secrets and Hackney abruptly resigned. It attached a copy of the confidentiality agreement, which does not contain an arbitration provision. PNH's lawsuit against Arbitech alleged breach of contract and unfair competition. The complaint stated that in 2012 PNH began to directly compete with Arbitech in the information technology hardware distribution industry. PNH alleged, Arbitech has engaged in a sustained campaign of disparagement, threats and interference with PNH's business relationships, with the manifest intent to undermine, harm, and oppress PNH and thereby gain an unfair competitive advantage. Larry Weng was the majority owner of PNH. Weng had a prior contentious relationship with Arbitech. PNH alleged Weng contacted Hackney about working for him. Hackney could no longer tolerate the working environment, unethical and unfair business practices, discrimination against female employees, inadequate and unequal compensation, imminent loss of her assigned accounts, and Arbitech's mistreatment and retaliation against her since returning from three months of maternity leave in December 2014. After several weeks of informal discussions, Hackney accepted PNH's offer to work as a sales executive and she gave Arbitech two-week notice. Arbitech rejected her notice and fired Hackney and her husband (who also worked for Arbitech) immediately. Arbitech then sent a cease and desist letter to PNH and Hackney. Before they could prepare a reply, Arbitech filed its lawsuit. Hackney filed an individual and class action. Her individual claims were for the following: (1) violations of the Pregnancy Disability Leave Act and the Family Rights Act; (2) sex discrimination; (3) unlawful constructive termination; (4) intentional infliction of emotional distress (IIED); and (5) declaratory relief. Her class action claims concerned seven different wage and hour Labor Code violations, as well as allegations of unlawful business practices and PAGA civil penalties. Soon after receiving Hackney's cross-complaint, Arbitech moved for an order to compel arbitration and sought dismissal of Hackney's cross-complaint. It attached an arbitration agreement Hackney executed on March 4, 2013 containing the following relevant provisions: "In consideration of being employed/retained by Arbitech the Employee/Contractor identified below agrees to the following: 1. To the fullest extent allowed by law, and except as set forth in paragraph 4 below, any controversy or claim arising out of or relating to the above referenced Independent Contractor Agreement, shall be fully and finally resolved by binding arbitration, employing a neutral arbitrator, and administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures for employment disputes. Such claims shall include, but are not limited to. The Family and Medical Leave Act of 1993, state wage and hour laws, and any other federal, state or local statute, regulation or common law doctrine, including but not limited to tort and contract laws." The court denied the motion to compel arbitration after concluding the 2013 Agreement was unconscionable. It stated the following: "Procedural unconscionability is shown by the manner in which the agreement was presented to Hackney. The e-mail from Arbitech's general counsel stated that all employee's sign an arbitration agreement when becoming an employee, and the old agreement was outdated, and that he asked that the signed agreement be returned within eight days. Nothing in this e-mail indicated the employee had an option not to sign or to negotiate different terms. Further, the e-mail was misleading in indicating the primary issue was the change in provider and that the change benefitted the employees while at the same time not mentioning Arbitech was excluding from the arbitration requirement claims commonly brought by employers against employees." The failure to provide the employees with the rules of JAMS also is an indicator of procedural unconscionability. A little more than four months after the court ruled the 2013 Agreement was unenforceable, Arbitech filed a renewed" motion to compel arbitration. The motion discussed two grounds. First, under Code of Civil Procedure section 1008, subdivision (b), Arbitech argued the court could consider new law contained in an opinion issued by our Supreme Court on March 28, 2016 (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237 (Baltazar)), which suggested the 2013 Agreement was enforceable. The trial court agreed with Hackney. It stated the requirements for a renewed motion under Code of Civil Procedure section 1008 had been satisfied because there was new law on the subject of lack of mutuality issued by the Supreme Court after the trial court's ruling. However, it ruled the Baltazar case did not change the outcome of this case. After repeating the reasons it found the 2013 Agreement unconscionable, the court stated the following: "The unconsionability issue cannot be resolved by severing the offending provision. The employer has already been litigating for over a year pursuant to the offending provision and even now is not offering to arbitrate its claims against Hackney. It is thus unclear how severance could work as it is too late to render the offending provision unenforceable. And, in any event, the unconscionability (the complete lack of mutuality) permeates the agreement." With respect to the 2008 Agreement, which required both parties to arbitrate their claims, the court determined it was not enforceable. It ruled as follows: "It appears Arbitech wants to force Hackney to abide by the 2008 Agreement to arbitrate while Arbitech continues to litigate its claims in violation of that agreement. The court is cognizant that Arbitech was not aware when it filed this case that its 2013 arbitration agreement would be found unconscionable. However, by filing this case and litigating it for over a year, Arbitech has waived its right to enforce the 2008 Agreement. Arbitech timely filed an appeal." Ordinarily, the threshold question in deciding a petition to compel arbitration is whether there exists an agreement to arbitrate. Here, the trial court determined Arbitech waived its right to arbitrate without first deciding there was a valid arbitration agreement. Hackney's opposition argued waiver as an alternative argument to her contention the parties rescinded the 2008 Agreement by novation. Thus, before delving into the issue of waiver, we must decide if there existed a valid and enforceable arbitration agreement, was the 2008 Agreement completely extinguished when the parties executed the 2013 Agreement? The uncontroverted evidence clearly establishes the parties intended to substitute the 2013 Agreement for the 2008 Agreement. Arbitech could have asked Hackney to sign an addendum or modification to the 2008 Agreement. Instead, it required her to sign an entirely new agreement addressing the same confidentiality issues but also adding several very different and more onerous terms. The new agreement not only changed the arbitration provider, but it also added terms that lacked mutuality. The new agreement expressly authorized Arbitech to avoid arbitrating certain claims. These changes cannot be reconciled with the earlier agreement. A court may infer novation when a new agreement is so inconsistent with the earlier agreement that the two cannot subsist together. This inconsistency in the case authority was detected and mentioned by one noteable treatise (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, Section 962, p. 1054 (Witkin)). Citing to a law review case note, Witkin criticized the Goddard holding, stating the result could be sometimes contrary to the parties' intent and hence inconsistent with the theory of novation. The question of whether or not a later contract will constitute a novation of a prior contract should always be determined in accordance with the intention of the parties. When they intend the rescission of the first contract to be unconditional, that should be the case; but when the discharge of the first agreement is intended to be conditional upon the enforceability of the second, there should be no novation when the second agreement cannot be enforced. Arbitech noted a similar critique of Goddard was made by a federal district court in Airs Int'l v. Perfect Scents Distributions (N.D. Cal. 1995) 902 F.Supp. 1141, 1148-1149 (Airs). Although not binding precedent on our court, we may consider relevant federal district court opinions as persuasive. After careful consideration, the Cal. App. will adopt the reasoning discussed in Witkin and the Airs case. When a later contract is not void but merely voidable due to unconsionability, mistake, fraud, etc., the novation is effective if the parties intended rescission of the first contract to be unconditional. However, if the discharge of that agreement was conditional upon the enforceability of the later agreement, there is no novation. In this case, it can be inferred from the evidence that rescission of the 2008 Agreement was conditional upon the enforceability of the 2013 Agreement. Both agreements concerned the same subject matter. The parties understood the later agreement was intended to simply update the earlier version. The evidence showed Arbitech's desire to arbitrate its employee's disputes was unequivocal. It did not intend to destroy the first contract without establishing a new enforceable contract in its place. The Cal. App. concluded the 2013 Agreement did not constitute an effective novation. The 2008 Agreement was not completely extinguished. Having determined there existed an arbitration agreement the Cal. App. reviewed the trial court's determination the right to arbitration was waived. Code of Civil Procedure section 1281.2 provides in pertinent part: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that the right to compel arbitration has been waived by the petitioner." In early June 2016, Arbitech renewed its motion to arbitrate. In seeking to enforce the 2008 Agreement, it specifically requested that the court dismiss and compel arbitration of the cross- complaint. It did not ask the court to dismiss its trade secret action against Hackney to pursue those claims in arbitration. In summary, in the four months following the court's ruling voiding the 2013 Agreement and up until June 2016, Arbitech doggedly litigated its complaint against Hackney, showing no signs of an intention to arbitrate those claims. The Cal. App. rejects Arbitech's argument on appeal that its conduct during those four months cannot be considered in the waiver analysis. Arbitech maintains its actions were absolutely reasonable under the circumstances. It explains that because the court did not declare the 2008 Agreement valid, Arbitech took a few months to piece together the legal consequences of the court's ruling on the 2013 Agreement. It added, the delay was reasonable because Arbitech had already put the parties on notice that it considered the dispute arbitrable. This analysis fails to take into account that after four months of puzzling over the legal consequences of the court's ruling, Arbitech still only considered the cross-complaint dispute as being arbitrable. In seeking to enforce its arbitration rights under the 2008 Agreement it completely ignored the mutuality of remedies provisions, requiring arbitration of its trade secret claims. Arbitech's conduct during the four-month period leading to its renewed motion to compel arbitration, and the motion itself, do not suggest Arbitech had any intention of arbitrating its trade secret claims. The record shows 14 months of behavior completely inconsistent with a desire to arbitrate. The order is affirmed. A full-text copy of the Cal. App.'s September 28, 2017 Opinion is available at http://tinyurl.com/ybyq9c2zfrom Leagle.com. Wilbert Bark, Joseph R. Wilbert -- jwilbert@wilbertbark.com -- Brian Z. Bark -- bbark@lbslawyers.com -- and Michael E. Lopez -- mlopez@lbslawyers.com -- for Plaintiff and Appellant. Law Offices of Einwechter & Hyatt, John P. Einwechter -- jack@eandhlegal.com -and John T. Hyatt -- jthyatt@jthyattlaw.com -- ; Rutan & Tucker, Mark Payne -- MPayne@rutan.com -- and Brian C. Sinclair -- BSinclair@rutan.com -- for Defendant and Respondent. ASSET RECOVERY: "Lamb" Case Dismissed Without Prejudice ------------------------------------------------------- In the lawsuit styled Linda Lamb, the Plaintiff, v. Asset Recovery Solutions, Inc., et al., the Defendant, Case No.: 1:17-cv-04336 (N.D. Ill.), the Hon Judge Gary Feinerman entered an order dismissing case without prejudice and with leave to reinstate by Nov. 10, 2017. According to the docket entry made by the Clerk on September 27, 2017, the notice of settlement is deemed to be a Rule 41(a)(2) motion for voluntary dismissal and, as so deemed, is granted. If leave to reinstate is not sought on or before Nov. 11, 2017, the dismissal will convert automatically to a dismissal with prejudice. The status hearing set for Oct 17, 2017 is stricken. All pending motions are denied as moot. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=14fDFZrV BANCO BRADESCO: NY Court Allows Investor Claims to Proceed ---------------------------------------------------------- Pamela Baker, writing for Courthouse News Service, reported that senior executives of Brazil's third largest bank will have to face a securities class action after a federal judge in Manhattan found that investors supplied enough information to accuse the lender of concealing its involvement in a sweeping corporate corruption scandal. Accused of bribing Brazilian tax officials to reduce or avoid fines for tax evasion, Banco Bradesco was one of more than 70 companies targeted in a multiyear investigation by Brazilian authorities that led to indictments last year. Bradesco CEO Luiz Carlos Trabuco Cappi was one of several bank officers charged with trying to avoid a tax fine worth more than $911 million, but a Brazilian court cleared the power broker of any wrongdoing in June. By that point in New York, a shareholder class action had been pending against Trabuco and two other indicted Bradesco executives for a year. Lead plaintiff Public Employees' Retirement System of Mississippi allege that Bradesco's 11-year bribery scheme began in 2004, but that bank executives relied on a series of false and misleading statements to reassure investors, cover up the investigation, and hide Bradesco's weak internal controls. U.S. District Judge Gregory Woods advanced certain aspects of the case on September 29, finding that the investors have adequately pleaded that that Bradesco personnel were aware of the bribery scheme in 2014. "The court has little trouble concluding that, at least in signing off on the August 8, 2014, press release while allegedly participating in the bribery scheme, Abreu 'participated in a fraud directed to deceiving United States shareholders,'" the ruling states, referring to Domingos Figueiredo de Abreu. Woods did, however, dismiss claims related to statements made prior to 2014. The class failed to adequately "allege that anyone at Bradesco was aware that they were involved in any unlawful dealings with government officials at least until March 24, 2014," the 99-page opinion states Woods emphasized that that Trabuco's ducking of criminal charges in June "had no effect" on his review. Banco Bradesco did not respond to an emailed request for comment. BELL-MARK TECHNOLOGIES: "Berger" Suit Alleges FLSA Violations ------------------------------------------------------------- Jeffrey Berger, and all others similarly-situated v. Bell-Mark Technologies Corporation, Case No. 1:17-cv-01836 (M.D. Pa., October 6, 2017), is brought against the Defendant for alleged violations of the Fair Labor Standards Act, the New Jersey Wage and Hour Law, the New Jersey Wage Payment Law and the New Jersey Debt Collection Law. Plaintiff Jeffrey Berger was employed as a regional sales manager at Bell-Mark from July 2015 to August 2017. Mr. Berger is a resident of the State of New Jersey. Defendant Bell-Mark Technologies Corporation is engaged in the textile machine manufacturing industry in Dover, Pennsylvania and also maintains offices in Pine Brook, New Jersey. [BN] The Plaintiff is represented by: Derrek W. Cummings, Esq. Larry A. Weisberg, Esq. Steve T. Mahan, Esq. MCCARTHY WEISBERG CUMMINGS, P.C. 2041 Herr Street Harrisburg, PA 17103-1624 Tel: (717) 238-5707 Fax: (717) 233-8133 E-mail: dcummings@mwcfirm.com lweisberg@mwcfirm.com smahan@mwcfirm.com BLUE STAR FARMS: Court Denies Martinez's Bid to Certify Class ------------------------------------------------------------- In the lawsuit styled RICARDO MARTINEZ, et al., the Plaintiffs, v. BLUE STAR FARMS, et al., the Defendants, Case No. 1:16-cv-00681- RJJ-PJG (W.D. Mich.), the Hon. Judge Robert J. Jonker entered an order: 1. granting Plaintiffs' amended motion for leave to file a second amended complaint no later than October 12, 2017; 2. denying Plaintiffs' motion to certify class without prejudice to a certification motion based on allegations in the second amended complaint; and 3. dismissing Plaintiff's original motion for leave to file a second amended complaint as moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=jt1aIIMd BRAD LIVINGSTON: "Johnson" Suit Seeks Class Certification --------------------------------------------------------- In the lawsuit styled JUSTIN JOHNSON, the Plaintiff, v. Brad Livingston, et al., the Defendants, Case No. 4:16-cv-03040 (S.D. Tex.), the Plaintiff asks the Court for class certification. The Plaintiff filed this civil rights action against Defendants requesting compensatory damages, punitive damages, nominal damages, declaratory and injunctive relief. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=hSLPna2s The Plaintiff appears pro se. BRINKER INT'L: Court Grants Dismissal of Internet Access Suit ------------------------------------------------------------- The United States District Court for the Southern District of Florida issued an Order granting Defendant's Motion to Dismiss the case captioned the DENNIS HAYNES, Plaintiff, v. BRINKER INTERNATIONAL, INC., Defendant, Case No. 17-cv-61265-BLOOM/Valle (S.D. Fla.). Defendant Brinker International, Inc.'s filed a Motion to Dismiss the Complaint Based on Mootness, seeking dismissal of Plaintiff Dennis Haynes' Complaint. Haynes filed a Complaint against Brinker asserting violations of the Americans with Disabilities Act based on his claim that a website owned and operated by Brinker, located at www.chilis.com is inaccessible to visually impaired individuals such as himself. Of particular import here is Haynes' request for an injunction that would require Brinker to alter its website to make it fully accessible to the visually impaired. The circumstances of this case are on all fours with the circumstances of a recent case that, like this one, was filed by Haynes in this district. In Haynes v. Hooters of Am., LLC, 2017 WL 2579044, S.D. Fla. June 14, 2017, Haynes alleged that the website at issue was inaccessible to the blind and therefore in violation of the ADA, but the defendant argued that the case was moot because of a pre-existing remediation plan that it was in the process of implementing as a result of a settlement between the defendant] and a different plaintiff in an earlier-filed suit. Judge Scola agreed with the defendant and dismissed Haynes' complaint for lack of jurisdiction due to mootness, and in doing so, observed that Haynes' complaint was identical to the complaint in the earlier-filed case. Like Haynes' first argument here, Haynes argued in Hooters that his rights should not be affected by a settlement agreement to which he was never a party. Judge Scola rejected that argument, reasoning as follows: "While it is true that Haynes cannot be bound by the Gomez settlement agreement, this does not mean that the settlement agreement has otherwise failed to resolve Haynes's claim. To the contrary, the existence of the remedial plan, agreed to in the settlement, means that the plaintiff has already received everything to which he would be entitled, if his lawsuit were successful, leaving nothing for this Court to determine Haynes's argument that, generally, the filing of a prior ADA lawsuit does not preclude subsequent plaintiffs from suing for similar violations is inapplicable here." Where a prior identical, ADA-premises lawsuit has not only been filed but has been actually resolved before the filing of the second suit, this proposition may no longer apply. This is so where, as here, there ceases to be a live controversy. Hooters has agreed to remedy, in accordance with a binding settlement agreement in the Gomez case, all of the website inaccessibility issues Haynes complains of in this suit. Ordering Hooters to do what it has already agreed to do affords Haynes no meaningful relief. Regarding his argument that ADA cases involving websites can never be subject to mootness, Haynes distinguishes ADA cases dealing with physical structures by stating that websites are fluid, constantly revised, updated, and edited. Haynes elaborates, a website that is compliant one day may become completely non- compliant the next day, unlike ADA cases where there are remediations done to a physical structure. Aside from the fact that this argument relies exclusively on conjecture about future updates a website such as the Website might employ, the settlement agreement in Gilappears to address this very concern. In Haynes' own words, he is entitled to injunctive relief requiring Defendant to maintain the Website in compliant condition. The settlement agreement provides exactly that, by requiring Brinker to provide individuals with visual disabilities full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered through the Website. The Court reads this provision as contractually binding Brinker to ensure that all aspects of the Website are ADA compliant. In the event that a new page were added to the Website that was inaccessible to visually impaired individuals, Brinker would not be meeting its obligation under the settlement agreement to provide such individuals with full enjoyment of the Website's offerings Importantly, and as discussed, that obligation like the settlement agreement as a whole is subject to judicial enforcement. A full-text copy of the District Court's September 28, 2017 Order is available at http://tinyurl.com/y7er4exdfrom Leagle.com. Dennis Haynes, Plaintiff, represented by Aaron Scott Finesilver, Finesilver Law, P.A.. 1201 Brickell Ave, Miami, FL 33131 USA Brinker International, Inc., Defendant, represented by Tasos C. Paindiris -- Tasos.Paindiris@jacksonlewis.com -- Jackson Lewis P.C. & Nicole Alexandra Sbert, Jackson Lewis, 390 N. Orange Avenue, Suite 1285, Orlando, FL 32801. BSN MEDICAL: Court Denied Placeholder Bid to Certify Class ---------------------------------------------------------- In the lawsuit styled RJF CHIROPRACTIC CENTER, INC, an Ohio corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. BSN MEDICAL, INC. and JOHN DOES 1-10, the Defendants, Case No. 3:16-cv-00842-RJC-DSC (W.D.N.C.), the Hon. Judge Robert J. Conrad entered an order denying Plaintiff's motion to certify class without prejudice and with leave to refile. The Court said, "This placeholder motion to certify class fails to establish Rule 23's requirements of numerosity, commonality, typicality, and adequacy. As such, this Court denies RJF's motion to certify class without prejudice." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=mTdVr1Ym CABLE MARKETING: "Hobbs" Suit Seeks to Certify FLSA Class --------------------------------------------------------- In the lawsuit styled DARRELL HOBBS, on behalf of himself and others similarly situated, the Plaintiff v. CABLE MARKETING AND INSTALLATION OF LOUISIANA, INC. a Louisiana corporation; and CABLE MARKETING & INSTALLATIONS, INC., a Mississippi corporation, the Defendants, Case No. 2:17-cv-04766-ILRL-JCW (E.D. La.), the Plaintiff moves the Court for an Order conditionally certifying a collective action under the Fair Labor Standards Act and permitting court-supervised notice to potential members of the collective. The Plaintiff also requests that Defendants be ordered to disclose contact information for members of the collective on an expedited basis, that the Court issue an order equitably tolling the FLSA statute of limitations during the pendency of the opt-in period, and for such further relief as the Court may deem appropriate based on record. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=CuntqFiy The Plaintiff is represented by: Charles J. Stiegler, Esq. STIEGLER LAW FIRM LLC 318 Harrison Ave., Ste. 104 New Orleans, La. 70124 Telephone: (504) 267 0777 Facsimile: (504) 513 3084 E-mail: Charles@StieglerLawFirm.com CARIBBEAN CRUISE: Court Strikes Duplicative Bid to Certify Class ---------------------------------------------------------------- According to the docket entry made by the Clerk of Court on October 3, 2017, in the lawsuit styled Richard Gordon, the Plaintiff, v. Caribbean Cruise Line, Inc., et al., the Defendants, Case No. 1:14-cv-05848 (N.D. Ill.), the Hon. Judge John Z. Lee struck Plaintiff's duplicative motions to certify class for administrative purposes. Plaintiff has filed the motion to certify class (sealed version). Oral argument on the motion was scheduled to take place on Oct. 4, 2017 at 2:00 p.m. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=xhfeVadC CATHOLIC BISHOPS CONFERENCE: Class Certification Bid Denied ----------------------------------------------------------- In the lawsuit styled AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, JANE DOE, on behalf of herself and others similarly situated, the Plaintiffs, v. DON WRIGHT, Acting Secretary of Health and Human Services, et al., the Defendants and U.S. CONFERENCE OF CATHOLIC BISHOPS, Defendant-Intervenors, Case No. 3:16-cv-03539-LB (N.D. Cal.), the Plaintiffs moved on October 5, 2017, for an order certifying a class or, in the alternative, provisionally certifying class for purposes of the preliminary injunction sought by Plaintiffs: "all pregnant unaccompanied immigrant minors who are or will be in the legal custody of the federal government". The Plaintiff Jane Doe further moved that she should be appointed named plaintiff of the class and her counsel be appointed class counsel. Meanwhile, the ACLU moved for a temporary restraining order (1) directing the federal defendants to transport Ms. Doe -- or if Ms. Doe prefers, to allow her guardian or attorney ad litem to transport her -- to the abortion provider closest to her shelter to obtain (a) counseling (required by state law) on October 12, 2017, and (b) the abortion procedure on October 13, 2017; (2) temporarily restraining the federal defendants from interfering with or obstructing Ms. Doe's access to abortion; and (3) temporarily restraining the federal defendants from further forcing Ms. Doe to reveal her abortion decision to anyone, or revealing it to anyone themselves. The government asked the court to deny the motion to amend the complaint on several grounds, including lack of venue and improper joinder, and to deny the motion for a TRO. In an Oct. 11 order, the Court denied the motion for leave to file an amended complaint as well as the motion for a TRO without prejudice to Jane Doe's asserting it in a different lawsuit. The Court also denied the motion for class certification as moot. The Court granted the motion for leave to file an amicus brief. The Court said the Doe plaintiff is not in this district, and that the wrongful acts for the new claims did not take place in this district. The named plaintiff Jane Doe is a pregnant minor in a federally funded shelter in Texas. The Court held that the new claims are not "closely related" to the venued Establishment Clause claim, and concerns of judicial economy and fairness do not support pendent venue. For similar reasons, permissive joinder is not appropriate under Rule 20(a). Finally, discovery is closed, the deadline to amend the pleadings has passed, and the proposed amended complaint transforms the case at a late date to add new claims and new theories of recovery. The case is better brought as a new lawsuit, the Court said. Because the court denied leave to amend, the court denied Ms. Doe's motion for a TRO without prejudice to her bringing it in a different lawsuit. "The court's decision moots the motion for a TRO," the ruling said. A copy of the Plaintiff's Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=DYKPdTX7 The Plaintiffs are represented by: Elizabeth O. Gill, Esq. Jennifer L. Chou, Esq. Mishan R. Wroe, Esq. Brigitte Amiri, Esq. Meagan Burrows, Esq. Melissa Goodman, Esq. Daniel Mach, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621 2493 Facsimile: (415) 255 8437 E-mail: egill@aclunc.org jchou@aclunc.org bamiri@aclu.org mburrows@aclu.org mgoodman@aclusocal.org dmach@aclu.org CAWLEY & BERGMANN: Placeholder Bid for Class Certification Filed ---------------------------------------------------------------- In the lawsuit styled LORALIE NOLET, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CAWLEY & BERGMANN, LLP, the Defendant, Case No. 2:17-cv-01408 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying classes, appointing the Plaintiff as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=XJhTuFHx The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CBE GROUP: Placeholder Bid for Class Certification Filed -------------------------------------------------------- In the lawsuit styled DUANE LINDENBACH, MARLENE KANEHL, and LINDA LOPEZ, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. THE CBE GROUP, INC.,, the Defendant, Case No. 2:17-cv-01336-WED (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class, appointing Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks the Court to stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=XluMwKMU The Plaintiff is represented by: John D. Blythin, Esq. Shpetim Ademi, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com CELADON TRUCKING: "Ratliff" Suit Seeks to Certify Class ------------------------------------------------------- In the lawsuit styled JEROME RATLIFF JR., individually and on behalf of all others similarly situated, the Plaintiff, v. CELADON TRUCKING SERVICES, INC., a New Jersey Corporation, and CELADON GROUP, INC., a Delaware Corporation, the Defendants, Case No. 1:17-cv-07163 (N.D. Ill.), the Plaintiff asks the Court for an order: a. granting Plaintiff's motion for class certification of: "all individuals in the United States who, from the date five years prior to the date of the filing of this action to the present, submitted an online job application to Defendants and were denied employment based in whole or in part on information contained in a consumer report without being provided within three business days of such adverse action an oral, written or electronic notification: (i) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency; (ii) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report; (iii) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to them the specific reasons why the adverse action was taken; and (iv) that they may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report"; b. appointing Plaintiff Jerome Ratliff Jr. as Class Representative; c. appointing Michael Aschenbrener and Adam York of KamberLaw LLC as Class Counsel; and d. providing any and all other relief that the Court deems equitable and just. In the alternative, Plaintiff asks the Court to: a. enter and continue Plaintiff's Motion for Class Certification; b. set a schedule for discovery; c. grant Plaintiff leave to file an amended or renewed Motion for Class Certification upon the conclusion of discovery; and d. provide Plaintiff any and all other relief that the Court deems equitable and just. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=TITJFZzV The Plaintiffs are represented by: Attorneys for Plaintiffs and the Putative Class: Michael Aschenbrener, Esq. Adam C. York, Esq. KAMBERLAW LLC 220 N Green St Chicago, IL 60607 Telephone: (212) 920 3072 Facsimile: (212) 202 6364 E-mail: masch@kamberlaw.com ayork@kamberlaw.com CELGENE CORP: Certification of 3 Classes Sought in Revlimid Case ---------------------------------------------------------------- In the lawsuit styled RE: THALOMID AND REVLIMID LITIGATION, Case No. 2:14-cv-06997-MCA-MAH (D.N.J.), the Plaintiffs ask the Court for certification of three Classes. Antitrust/Consumer Protection Damages Class: "all persons or entities who purchased and/or paid for some or all of the purchase price for thalidomide in any form after November 6, 2010 or lenalidomide in any form after January 29, 2011, in California, the District of Columbia, Florida, Kansas, Maine, Massachusetts, Michigan, Nebraska, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, or Tennessee, for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries"; Unjust Enrichment Damages Class: "all persons or entities who purchased and/or paid for some or all of the purchase price for thalidomide in any form after November 6, 2010 or lenalidomide in any form after January 29, 2011, in California, the District of Columbia, Florida, Kansas, Maine, Massachusetts, Michigan, Nebraska, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, or Tennessee, for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries"; and Injunction Class: "all persons or entities who purchased and/or paid for some or all of the purchase price for thalidomide in any form after November 6, 2010 or lenalidomide in any form after January 29, 2011, in the United States or its territories for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries". According to the complaint, Celgene has successfully monopolized the market for thalidomide (Thalomid) and lenalidomide (Revlimid), two life-saving medications, for at least the last seven years. While Plaintiffs and other members of the proposed Classes have seen price increases of more than for Thalomid and for Revlimid since the drugs' introduction, Celgene has been unjustly enriched by some in profits. To date, at least different generic manufacturers have attempted to enter the market, but as a result of Celgene's conduct, no generic alternatives are available. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=K3YY6EPR The Plaintiffs are represented by: Melinda R. Coolidge, Esq. Walter D. Kelley, Jr., Esq. HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Telephone: (202) 540 7200 E-mail: mcoolidge@hausfeld.com wkelley@hausfeld.com - and - Brett W. Landau, Esq. Katie R. Beran, Esq. HAUSFELD LLP 325 Chestnut Street, Suite 900 Philadelphia, PA 19106 Telephone: (215) 985 3270 E-mail: blandau@hausfeld.com kberan@hausfeld.com - and - Whitney E. Street, Esq. Matthew Smith, Esq. BLOCK & LEVITON LLP 610 16th Street, Suite 214 Oakland, CA 94612 Telephone: (415) 968 1852 E-mail: wstreet@blockesq.com msmith@blockesq.com - and - Frank R. Schirripa, Esq. Daniel B. Rehns, Esq. John A. Blyth, Esq. HACH ROSE SCHIRRIPA & CHEVERIE LLP 112 Madison Avenue, 10th Floor New York, NY 10016 Telephone: (212) 213 8311 E-mail: fschirripa@hrsclaw.com drehns@hrsclaw.com jblyth@hrsclaw.com - and - James Notis, Esq. Jennifer Sarnelli, Esq. GARDY & NOTIS, LLP 560 Sylvan Avenue Englewood Cliffs, NJ 07632 E-mail: jnotis@gardylaw.com jsarnelli@gardylaw.com - and - Jeffrey B. Gittleman, Esq. BARRACK, RODOS & BACINE 330 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 E-mail: jgittleman@barrack.com - and - Todd A. Seaver, Esq. BERMAN TABACCO 44 Montgomery Street Suite 650 San Francisco, CA 94104 Telephone: (415) 433 3200 E-mail: tseaver@bermantabacco.com CEMPRA INC: "Franchi" Suit Alleges Securities Act Violation ----------------------------------------------------------- Anthony Franchi, and all others similarly-situated v. Cempra, Inc., Castle Acquisition Corp., Garheng Kong, David Zaccardelli, Richard Kent, David Gill, Dov A. Goldstein, John H. Johnson, P. Sherrill Neff, Michael Dougherty, and Melinta Therapeutics, Inc., Case No. 1:17-cv-00898 (M.D. N.C., October 6, 2017), is brought against the Defendants for violations of the Securities Exchange Act of 1934. This action stems from a proposed transaction announced on August 8, 2017, pursuant to which Cempra, Inc. and its wholly-owned subsidiary, Castle Acquisition Corp., will merge with Melinta Therapeutics, Inc. in a reverse merger. On September 7, 2017, Defendants filed a Preliminary Proxy Statement with the U.S. Securities and Exchange Commission in connection with the Proposed Transaction. The Plaintiff alleges that the Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. The Plaintiff is an owner of Parkway common stock. Defendant Cempra, Inc. is a clinical-stage pharmaceutical company focused on developing differentiated anti-infectives for the acute care and community settings to meet critical medical needs in the treatment of infectious diseases. Defendant Cempra is a Delaware corporation and maintains its headquarters at 6320 Quadrangle Drive, Suite 360, Chapel Hill, NC 27517. Cempra's common stock is traded on the NasdaqGS under the ticker symbol CEMP. Defendant Castle Acquisition Corp. is a Delaware corporation, a direct, wholly-owned subsidiary of Cempra, and a party to the Merger Agreement. The Individual Defendants are directors of Cempra. Defendant Melinta Therapeutics, Inc., an antibiotics company, is engaged in the discovery, development, and commercialization of antibiotics to overcome drug-resistant, life-threatening infections. Defendant Melinta is a Delaware corporation and a party to the Merger agreement. [BN] The Plaintiff is represented by: J. Michael Malone, Esq. HENDREN REDWINE & MALONE PLLC 4600 Marriott Drive, Suite 150 Raleigh, NC 27612 Tel: (919) 573-1423 Fax: (919) 420-0475 E-mail: mmalone@hendrenmalone.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Tel: (484) 324-6800 Fax: (484) 631-1305 CHICAGO, IL: Court Grants Class Certification in "Conyers" ---------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Plaintiffs' Motion for Class Certification in the case captioned BLAKE CONYERS, LAMAR EWING, and KEVIN FLINT, individually and for a class, Plaintiffs, v. CITY OF CHICAGO, Defendant, No. 12 CV 06144 (N.D. Ill.). Plaintiffs Blake Conyers, Lamar Ewing, and Kevin Flint seek class certification in the suit they bring against the City of Chicago (City) pursuant to 42 U.S.C. Section 1983. When the Chicago Police Department (CPD) arrests an individual and takes him or her into custody, it also removes from that person and inventories certain items of personal property. The CPD arrested plaintiff Blake Conyers and transferred him to the custody of the Cook County Sheriff. The plaintiffs allege that when he was arrested, Conyers was in lawful possession of an earring, a platinum and diamond bracelet, and two cell phones, all of which the City inventoried and retained. Plaintiff Lamar Ewing, meanwhile, was arrested by CPD members and was also transferred to the custody of the Cook County Sheriff. Ewing says that when he was arrested, he possessed a brown wallet, a Link card, a Chicago Library card, and two cell phones, all of which the City inventoried and retained. The third named plaintiff, Kevin Flint, was arrested by CPD members and was similarly transferred to the Cook County Sheriff's custody. Flint alleges that at the time, he was in possession of a ring with a small stone, as well as a cell phone, both of which the City inventoried and retained. The complaint alleges that Flint was housed in the Cook County Jail and that he learned upon his release that the CPD had destroyed his cell phone and his ring. The three named plaintiffs lodged their Fourth Amended Complaint in this case in April 2015. In February 2016, the Court partially granted the City's motion to dismiss that pleading, finding that the plaintiffs had failed to state a Fifth Amendment claim but allowing them to go forward on the procedural due process claim they bring under the Fourteenth Amendment. Conyers, Ewing, and Flint now seek an order certifying a class that they define as follows: All persons who, following an arrest, had property inventoried as available for return to Owner by the Chicago Police Department from December 1, 2011 to December 31, 2013, who were then held in custody for more than 30 days and whose property was destroyed or sold by the Chicago Police Department. The City does not challenge the plaintiffs' satisfaction of the numerosity and representation requirements, and indeed this Court finds them to be satisfied here. The plaintiffs have also satisfied Rule 23(a)'s typicality and commonalty requirements, despite the City's arguments to the contrary. The plaintiffs' class claim does not turn on whether the City gave them Copy 4 or the Notice; it turns on whether Copy 4 and the Notice provided sufficient information about the process required to obtain the return of non-cash property taken from them at the time of their arrest. If the City failed to provide adequate notice to arrestees about the process by which to secure the return of non-cash property, then whether a particular class member received defective notice is irrelevant because that defective notice would not have provided an adequate explanation of the required process. The common claim among the class members is that the notice provided by the City was inadequate, not that they did not receive something from the City purporting to be notice. The plaintiffs have therefore sufficiently asserted "a common contention" that is "of such a nature that it is capable of class- wide resolution. The plaintiffs have satisfied the typicality requirement. Conyers, Ewing, and Flint all had property inventoried as available for return to Owner" within the class period, following their arrest; each of those three plaintiffs was held for more than 30 days; and the CPD destroyed each of their inventoried property. These facts, which the City does not dispute, fall in line with the due process allegations the plaintiffs are pursuing in their Fourth Amended Complaint. The declarations from the eight proposed class members who were arrested within the class period also indicate that the plaintiffs' claims are typical of the claims of the class. Though the City correctly notes that some of those declarations actually request the return of their property or otherwise indicate that the arrestee did not know whether the property had been sold or destroyed for example, one declaration states, I have no idea what happened to my property, this does not make the claims of those who fall within the class definition inconsistent with the named plaintiffs' claims. The Court has already found that the class members are identifiable and ascertainable because the names and addresses of arrestees whose property was sold or destroyed, and who otherwise meet the class definition requirements, are recorded. The plaintiffs' claims thus arise "from the same event or practice or course of conduct as the proposed class members. Finally, the plaintiffs are seeking certification pursuant to Rule 23(b)(3), and so must satisfy that Rule's predominance and superiority requirements. These individual questions about intent really go to whether arrestees valued their property highly enough to seek its return. The City characterizes that question as a critical individual inquiry necessary to assess the City's potential liability, but as noted above its relevance is to the question of damages, not liability. If an arrestee assigned so little value to his property that he had no interest in securing its return, even had he known how to do so, then his claim for damages will be miniscule, but that is an assessment to be made after liability is determined. Again, it is well established that the presence of individualized questions regarding damages does not prevent certification under Rule 23(b)(3 . Any individual inquiry in this regard, therefore, will not stand in the way of the plaintiffs' pursuit of class certification. The plaintiffs have satisfied Rule 23(b)(3)'s predominance requirement. That rule's requirement that a class action be superior to other available methods for fairly and efficiently adjudicating the controversy is also satisfied here, though as previously noted, the City does not challenge superiority. The central question here is the adequacy of the notice provided to arrestee's during the class period; it plainly makes more sense to adjudicate that common question on a class-wide basis than by means of individual claims. Further, the plaintiffs assert that only a small amount of damages would be available to each individual class member, so a class action represents the only realistic means of recovery for many potential claimants. If there are genuinely common issues, issues identical across all the claimants, issues moreover the accuracy of the resolution of which is unlikely to be enhanced by repeated proceedings, then it makes good sense, especially when the class is large, to resolve those issues in one fell swoop while leaving the remaining, claimant-specific issues to individual follow-on proceedings. The plaintiffs' motion for class certification is granted. A full-text copy of the District Court's September 28, 2017 Memorandum Opinion and Order is available at http://tinyurl.com/yaxux8vwfrom Leagle.com. Blake H Conyers, Plaintiff, represented by Joel A. Flaxman, Kenneth N. Flaxman P.C., 200 South Michigan Avenue, Suite 201, Chicago, Illinois 60604 Blake H Conyers, Plaintiff, represented by Kenneth N. Flaxman, Kenneth N. Flaxman, P.C., 200 South Michigan Avenue, Suite 201, Chicago, Illinois 60604 Lamar Ewing, Plaintiff, represented by Joel A. Flaxman, Kenneth N. Flaxman P.C.. Kevin Flint, Plaintiff, represented by Joel A. Flaxman, Kenneth N. Flaxman P.C. & Kenneth N. Flaxman, Kenneth N. Flaxman, P.C.. City Of Chicago, Defendant, represented by Allan T. Slagel -- aslagel@taftlaw.com -- Taft Stettinius & Hollister LLP, Brian Weinthal -- bweinthal@taftlaw.com -- Taft Stettinius & Hollister LLP, Jonathan B. Amarilio -- amarilio@taftlaw.com -- Taft Stettinius & Hollister LLP & Zachary John Sehy -- zsehy@taftlaw.com -- Taft Stettinius & Hollister. CHRYSLER GROUP: Court Denies "Cox" Motion for Class Certification ----------------------------------------------------------------- In the lawsuit styled DAVID COX, et al., the Plaintiffs, v. CHRYSLER GROUP, LLC, the Defendant, Case No. 3:14-cv-07573-MAS-DEA (D.N.J.), the Hon. Judge Michael A. Shipp entered an order: 1. denying Plaintiff's motion for class certification; and 2. denying Defendant's motion to exclude without prejudice as moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=hZctXRZy CHSPSC LLC: Court Certifies Arkansas Residents Class in "Mounce" ---------------------------------------------------------------- In the lawsuit styled JESSICA MOUNCE, Individually and on Behalf of All Others Similarly Situated, the PLAINTIFF, v. CHSPSC, LLC; NORTHWEST ARKANSAS HOSPITALS, LLC d/b/a NORTHWEST MEDICAL CENTER; and PROFESSIONAL ACCOUNT SERVICES, INC., the DEFENDANTS, Case No. 5:15-cv-05197-TLB (W.D. Ark.), the Hon. Judge Timothy L. Brooks entered an order: 1. denying Defendants' motion for summary judgment; 2. granting Plaintiff's motion for class certification of: "all Arkansas residents who, since April 30, 2010, received any type of healthcare treatment from any entity located in Arkansas that is owned, controlled, managed and/or affiliated with Defendants, and: (i) such treatment was covered by valid, in network, commercial health coverage; (ii) the billing charges regarding such treatment were not timely submitted to the commercial health carrier; and (iii) Defendants obtained payments for such treatment as a result of asserting third-party medical liens, submitting claims for medical payments coverage, and/or seeking payment directly from the patients"; 3. designating Plaintiff Jessica Mounce as Class Representative; and 4. designating Plaintiff's attorneys Jason W. Earley, Mitchell Burgess, Ralph Phalen, Shawn B. Daniels, and Sarah Coppola Jewell as Class Counsel. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=JYl7hNoM COOK COUNTY, IL: Bid to Certify Class in "Rogers" Terminated ------------------------------------------------------------ In the lawsuit styled KEITH ROGERS, the Plaintiff, v. SHERIFF OF COOK COUNTY and COOK COUNTY, ILLINOIS, the Defendants, Case No. 1:15-cv-11632 (N.D. Ill.), the Hon. Judge Edmond E. Chang entered an order: 1. granting in part and denying in part Rogers's motion to compel data and the County's motion to quash notice; 2. denying request for prior-stay information; and 3. granting request to identify the correct booking numbers for the 13 mismatched detainees; and 4. terminating Rogers's motion to certify class without prejudice as premature. The Court said, "Fact discovery has not yet concluded, nor has expert discovery, which might very well be relevant to arguing that a tapering policy generally affects persons in the same way, or to resisting that conclusion. The motion itself makes assertions about tapering policies as increasing the chances of relapse; although that might very well be true, discovery on that issue has not concluded. There also was no class allegation in the amended complaint, R. 24, so the defense was not put on notice of the potential for class treatment by the formal pleading. At the next status hearing, the Court will discuss the discovery plan with the parties. The status hearing [was] set for October 11, 2017, at 10 a.m." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=eXrSjE06 COOK COUNTY, IL: Williams File Amended Motion to Certify Class -------------------------------------------------------------- An amended Motion to Certify case as a class action has been filed in the lawsuit styled Walter Williams and Montrell Carr, individually and for a class, the Plaintiffs, v. Sheriff of Cook County and Cook County, Illinois, the Defendants, Case No. 1:16- cv-07639 (N.D. Ill.). The Plaintiff moves the Court to certify two subclasses: "all persons confined at the Cook County Jail who have been referred by a dentist at the Jail for an extraction by an oral surgeon and are experiencing pain while awaiting treatment by an oral surgeon" and "all persons currently confined at the Cook County Jail who, having complained of dental pain, have been prescribed successive course of treatments with antibiotics without having received the dental procedure required to permanently alleviate the dental pain". A copy of the Amended Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=wLVw72vK The Plaintiff is represented by: Kenneth N. Flaxman, Esq. Joel A. Flaxman, Esq. 200 S. Michigan, Ste 202 Chicago, IL. 60604 Telephone: (312) 427 3200 The Amended Motion follows a Court order entered September 29, 2017, wherein the Hon. Judge Gary Feinerman denied Plaintiffs' prior motion to certify class without prejudice. A copy of the Sept. 29 Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=bOfLeP4O CORECIVIC: "Dodson" Suit Asks Court to Certify Diabetics Class -------------------------------------------------------------- In the lawsuit styled DOUGLAS DODSON, RICHARD LITTLE, JASPER VICK, et al., the Plaintiffs, v. CORECIVIC, FORMERLY d/b/a CORRECTIONS CORPORATION OF AMERICA and THE DEPARTMENT OF CORRECTION and TENNESSEE DEPARTMENT OF CORRECTION COMMISSIONER TONY PARKER, the Defendants, Case No. 3:17-cv-00048 (M.D. Tenn.), the Plaintiff asks the Court to certify a class of: "persons with insulin-dependent diabetes (Type 1 or insulin dependent Type 2) who are, who have been, or who in the future may become, housed at Trousdale Turner correctional facility." This action is brought for the purpose of obtaining injunctive relief to ensure that inmates with insulin-dependent diabetes have access to proper diabetes care at Trousdale Turner prison. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Wu8p38Wm The Plaintiff is represented by: L. William Smith, Esq. Jon C. Goldfarb, Esq. L. William Smith, Esq. WIGGINS, CHILDS, PANTAZIS, FISHER, & GOLDFARB, LLC 301 19th Street North Birmingham, AL 35203 Telephone: (205) 314 0500 Facsimile: (205) 254 1500 The Defendant is represented by: Erin Palmer Polly, Esq. Joseph F. Welborn, III, Esq. Paige M. Ayres, Esq. BUTLER SNOW LLP The Pinnacle at Symphony Place 150 Third Avenue South, Suite 1600 Nashville, TN 37201 Telephone: (615) 651 6700 E-mail: Erin.Polly@butlersnow.com Joe.Welborn@butlersnow.com Paige.Nutini@butlersnow.com - and - Kyle V. Miller, Esq. BUTLER SNOW LLP P O Box 6010 1020 Highland Colony Parkway, Suite 1400 Ridgeland, MS 39158-6010 Telephone: (601) 948 5711 Facsimile: (601) 985 4500 E-mail: kyle.miller@butlersnow.com - and - Jennifer L. Brenner, Esq. TENNESSEE ATTORNEY GENERAL'S OFFICE P O Box 20207 Nashville, TN 37202 Telephone: (615) 532 2500 E-mail: jennifer.brenner@ag.tn.gov - and - Torrey Samson, Esq. Nashville, TN 37202-0207 Telephone: (615) 741 6820 Facsimile: (615) 532 2541 E-mail: torrey.samson@ag.tn.gov CREDENCE RESOURCE: Placeholder Bid for Class Certification Filed ---------------------------------------------------------------- In the lawsuit styled LETICIA WOODS, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CREDENCE RESOURCE MANAGEMENT, LLC, the Defendant, Case No. 2:17-cv-01368 (N.D. Wisc.), the Plaintiff asks the Court to enter an order certifying classes, appointing the Plaintiff as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff files a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ANcigXGJ The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com CSAA INSURANCE: Court Denies Motion to Certify Class as Moot ------------------------------------------------------------ In the lawsuit styled NASIR RAHIM and GLENN BEARDEN, on behalf of themselves and others similarly situated, the Plaintiffs, v. CSAA INSURANCE SERVICES, INC., the Defendants, Case No. 5:17-cv-00220-W (W.D. Okla.), the Court entered an order: 1. granting CSAA's motion to compel arbitration of individual claims filed on June 20, 2017, and directing that each named plaintiff shall arbitrate his or her own individual claims; 2. granting CSAA's motion to dismiss remaining claims filed on June 20, 2017, to the extent the Court dismisses the allegations in the first amended complaint advanced in support of class, collective and representative action claims; but 3. denying motion to the extent CSAA has sought dismissal of the named plaintiffs' individual claims because they are subject to arbitration and instead stays this action as to those claims; 4. directing the Clerk of the Court to administratively close this matter in her records pending completion of the arbitration process; and 5. denying as moot the plaintiffs' motion for conditional class certification, to approve notice and consents forms, for authorization to mail notice and consent forms to putative Plaintiffs and for Defendants to identify putative Plaintiffs filed on July 24, 2017. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=CGwI15hi CVS: Class Suit by Store Detectives May Proceed ----------------------------------------------- Nick Rummell, writing for Courthouse News Service, reported that CVS must face a class action led by two store detectives who say they were directed to harass black and Latino customers while patrolling for shoplifters, a federal judge in Manhattan ruled. Two so-called market investigators who guarded various New York City locations of CVS in 2013 filed the case two years ago with the U.S. District Court for the Southern District of New York. They claimed racial discrimination is pervasive at CVS, and that store managers habitually used slurs in reference to minority customers whom they wanted the guards to apprehend. Even when there was no basis to stop a shopper, lead plaintiffs Zaire Lamarr-Arruz and Mominna Ansoralli said CVS had a quota system in place, encouraging them to do so under false pretenses. CVS allegedly uses the quantity of apprehensions as a performance metric of loss prevention. Though CVS disputes the allegations of hostile work environment, U.S. District Judge John Koeltl denied the pharmacy chain summary judgment on Sept. 26. CVS failed to sway the court with evidence that only one of the guards called its ethics hotline to report retaliation for fighting the quota system. The guards' testimony "raises questions regarding whether the hotline was a viable means of reporting racial discrimination," Koeltl wrote in the 41-page opinion. "Similarly, the evidence raises genuine disputes of material facts about whether complaining to a supervisor was a reasonable avenue to report discrimination or a false promise." Lamarr-Arruz, who is black, can advance claims that CVS delayed his return to work following medical leave, then forced him to "jump through hoops" before ultimately firing him. The ruling calls the explanation given for Lamarr-Arruz's firing in internal records inconsistent. CVS failed to sway the court with its note that Lamarr-Arruz was fired five months after attempting to come back from medical leave. "While his official termination occurred in May 2014, his fate was sealed in December 2013," the ruling states. The court likewise rejected claims by CVS that co-plaintiff Ansoralli should not be able to claim race discrimination because she does not identify as Hispanic. Koetl called the retailer's distinction about Ansoralli, who is of Guyanese and Portuguese ancestry, irrelevant. "Whether Ansoralli self-identifies as 'Hispanic' is not dispositive of whether she was discriminated against based on her race or whether she is in fact Hispanic for the purposes of Section 1981 (of the federal civil rights law)," the ruling states. Indeed, Ansoralli has told the court that when she identified herself at work as West Indian mixed with Spanish, a store manager was quick to boil that down. "Oh, you're a spick," he said, as summarized in the ruling. Jason Nagi -- jnagi@polsinelli.com -- an attorney for CVS with the firm Polsinelli, did not returned a phone call or email seeking comment, the Courthouse News Service report said. DCM SERVICES: Machnik Files "Damasco" Bid for Class Certification ----------------------------------------------------------------- In the lawsuit styled AUDREY MACHNIK, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. DCM SERVICES, LLC, the Defendant, Case No. 2:17-cv-01409 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying classes, appointing the Plaintiff as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks the Court to stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kYO7wPmq The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com DEBT RECOVERY: Faces "Nunez" Suit in E. Dist. New York ------------------------------------------------------ A class action lawsuit has been filed against Debt Recovery Solutions, LLC. The case is styled as Diego Nunez, individually and on behalf of all others similarly situated, Plaintiff v. Debt Recovery Solutions, LLC and Pendrick Capital Partners II, LLC, Defendants, Case No. 2:17-cv-05982-LDW-GRB (E.D.N.Y., October 12, 2017). Debt Recovery is a debt collection agency.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: csanders@sanderslawpllc.com DEVON ENERGY: Martinez Seeks to Certify Safety Consultants Class ---------------------------------------------------------------- In the lawsuit styled LUIS MARTINEZ, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. DEVON ENERGY PRODUCTION CO., L.P., the Defendant, Case No. 5:17-cv-00300-W (W.D. Okla.), the Parties agree to conditional certification of a class of: "current and former safety consultants employed by, or working on behalf of, Devon Energy Production Co., L.P. during the three years prior to the date of certification who were classified as independent contractors and paid a day-rate." Martinez and Devon agree that, by Devon's agreement to conditional certification of the FLSA Class, Devon does not waive its right to argue that the FLSA Class should be decertified and/or to advance any defenses that it may have to the substantive claims in this lawsuit. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=LogQLXpx The Plaintiff is represented by: Matthew S. Parmet Richard J. (Rex) Burch BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877 8788 Facsimile: (713) 877 8065 E-mail: rburch@brucknerburch.com mparmet@brucknerburch.com - and - Michael A. Josephson, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Ste. 3050 Houston, TX 77046 Telephone: (713) 352 1100 Facsimile: (713) 352 3300 E-mail: mjosephson@mybackwages.com ENSIGN UNITED: Wins Summary Judgment in Calif. WARN Act Suit ------------------------------------------------------------ The United States District Court for the Eastern District of California issued an Order granting Defendant's Motion for Summary Judgment in the case captioned O'BRIAN RANGEL, Plaintiff, v. ENSIGN UNITED STATES DRILLING (CALIFORNIA) INC. and ENSIGN UNITED STATES DRILLING INC., Defendants, No. 1:15-cv-01042-DAD-JLT (E.D. Cal.). Plaintiff O'Brian Rangel asserts two statutory claims against defendants Ensign United States Drilling (California), Inc., and Ensign United States Drilling, Inc., entities providing a labor force to oilfields and off-shore oil rigs at several sites throughout California. In essence, plaintiff Rangel alleges that defendants effectuated a mass layoff, without giving employees a sixty-day advance written notice, as required by the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. Sections 2101-09 (WARN Act) and the California Worker Adjustment and Retraining Notification Act, California Labor Code Section 1400-08 (California WARN Act). Ensign California hired plaintiff O'Brian Rangel as a floor hand or motorman on Rig 609. Rig 609 is located on an off-shore platform (Emmy) in the Huntington Beach Harbor, in Orange County, California, approximately 150 miles from Bakersfield, where plaintiff lived and where Ensign California's main office was located. Except for off-site training sessions, plaintiff Rangel worked exclusively at Rig 609 until his termination. Ensign California did not own Rig 609 or platform Emmy; it provided labor to staff Rig 609 pursuant to a contract with California Resources Corporation (CRC). On-site rig managers were typically responsible for the immediate supervision of rig workers, including plaintiff Rangel. However, Ensign California staff at the Bakersfield office were involved in policy creation and regular training of rig workers. Health, safety, and environmental (HSE) staff, some based in Bakersfield, regularly traveled to locations at or near the rig site to train and test rig workers on safety-related topics. Drilling superintendents, based in the Bakersfield office, visited rig sites on a monthly basis. During a typical visit, one such superintendent, Don Fogle, would speak with rig workers, inspect the premises and equipment, and conduct audits with respect to workplace safety. In late 2014, Larry Lorenz, the head of Ensign California, met with CRC to discuss the potential shutdown of drilling operations as a result of falling commodity prices. On October 22, 2014, Mr. Lorenz instructed Ensign California's recruiter to implement a hiring freeze for all on-rig employees. On December 17, 2014, Ensign California's HR director sent an email to certain employees regarding anticipated layoffs. The email stated, in pertinent part: Due to the significant decrease in the price of crude oil, Ensign is in the process of mass layoffs and by law obligated to provide a notice to all potentially impacted employees. Defendants move for summary judgment as to a single threshold issue: whether Ensign California's Bakersfield office rather than Rig 609 constitutes plaintiff's single site of employment for WARN Act purposes, such that he was a part of a mass layoff in late 2014. Plaintiff argues that the Bakersfield office was his single site of employment under the regulatory definitions, either because he was an outstationed worker or because his employment was part of a truly unusual organizational situation. Because fewer than fifty employees were laid off from Rig 609 within thirty days of plaintiff's termination, plaintiff would be unable to establish that his termination was a part of mass layoff if Rig 609, by itself, was determined to be his single site of employment. While the term outstationed is not explicitly defined by the regulation, the Court noted that Ninth Circuit has observed that the term most logically connotes a situation where employees live for a short period of time at a certain site, departing for home when the work is done. Outstationed' employees will obviously live, for some period, at the place where they are stationed, just as towboat employees may live on a towboat for up to thirty days at a time. In the absence of a controlling definition for the term, the Ninth Circuit recognized that a group of employees could be considered outstationed if they shared a single site of employment, (1) the site to which employees are assigned as their home base, (2) the site from which their work is assigned, or (3) the site to which they report as defined under Section 639.3(i)(6). An employee's home base is the place from which he leaves at the start of the work period and/or returns to at the end of the work period, or at the very least, where he is physically present at some point during a typical work period. Based on the evidence before this court on summary judgment, it is undisputed that apart from the initial hiring process and periodic trainings, neither plaintiff Rangel nor any of his co-workers at Rig 609 visited the Bakersfield office during a typical work period. To the contrary, the parties agree that the workers at Rig 609 typically travelled from their homes directly to their worksites and returned home at the conclusion of their seven-day work periods. That plaintiff Rangel lived in Bakersfield, near Ensign California's office, is of no import to this analysis. Nor is the fact that some rig workers went to the Bakersfield office to pick up pay-checks or for other administrative purposes wholly separate from core functions of their jobs. Accordingly, the court finds no evidence before it on summary judgment which supports a finding that the Bakersfield office was plaintiff's home base for WARN Act purposes. For a particular location to be considered the site from which work was assigned, the court must look to where work originated and where the day-to-day management decisions over employees' work duties occurred. Activities such as accounting, billing, payroll, and other administrative or personnel functions cannot constitute assignment of work under Section 639.3(i)(6). The evidence presented on summary judgment suggests that workers at Rig 609 operated within a chain of command extending beyond the on-site rig managers, to drilling superintendents and other more senior officials in Bakersfield. Furthermore, nearly all of plaintiff's work assignments on Rig 609 were subject to a variety of company-wide health and safety policies, including HSE-related policies and JSAs, all of which ultimately required approval by staff in the Bakersfield office. While such evidence tends to show that officials in Bakersfield had some degree of operational control over the manner by which rig workers performed their assigned tasks, it fails to amount to more than the types of administrative and personnel functions that courts have declined to consider in the context of Sec. 639.3(i)(6). Accordingly, the court concludes that the evidence before it on summary judgment, even if viewed in the light most favorable to plaintiff, establishes that the Bakersfield office was not the site from which work was assigned to plaintiff and other workers at Rig 609. The site to which an employee reports refers to where management issues work orders and directly reviews a mobile worker's job performance and work product in order to evaluate progress and set goals. As with the preceding test, reporting for purposes of payroll and other centralized administrative functions is insufficient, standing alone, to establish that a particular site is a single site of employment. While these reports summarized events at the rig site, the court finds no evidence before it on summary judgment that either type of report was used as the basis for evaluating a rig worker's job performance or work product. Separately, plaintiff points to evidence that Bakersfield staff verbally approved lists of high- performing drillers, submitted by various on-site rig managers, to be included in periodic Implementation Team meetings with those rig managers at the Bakersfield office. Those verbal approvals alone, however, provide no basis for concluding that staff in Bakersfield was directly involved in reviewing rig workers' performance.7 Thus, in the absence of evidence that individuals based in Bakersfield were involved in issuing work orders or evaluating job performance, the court finds no legitimate dispute that the Bakersfield office was not the site to which workers at Rig 609 reported. Accordingly, plaintiff cannot establish that he was an out- stationed worker under 20 C.F.R. Section 639.3(i)(6). Plaintiff contends that the combination of Ensign California's multiple rig sites should be treated as a single site of employment, based at the Bakersfield office, under the residual definition of the WARN Act's implementing regulation. There is no evidence here that multiple worksites resulted from space constraints or that Ensign California's various rig sites host company-wide operations. Nor has this court been presented with evidence on summary judgment of defendants' intent to evade the WARN Act's coverage. Rather, the Bakersfield office functioned as an administrative hub for several discrete worksites and as a central location for the periodic training of workers from those sites. In opposing summary judgment, plaintiff primarily argues that the Bakersfield office should be treated as a single site of employment for workers from all rig sites because it facilitated Ensign California's overarching purpose of profit generation. Such a broad reading of the residual definition would make virtually every corporate headquarters a single site of employment, regardless of how employees interact with it. The Court found no authority to support plaintiff's position on this point and concludes that based on the evidence before it on summary judgment, plaintiff cannot establish that his employment with Ensign California constitutes a truly unusual organizational situation under Section 639.3(i)(8). Notably, other courts have also declined to find similar corporate arrangements involving oil rig workers truly unusual. Because the court finds no genuine disputed issue of material fact as to whether the Bakersfield office can serve as plaintiff's single site of employment, summary judgment will be granted in defendants' favor as to plaintiff's federal WARN Act claim. In light of the statutory language of the California WARN Act and the evidence presented on summary judgment, however, this court must conclude that no reasonable jury could find liability for at least two reasons. First, the statutory definition for the term covered establishment is clear and unambiguous: it refers to part or all of a single industrial or commercial facility not a group of separate facilities. Thus, plaintiff Rangel's termination cannot be a part of a mass layoff under the California WARN Act as a matter of law, because fewer than fifty employees were laid off at Rig 609. Even if, as plaintiff suggests, this court were to disregard the plain meaning of the term covered establishment and construe it broadly to include single sites of employment under the federal WARN Act, plaintiff would still be unable to prevail on his state law claim in addressing his federal WARN Act claim. Second, there is no evidence before the court on summary judgment that defendants directly or indirectly owned Rig 609 or platform Emmy, such that they may be considered employers within the scope of the California WARN Act. Accordingly, because plaintiff's termination cannot be part of a mass layoff, summary judgment will be granted in defendants' favor as to plaintiff's California WARN Act claim. A full-text copy of the District Court's September 28, 2017 Order is available at http://tinyurl.com/ybgqhq2dfrom Leagle.com. O'Brian Rangel, Plaintiff, represented by Christopher J. Kupka, Levi & Korsinsky, 30 Broad Street, 24th Floor, York, NY 10004, pro hac vice. O'Brian Rangel, Plaintiff, represented by Jeff S. Westerman -- jwesterman@jswlegal.com -- Westerman Law Corp, Michael B. Ershowsky, Levi & Korsinsky, LLP, 30 Broad Street, 24th Floor, York, NY 10004, pro hac vice & Kenneth Alan Remson -- kremson@jslegal.com -- Westerman Law Corp. Ensign United States Drilling (California) Inc., Defendant, represented by David J. Cooper -- dcooper@kleinlaw.com -- Klein, Denatale, Goldner, Cooper, Rosenlieb & Kimball, LLP & Olivia Vanessa Franco Chavez -- vchavez@kleinlaw.com -- Klein DeNatale Goldner. Ensign United States Drilling Inc, Defendant, represented by David J. Cooper, Klein, Denatale, Goldner, Cooper, Rosenlieb & Kimball, LLP & Olivia Vanessa Franco Chavez, Klein DeNatale Goldner. EQUIFAX INC: Faces "Baker" Suit in Minnesota -------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as Jason Baker, on behalf of himself and all those similarly situated, Plaintiff v. Equifax, Inc., Defendant, Case No. 0:17-cv-04655-PAM-BRT (D. Minn., October 12, 2017). Equifax Inc. is a consumer credit reporting agency. Equifax collects and aggregates information on over 800 million individual consumers and more than 88 million businesses worldwide.[BN] The Plaintiff is represented by: Marisa C Katz, Esq. TeskeMicko Katz Kitzer&Rochel, PLLP 222 South Ninth Street, Ste. 4050 Minneapolis, MN 55402 Tel: (612) 746-1558 Fax: (651) 846-5339 Email: katz@teskemicko.com - and - Vildan A Teske, Esq. Teske, Micko, Katz, Kitzer & Rochel, PLLP 222 South Ninth Street, Suite 4050 Minneapolis, MN 55402 Tel: (612) 746-1558 Email: teske@teskemicko.com ESSENDANT INC: Alpha Tech Suit Seeks to Certify Class ----------------------------------------------------- In the lawsuit styled ALPHA TECH PET, INC., the Plaintiff, v. LAGASSE, LLC, et al., the Defendants, Case No. 1:16-cv-00513 (N.D. Ill.), the Plaintiff asks the Court to certifying three classes. Class A: "all persons or entities who were successfully sent one or more faxes from "LAGASSE SWEET" from May 1, 2011, to the present, stating: (1) "Early Bird Special 4% OFF," "Early Bird Special 5% Off," or "EARLY BIRD SPECIALS" on "Ice Melt"; (2) "You're important to us - you're a BIG DEAL," offering "Promotional pricing" for limited time, or "10% OFF" on "Rubbermaid Commercial Products"; (3) "BLITZ DEALS" offering "Rebates" on purchases and stating "PLACE YOUR ORDER NOW!" or "HOW TO ORDER"; (4) "PURCHASE RUBBERMAID AND SAVE BIG!" in "limited-time offer"; (5) "Get 10% Back on Your TC Purchases"; (6) "SAVE 20%" on "KLEENEX ANTIVIRAL TISSUE"; (7) "Fall Product Clearance" with "CLOSE OUT PRICES," "Spring Product Clearance" with "CLOSE OUT PRICES" or "CLEARANCE SALE!"; (8) "LIMITED TIME ONLY! 10% REBATE" or "5% REBATE" on "Rubbermaid Commercial Products"; (9) "5% REBATE" on "Purchases of Open Diversey Products"; (10) "SAVINGS ARE IN BLOOM!" with "$1.50/Carton Rebate" on "Universal Copy Paper"; (11) "Earn $4.00 off each case of Dawn" and "PLACE YOUR ORDER NOW!"; or (12) "RUBBERMAID 5% ROLLBACK" and "Act now in order to beat the price increase!"; Class B: "all persons or entities who were successfully sent one or more faxes from "LAGASSE SWEET" from May 1, 2011, to the present, stating: (1) "PLACE YOUR ORDER TODAY!" for "100% Recycled 2 Ply Center Pull Hand Towels"; (2) "NEW PAPER ITEM," "Brighter and whiter toilet tissue"; (3) "COLD & FLU SEASON ESSENTIALS" and "make sure you stock up on the essentials your customers will need to fight the raging flu"; (4) "PLACE YOUR ORDER TODAY!" on "HOT PAPER ITEM Quality hand drying towels"; (5) "PLACE YOUR ORDER TODAY" for "Innovative Towels and Tissue"; (6) "FREE Precision Blend Dilution System with purchase of LYSOL concentrated products"; (7) "LAGASSESWEET HAS QUALITY ROLL TOWELS AT AFFORDABLE PRICES"; (8) "Place your order today" on "the next generation of GOJO Manual Foam Dispensing"; (9) "Now Available! OFFICE PRODUCT SOLUTIONS"; (10) "special introductory promotion" and "earn up to $2500 per quarter with Colgate's Profit Builder Program!"; (11) "ATTENTION! Check out these new vinyl and latex gloves from THE GENERAL"; (12) "Safety Solutions" and "Lagasse gives you convenient access to top safety SKUs -- on one order, one invoice, one delivery!"; (13) "you may begin ordering the replacement Boardwalk Green Xtra BWK 35GREEN" white roll towel, with "exceptional quality and performance."; and Class C: "all persons or entities who were successfully sent one or more faxes from "LAGASSE SWEET" from May 1, 2011, to the present that contains a price list for products and states one or more of the following: (1) "Price Change Notification"; (2) "Specials Effective," "Effective," "Specials," "Prices Effective," "Pricing Effective," "Special Pricing" "Promo Pricing," or "Prices good thru"; (3) "Spotlight Business Specials"; (4) "Fax Blast"; (5) "PRICING CORRECTION," "correct promotional pricing," "correct pricing," "pricing has been corrected," or "rolling back" price increase; (6) "Hurricane Response Checklist" or "Flood Response Checklist"; (7) contains blanks for "ACCT. #" or "Account #" and "PO #" or "P.O. #"; or (8) "TO ENSURE ORDER ACCURACY, PLEASE COMPLETE ALL FIELDS BELOW." The Plaintiffs also asks Court for an Order appointing Plaintiffs as class representatives and appointing the law firms of Anderson & Wanca and Payne & Fears as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Eb1hNoJz The Plaintiff is represented by: Brian J. Wanca, Esq. Ryan M. Kelly, Esq. Ross M. Good, Esq. Glenn L. Hara, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368 1500 Facsimile: (847) 368 1501 E-mail: bwanca@andersonwanca.com rkelly@andersonwanca.com rgood@andersonwanca.com ghara@andersonwanca.com - and - C. Darryl Cordero, Esq. Daniel F. Lula, Esq. PAYNE & FEARS LLP 4 Park Plaza, Suite 1100 Irvine, CA 92614 Telephone: (949) 851 1100 Facsimile: (949) 851 1212 E-mail: cdc@paynefears.com dfl@paynefears.com FELDCO FACTORY: Joint Bid for Conditional Certification Granted --------------------------------------------------------------- In the lawsuit styled David Carbajal, the Plaintiff, v. Feldco Factory Direct, LLC, the Defendant, Case No. 1:17-cv-04442 (N.D. Ill.), the Hon. Judge Thomas M. Durkin entered an order granting a joint motion for conditional certification of collective action and for court guidance on class notice. According to the docket entry made by the Clerk on October 13, 2017, the Court will provide a revised notice to the parties to be sent out to the class members. A status hearing is set for Jan. 23, 2018 at 9:00 a.m. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=3SGZscdO The parties had asked the Court to certify a class of: "all current and former Field Technicians of Feldco who were employed by Feldco at its Des Plaines, Illinois location during the time period of October 2014 through January 19, 2016." On June 13, 2017, Carbajal filed the lawsuit claiming that Feldco misclassified him as a salaried exempt employee in violation of the Fair Labor Standards Act and Illinois Minimum Wage Law. Accordingly, Carbajal claims that Feldco owes him and other allegedly similarly situated field technicians overtime pay for workweeks in which they worked more than 40 hours. Because Feldco paid its field technicians on a salaried basis for all hours worked, to the extent any overtime is owed, which Feldco denies, the correct rate of compensation would be half-time, rather than the customary time and a half rate, the Complaint alleges. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=piic9nkm The Plaintiff is represented by: John C. Ireland, Esq. LAW OFFICE OF JOHN C. IRELAND 636 Spruce Street South Elgin, IL 60177 Telephone: (630) 464 9675 The Defendant is represented by: Brian S. Schwartz, Esq. Michael A. Paull, Esq. KLEIN DUB & HOLLEB, LTD. 660 LaSalle Place, Suite 100 Highland Park, IL 60035 FIFTH GENERATION: Court Denies Singleton Class Certification Bid ---------------------------------------------------------------- In the lawsuit styled TREVOR SINGLETON, individually and on behalf of all others similarly situated, the Plaintiff, v. FIFTH GENERATION, INC., d/b/a TITO'S HANDMADE VODKA, the Defendant, Case No. 5:15-cv-00474-BKS-TWD (N.D.N.Y.), the Hon. Brenda K. Sannes entered an order: 1. denying Plaintiff's motion for class certification; 2. denying Defendant's motion to strike the declaration of Donald Coffey; 3. denying Defendant's Motion to Strike the Report of Dr. Jon A. Krosnick; 4. granting Defendant's motion to Strike the Declaration of Michael Meyerson; 5. denying Plaintiff's Motion to Strike the Declaration of Peter Reidhead; 6. denying Plaintiff's Motion to Strike the Declaration of Nicole Liska; 7. denying Plaintiff's Motion to Strike the Declaration of Ray Nolletti; and 8. denying Plaintiff's Motion to Strike portions of the testimony of Sarah Butler; and 9. denying Plaintiff's Motion to Strike portions of the testimony of Michael Rappeport. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=19hpdeCm The Plaintiff is represented by: Eduard Korsinsky, Esq. Shannon L. Hopkins, Esq. Nancy A. Kulesa, Esq. Courtney Maccarone, Esq. Stephanie A. Bartone, Esq. LEVI & KORSINSKY LLP 733 Summer Street, Suite 304 Stamford, CT 06901 The Defendant is represented by: David L. Nocilly, Esq. BOND, SCHOENECK & KING, PLLC One Lincoln Center Syracuse, NY 13202 - and - Ricky L. Shackelford, Esq. GREENBERG TRAURIG, LLP - LOS ANGELES OFFICE 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 - and - Marcy Hogan Greer, Esq. ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, TX 78701 FOREMOST INSURANCE: Court Denied as Moot Bid to Certify Class ------------------------------------------------------------- In the lawsuit styled DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated, the PLAINTIFFS, v. FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, the DEFENDANT, Case No. 4:15-cv-04114-SOH (W.D. Ark.), the Hon. Judge Susan O. Hickey entered an order on September, 25, 2017, denying as moot: 1. Plaintiffs' motion to certify; 2. Defendant's motion to strike Saul Solomon's March 17, 2017 declaration; and 3. motion to exclude Saul Solomon's declarations. The Court said, "The parties may renew the motions in the event that the parties decide not to settle and to move forward with the lawsuit." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=R86O5mPo FOX RESTAURANT: "Pae" Suit Seeks to Certify Classes of Servers -------------------------------------------------------------- In the lawsuit styled JENNIFER PAE, individually and on behalf of all others similarly situated, the Plaintiff, v. FOX RESTAURANT CONCEPTS, LLC d/b/a TRUE FOOD KITCHEN; a Arizona limited liability company; FRC TRUE FOOD SMP, LLC, a California limited liability company; FRC TRUE FOOD SDFV, LLC, a California limited liability company; FRC TRUE FOOD NBFI, LLC, a California limited liability company; and DOES 1 through 25, inclusive, the Defendants, Case No. 2:16-cv-06965-DSF-FFM (C.D. Cal.), Ms. Jennifer Pae will move the Court on October 30, 2017 for an order certifying this case as a class action pursuant to the Fed. R. Civ. Proc. Rule 23(a) and (b)(3) on behalf of the following class: "all current and former Servers, Bartenders, and Hostesses who were employed by Defendants at the True Food Kitchen ("TFK") restaurants located at 395 Santa Monica Pl, Suite 172, Santa Monica, CA 90401 ("TFK Santa Monica"), 7007 Friars Rd., Suite 394, San Diego, CA 92108 (TFK San Diego), 451 Newport Center Drive, Newport Beach, CA 92660 ("TFK Newport Beach") since July 22, 2012 to the present". In the alternative, Plaintiff asks the Court to certify the following classes: 1. Unpaid Wages Class: "Plaintiff and all other persons who were employed by Defendants as Servers, Bartenders, and/or Front Desk Hosts/Hostesses at Defendants True Food Kitchen restaurant locations in Santa Monica, Newport Beach, and San Diego, at any time from July 22, 2012, and continuing to the present"; 2. Untimely Wages Class: "Plaintiff and all other persons who were employed by Defendants as Servers, Bartenders, and/or Front Desk Hosts/Hostesses at Defendants True Food Kitchen restaurant locations in Santa Monica, Newport Beach, and San Diego, at any time from July 22, 2012, and continuing to the present"; 3. Minimum Wages Class: "Plaintiff and all other persons who were employed by Defendants as Servers, Bartenders, and/or Front Desk Hosts/Hostesses at Defendants True Food Kitchen restaurant locations in Santa Monica, Newport Beach, and San Diego, at any time from July 22, 2012, and continuing to the present"; 4. Inaccurate Wage Statement Class: "Plaintiff and all other persons who were employed by Defendants as Servers, Bartenders, and/or Front Desk Hosts/Hostesses at Defendants True Food Kitchen restaurant locations in Santa Monica, Newport Beach, and San Diego, at any time from July 22, 2012, and continuing to the present"; 5. Meal Period Class: "Plaintiff and all other persons who were employed by Defendants as Servers, Bartenders, and/or Front Desk Hosts/Hostesses at Defendants True Food Kitchen restaurant locations in Santa Monica, Newport Beach, and San Diego, at any time from July 22, 2012, and continuing to the present"; 6. Rest Period Class: "Plaintiff and all other persons who were employed by Defendants as Servers, Bartenders, and/or Front Desk Hosts/Hostesses at Defendants True Food Kitchen restaurant locations in Santa Monica, Newport Beach, and San Diego, at any time from July 22, 2012, and continuing to the present"; 7. Unreimbursed Business Expenses: "Plaintiff and all other persons who were employed by Defendants as Servers, Bartenders, and/or Front Desk Hosts/Hostesses at Defendants True Food Kitchen restaurant locations in Santa Monica, Newport Beach, and San Diego, at any time from July 22, 2012, and continuing to the present"; In furtherance, Plaintiff asks the Court to enter its Order: a. certifying Plaintiff Jennifer Pae as representative of the class; and b. appointing the Law Offices of Thomas W. Falvey and Hartounian Law Firm as class counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=pNdxpTW7 The Plaintiff is represented by: Thomas W. Falvey, Esq. Michael H. Boyamian, Esq. Armand R. Kizirian, Esq. LAW OFFICES OF THOMAS W. FALVEY 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203 1922 Telephone: (818) 547 5200 Facsimile: (818) 500 9307 E-mail: thomaswfalvey@gmail.com, mike.falveylaw@gmail.com armand.falveylaw@gmail.com - and - Alex Hartounian, Esq. HARTOUNIAN LAW FIRM 418 N. Fair Oaks Ave., Suite 202 Pasadena, CA 91103 Telephone: (818) 794 9675 Facsimile: (818) 459 6997 E-mail: alex@h-lf.com FRANK & ISRAEL: CHC Systems Seeks Class Certification ----------------------------------------------------- In the lawsuit styled COMPREHENSIVE HEALTH CARE SYSTEMS OF THE PALM BEACHES, INC., a Florida corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. FRANK & ISRAEL, LTD. d/b/a FIRMS, the Defendant, Case No. 9:17-cv-80555-RLR (S.D. Fla.), the Plaintiff asks the Court for an order: 1. granting amended motion for class certification; 2. certifying this action as a class action on behalf of: "each person or entity that was sent one or more telephone facsimile messages ("faxes") about debt collection services available from FIRMS."; 3. appointing Plaintiff as class representative and appointing Phillip A. Bock as class counsel; and 4. granting Plaintiff permission to pursue Rule 23 class discovery, and award such other and further relief as the Court deems just under the circumstances. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=b91HtsGo The Plaintiff is represented by: Phillip A. Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. LaSalle St., Suite 1000 Chicago, IL 60602 Telephone: (312) 658 5501 Facsimile: (312) 658 5555 E-mail: phil@classlawyers.com FULENWIDER ENTERPRISES: Holland Seeks to Certify FLSA Class ----------------------------------------------------------- In the lawsuit styled HELEN HOLLAND, Individually, on behalf of herself and on behalf of all other similarly situated current and former employees, the Plaintiffs, v. FULENWIDER ENTERPRISES, INC., a North Carolina Corporation, PHOENIX TACO, L.L.C., a North Carolina Limited Liability Company, MICHAEL FULENWIDER, an Individual, TOM HIRUNPUGDI, an Individual, and ERSKINE WHITE, an Individual, the Defendants, Case No. 17-cv-00048-MOH-DLH (W.D.N.C.), Ms. Holland moves the Court for an Order conditionally certifying and approving notice to the following collective class pursuant to the Fair Labor Standards Act: "all current and former employees who were misclassified as exempt Assistant Managers or Assistant Unit Managers ("AUM") of Defendants' KFC, Taco Bell and Long John Silver's franchise restaurants located in the United States who work (or have worked) at said restaurants at any time during the applicable limitation's period covered by this Collective Action Complaint (i.e. two years for FLSA violations, three years for willful FLSA violations), up to and including the date of final judgment in this matter, and who is the Named Plaintiff and those who elect to opt-in to this action pursuant to the FLSA." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=eTrc0OhX The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. JACKSON SHIELDS YEISER & HOLT www.jsylawfirm.com 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754 8001 Facsimile: (901) 754 8524 E-mail: gjackson@jsyc.com rbryant@jsyc.com pjackson@jsyc.com - and - Christopher R. Strianese, Esq. Tamara L. Huckert, Esq. STRIANESE HUCKERT PLLC 401 North Tryon St., 10th Floor Charlotte, NC 28202 Telephone: (704) 998 2577 Facsimile: (704) 998 5301 E-mail: chris@strilaw.com tamara@strilaw.com www.strilaw.com GARDENS OF FOUNTAIN: "Jones" Suit Seeks to Certify FLSA Class ------------------------------------------------------------- In the lawsuit styled JACQUELYN M. JONES on behalf of herself and all others similarly situated, the Plaintiff, v. THE GARDENS OF FOUNTAIN WAY, LLC, a Domestic Corporation and GARDENVIEW, INC. a Domestic Corporation, the Defendants, Case No. 1:16-cv-01347-WCG (E.D. Wisc.), the Plaintiff moves the Court to conditionally certify a Fair Labor Standards Act collective action and authorize and order notice sent to members of a class of: "all persons who are or have been employed by Defendants as a Resident Care Assistant within three years prior to the filing of Plaintiff's Complaint on October 7, 2016, and who have not been compensated at an overtime rate of pay for all hours worked and for all work performed in excess of 80 hours in a consecutive 14 day period." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=yA2L3Ytq The Plaintiff is represented by: Kelly L. Temeyer, Esq. James A. Walcheske, Esq. Scott S. Luzi, Esq. Kelly L. Temeyer, Esq. WALCHESKE & LUZI, LLC 15850 W. Bluemound Road, Suite 304 Brookfield, WI 53005 Telephone: 1-262-780-1953 Facsimile: 1-262-565-6469 E-mail: contact@walcheskeluzi.com GEORGIA: Faces Class Suit over Special Education Program -------------------------------------------------------- Kayla Goggin, writing for Courthouse News Service, reported that a class action lawsuit in Atlanta, claims that Georgia's statewide special education program discriminates against children with disabilities by keeping them segregated from their non-disabled peers. In a federal complaint filed in Atlanta on October 11, 2017 the plaintiffs, which include the Georgia Advocacy Office, the Arc of the United State, and a number of parents with children in the state program, claim it discriminates against thousands of public school students with disabilities by "segregating them in a network of unequal and separate institutions and classrooms." As a result, they say the program, called the Georgia Network for Educational and Therapeutic Support, violates the Americans with Disabilities Act and the Fourteenth Amendment. The plaintiffs are represented by Jessica Wilson -- jessica.wilson@dlapiper.com -- of DLA Piper LLP in Boston. According to the complaint, approximately 5,256 students with varying mental and developmental disabilities were placed into GNETS during the 2016 school year. But the plaintiffs contend these students receive "an inferior and unequal education" since the GNETS curriculum is not based on or aligned with Georgia's statewide curriculum. They say the program segregates disabled students by removing them from their classrooms and placing them in either separate, locked wings of their zoned school or in completely separate GNETS- centered buildings. Many GNETS centers do not have libraries, cafeterias, gyms, science labs, music rooms or playgrounds, they claim. "Typically, GNETS satellite classrooms are isolated in trailers, basements, or locked wings, with separate entrances that are not used by students without disabilities," the class says. "During school hours, GNETS students have little, if any, opportunity to interact with their non-disabled peers." The complaint continues: "GNETS students receive a low-quality education. Academic instruction is poor, and GNETS students do not have access to courses and extracurricular activities routinely available to their non-disabled peers. Because of the lack of core courses and poor academic instruction, it is hard to earn a regular school diploma and very few GNETS students graduate with one." The class also claims that GNETS teachers often lack certification in the subject matter they teach and that only 10 percent of GNETS students graduate. "GNETS are not placements of the last resort but instead are 'dumping grounds' used by the State and local school districts for students whom local school districts do not want to educate," the complaint says. The class claims that the problem is a systemic one. "The State does not provide local school districts necessary funding to provide needed disability-related behavioral services in zoned schools," the complaint says. "As a result of the State's decision to consolidate the majority of its funding for these services in GNETS, local school districts have little incentive and few resources to provide the services necessary to educate children with disability-related behavioral needs in their zoned schools." A representative of Georgia Gov. Nathan Deal did not immediately respond to a request for comment. The class seeks declaratory and injunctive relief. The case is captioned, THE GEORGIA ADVOCACY OFFICE; THE ARC OF THE UNITED STATES; R.F, by and through his mother, B.F.; C.S., by and through his mother, M.S., and Q.H., by and through his mother, V.H., on behalf of themselves and others similarly situated, Plaintiffs, v. STATE OF GEORGIA; NATHAN DEAL, in his official capacity as Governor of the State of Georgia; GEORGIA BOARD OF EDUCATION; GEORGIA DEPARTMENT OF EDUCATION; RICHARD WOODS, in his official capacity as State School Superintendent of Georgia; GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH and DEVELOPMENTAL DISABILITIES; JUDY FITZGERALD, in her official capacity as Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities; DEPARTMENT OF COMMUNITY HEALTH; and FRANK BERRY, in his official capacity as Commissioner of the Georgia Department of Community Health, Defendants, Case No. 1:17- mi-99999-UNA (N.D. Ga., October 11, 2017). GLOBAL CREDIT: Court Denies Bid to Certify Class as Premature ------------------------------------------------------------- In the lawsuit styled LEON LOPEZ, the Plaintiff, v. GLOBAL CREDIT & COLLECTION CORP., and GALAXY PORTFOLIOS, LLC, the Defendants, Case No. 1:17-cv-00427 (N.D. Ill.), the Hon. Judge Manish S. Shah entered an order: 1. denying Defendants' motion to dismiss; and 2. denying Plaintiff's motion to certify class without prejudice as premature. The Court said, "Defendants shall answer the complaint by October 20, 2017, and the parties shall file a joint status report with a proposal for a case schedule on that same date. A status hearing is set for October 26, 2017 at 9:30 a.m." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=urM7i56b GREAT CIRCLE: "Bush" Suit Seeks to Certify Case Managers Class -------------------------------------------------------------- In the lawsuit styled MELISSA BUSH, individually and on behalf of others similarly situated, the Plaintiffs, v. GREAT CIRCLE, the Defendant, Case No. 2:17-cv-04070-BCW (W.D. Mo.), the Plaintiffs move this Court for an order conditionally certifying Count I as a collective action and authorizing notice under the Fair Labor Standards Act to: "all current and former Foster Care Case Managers ("FCCMs") employed by Defendant Great Circle ("Great Circle") at any time within the last three years". The Plaintiffs further move the Court to order Great Circle to produce a computer-readable data file containing the name, last known address, social security numbers and dates of employment for each such employee and to conspicuously post notice of this case in the break rooms of Great Circle's regional offices. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=r00LdWrm The Plaintiffs are represented by: Mark Potashnick, Esq. WEINHAUS & POTASHNICK 11500 Olive Blvd., Suite 133 St. Louis, MO 63141 Telephone: (314) 997-9150 Facsimile: (314) 997-9170 E-mail: markp@wp-attorneys.com - and - Eli Karsh, Esq. LIBERMAN, GOLDSTEIN & KARSH 230 South Bemiston, Suite 1200 St. Louis, MO 63105 Telephone: (314) 862 3333 Facsimile: (314) 862 0605 E-mail: elikarsh@aol.com GULFPORT ENERGY: Safety & Completions Consultants Class Okayed -------------------------------------------------------------- In the lawsuit styled TIMOTHY SLONE, ET AL., the Plaintiffs, v. GULFPORT ENERGY CORPORATION, the Defendant, Case No. 5:16-cv- 01296-HE (W.D. Okla.), the Hon. Judge Joe Heaton granted in part and denied in part Plaintiffs' motion for conditional certification. The motion is granted as to a Fair Labor Standards Act class composed of safety and completions consultants who provided services to Defendant in Ohio. The Plaintiff has also proposed notice procedures and forms. Defendant has objected to both the substance of the proposed notice and the requested methodology for providing notice to potential plaintiffs. Once a collective action is conditionally approved, "the court has managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-171 (1989). Accordingly, the parties are directed to confer in an effort to reach agreement on a form of notice, consent form, necessary deadlines, and methodology for providing notice to potential plaintiffs, and to submit, within 14 days from the filing of this order, a joint statement reflecting their agreement or, if agreement cannot be reached, their respective positions as to same. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=uSrkiCsi H & J INT'L: Faces "Liu" Suit in E. Dist. New York -------------------------------------------------- A class action lawsuit has been filed against H & J International Trading, Inc. d/b/a Dumpling Galaxy. The case is styled as Xiaoyan Liu, individually and on behalf of all other employees similarly situated, Plaintiff v. H & J International Trading, Inc. d/b/a Dumpling Galaxy, Helen You and Haiyun Katz, Defendants, Case No. 1:17-cv-05986 (E.D.N.Y., October 12, 2017). The Defendants are engaged in the salon industry.[BN] The Plaintiff appears PRO SE. HEARTLAND PAYMENT: Settlement Class in "Rudel" Suit Okayed ---------------------------------------------------------- In the lawsuit styled RUDEL CORPORATION, individually and on behalf of all others similarly situated, the Plaintiff, v. HEARTLAND PAYMENT SYSTEMS, INC., the Defendant, Case No. 3:16-cv- 02229-AET-LHG (D.N.J.), the Hon. Judge Anne E. Thompson entered an order: 1. preliminary approving Plaintiff's motion of a proposed settlement agreement; 2. provisionally certifying a settlement class as defined in the proposed Settlement Agreement, with exclusions defined as "Merchants who processed with Heartland and were subject to an American Express Fee Adjustment in their October 2014 account statements, retroactively implementing an increased American Express Discount Fee between the period of July 1, 2014 and October 31, 2014 and setting new American Express pricing going forward."; 3. appointing firm Squitieri & Fearon, LLP as Class Counsel; 4. approving form, content, and method of notice submitted by the parties; 5. directing that notice shall be administered as delineated in the settlement agreement within 30 days after entry of this Order; 6. directing class members wishing to object or opt out shall do so in the manner set out in the Notice within 60 days of the Notice Deadline; 7. directing parties to file a motion for final approval by December 18, 2017, prior to the final approval hearing; and 6. directing parties to report for a Final Approval Hearing on January 16, 2018 at 10:00 a.m. to Courtroom 4W of the Clarkson S. Fisher U.S. Courthouse, 402 East State Street, Trenton, NJ. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=NJ2cgVO3 HEIDI WASHINGTON: "Arnold" Suit Seeks to Certify Prisoners Class ---------------------------------------------------------------- In the lawsuit styled MICHAEL ARNOLD, the Plaintiff, v. HEIDI WASHINGTON, et al, the Defendants, Case No. 4:13-cv-14137-LVP-MKM (E.D. Mich.), the Plaintiff asks the Court to certify a class of: "all those prisoners who are confined with the Michigan Department of Corrections (MDOC) and are not provided Kosher meals as required by their religious diets, and states in support." The Plaintiff alleges that despite the MDOC's awareness that its policy of providing Jewish prisoners Vegan meals, prepared and served in a non-Kosher manner, violates Jewish Prisoners' sincerely held religious beliefs, it chooses not to alter this policy. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=HLovHbei The Plaintiff is represented by: Daniel E. Manville, Esq. DIRECTOR, CIVIL RIGHTS CLINIC MI. STATE UNIVERSITY COLLEGE Of Law PO Box 1570 East Lansing, MH 48826 Telephone: (517) 432 6866 E-mail: daniel.manville@law.msu.edu HELIX ENERGY: "Hugee" Suit Seeks to Certify FLSA Class ------------------------------------------------------ In the lawsuit styled MARTY HUGEE, Individually and On Behalf of All Others Similarly Situated, the Plaintiffs, v. HELIX ENERGY SOLUTIONS GROUP, INC., the Defendant, Case No. 4:17-cv-01099 (S.D. Tex.), the Plaintiffs ask the Court to enter an order: 1. conditionally certifying a class of: "all current and former kitchen and galley employees who worked for Helix, its parents, subsidiaries or affiliates on any vessel during the last three years and who were paid on a day-rate basis"; 2. authorizing the issuance of notice to potential class members; and 3. directing Defendant to produce verified contact information for all "kitchen and galley employees" who worked for Helix, its parents, subsidiaries or affiliates on any vessel during the last three years so that notice may be timely implemented. Hugee filed a putative collective action lawsuit against Defendant on April 10, 2017, alleging that the company violated the Fair Labor Standards Act of 1938 by, among other things, failing to pay him and others similarly situated employees overtime for hours worked in excess of 40 per workweek. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=4tdihlWi The Plaintiffs are represented by: Melissa Moore, Esq. Curt Hesse, Esq. MOORE & ASSOCIATES Lyric Center 440 Louisiana Street, Suite 675 Houston, TX 77002 Telephone: (713) 222 6775 Facsimile: (713) 222 6739 HEMMER LAW: Placeholder Bid for Class Certification Filed --------------------------------------------------------- In the lawsuit styled ROBIN BETZ, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. HEMMER LAW OFFICES, LLC, the Defendant, Case No. 2:17-cv-01369 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=o14fbKpd The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com HOGAN TRANSPORTATION: Court Certifies Class in "Fairfax" Suit ------------------------------------------------------------- In the lawsuit styled DON FAIRFAX, the Plaintiff, v. HOGAN TRANSPORTATION EQUIPMENT, INC., et al., the Defendants, Case No. 2:16-cv-00680-GCS-KAJ (S.D. Ohio), the Hon. Judge George C. Smith conditionally certifies a class of: "any employer who violates the [minimum wage or overtime provisions of this title] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages . . . . An action to recover [this] liability. . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated". The Court said, "Plaintiff has made no attempt to show that there are any factual circumstances that would render service by ordinary mail only ineffective. Accordingly, Plaintiff is only permitted to send a single notice to the Putative class with the exception that a second mailing may be attempted if the first attempt is returned undeliverable. The parties have agreed to add a sentence to the Plaintiff's proposed Notice indicating that defendant denies Plaintiff's allegations in the underlying case. Further, Defendant does not object to Plaintiff hiring a third party class action administration company if they deem appropriate or to a ninety day opt-in period. The Court approves each of these requests." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=6DLXZXxu HOUSTON, TX: Faces Class Suit over Serial Rapist ------------------------------------------------ Cameron Langford, writing for Courthouse News Service, reported that a serial rapist sexually assaulted a woman in 2011 and was not convicted of it until 2016, due to Houston officials' indifference to a backlog of more than 6,000 untested rape kits, the woman says in a federal class action in Houston. D.B. says in her lawsuit that in April 2011 a man later identified as David Lee Cooper saw her walking in Houston and offered her a ride. She declined, she says, but she did tell Cooper her car was not running. "Cooper then said he was a mechanic. D.B. could see his hands were oily indicating he might be a mechanic," according to the Sept. 24 complaint. Cooper persuaded her he was a mechanic and she let him drive her to her apartment, where he inspected her car and said it needed a new motor. He asked for a drink of water and she took him inside her apartment to get some, she says. "Cooper turned violent and threw D.B. to the floor and repeatedly struck her, bit her several times, and raped her," the complaint states. She managed to escape and ran from the apartment, and with Cooper in pursuit, encountered a male friend, who chased Cooper. "Cooper ran to his vehicle and fled," the lawsuit states. D.B. says she called Houston police and a relative took her to a Houston hospital, "where a SAKS rape kit was done." The hospital gave her anti-STD drugs but told her they were not 100 percent effective. A Houston police officer took the rape kit to the Houston Police Department "ostensibly for testing and to be used as evidence in the investigation of the sexual assault and rape," she says. But the city let it sit untested for five years. However, a Houston police detective called her and asked her why she was "on Bissonnet," a street known as a prostitution track, implying that she was a prostitute. "The HPD detective made it seem the rape was her fault and discouraged D.B. from filing a report as it was unlikely the suspect would be caught. The HPD detective never showed up at D.B.'s residence or requested that he meet D.B.," the complaint states. Police let her rape kit languish in an evidence room for five years, and she heard nothing about it until the Harris County District Attorney's Office contacted her in 2016 and told her tests showed it had genetic material that matched Cooper's DNA, D.B. says in the complaint. She learned that Cooper's DNA had been in an FBI database since 1991, and that he had been charged with rape in 1991 and 1994. His rap sheet includes convictions for attempted kidnapping, home burglary and DUI, according to the complaint. D.B. sued Houston, Mayor Sylvester Turner, Police Chief Art Acevedo and several of their predecessors. Quality control problems led the city to shut down its police crime lab in 2002. To regain public trust, former Houston Mayor Annise Parker spearheaded creation of the Houston Forensic Science Center, which took over nearly all HPD's forensic investigations in 2014. The center immediately started testing a backlog of 6,663 rape kits, some dating back to the 1980s, and by February 2015 it had tested them all, according to its website. D.B. says the center's testing helped prosecutors tie Cooper to several other attacks, and he pleaded guilty in December 2016 to raping her in 2011, to the 2002 sexual assault of a child and to a 2009 sexual assault. "David Lee Cooper is a serial rapist who could have been stopped in 1991, 1994, 2002, 2005 and in 2009 before he sexually assaulted and raped D.B.," the complaint states. D.B. seeks to represent two subclasses of more than 6,000 women and several hundred children: one group whose rape kits were not timely sent by Houston or Harris County law enforcement for testing; the other who were sexually assaulted by serial rapists due to the lack of prompt testing. She seeks damages for negligence, personal injuries, failure to protect, and violations of due process and equal protection. She also wants a special master appointed to oversee the city's rape investigations. She is represented by Houston attorneys Randall Kallinen, Charles Peckham and Roy Rodney. Peter Stout, CEO and president of the Houston Forensic Science Center, is also a defendant. Stout declined to comment on the lawsuit for the Houston Chronicle, but he touted the center's work on rape kits. "Since taking over management of the Houston Police Department's forensic operations in 2014, HFSC has eliminated legacy and incoming backlogs of sexual assault evidence. A legacy backlog inherited from HPD that dated back to the 1980s has been eliminated. HFSC's goal is to have a sustainable, average 30-day turnaround time for all evidence, including that which is related to sexual assault," he told the Chronicle. Houston's troubled history with rape kits is part of a statewide problem. Texas officials reported in 2011 that the state had a backlog of 20,000 kits. Thanks in part to $11 million legislators earmarked in 2013 to process the kits, the backlog has been reduced to around 3,000, the Texas Tribune has reported. A new law written by state Rep. Victoria Neave, D-Dallas, aims to get the public involved in paying for rape kits. Starting in 2018, Texans applying for and renewing driver's licenses and identification cards, can donate funds to test rape kits, the Tribune reported. The case is captioned, DEJENAY BECKWITH on her Own Behalf and Others Similarly Situated Plaintiffs, VS. CITY OF HOUSTON, TEXAS, Mayor Sylvester Turner, Police Chief Art Acevedo, Houston Forensic Science Center, Peter Stout, And Former Mayors of the City of Houston in their individual capacities: Annise Parker, Bill White, Lee P. Brown, Bob Lanier (deceased), and Kathy Whitmire. And Former Police Chiefs of the City of Houston in their individual capacities: Charles McClelland, Harold Hurtt, Clarence Bradford, Sam Nuchia, Elizabeth Watson, Lee P. Brown, Defendants, Case 4:17- cv-02859 (S.D. Tex., September 24, 2017). HOUSTON, TX: 5th Cir. Appeal over Prison Bail Policies Underway --------------------------------------------------------------- Cameron Langford, writing for Courthouse News Service, reported that a panel of Fifth Circuit judges on October 3, questioned whether a federal judge in Houston went too far in overhauling the bail policies of Texas' biggest county by ordering it to release poor misdemeanor defendants from jail within 24 hours. Harris County, with 4.5 million residents, is the third-most populous county in the United States and it's going through expensive growing pains in its approach to criminal justice. On one hand, county officials agree with a growing consensus across the United States that petty criminals should not languish in jail, possibly losing their jobs and custody of their children, or pleading guilty to crimes they did not commit to regain their freedom, simply because they cannot afford bail. Harris County started phasing in reforms in July geared toward granting more misdemeanor defendants personal recognize bonds, in which no fee is required to bond out of jail. But the county is fighting a federal class action that claims it unconstitutionally jails poor, low-level defendants, and has racked up more than $4 million in legal fees fighting the case. The latest chapter in the litigation came early this month, when a three-judge panel of the Fifth Circuit in New Orleans heard arguments from attorneys representing Harris County criminal judges and hearing officers, who preside over probable cause hearings in which bail is set. Harris County is asking the Fifth Circuit to undo U.S. District Judge Lee Rosenthal's preliminary injunction under which since early June the county has had to release misdemeanor defendants from detention on personal bonds within 24 hours after they sign an affidavit stating they cannot afford cash bail. Rosenthal also ordered Harris County Sheriff Ed Gonzalez to release from jail all misdemeanor defendants who are not subject to immigration, mental health or family violence holds on personal recognize bonds if they have not had a probable cause hearing within 24 hours. Chuck Cooper, with the Washington, D.C. law firm Cooper & Kirk, kicked off on October 3, hearing for Harris County, saying that Supreme Court guidance on comity -- that federal and state governments respect each other's laws -- requires Rosenthal to step back and let county and state criminal judges address constitutional issues with the county's bail system. He said Texas law lets criminal defendants file pretrial habeas corpus petitions in which they can argue that their detention is unconstitutional. He said such cases would take four weeks to get to a state appellate court if a county criminal judge denies the petition Fifth Circuit Judge Catharina Haynes questioned the practicality of a habeas petition for misdemeanor defendants, who often are sentenced to time served and released after a few days in jail when they plead guilty. "In a case where the likelihood is your sentence isn't even going to be two weeks, how meaningful is that procedure?" Haynes asked. Lead plaintiff Maranda ODonnell sued Harris County in May 2016 after she was arrested on a misdemeanor charge of driving with an invalid license and a magistrate judge set her bail at $2,500. ODonnell, 23, says her detention put her at risk of losing a restaurant job she needed to provide for her young daughter. She got out of jail after a few days by paying her $2,500 bail. Her class action was consolidated in August 2016 with a similar lawsuit. ODonnell is represented by attorneys with Washington, D.C.-based Civil Rights Corp. They obtained a preliminary injunction after arguing that Harris County relies too heavily on a preset bail schedule based on the charges, which does not adequately consider a defendant's finances in refusing to grant personal bonds, in violation of federal equal protection and due process rights. ODonnell's attorneys say the county's criminal judges rarely deviate from the bail set by the magistrate judges. Haynes and Fifth Circuit Judge Edward C. Prado, both President George W. Bush appointees, asked Civil Rights Corp. attorney Alec Karakatsanis if Rosenthal's order went too far into the jurisdiction of the county's criminal judges. "Here's the problem I see: It looks like the judge attempting to solve the problem of the county court judges failing to exercise discretion and act as judges, but instead rubberstamping and just wholesale doing one thing, has flipped it to taking away all discretion and making them wholesale do the opposite. And is that really the right solution?" Haynes asked. Harris County argued in a motion to stay that Rosenthal's order effectively strips county criminal judges and magistrate judges of their authority to consider four other factors that judges are supposed to weigh under Texas law in setting bail, besides ability to pay, including the safety of the victim and community. Haynes asked whether someone charged with a Class A misdemeanor for assault should be released from jail and treated the same way as a defendant facing a loitering charge under Rosenthal's injunction. Karakatsanis said Harris County can change its rules to favor pretrial detention for people charged with assault, but it chooses not to, which undermines its arguments about public safety. "Nothing about Judge Rosenthal's legal finding would prohibit Harris County from treating those people differently. . . . If they wanted to tomorrow they could pass a new rule saying anyone charged with assault should be detained without bond until a hearing before a judge, until a judge could look at the person, issue nonfinancial conditions like a GPS, a stay-away order, a curfew, things like that," Karakatsanis said. "Harris County, for assault cases, has already decided they will release anyone charged with assault if they pay $50 to a bondsmen or $100 to a bondsmen, whatever 10 percent of the bail amount would be." Bail bondsmen typically charge a defendant 10 percent of the bail, which is subject to forfeiture if the defendant misses court hearings. This gives bondsmen incentive to track down wayward clients and bring them to court -- and bondsmen are given great discretion in how they may do that. "Harris County has already made policy judgments about public safety in those cases. That's why some of the overheated rhetoric in this appeal about the danger to public safety rings so hollow," Karakatsanis said. Fifth Circuit Judge Edith Brown Clement, a President George H.W. Bush appointee, rounded out the panel and spoke little during the hour-long hearing. The judges gave no indication of how or when they might rule. Another Fifth Circuit panel stayed Rosenthal's preliminary injunction as of May 12, but lifted the stay on June 6. The case is captioned, MARANDA LYNN ODONNELL, et al., Plaintiffs, vs. HARRIS COUNTY, TEXAS, et al., Defendants. Case 4:16-cv-01414 (S.D. Tex.). HUNTER WARFIELD: Placeholder Bid for Class Certification Filed -------------------------------------------------------------- In the lawsuit styled JENNIFER WOJCIESKI, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. HUNTER WARFIELD OF NEW ENGLAND, INC., the Defendant, Case No. 2:17-cv-01300-NJ (E.D. Wisc.), the Plaintiffs ask the Court to enter an order certifying classes, appointing the Plaintiffs as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiffs further ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiffs file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=tpgJbrbS The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com JACKSONVILLE, FL: "Chapman" Suit Seeks to Certify Classes --------------------------------------------------------- In the lawsuit styled MARTIN CHAPMAN, on behalf of himself and on behalf of all others similarly situated, the Plaintiff, v. CITY OF JACKSONVILLE, the Defendant, Case No. 3:17-cv-00799-BJD-JRK (M.D. Fla.), the Plaintiffs asks the Court to enter an Order: a. certifying a proposed Rule 23 Americans with Disabilities Act, (ADAAA) Class; b. appointing Plaintiff Martin Chapman as the Class Representative of Plaintiff's ADAAA Class, and the Plaintiff's counsel and their firm as class counsel; c. permitting Plaintiff to notify the putative class members of the ADAAA class action; d. conditionally certifying Plaintiff's Age Discrimination in Employment Act (ADEA) collective action of current and former sworn officers of Defendant; e. directing Defendant to produce in an electronic and readable format, to the undersigned counsel within fourteen days of the Order granting this motion, a list containing the full names, last known addresses, telephone numbers, and email addresses of the putative ADEA collective action members; f. authorizing the undersigned counsel to send the initial notice to all individuals whose names appear on the list produced by Defendant's counsel by first-class mail; g. directing Defendant to post at all its locations the initial notice; and h. authorizing the undersigned counsel to send a follow-up notice to all individuals whose names appear on the list produced by the Defendants' counsel but who, by the fourteenth day prior to the close of the Court approved notice period, have yet to opt in to the instant action. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=db64IT68 The Plaintiff is represented by: Donna V. Smith, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Avenue, Suite 300 Tampa, FL 33602 Main Number: (813) 224 0431 Direct Dial: (813) 386 0995 Facsimile: (813) 229 8712 E-mail: dsmith@wfclaw.com rcooke@wfclaw.com JP MORGAN CHASE: Faces "Denton" Suit in E. Dist. Va. ---------------------------------------------------- A class action lawsuit has been filed against JP Morgan Chase & Co. The case is styled as David D. Denton, on behalf of himself and all others similarly situated, Plaintiff v. JP Morgan Chase & Co. and Chase Bank USA, N.A., Defendants, Case No. 4:17-cv-00125- RAJ-LRL (E.D. Va., October 12, 2017). JP Morgan Chase & Co. provides a range of banking and other financial services to the corporate, institutional, and governmental clients in the United States and internationally.[BN] The Plaintiff is represented by: Leonard Anthony Bennett, Esq. Consumer Litigation Associates 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Tel: (757) 930-3660 Fax: (757) 930-3662 Email: lenbennett@clalegal.com - and - Susan Mary Rotkis, Esq. Consumer Litigation Associates 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Tel: (757) 930-3660 Fax: (757) 930-3662 Email: srotkis@clalegal.com KERRI BARKLEY: Court Denied Jacobs' Motion to Certify Class ----------------------------------------------------------- In the lawsuit styled AARON L. JACOBS, JR., the Plaintiff, v. KERRI BARKLEY and ROBERTA LONGSINE, the Defendants, Case No. 2:16- cv-00246-PP (E.D. Wisc.), the Hon. Judge Pamela Pepper entered an order: 1. denying Plaintiff's motion to compel discovery; 2. granting Plaintiff's motion for extension of discovery deadline; 3. granting Plaintiff's motion to withdraw third amended complaint; 4. granting Plaintiff's motion to file amended complaint; 5. denying Plaintiff's motion to certify class and appoint class counsel; 6. directing that the proposed third amended complaint is the operative complaint in this case; and 7. denying without prejudice Defendants' motion for summary judgment. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=QDlDUl8q KING PLASTIC: "Fusic" Suit Seeks to Certify Factory Workers Class ----------------------------------------------------------------- In the lawsuit styled THOMAS FUSIC, on behalf of himself and others similarly situated, the Plaintiff, v. KING PLASTIC CORPORATION, a Florida Profit Corporation, the Defendant, Case No. 2:17-cv-00390-SPC-CM (M.D. Fla.), the Plaintiff asks the Court for an Order: 1. conditionally certifying a class of: "current and former hourly non-exempt factory workers who worked for Defendant between July 12, 2014 and the present"; 2. directing Defendant to produce, in an electronic readable format, to undersigned counsel within 14 days of the Order granting this Motion, a list containing the names, the last known addresses, phone numbers and e-mail addresses of putative class members who worked for Defendant between July 12, 2014 and the present; 3. authorizing Plaintiff's counsel to send notice to all individuals whose names appear on the list produced by Defendant's counsel by first-class mail and e-mail; and 4. providing all individuals whose names appear on the list produced by Defendant's counsel with 60 days from the date the notices are initially mailed to file a Consent to Become Opt-In Plaintiff. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=M93MGvSm The Plaintiff is represented by: Bill B. Berke, Esq. BERKE LAW FIRM, P.A. 4423 Del Prado Blvd. S. Cape Coral, FL 33904 Telephone: (239) 549 6689 E-mail: berkelaw@yahoo.com KLUEVER & PLATT: Court Grants Righeimer Class Certification Bid --------------------------------------------------------------- In the lawsuit styled Diane Righeimer, the Plaintiff, v. Kluever & Platt LLC, the Defendant, Case No.: 1:17-cv-04170 (N.D. Ill.), the Hon. Judge Marvin E. Aspen entered an order granting Plaintiff's motion for class certification. According to the docket entry made by the Clerk on September 28, 2017, Plaintiffs' unopposed motion for preliminary approval of class action settlement is granted. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=RSvy7LO6 KNIGHT TRANSPORTATION: "Ratliff" Suit Seeks to Certify Class ------------------------------------------------------------ In the lawsuit styled JEROME RATLIFF JR., individually and on behalf of all others similarly situated, the Plaintiff, v. KNIGHT TRANSPORTATION, INC., an Arizona corporation, the Defendant, Case No. 1:17-cv-07189 (N.D. Ill.), the Plaintiff asks the Court for an order: a. granting Plaintiff's motion for class certification of: "all individuals in the United States who, from the date five years prior to the date of the filing of this action to the present, submitted an online job application to Defendant and were denied employment based in whole or in part on information contained in a consumer report without being provided within three business days of such adverse action an oral, written or electronic notification: (i) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency; (ii) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report; (iii) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to them the specific reasons why the adverse action was taken; and (iv) that they may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report." b. appointing Plaintiff Jerome Ratliff Jr. as Class Representative; c. appointing Michael Aschenbrener and Adam York of KamberLaw LLC as Class Counsel; and d. providing any and all other relief that the Court deems equitable and just. In the alternative, Plaintiffs asks the Court to: a. enter and continue Plaintiff's Motion for Class Certification; b. set a schedule for discovery; c. grant Plaintiff leave to file an amended or renewed Motion for Class Certification upon the conclusion of discovery; and d. provide Plaintiff any and all other relief that the Court deems equitable and just. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=8jv5Kkld The Plaintiffs are represented by: Michael Aschenbrener, Esq. Adam C. York, Esq. KamberLaw LLC 220 N Green St Chicago, IL 60607 Telephone: (212) 920-3072 E-mail: masch@kamberlaw.com ayork@kamberlaw.com KOHL'S CORPORATION: Renewed Class Certification Bid Underway ------------------------------------------------------------ In the lawsuit styled Mark Ankcorn, the Plaintiff, v. Kohl's Corporation, the Defendant, Case No. 1:15-cv-01303 (N.D. Ill.), Hon. Judge Robert M. Dow Jr. entered an order continuing generally Plaintiff's renewed preliminary motion for class certification until the parties are ready to enter into a briefing schedule on the motion. According to the docket entry made by the Clerk on September 27, 2017, notice of motion date of Sep. 28, 2017 is stricken, and no appearances are necessary on that date. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=zCauC5q9 LABELLE HOMEHEALTH: Court Certifies Class in "Richert" Suit ----------------------------------------------------------- In the lawsuit styled Jenna Richert, the Plaintiff, v. LaBelle HomeHealth Care Service LLC, et al., the Defendants, Case No. 2:16-cv-00437-JLG-CMV (S.D. Ohio), the Hoh. Judge James L. Graham entered an Order: 1. granting Plaintiff's motion for class certification of: "all home health aides employed by LaBelle from January 1, 2015 to the present who were not paid overtime wages during all or part of their employment. Plaintiff contends that the class period should begin on January 1, 2015 because the Department of Labor gave the Final Rule an effective date of January 1, 2015";See 78 FR 60454-01. 2. denying Defendant's motion for partial judgment on the pleadings; and 3. denying Plaintiff's motion for equitable tolling without prejudice. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=6iSA0b0S LEE N' EDDIES: Urban Elevator's Class Certification Bid Denied -------------------------------------------------------------- In the lawsuit styled Urban Elevator Service, LLC, the Plaintiff, v. Lee N' Eddies LLC, et al., the Defendants, Case No. 1:15-cv-07788 (N.D. Ill.), the Hon. Judge Gary Feinerman entered an order denying without prejudice Plaintiff's motion to certify class according to the docket entry made by the Clerk on September 27, 2017. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=ykaAFyKO LESTER'S ACTIVEWEAR: Faces "Young" Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Lester's Activewear, Inc. The case is styled as Lawrence Young, individually and on behalf of all other persons similarly situated, Plaintiff v. Lester's Activewear, Inc. and Lester's of N.Y. Inc., Defendants, Case No. 1:17-cv-07847 (S.D.N.Y., October 12, 2017). The Defendants provided apparel and accessory stores products and service.[BN] The Plaintiff appears PRO SE. LTI TRUCKING: "Ratliff" Suit Seeks to Certify Class --------------------------------------------------- In the lawsuit styled JEROME RATLIFF JR., individually and on behalf of all others similarly situated, the Plaintiff, v. LTI TRUCKING SERVICES, INC., a Missouri corporation, the Defendant, Case No. 1:17-cv-07190 (N.D. Ill.), the Plaintiff asks the Court for an order: a. granting Plaintiffs motion for class certification of: "all individuals in the United States who, from the date five years prior to the date of the filing of this action to the present, submitted an online job application to Defendant and were denied employment based in whole or in part on information contained in a consumer report without being provided within three business days of such adverse action an oral, written or electronic notification: (i) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency; (ii) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report; (iii) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to them the specific reasons why the adverse action was taken; and (iv) that they may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report"; b. appointing Plaintiff Jerome Ratliff Jr. as Class Representative; c. appointing Michael Aschenbrener and Adam York of KamberLaw LLC as Class Counsel; and d. providing any and all other relief that the Court deems equitable and just. In the alternative, the Plaintiff asks that the Court: a. enter and continue Plaintiff's Motion for Class Certification; b. set a schedule for discovery; c. grant Plaintiff leave to file an amended or renewed Motion for Class Certification upon the conclusion of discovery; and d. provide Plaintiff any and all other relief that the Court deems equitable and just. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=dCLNCvub The Plaintiff is represented by: Michael Aschenbrener, Esq. Adam C. York, Esq. KamberLaw LLC 220 N Green St Chicago, IL 60607 Telephone: (212) 920-3072 E-mail: masch@kamberlaw.com ayork@kamberlaw.com MARRIOTT INTERNATIONAL: Parrott Seeks to Notify Class Members ------------------------------------------------------------- In the lawsuit styled Stephane Parrott, et al., the Plaintiffs, v. Marriott International, Inc., the Defendant, Case No. 2:17-cv- 10359-VAR-RSW (E.D. Mich.), Stephane Parrott and Kevin Williams move the Court to direct notice to be issued to the members of a proposed collective pursuant to the Fair Labor Standards Act, consisting of: "all current and former Food Managers who worked at any Courtyard by Marriott hotel and who were classified as exempt from overtime at any time since October 11, 2017, including any person who worked in a substantially-similar capacity but under a different job title." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=vlSoMdC9 The Plaintiffs are represented by: Jesse L. Young, Esq. SOMMERS SCHWARTZ PC 1 Towne Square, Suite 1700 Southfield, MH 48076 Telephone: (248) 746 4027 Facsimile: (248) 936 2138 E-mail: jyoung@sommerspc.com - and - Seth R. Lesser, Esq. Fran L. Rudich, Esq. Christopher Timmel, Esq. KLAFTER, OLSEN & LESSER, LLP Two International Drive, Suite 350 Rye Brook, NY 10573 Telephone: (914) 934 9200 Facsimile: (914) 934 9220 E-mail: seth@klafterolsen.com fran@klafterolsen.com christopher.timmel@klafterolsen.com - and - Drew Legando, Esq. LANDSKRONER GRIECO MERRIMAN LLC 1360 West 9th Street, Suite 200 Cleveland, Ohio 44113 Telephone: (216) 522 9000 Facsimile: (216) 522 9007 E-mail: drew@lgmlegal.com - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD LLP 412 H Street NE, Suite 302 Washington, D.C. 20002 Telephone: (202) 470 3520 E-mail: nmigliaccio@classlawdc.com jrathod@classlawdc.com MCCARTHY & BURGESS: Placeholder Bid for Class Certification Filed ----------------------------------------------------------------- In the lawsuit styled LUISA AVILES, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. MCCARTHY, BURGESS & WOLFF, INC. and HSN, INC. d/b/a HOME SHOPPING NETWORK, the Defendant, Case No. 2:17-cv-01338-WED (E.D. Wisc.), the Plaintiffs ask the Court to enter an order certifying classes in this case, appointing the Plaintiffs as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiffs further ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiffs file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=3oQBMtV8 The Plaintiffs are represented by: John D. Blythin, Esq. Shpetim Ademi, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com MED-CARE DIABETIC: Court Grants Motion for Class Certification -------------------------------------------------------------- In the lawsuit styled Arwa Chiropractic, P.C., the Plaintiff, v. Med-Care Diabetic & Medical Supplies, Inc., et al., the Defendant, Case No. 1:14-cv-05602 (N.D. Ill.), the Hon. Judge John Z. Lee entered an order granting Plaintiff's motion for class certification [92] is granted. According to the docket entry made by the Clerk on September 29, 2017, Plaintiff's Rule 23 motion for class certification is granted. The Plaintiff may proceed with its TCPA claims on behalf of its proposed class. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=V8udhKj2 MESILLA VALLEY TRANS: "Ratliff" Suit Seeks Class Certification -------------------------------------------------------------- In the lawsuit styled JEROME RATLIFF JR., individually and on behalf of all others similarly situated, the Plaintiff, v. MESILLA VALLEY TRANSPORTATION, INC., a New Mexico Corporation, and MVT SERVICES, LLC, a New Mexico Limited Liability Company, the Defendants, Case No. 1:17-cv-07192 (N.D. Ill.), the Plaintiff asks the Court to enter an order: a. granting Plaintiff's motion for class certification of: "all individuals in the United States who, from the date five years prior to the date of the filing of this action to the present, submitted an online job application to Defendants and were denied employment based in whole or in part on information contained in a consumer report without being provided within three business days of such adverse action an oral, written or electronic notification: (i) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency; (ii) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report; (iii) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to them the specific reasons why the adverse action was taken; and (iv) that they may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report". b. appointing Plaintiff Jerome Ratliff Jr. as Class Representative; c. appointing Michael Aschenbrener and Adam York of KamberLaw LLC as Class Counsel; and d. providing any and all other relief that the Court deems equitable and just. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ejUXdTlU The Plaintiff is represented by: Michael Aschenbrener, Esq. Adam C. York, Esq. KamberLaw LLC 220 N Green St Chicago, IL 60607 Telephone: (212) 920-3072 E-mail: masch@kamberlaw.com ayork@kamberlaw.com MICHAELS STORES: Court Narrows Claims in "Rowe" Suit ---------------------------------------------------- In the lawsuit styled LAUREL ROWE, the Plaintiff, v. MICHAELS STORES, INC., Defendant, Case No. 5:15-cv-01592-EJD (N.D. Cal.), the Hon. Judge Edward J. Davila entered an order: 1. denying Defendant Michaels' motion for summary adjudication on Rowe's Eighth Cause of Action for failure to exhaust administrative remedies; 2. granting Michaels' motion for summary adjudication as to the following claims: First Cause of Action for failure to pay unpaid minimum wages; Second Cause of Action for unpaid overtime wages; Fifth Cause of Action for inaccurate pay statements to the extent it is based on unpaid wages; Sixth Cause of Action for Labor Code section 203 penalties to the extent it is based on unpaid wages; Seventh Cause of Action; Eighth Cause of Action for remedies under the Private Attorneys General Act to the extent it is based on unpaid wages; and Ninth Cause of Action for violation of California's Business and Professions Code section 17200 et seq. to the extent it is based on unpaid wages; and 3. denying Rowe's pending motion for class certification without prejudice, because the Court's rulings on Michaels' motion for summary adjudication may have a substantial impact on class certification issues; Rowe may, if appropriate, renew her motion for class certification if there remains at least one claim for which she is able to satisfy the requirements of Rule 23, Fed.R.Civ.P. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=HTNhWJRb MIDLAND CREDIT: "Grigsby" Suit Alleges FDCPA Violation ------------------------------------------------------ Janie Grigsby, and all others similarly-situated v. Midland Credit Management, Inc., and Midland Funding, LLC, Case No. 3:17-cv-00441 (E.D. Tenn., October 6, 2017), is brought against the Defendants for violation of the Fair Debt Collection Practices Act. Plaintiff, Janie Grigsby, is a resident in the Eastern District of Tennessee. Defendants Midland Credit Management, Inc. and Midland Funding, LLC operate a nationwide debt collection business and attempts to collect debts from consumers in every state, including consumers in the State of Tennessee. [BN] The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Tel: (708) 974-2900 Fax: (708) 974-2907 E-mail: davephilipps@aol.com mephilipps@aol.com - and - Cynthia T. Lawson, Esq. Heather E. Banks, Esq. BOND, BOTES & LAWSON, P.C. 6704 Watermour Way Knoxville, TN 37912 Tel: (865) 938-0733 Fax: (865) 938-7931 E-mail: cynthialawson@bbllawgroup.com heatherbanks@bbllawgroup.com MIDLAND CREDIT: Placeholder Bid for Class Certification Filed ------------------------------------------------------------- In the lawsuit styled DEBBIE MALONEY, AMY VEGA, and SALLY CZARNECKI, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. MIDLAND CREDIT MANAGEMENT, INC. and MIDLAND FUNDING, LLC, the Defendants, Case No. 2:17-cv-01335-DEJ (E.D. Wisc.), the Plaintiffs ask the Court to enter an order certifying classes, appointing the Plaintiffs as their respective representatives, and appointing Ademi & O'Reilly, LLP as their Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiffs further ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiffs file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Th0ZxnDJ The Plaintiffs are represented by: John D. Blythin, Esq. Shpetim Ademi, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com MIZUHO BANK: "Greene" Suit Seeks to Certify 2 Classes ----------------------------------------------------- In the lawsuit styled GREGORY GREENE, JOSEPH LACK, ANTHONY MOTTO, and GREGORY PEARCE individually and on behalf of all others similarly situated, the Plaintiffs, v. MIZUHO BANK, LTD., a Japanese financial institution, and MARK KARPELES, an individual, the Defendants, Case No. 1:14-cv-01437 (N.D. Ill.), the Plaintiffs ask the Court for an order certifying the following classes: Deposit Class: "all individuals who, while residing in the United States, wired fiat currency to Mt. Gox's account at Mizuho Bank between June 20, 2013, and February 24, 2014"; and Withdrawal Class: "all individuals who, while residing in the United States, submitted to Mt. Gox a request to withdraw fiat currency between June 20, 2013, and February 24, 2014, and whose request went unfulfilled." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=jXHBYIfj The Plaintiffs are represented by: Jay Edelson, Esq. Benjamin S. Thomassen, Esq. Rafey S. Balabanian, Esq. J. Aaron Lawson EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: jedelson@edelson.com bthomassen@edelson.com alawson@edelson.com rbalabanian@edelson.com MONTGOMERY, NY: Court Denies Motion for Class Certification ----------------------------------------------------------- In the lawsuit styled PERRY HILL, both individually and on behalf of a class of others similarly situated, the Plaintiff, v. COUNTY OF MONTGOMERY, MICHAEL AMATO and MICHAEL FRANKO, the Defendants, Case No. 9:14-cv-00933-BKS-DJS (N.D.N.Y.), the Hon. Judge Brenda K. Sannes entered an order: 1. denying Defendants' letter motion; 2. denying Plaintiff's motion for class certification without prejudice to renewal upon briefing issues; and 3. directing Plaintiff to renew his motion for class certification, he must file a brief, and any exhibits, on or before October 31, 2017. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=R9OdVZIl The Plaintiff is represented by: Elmer Robert Keach, III, Esq. Maria K. Dyson, Esq. LAW OFFICES OF ELMER ROBERT KEACH, III, P.C. One Pine West Plaza, Suite 109 Albany, NY 12205 - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD LLP 412 H Street N.E., Suite 302 Washington, D.C. 20002 The Defendant is represented by: Jonathan M. Bernstein, Esq. Goldberg Segalla LLP 8 Southwoods Boulevard, Suite 300 Albany, NY 12211 NEW YORK, NY: Class Suit Filed over Bail System ----------------------------------------------- Joss Russell, writing for Courthouse News Service, reported that New York City's failure to adopt bail reforms two years after a report labeled the system "deranged" has sparked a federal class action in Manhattan, by three men caught in the crossfire. Vice News used the language in question in August 2015, and the Center for Court Innovation shed light on the delays and improperly extended detentions tied to what it called the city's "confusing and perplexing" bail system four months later. Still waiting for enforcement of the recommendations that report put forward, former detainees James Lynch, Lloyd Jones and Baron Spencer say they want to represent a class of the thousands of presumptively innocent detainees who were jailed for hours or days over the years, "as these well-documented problems went unaddressed . . . in violation of court orders entitling them to release upon posting bail." The men filed their federal class action on October 4, in Manhattan, alleging false imprisonment and violations of civil rights. They note that the concept of bail is simple but its practice in New York is "byzantine and inhumane." "Every day and night, friends, family members, and charitable organizations present themselves at New York City Department of Correction facilities with cash, cashier's checks, and money orders, asking to pay bail for a presumptively innocent person who is in jail -- and they are turned away," the complaint states. "They are told that the computers or the fax machines are not working; that the responsible staff is not available; that the person is not 'eligible' to be released on bail because he or she is in the midst of the day-long ordeal of being processed for admission to a jail facility; or another of an endless supply of excuses. They are told to come back after lunch; to come back after the next shift change; to come back the next day." It should take mere minutes, hours at most, to release a detainee once his bail is paid, according to the complaint. "Instead, detainees often languish for a day or more after their bail has been posted -- even though they are, by judicial order, entitled to release, and there is no lawful basis for continued restraints on their liberty," the complaint states. "Such overdetentions are, as courts across the country have long held, unconstitutional." City officials effectively admitted, in their adoption of a bail- efficiency law this past June, that a bail payment should trigger the release of a detainee within five hours, according to the complaint. "The city nonetheless detained members of the class for many hours or days beyond the three to five hour threshold, without any legitimate governmental necessity," the complaint states. "These overdetentions resulted from the city's unconstitutional policies, practices, usages and/or customs and from its unlawful deliberate indifference to the constitutional rights of class members." A spokesman for the Mayor's Office of Criminal Justice denied that the city has no interest in adopting reforms, saying its efforts are documented in the lawsuit itself. "This suit quotes extensively from a report commissioned by the city -- precisely so that we can identify fixes -- which should show that we are serious about improving the system," spokesman Patrick Gallahue said in an email. Gallahue noted that the city is also investing $500,000 a year to hire 50 "bail expediters," a move that is expected to keep around 2,000 people from being booked into jail every year. New York City is also developing an online bail-payment system, Gallahue confirmed, saying they plan to have ATMs in every courthouse by late 2017. "New York City has taken a clear-eyed look at the bail system and has launched a number of efforts to ensure that not only are fewer people held on bail, but that for those who receive bail, payment is easier than it has ever been and that defendants can be released as expeditiously as possible," Gallahue said. Against these claims, the class calls New York City's bail system "hopelessly broken." A New York City councilman even likened it to "the DMV on steroids" in a 2015 interview with Vice News, according to the complaint. "The bail process in New York City is like if Kafka wrote a novel on criminal justice," City Councilman Rory Lancman said, according to the complaint. "You don't know where to go, you don't know what to do, and you don't know when your loved one is even getting out." Vice called it "probably easier to buy a gun online than free a loved one from jail." Pointing to the Center for Court Innovation's 2015 expose, the class quotes investigators as recommending "that DOC address its woefully inadequate staffing of the bail process and use the opportunity of reductions in jail population to 'reallocate DOC staff in order to adequately staff the bail payment process.' "On information and belief," the complaint continues, "this recommendation was ignored." The DOC likewise ignored a recommendation that defendants should be afforded the chance to post bail immediately before or during the intake process. Further compounding these failures, as found by the audit, is the DOC's on fax machines and an antiquated paper-records system. "Stakeholders unanimously believed that DOC's paper-based system makes every step of the process longer and more difficult," the report found. Detainees say the DOC has nevertheless ignored advice to go digital. Citing a statistic from 2014, the complaint says nearly half of the 12,880 defendants whose family or friends had the means to post bail early in the life of their criminal case were unable to do so immediately after arraignment, prior to the defendant's removal from court and transport to a detention facility. Once transported a detention facility, processing can last between 12 and 22 hours or longer according to the complaint. "This process consists of invasive and frequently demeaning medical screening, strip searches, and other jail intake procedures" the complaint continues. Each of the three lead plaintiffs says he was detained for many hours or days beyond the three-to-five hour threshold, without any legitimate governmental necessity. The class is represented by: Matthew Brinckerhoff, Esq. Emery Celli Brinkerhoff and Abady LLP 10TH FL., 600 5th Ave New York, NY 10019 NORTH AMERICAN BANCARD: Bid for Leave to File Under Seal Okayed --------------------------------------------------------------- According to the docket entry made by the Clerk on September 29, 2017, in the lawsuit styled West Loop Chiropractic & Sports Injury Center, Ltd., et al. the Plaintiffs, v. North American Bancard, LLC, et al., the Defendants, Case No.: 1:16-cv-05856 (N.D. Ill.), the Hon. Judge Ronald A. Guzman entered an order granting Plaintiffs' Motion for Leave to file under seal. The Plaintiffs are given leave to file their supplemental statement in support of amended motion for class certification under seal. The motion hearing noticed for October 3 was stricken with no appearance required. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=4dgiDvda NURTURE INC: Wins Bid to Dismiss "Birdsong" Suit ------------------------------------------------ The United States District Court for the Eastern District of New York issued a Memorandum and Order granting Defendant's Motion to Dismiss the Complaint in the case captioned SARAH BIRDSONG, on behalf of herself and all others similarly situated, Plaintiff, v. NURTURE, INC. d/b/a HAPPY FAMILY, Defendant, No. 16-CV-4435 (RRM) (PK) (E.D.N.Y.). Nurture moves to dismiss this entire action claiming that, inter alia, Birdsong's claims are pre-empted by the Organic Foods Production Act of 1990, U.S.C. Sections 6501-6523 (OFPA), and that Birdsong lacks standing to seek injunctive relief. Defendant Nurture, Inc., sells infant and baby food products that are marketed, labeled, and sold as Organic. Sarah Birdsong, on behalf of herself and all others similarly situated, brings this putative class action against Nurture, alleging that Nurture misled consumers about the ingredients of its Happy Family brand products. Birdsong contends that the Products are not organic as defined under federal law because they contain certain prohibited synthetic ingredients. Birdsong further claims that had she known that the Products were not organic, she would not have purchased them. However, she would consider purchasing the Products in the future if the Products were reformulated so as to make the Organic representation truthful. Nurture argues that Birdsong's state law claims pose an obstacle to the achievement of the OFPA's objectives and thus are pre- empted by federal law. Under the Supremacy Clause of the United States Constitution, "state laws that conflict with federal law are without effect" and are pre-empted. Products certified as Organic under the OFPA must contain at least 95% organically produced ingredients by weight; the other 5% of ingredients can be non-organically produced agricultural products produced consistent with the National List. Under the OFPA, if the NOP's Program Manager has reason to believe that a certified operation has violated or is not in compliance with the OFPA or a certifying agent or a State organic program's governing State official fails to take appropriate action to enforce the OFPA or regulations, then the Program Manager may initiate suspension or revocation proceedings against a certified operation. If an operation fails to comply with the OFPA, it is subject to a civil penalty of up to $10,000 per violation and the possibility of a five-year prohibition from re-certification. Additionally, any action by the Secretary or certifying agent that adversely affects a person or is inconsistent with the organic certification program" is appealable to the Administrator for the Agricultural Marketing Service, and final agency decisions are appealable to the district court. Here, Birdsong claims that the Products are falsely labeled as Organic on the theory that they contain ingredients that federal law bans from organic foods. However, USDA's accredited certifying agent has already certified that the Products are properly labeled as Organic as a matter of federal law a fact that the parties do not dispute. The central question before the Court is whether Birdsong's state law claims, which seek to impose liability on Nurture for an allegedly misleading representation that is permitted by a USDA-accredited agent, are pre-empted by the scope, structure, and purpose of the OFPA. In Aurora, consumers asserted state law claims against organic- certified dairy producers and retailers, alleging, inter alia, that their labeling of a milk product as Organic was misleading because the producer's processes did not comply with the OFPA's requirements for Organic products. Aurora, 621 F.3d at 787-90. The Eighth Circuit found the state law claims were impliedly pre- empted because they conflicted with the OFPA and the exclusive role of the USDA-accredited certifying agents in certifying that products complied with the OFPA and were thus Organic. The court distinguished state law challenges to the certification determination itself, which would be pre-empted, from state law challenges to the facts underlying certification, which would not be pre-empted. The plaintiffs alleged that the defendants' products were falsely labeled as Organic because they allegedly contained ingredients that were prohibited under the OFPA. Marentette, 201 F. Supp. 3d at 381; Segedie, 2015 WL 2168374. Additionally, in both cases, a USDA-accredited certifying agent had already certified that the products were properly labeled as Organic as a matter of federal law. Marentette, 201 F. Supp. 3d at 381; Segedie, 2015 WL 2168374. Thus, as here, the plaintiffs' claims were state law challenges to the certification determination itself. The Court finds the reasoning of both Aurora and Marentette to be persuasive. Accordingly, as discussed below, Birdsong's state law claims are pre-empted. Birdsong points to the OFPA's express provision pre-empting state organic certification regimes to argue that state tort and consumer protection claims are not pre-empted. However, an express pre-emption provision, by itself, does not foreclose through negative implication, any possibility of implied conflict pre- emption. The existence of an `express pre-emption provision does not bar the ordinary working of conflict pre-emption principles or impose a special burden that would make it more difficult to establish the pre-emption of laws falling outside the clause. Even where a federal law contains an express pre-emption clause, the court still may be required to consider implied pre-emption. Accordingly, where, as here, plaintiff's state law claim poses a direct obstacle to the achievement of the OFPA's objective, the existence of an express pre-emption provision in the OFPA does not foreclose the possibility of conflict pre-emption. For these reasons, the Court finds that Birdsong's claims are pre- empted and grants Nurture's motion to dismiss the complaint in its entirety. A full-text copy of the District Court's September 28, 2017 Memorandum and Order is available at http://tinyurl.com/y8555svt from Leagle.com. Sarah Birdsong, Plaintiff, represented by Yvette Golan, The Golan Firm, 1712 N St NW Ste 302, Washington, DC 20036-2914 Sarah Birdsong, Plaintiff, represented by Adrienne McEntee -- amcentee@terrellmarshall.com -- Terrell Marshall Law Group PLLC, pro hac vice, Beth E. Terrell -- bterrell@terrellmarshall.com -- Terrell Marshall Daudt & Willie PLLC, pro hac vice, Todd Seth Garber -- tgarber@fbfglaw.com -- Finkelstein, Blankinship, Frei- Pearson & Garber, LLP & Kim Richman -- info@richmanlawgroup.com - The Richman Law Group. Nurture, Inc., Defendant, represented by Edward P. Boyle -- epboyle@Venable.com -Venable LLP, Angel Antonio Garganta -- AGarganta@Venable.com -- Venable LLP, pro hac vice & Robert Leslie Meyerhoff -- rlm02@venable.com -- Venable LLP. O'REILLY AUTOMOTIVE: Court Grants Bid for Remand in "Courtright" ---------------------------------------------------------------- In the lawsuit styled REBECCA COURTRIGHT and RAPHAEL SAYE, Individually and on Behalf of All Others, the Plaintiffs, v. O'REILLY AUTOMOTIVE STORES, INC., et al., the Defendants, Case No. 4:14-cv-00334-DGK (W.D. Mo.), the Hon. Judge Greg Kays entered an order granting Plaintiffs' motion for remand. The Court said, "All other pending motions are denied as moot. The Court will order remand of this case to the Circuit Court of Jackson County, Missouri. The Court instructs the Clerk of the Court to delay remand of the case for ten days to allow Defendants the opportunity to exercise their right to appeal under 28 U.S.C. section 1453(c)(1). If the Court of Appeals accepts an appeal from the Court's order, the Clerk shall delay remand until the Court of Appeals has ruled on the appeal. Since the parties now agree that Plaintiff has not suffered any injury in fact, the Court lacks subject matter jurisdiction over this dispute." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=BcbQp4qB OCWEN LOAN: Court Denies Move to Dismiss "McWhorter" FDCPA Suit --------------------------------------------------------------- The United States District Court for the Northern District of Alabama, Southern Division, issued a Memorandum Opinion and Order denying Defendant's Motion to Dismiss the case captioned HAROLD McWHORTER and ROBERT FIELDER, Plaintiffs, v. OCWEN LOAN SERVICING, LLC, Defendant, Case No. 2:15-cv-01831-MHH (N.D. Ala.). The Court, likewise, denied Ocwen's motion for leave to file a response to Mr. McWhorter's evidentiary submission. In this putative nationwide class action, plaintiffs Harold McWhorter and Robert Fielder allege that defendant Ocwen Loan Servicing, LLC violated the Fair Debt Collection Practices Act (FDCPA) by charging customers a convenience fee to make loan payments online and over the telephone. The Court previously denied Ocwen's motion to dismiss with respect to Mr. Fielder but deferred ruling on the motion with respect to Mr. McWhorter, pending a period of limited discovery. GMAC Mortgage, LLC, was Mr. McWhorter's loan servicer before Ocwen acquired the loan. McWhorter entered into a Trial Period Plan Agreement with GMAC. Ocwen acquired Mr. McWhorter's loan from GMAC and Ocwen entered into a permanent loan modification agreement with Mr. McWhorter. Under the FDCPA, a person who acquires servicing rights to a debt is not a debt collector for purposes of that debt if the debt was not in default at the time it was obtained. Ocwen argues that it is not a debt collector with respect to Mr. McWhorter because, in Ocwen's view, Mr. McWhorter's loan was not in default when Ocwen acquired servicing rights to it. The Trial Period Plan Agreement between GMAC and Mr. McWhorter was not intended to resolve Mr. McWhorter's delinquency. Instead, it gauged his eligibility for a modification. The agreement states that, if Mr. McWhorter successfully completed the trial period, GMAC would review his situation and determine whether he qualified for a permanent loan modification that would allow him to resolve his remaining delinquency. If Mr. McWhorter qualified, then GMAC would send Mr. McWhorter a proposed loan modification agreement including his new interest rate and mortgage payment amount and instructions for how to move ahead with that new plan. Thus, the Trial Period Plan Agreement is not a brand new payment plan granting Mr. McWhorter a fresh start, because the trial agreement did not include the terms for a new payment plan to satisfy Mr. McWhorter's original loan. Further, the trial agreement states that it is expressly understood and agreed that the default is not cured or waived by acceptance of any monies paid here-under. Thus, the Trial Period Plan Agreement by its unambiguous terms did not supersede the original loan agreement or affect Mr. McWhorter's default status under the original agreement. Thus, the loan was still in default when Ocwen acquired it, and Ocwen is a debt collector under the FDCPA with respect to Mr. McWhorter's loan. The Court denies Ocwen's motion to dismiss the plaintiffs' amended complaint with respect to Mr. McWhorter. Further, the Court denies Ocwen's motion for leave to file a response to Mr. McWhorter's evidentiary submission. A full-text copy of the District Court's September 28, 2017 Order is available at http://tinyurl.com/ycdde3nyfrom Leagle.com. Harold McWhorter, Plaintiff, represented by D. Frank Davis -- fdavis@davisnorris.com -DAVIS & NORRIS LLP. Harold McWhorter, Plaintiff, represented by Dargan Maner Ware -- dware@davisnorris.com -- DAVIS & NORRIS, LLP, John E. Norris -- jnorris@davisnorris.com -- DAVIS & NORRIS LLP, Wesley W. Barnett - - wbarnett@davisnorris.com -- DAVIS & NORRIS LLP & Kristan Bruce Rivers -- krivers@davisnorris.com -- DAVIS & NORRIS LLP. Robert Fielder, Plaintiff, represented by D. Frank Davis, DAVIS & NORRIS LLP, Dargan Maner Ware, DAVIS & NORRIS, LLP, John E. Norris, DAVIS & NORRIS LLP, Wesley W. Barnett, DAVIS & NORRIS LLP & Kristan Bruce Rivers, DAVIS & NORRIS LLP. Ocwen Loan Servicing LLC, Defendant, represented by Michael R. Pennington -- mpennington@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP, Richard Aaron Chastain -- achastain@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP & Robert J. Campbell -- rjcampbell@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP. ON-LINE ADMINISTRATORS: Court Certifies 2 Classes in "Trenz" Suit ----------------------------------------------------------------- In the lawsuit styled BRIAN TRENZ et al., the Plaintiffs, v. ON- LINE ADMINISTRATORS, INC. (dba PEAK PERFORMANCE MARKETING SOLUTIONS) et al., the Defendants, Case No. 2:15-cv-08356-AB-KS (C.D. Cal.), the Hon. Judge Andre Birotte Jr. entered an order on Sept. 25, 2017, granting Plaintiffs motion for class certification of: Pre-October 16, 2013 Class: "all persons within the United States who received any telephone call from Defendants or their agents to said person's wireless number through the use of any automatic telephone dialing system, as part of Defendant Volkswagen Group of America's 'Target and Retain Aftersales Customers' program, from October 26, 2011 until October 15, 2013"; and - and - Post-October 16, 2013 Class: "all persons within the United States who received any telephone call from Defendants or their agents to said person's wireless number through the use of any automatic telephone dialing system, as part of Defendant Volkswagen Group of America's 'Target and Retain Aftersales Customers' program, from October 16, 2013 until October 26, 2015." The Court said, "Defendants contend that they will argue that the putative class members consented to being contacted by TRAC as an affirmative defense, and that the resolution of that issue will require significant individualized inquiries. As the Court stated in its April 24, 2017 order denying class certification, the Court does have some concerns regarding the potential for individualized inquiries. The Court also stated that it would need significantly more evidence from Defendants in order to find that these potential individualized inquiries actually predominated over the common questions. Defendants have failed to provide sufficient, time-period evidence of actual consent to be contacted by an autodialer by customers of Volkswagen and Audi dealerships. Therefore, the Court finds that Defendants' concerns regarding predominance are too speculative at this stage. As such, the Court finds that common issues predominate over individualized concerns. The Court finds that class certification is appropriate because Plaintiffs have established the requisite commonality, typicality, and adequacy of representation. Plaintiffs' Second Amended Motion for Class Certification is therefore granted." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=eyhbHhFr OWL INC: Perez et al. Suit Seeks to Certify Class ------------------------------------------------- In the lawsuit styled JOSE PEREZ, ALFREDO SANTOS, and DOUGLAS RICHEY, on behalf of themselves and all others similarly situated, the Plaintiffs, v. OWL, INC., the Defendant, Case No. 6:17-cv- 01092-CEM-GJK (M.D. Fla.), the Plaintiffs ask the Court for an order: 1. certifying a class pursuant to Rule 23, consisting of: "all individuals who transported VA patients for Owl at any time since June 15, 2012 (five years before filing the complaint); 2. appointing the named Plaintiffs as class representatives; and 3. appointing Plaintiffs' counsel as class counsel. According to the complaint, Plaintiffs have presented evidence that Owl had a company-wide policy of paying its drivers at a rate well below the federally-mandated prevailing wage for ambulance drivers who transport VA patients. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=CWfDXZVv The Plaintiffs are represented by: Shannon Liss-Riordan, Esq. Benjamin J. Weber, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994 5800 E-mail: sliss@llrlaw.com bweber@llrlaw.com - and - Joseph Egan, Esq. Eric Lindstrom, Esq. EGAN, LEV, LINDSTROM & SIWICA, P.A. 231 E. Colonial Drive Orlando, FL 32801 Telephone: (352) 672 6901 E-mail: jegan@eganlev.com elindstrom@eganlev.com PARKING REVENUE: Court Dismissed "Franklin" Case ------------------------------------------------ In the lawsuit styled Carmen Franklin, et al., the Plaintiff, v. Parking Revenue Recovery Services, Inc., et al., the Defendant, Case No. 1:13-cv-02578 (N.D. Ill.), the Hon. Judge Edmond E. Chang entered an order dismissing case with prejudice. According to the docket entry made by the Clerk on September 25, 2017, pursuant to the stipulated dismissal, under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the case is dismissed with prejudice as to the individual claims and without prejudice as to the class claims, each side to bear its own fees and costs. The Status hearing for Sept. 20 was vacated. The case is terminated. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=YSOq27tP PERMANENTE MEDICAL: Court Okays Accord in Call-Center Nurses Suit ----------------------------------------------------------------- Maria Denzio, writing for Courthouse News Service, reported that California nurses will get roughly $6 million -- and their attorneys nearly $2 million -- from health care giant Kaiser Permanente for time spent doing unpaid work. The payout settles a class action filed last year on behalf of 1,397 advice nurses who take calls from patients at three of the Permanente Medical Group's call centers in Sacramento, Vallejo and San Jose. Debra Brown, Sandra Morton and Barbara Labuszewski sued in September 2016, claiming Kaiser stiffed them on pay for time they spent logging in and out of call center computers before and after their shifts. Kaiser doesn't consider call center nurses clocked in until after the log-in process is complete. Kevin Stoop, one of the attorneys representing the class, said Kaiser is required to pay its nurses for those minutes. "Under the law, those couple of minutes are compensable. If you took five minutes a day, that's 30 minutes a week and 26 hours a person is being shorted a year," Stoop said by phone on October 13. "Those numbers add up quickly." Stoop said each nurse will receive around $3,000 under the settlement, an amount he called "not inconsequential." Some may get up to $9,500. U.S. District Judge Vincent Chhabria also awarded the class' attorneys at Sommers Schwartz and Outten & Golden fees of $1.8 million. Kaiser did not respond to phone and email requests for comment prior to publication. The case is captioned, DEBRA BROWN, SANDRA MORTON, and BARBARA LABUSZEWSKI, individually and on behalf of all other similarly situated individuals, Plaintiffs, v. THE PERMANENTE MEDICAL GROUP, INC., a California corporation, Defendant, Case 3:16-cv-05272-VC (N.D. Cal., October 11, 2017). PRECISION MOTOR: "Ratliff" Suit Seeks Class Certification --------------------------------------------------------- In the lawsuit styled JEROME RATLIFF JR., individually and on behalf of all others similarly situated, Plaintiff, v. PRECISION MOTOR TRANSPORT GROUP, LLC, a Delaware limited liability company, the Defendant, Case No. 1:17-cv-07196 (N.D. Ill.), the Plaintiff asks the Court for an order: a. granting Plaintiff's motion for class certification of: "all individuals in the United States who, from the date five years prior to the date of the filing of this action to the present, submitted an online job application to Defendant and were denied employment based in whole or in part on information contained in a consumer report without being provided within three business days of such adverse action an oral, written or electronic notification: (i) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency; (ii) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report; (iii) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to them the specific reasons why the adverse action was taken; and (iv) that they may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report"; b. appointing Plaintiff Jerome Ratliff Jr. as Class Representative; c. appointing Michael Aschenbrener and Adam York of KamberLaw LLC as Class Counsel; and d. providing any and all other relief that the Court deems equitable and just. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=FAAikcqg The Plaintiff is represented by: Michael Aschenbrener, Esq. Adam C. York, Esq. KamberLaw LLC 220 N Green St Chicago, IL 60607 Telephone: (212) 920-3072 E-mail: masch@kamberlaw.com ayork@kamberlaw.com PROCESSING SOLUTIONS: Denial of "Baillie" Class Cert Reversed ------------------------------------------------------------- The Court of Appeals of California, First District, Division Three, issued an Opinion reversing the District Court's Decision denying class certification in the case captioned AMY LYNNE BAILLIE et al., Plaintiffs and Appellants, v. PROCESSING SOLUTIONS, LLC et al., Defendants and Respondents, No. A144105 (Cal. App.). This is one of several related appeals in a representative action brought by plaintiffs Amy Lynn Baillie and Kathrine Rosas against various individuals and corporate entities allegedly involved in illegal internet payday loan practices. The operative complaint on appeal asserts causes of action for: (1) usury and/or unconscionable lending under Civil Code Section 1916.12-3(b); (2) injunctive relief and restitution under Business & Professions Code Sections 7200. (Section 17200); (3) violation of Section 17200; (4) unjust enrichment; and (5) an accounting. According to the Complaint, Baillie obtained a $300 loan from USFastCash on or about July 2, 2006, as evidenced by a Note identifying as the lender defendant MTE, doing business as ICU. Plaintiff Rosas, in turn, obtained a $300 loan from defendant Rio Resources on or about June 19, 2006, as well as a $300 loan from ICU on or about November 3, 2006. Plaintiffs filed their motion for class certification; however, the trial court issued an interim order staying consideration of this motion pending resolution of the appeal filed by now former defendant Assenzio, which challenged the trial court's denial of his motion to compel arbitration and stay the proceedings. The Cal. App. reversed the trial court's order in Assenzio and remanded the matter. The trial court thereafter entered a new order granting Assenzio's motion and dismissing him from the lawsuit. Plaintiffs thereafter submitted evidence in support of their class certification motion that included documents produced by respondents reflecting that Baillie entered into a loan agreement over the internet in 2006 by means of a standardized loan Note with an annual interest rate of 1.216.667 percent that identified as the lender defendant MTE doing business as ICU. Plaintiff Rosas submitted evidence that she entered into two such internet loans in the amount of $300, the first in June 2006 with Rio Resources (not a respondent), and the second in November 2006 with respondent ICU. Following a contested hearing, the trial court issued a final order denying plaintiffs' motion for class certification, as well as their preliminary motion to conduct further discovery prior to a ruling on class certification. The court explained in its order that, while at first glance, this sort of consumer protection lawsuit would typically fit neatly into a class action model for resolution, there were insurmountable challenges to using the class model in this case given certain unique aspects. According to the court, "High on this list of insurmountable challenges is the need to define an ascertainable class." In addition, the court noted that plaintiffs had ignored its earlier warning that they needed to address in their motion the impact on their claims of Assenzio's dismissal from the case after prevailing on his motion to compel arbitration, given that they had alleged respondents are merely Assenzio's alter egos. With respect to plaintiffs' position on the unavailability of records from which putative class members can be identified to wit, that defendants have intentionally or negligently destroyed such records the trial court questioned: "Even if plaintiffs were able to obtain a finding in their favor on spoilation, what form of relief and/or sanctions would be available that could possibly advance the goal of identifying putative class members, let alone arriving at an appropriate remedy?" Finally, the court brushed aside plaintiffs' argument in supplemental briefing that, because defendants chose to comingle in a single account the funds from the MTE loan program, each defendant should be deemed to have loaned a portion of the principal received by each individual borrower, explaining: "Even if this theory had any supporting decisional authority, it would still leave unanswered the question of how the borrowers who Plaintiffs seek to represent would ever be identified." Thus, based upon this reasoning, the trial court ruled against plaintiffs' motions and set a hearing date for defendants' anticipated motion for summary judgment. Plaintiffs' timely notice of appeal followed. The decision to certify a class rests squarely within the discretion of the trial court, and the Cal. App. affords that decision great deference on appeal, reversing only for a manifest abuse of discretion: Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. The trial court found plaintiffs failed to meet the standard for class certification for three main reasons: they (1) failed to identify an ascertainable class, (2) failed to explain how adequate notice could be provided to such a class, and (3) failed to demonstrate the feasibility of ordering restitution for individual members of such class. According to plaintiffs, the trial court in this case went afoul of Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 706, when denying their motion for class certification because, like the trial court in Daar, it focused too narrowly on whether individual class members would be able to prove their right to restitution rather than on the community of interests among class members, including their common California residency and execution of a standard note with one or more defendants. Moreover, plaintiffs insist that, to the extent the trial court found the evidence supporting their motion insufficient to prove the existence of an ascertainable class, they should be "entitled to determine whether the Corporate Defendants have engaged in the spoliation of evidence, or have testified inaccurately as to their access to evidence. The Cal. App. agrees with plaintiffs' latter point. Under these circumstances, the insurmountable challenges identified by the trial court in denying plaintiffs' motion instead relate primarily to the lack of available information regarding the identity of the class of victims and the money, if any, owed by any particular defendant to these victims. Thus, close examination of this record reflects the unique circumstances of this case alluded to by the trial court in the challenged order stem to a large degree from the fact that in People v. Miami Nation Enterprises (2016) 2 Cal.5th 222, the now- defunct entity at the heart of the allegedly unlawful lending operation, has been labeled a sovereign tribal entity and, thus, that plaintiffs have not been able to obtain evidence from MNE relating to class certification issues, including whether a class of victims exists in California that entered into usurious loans over the internet with one or more defendants. However, as noted above, after briefing in this appeal, the California Supreme Court issued its decision in MNE. The California Supreme Court also clarified for the first time that a tribally affiliated entity claiming immunity bears the burden of proving by a preponderance of the evidence that it is an arm of the tribe. With respect to the type of proof required to meet this burden, the high court emphasized the importance of having in the record functional evidence relating to how the tribal entity actually operates, and not just formal evidence relating to the entity's underlying organizational or control structure. As explained by the court, until the entity has proven it should be treated as an extension of the tribe, it is no more entitled to a presumption of immunity than any other party. Neither the trial court nor respondents have adequately explained why proceeding with plaintiffs' claims against respondents in Assenzio's absence would be legally impermissible or inappropriate. To the contrary, the law is quite clear: "The concept of vicarious liability has no application to actions brought under the unfair business practices act. While the corporation can, of course, be held liable for violations of sections 17200 and 17500 by its by its employees, the alleged alter ego's individual liability must be predicated on his personal participation in the unlawful practices." In other words, the alter ego allegations in the Complaint identified a common law basis for holding Assenzio personally liable for the unfair loan practices committed by the corporations he owned and controlled based on his own participation in the loan operation. However, that Assenzio has been dismissed from the case and cannot be held personally liable on this theory does not necessarily undermine the remaining allegations in the Complaint that are addressed to the corporations themselves. To the contrary, those allegations remain valid at this juncture. The essence of the alter ego doctrine is that justice be done. Thus, because the trial court denied plaintiffs' motion for further discovery on the issue of class certification prior to the California Supreme Court's adoption of the definitive standard for determining whether a tribal entity is in fact entitled to sovereign immunity, the Cal. App. concludes the order must be reconsidered. The Cal. App. therefore reverses and remands the matter for further proceedings in light of this new controlling authority. A full-text copy of the Cal. App.'s September 28, 2017 Opinion is available at http://tinyurl.com/y9nbhex5from Leagle.com. PROFESSIONAL TRANSPORTATION: Class Cert. Bid in "Cooksey" Nixed --------------------------------------------------------------- In the lawsuit styled WILLIAM COOKSEY, JR. and JOHN WILLIAMS, the PLAINTIFFS v. PROFESSIONAL TRANSPORTATION, INC., et al., the DEFENDANTS, Case No. 5:16-cv-00072-KGB (E.D. Ark.), the Hon. Kristine G. Baker entered an order: 1. denying as moot Mr. Cooksey's motion for class certification and for appointment of lead plaintiff and counsel; 2. granting grants PTI's motion for a protective order; 3. denying as moot Mr. Cooksey's first motion to compel discovery; 4. denying as moot Mr. Cooksey's motion to extend time to complete discovery and to move for summary judgment; and 5. granting PTI's motion for summary judgment. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=vQtC0BTd QI ENTERPRISES: Faces "Ramirez" Suit in Calif. Super. Ct. --------------------------------------------------------- A class action lawsuit has been filed against Qi Enterprises, L.L.C., a Missouri limited liability company. The case is styled as George Ramirez, on behalf of himself, and all others similarly situated, Plaintiff v. Qi Enterprises, L.L.C., a Missouri limited liability company, Stover Medical Logistics, Inc., a Missouri Corporation and Stover Medical Physician Services, LLC, a Missouri limited liability company, Defendants, Case No. BCV-17-102411 (Cal. Super. Ct., October 12, 2017). The Defendants offers home health care services.[BN] The Plaintiff is represented by: David G. Spivak, Esq. LA Employee Rights Lawyer 601 S Figueroa St #4050 Los Angeles, CA 90017 Tel: 310-499-4730 RBC BEARINGS: Court Grants Reynoso's Bid for Class Certification ---------------------------------------------------------------- In the lawsuit styled Carmen Reynoso v. RBC Bearings, Inc., et al., Case No. 8:16-cv-01037-JVS-JCG (C.D. Cal.), the Court grants Reynoso's motion for class certification of: "all hourly, non-exempt employees of RBC Transport Dynamics, a Division of Roller Bearing Company of America, Inc., who were employed at the RBC Transport Dynamics facility in Santa Ana, California, and who worked on the First Shift, between April 27, 2012, and October 1, 2016". A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=z1P5V1N0 ROYAL CARIBBEAN: Passengers Sue over Travel During Harvey --------------------------------------------------------- Monica Pais, writing for Courthouse News Service, reported that a class action claims Royal Caribbean put the lives of passengers at risk by forcing them to travel to Texas during Hurricane Harvey because it would not cancel or modify its scheduled cruise. Hurricane Harvey hit southeast Texas as a category four hurricane in late August killing at least 70 people and causing record catastrophic flooding. In a federal complaint filed in Miami on Sept. 28, lead plaintiff Nikki McIntosh says that her cruise trip on the "Liberty of the Seas" was scheduled to depart from Galveston, Texas on August 27 and return Sept. 3. McIntosh, who traveled from Canada to Texas for the cruise, says thousands of passengers arrived to Houston before and during Hurricane Harvey because Royal Caribbean did not want to cancel the cruise and have to offer passengers refunds. "These passengers were strong armed into travelling to Houston based on Royal Caribbean Cruises' assurances that safety was the primary concern and the voyage would sail as scheduled; combined with Royal Caribbean repeatedly advising passengers that if they cancelled they would lose the entire cost of the purchased cruise," the complaint says. McIntosh claims passengers had to endure the devastating storm in a city they didn't know, far from their loved ones. Throughout their ordeal, the complaint says, passengers were often left without power, and had access to only limited food and water. Because the entire Texas coastline was in the projected path of the hurricane, the Port of Galveston shut down its operations at noon on August 25, a move that caused other cruise lines to cancel or modify their scheduled excursions. Royal Caribbean, however, "was "still attempting to find a way to make the scheduled sailing," the complaint says. McIntosh claims that prior to the sailing date Royal Caribbean sent several updates and emails to its passengers regarding the status of the cruise, but it was not until August 27, the departure date, that the cruise line cancelled the voyage and began to offer its clients the option to reschedule their vacation, get a refund or obtain a future cruise credit. "Prior to this all of the passengers were effectively forced to travel to South Texas unless they wanted to forfeit the entirety of what they paid for their cruise," McIntosh says. She claims that Royal Caribbean was aware of the dangerous weather conditions and flooding, and that Texas was in a state of emergency, but yet failed to timely cancel the cruise because it did not want to lose profit. McIntosh seeks compensatory damages on claims of negligence and intentional infliction of emotional distress. She is represented by Michael Wikleman from Lipcon, Margulies, Alsina & Winkleman PA in Miami, Fla. A representative of Royal Caribbean did not immediately respond to an email request for comment on the lawsuit. The case is captioned, Nikki McIntosh, on her own behalf and on behalf of all other similarly situated passengers scheduled to have been aboard the M/V Liberty of the Seas, Plaintiffs, v. ROYAL CARIBBEAN CRUISES LTD., Defendant, Case No. 1:17-cv-23575-JLK (S.D. Fla., September 29, 2017). Attorneys for Plaintiffs: Michael A. Winkleman, Esq. Jason R. Margulies, Esq. Marc E. Weiner, Esq. LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A. Suite 1776, One Biscayne Tower 2 South Biscayne Boulevard Miami, FL 33131 Tel: (305) 373-3016 Fax: (305) 373-6204 E-mail: mwinkleman@lipcon.com JMargulies@lipcon.com MWeiner@lipcon.com RSI ENTERPRISES: Class Certification Bid in "Machnik" Terminated ---------------------------------------------------------------- In the lawsuit styled MICHAEL MACHNIK, the Plaintiff, v. RSI ENTERPRISES, INC., the Defendant, Case No. 17-CV-864 (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order terminating a motion for class certification for administrative purposes. However, the Court regards the motion as pending to the extent a pending motion is required to satisfy the plaintiff's intended protective purpose in light of Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), and Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). This moots the other relief sought in the motion. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=8uLVRrwD RUSSELL P. GOLDMAN: "Carney" Suit Seeks to Certify Class -------------------------------------------------------- In the lawsuit styled BRIAN P. CARNEY and WILLIAM C. GUMPPER, JR., on behalf of themselves and all others similarly situated, the Plaintiff(s), v. RUSSELL P. GOLDMAN, P.C., and JOHN DOES 1-25, the Defendant(s), Case No. 3:15-cv-00260-BRM-DEA (D.N.J.), the Plaintiffs ask Court for an order: 1. certifying a class defined as: "all New Jersey Consumers who were sent notices or letters from Russell P. Goldman, P.C., prior to Russell P. Goldman, P.C., obtaining a judgment, against the such consumer, during the period between January 13, 2014 and March 20, 2017, concerning a debt allegedly owed to New Jersey Higher Education Student Assistance Authority, which stated in part: There remains due a balance as shown above, which includes interest and collection costs."; 2. appointing Plaintiffs, Brian P. Carney and William C. Grumpper, as Class Representatives; 3. appointing Joseph K. Jones, Esq., and Benjamin J. Wolf, of Jones, Wolf & Kapasi, LLC, as Class Counsel; 4. granting Plaintiff and the Class such other and further relief as this Court may deem just and proper. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=XIKb4spd The Plaintiff is represented by: Joseph K. Jones, Esq. JONES WOLF & KAPASI, LLC 375 Passaic Avenue Fairfield, NJ 07004 Telephone: (973) 227 5900 Facsimile: (973) 244 0019 E-mail: jkj@legaljones.com SAFELITE FULFILLMENT: Ontiveros "Suit" Seeks Class Certification ---------------------------------------------------------------- In the lawsuit styled Yadir A. Ontiveros, the Plaintiff, v. Safelite Fulfillment, Inc., et al., the Defendants, Case No. 2:15- cv-07118-DMG-RAO (C.D. Cal.), the Plaintiff asks the Court to enter an order: 1. granting Plaintiff's motion for class certification; 2. enjoining safelite from entering into individual settlement agreements with putative class members as part of a chindarah campaign; 3. invalidating settlement agreements already entered into with putative class members as part of the chindarah campaign; 4. requiring a curative letter be sent to the putative class; 5. permitting Plaintiff to file a motion for sanctions against safelite and its counsel for their improper conduct in connection with the chindarah campaign; and 6. disqualifying defense counsel Vorys, Sater, Seymour and Pease LLP and Rutan & Tucker, LLP. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=mQWXmZDb SAM HOUSTON: Tex. App. Flips Denial of Arbitration in Class Suit ---------------------------------------------------------------- The Court of Appeals of Texas, Ninth District, Beaumont issued an Opinion reversing the District Court's denial of the Defendant's Motion to Compel Arbitration in the case captioned SAM HOUSTON ELECTRIC COOPERATIVE, INC., ET AL Appellants, v. JOE D. BERRY, ET AL, Appellees, No. 09-16-00346-CV (Tex. App.). In this accelerated, interlocutory appeal, Sam Houston Electric Cooperative, Inc. and several individual members of the cooperative's management and current and former directors challenge the trial court's order denying their motion to compel arbitration of purported class action claims and request to stay those proceedings pending arbitration. SHEC is a member-owned, not-for-profit electric cooperative organized under the Texas Electric Cooperative Corporation Act (ECCA) to provide electricity to its members in rural areas. In 2012, the Board of Directors adopted amendments to SHEC's Bylaws to include the following arbitration agreement: Section 2.09. Dispute Resolution. A Member may submit a claim or dispute between the Member and the Cooperative regarding the Governing Documents or Electric Service to the Board for resolution. The Board may establish a policy establishing a procedure for submitting a claim or dispute to the Board. If the Board is unable to resolve the dispute, then the Cooperative and the Member shall cooperate to select one or more mediators to help resolve the dispute. If no resolution of the dispute occurs through mediation, any party may demand binding arbitration as provided under the laws of the State of Texas. Lester Berry applied for membership with the cooperative in 1991, and he maintained his membership until the time of his death in late 2015. In early 2016, Lester Berry's son, Joe D. Berry, who was not himself a member, filed suit against the cooperative on behalf of Lester Berry's estate and his surviving heirs.2 Berry's suit initially asserted wrongful death and survival causes of action, alleging that Lester Berry, who was elderly, in poor health, and required an oxygen concentrator, died after the cooperative terminated electricity service to his home due to an unpaid electric bill. SHEC filed a motion to compel arbitration of the putative class claims only and to stay the proceedings as to those claims pending arbitration. After SHEC filed its motion to compel arbitration, but before the motion was decided, Berry amended his pleadings again to add Guillermo Cano, a member of the cooperative, to the suit as an additional representative of the putative class. Berry and Cano opposed SHEC's motion to compel, arguing that the arbitration clause was not valid and enforceable because: (1) the arbitration provision was added to the Bylaws after Lester Berry became a member and was not signed by Lester Berry; (2) the agreement is illusory because SHEC maintains a unilateral right to amend or remove the provision by amending its Bylaws; (3) the agreement is procedurally unconscionable because members of the cooperative have little or no choice of electrical service providers; and (4) the claims are not arbitrable because the agreement does not expressly permit class arbitration. Following a non-evidentiary hearing, the trial court denied SHEC's motion to compel arbitration and to stay the class proceedings pending arbitration. SHEC thereafter filed a motion for the court to reconsider the motion to compel arbitration and, alternatively, to stay the proceedings pending interlocutory appeal. After a second hearing, the trial court denied SHEC's motion to reconsider as well as its motion to stay the proceedings. SHEC timely filed this interlocutory appeal, and this Court granted SHEC's emergency motion to stay the trial court proceedings pending this appeal. Berry and Cano argue that the arbitration provision contained in the 2012 Bylaws is not enforceable against members who joined the cooperative prior to 2012 because the provision lacks mutual assent as to those individuals. Under direct benefits estoppel, a non-signatory plaintiff seeking the benefits of a contract is estopped from simultaneously attempting to avoid the contract's burdens, such as the obligation to arbitrate disputes. On appeal, Berry and Cano also argue that, although their claims may, in some respects, touch upon the 2012 or 2014 Bylaws, the doctrine of direct benefits estoppel does not apply to them because their claims do not depend on the existence of the specific arbitration provision contained in the Bylaws. This argument ignores the fact that the arbitration provision is but one part of a larger, comprehensive contract, and it is the very principle of the doctrine of direct benefits estoppel that prevents a party from enforcing the parts of a contract that benefit him while seeking to invalidate the parts that do not. When a party's right to recover and its damages depend on the agreement containing the arbitration provision, the party is relying on the agreement for its claims. The class claims asserted in this case arise directly from the contract that Berry and Cano seek to enforce; therefore direct benefits estoppel applies. In addition to establishing the existence of an enforceable arbitration agreement, SHEC must also establish that the dispute at issue falls within the scope of the provision. Once a valid arbitration agreement is established, a strong presumption favoring arbitration arises, and we resolve doubts as to the agreement's scope in favor of arbitration. The vast majority of the factual allegations that have been asserted by Berry and Cano do not, procedurally, fall outside of the scope of the 2012 Bylaws. Moreover, to come within the scope of the arbitration provision, a party's allegations need only be factually intertwined with arbitrable claims or otherwise touch upon the subject matter of the agreement containing the arbitration provision. Accordingly, viewing Berry and Cano's factual allegations and resolving any doubts regarding the provision's scope in favor of arbitration, the Tex. App. found that the putative class claims are within the scope of the agreement. Berry and Cano assert that the arbitration agreement is illusory and unenforceable because SHEC maintained a unilateral right to amend its Bylaws and thereby change the arbitration provision to avoid performance. Berry and Cano do not contest the sufficiency of consideration to support the underlying contract in this matter; to the contrary, they steadfastly rely upon the asserted validity of the 2012 Bylaws as a contract that they seek to enforce against SHEC. As we have already determined that the doctrine of direct benefits estoppel prevents Berry and Cano from selectively enforcing the provisions of the 2012 Bylaws that benefit them while simultaneously attacking the provision they do not like, we reject their argument that the lack of independent consideration allows them to carve out the distasteful provisions of a contract they otherwise seek to enforce. Berry and Cano further asserted in the trial court that the arbitration agreement is procedurally unconscionable because many of the cooperative's members have no choice of electrical service providers and no bargaining power in relation to the Bylaws. Although a reviewing court will, in the absence of findings of fact or conclusions of law, presume that a trial court made any necessary finding of fact to support a ruling, we cannot imply a factual finding that is not supported by evidence. Without any evidence supporting a claim of unconscionability, we find that Berry and Cano failed to meet their burden on this affirmative defense. Finally, Berry and Cano argue that their putative class action claims are not arbitrable because the arbitration provision contained in the 2012 Bylaws does not specifically consent to class arbitration. In support of this argument, they rely upon an opinion from the United States Supreme Court in Stolt-Nielsen S.A. v. Animal Feeds Int'l Corp., which held that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. We find Berry and Cano's reliance on Stolt-Nielsen misplaced, as that case does not stand for the proposition that a claimant can avoid an otherwise enforceable arbitration agreement by asserting claims on behalf of an entire class; rather, it addressed under what circumstances an arbitrator could compel parties in arbitration to proceed as a class. Stolt-Nielsen does not overrule prior Supreme Court and Fifth Circuit decisions requiring questions of arbitrability, including the availability of class mechanisms, to be deferred to arbitration by agreement. The Tex. App. therefore rejected Berry and Cano's argument that their attempt to achieve class certification nullifies an otherwise enforceable arbitration agreement. The Tex. App. reversed the trial court's order denying SHEC's motion to compel arbitration and remand for entry of an order compelling arbitration and staying further proceedings as to Berry and Cano's class action claims pending arbitration. A full-text copy of the Tex. App.'s September 28, 2017 Opinion is available at http://tinyurl.com/y9gxewjlfrom Leagle.com. Frederick L. McGuire, 714 Main St, Liberty, TX 77575-4814, Nomaan Husain, 5858 Westheimer, Suite 400 Houston, TX 77057, Misty A. Hataway-Cone, 17280 West Lake Houston Parkway Humble, Texas 77346, Etta Davidson, Rick McGuire Law, 714 Main Street, Liberty, TX 77575, Joshua R. Leske, 5858 Westheimer Rd, Ste 400, Houston, TX 77057-5644, for Joe D. Berry, Appellee. Christopher Johnsen -- christopher@johnsenlawoffices.com -- Mark Davis -- Mark.Davis@hklaw.com -- L. Bradley Hancock -- Brad.Hancock@hklaw.com -- Theresa Wanat -- Theresa.Wanat@hklaw.com -- for Sam Houston Electric Cooperative, Inc., Appellant. SCANA CORP: Delmater Sues over Abandoned Nuke Plant Project ----------------------------------------------------------- Ellen Robinson, writing for Courthouse News Service, reported that a class of South Carolina residents claims in court that SCANA, an energy holding company, violated a federal racketeering statute by charging customers for the cost of a multi-billion dollar nuclear project that won't be completed. In a federal lawsuit filed in Columbia, S.C. on Sept 22, the class says SCANA and its partner on the nuclear project, the Santee Cooper utility, knew the project was coming undone, but continued to deceive the public and the Public Service Commission with optimistic statements that allowed them to continue to bill consumers for the work. The lawsuit names only SCANA as a defendant. Santee Cooper is not a party to the litigation. The partners abandoned development of the nuclear plant on July 31, and SCANA had spent $9.8 billion to bring it to fruition. The holding company then announced that consumers will be charged $2 billion over the next 60 years to cover the cost of shutting the project down. The class claims SCANA and Santee Cooper increased utility rates 14 times to cover project costs. It claims the executives were aware the plan was headed for failure from the beginning. The complaint says that even after Betchel Corporation released a 2016 report pointing to significant problems with the project, SCANA awarded top executives with bonuses for promoting "operational excellence" in developing the nuclear plant. Among other issues allegedly identified in the Betchel report were contractors' reliance on plans that were not specific to the reactor project, making it impossible to calculate costs and deadlines, and necessitating numerous design changes. It stated SCANA should hire a management company and reassess the project, however executives ignored the recommendations, the plaintiffs claim. On September 25, leaders in the South Carolina House of Representatives asked the State Law Enforcement Division to investigate SCANA for possible "criminal fraud" related to the partially built nuclear reactors. A House panel was also scheduled to hold a hearing on the matter on September 26, hoping to gain more clarity on what went wrong with the project. The class is represented by Brian Gambrell of the Law Offices of Jason E. Taylor in Columbia. It seeks actual, compensatory and consequential damages. A representative of SCANA could not immediately be reached for comment. The case is captioned, Christine Delmater, Stephanie Speicher on behalf of themselves and all other similarly situated, Plaintiffs, vs. SCANA Corporation, Defendant, Case No. 3:17-cv-02563-TLW (D. S.C., Sept. 22, 2017). The Plaintiffs are represented by: Brian C Gambrell, Esq. The Law Offices of Jason E Taylor 1122 Lady Street, Suite 1020 Columbia, SC 29201 Tel: (800) 351-3008 Fax: (803) 610-1931 Email: bgambrell@jasonetaylor.com SLIDE FIRE: Faces Class Suit by Vegas Shooting Victims ------------------------------------------------------ Matt Reynolds, writing for Courthouse News Service, reported that three people who attended the country music festival where a gunman massacred 58 people Oct. 1 have filed a class action in Las Vegas, against the maker of bump stock, an attachment used by the gunman to modify his semi-automatic rifles to fire at almost the same rate as automatics. Devon Prescott filed the class action in Clark County, Nevada, court on behalf of all people who attended the Route 91 Harvest Music Festival near the Mandalay Bay Hotel, where Stephen Paddock rained gunfire onto the crowd attending the three-day event. The putative class is represented by Robert Eglet and three others at Eglet Prince in Las Vegas, and by Jonathan Lowy of the Brady Center to Prevent Gun Violence in Washington. The gun control group is expected to announce the filing with the law firm at October 10 morning press conference in Las Vegas. "The people who attended the concert have suffered so much already," the firm and Brady Center said in joint statement. "The physical injuries are staggering, and we know the emotional injuries can be equally severe and long term. Brady has decades of experience supporting the victims of gun violence and has been the only organization in the nation focused on seeking justice for them in the courts." Prescott and two others name the maker of the bump stock device, Slide Fire Solutions of Moran, Texas, and other unidentified manufacturers. They claim Slide Fire markets the product under the guise that it helps gun owners who suffer from a lack of mobility in their hands. But bump fire stock inventor Jeremiah Cottle has stated the attachment was for "'people like me, [who] love full auto,'" a statement that betrays the actual purpose of the product -- to convert rifles into fully automatic firearms, according to the complaint. Paddock fired at concertgoers from the 32nd floor of the Mandalay Bay Hotel on the night of Sunday, Oct. 1. The massacre is the worst mass shooting in modern U.S. history, killing 58 and injuring nearly 500. Authorities say the 64-year-old gunman stashed more than dozen rifles and hundreds of rounds of ammunition in his hotel room. He rained gunfire on thousands of panicked concertgoers over 11 minutes. Investigators found Paddock dead in his hotel room from a self-inflicted gunshot wound. The Oct. 6 lawsuit says the class does not "challenge the right of law-abiding citizens to bear arms" but says that Slide Fire negligently sells bump stock to gun owners to avoid state and federal laws banning the use of military-style automatic weapons. "Paddock could not have injured so many people without a bump stock. Paddock may not have launched his military-style assault without a bump stock. There are people who were killed, injured, and suffered emotional distress who would not have been if Paddock had not possessed a bump stock," the 30-page filing states. The National Firearms Act regulates the sale of fully automatic weapons so that members of the public cannot obtain them, according to the Brady Center. Slide Fire grossed more than $10 million from the sales of bump stocks in 2010 and sold bump stock models for between $100 and $400, according to the lawsuit. The company has suspended the sale of the devices through its website, according to the Brady Center, and disabled a feature that allowed buyers to locate dealers through the site. In a rare display of bipartisanship on the issue of gun violence, both Democrats and Republicans voiced support for a ban on a device. The powerful gun lobby National Rifle Association has said the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives should take a closer look at the products but has also said it would challenge a complete ban. The lawsuit seeks the creation of a court-supervised medical and psychological monitoring program for the class of plaintiffs, as well as punitive damages, attorney fees, and costs. Slide Fire Solutions and Cottle did not respond to requests for comment. SMITH TRANSPORT: "Ratliff" Suit Seeks to Certify Class ------------------------------------------------------ In the lawsuit styled JEROME RATLIFF JR., individually and on behalf of all others similarly situated, the Plaintiff, v. SMITH TRANSPORT, INC., a Pennsylvania corporation, and SMITH TRANSPORT U.S.A., INC., a Pennsylvania corporation, the Defendants, Case No. 1:17-cv-07199 (N.D. Ill.), the Plaintiff asks the Court for an order: a. granting Plaintiff's motion for class certification of: "all individuals in the United States who, from the date five years prior to the date of the filing of this action to the present, submitted an online job application to Defendant and were denied employment based in whole or in part on information contained in a consumer report without being provided within three business days of such adverse action an oral, written or electronic notification: (i) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency; (ii) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report; (iii) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to them the specific reasons why the adverse action was taken; and (iv) that they may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report"; b. appointing Plaintiff Jerome Ratliff Jr. as Class Representative; c. appointing Michael Aschenbrener and Adam York of KamberLaw LLC as Class Counsel; and d. providing any and all other relief that the Court deems equitable and just. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=u9SrSZ5A The Plaintiff is represented by: Michael Aschenbrener, Esq. Adam C. York, Esq. KamberLaw LLC 220 N Green St Chicago, IL 60607 Telephone: (212) 920-3072 E-mail: masch@kamberlaw.com ayork@kamberlaw.com SONIC CORP: Vanderzanden and Carlton Sue over Data Breach --------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Sonic Corp., the drive-through burger chain, announced a data hack on September 27, 2017 that could affect 5 million customers and bring $2.3 billion in damages, consumers claim in a federal class action in Portland, Ore. The case is captioned, MICHELLE VANDERZANDEN and JAMES CARLTON, individually and on behalf of all others, Plaintiffs, v. SONIC CORPORATION, Defendant., Case 3:17-cv-01528-MO (D. Ore., September 27, 2017). Lead Attorney for Plaintiffs: Michael Fuller Esq. OLSEN DAINES PC US Bancorp Tower 111SW 5th Ave., Suite 3150 Portland, OR 97204 Direct: 503-201-4570 E-mail: michael@underdoglawyer.com Of Attorneys for Plaintiffs: Mark Geragos Esq. Ben Meiselas Esq. Lori Feldman Esq. GERAGOS & GERAGOS Historic Engine Co. No. 28 644 South Figueroa Street Los Angeles, CA 90017 Tel: 213-625-3900 E-mail: geragos@geragos.com ST. LOUIS, MO: "Ahmad" Suit Seeks to Certify Class -------------------------------------------------- In the lawsuit styled MALEEHA AHMAD, et al., the Plaintiffs, v. CITY OF ST. LOUIS, MISSOURI, the Defendant, Case No. 4:17-cv-2455- RLW (E.D. Mo.), the Plaintiffs move the Court to certify a class consisting of: "persons who will observe, record, or participate in protest activity within the City of St. Louis in a traditional or designated public forum". The Plaintiffs further ask the Court to appoint Plaintiffs as class representatives; and appoint Gillian R. Wilcox, Jessie Steffan, and Anthony E. Rothert as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=qoBfOph7 The Plaintiffs are represented by: Anthony E. Rothert, Esq. Jessie Steffan, Esq. GILLIAN R. WILCOX, ACLU OF MISSOURI FOUNDATION 454 Whittier Street St. Louis, MO 63108 Telephone: (314) 652 3114 E-mail: arothert@aclu-mo.org jsteffan@aclu-mo.org gwilcox@aclu-mo.org STARKIST CO: Must Defend Against Price-Fixing Claims ---------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that major food suppliers and grocers were handed a victory in their antitrust case against the top three packaged tuna companies in the nation, as a federal court judge in San Diego refused to dismiss the case. U.S. District Judge Janis Sammartino noted in her 33-page order issued on September 26, 2017 the "factual footing has shifted" in the multidistrict litigation against Starkist, Bumble Bee and Chicken of the Sea parent company Tri-Union, consolidated in the Southern District of California. "Whereas previously the United States Department of Justice had merely convened a grand jury to investigate potential violations of the Sherman Act in the packaged seafood industry, there have now been multiple guilty pleas either entered or agreed to pursuant to the grand jury investigation, including by senior executives of the Bumble Bee Corporation and the Bumble Bee Corporation itself," Sammartino wrote. The major packaged-tuna suppliers were sued in 2015 on claims of a conspiracy to raise tuna prices in the United States, which had been a floundering market as canned and packaged tuna appeal less to U.S. consumers. Since the action was filed in San Diego, the Justice Department has filed criminal charges against top executives following its investigation into the conspiracy. Earlier this year, Bumble Bee pleaded guilty to a criminal conspiracy charge and agreed to pay $25 million for its involvement in the price-fixing scheme. Former Starkist and Del Monte executive Stephen Hodge has also pleaded guilty for his part in the conspiracy. Since the Justice Department probe, government officials have handed over 2 million pages of documents to the plaintiffs' counsel that were previously only available to the grand jury. At issue in the case was when the suspected conspiracy began and ended. Sammartino declined to dismiss the post-2013 conspiracy allegations against the tuna companies, finding it would "set a dangerous precedent regarding the ability to continually hamstring a plaintiff with wave after wave of motions to dismiss" since the tuna companies had not previously requested dismissal of over two years of the alleged conspiratorial reach. She noted the amended complaint by the direct-purchaser plaintiffs includes a list of allegations from 2014 and 2015 regarding the continued conspiracy, including an email from Bumble Bee's CEO regarding "keeping prices at current levels," private meetings between CEOs of the packaged-tuna companies, internal price lists and distribution of conspiracy proceeds. Those allegations are enough to support a plausible inference the conspiracy continued beyond 2013, Sammartino found. The judge also refused to dismiss the pre-2011 conspiracy claims against Starkist and Del Monte, agreeing that the defendants' arguments the allegations do not establish they were part of the conspiracy prior to 2011 are "absurd on their face." Evidence by plaintiffs that the tuna companies first began considering price-based collusion in 2004, and that defendant CEOs considered sharing internal price lists by email or fax only until Bumble Bee's CEO told them to overnight the price lists and not share them via other electronic means, is enough to survive dismissal, Sammartino found. During that same time in 2004 the defendant CEOs were also in close contact ahead of a major trade event in the industry which focused on the state of the U.S. tuna market. A memo between the defendants apparently confirmed when price increases would be announced by each company, according to Sammartino's summary of the case. Defendants' "attempt to treat categories of events in isolation . . . fails to account for the entire picture revealed by plaintiffs' complaints," Sammartino wrote. The judge did dismiss some of the state antitrust and consumer- protection claims brought under South Carolina, Illinois and New York laws, though the claims were dismissed without prejudice and can be amended. The case is captioned, IN RE: PACKAGED SEAFOOD PRODUCTS ANTITRUST LITIGATION Case 3:15-md-02670-JLS-MDD (S.D. Cal., September 26, 2017). SPX CORPORATION: Denial of Injunction in ERISA Suit Affirmed ------------------------------------------------------------ The United States Court of Appeals, Fourth Circuit, issued an Opinion affirming the District Court's denial of the Plaintiff's Motion for Preliminary Injunction in the case captioned JOSEPH DI BIASE, Individually and on behalf of similarly situated persons; JOHN PRODORUTTI, Individually and on behalf of similarly situated persons; DAVID BRASS, Individually and on behalf of similarly situated persons; RON BEEGLE, Individually and on behalf of similarly situated persons; DAVID BOBCOCK, Individually and on behalf of similarly situated persons; CARL VAN LOON, Individually and on behalf of similarly situated persons; INTERNATIONAL UNION, UNITED AUTOMOBILE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Plaintiffs-Appellants, v. SPX CORPORATION, Defendant- Appellee, No. 15-2340 (4th Cir.). The individual plaintiffs, retirees of SPX Corporation, their spouses and eligible dependents, and their labor union, the International Union United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, appeal the district court's denial of their motion for preliminary injunction. Plaintiffs filed the class action against SPX. They alleged that the HRA accounts offered by SPX were not substantially equivalent to their current healthcare benefits and that the implementation of SPX's new arrangement would breach the settlement agreements in violation of Section 301 of the Labor-Management Relations Act (LMRA) and Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA). Plaintiffs moved for a preliminary injunction, seeking to enjoin SPX from terminating the current healthcare plan and implementing the HRA accounts during the pendency of the action or until further order of the court. They asserted that absent injunctive relief, they would "suffer severe emotional distress and irreparable harm to their health and welfare. Nearly nine months after the effective date of the HRA accounts, the district court denied Plaintiffs' motion as moot, and moreover held that Plaintiffs failed to meet the standard required for a preliminary injunction. As to the issue of mootness, the district court noted that the purpose of a preliminary injunction is to preserve the status quo pending a final determination on the merits of the case. The district court concluded that the status quo, the provision of health insurance through the group health insurance plans, had already changed with the implementation of the HRA accounts. Finding that the change Plaintiffs sought to prohibit had already occurred, the district court held that the motion was moot because a "request for an injunction to prohibit an act is rendered moot by the happening of the act." The district court alternatively concluded that Plaintiffs were unable to meet the standard required for a preliminary injunction. First, the court noted that granting the preliminary injunction and returning to the status quo would result in SPX having to revert to the group health insurance plan, which would only cause more emotional distress and harm. The court found that Plaintiffs were unable to show a likelihood of success on the merits.5 It held that the ultimate success of Plaintiffs' claims depends on the determination of whether the HRA structure provides substantially equivalent' health benefits. According to the court, Plaintiffs failed to offer sufficient evidence to make such a determination, and a fact-sensitive inquiry such as this required a more developed evidentiary record, which would only become available through discovery. Plaintiffs timely appealed to this Court. On appeal, Plaintiffs maintain that the district court abused its discretion by failing to grant the preliminary injunction. SPX counters that the motion was moot and that in any event, plaintiffs have not established any of the four criteria necessary to grant a preliminary injunction. The Fourth Circuit reviews a district court's denial of a motion for preliminary injunction for abuse of discretion. In its analysis, the Fourth Circuit reviews the district court's factual findings for clear error and review its legal conclusions de novo. When a motion for preliminary injunction is denied as moot, there are no factual or legal findings for this court to review. Rather, in such cases, we must determine whether the court abused its discretion by failing to exercise it. The principal function of a preliminary injunction is to maintain the status quo. Thus a request for an injunction to prohibit an act is rendered moot by the happening of the act. But a preliminary injunction can also act to restore, rather than merely preserve, the status quo, even when the non-moving party has disturbed it. Plaintiffs filed their lawsuit and motion for preliminary injunction in 2014, before SPX cancelled the group health insurance and implemented the HRAs, with the intent of preserving the status quo, and now seek to restore it. They argue the motion was not moot and the district court retained the legal authority to restore the status quo. SPX argues that the motion is moot because the change the plaintiffs sought to prohibit implementation of the HRAs is complete and cannot be undone without causing administrative and financial concerns, confusion, gaps in coverage and possible financial loss. Undoing the HRA approach and reverting to group coverage, according to SPX, would require action by both SPX and the retirees, who would have to terminate the plans purchased with their HRAs, only to switch again to return to HRAs if SPX prevails on the merits. But these logistical hurdles, did not, as SPX claims, make a return to the status quo impossible, and they certainly did not render Plaintiffs' motion moot. SPX's implementation of the HRAs did not strip the district court of its power to determine whether parties should return to the status quo pending the outcome of the underlying dispute. Accordingly, the Fourth Circuit agreed that based on this Court's decisions in Aggarao and Pashby, Plaintiffs' motion was not mooted by HRA implementation. The Fourth Circuit adopted the view that a motion for preliminary injunction filed before the act to be enjoined has occurred, and subsequently intended to restore the status quo once it has been disturbed, is not moot. Next, the Fourth Circuit considered the threshold issues related to jurisdiction and standing pursuant to the LMRA and ERISA, and regarding class certification that SPX first raised in the district court. The district court noted in its opinion that SPX asserted these issues, to which Plaintiffs had failed to respond, but declined to address them, concluding only that those threshold issues aside, the ultimate success of Plaintiffs' claims depends on the determination of whether the HRA structure provides substantially equivalent' health benefits, and that Plaintiffs have not offered sufficient probative evidence to allow the Court to make any determination regarding the merits of their claims. The Fourth Circuit concluded that Plaintiffs have, at a minimum, stated a claim pursuant to ERISA Section 502(a)(1)(B). It provides that a civil action may be brought (1) by a participant or beneficiary to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. Plaintiffs have pled that they are participants in an employee welfare benefit plan, and that the reduction of retiree health care benefits violates the terms of the plan. As relief, Plaintiffs seek the entry of a judgment against SPX under Section 502(a)(1)(B) which clarifies the rights of Plaintiffs under the terms of the settlement agreements by declaring that the implementation of HRAs is not the substantial equivalent of the insurance plans specified in the settlement agreements. Having found that the district court has jurisdiction over Plaintiffs' claim pursuant to ERISA Section 502(a)(1)(B), this Court is satisfied that it may continue to consider the substance of Plaintiffs' appeal. The Fourth Circuit said it need not therefore, for purposes of this appeal, establish district court jurisdiction as to the remaining claims. The Fourth Circuit considered whether the district court properly found that Plaintiffs had not established a likelihood of success on the merits of the underlying healthcare coverage dispute. While case law from our sister circuits may be deemed persuasive when deciding these issues on the merits, the Fourth Circuit agreed with SPX's assertion that at a minimum, the pertinent provisions of the settlement agreements are ambiguous on the question of whether an HRA is a plan that provides coverage as contemplated by the parties. Such ambiguity is simply insufficient to support a finding that success on the merits is likely rather than merely possible and is fatal to Plaintiffs' motion for preliminary injunction. Thus, the Fourth Circuit said it must conclude that the district court did not abuse its discretion in finding that Plaintiffs failed to demonstrate a likelihood of success on the merits. Any injuries retirees may have suffered in terms of time, money and energy expended in the absence of an injunction were not enough to support a finding of irreparable harm. Plaintiffs otherwise have failed to provide evidence that anyone has suffered any of the potential irreparable harms identified, or that any such harms were imminent. As the Supreme Court noted in Winter, the possibility of irreparable harm does not constitute a clear showing that the plaintiff is entitled to relief. Given the extraordinary nature of the remedy, a preliminary injunction is not warranted where, as here, the moving parties have not shown that they availed themselves of opportunities to avoid the injuries of which they now complain. Thus the Fourth Circuit concluded that the district court did not abuse its discretion in finding that Plaintiffs failed to demonstrate they were likely to suffer irreparable harm without the injunction. Granting the preliminary injunction would require SPX to cancel the current HRA accounts and reinstate group coverage, which may only be temporary if SPX ultimately prevails on the merits. The HRA accounts have been in effect for over two years. Given the administrative challenges and confusion for the retirees who must navigate the process of securing healthcare coverage each time the approach for providing healthcare benefits changes, and that Plaintiffs have not demonstrated a likelihood of success on the merits or irreparable harm, the balance of equities and the public interest are better served by allowing the underlying litigation proceed to a decision on the merits. The Fourth Circuit affirmed the denial of the motion for preliminary injunction and remand for further proceedings. A full-text copy of the Fourth Circuit's September 28, 2017 Opinion is available at http://tinyurl.com/y76w9gw9from Leagle.com. ARGUED: Narendra K. Ghosh, PATTERSON HARKAVY LLP, Chapel Hill, North Carolina, for Appellants, 100 Europa Dr #420, Chapel Hill, NC 27517, USA Mark A. Hiller -- mhiller@robinsonbradshaw.com -- ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for Appellee. ON BRIEF: Michael L. Fayette -- mfayette@psfklaw.com -- PINSKY, SMITH, FAYETTE & KENNEDY, LLP, Grand Rapids, Michigan, for Appellants. David C. Wright, III -- dwright@robinsonbradshaw.com -- Cary B. Davis -- cdavis@robinsonbradshaw.com -- Amanda R. Pickens -- apickens@robinsonbradshaw.com -- ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for Appellee. STARWOOD HOTELS: Heilmann Sues over Loyalty Points -------------------------------------------------- Courthouse News Service reported that class of cardholders claims in a federal lawsuit that American Express and Starwood Hotels did not fulfill their promise of 35,000 hotel loyalty points for $5,000 in purchases the first six months after getting a Starwood Preferred Guest-branded credit card. The case is captioned, WILLIAM HEILMANN, individually and on behalf of all others similarly situated, Plaintiff, AMERICAN EXPRESS BANK, FSB, STARWOOD HOTELS & RESORTS WORLDWIDE, LLC, and PREFERRED GUEST, INC., Defendants, Case 1:17-cv-06942 (N.D. Ill., September 26, 2017). Attorneys for Plaintiff and the Class: William M. Sweetnam, Esq. SWEETNAM LLC 100 North La Salle Street, Suite 2200 Chicago, IL 60602 Tel: (312) 757-1888 E-mail: wms@sweetnamllc.com STATE UNIVERSITY OF NEW YORK: Faces Tennis Players' Suit -------------------------------------------------------- Christine Stuart, writing for Courthouse News Service, reported that four aspiring tennis greats brought a federal class action on September 29, against the State University of New York at Albany for disbanding their team just before championships. "The decision to end women's tennis at SUNY Albany left the players -- all but one of whom were foreign students -- in limbo," the complaint states. "For the foreign players, the option was to withdraw from defendant SUNY Albany, give-up their visas, and return to their countries of origin, only to restart the process of applying to universities with the hope of gaining admission, obtaining scholarships, winning a spot on another tennis team, and securing a new visa, all before the next season began. The women could have stayed at SUNY Albany and kept their scholarships. But these women are athletes, who trained from an early age to play tennis, who were recruited by SUNY Albany to play tennis, and who came to defendant's campus to play tennis. The choice to stay and forego their dream -- a choice that their male counterparts would never be required to make -- was not a real choice or a viable option for these plaintiffs." SUNY Albany's decision to shutter its women's tennis program began in secret, according to the complaint, shortly after the hiring of Mark Benson as athletics director. Though Benson allegedly lacks experience directing an NCAA Division I program, such as the SUNY Albany women's tennis team, he has a reputation for packing stadiums with paying fans. This was in desperate need at Albany, which was just about to open its 8,500-seat multisport complex in January 2013 when it learned that the New York Giants ended their 16-year run of conducting summer drills at the school, according to the complaint. Along with four of the nine players who made up SUNY Albany's female tennis team, on September 29 complaint is led by coach Gordon Graham. The complaint says Benson informed Graham in March 2016 that SUNY Albany would terminate the women's tennis team, opening up its $365,000 operating budget for redistribution. Graham said he could not keep Benson's secret from the players as they prepared for the America East Conference Championships, slated for May 2016. "He had recruited them from around the world and plaintiff Graham knew they would be devastated," the complaint states. Graham and his assistant coaches then took the players to Benson himself. "After that meeting a furious Benson screamed at and threatened Graham," the complaint states. The players offer a theory about why Benson kept his actions secret: "to deprive [them] of any effective opportunity to contest the decision." "This secret decision also denied Plaintiffs any opportunity to plan for, protect themselves against, or mitigate the sudden and devastating impacts on their personal and academic lives and sports careers," the complaint continues. Casting himself as a whistleblower, 65-year-old Graham says he faced pressure to retire. "Having failed to persuade him to retire with demotions and humiliation, in July 2016 defendant SUNY Albany notified plaintiff Graham that despite five years of excellent annual reviews and championship results, his contract would not be renewed after it expired on August 14, 2017," the complaint states. While the coach seeks damages for age discrimination, the athletes want an injunction against violations of Title IX, the federal law banning sex discrimination in education. They note that their team hardly makes a dent in SUNY Albany's more-than $540,000,000 budget. "Merely rounding the roster caps for a few of its seven men's teams" would make up the difference, according to the complaint. "This would be an even lighter burden for the next year, as there are only two of the women's tennis team's players who remain enrolled at the university," the complaint states. "Upon information and belief, defendant would gain public relations and enrollment advantages from doing so, which could be economically advantageous in attracting more students by demonstrating to student-athletes prompt action and commitment to comply with Title IX by offering more opportunities for its female students. The first two championship-level tennis players are currently on campus, the former head coach of women's tennis is still present in the community, the coach handles all the organizational, scheduling, logistical, and training for the program, his contract is still warm, and the program's cost is insignificant. If defendants were not merely retaliating against the plaintiffs, reinstating women's tennis would be the easiest of baby steps toward both Title IX compliance and mitigation of ongoing harm." Lead plaintiff Isidora Pejovic noted that she attended Albany on a student visa from Serbia. Though she was recruited by other schools when the tennis program at SUNY Albany disbanded, the rising junior says "but did not have the resources or ability to transfer." To transfer Pejovic would have had to apply for and obtain admission to another institution with room and a scholarship for her on the women's tennis program, then withdraw from SUNY Albany, return to Serbia, forfeit her student visa, and reapply for a new visa specific to a new school. NCAA rules allow student-athletes in Division I program "only . . . a single transfer to a Division I school," according to the complaint. South Korea-born Chae Bean King and Alba Sala Huerta of Spain have similar stories. Chassidy King, the fourth plaintiff, was the only U.S. citizen on the team. The complaint notes that federal education officials investigated the civil rights issues alleged here, but that the "toothless" resolution reached with the university requires it only to stop violating Title IX not later than the 2020-21 academic year. SUNY Albany faces no sanctions for its present misconduct, however, and no threat of sanctions if it fails to comply by the 2020-21 deadline. The plaintiffs are represented by Bernays Barclay of Rimon PC. The case is captioned, ISIDORA PEJOVIC, CHAE BEAN KANG, ALBASALA HUERTA, and CHASSIDY KING, Individually and on behalf of all those similarly situated, and GORDON GRAHAM, Plaintiffs, vs. STATE UNIVERSITY OF NEW YORK AT ALBANY, and MARK BENSON, Defendants, Case No. 5:00-99999 (N.D.N.Y. September 29, 2017). Attorneys for Plaintiffs: Bernays T. Barclay, Esq. RIMON P.C. 255 Patroono Creek Boulevard #4467 Albany, NY 12206 Telephone: 516-375-2524 E-mail: buz.barclay@rimonlaw.com STEPTOE & JOHNSON: "Houck" Plaintiff Seeks to Notify Class ---------------------------------------------------------- In the lawsuit styled JI-IN HOUCK, on behalf of herself and all others similarly situated, the Plaintiff, v. STEPTOE & JOHNSON LLP, the Defendant, Case No. 2:17-cv-04595-ODW-AFM (C.D. Cal.), the Plaintiff, on behalf of herself and all others similarly situated, will move the Court on October 23, 2017 for an order granting relief under the Equal Pay Act and authorizing the mailing of notice of the existence of this litigation to members of the proposed class. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=zQYtI7iw The Plaintiff is represented by: Lori E. Andrus, Esq. Paul Laprairie, Esq. ANDRUS ANDERSON LLP 155 Montgomery Street, Suite 900 San Francisco, CA 94104 Telephone: (415) 986 1400 Facsimile: (415) 986 1474 E-mail: lori@andrusanderson.com paul.laprairie@andrusanderson.com STRATEGY ANESTHESIA: Court Denied Bid for Class Certification ------------------------------------------------------------- In the lawsuit styled PROGRESSIVE HEALTH AND REHAB CORP., individually and as the representative of a class of similarly situated persons, the Plaintiff, v. STRATEGY ANESTHESIA, LLC, and John Does 1-5, the Defendants, Case No. 2:16-cv-01151-EAS-KAJ (S.D. Ohio), the Hon. Judge Edmund A. Sargus entered an order: 1. denying Defendant's motion to dismiss amended complaint; 2. denying as moot Defendant's motion to dismiss original complaint; and 3. denying without prejudice Plaintiff's first amended "Placeholder" Motion for Class Certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZIoU9bm5 SYLVIA MATHEWS BURWELL: Court Denied Class Certification as Moot ---------------------------------------------------------------- In the lawsuit styled AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, the Plaintiff, v. SYLVIA MATHEWS BURWELL, et al., the Defendants, Case No. 3:16-cv-03539-LB (N.D. Cal.), the Hon. Judge Laurel Beeler entered an order: 1. denying motion for leave to amend; 2. denying motion for a TRO without prejudice to Jane Doe's asserting it in different lawsuit; 3. denying motion for class certification as moot; and 4. granting motion for leave to file an amicus brief. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=bBi7BaIL TARGET CORPORATION: Faraji Seeks to Certify Class & Subclasses -------------------------------------------------------------- In the lawsuit styled NEDA FARAJI, on behalf of herself, and all others similarly situated, the Plaintiff(s), v. TARGET CORPORATION, a Minnesota corporation; and DOES 1 through 50, inclusive, the Defendant(s), Case No. 5:17-cv-00155-ODW-SP (C.D. Cal.), that Plaintiff, on behalf of herself and all others similarly situated, will move the Court on December 18, 2017, for an order certifying these class and subclasses: ETL-AP Class: "all persons Defendant employed in California as salaried ETL-APs and/or other positions with similar job titles, descriptions, duties, and/or compensation arrangements, at any time during the time period beginning November 28, 2012 and ending when final judgment is entered"; Waiting Time Subclass: "all persons Defendant employed in California as salaried ETL- APs who separated from employment with Defendant during the period beginning three years before the filing of this action and ending when final judgment is entered"' Wage Statement Subclass: "all persons Defendant employed in California as salaried ETL- APs to whom Defendant issued a wage statement during the period beginning one year before the filing of this action and ending when final judgment is entered"; and Civil Penalties Subclass: "all persons Defendant employed in California as salaried ETL- APs during the period beginning one year before Plaintiff's written notice to the LWDA and ending when final judgment is entered." A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=B2VEl7BO The Plaintiff is represented by: David Spivak, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd., Suite 312 Encino, CA 91436 Telephone (818) 582 3086 Facsimile (818) 582 2561 E-mail: david@spivaklaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Ave, Suite 201 Huntington Beach, CA 92649 Telephone: (888) 474 7242 Facsimile: (562) 256 1006 E-mail: walter@whaines.com TNJ ENTERPRISES: "Gomez" Suit Seeks to Certify FLSA Class --------------------------------------------------------- In the lawsuit styled Luiny Gomez, Edickson Garcia, Julian Vasquez, and Ramon Hidalgo, on behalf of themselves and all other persons similarly situated, the Plaintiffs, v. TNJ Enterprises Inc. d/b/a Domino's Pizza, Frank Lazauskus, and John Does No. 1-10, the Defendants, Case No. 2:16-cv-04824-SDW-LDW (D.N.J.), the Plaintiffs move the Court for an order: 1. provisionally certifying a class, for settlement purposes only, under Federal Rule of Civil Procedure 23; 2. conditionally certifying, for settlement purposes, an FLSA collective action under 29 U.S.C. section 216(b); 3. granting preliminary approval of the final Joint Stipulation of Settlement Agreement and Release; 4. approving a Notice of Proposed class Action Settlement; 5. approving Claim Form attached to the Agreement; 6. instructing the parties and all other interested parties to appear before this Court for a Final Approval and Fairness Hearing on a date at least 120 days from the date of the Preliminary Approval Order; and 7. for such other and further relief as the Court may deem just and proper. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=W0jmmRBu The Plaintiffs are represented by: David Stein, Esq. David Nieporent, Esq. SAMUEL & STEIN 38 West 32nd Street, Suite 1110 New York, NY 10001 Telephone: (212) 563 9884 TRUGREEN LIMITED: Morris et al. Seek Opt-In Rights Notice --------------------------------------------------------- In the lawsuit styled GEORGE MORRIS, SHANNON BOYD, RYAN COLEMAN, ANGEL APONTE, BARRY DAMICO, SCOTT SMITH, on behalf of themselves and all others similarly situated, the Plaintiffs, v. TRUGREEN LIMITED PARTNERSHIP, the Defendant, Case No. 6:17-cv-01465-PGB-GJK (M.D. Fla.), the Plaintiffs ask the Court for an Order permitting and supervising notice to Defendant's current and former lawn service technicians who worked one or more weeks during the three years from the filing of the Complaint to the present and who are similarly situated of their "opt-in" rights. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kvYNOmE5 The Plaintiffs are represented by: Jay P. Lechner, Esq. Jason M. Melton, Esq. WHITTEL & MELTON, LLC One Progress Plaza 200 Central Avenue, #400 St. Petersburg, FL 33701 Telephone: (727) 822 1111 Facsimile: (727) 898 2001 E-mail: Pleadings@theFLlawfirm.com lechnerj@theFLlawfirm.com kmoran@theFLlawfirm.com TURNER OIL: "Stanley" Suit Seeks to Certify Landmen Class --------------------------------------------------------- In the lawsuit styled JONATHAN STANLEY, et al., on behalf of themselves and all similarly situated individuals, the Plaintiffs, v. TURNER OIL & GAS PROPERTIES, INC., Case No. 2:16-cv-00386-JLG- EPD (S.D. Ohio), the Plaintiffs ask the Court for an order: 1. preliminary approving a class proposed in the Settlement Agreement; "all current and former contract Landmen who provided title abstract and related services to Defendant during the Covered Period of May 20, 2014 through March 27, 2016."; 2. for settlement purposes, appointing Marshall and Forman LLC as Class Counsel for the Class Members; 3. approving the proposed class action settlement procedure, including the Class Action Class Settlement Packet and notices contained therein, and direct the Claims Administrator to act accordingly; 4. setting a deadline for Plaintiffs to file for final settlement approval and to petition for an award of attorneys' fees and costs; 5. scheduling a final fairness hearing for the purposes of considering the reasonableness of the proposed Settlement Agreement, as well as Class Counsel's anticipated petition for an award of fees and costs; The case is a class action lawsuit for unpaid overtime wages brought under Federal Rule of Civil Procedure 23 by Representative Plaintiffs Jonathan Stanley and Mary Elliot, individually and on behalf of others similarly-situated who performed contract Landman title work for Defendant. In their initial Complaint Plaintiffs alleged that Defendant violated the Fair Labor Standards Act, by improperly classifying the contract Landmen as independent contractors instead of employees and not paying them overtime pay for hours worked over forty in a workweek. On May 20, 2016, Plaintiffs filed an Amended Complaint and expanded their allegations to include a separate class action claim based on the same fact under the Ohio Minimum Fair Wage Standards Act. The Representative Plaintiffs sought compensation from Defendant for unpaid overtime and liquidated damages pursuant to federal and state overtime laws, the FLSA and the Ohio Wage Act. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fJ6XNrEf The Plaintiffs are represented by: Edward R. Forman, Esq. John S. Marshall, Esq. Samuel M. Schlein, Esq. MARSHALL AND MORROW LLC 250 Civic Center Dr., Suite 480 Columbus, Ohio 43215-5296 Telephone: (614) 463 9790 Facsimile: (614) 463 9780 E-mail: eforman@marshallandmorrow.com jmarshall@marshallandmorrow.com sschlein@marshallandmorrow.com - and - Matthew A. Schwartz, Esq. Louis A. Jacobs, Esq. 230 Durand St Pickerington, OH 43147 Telephone: (614) 949 9749 Facsimile: (614) 321 3964 E-mail: MSchwartzLaw@Gmail.com LAJOhio@aol.com The Defendant is represented by: Sara H. Jodka, Esq. Jonathan R. Secrest, Esq. Sara H. Jodka, Esq. DICKINSON WRIGHT PLLC 150 East Gay Street, Suite 2400 Columbus, Ohio 43215 Telephone (614) 744 2572 Facsimile (248) 433 7274 E-mail jsecrest@dickinsonwright.com sjodka@dickinsonwright.com TWITTER INC: Investors' Suit over Stock Price Drop Underway ----------------------------------------------------------- Maria Denzio, writing for Courthouse News Service, reported that Twitter intentionally misled investors about user engagement before coming clean about the declining number of daily active users, an attorney for Twitter stockholders told a federal judge in San Francisco, on October 5. Attorney Daniel Drosman said Twitter's stock price dropped after executives like Anthony Noto, Twitter's chief financial officer, told analysts in November 2014 that its monthly active users would grow to over 550 million. But by 2015, its number daily active users -- the primary method of measuring user engagement -- was dropping off. "When you make a point to conceal this information, you do it intentionally," Drosman said. He said Noto was evasive with analysts who asked in February 2015 what they should look at to determine whether user engagement was declining or improving. "He doesn't tell them about daily active users. It's very carefully crafted, and it had the intended effect," Drosman said, noting the analysts went on to unwittingly praise Twitter's phony growth. "Noto knows what's going to make the stock go up," he said. "He's a former Goldman Sachs guy." Twitter eventually acknowledged user engagement was declining on an earnings call in July 2015, causing stock price to drop, Drosman said. Drosman -- dand@rgrdlaw.com -- and his firm, Robbins Geller Rudman & Dowd of San Diego, are litigating the case alongside South Carolina firm Motley Rice. They represent a class of investors who bought Twitter stock between Feb. 6, 2015 and July 28, 2015. On October 5, at a hearing on Twitter's motion to dismiss, Drosman said several confidential witnesses from inside Twitter "paint a very bleak picture" of the site's daily active users during the class period. "If DAU [daily active users] remains flat and you're adding additional MAU [monthly active users], what it says about this new MAU is these aren't engaged users," Drosman said. "In any event it's an adverse trend for DAU." The witnesses also claim Twitter faked its monthly user growth by prompting inactive users to log onto Twitter by sending out emails indicating some kind of error with their accounts. Twitter attorney James Kreissman -- jkreissman@stblaw.com -- with Simpson Thacher & Bartlett in Palo Alto, said the company was as realistic as it could be given its relative immaturity. "Twitter is a young company in a young industry working hard to be transparent in a rapidly changing environment," he said, noting Twitter began to highlight ad engagement metrics over daily active users because it helped explain that user engagement varies. While the class claims ad engagement metrics aren't reflective of user engagement, Twitter has argued a metric that tracks how users interact with ads on its platform is an "obvious measure of user engagement." Kreissman also pointed to a statement that Noto made in April 2015 saying the company was "off to a slow start" in the first quarter of that year. "Defendants were realistic and transparent with investors about user engagement during the class period. They provided similar amounts of user engagement information during the class period. This isn't the case where they issued optimistic guidance; in fact, they issued some sober warnings," Kreissman said. U.S. District Judge Jon Tigar challenged another quote from Noto that appeared to say nothing about user engagement: "In our more mature markets we have more DAU in emerging markets we have very low DAU. They all migrate to a higher rate over time," Noto said at the time. "It doesn't tell you if user engagement is growing or how user engagement is affecting the finance of the firm," Tigar said. "Do you think there was a lack of clarity in the company about exactly where the user engagement was? I'm not the best mathematician in the world, but I'm confident based on that statement I have no idea about what's happening with user engagement. There's so much left out of that statement that it's really impossible to know what's going on." Kreissman said Noto was just trying to manage expectations, as there are inherent limitations in relying on daily active users to measure user engagement. "They are providing the information that they have, and the lack of more detailed information reflects the fact that user engagement is not a plug-and-play kind of number. It's something the company struggled with repeatedly as a young growing company trying to find its way in the industry," Kreissman said. "This is not sugar-coating things." Tigar took the arguments under submission. "Thanks for bringing me a very interesting securities case," he said. "If I didn't have 300 other cases I would have set a much longer hearing." UNITED AIRLINES: "Pumputyte" Suit Seeks Certification of Class -------------------------------------------------------------- In the lawsuit styled NERINGA PUMPUTYTE, et. al., the Plaintiffs, v., the UNITED AIRLINES INC., the Defendant, Case No. 1:16-cv- 04868 (N.D. Ill.), the Plaintiffs ask the Court enter an order certifying a class, designating Ms. Pumputyte as Class Representative, and appointing Plaintiffs' Counsel as Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=JkplUxsu The Plaintiffs are represented by: Vladimir Gorokhovsky, Esq. GOROKHOVSKY LAW OFFICE, L.L.C. 10994 P.O North Hedgewood Ln. Mequon, WI 53092 Telephone: (414) 581 1582 E-mail: gorlawoffice@yahoo.com WAL-MART ASSOCIATES: "Magadia" Suit Seeks to Certify 3 Classes -------------------------------------------------------------- In the lawsuit styled RODERICK MAGADIA, individually and on behalf of all those similarly situated, the Plaintiff, v. WAL-MART ASSOCIATES, INC., a Delaware corporation; WAL-MART STORES, INC., a Delaware corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. 5:17-cv-00062-LHK (N.D. Cal.), the Plaintiff will move the Court on January 11, 2018 for an order certifying three Classes. Meal Period Regular Rate Class: "all current and former California non-exempt retail store employees of Defendants who received non-discretionary remuneration, including "MYSHARE INCT," and was paid any meal period premium payments in the same period that the non- discretionary remuneration was earned, at any time between December 2, 2012, through the present" Overtime/INCT Wage Statement Class: "all current and former California non-exempt employees of Defendants who received "OVERTIME/INCT," at any time between December 2, 2015, through the present; and Final Wage Statement Class: "all former non-exempt employees who worked for Defendants in the State of California and whose employment terminated (whether voluntarily or involuntarily) at any time from December 2, 2015 to the present" A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=HXqz2QKU The Plaintiff is represented by: Larry W. Lee, Esq. Kristen M. Agnew, Esq. Nicholas Rosenthal, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488 6555 Facsimile: (213) 488 6554 E-mail: lwlee@diversitylaw.com kagnew@diversitylaw.com nrosenthal@diversitylaw.com - and - William L. Marder, Esq. POLARIS LAW GROUP LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531 4214 Facsimile: (831) 634 0333 E-mail: bill@polarislawgroup.com - and - Dennis S. Hyun, Esq. HYUN LEGAL, APC 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488 6555 Facsimile: (213) 488 6554 E-mail: dhyun@hyunlegal.com UBER TECH: Two Women Sue over Sexual Assault by Drivers ------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that in two lawsuits against Uber on September 26, one woman says a driver sexually assaulted her and another that a driver imprisoned her in his car while making sexual and racist comments. The women are both represented in Los Angeles Superior Court by Lisa Bloom of Woodland Hills. Jane Doe (1) claims a driver named Fernando sexually assaulted her on June 15 after picking her up in Hollywood by "plac(ing) his hand beneath her bra and fondl(ing) her breasts." Doe says she pushed him away but he continued the assault while driving on the Santa Monica Freeway. She reported the assault to Uber, she says, "whose only response was 'do whatever you want about the incident.'" She reported to assault to law enforcement. Jane Doe (2) says a driver named Sam sexually harassed and frightened her on May 29 during a ride near Los Angeles International Airport. Among other things, she says, Sam, who is black, asked her "if she ever slept with a black man." He told her he was "young, dumb and full of cum," that she looked like a whore, asked her to "stay with" him because he hasn't "seen what you have," and told her, "You have white girl issues. You need a therapist." She says he purposely drove in the wrong direction to keep her falsely imprisoned in his car, and demanded that she text him her phone number, "NOW, before you get out!" She says she jumped from the slowly moving car and is still scared because he knows her address. She also claims that Uber hires him and other drivers as independent contractors, rather than employees, to duck liability for their misbehavior. Also on September 26, in Oakland, California, shareholders filed a federal class action against Uber and its former CEO Travis Kalanick, who was forced out in June amid allegations of rampant sexist behavior by him and other Uber employees, which he did little to stop. In this lawsuit, the Irving firemen's Relief & Retirement Fund claims Kalanick failed to disclose the company's flouting of laws, sexist corporate culture and anticompetitive behavior while issuing misleading statements about Uber's rapid growth and revenue to obtain billions of dollars in investments in the privately traded company. The retirement fund is represented by Darren Robbins, with Robbins Geller Rudman & Dowd. According to the Courthouse News database, 524 lawsuits have been filed against Uber this year, 21 of them class actions. At least 11 of them allege sexual misbehavior or discrimination. Kalanick has been sued 14 times this year, three of them class actions. UBER TECH: Faces Securities Suit by Irving Firemen's Fund --------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that a shareholder class action in Oakland, Calif., filed on September 26, claims Uber and its former CEO Travis Kalanick gained billions in capital by misleading investors about its misogynist workplace culture and corporate misconduct. Uber courted more than $10 billion in investment dollars through 2016, reaching a value of nearly $70 billion. But its value has dwindled in the wake of a series of scandals revealed over the last year, including the company's alleged theft of trade secrets and use of technology to evade regulatory authorities, according to a lawsuit filed by a retirement fund for Irving, Texas, firefighters. "While outwardly representing itself as a start-up darling fueled by technical innovation and entrepreneurial gumption in order to induce billions of dollars of investment, behind the scenes Uber was operating in violation of applicable law and driving its expansion by a company-wide commitment to short-term growth at all costs, no matter the legal, financial or reputational risks involved," the 54-page complaint says. The lawsuit lays out a laundry list of scandals that rocked the ride-hail giant over the last year, including: the alleged theft of trade secrets from Google-owned competitor Waymo; use of a secret program called "Hell" to steal driver and rider data from its competitor Lyft; use of a covert program, "Greyball," to mislead regulators and evade local authorities; systemic discrimination against female employees; the alleged theft of medical records from a sexual assault victim that sued the company; and a federal investigation into potential violations of the Foreign Corrupt Practices Act. The scandals forced Kalanick to step down as CEO in June, but he remains a member of the company's board of directors. According to the lawsuit, Kalanick and the company used a series of misleading statements in media appearances and interviews to push a false narrative about the company's prospects for growth and future success. The complaint cites Kalanick's statements during interviews in 2014 and 2016, in which he said "[w]e've been working in good faith with regulators" and that the company is "following all the rules." A report by The New York Times revealed in March that the company used "Greyball" since at least 2014 to identify and circumvent government officials that tried to use the Uber app to investigate potential violations of law in Portland, Boston, Las Vegas, and in foreign cities and countries including Paris, Australia, China and South Korea. The lawsuit also cites a July 2015 press release that stated, "For many women, Uber is a flexible, equitable opportunity." In February, a former Uber engineer Susan Fowler wrote a blog post detailing how the company refused to discipline a male manager who sexually harassed her because he was considered a "high performer." Her blog post led other female employees to come forward about Uber's failure to properly investigate or address complaints of sexual harassment. In response, Uber hired former U.S. Attorney General Eric Holder to investigate the company's corporate culture. Holder proposed a series of "sweeping changes to the company's leadership, organization, management and culture, offering proscriptions that contradicted defendants' prior representations about Uber's culture and workplace," according to the complaint. While Uber and Kalanick touted the company's exponential and unprecedented growth to attract investment dollars, the retirement fund says they failed to disclose underlying issues that posed major risks for the company's future growth and profitability. Investors like mutual fund companies Vanguard Group and T. Rowe Price have marked down the value of their Uber shares by as much as 15 percent, and the company is estimated to have lost $18 billion in market capitalization, according to the complaint. The Irving Fireman's Relief & Retirement Fund seeks compensatory damages for a class of investors who purchased shares in Uber between June 6, 2014, and September 22, 2017. It is represented by Darren Robbins of Robbins Geller Rudman & Dowd in San Diego. Uber did not immediately respond to an email seeking comment on September 26. The case is captioned, IRVING FIREMEN'S RELIEF & RETIREMENT FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. UBER TECHNOLOGIES INC. and TRAVIS KALANICK, Defendants, Case 4:17-cv-05558-DMR (N.D. Cal., September 26, 2017). Attorneys for Plaintiff: DARREN J. ROBBINS, Esq. JASON A. FORGE, Esq. LUKE O. BROOKS, Esq. ANGEL P. LAU, Esq. BRIAN E. COCHRAN, Esq. JEFFREY J. STEIN, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Tel: 619/231-1058 Fax: 619/231-7423 E-mail: darrenr@rgrdlaw.com jforge@rgrdlaw.com lukeb@rgrdlaw.com alau@rgrdlaw.com bcochran@rgrdlaw.com jstein@rgrdlaw.com - and - SHAWN A. WILLIAMS Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: 415/288-4545 415/288-4534 (fax) E-mail: shawnw@rgrdlaw.com UBIQUITI NETWORKS: December 19 Settlement Fairness Hearing Set -------------------------------------------------------------- The following statement is being issued by Labaton Sucharow LLP and Robbins Geller Rudman & Dowd LLP regarding the In re Ubiquiti Networks, Inc. Securities Litigation, Master File No. 12-cv-04677- YGR (N.D. Cal.). TO: ALL PERSONS THAT PURCHASED OR ACQUIRED THE PUBLICLY TRADED COMMON STOCK OF UBIQUITI NETWORKS, INC. PURSUANT AND/OR TRACEABLE TO ITS OCTOBER 14, 2011 INITIAL PUBLIC OFFERING, YOU MAY BE ENTITLED TO RECOVER IF YOU PURCHASED OR ACQUIRED SHARES FROM OCTOBER 14, 2011 THROUGH MAY 3, 2012, INCLUSIVE YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Northern District of California, that Lead Plaintiffs Inter-Local Pension Fund GCC/IBT and Bristol County Retirement System, on behalf of themselves and the Settlement Class, and Ubiquiti Networks, Inc. and the other named defendants (collectively, the "Defendants"), have reached a settlement in the above-captioned action (the "Action") in the amount of $6,800,000 in cash (the "Settlement Amount") that, if approved by the Court, will resolve all claims in the Action.1 A hearing will be held before the Honorable Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California in Courtroom 1, Oakland Courthouse, 4th Floor, 1301 Clay Street, Oakland, CA 94612 at 2:00 p.m. on December 19, 2017 to, among other things, determine whether (1) the Settlement should be approved by the Court as fair, reasonable, and adequate; (2) the Plan of Allocation for distribution of the Settlement Amount, and any interest thereon, less Court-awarded attorneys' fees, Notice and Administration Expenses, Taxes, and any other costs, fees, or expenses approved by the Court (the "Net Settlement Fund") should be approved as fair, reasonable and adequate; and (3) the application of Lead Counsel for an award of attorneys' fees of no more than 25% of the Settlement Fund (up to $1,700,000) and payment of litigation expenses of no more than $200,000 from the Settlement Fund should be approved. The Court may change the date of the Settlement Hearing without providing another notice. You do NOT need to attend the Settlement Hearing in order to receive a distribution from the Net Settlement Fund. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT AND YOU MAY BE ENTITLED TO SHARE IN THE NET SETTLEMENT FUND. If you have not yet received the full Notice of Pendency of Class Action, Proposed Settlement, and Motion for Attorneys' Fees and Expenses (the "Notice") and a Proof of Claim and Release form ("Claim Form"), you may obtain copies of these documents by contacting the Claims Administrator or visiting its website: Ubiquiti Networks Securities Litigation c/o GCG P.O. Box 10484 Dublin, OH 43017-4084 (844) 402-8574 info@ubiquitisecuritieslitigation.com www.ubiquitisecuritieslitigation.com Inquiries may also be made to Lead Counsel: LABATON SUCHAROW LLP Jonathan Gardner, Esq. 140 Broadway New York, NY 10005 (888) 219-6877 www.labaton.com settlementquestions@labaton.com ROBBINS GELLER RUDMAN & DOWD LLP Rick Nelson, Shareholder Relations 655 West Broadway, Suite 1900 San Diego, CA 92101 (800) 449-4900 www.rgrdlaw.com If you are a Settlement Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Claim Form postmarked or electronically submitted no later than December 5, 2017. If you are a Settlement Class Member and do not timely submit a valid Claim Form, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. To exclude yourself from the Settlement Class, you must submit a written request for exclusion in accordance with the instructions set forth in the Notice such that it is postmarked no later than November 27, 2017. If you are a Settlement Class Member and do not exclude yourself from the Settlement Class, you will be bound by any judgments or orders entered by the Court in the Action. Any objections to the Settlement, Plan of Allocation, and/or application for attorneys' fees and payment of expenses must be filed with the Court and mailed to counsel in accordance with the instructions set forth in the Notice no later than November 27, 2017. PLEASE DO NOT CONTACT THE COURT, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. ALL QUESTIONS ABOUT THIS NOTICE, THE SETTLEMENT, OR YOUR ELIGIBILITY TO PARTICIPATE IN THE SETTLEMENT SHOULD BE DIRECTED TO LEAD COUNSEL AT THE ADDRESSES LISTED ABOVE. Dated: October 11, 2017 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 The complete terms of the Settlement are in the Stipulation and Agreement of Settlement, dated August 4, 2017, which can be viewed at www.ubiquitisecuritieslitigation.com. UNITED COLLECTION: Placeholder Class Cert. Bid Filed in "Derosia" ----------------------------------------------------------------- In the lawsuit styled DENISE DEROSIA, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. UNITED COLLECTION BUREAU, INC., the Defendant, Case No. 2:17-cv-01340-PP (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying classes, appointing the Plaintiff as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff files a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=rgBx8Dyf The Plaintiff is represented by: John D. Blythin, Esq. Shpetim Ademi, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com UNITED SITE: Court Conditionally Certifies Technicians Class ------------------------------------------------------------ In the lawsuit styled JERMAINE MADISON, the Plaintiff, v. UNITED SITE SERVICES OF FLORIDA, INC., the Defendant, Case No. 6:16-cv- 01991-CEM-DCI (M.D. Fla.), the Hon. Judge Carlos S. Mendoza entered an order: 1. granting in part and denying in part the parties' Revised Joint Stipulation for Conditional Certification of FLSA Collective; 2. adopting and confirming Report and Recommendation as part of this Order; 3. conditionally certifying as a collective action for the following class: "all service technicians and pick-up and delivery technicians who 1) worked at Defendant's Orlando location during the three years preceding the date of this Order and 2) who claim they were not paid all overtime wages owed as a result of Defendant's automatic deduction of time for lunch breaks during which they worked"; 4. appointing Jermaine Madison as class representative; 5. approving Notice and Consent Form. The Notice shall be amended to base both (i) the date from which overtime claims may be asserted and (ii) the deadline to file consent forms, upon the date of this Order; 6. on or before October 2, 2017, directing Defendant to provide Plaintiff with a list containing the name, last known address, hire and termination dates (if applicable), and last job title of all service technicians and pick-up and delivery technicians who worked at Defendant's Orlando location during the three years preceding the date of this Order. 7. within five days of receiving the above list, directing Plaintiff to send the approved Notice and Consent Form with a self-addressed return envelope to each putative class member via first class mail. 8. denying motion in all other respects. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=bzy54xCQ UNITED STATES: 9th Cir. Rules in Suit over Immigrant Bail --------------------------------------------------------- Maria Dinzeo, writing for Courthouse News Service, reported that judges must consider a detainee's ability to pay when setting bail in immigration court, a Ninth Circuit panel ruled October 2. Writing for the majority, Circuit Judge Stephen Reinhardt said it doesn't make sense for the government not to consider financial circumstances when setting bond since the whole point of bail is to incentivize an arrestee to show up to their next court date. "Since the government's purpose in conditioning release on the posting of a bond in a certain amount is to 'provide enough incentive' for released detainees to appear in the future, we cannot understand why it would ever refuse to consider financial circumstances: the amount of bond that is reasonably likely to secure the appearance of an indigent person obviously differs from the amount that is reasonably likely to secure a wealthy person's appearance," Reinhardt wrote. "Nor can we understand why the government would refuse to consider alternatives to monetary bonds that would also serve the same interest the bond requirement purportedly advances. This is especially true in light of the empirically demonstrated effectiveness of such conditions at meeting the government's interest in ensuring future appearances. "By maintaining a process for establishing the amount of a bond that likewise fails to consider the individual's financial ability to obtain a bond in the amount assessed or to consider alternative conditions of release, the government risks detention that accomplishes 'little more than punishing a person for his poverty,'" Reinhardt added, quoting Bearden v. Georgia, a 1983 Supreme Court case ruling it a violation of due process to revoke a person's probation due to failure to pay a fine without first considering that person's financial circumstances. Michael Tan, an attorney with the ACLU's immigration rights project in New York, called the ruling historic. "It's the first ruling that requires judges to consider people's financial circumstances when setting bond," he said. "Much like the criminal justice system, authorities over-rely on cash bail as a means of ensuring people show up for court when we know from the wealth of research that's been done, when you rely on cash bail you end up discriminating against people based on wealth." Tan represents a class of immigrants detained pending removal proceedings at four detention facilities in Adelanto, Irvine, Santa Ana and Orange, California. According to the federal complaint, these facilities have the capacity to hold several thousand people at any given time. Lead plaintiff Xochitl Hernandez came to the United States as an adolescent 25 years ago. In 2016, she was rounded up during an LAPD raid of a friend's house and was transferred to ICE custody, where her bail was set at $60,000. Unable to come up with even $1,500, she remained in jail for months until a community organization called the National Day Labor Organizing Network raised $5,000 and a different immigration judge accepted that amount. The other named plaintiff, Cesar Matias, is an asylum seeker who fled Honduras to escape persecution for being gay. He was arrested in 2012 and was held at an ICE detention center for nearly four years because he couldn't afford his $3,000 bond. He was eventually released after his case garnered so much attention that the community organization Community Initiatives for Visiting Immigrants in Confinement raised enough money for him to bond out. The lawsuit seeks to represent many like Matias and Hernandez, whom judges have determined are not a flight risk or a danger to the public, but remain locked up because they can't pay bail. "The ruling doesn't go so far as to eliminate cash bail, but it puts in place some basic due process protections where the judge has to consider financial circumstances and ensure the person isn't being locked up because they lack the means to pay it," Tan said. "Many go on to win their cases, which makes it all the more irrational to keep people locked up." The ruling comes as the movement to do away with cash bail entirely in California is growing in popularity among state lawmakers. In the federal criminal system, which has been held up by California bail reform advocates as a model for how the state system ought to work, arrestees are allowed to put up 10 percent of their bond, or offer up a house or property as collateral. But in the immigration system, those arrested are required to immediately post a cash bond set by an immigration judge. "The only mechanism is cash bail," Tan said. "The federal pretrial system does have a lot more protections for criminal defendants and there's no reason why there shouldn't be comparable protections in the immigration system. "There isn't anything like pretrial services in the immigration system where someone is working with someone to do a risk assessment and come up with a recommendation to the court. And people suffer for it. We know from years of accumulated experience in the criminal justice system that there are better ways of doing this." The Ninth Circuit's ruling affirms a federal judge's decision to grant the class a preliminary injunction requiring the government to consider financial circumstances and alternative conditions of release. "When the government determines what bond to set without considering a detainee's financial circumstances, or the availability of alternative conditions of release, there is a significant risk that the individual will be needlessly deprived of the fundamental right to liberty," Reinhardt wrote. "Even though consideration of these matters does not guarantee that a non-citizen will actually be released on a bond that he is financially able to obtain once all flight risk factors are considered, [immigration judges] and ICE will certainly be less likely to impose an excessive bond if they are mandated to at least consider financial circumstances and alternative conditions before setting the amount." Circuit Judge Ferdinand Fernandez wrote that he disagreed with the scope of the injunction, even as he agreed that the federal judge wasn't wrong in issuing it. He said judges must consider financial ability, but he does not think the government should be ordered to meet with the class' attorneys to develop and agree to guidelines for future immigration hearings, or have to conduct new bond hearings within 45 days. He wrote, "As I see it, at this point, the government must consider financial ability. If detailed procedures beyond those that already exist (or amendments to current procedures) are needed for that purpose, the government's determination and adoption of those procedures should basically be through the usual governmental processes rather than in a forced march and a required agreement with class counsel." The Justice Department declined to comment on the ruling. Tan said the class hopes to make the protections permanent. "The case continues," he said. "We're moving ahead with discovery with an eye toward seeking a permanent injunction." UNITED STATES: ACLU Files Suit in Los Angeles over Deportation -------------------------------------------------------------- Matt Reynolds, writing for Courthouse News Service, reported that the American Civil Liberties Union marked the Trump administration's October 5 deadline for Deferred Action for Childhood Arrivals Program participants to renew by filing a class action in Los Angeles on behalf of young undocumented "Dreamers" who say federal officials have unlawfully revoked protections under the program. In April, President Donald Trump said the "dreamers should rest easy." But the president threw the fate of 800,000 young immigrants into serious doubt just a few months later when he rescinded the Deferred Action for Childhood Arrivals Program, known as DACA, which protected them from deportation and allowed them to work and go to school in the United States. Trump has urged Congress to come up with a replacement. A federal complaint filed on October 5, however, says Trump has further stripped immigrants of protections under DACA "even while the program winds down." The class action comes as immigration rights activists took to the streets of Los Angeles on October 5, morning to protest the end of the DACA program -- the last day for recipients, known as "Dreamers," to reapply to the program. Recipients could face deportation as early as March 2018 as the protections are phased out. But according to the class action, immigration officials aren't waiting until then. "On his watch, federal immigration authorities have targeted numerous DACA recipients and unlawfully revoked the grants of deferred action and work permits they have received, without any notice or opportunity to be heard, even though these individuals have abided by all the program rules and have not engaged in any conduct that would disqualify them from the program," the 34-page complaint states. Naming Department of Homeland Security, U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection officials, the lawsuit says the government's policies and procedures violate the federal Administrative Procedures Act and the Fifth Amendment's Due Process Clause. "President Trump has said that 'Dreamers should rest easy,' yet his administration has placed these young immigrants directly at risk," ACLU attorney Michael Tan said in a statement. "Not only is he ending the protections the government pledged to these young immigrants who know no other home, but his administration is targeting them now while the DACA program is still in place." The "Dreamers" are represented by ACLU attorney Jennifer Chang Newell. In a news release, the ACLU said that the policies and procedures strike at the heart of the Dreamers' immigration status by targeting them for removal for low-level offenses, including traffic infractions. Other young immigrants have lost their DACA status based on unproven allegations, the lawsuit says. Plaintiff Jesus Alonso Arreola Robles, 23, says he was a cook at the famous Chateau Marmont in West Hollywood and working as a driver for Uber and Lyft when federal immigration agents arrested him this past February while he was driving. His complaint says authorities accused him of attempting to smuggle a customer's family members into the United States. He says he has been working the two jobs to support his parents, who are permanent residents that have been in America since he was a baby. He had no criminal history but found himself facing deportation, according the lawsuit. An immigration judge rejected the smuggling charges, and Arreola was never criminally charged. But the Department of Homeland Security revoked his DACA status, the suit says. Arreola was granted DACA status three times, in 2012, 2014 and again in 2016. In a statement, he said he and his girlfriend are expecting their first child and he wants to stay in the country to raise his son. "I don't want an unfounded accusation to take everything I love away from me," Arreola said. Inland Empire-Immigrant Youth Collective joined Arreola in filing the lawsuit. They want an order that finds the practice of revoking immigrants' DACA status is unconstitutional. The plaintiffs also want the government to reinstate DACA status to those who have lost it or give them a proper opportunity to challenge their change in status. The Justice Department did not immediately respond to a request for comment. The case is captioned, INLAND EMPIRE - IMMIGRANT YOUTH COLLECTIVE and JESUS ALONSO ARREOLA ROBLES on behalf of himself and others similarly situated, Plaintiffs, v. ELAINE C. DUKE, Acting Secretary, U.S. Department of Homeland Security; JAMES McCAMENT, Acting Director, U.S. Citizenship and Immigration Services; MARK J. HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; SUSAN M. CURDA, Los Angeles District Director, U.S. Citizenship and Immigration Services; THOMAS D. HOMAN, Acting Director, U.S. Immigration and Customs Enforcement; DAVID MARIN, Los Angeles Field Office Director, U.S. Immigration and Customs Enforcement; KEVIN K. McALEENAN, Acting Commissioner, U.S. Customs and Border Protection, Defendants, Case 5:17-cv-02048 (C.D. Cal., October 5, 2017). Attorneys for Plaintiffs: Jennifer Chang Newell, Esq. Katrina L. Eiland, Esq. ACLU FOUNDATION IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 Facsimile: (415) 395-0950 E-mail: Jnewell@aclu.org keiland@aclu.org - and - Michael K. T. Tan, Esq. David Hausman, Esq. ACLU FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 E-mail: mtan@aclu.org dhausman@aclu.org UNITED STATES: Calif. Judge Permits Privacy Class Suit v. FBI ------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that a federal judge in San Francisco, refused on October 3, to dismiss a lawsuit claiming the FBI used an unconstitutional subpoena to spy on anonymous supporters of jailed journalist Barrett Brown. U.S. Magistrate Judge Maria-Elena James found the lawsuit plausibly alleged that the government abused its subpoena power to unmask the identities of unnamed donors who raised money for Brown's legal defense. "Defendants have failed to articulate any facially reasonable explanation for requesting donors' identities," James wrote in her 26-page ruling. Brown was arrested in September 2012 and sentenced to five years and three months in prison after he shared an online link to files stolen in the 2011 hack of the security and intelligence contractor Strategic Forecasting, or Stratfor. Kevin Gallagher, who started an online fundraiser for Brown's legal defense, and an anonymous donor filed a class action against the government in February this year. They claim the FBI violated donors' privacy, the First Amendment, and the Stored Communications Act. Gallagher and Donor No. 1 claim Dallas-based FBI agent Robert Smith and Candina Heath, an assistant U.S. attorney in Texas, used a subpoena to "unlawfully identify, target and surveil" anonymous supporters of Brown. The government says those donors have no expectation of privacy for transaction records retained by a third party. But the plaintiffs say the records were protected political speech and that revealing their identities violates their rights to engage in anonymous political speech. James declined to analyze the online payment service provider WePay's privacy policy at this stage in the litigation, saying issues of disputed fact would be resolved on summary judgment or at trial. The subpoena was reportedly issued to determine whether Brown, who had a public defender, could afford his own lawyer. But the plaintiffs say Brown was never charged with withholding funds from his public defender, that the purpose of the fundraiser was to hire private counsel, and that the amount raised was available on a public web page. "This defeats defendants' arguments that the [first amended complaint] did not plausibly allege a retaliatory motive and that the government's legitimate purpose in issuing the subpoena outweighs potential First Amendment concerns," James ruled. James refused to dismiss a claim that the federal government violated the Stored Communications Act by demanding WePay turn over records identifying anonymous donors. However, she dismissed claims for injunctive relief against Smith and Heath, finding the donors failed to show there was a threat of immediate future harm or repeated violations. "The [first amended complaint] does not set forth the basis for Donor Number 1's belief that defendants continue to maintain and use the information more than four years after obtaining it from WePay, rendering this allegation conclusory," James wrote. She also dismissed without leave to amend a claim alleging violations of the California Constitution, finding the court lacks jurisdiction over that claim. She dismissed with leave to amend all claims against Smith and Heath in their individual capacities, finding the court lacks personal jurisdiction over the Texas-based defendants. First Amendment claims against Heath and Smith in their official capacities were dismissed with leave to amend. The plaintiffs have until Oct. 24 to file an amended complaint. Neither side responded to emailed requests for comment October 5. Gallagher and Donor No. 1 are represented by Charles Donovan with Sheppard Mullin Richter & Hampton in San Francisco. Brown was released to a halfway house in November 2016 and re- arrested in April one day before he was to be interviewed for a PBS documentary, according to an April article by Alex Emmons in The Intercept. Before his arrest, Brown published articles in The Guardian about hacked emails showing intelligence contractors conspired with corporations to hack and discredit activists and key defenders of Wikileaks, including Glen Greenwald. The case is captioned, KEVIN GALLAGHER, et al., Plaintiffs, v. UNITED STATES, et al., Defendants, Case 3:17-cv-00586-MEJ (N.D. Cal., October 3, 2017). US STEEL: Shareholders Sue over Earnings Loss, Stock Plunge ----------------------------------------------------------- Lana Morelli, writing for Courthouse News Service, reported that piling onto United States Steel Corp. after a $1.4 billion earnings loss, shareholders claim in a federal class action that years of rosy reports were pure fiction. The Central Laborers' Pension Fund is at the helm of the complaint filed on October 2, in Pittsburgh where the company co-founded in 1901 by Andrew Carnegie is headquartered. U.S. Steel had that captain of industry in mind when it embarked on a 2013 strategic initiative called the Carnegie Way to overcome turmoil in the market. The investors say U.S. Steel was confronting a perfect storm of challenges, including "lower oil prices, lower steel prices, a stronger U.S. dollar, global overcapacity, and an increase in foreign imports flooding the market." Still U.S. Steel reported last year that its efforts had been successful. U.S. Steel reported $745 million in benefits associated with the Carnegie Way, but the complaint says this purported "focus on growth and right-size operations . . . was a facade." "In reality, U.S. Steel's promising financial results were the result of defendants causing U.S. Steel to engage in ill-advised cost-cutting and underspending on capital assets that pushed off necessary repairs and upgrades," the complaint states. "This not only disguised the company's true financial and operational condition, but jeopardized its ability to capitalize on an improving steel market." Investors say the curtain came down earlier this year when favorable U.S. trade cases against foreign imports triggered a more than 50 percent surge on the average price of U.S. hot-rolled steel coil. Hot-rolled steel coil makes up 28 percent of U.S. Steel's largest segment -- flat-rolled products, according to the complaint. Instead of translating this price increase into domestic-sales profits, however, U.S. Steel reported poor financial results on April 25, 2017, "including a significant decline in the company's flat-rolled segment," according to the complaint. Suddenly the corporate executives who had been taking millions in incentive compensation for their strong performances announced that U.S. Steel "would need to invest in asset revitalization, exceeding $300 million for 2017 and more than $1 billion over the next several years," according to the complaint. The class notes that U.S. Steel's stock plunged more than 26 percent, or $8.33 per share, on April 26, "instantly wiping out more than $1.4 billion in once valuable shareholder equity." "Worse yet, the company has been named as a primary defendant in a costly and expensive-to-defend consolidated class action lawsuit brought by U.S. Steel shareholders for alleged violations of the federal securities laws," the complaint continues. Alleging breach of fiduciary duty and violations of the Exchange Act, the investors note that CEO David Burrett; his predecessor, Mario Longhi, and the company's other executives "have not fared nearly so badly." "In 2016, defendants collectively pocketed more than $17 million in compensation not justified by U.S. Steel's performance while under their stewardship," the complaint states. "These payments unjustly enriched defendants at the company's expense." With the board unwilling to hold these directors accountable, the class wants the court to award restitution and impose a constructive trust. The class is represented by Brett Stecker with the Weiser Law Firm in Berwyn, Pa. Representatives for U.S. Steel Corporation have not returned a request for comment. Nearly six months after the devastating first-quarter earnings report, U.S. Steel's share price still has not rebounded to its early April high of $34.72. The stock sank to below $20 in May and was hovering at $26.19 at press time on October 6. The case is captioned, CENTRAL LABORERS' PENSION FUND, Derivatively on Behalf of UNITED STATES STEEL CORPORATION, Plaintiff, vs. DAVID B. BURRITT, DAVID S. SUTHERLAND, PATRICIA DIAZ DENNIS, DAN O. DINGES, JOHN G. DROSDICK, JOHN J. ENGEL, MURRY S. GERBER, STEPHEN J. GIRSKY, PAUL A. MASCARENAS, GLENDA G. McNEAL, ROBERT J. STEVENS, PATRICIA A. TRACEY and MARIO LONGHI, Defendants, and UNITED STATES STEEL CORPORATION, a Delaware corporation, Nominal Defendant, Case 2:17-cv-01279-CB (W.D. Pa., October 2, 2017). Attorneys for Plaintiff: Robert B. Weiser, Esq. Brett D. Stecker, Esq. James M. Ficaro, Esq. THE WEISER LAW FIRM, P.C. 20 Cassatt Avenue Berwyn, PA 19312 Tel: 610/225-2677 Fax: 610/408-8062 E-mail: rw@weiserlawfirm.com bds@weiserlawfirm.com jmf@weiserlawfirm.com - and - Benny C. Goodman III, Esq. Erik W. Luedeke, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Tel: 619/231-1058 Fax: 619/231-7423 E-mail: bennyg@rgrdlaw.com eluedeke@rgrdlaw.com - and - John T. Long, Esq. CAVANAGH & O'HARA 2319 West Jefferson Street Springfield, IL 62702 Tel: 217/544-1771 Fax: 217/544-9894 WELLS FARGO: Officers Must Defend Against Shareholder Action ------------------------------------------------------------ Nicholas Iovino, writing for Courthouse News Service, reported that Wells Fargo's board of directors and senior executives cannot dodge a class action accusing them of misleading investors about the phony accounts scandal that has cost the bank more than $300 million in penalties, a federal judge in San Francisco ruled. U.S. District Judge Jon Tigar refused to dismiss most claims against 15 members of Wells Fargo's board of directors and five senior executives on October 4. In a 49-page order, Tigar found the executives and directors were made aware as early as 2011 about the bank's sham accounts scandal, which the bank acknowledged in August this year included as many as 3.5 million unauthorized accounts. Despite knowing of the fraud, shareholders say, the managers continued to insist that Wells Fargo's cross- selling program was successful and critical to the bank's revenue growth. The San Francisco-based bank's "Gr-Eight" cross-selling initiative pressured its employees to open at least eight accounts for each customer, leading employees to create unauthorized accounts to meet the aggressive sales quotas. Shareholders say the bank misled investors by touting the company's "adherence to regulatory guidelines" in public filings and including the fraudulent, cross-sold accounts in those filings. In addition to the legal penalties, the scandal has caused Wells Fargo untold harm in reputational damage, plus the costs of extensive advertising, in The New York Times and other national publications, trying to assure consumers that the bank is addressing the fraud. Tigar wrote: "The Court finds that plaintiffs have plausibly alleged that the director defendants made material and misleading statements through their participation in and approval of Wells Fargo's public filings." Tigar found several red flags that should have alerted Wells Fargo to the scope of the scandal long before it paid $185 million to federal regulators in September 2016 for the misconduct. Those red flags include former CEO John Stumpf's testimony to Congress that he was made aware of "issues" related to sham accounts in 2011; earlier communications between employees and board members about the fraudulent activity; lawsuits filed against the bank alleging creation of fraudulent accounts; a December 2013 article in the Los Angeles Times exposing the scandal; investigations by federal regulators as early as 2012; widespread employee terminations apparently aimed at silencing whistleblowers; and the company's emphasis on cross-selling in financial reports. Tigar concluded that shareholders presented sufficient allegations to sue three senior executives -- CEO and former COO Timothy Sloan, former vice president of community banking Carrie Tolstedt, and CFO John Shrewsberry -- for issuing allegedly misleading statements. Tigar also said shareholders can sue former and current executives Stumpf, Sloan, Tolstedt, Shrewsberry, and chief risk officer Michael Loughlin, on allegations of insider trading. The investors say the executives used their inside knowledge to profit from selling shares back to Wells Fargo through the bank's share repurchase program. Tigar dismissed without prejudice securities law claims against Loughlin, finding the shareholders failed to allege the chief risk manager made any specific false or misleading statements. And Tigar refused to let the investors hold the bank's managers liable to cover Wells Fargo's legal costs for to its alleged violations of federal securities laws. He found that claim unripe because no judgment has been reached on whether the bank or its directors and executives violated securities laws. But Tigar gave shareholders a green light to seek rescission of contracts between Wells Fargo and the accused managers for allegedly violating securities laws while performing their job duties. Tigar dismissed California law claims with prejudice, finding that because Wells Fargo is incorporated in Delaware, its managers can be sued for violating only Delaware's corporate misconduct laws. Wells Fargo and attorneys for both sides did not respond to emails and phone calls seeking comment on October 5, afternoon. Wells Fargo is represented by Brendan P. Cullen, with Sullivan & Cromwell in Palo Alto. The shareholders' lead attorney is Richard Heimann with Lieff Cabraser Heimann & Bernstein in San Francisco. The case is captioned, IN RE: WELLS FARGO & COMPANY SHAREHOLDER DERIVATIVE LITIGATION Case 3:16-cv-05541-JST (N.D. Cal., October 4, 2017). WESTMINSTER MANAGEMENT: Tenants Sue over Predatory Fees ------------------------------------------------------- Daniel W. Staples, writing for Courthouse News Service, reported that companies owned by President Donald Trump's son-in-law Jared Kushner face a class action in Baltimore from tenants who say they are hounded over unlawful fees under threat of eviction. Though the real estate scion is not named as a party to the complaint, lead defendant Westminster Management is a subsidiary of the family-run Kushner Cos., which owns, manages and develops properties across the country. In the complaint, two tenants who live in Kushner's Dutch Village apartments in Northeast Baltimore and Carroll Park apartments in Middle River say they are plagued by a vicious cycle of predatory fees. It starts with a late fee, according to the complaint, which is tacked on to a tenant's rent if his rent is not paid in full by the end of the fifth day of the month. But tenants Tenae Smith and Howard Smith (no relation), say a purported court fee and an agent fee are also tacked on around the same time. "The purported court fee is charged even though such a fee has not been awarded by a court and is often never awarded by a court," the complaint states. Even if the tenant has paid part of their monthly rent, the late fee is allegedly set at 5 percent of their full rent. The tenants say their subsequent rent payments are then improperly misapplied to these improper fees, making them appear further in arrears. "The fees kept adding up,'" tenant Tenae Smith said in a statement from her attorenys at Brown Goldstein & Levy. Kushner's companies dispute the allegations. "We have been in compliance with Maryland's laws and regulations and intend to vigorously defend ourselves against these allegations," a spokesman for the companies said in an email. Filed in Baltimore City Circuit Court, the complaint takes aim at Westminster Management LLC and JK2 Westminster LLC, both with New Jersey addresses. Carroll Park Holdings LLC is named as a co-defendant with a New York City address, as is Dutch Village LLC, in College Park, Maryland. Dutch Village tenant Tenae Smith is described as a mother of two. "One time I paid the rent, and they sent back my check telling me that I needed to pay an additional $150 in fees or they wouldn't take my rent," she said in a statement. "I work full-time and made regular payments, but they kept taking me to court for eviction and piling on the fees. I just want to keep my family safe and stable as the kids go back to school." Santoni, Vocci & Ortega, in Towson, Maryland, is working with the Public Justice Center and Brown, Goldstein & Levy to represent the Westminster tenants. "The routine practice of charging tenants illegal fees combined with filing eviction proceedings against tenants who have paid their rent on time is predatory and destructive to hard-working Marylanders and their families," Santoni Vocci attorney Chelsea Ortega said in a statement. "This is yet another example of corporations profiting from deceptive policies." Matt Hill of the Public Justice Center said going to court is important for tenants like those of Westminster "where basic needs, like housing, are at stake." "It is virtually impossible for tenants in these situations to decipher their landlords' account statements and fight back against a slew of fees on the threat of eviction without help from an attorney," Hill said in a statement. The other Westminster tenant suit, Howard Smith, is described as a retiree who has lived in the Kushner-owned Carroll Park Apartments in Middle River, east of Baltimore, for 10 years. He has been hit with a string of late fees and court fees and eviction notices even though he has arranged to have his rent automatically debited from his bank account every month. The complaint says Howard Smith paid his rent in full, but Carroll Park misallocated a portion of that payment to non-rent charges, deemed his rent to be late, then charged him a "legal-summons fee," even though no court had awarded such a fee. He was also charged a "legal-agent fee." After the fees were assessed, the company filed an eviction notice to spur payment of the full bill. Smith complied, fearful of eviction. "Adding small but improper fees to the rent of tenants living paycheck to paycheck, then misallocating rent payments to those fees in order to generate more fees, is a scheme that preys on working-class tenants," Brown, Goldstein & Levy attorney Andrew Freeman said in a statement. "Westminster Management's misuse of Maryland courts' eviction proceedings to force tenants to pay these improper fees makes this scheme all the more deplorable. It must be stopped." WEYERHAEUSER COMPANY: Faces Suit Over Products Liability Act ------------------------------------------------------------ Deborah Corwin and Jan Corwin, and all others similarly-situated v. Weyerhaeuser Company, Case No. 2:17-cv-01501 (W.D. Wash., October 6, 2017), seeks damages for violations of the Washington and New Jersey Products Liability Act, the New Jersey Consumer Fraud Act and the Magnuson-Moss Warranty Act. Plaintiffs seek damages for injuries proximately caused by Weyerhaeuser's defective Joists installed in affected structures owned by Plaintiffs. Plaintiffs allege that the Defendant used toxic materials in wood joists used in the construction of houses and other structures owned by Plaintiffs. Plaintiffs Deborah Corwin and Jan Corwin are residents of Bergen County, New Jersey. They own a home located at 12 Marilyn Drive, Unit 202, Woodcliff Lake, New Jersey. That home is an Affected Structure built using Weyerhaeuser's defective Joists. Defendant Weyerhaeuser Company engages in the manufacture, distribution, and sale of forest products. It operates through the following segments: Timberlands, Wood Products, and Cellulose Fibers. Defendant is a Washington corporation with its principal place of business in Seattle, Washington. [BN] The Plaintiff is represented by: Dan Drachler, Esq. ZWERLING, SCHACHTER & ZWERLING, LLP 1904 Third Avenue, Suite 1030 Seattle, WA 98101 Tel: (206) 223-2053 Fax: (206) 343-9636 E-mail: ddrachler@zsz.com - and - Joseph R. Saveri, Esq. Nicomedes S. Herrera, Esq. Kyla J. Gibboney, Esq. JOSEPH SAVERI LAW FIRM, INC. 555 Montgomery Street, Suite 1210 San Francisco, CA 94111 Tel: (415) 500-6800 Fax: (415) 395-9940 E-mail: jsaveri@saverilawfirm.com nherrera@saverilawfirm.com kgibboney@saverilawfirm.com WHOLE FOODS: Faces "Banus" Class Suit over POS System ----------------------------------------------------- Courthouse News Service reported that customers claim in a federal class action in Cleveland, that Whole Foods used a vulnerable point-of-sale system in its tap rooms and restaurants that led to a data breach exposing millions of patrons to an increased risk of identity theft. The case is captioned, PATRICIA BANUS, individually, and on behalf of those similarly situated 9488 Island Rd North Ridgeville, OH, 44039 Plaintiff, v. WHOLE FOODS MARKET GROUP, INC. c/o CT Corporation System 4400 Easton Commons Way, Suite 125 Columbus, OH 43219, Defendant, Case No. 1:17-cv-02132-JG (N.D. Ohio, October 10, 2017). Counsel for the Plaintiff and the Class: Brian D. Flick, Esq. Marc E. Dann, Esq. DANNLAW P.O. Box 6031040 Cleveland, OH 44103 Tel: (216) 373-0539 Fax: (216) 373-0536 - and - Thomas A. Zimmerman, Jr. ZIMMERMAN LAW OFFICES, P.C. 77 W. Washington Street, Suite 1220 Chicago, IL 60602 Tel: (312) 440-0020 Fax: (312) 440-4180 E-mail: tom@attorneyzim.com WISE COMPANY: "Miller" Suit Seeks Certification of Class -------------------------------------------------------- In the lawsuit styled NICHOLAS MILLER and JEFFREY BORNEMAN, individually and on behalf of all others similarly situated, Plaintiffs, v. WISE COMPANY INC., the Defendant, Case No. 5:17-cv- 00616-JAK-PLA (C.D. Cal.), the Plaintiffs will move the Court on January 29, 2018, for an order certifying a class pursuant to Consumers Legal Remedies Act: "all persons who purchased one or more of the following Wise Company Long-Term Food Kits in California through the Wise website from February 15, 2013 through the date of class certification: 1-Month, 3-Month, 6-Month, 12-Month Emergency Food Supply Box (SKUs 01-116, 40-40348, 40-40696, 40-41392); 56 Serving Grab and Go Bucket (SKU 01-156); 60 Serving EntrÇe Only Grab and Go Bucket (SKU 01-160); 84 Serving Grab and Go Bucket (SKU 01- 184); 120 Serving EntrÇe Only Grab and Go Bucket (SKU 01-120); 240 Serving Long Term Food Supply Package (SKU 40-40240); 360 Serving Long Term Food Supply Package (SKU 40-40360); 720 Serving Long Term Food Supply Package (SKU 40-40720); 1080 Serving Long Term Food Supply Package (SKU 40-41080); 1440 Serving Long Term Food Supply Package (SKU 40-41440); 2160 Serving Long Term Food Supply Package (SKU 40-42160); 2880 Serving Long Term Food Supply Package (SKU 40-42880); and 4320 Serving Long Term Food Supply Package (SKU 40-44320). The Plaintiffs will also move the Court to appoint Nicholas Miller and Jeffrey Borneman as the class representatives, and appoint Mark A. Chavez and Nance F. Becker of Chavez & Gertler LLP and Michael D. Braun of Braun Law Group, P.C. as Class Counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=sJeEF6aJ The Plaintiffs are represented by: Mark A. Chavez, Esq. Nance F. Becker, Esq. CHAVEZ & GERTLER LLP 42 Miller Avenue Mill Valley, California 94941 Telephone: (415) 381 5599 Facsimile: (415) 381 5572 E-mail: mark@chavezgertler.com nance@chavezgertler.com - and - Michael D. Braun, Esq. BRAUN LAW GROUP, P.C. 1999 Avenue of the Stars, Ste. 1100 Los Angeles, CA 90067 Telephone: (310) 836 6000 Facsimile: (310) 836 6010 E-mail: mdb@braunlawgroup.com - and - Andrew S. Kierstead, Esq. LAW OFFICES OF ANDREW KIERSTEAD 1001 SW 5th Avenue, Suite 1100 Portland, Oregon 97204 Telephone: (508) 224 6246 Facsimile: (508) 244 4356 E-mail: ajkier@aol.com WOOD GROUP: "Salinas" Suit Seeks to Certify FLSA Class ------------------------------------------------------ In the lawsuit styled ROLAND SALINAS, individually and on behalf of all others similarly situated, the Plaintiff, v. WOOD GROUP PSN COMISSIONING SERVICES, INC., the Defendant, Case No. 2:17-cv-00177 (S.D. Tex.), Plaintiff asks Court for conditional certification of: "all personnel employed by Wood Group during the past 3 years who were paid the same hourly rate for all hours worked (including hours in excess of 40 hours in a single workweek) and no overtime compensation." Plaintiff filed this collective action lawsuit pursuant to the Fair Labor Standards Act to recover unpaid overtime wages, liquidated damages, attorney's fees and costs. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=x6NMwb17 The Plaintiff is represented by: Michael A. Josephson, Esq. Lindsay R. Itkin, Esq. Richard M. Sanchez, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352 1100 Facsimile: (713) 352 3300 E-mail: mjosephson@mybackwages.com litkin@mybackwages.com rschreiber@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877 8788 Facsimile: (713) 877 8065 E-mail: rburch@brucknerburch.com WORD ENTERPRISES: Court Certifies Delivery Drivers Class -------------------------------------------------------- In the lawsuit styled CHAD MCFARLIN, the Plaintiff, v. THE WORD ENTERPRISES, LLC, ET AL., the Defendants, Case No. 2:16-cv-12536- GAD-APP (E.D. Mich.), the Hon. Judge Gershwin A. Drain entered an order granting Plaintiff's Motion to Certify Class of: "106 delivery drivers, who were employed by three different Hungry Howie's Pizza stores." Plaintiff alleges that Defendants paid him below the Federal and Michigan minimum wage during his time as a delivery driver for Hungry Howie's pizza. The Plaintiff brings the action under the Fair Labor Standards Act, the Michigan Minimum Wage Law, and the Michigan Workforce Opportunity Wage Act to recover unpaid wages owed to him and similarly situated Hungry Howie's delivery drivers employed by Defendants. Id. Defendants filed an answer on August 31, 2016 denying the allegations and asserting affirmative defenses. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=EIvBmwzz ZODIAC U.S.: $952,000 Settlement in "Cuzick" Case Has Initial OK ---------------------------------------------------------------- In the lawsuit styled KYLE CUZICK, the Plaintiff, v. ZODIAC U.S. SEAT SHELLS, LLC, the Defendant, Case No. 4:16-cv-03793-HSG (N.D. Cal.), the Hon. Judge Haywood S. Gilliam, Jr. entered an order: 1. granting Plaintiff's motion for preliminary approval of class action settlement on behalf of: "all individuals who were employed at any time by Defendant in California as non-exempt employees between May 25, 2012, and the date of this order"; and 2. directing parties to meet and confer and stipulate to a schedule of dates for each event, which shall be submitted to the Court along with a proposed order within seven days of the date of this Order,. The parties have represented that there are approximately 1,168 individuals who fall within the class period. Monetary Relief: Defendant will establish a gross settlement fund consisting of $952,000. The parties have estimated that individual class members' gross recovery, before deductions for taxes, fees, and other costs, will be approximately $800. The parties propose that civil penalties of $10,000 will be paid to the California Labor and Workforce Development Agency ("LWDA") as penalties related to Plaintiff's PAGA claim. The gross settlement fund accordingly includes Court-approved attorneys' fees and costs, settlement administration fees, the LWDA payment, and any additional incentive award to Plaintiff as class representative. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=c0C3FsQS * Supreme Court Hearing over Class Action Waiver Begins ------------------------------------------------------- Brandi Buchman, writing for Courthouse News Service, reported that Supreme Court Justice Stephen Breyer took a stand for workers at a hearing on October 2, as the Supreme Court kicked off its October term with a focus on employment arbitration agreements. Showcasing his animated style, Breyer leaned forward on the bench to argue that siding with employers on class action waivers would upend "the entire heart of the New Deal," referencing the series of protections launched under President Franklin Roosevelt to aid workers during the hard times of the Great Depression. In the near century since the New Deal came into force, class action lawsuits have been a critical tool for employees to protect their rights or assert leverage in the workplace. The Supreme Court session involved class action waivers that Ernst & Young, Murphy Oil USA and Epic Systems Corp. had their employees sign as a condition of employment. The Ernst & Young case sprang from allegations by Stephen Morris and Kelly McDaniel that they were misclassified on employee records to deny them overtime. Though the waivers they signed required mediation, Morris and McDaniel called the process unfairly complex and prohibitively expensive. One employee who brought unrelated claims against Ernst & Young incurred costs of $200,000 to go through the company's "Common Ground Program" for arbitration. Those costs far outweighed the benefit, as the employee recovered a mere $1,800 in the end. Justice Ruth Bader Ginsburg echoed Breyer's position, likening employee agreements with class action waivers to "yellow dog contracts" or agreements between employers and employees where the worker agrees, as a condition of employment, not to join a labor union. "You recognize that this contract . . . there is no true bargaining," Ginsburg said, addressing one of the attorneys for the employers. "It's the employer [that] says you want to work here, you sign this . . . this has all the same essential features of the yellow-dog contract. That is, there is no true liberty to contract on part of the employee. Referencing the legislation that banned yellow-dog contracts in 1932, Ginsburg said, "that's what Norris-LaGuardia wanted to exclude." Justice Anthony Kennedy meanwhile spoke to the other avenues of relief available to any employees who signed class action waivers. Nothing would stop these employees from "acting in concert" by hiring the same attorney to bring the same claims, he said, even if arbitrated individually. The Trump administration has taken a similar tack, largely supporting company agreements that force workers to go to arbitration for disputes on a case-by-case basis versus bringing a suit in a class action. Justice Neil Gorsuch, who joined the bench on Trump's appointment in April, said nothing during the morning's arguments. Justice Ginsburg pressed Paul Clement, the attorney for Ernst & Young and Epic Systems, on whether other common parts of employee agreements, like confidentiality clauses, would impact workers' rights. A former U.S. solicitor general, Clement began by conceding that a person does have the right to concerted activity. "In the sense that three or more employees could decide that they want to go to the arbitral forum and they would arbitrate individually," he said. He agreed with Justice Kennedy's point that sharing a lawyer could help. "They also have other options," Clement added. Justice Ginsburg jumped in before he could go further, asking Clement directly if confidentiality agreements "put a damper" on how workers can bring suit against their employer. "Well, they can proceed very jointly before they get there," he said. "The confidentiality agreement's not going to stop the same lawyer from thinking about the three cases in conjunction." Justice Elena Kagan interrupted. "Mr. Clement, usually, usually when you have a right, the fact that there is one way to exercise a right left over does not make it OK if we've taken away another 25 ways of exercising that right," she said. Illustrating her example, Kagan asked the court to consider the First Amendment. "You know, when we think about the First Amendment, we don't say we can ban leafleting because you can always write an op-ed," she said. "And the same thing applies here. The fact that there's something left over by way of concerted activity does not make it okay under Section 7 and Section 8 [of the Fair Labor Standards Act] to deprive employees of many other means of protected activity." Asbestos Litigation ASBESTOS UPDATE: BNSF Railway Still Faces PI Claims at June 30 -------------------------------------------------------------- BNSF Railway Company still faces a number of asbestos-related personal injury 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, "The Company is party to a number of personal injury claims by employees and non-employees who may have been exposed to asbestos. The heaviest exposure for certain BNSF Railway employees was due to work conducted in and around the use of steam locomotive engines that were phased out between the years of 1950 and 1967. However, other types of exposures, including exposure from locomotive component parts and building materials, continued after 1967 until they were substantially eliminated at BNSF Railway by 1985. "BNSF Railway assesses its unasserted asbestos liability exposure on an annual basis during the third quarter. BNSF Railway determines its asbestos liability by estimating its exposed population, the number of claims likely to be filed, the number of claims that will likely require payment and the estimated cost per claim. Estimated filing and dismissal rates and average cost per claim are determined utilizing recent claim data and trends. "Throughout the year, BNSF Railway monitors actual experience against the number of forecasted claims and expected claim payments and will record adjustments to the Company's estimates as necessary. "Based on BNSF Railway's estimate of the potentially exposed employees and related mortality assumptions, it is anticipated that unasserted asbestos claims will continue to be filed through the year 2050. The Company recorded an amount for the full estimated filing period through 2050 because it had a relatively finite exposed population (former and current employees hired prior to 1985), which it was able to identify and reasonably estimate and about which it had obtained reliable demographic data (including age, hire date and occupation) derived from industry or BNSF Railway specific data that was the basis for the study. BNSF Railway projects that approximately 65, 80 and 95 percent of the future unasserted asbestos claims will be filed within the next 10, 15 and 25 years, respectively." A full-text copy of the Form 10-Q is available at https://is.gd/BCiAim BNSF Railway Company operates one of the largest freight railroad networks in North America with 32,500 miles of rail across the western two-thirds of the United States. The Company is headquartered in Fort Worth, Texas. ASBESTOS UPDATE: Ashland Had 55,000 Open Claims at June 30 ---------------------------------------------------------- For the nine months ended June 30, 2017, there were 55,000 open claims against Ashland Global Holdings, Inc., 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, "The claims alleging personal injury caused by exposure to asbestos asserted against Ashland result primarily from indemnification obligations undertaken in 1990 in connection with the sale of Riley Stoker Corporation, a former subsidiary. The amount and timing of settlements and number of open claims can fluctuate from period to period. "From the range of estimates, Ashland records the amount it believes to be the best estimate of future payments for litigation defense and claim settlement costs, which generally approximates the mid-point of the estimated range of exposure from model results. Ashland reviews this estimate and related assumptions quarterly and annually updates the results of a non-inflated, non- discounted approximate 50-year model developed with the assistance of HR&A. "During the most recent annual update of this estimate completed during the June 2017 quarter, it was determined that the liability for Ashland asbestos-related claims should be increased by $36 million. Total reserves for asbestos claims were $424 million at June 30, 2017 compared to $415 million at September 30, 2016. "Ashland has insurance coverage for certain litigation defense and claim settlement costs incurred in connection with its asbestos claims, and coverage-in-place agreements exist with the insurance companies that provide substantially all of the coverage that will be accessed. "For the Ashland asbestos-related obligations, Ashland has estimated the value of probable insurance recoveries associated with its asbestos reserve based on management's interpretations and estimates surrounding the available or applicable insurance coverage, including an assumption that all solvent insurance carriers remain solvent. Substantially all of the estimated receivables from insurance companies are expected to be due from domestic insurers, all of which are solvent. "At June 30, 2017, Ashland's receivable for recoveries of litigation defense and claim settlement costs from insurers amounted to $156 million (excluding the Hercules receivable for asbestos claims), of which $4 million relates to costs previously paid. Receivables from insurers amounted to $151 million at September 30, 2016. During the June 2017 quarter, the annual update of the model used for purposes of valuing the asbestos reserve and its impact on valuation of future recoveries from insurers was completed. This model update resulted in a $15 million increase in the receivable for probable insurance recoveries. "Ashland entered into settlement agreements totaling $5 million and $4 million with certain insurers during the nine months ended June 30, 2017 and 2016, respectively, which resulted in a reduction of the Ashland insurance receivable within the Condensed Consolidated Balance Sheets by the same amount. During the nine months ended June 30, 2017 and 2016, Ashland placed $2 million and $4 million, respectively, of the settlement funds into the renewable annual trust." For the nine months ended June 30, 2017, Ashland had $156 million in insurance receivable. A full-text copy of the Form 10-Q is available at https://is.gd/gTV2b1 Ashland Global Holdings Inc. provides specialty chemical solutions worldwide. ASBESTOS UPDATE: Hercules Had 12,000 Open Claims at June 30 ----------------------------------------------------------- Hercules LLC, an indirect wholly owned subsidiary of Ashland Global Holdings, Inc., had 12,000 open claims for the nine months ended June 30, 2017, according to Ashland's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The Company states, "Hercules has liabilities from claims alleging personal injury caused by exposure to asbestos. Such claims typically arise from alleged exposure to asbestos fibers from resin encapsulated pipe and tank products which were sold by one of Hercules' former subsidiaries to a limited industrial market. The amount and timing of settlements and number of open claims can fluctuate from period to period. "From the range of estimates, Ashland records the amount it believes to be the best estimate of future payments for litigation defense and claim settlement costs, which generally approximates the mid-point of the estimated range of exposure from model results. Ashland reviews this estimate and related assumptions quarterly and annually updates the results of a non-inflated, non- discounted approximate 50-year model developed with the assistance of HR&A. As a result of the most recent annual update of this estimate, completed during the June 2017 quarter, it was determined that the liability for Hercules asbestos-related claims should be increased by $16 million. Total reserves for asbestos claims were $328 million at June 30, 2017 compared to $321 million at September 30, 2016. "For the Hercules asbestos-related obligations, certain reimbursement obligations pursuant to coverage-in-place agreements with insurance carriers exist. As a result, any increases in the asbestos reserve have been partially offset by probable insurance recoveries. Ashland has estimated the value of probable insurance recoveries associated with its asbestos reserve based on management's interpretations and estimates surrounding the available or applicable insurance coverage, including an assumption that all solvent insurance carriers remain solvent. The estimated receivable consists exclusively of solvent domestic insurers. "As of June 30, 2017, and September 30, 2016, the receivables from insurers amounted to $68 million and $63 million, respectively. During the June 2017 quarter, the annual update of the model used for purposes of valuing the asbestos reserve and its impact on valuation of future recoveries from insurers was completed. This model update resulted in a $5 million increase in the receivable for probable insurance recoveries. "Projecting future asbestos costs is subject to numerous variables that are extremely difficult to predict. In addition to the significant uncertainties surrounding the number of claims that might be received, other variables include the type and severity of the disease alleged by each claimant, the long latency period associated with asbestos exposure, mortality rates, dismissal rates, costs of medical treatment, the impact of bankruptcies of other companies that are co-defendants in claims, uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, and the impact of potential changes in legislative or judicial standards. Furthermore, any predictions with respect to these variables are subject to even greater uncertainty as the projection period lengthens. In light of these inherent uncertainties, Ashland believes that the asbestos reserves for Ashland and Hercules represent the best estimate within a range of possible outcomes. As a part of the process to develop these estimates of future asbestos costs, a range of long-term cost models was developed. These models are based on national studies that predict the number of people likely to develop asbestos-related diseases and are heavily influenced by assumptions regarding long-term inflation rates for indemnity payments and legal defense costs, as well as other variables mentioned previously. Ashland has currently estimated in various models ranging from approximately 40 to 50 year periods that it is reasonably possible that total future litigation defense and claim settlement costs on an inflated and undiscounted basis could range as high as approximately $660 million for the Ashland asbestos- related litigation (current reserve of $424 million) and approximately $510 million for the Hercules asbestos-related litigation (current reserve of $328 million), depending on the combination of assumptions selected in the various models. If actual experience is worse than projected, relative to the number of claims filed, the severity of alleged disease associated with those claims or costs incurred to resolve those claims, or actuarial refinement or improvements to the assumptions used within these models are initiated, Ashland may need to further increase the estimates of the costs associated with asbestos claims and these increases could be material over time." A full-text copy of the Form 10-Q is available at https://is.gd/gTV2b1 Ashland Global Holdings Inc. provides specialty chemical solutions worldwide. ASBESTOS UPDATE: Gardner Insurance Coverage Suit at Phase II ------------------------------------------------------------ An insurance coverage lawsuit against Certain Underwriters at Lloyd's, London, et al., is now proceeding at Phase II discovery process, according to Gardner Denver Holdings, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2017. The Company states, "The Company has also been named as a defendant in a number of asbestos-related and silica-related personal injury lawsuits. The plaintiffs in these suits allege exposure to asbestos or silica from multiple sources and typically the Company is one of approximately 25 or more named defendants. "Predecessors to the Company sometimes manufactured, distributed and/or sold products allegedly at issue in the pending asbestos and silica-related lawsuits (the "Products"). However, neither the Company nor its predecessors ever mined, manufactured, mixed, produced or distributed asbestos fiber or silica sand, the materials that allegedly caused the injury underlying the lawsuits. Moreover, the asbestos-containing components of the Products, if any, were enclosed within the subject Products. "Although the Company has never mined, manufactured, mixed, produced or distributed asbestos fiber or silica sand nor sold products that could result in a direct asbestos or silica exposure, many of the companies that did engage in such activities or produced such products are no longer in operation. This has led to law firms seeking potential alternative companies to name in lawsuits where there has been an asbestos or silica related injury. "The Company believes that the pending and future asbestos and silica-related lawsuits are not likely to, in the aggregate, have a material adverse effect on its consolidated financial position, results of operations or liquidity, based on: the Company's anticipated insurance and indemnification rights to address the risks of such matters; the limited potential asbestos exposure from the Products described above; the Company's experience that the vast majority of plaintiffs are not impaired with a disease attributable to alleged exposure to asbestos or silica from or relating to the Products or for which the Company otherwise bears responsibility; various potential defenses available to the Company with respect to such matters; and the Company's prior disposition of comparable matters. However, inherent uncertainties of litigation and future developments, including, without limitation, potential insolvencies of insurance companies or other defendants, an adverse determination in the Adams County Case (discussed below), or other inability to collect from the Company's historical insurers or indemnitors, could cause a different outcome. While the outcome of legal proceedings is inherently uncertain, based on presently known facts, experience, and circumstances, the Company believes that the amounts accrued on its balance sheet are adequate and that the liabilities arising from the asbestos and silica-related personal injury lawsuits will not have a material adverse effect on the Company's consolidated financial position, results of operations or liquidity. "Accrued liabilities" and "Other liabilities" on the Condensed Consolidated Balance Sheet include a total litigation reserve of $104.3 million and $108.5 million as of June 30, 2017 and December 31, 2016 respectively, with respect to potential liability arising from the Company's asbestos-related litigation. Asbestos related defense costs are excluded from the asbestos claims liability and are recorded separately as services are incurred. In the event of unexpected future developments, it is possible that the ultimate resolution of these matters may be material to the Company's consolidated financial position, results of operation or liquidity. "The Company has entered into a series of agreements with certain of its or its predecessors' legacy insurers and certain potential indemnitors to secure insurance coverage and/or reimbursement for the costs associated with the asbestos and silica-related lawsuits filed against the Company. The Company has also pursued litigation against certain insurers or indemnitors, where necessary. The Company has an insurance recovery receivable for probable asbestos related recoveries of approximately $97.3 million and $97.3 million as of June 30, 2017 and December 31, 2016 which was included in "Other assets" on the Condensed Consolidated Balance Sheets. "The largest such recent action, Gardner Denver, Inc. v. Certain Underwriters at Lloyd's, London, et al., was filed on July 9, 2010, in the Eighth Judicial Circuit, Adams County, Illinois, as case number 10-L-48 (the "Adams County Case"). In the lawsuit, the Company seeks, among other things, to require certain excess insurer defendants to honor their insurance policy obligations to the Company, including payment in whole or in part of the costs associated with the asbestos-related lawsuits filed against the Company. In October 2011, the Company reached a settlement with one of the insurer defendants, which had issued both primary and excess policies, for approximately the amount of such defendant's policies which were subject to the lawsuit. Since then, the case has been proceeding through the discovery and motions process with the remaining insurer defendants. On January 29, 2016, the Company prevailed on the first phase of that discovery and motions process ("Phase I"). Specifically, the Court in the Adams County Case ruled that the Company has rights under all of the policies in the case, subject to their terms and conditions, even though the policies were sold to the Company's former owners rather than to the Company itself. On June 9, 2016, the Court denied a motion by several of the insurers who sought permission to appeal the Phase I ruling now rather than waiting until the end of the whole case as is normally required. The case is now proceeding through the discovery process regarding the remaining issues in dispute ("Phase II"). "A majority of the Company's expected future recoveries of the costs associated with the asbestos-related lawsuits are the subject of the Adams County Case. "The amounts recorded by the Company for asbestos-related liabilities and insurance recoveries are based on currently available information and assumptions that the Company believes are reasonable based on an evaluation of relevant factors. The actual liabilities or insurance recoveries could be higher or lower than those recorded if actual results vary significantly from the assumptions. There are a number of key variables and assumptions including the number and type of new claims to be filed each year, the resolution or outcome of these claims, the average cost of resolution of each new claim, the amount of insurance available, allocation methodologies, the contractual terms with each insurer with whom the Company has reached settlements, the resolution of coverage issues with other excess insurance carriers with whom the Company has not yet achieved settlements, and the solvency risk with respect to the Company's insurance carriers. Other factors that may affect the future liability include uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, legal rulings that may be made by state and federal courts, and the passage of state or federal legislation. The Company makes the necessary adjustments for the asbestos liability and corresponding insurance recoveries on an annual basis unless facts or circumstances warrant assessment as of an interim date." A full-text copy of the Form 10-Q is available at https://is.gd/nt3ltx Gardner Denver, Inc. (Gardner Denver) designs, manufactures and markets engineered industrial machinery and related parts and services. The Company is a global manufacturer of engineered compressors and vacuum products for industrial applications. Stationary air compressors are used to pressurize gas, including air, in excess of 50 pounds per square inch gauge and are used in manufacturing, process applications and materials handling, and to power air tools and equipment. Blowers and liquid ring pumps compress gas, including air, up to 50 pounds per square inch gauge and are often used in vacuum applications. Blowers are used in pneumatic conveying, wastewater aeration and engineered vacuum systems. Liquid ring pumps are sold as part of an engineered package and are used in process applications, such as power generation, chemical processing and oil and gas refining. ASBESTOS UPDATE: ITT Units Had 27,000 Claims Pending at June 30 --------------------------------------------------------------- ITT Inc.'s subsidiaries had 27,000 pending claims 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 says, "Subsidiaries of ITT, including ITT LLC and Goulds Pumps LLC, have been sued, along with many other companies in product liability lawsuits alleging personal injury due to asbestos exposure. These claims generally allege that certain products sold by our subsidiaries prior to 1985 contained a part manufactured by a third party (e.g., a gasket) which contained asbestos. To the extent these third-party parts may have contained asbestos, it was encapsulated in the gasket (or other) material and was non-friable. As of June 30, 2017, there were approximately 27 thousand pending claims against ITT subsidiaries, including Goulds Pumps LLC, filed in various state and federal courts alleging injury as a result of exposure to asbestos. "Frequently, plaintiffs are unable to identify any ITT LLC or Goulds Pumps LLC products as a source of asbestos exposure. Our experience to date is that a majority of resolved claims are dismissed without any payment from ITT subsidiaries. Management believes that a large majority of the pending claims have little or no value. In addition, because claims are sometimes dismissed in large groups, the average cost per resolved claim can fluctuate significantly from period to period. ITT expects more asbestos- related suits will be filed in the future, and ITT will continue to aggressively defend or seek a reasonable resolution, as appropriate. "Asbestos litigation is a unique form of litigation. Frequently, the plaintiff sues a large number of defendants and does not state a specific claim amount. After filing complaint, the plaintiff engages defendants in settlement negotiations to establish a settlement value based on certain criteria, including the number of defendants in the case. Rarely do the plaintiffs seek to collect all damages from one defendant. Rather, they seek to spread the liability, and thus the payments, among many defendants. As a result of this and other factors, the Company is unable to estimate the maximum potential exposure to pending claims and claims estimated to be filed over the next 10 years. Estimating our exposure to pending asbestos claims and those that may be filed in the future is subject to significant uncertainty and risk as there are multiple variables that can affect the timing, severity, quality, quantity and resolution of claims. Any predictions with respect to the variables impacting the estimate of the asbestos liability and related asset are subject to even greater uncertainty as the projection period lengthens. In light of the variables and uncertainties inherent in the long-term projection of the Company's asbestos exposures, although it is probable that the Company will incur additional costs for asbestos claims filed beyond the next 10 years, which additional costs may be material, we do not believe there is a reasonable basis for estimating those costs at this time. "The asbestos liability and related receivables reflect management's best estimate of future events. However, future events affecting the key factors and other variables for either the asbestos liability or the related receivables could cause actual costs or recoveries to be materially higher or lower than currently estimated. Due to these uncertainties, as well as our inability to reasonably estimate any additional asbestos liability for claims which may be filed beyond the next 10 years, it is difficult to predict the ultimate cost of resolving all pending and unasserted asbestos claims. We believe it is possible that future events affecting the key factors and other variables within the next 10 years, as well as the cost of asbestos claims filed beyond the next 10 years, net of expected recoveries, could have a material adverse effect on our financial statements. "As part of our ongoing review of our net asbestos exposure, each quarter we assess the most recent qualitative and quantitative data available for the key inputs and assumptions, comparing the data to expectations on which the most recent annual liability and asset estimates were calculated. Based on this evaluation, the Company determined that no change in the estimate was warranted for the quarter ended June 30, 2017 other than the incremental accrual to maintain a rolling 10-year forecast period. A net asbestos charge of $14.9 and $29.8 was recognized in the three and six months ended June 30, 2017 and $15.2 and $30.6 in the three and six months June 2016, respectively, to maintain the 10-year forecast period. "During the second quarter of 2016, the company was able to transition all remaining claims to our single defense firm in connection with the change in defense strategy initiated in 2015. As a result, we reduced our estimated liability by $4.9 during the second quarter of 2016. "During the first quarter of 2016, we entered into a settlement agreement with an insurer to settle responsibility for multiple insurance claims, resulting in a benefit of $2.6. During the second quarter of 2016, ITT entered into a settlement agreement (Settlement) with an insurer to settle responsibility for multiple insurance claims. Under the terms of the Settlement, the insurer agreed to a specified series of payments over the course of the next five years to a Qualified Settlement Fund, resulting in a loss of $4.7." A full-text copy of the Form 10-Q is available at https://is.gd/WSNOBJ ASBESTOS UPDATE: 3rd Cir. Invalidates Bare Metal Defense -------------------------------------------------------- P.J. Dannunzio, writing for The Legal Intelligencer, reported that if a manufacturer ships an engine without a gasket and the buyer replaces it with an asbestos-laden part, is the manufacturer liable for any resulting injuries? In an apparent issue of first impression, the U.S. Court of Appeals for the Third Circuit said yes. The court's decision came in the lawsuits of two widows of U.S. Navy sailors who contracted cancer from exposure to asbestos. In its ruling, the court scrapped the bare-metal defense -- an argument that says if a manufacturer makes a product without asbestos, and asbestos is later added to it, the manufacturer cannot be held liable for the consequences. Third Circuit Judge Thomas I. Vanaskie wrote in the court's opinion that the U.S. Supreme Court has not addressed the issue. "In that void, we survey bedrock principles of maritime law and conclude that they permit a manufacturer of even a bare-metal product to be held liable for asbestos-related injuries when circumstances indicate the injury was a reasonably foreseeable result of the manufacturer's actions -- at least in the context of a negligence claim," Judge Vanaskie said. "The district court had instead applied the bright-line rule approach and entered summary judgment against the plaintiffs," the judge continued. "We will vacate the entry of summary judgment on the plaintiffs' negligence claims, affirm the entry of summary judgment on the plaintiffs' product liability claims (which we conclude were abandoned on appeal), and will remand, for further proceedings." Richard P. Myers of Paul, Reich & Myers represented the plaintiffs, Roberta G. Devries and Shirley McAfee. Mr. Myers can be reached at: Richard P. Myers, Esq. PAUL, REICH & MYERS 1608 Walnut Street, Suite 500 Philadelphia, PA 19103 Fax: 215-735-3888 Tel: 215-735-9200 Email: info@prmpclaw.com "We believe that the Third Circuit got it right when it ruled that machinery manufacturers are responsible in negligence for asbestos-containing wear products used in their machinery," Myers said in an email. "The court validated maritime law's 'special solicitude for the safety and protection of sailors.' We look forward to trying these cases in the district court on remand." Shay Dvoretzky of Jones Day argued the case for the manufacturing defendants and did not respond to a request for comment. The central debate on the bare-metal defense, according to Judge Vanaskie, hinged on the foreseeability of harm caused by a defendant's product and then went into whether that foreseeability was governed by rules or standards. "A rule is a legal directive that attempts to capture a background principle into an easy-to-apply form that is predictable and efficient," like a speed limit, Judge Vanaskie said. The downside, he noted, is that they are imperfect; for example, drivers can be punished for speeding safely while slow drivers cannot even if they "amble along haphazardly." "A standard, on the other hand, collapses the background principle into the actual legal directive, resulting in better accuracy and 'fit' with the underlying purpose, and fewer errors of over- and under-inclusion," but with the drawback of being less predictable and efficient, Judge Vanaskie said. However, in the case of maritime law, the Third Circuit favored the standard approach. "The special solicitude for the safety and protection of sailors is dispositive, because it counsels us to follow the standard- based approach, and none of the other principles weigh heavily in either direction," Judge Vanaskie said. "The standard-based approach is the one we will therefore follow: foreseeability is the touchstone of the bare-metal defense; a manufacturer of a bare-metal product may be held liable for a plaintiff's injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff's injuries were a reasonably foreseeable result of the manufacturer's failure to provide a reasonable and adequate warning." ASBESTOS UPDATE: Central Indiana Court Vacated for Remediation -------------------------------------------------------------- The Associated Press reported that county employees are moving out of a courthouse in central Indiana to allow for asbestos remediation work. Madison County will vacate the downtown Anderson building for seven months, The Herald Bulletin reported. The county's Board of Commissioners approved an agreement with Anderson University to lease space at two locations for more than $30,000 a month. Relocated offices include the court system and clerk's office. "It was difficult to find a place to fit everyone and continue for the work to be done," said Steffanie Owens, a county commissioner. "This is not perfect, but was our best option." Asbestos was first discovered in the courthouse in October 2016. A survey by HydroTech Environmental Consulting & Engineering found asbestos on sprayed-on fireproofing material in the building. The fireproofing material was used on structural steel beams and columns in the building, on ceilings and walls in various rooms, and on plumbing pipes. A further inspection found the asbestos could become airborne if it's disturbed. In addition to removing asbestos, work will also include new fireproofing, carpeting, lighting and paint in county offices. The remediation and temporary office relocation is expected to cost about $2 million. The county will provide security and housekeeping at the new locations. The university will cover utility costs. Officials say the courthouse will be closed to the public starting Nov. 27. All employees will be out of the building by the time remediation work begins on Dec. 4. The building is expected to reopen in June 30. ASBESTOS UPDATE: Phila Ct. Rejects Methods for Detecting Asbestos ----------------------------------------------------------------- Max Mitchell, writing for The Legal Intelligencer, reported that methods two experts used to detect asbestos in talcum powder were not scientifically rigorous enough to allow those experts to testify in court, a Pennsylvania judge has ruled in a case that attorneys have said is likely the first of its kind in the Keystone State. Philadelphia Court of Common Pleas Judge Idee Fox agreed with the defendants in Brandt v. The Bon-Ton Stores that the plaintiffs' pathology expert, Dr. Ronald Gordon, and their geology and microscopy expert, Sean Fitzgerald, used experimental, and in one case "inherently unscientific," methods when testing for the presence of asbestos in the talcum powder at issue. Fox determined that both experts did not pass muster under the Frye test, and granted the defendants motions to preclude their testimony. "This court finds that the methodologies employed by both Mr. Fitzgerald and Dr. Gordon are not generally accepted in the relevant scientific community," Fox said. "Although each employed some generally accepted methodologies, each modified, varied or deviated from those generally accepted methodologies." Brandt is being handled in Philadelphia's asbestos program, and stems from claims that talcum powder plaintiff Sally Brandt used between 1954 and 1970 contained asbestos, which caused her to develop mesothelioma. Although not as eye-catching as the verdicts against Johnson & Johnson in talc-related ovarian cancer cases, over the past few years plaintiffs with talc-related mesothelioma claims have won significant verdicts. In 2013, a New Jersey jury awarded a $1.6 million verdict over asbestos-related talc claims. That number was shattered with the reportedly record-setting $18 million verdict a Los Angeles jury awarded in October, and, most recently, a New York jury hit defendants with a $16.5 million verdict. Attorneys recently told The Legal there are a handful of talc- related mesothelioma cases being handled in Pennsylvania, and that the dispute over the experts' methodologies in Brandt was the first instance that a Pennsylvania court was able to review the issue. According to Fox, both Gordon and Fitzgerald used some generally accepted methodologies, but improperly modified those standards in a way that led to questionable results. Fitzgerald, for example, used a "mishmash" of methodologies, but admitted that if he used talc testing methods accepted by the U.S. Food and Drug Administration he probably would not have found asbestos, Fox said. Also, when performing the research to develop his opinion on causation, Gordon used smaller than usual tissue samples, a smaller than typical control population, and extrapolated his findings, according to Fox. The plaintiffs argued the different methodologies should still be put to the jury, but Fox disagreed. "Although plaintiff contends this is a question of weight as to the opinions of dueling experts, this court finds it to be a question of admissibility involving scientific opinion and generally accepted methodologies," Fox said. "Under Pennsylvania law, this court finds that Mr. Fitzgerald and Dr. Gordon employed methodologies not generally accepted in the relevant scientific community." Defendants in the case include Imerys Talc America, Colgate- Palmolive, and Whittaker, Clark & Daniels. Attorney Theresa Mullaney, Esq. -- tmullaney@kentmcbride.com -- of Kent & McBride is representing Palmolive; Rawle & Henderson attorney John C. McMeekin II, Esq. -- jmcmeekin@rawle.com -- is representing Imerys Talc America; and Steven Bardsley, Esq. -- sbardsley@hoaglandlongo.com -- of Hoagland, Longo, Moran, Dunst & Doukas is representing Whittaker, Clark & Daniels. The Brandts is represented by: Patrick Wigle, Esq. WATERS KRAUS & PAUL 3141 Hood Street, Suite 700 Dallas, TX 75219 Tel: 214.357.6244 Fax: 214.357.7252 ASBESTOS UPDATE: Solons Seek Clarity on Cases in Baltimore ---------------------------------------------------------- Meredith Cohn, writing for The Baltimore Sun, reported that Maryland state lawmakers, concerned about a years-long backlog of asbestos cases lingering in Baltimore City courts, sought clarity from attorneys who represent those sickened by the insulating material and lawyers who represent industry. But the sides could not agree on the number of people awaiting their day in court -- or even whether there is a backlog at all. "One side says there are thousands of cases ready for trial and one side says there are zero," said state Sen. Robert A. "Bobby" Zirkin, the Baltimore County Democrat who chairs the Senate Judicial Proceedings Committee. "Both can't be true." Zirkin said he called the hearing because Baltimore courts have long struggled to clear asbestos cases, largely from workers at the seaport, in shipbuilding and construction trades who were exposed to the carcinogenic material and got or feared getting cancer or other, non-cancerous illnesses. He wanted to hear if a recent change in the method of funneling cases through a special court docket was working and if there was any legislative measure that could smooth the process. After two and a half hours of testimony, he asked both sides to send him briefs so he and other lawmakers could sort through their arguments. Lawyers from the Law Offices of Peter G. Angelos, which made a name and a fortune beginning decades ago litigating asbestos injury cases, said there were more than 22,000 active cases in the Baltimore courts. They said there might also be 7,000 inactive cases, in which people who were exposed to asbestos on the job were reserving the right to file a lawsuit if they became sick later. If the firm was able to staff every case and fill the hundreds of trial slots every year, lawyer Armand J. Volta Jr. said, it would still take decades more to clear them all. Volta said the firm planned to revisit an attempt made years ago -- and rejected by the courts -- to consolidate the cases and push them through en masse. In the meantime, he said, more court resources might help. Venable LLP attorney Theodore F. Roberts represented the Wallace & Gale Asbestos Settlement Trust, which was set up by the former Baltimore contractor in bankruptcy following a large number of asbestos claims. Roberts said Tuesday that firms such as Angelos' were not even asking the courts to schedule cases in open court dates in the city and surrounding jurisdictions. Instead, he said, "They want the courts or legislature to build them a superhighway" to push through cases, some of which might not have merit. Roberts said the solution was to allow the cases to go through the normal process, which has been amended to allow for attorney conferences to move cases more quickly in small groups to trial or other resolution. Judge W. Michel Pierson, a Baltimore City Circuit Court administrative judge who also testified, agreed that the new system was helping clear cases more quickly. He said more than 180 cases in 2016 and more than 250 in 2017 were resolved this way. But he, too, could not clarify exactly how many cases were pending. He said many were resolved but never cleared from the court system, and the courts were working to identify them now and close them. He said the system will continue to work out the kinks and clear more cases. "I don't mean to put this forward as great progress, but it's a beginning of a process that began in 2014," he said. "We're in the process of getting cases resolved." ASBESTOS UPDATE: Contractor Sues Montana for Inaction on Dumping ---------------------------------------------------------------- The Associated Press reported that an asbestos-disposal contractor is taking Montana environmental officials to court for failing to crack down on the improper disposal of asbestos, a commonly used and potentially deadly building material. Ingraham Environmental of Butte said in a lawsuit filed in state District Court in Silver Bow-Butte County that asbestos-containing material is being dumped in open-air sites at Montana landfills. That poses a danger to workers and anyone who breathes in the air around the dumps, the company alleged. "We have the laws on the books," Doug Ingraham of Ingraham Environmental told The Montana Standard. "We think the rules protect us, but there's no enforcement." Attorneys for the Montana Department of Environmental Quality said in response that the agency was not required to more aggressively enforce laws on asbestos disposal. The case is before Judge Brad Newman. Montana's laws are quite strict -- even more stringent than federal regulations -- regarding the disposal of asbestos. The fibrous material can cause pulmonary diseases including mesothelioma, a cancer of the lining of the lung with a near-100 percent fatality rate. State regulations require asbestos to be treated differently than common waste. However, the primary responsibility for compliance is placed on the building owner. In its initial answer to the lawsuit, DEQ attorneys did not deny that the unregulated asbestos dumping described in the lawsuit was occurring. But they said landfill operators and building owners were accountable -- not the state. DEQ public policy director Kristi Ponozzo said the agency was working with representatives of the asbestos industry to address complexities within the state and federal laws that govern asbestos regulation. The agency convened an asbestos advisory group last year to help increase awareness and compliance with disposal rules, she said. Asbestos already has taken a huge human and financial toll in Montana, most notably in the town of Libby, where health officials say contamination from asbestos-tainted vermiculite has killed hundreds of people and sickened thousands. The vermiculite came from a W.R. Grace mine that for decades produced material for Zonolite insulation, which was sold widely in Montana and other states. The U.S. Environmental Protection Agency has spent more than $575 million cleaning up almost 2,500 residential and commercial properties in Libby and surrounding areas. But it has done little to address the problems that arise elsewhere when structures with Zonolite are demolished or remodeled. Ingraham said such work poses an enduring danger for construction, demolition and landfill workers as well as anyone else in the vicinity when asbestos fibers are released into the air. Ingraham's family has been in the asbestos abatement business since the 1980s. His father, Bruce, was trained by people who have since died of asbestos-related disease, he said. "We're not asking for new rules," Ingraham said. "We're just asking that DEQ assume responsibility." ASBESTOS UPDATE: Woman Who Ate Asbestos as Child Has Rare Cancer ---------------------------------------------------------------- Joe Roberts for Metro.co.uk reported that a young woman has been diagnosed with an asbestos-related cancer which usually affects much older male builders. Danielle Smalley, 23, is mystified by how she was exposed to the deadly substance, reasoning that she must have eaten some of it as a young child. She now has to freeze her eggs as she faces 'hot' chemotherapy treatment that will leave her infertile. The client manager from Aldershot, in Hampshire, had never even heard of asbestos until she was diagnosed with mesothelioma. Doctors told Danielle that her variation of the cancer means she must have ingested the banned heat-resistant material in her youth. Both parents, Amanda, 47, and Simon, 51, never knowingly came into contact with asbestos in their work running an alarm fitting business, the Daily Mirror reports. Which only adds to the mystery of how Danielle came into contact with it. 'It takes 20 years to have an effect, I'd have been two or three when I had it. It's rare in women, rarer at my age. Usually it's older men in the building trade,' Danielle said. 'We looked up my primary school, but didn't find anything. It's unlikely we'll ever find out where the asbestos was. 'I've just been incredibly unlucky.' Only two other similar cases have been reported since 2009, in a condition usually diagnosed in older male builders. The substance was regularly used on building sites before its total ban in 1999. Doctors at Frimley Park Hospital, in Surrey, discovered her condition after finding tumours behind her bowel. They thought she was suffering with irritable bowel syndrome at first. But now, Danielle will have her organs 'washed' using revolutionary heated chemotherapy drugs. Over 3,000 cases of asbestos-related cancer are diagnosed every year. ASBESTOS UPDATE: Industry Upset with Higher Asbestos Verdicts ------------------------------------------------------------- Jessica Karmasek, writing for Forbes.com, reported that the business community and legal reform groups are fighting a decision that exposes asbestos defendants to higher verdicts in New York City. Last week, several civil justice reform groups, policy and business organizations and insurers filed a brief in a New York intermediate appellate court, arguing a recent case management order governing all New York City asbestos litigation should be vacated. The 32-page amicus brief was filed in the New York Supreme Court's Appellate Division, First Department. Those groups joining the brief are: The Business Council of New York State Inc., Lawsuit Reform Alliance of New York, New York Insurance Association Inc., Northeast Retail Lumber Association, Coalition for Litigation Justice Inc., U.S. Chamber of Commerce, National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, American Tort Reform Association, Washington Legal Foundation and American Insurance Association. The U.S. Chamber Institute for Legal Reform owns Legal Newsline. At issue is a New York City Asbestos Litigation, or NYCAL, case management order released June 20. NYCAL is home to one of the country's largest asbestos dockets and the site of some of the highest plaintiff verdicts in recent history. ATRA has, in recent years, maintained the jurisdiction is a "Judicial Hellhole" in its annual report. The order, issued by Manhattan Supreme Court Justice Peter Moulton after being in the works for nearly two years, holds, among other things, that punitive damages awards are no longer deferred for cases placed on the trial calendar after the CMO's effective date. In their brief, the groups argue that allowing punitive damages awards in NYCAL cases will "frustrate settlements, create longer and more complex trials, spawn appeals that will further delay recoveries" and draw more plaintiffs. The Washington Legal Foundation -- one of the groups joining the brief -- contends the CMO, which was set to take effect July 20 but was temporarily stayed, deprives NYCAL defendants of statutory and due process rights without their consent. "The reasons for deferring punitive damages in asbestos cases remain sound, not only to preserve the amount of company resources that can compensate deserving victims, but to accelerate trials, speed recovery, and avoid lengthy appeals," said Cory Andrews, WLF senior litigation counsel. Tom Stebbins, executive director of the Albany-based Lawsuit Reform Alliance, said the brief is a "critical step" in restoring balance to NYCAL. "The court has been dubbed a 'judicial hellhole' and the recent case management order only made things worse," he told Legal Newsline. "We hope the court will restore the longstanding deferral of punitive damages and adopt asbestos trust claim transparency to address inconsistent claims and suppression of trust-related exposure evidence by plaintiffs' lawyers." Punitive damages were reintroduced to the NYCAL docket in 2014, but stayed by an appeals court pending further modification to the CMO. Soon after, in December 2014, ATRA named NYCAL the No. 1 Judicial Hellhole in the country in its annual report. Then, in 2015, former New York Assembly Speaker Sheldon Silver was indicted over allegations that he traded state grants to the hospital of a doctor who provided him with referrals to asbestos plaintiffs. Silver had long been listed as of counsel at the firm Weitz & Luxenberg PC, which files the majority of cases in NYCAL. The firm has denied any knowledge of Silver's alleged scheme. This year, his conviction was overturned by the U.S. Court of Appeals for the Second Circuit. When contacted by Legal Newsline about the amicus brief filed this week, a Weitz spokeswoman said the firm did not have any comment at this time. And while NYCAL continues to drop down ATRA's annual list, the tort reform group -- also among those joining the brief -- contends it is still very much an area of concern. "Despite early signals that Justice Peter Moulton might carry out needed reforms, he has since shown his determination to ignore balanced procedural trends in asbestos litigation nationwide by reestablishing punitive damages and normalizing the consolidation of cases at the expense of defendants' due process rights," ATRA President Tiger Joyce said in December. The groups, in their brief, believe the court should, at a minimum, modify the CMO to restore the practice of deferring punitive damages claims. They also believe, according to the filing, the court should, at a minimum, modify the CMO to close an asbestos bankruptcy trust disclosure "loophole" and require plaintiffs to file all eligible asbestos trust claims early in the discovery process and specify that trust claims materials are admissible. "Punitive damages are just as inappropriate in today's asbestos litigation as they were in 1996, when Justice Helen Freedman, then-presiding Administrative Law Judge for all NYCAL cases, deferred such claims while providing other substantial benefits to plaintiffs," the brief states. Often in asbestos litigation, the alleged wrong was committed by a predecessor company, not the company being sued. Punitive damages "only deplete resources that are better used to compensate injured parties," Freedman explained. "Because mesothelioma claims continue to arise at a steady pace, allowing punitive damages claims -- which, by definition provide a windfall to the plaintiff -- depletes limited funds that otherwise may be needed to compensate future plaintiffs," the groups wrote in their brief. ASBESTOS UPDATE: Cabinet Maker Dies from Asbestos Exposure ---------------------------------------------------------- Lauren Harris, writing for Devon Live, reported that a 75-year-old man died as a result of asbestos exposure while making cabinets and fireproof doors at a company in Devon, an inquest heard. Ronald George Cockbill was born in Birmingham but later moved to North Devon, and lived in Bratton Fleming when he died at home on June 17, 2017. Dr Jason Davies, pathologist, conducted Mr Cockbill's autopsy and reported finding a tumour consistent with mesothelioma. At the inquest into Mr Cockbill's death at South Molton Town Hall on Wednesday, October 11, Dr Davies gave the cause of death as malignant mesothelioma consistent with asbestos exposure. In a written statement provided as evidence for the inquest, Dr Jackie Tolhurst, Mr Cockbill's general practitioner at Brannam Medical Centre, said: "In general he had no significant respiratory problems. He was never a smoker and was previously exposed to asbestos. "When he had an x-ray, bilateral pleural plaques consistent with exposure were discovered. Later he showed more signs of possible asbestos exposure and a further x-ray showed he had mesothelioma." In July 2015, Mr Cockbill wrote a statement which was read aloud at the inquest. He said: "I was a cabinet maker and development technician for Shapland and Petter until 1992, testing and developing materials and designs. The company started to use asbestos and I was exposed to asbestos by making doors and my colleagues making them around me. "We were working with asbestos paper in the mid to later 1970s which were added to make doors last longer in fires. I stopped being a technician in 1992 and became a production manager and then we were no longer using asbestos in the company." HMRC confirmed his employment history at Shapland and Petter and then Sig Manufacturing Ltd, which took over Shapland and Petter, though Mr Cockbill's job didn't change. Coroner John Tomalin summarised the evidence and gave his conclusion. He said: "After an apprenticeship as a cabinet maker at Shapland and Petter, Mr Cockbill continued to work at the company. He was of the view he had been exposed to asbestos fibres when engaged in the production of these doors. "He was diagnosed with malignant mesothelioma and that has been confirmed by Dr Davies. I accept the pathologist's conclusion for Mr Cockbill's cause of death and I must give a conclusion of industrial decease." ASBESTOS UPDATE: Manchester Man Killed of Asbestos from Work ------------------------------------------------------------ Beth Abbit, writing for Manchester Evening News, reported that a widow whose husband died after being exposed to deadly asbestos is calling on his former workmates for help. Thomas Brennan developed mesothelioma -- a cancer related to exposure to asbestos -- after working at a Manchester factory. He died at the age of 72 after a battle with the disease. His widow, Bridget, is now appealing to his former colleagues to help her in her fight against the employer who allegedly exposed him to asbestos dust. Thomas worked as a pattern maker at Henry Wallwork, in the Red Bank, Manchester, between 1967 and 1980. At the time it is claimed asbestos was widely used in foundries on pipe laggings, boiler coverings, as insulation in fan housings, in gloves, aprons and curtains. It was also used as insulation in cupolas and in ladles and insulation in sand moulds. Asbestos was commonly incorporated into many pieces of equipment, including tanks, pumps, valves, ovens, boilers and furnaces. Industrial diseases such as mesothelioma can often develop decades after initial exposure to the lethal substance. Bridget is now appealing for anyone who worked with Thomas at Henry Wallwork's to get in touch. Solicitor Sarah Wolf is representing the family in their battle. The asbestos disease specialist, of law firm Leigh Day, said, "Mesothelioma is an aggressive, fatal asbestos related cancer. "In order for us to progress this case it would be helpful to speak to anyone who worked at Wallwork's in the mid to late 1960's up to the early 1980's. "They do not need to have known Thomas. We just need to build a picture of working practices and the uses of asbestos." Bridget and son Paul emigrated to America in 1980 and Thomas died in California. Paul said: "Dad came over to Manchester with Mum from Ireland in the 1960s and he often spoke fondly of his time there living in Chorlton and Didsbury. "It is such a pity that he developed this incurable disease which he contracted through no fault of his own. We would all be so grateful for any information from Dad's former colleagues." ASBESTOS UPDATE: Head Start Moves Out After Asbestos Find --------------------------------------------------------- The Associated Press reported that a Head Start program on a southern Colorado American Indian reservation unexpectedly closed after asbestos was discovered in a crawl space, leaving about 95 families scrambling to find day care and other services for their children. The Durango Herald reports the program in Ignacio was forced to move early last week after the Southern Ute Indian Tribe closed the building where it was housed. The program hopes to reopen by the end of this week, if not sooner, said Eileen Wasserbach, director of Southern Ute Community Action Programs. Some classrooms will remain in modular classrooms nearby, while about 45 students will move to the Southern Ute Cultural Center and Museum. Head Start is one of six programs operated by the group. Head Start typically serves about 95 families, or 140 children total, in the Ignacio area. ASBESTOS UPDATE: Ill. High Ct. Issues Landmark Litigation Opinion ----------------------------------------------------------------- The National Law Review reported that on September 21, 2017, the Supreme Court of the State of Illinois issued a personal jurisdiction opinion that may change the national landscape of asbestos litigation. Aspen American Insurance Company v. Interstate Warehousing, Inc. closes the door in Illinois to out-of-state plaintiffs suing for claims that have no ties to Illinois against defendants who are not domiciled in the state. One-third of all asbestos-related lawsuits in the United States are filed in Madison County, Illinois and asbestos litigation accounts for 72% of the civil cases filed in Madison County. Only 75 of 1,224 asbestos cases filed in Madison County in 2015 were filed by Illinois residents. This may change with the recent decision in Aspen. The Court in the Aspen case applied the Daimler AG v. Bauman Supreme Court decision. Daimler distinguished between specific and general jurisdiction. In cases involving specific jurisdiction, a state can establish jurisdiction over a defendant because the cause of action arose out of or occurred within the jurisdiction. General jurisdiction is based on the principal that you can sue a defendant where they are domiciled. In cases involving a company, that is where they are incorporated, where they have their principal place of business, or when their connection to the forum state is so substantial that a very limited exception is warranted. ASBESTOS UPDATE: Motion Aims for Recusal Over Non-Disclosure ------------------------------------------------------------ Charles Toutant, writing for The New Jersey Law Journal, reported that a state mass tort judge has been asked to recuse herself from asbestos injury suits after she failed to disclose a family member's involvement in a case she is hearing. Lawyers for BASF Catalysts filed a motion asking Middlesex County Superior Court Judge Ana Viscomi to recuse and disqualify herself from multicounty asbestos litigation based on an allegation that the judge's sister was once employed by BASF's predecessor, Engelhard Corp. BASF is named as defendant in about a dozen suits based on alleged injuries caused by a talc product called Emtal, which was made by Engelhard for industrial applications. Plaintiffs have accused BASF of spoliation based on missing Engelhard documents. Engelhard, formerly based in Iselin, was purchased by BASF in 2006. Josephine Viscomi, the judge's sister, worked for Engelhard from 1998 to 2001 as a library assistant in the research department, where her duties included keeping track of laboratory notebooks. Plaintiffs have accused Engelhard of spoliation, and the judge's sister could be called to testify in the litigation, BASF argues. What's more, records from Engelhard's human resources department show the judge contacted the company twice in writing and three times by phone concerning her sister's employment, according to BASF. Those contacts were made while Viscomi was serving as special master for asbestos cases in Middlesex County, and she used her phone and fax numbers from the courthouse in those communications, according to the BASF motion. Some portions of the publicly released version of the recusal motion discussing the judge's sister are redacted. BASF said it became aware of the judge's connection to Engelhard this past summer on finding references to Josephine Viscomi in company documents. BASF asked the judge in an Aug. 16 letter whether she was related to Josephine Viscomi. The judge replied by letter later that day, confirming that Josephine Viscomi is her sister, and adding, "I am aware that she was a library assistant for Engelhard Corporation at one time but not aware of the nature of her duties since we never discussed her work." BASF wrote back the next day, telling the judge records showed her sister was the person responsible for lab notebooks concerning Emtal talc and that personnel records showed her contacts with the company concerning her sister's employment. BASF said the issues created an appearance of impropriety, dictating that she should recuse herself. On Aug. 18, at 9:06 a.m., Viscomi told counsel in the case by email that she was recusing herself and that another judge would be assigned. At 9:17 a.m., a plaintiff's lawyer in the case, Christopher Placitella, replied to the email, urging the judge not to recuse herself and calling the defense objections "frivolous," according to the BASF motion. Then, at 9:30, the judge's chambers sent another email to the parties, asking them to disregard the judge's earlier message. And at 1:22 p.m., the judge sent out another email, apologizing for the confusion. BASF later wrote to the judge, asking her to recuse voluntarily, and Placitella wrote to the court that recusal was "unnecessary." On Aug. 21, Viscomi wrote to counsel to say she would not voluntarily recuse, and defense counsel would have to file a formal motion in order to seek her recusal. BASF's motion says Viscomi should be disqualified for failing to disclose her sister's past employment at Engelhard, even if the judge did not herself believe the matter posed a conflict. The judge's own involvement with Engelhard and the possibility that her sister might have information relevant to the case also require her to disqualify herself, BASF claims. BASF also submitted declarations from Michael Ambrosio, a professor at Seton Hall University School of Law; Edward Dauber, a former member of the New Jersey Advisory Committee on Judicial Conduct; and Leslie Abramson of the University of Louisville School of Law, which state that the circumstances dictate recusal of Viscomi. Viscomi was confirmed for the Superior Court in 2012 and she was designated as the multicounty litigation judge for asbestos in 2014. More than 1,300 asbestos cases are pending before Viscomi, according to the judiciary's website. Judiciary spokesman Peter McAleer declined to comment and also said Viscomi would not comment on the recusal motion. Plaintiffs lawyer Placitella confirms that he opposed Viscomi's recusal but declines to discuss his reasons. He said his reason for opposing the motion will be made clear in his opposition papers. Lawyers at Kirkland & Ellis in Washington and Littleton Park Joyce Ughetta & Kelly in Red Bank, representing BASF, declined to comment on the motion. ASBESTOS UPDATE: NY App. Div. Orders "DeMartino" Appeal Withdrawn ----------------------------------------------------------------- The Appellate Division of the Supreme Court of New York for the First Department orders the appealed case IN RE: NEW YORK CITY ASBESTOS LITIGATION PATRICK DEMARTINO AND JOY DEMARTINO, Plaintiffs-Respondents, v. AURORA PUMP COMPANY, Defendant- Appellant, AND BORG-WARNER CORPORATION, ETC., ET AL., Defendants, Index No. 190128/14, (1st Dept. N.Y. App.), withdrawn in accordance with the Stipulation of the Parties that was filed in the case. A full-text copy of the Order dated October 12, 2017, is available at http://tinyurl.com/y99x9b72from Leagle.com. ASBESTOS UPDATE: PI Claims vs. Whirlpool, et al., Dismissed ----------------------------------------------------------- Judge Manuel L. Real of the U.S. District Court for the Central District of California has entered an order of dismissal of the case MERCURY CASUALTY COMPANY, Plaintiff, v. WHIRLPOOL CORPORATION, ET AL., Defendant, Case No. CV17-462-R, (C.D. Cal.), after having been advised by the counsel for the Plaintiff Mercury Casualty Company, and the Defendants Whirlpool Corporation, and Sears Roebuck and Co. that the action has been settled. The dismissal is without prejudice to the right to reopen the action if the settlement is not consummated within 60 days. A full-text copy of the Order dated October 10, 2017 is available at http://tinyurl.com/y72nayaqfrom Leagle.com. Mercury Casualty Company, Plaintiff, represented by Nathan Hurd, Law Offices of Robert A. Stutman. Whirlpool Corporation, Defendant, represented by Brian Takahashi, Esq. -- brian.takahashi@bowmanandbrooke.com -- Bowman and Brooke LLP & Jennifer Neiman Hinds, Esq. -- jennifer.hinds@bowmanandbrooke.com -- Bowman and Brooke LLP. Sears Roebuck and Co., Defendant, represented by Jennifer Neiman Hinds, Bowman and Brooke LLP. ASBESTOS UPDATE: Disclosures Protective Order Issued in "Thrash" ---------------------------------------------------------------- The Hon. Jon S. Tigar of the U.S. District Court for the Northern District of California has issued a protective order in relation to information, documents, testimony, excerpts from documents, and other materials produced in the case captioned JOSEPH THRASH and CHEZ THRASH, Plaintiffs, v. CIRRUS ENTERPRISES, LLC, et al., Defendants, Case No.: 4:17-cv-01501, (N.D. Cal.) pursuant to the rules governing disclosure and discovery. Among other things, the Protective Order provides that: (a) All such information, testimony, documents, excerpts from documents, and other materials will constitute "Designated Material" under the Protective Order. The designations will be: (1) Confidential; (2) Export-Controlled, which is subject to U.S. Arms Export Act, International Traffic In Arms Regulations, Export Administration Act, U.S. Export Administration Regulations; (3) Limited Distribution; and/or (4) Proprietary. (b) Documents will be designated by stamping or otherwise marking the documents, clearly identifying the category of Designated Material for which protection is sought under the terms of the Order. (c) Nondisclosure of information designated as "CONFIDENTIAL." (d) Material designated as "CONFIDENTIAL" will not be used or disclosed for any purpose other than the litigation of this action and may be disclosed only as follows: 1. Parties: Material designated CONFIDENTIAL may be disclosed to parties to this action or attorneys, directors, officers and employees of parties to this action, who have a legitimate need to see the information in connection with their responsibilities for overseeing the litigation or assisting counsel in preparing the action for trial or settlement. 2. Other Persons: Material designated CONFIDENTIAL may be provided as necessary to copying services, translators, and litigation support firms. 3. Competitors: Material designated CONFIDENTIAL may not be provided to competitors of the Designating Party, including but not limited to in-house counsel for the Designating Party's competitors, their paralegals, or regularly employed office staff, but excluding local counsel for any defendant in this case. (e) The Designating Party will designate any materials, testimony or information that it believes to be subject to U.S. Export Control Laws as "SENSITIVE -- SUBJECT TO EXPORT CONTROL -- U.S. Arms Export Act, International Traffic In Arms Regulations, Export Administration Act, U.S. Export Administration Regulations." The Designating Party will designate any documents that contain a distribution limitation statement from the Department of Defense or any branch of the U.S. Military as "Limited Distribution". (f) Material designated as Export-Controlled may only be released, disclosed or made accessible to U.S. Persons, that are not named on any restricted or denied party/individual/entity list maintained by relevant government agencies, as determined by an appropriate screening process performed by the Designating Party releasing the materials, testimony, and/or information. (g) A person having custody of Designated Material will maintain it in a manner that limits access to the Designated Material to persons permitted such access under the Order. (h) The Designating Parties will use reasonable care to avoid designating documents or information that does not need to be designated as such. (i) When Export-Controlled testimony is given at a deposition or when Export Controlled Material is produced at a deposition, the Designating Party may exclude from the deposition all persons other than those to whom the Designated Material may be disclosed under the Order. (j) A party which reasonably anticipates it will produce or that it will be requested to produce information or material at a hearing or discovery proceeding that is or will be designated as Export-Controlled material must notify all parties of the same. (k) Filing pleadings or other papers disclosing or containing Designated Material does not waive the designated status of the material or relieve any party or person from the provisions and restrictions of this Order. (l) A Party may not file any Designated Material in the public record in this action without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons. (m) Inadvertent production of CONFIDENTIAL material prior to its designation as such in accordance with the Order will not be deemed a waiver of a claim of confidentiality. A full-text copy of the Protective Order, dated October 11, 2017, is available at http://tinyurl.com/y9kfsk7cfrom Leagle.com. Joseph Thrash, Plaintiff, represented by Benno Behnam Ashrafi, Weitz & Luxenberg, P.C.. Joseph Thrash, Plaintiff, represented by Robert Allen Green, Weitz & Luxenberg, P.C. & Tyler Robert Stock, Weitz & Luxenburg, P.C.. Chez Thrash, Plaintiff, represented by Benno Behnam Ashrafi, Weitz & Luxenberg, P.C., Robert Allen Green, Weitz & Luxenberg, P.C. & Tyler Robert Stock, Weitz & Luxenburg, P.C.. Cirrus Enterprises, LLC, Defendant, represented by Edward Eldon Hartley, Esq. -- eeh@hassard.com -- Hassard Bonnington LLP & Barry Nathan Endick, Esq. -- bne@hassard.com -- Hassard Bonnington LLP. The Boeing Company, Defendant, represented by Dustin Clark Beckley, Manion Gaynor & Manning LLP & Brent Marshall Karren, Manion Gaynor & Manning LLP. Lockheed Martin Corporation, Defendant, represented by Brian Thomas Clark, Glazier Yee LLP, Deborah Maria Parker, Glazier Yee LLP, Guy P. Glazier, Glazier Yee LLP & Laura Patricia Yee, Glazier Yee LLP. United Technologies Corporation, Defendant, represented by Ferlin Peregrino Ruiz, Tucker Ellis LLP. The Goodyear Tire & Rubber Company, Defendant, represented by Michael J. Pietrykowski, Gordon & Rees LLP, Megan Feeney Clark, Gordon & Rees LLP & Melissa Rose Badgett, Gordon & Rees LLP. Honeywell International Inc., Defendant, represented by Bo W. Kim, Perkins Coie LLP & David T. Biderman, Perkins Coie LLP. Rohr, Inc., Defendant, represented by David Michael Glaspy, Manion Gaynor & Manning LLP. Henkel Corporation, individually and as s-i-i to DEXTER CORP., DEXTER HYSOL AEROSPACE LLC, Defendant, represented by Allison Elizabeth Mullings, Lewis Brisbois Bisgaard & Smith LLP & Florence Anne McClain-Meza, Lewis Brisbois Bisgaard & Smith LLP. IMO Industries Inc., Defendant, represented by Bobbie Rae Bailey, Leader & Berkon LLP, Frederick W. Gatt, Leader & Berkon LLP & Ketul Dilip Patel, Leader & Berkon LLP. ASBESTOS UPDATE: PI Suit vs. Conwed Corporation Dismissed --------------------------------------------------------- Judge Susan Richard Nelson of the U.S. District Court for the District of Minnesota denies remand of the case MICHAEL P. McGILL AND TATYANA BOBROVA, as husband and wife, Plaintiffs, v. CONWED CORPORATION and its predecessors, Civil No. 17-01047 (SRN/HB), (D. Minn.), to Ramsey County District Court and instead dismisses the case for lack of personal jurisdiction over Conwed Corporation. The Court finds that Conwed's principal place of business is in New York, thus, since the removal of the case was proper, the Court concludes that it has subject matter jurisdiction over the case. The Plaintiffs Michael P. McGill with his wife Tatyana Bobrova asked the Court to remand this case to Ramsey County District Court arguing that it was improperly removed because the Court does not have subject matter jurisdiction. If the Court finds that it has subject matter jurisdiction and denies Plaintiffs' Motion to Remand, the Defendant Conwed Corporation moves the Court to dismiss this action on the grounds that personal jurisdiction cannot be exercised over Conwed in this forum. Conwed, formerly known as the Wood Conversion Company, was incorporated under the laws of Delaware in 1921. In February of that year, it registered itself in Minnesota as a foreign corporation. From at least 1959 to 1985, Conwed was in the business of manufacturing ceiling tile, some of which contained asbestos. Until 1985, Conwed manufactured tile in a mill located in Cloquet, Minnesota. During some of the years that Conwed manufactured ceiling tile, Plaintiff Michael P. McGill worked at his father's Kansas City interior construction company, the Jim McGill Company -- between 1968 and 1975. The Jim McGill Company distributed and installed ceiling tile manufactured by Conwed, and McGill installed this tile at job sites primarily in Kansas. McGill alleges that during his work installing ceiling tile, he was exposed to the asbestos-containing products and raw materials manufactured, sold, and/or distributed by Conwed. As a result of inhaling and ingesting the asbestos fibers contained in these products, McGill contracted mesothelioma. McGill's mesothelioma was diagnosed in December of 2015. In March of 2016, Michael P. McGill, along with his wife Tatyana Bobrova, initiated a legal action against Conwed and 13 other defendants in the Missouri Circuit Court, in St. Louis, Missouri. Conwed successfully moved to dismiss that lawsuit for lack of personal jurisdiction. On January 19, 2017, the Missouri Circuit Court dismissed Plaintiffs' complaint against Conwed without prejudice, finding, in part, that Conwed was a "Delaware corporation with its principal place of business in New York." On March 16, 2017, the Plaintiffs sued Conwed -- as the sole defendant -- in Ramsey County District Court in Minnesota, alleging negligence, strict liability, and breach of warranty. These allegations, according to Defendant, are nearly identical to those of the Missouri Action. Thus, on April 4, 2017, Conwed removed the case to federal court, invoking federal diversity jurisdiction. Conwed asserts that it is a citizen of Delaware and New York. Conwed further contends that because the Plaintiffs are both citizens of Kansas, complete diversity of citizenship exists. The Plaintiffs disagree, asserting that "there is not complete diversity between Plaintiffs and Defendant Conwed Corporation because Conwed is a citizen of Delaware and Minnesota. The Plaintiffs assert that since selling its business in 1985, Conwed's primary purpose and "only business activity" has been "participating in asbestos related litigation." As such, the Plaintiffs argue that Conwed's "nerve center" is in Minnesota. Conwed disagrees, contending that it has indeed met its burden of showing that its principal place of business is in New York. Conwed describes itself as a dormant corporation which nonetheless maintains a principal place of business in New York. Conwed identifies Robert E. Crowson, Jr., as its President -- who reports to Conwed's Board of Directors -- and maintains that his business address is Conwed's New York office -- together with Conwed's Corporate Secretary Conwed's Corporate Secretary, who "keeps its current corporate records" there as well. As additional proof that Conwed's principal place of business is in New York, Conwed points to its self-authenticating corporate records, namely, the annual Franchise Tax Report -- as it is required to disclose annually to the Delaware Secretary of State. The Franchise Tax Report names Crowson as one of Conwed's corporate officers, and lists Conwed's corporate office as 520 Madison Avenue, New York, New York. The Court rejects Plaintiffs' suggestion that the documents that Conwed offers are insufficient to establish New York as Conwed's principal place of business. The Court finds that these documents and declarations adequately support Conwed's burden of establishing the location of its principal place of business. The Court determines that Conwed has not been authorized to transact business in Minnesota since 2009. The Minnesota Secretary of State revoked Conwed's Certificate of Authority in January of that year, and there is no evidence in the record that Conwed has attempted to get it reinstated. In addition, the Court notes that nothing in the record shows that Conwed was in fact transacting any business within the state when it was served by Plaintiffs. Accordingly, the Court concludes that it does not have personal jurisdiction over Conwed. Moreover, the Court concludes that Conwed is not "essentially at home" in Minnesota. The Court points out that Conwed is incorporated under the laws of Delaware, and that Conwed's principal place of business is in New York. The Court finds also that Conwed does not transact business in Minnesota, and there is no evidence showing that Conwed's operations here are "so substantial and of such a nature as to render it at home" in this state. As such, the Court may not exercise general jurisdiction over Conwed. A full-text copy of the Order dated October 10, 2017, is available at http://tinyurl.com/ydfytsdcfrom Leagle.com. Michael P. McGill, Plaintiff, represented by Chad C. Alexander, Sieben Polk PA. Michael P. McGill, Plaintiff, represented by Michael S. Polk, Sieben Polk Law Firm, Michael R. Strom, Sieben Polk Law Firm & Ryan Thomas Gott, Sieben Polk, P.A.. Tatyana Bobrova, Plaintiff, represented by Chad C. Alexander, Sieben Polk PA, Michael S. Polk, Sieben Polk Law Firm, Michael R. Strom, Sieben Polk Law Firm & Ryan Thomas Gott, Sieben Polk, P.A.. Conwed Corporation, Defendant, represented by Kristi K. Brownson, Esq. -- kbrownson@brownsonnorby.com -- Brownson Norby, PLLC, Michael M. Sawers, Esq. -- msawers@briggs.com -- Briggs & Morgan, PA, Robert D. Brownson, Esq. -- rbrownson@brownsonnorby.com -- Brownson Norby, PLLC & Steven J. Kirsch, Esq. -- skirsch@briggs.com -- Briggs & Morgan, PA. ASBESTOS UPDATE: Nooter's Coverage in Various Policies Determined ----------------------------------------------------------------- The Court of Appeals of Missouri for the Eastern District has issued an opinion relating to insurance policies coverage in the appealed case NOOTER CORPORATION, Respondent/Cross-Appellant, v. ALLIANZ UNDERWRITERS INS. CO., APPALACHIAN INS. CO., EVANSTON INS. CO., NATIONAL UNION FIRE INS. CO. OF PITTSBURG, PA., NORTH STAR REINSURANCE CORP., ONEBEACON AMERICA INS. CO., Appellants, and CERTAIN UNDERWRITERS LLOYD'S LONDON & LONDON MARKET INS., MUNICH REINSURANCE AMERICA, INC., Appellants/Cross-Respondents, and CONTINENTAL CASUALTY CO., Respondent, No. ED103835, (Mo. App. E.D.). This appeal involves a dispute between Nooter Corporation and eight different Excess Insurance companies: Evanston Insurance Company; National Union Fire Insurance Company of Pittsburgh, PA; Allianz Underwriters Insurance Company; Certain Underwriters at Lloyd's, London and Certain London Market Insurance Companies; Appalachian Insurance Company; Munich Reinsurance America, Inc.; North Star Reinsurance Company; and OneBeacon America Insurance Company. Specifically, this appeal concerns numerous insurance policies providing coverage for Nooter from 1949 through 1985. Although only "excess" insurance policies are directly at issue on appeal, there were also several "primary" general liability insurance policies that were active during the period -- which policies serve as the first layer of insurance protection for Nooter. Additionally, some of the excess insurance policies are "second- level" excess policies, which can only attach after the applicable primary policies and "first-level" excess policies have been exhausted. There are five "primary" insurance companies relevant to this appeal: Continental Insurance Company; Transamerica Insurance Company; Aetna/Travelers Casualty and Surety Company; Insurance Company of North America; and Home Indemnity Company. Nooter has been in the business of designing, installing, and distributing pressure vessels for refineries and chemical plants for over 100 years. Some of Nooter's sites allegedly contained asbestos. Consequently, claimants began filing lawsuits against Nooter for asbestos-related bodily injuries in the late 1990's. In turn, Nooter began seeking help to defend and/or reimburse Nooter for expenses related to these suits pursuant to various insurance policies. This sparked several disagreements between Nooter and Excess Insurers, eventually resulting in litigation. After claimants began filing asbestos suits against Nooter, Nooter claims it first sought funds from its primary insurance policies, and then, "as individual primary policies were becoming exhausted by the payment of asbestos claims," it sought coverage from Excess Insurers. In sum, more than 20,000 individuals have brought lawsuits against Nooter for bodily injuries resulting from exposure to asbestos. Although the suits involve similar allegations (i.e., personal injury caused by exposure to asbestos at Nooter sites), each claim involves different exposures based on each claimant's work history and/or unique circumstances that allegedly exposed the claimants to asbestos. Before the trial, Nooter agreed to dismiss its breach-of-contract claims against Appalachian, Allianz, Munich, North Star, and OneBeacon without prejudice. On April 28, 2014, Nooter proceeded to trial against three of the Excess Insurers (Evanston, London, and National Union), where only six counts were left for the jury to resolve -- claims against all three defendants for both breach of contract and vexatious refusal to pay. On May 9, the jury returned verdicts in favor of National Union and London on both counts, however, it returned verdicts against Evanston on both counts. Accordingly, Evanston appeals the adverse judgments against it based on Nooter's claims of breach of contract and vexatious refusal to pay, for which a jury trial was conducted. Two leading methods of allocation have emerged to address allocation of losses in complex insurance coverage claims. The "all sums" approach and the "pro-rata" approach. The "all sums" approach allows the policyholder to select a policy among the range of years triggered by the "occurrence" at issue. Conversely, "under the pro rata approach, damages are spread proportionately across the entire period during which the property damage takes place." Six of the Excess Insurers have appealed the trial court's grant of Nooter's motion for summary judgment regarding allocation, holding that an "all sums" allocation method applies to relevant asbestos claims under all of the policies of Allianz, OneBeacon, London, Evanston, and North Star. The Court affirms the trial court's finding that an "all sums" allocation method applies to all of these policies. Certain Excess Insurers appeal the trial court's grant of summary judgment regarding exhaustion. Typically, exhaustion is a condition precedent to triggering an excess insurer's duties. In this case, it is undisputed that exhaustion of the Excess Insurers' underlying policies is required. Two primary methods of exhaustion have been used by courts: horizontal exhaustion and vertical exhaustion. Vertical exhaustion is a principle of insurance priority that allows the attachment of an excess policy once all of the policies immediately below it (as identified in the policy agreement) have been exhausted. Horizontal exhaustion requires every triggered lower-level policy to become exhausted before implicating an excess policy. On the issue of exhaustion, the Court affirms the trial court's determination that "vertical exhaustion" applies to these policies: (a) the Older London Policies (covering from September 1, 1955 through May 17, 1961); (b) the Newer London Policies (covering from May 17, 1961 through July 1,1965 and July 1, 1975 through July 1, 1980); (c) the National Union Policy; (d) the four annual Evanston policies; and (e) the North Star Policy. However, the Court reverses the judgment of the trial court determining that London (under its 1961-1965 and 1975-1980 policies) and North Star must start paying Nooter its ultimate net loss as defined by the policies -- as the plain language of the policy requires that London and North Star must start paying after vertical exhaustion and Nooter's loss exceed recoveries, salvages, and the limits of any other insurance policies that cover the same risk. The Court finds that the "applicable underlying limit" definition in the Evanston policies -- in conjunction with the definition of "ultimate net loss" -- serves a similar function as London's definition of "ultimate net loss" in their 1955-61 policies, and that these definitions serve as a means for calculating Evanston's liability, not defining when the policy attaches. Thus, after reviewing the Evanston policies' "other insurance" provision and definitions of "ultimate net loss" and "applicable underlying limit," the Court concludes that Evanston's policies require vertical exhaustion of the relevant primary policies for Nooter's long-tail asbestos claims. Allianz, Appalachian, and OneBeacon also challenge the trial court's ruling on their duty to defend. The trial court declared that the Allianz Policy includes "a duty to defend and to pay defense costs in addition to policy limits." Allianz' contends that the trial court misconstrued its policy (Policy No. AUX5201679) and erroneously concluded that Allianz must provide coverage as broad as the underlying Home primary policies from 1983-1985, which include a duty to defend. The Court agrees with Allianz' contention because based on the plain language of the "broad as primary provision," Allianz' policy expressly limits its obligations to reimbursing or indemnifying Nooter for defense costs based on any underlying insurance policies covered by the "broad as primary" endorsement. Accordingly, the Court declares that Allianz' obligation is limited to paying defense costs or indemnifying Nooter. The OneBeacon Policy (from July 1, 1972 through December 31, 1973, follows the form of the Appalachian Policy). The "broad as primary" endorsement in this case references the underlying policy of Home Policy No. GA 4315500. Both the Appalachian Policy and the OneBeacon Policy also include "broad as primary" endorsements -- which limits Appalachian's and/or OneBeacon's obligation to "paying" on behalf of the insured. Thus, the Court holds that it does not create an obligation for Appalachian and/or OneBeacon to defend Nooter. Essentially, "broad as primary" provisions usually expand an excess policy so that its coverage of occurrences (i.e., the types of harms covered by the policy) is at least as broad as the primary policy. The Court concludes that the language of the Appalachian Policy and the OneBeacon Policy obligates these Excess Insurers to defend Nooter only if the terms of these excess policies cover an occurrence and the terms of the underlying insurance does not. While the trial court granted London's motion for summary judgment concluding that London's 1949-1961 policy language was "clear and unambiguous" and imposes "no obligation to provide coverage for Nooter's asbestos-related defense costs." However, the trial court reached the opposite conclusion after reading North Star's policy language. London, Nooter, and the Court all agree that the North Star Policy's language is effectively equivalent to London's. Although Nooter and North Star agree that the policies' substantially similar language should produce consistent results, the parties differ on which result should be reached. North Star argues the trial court erred in entering its April 2, 2015 order and judgment declaring North Star is responsible for reimbursing defense costs for Nooter's future asbestos claims because the plain language of the policy imposes no such liability, primarily due to language specifying that North Star's "consent" is required for Nooter to obtain any defense costs. North Star's also contends that the trial court erred in declaring North Star may not unreasonably withhold its consent to incur defense costs, because, North Star has full discretion over if and when it will pay defense costs. The Court determines that the language of North Star's policy clearly and unambiguously confers an option to North Star to pay defense costs, and that it does not impose an obligation. The Court finds nothing else in the policy to contradict or call into question the plain language of the "COSTS INCURRED BY THE REINSURED" section -- which excludes North Star from an obligation to pay defense costs. Moreover, London argues that the trial court erred in finding the record supported summary judgment in favor of Nooter because Nooter failed to provide sufficient evidence that the limits of Continental's or TIG's primary policies had been exhausted. London also filed a cross-motion for summary judgment to establish those primary policies had not been exhausted, which the trial court denied. Based on the evidence adduced, the Court finds that there was sufficient evidence to find that the Continental policies had been exhausted. For instance, in Continental's response to London's first set of interrogatories, Continental stated, "all nine primary Continental Policies issued to Nooter between September 1, 1955 and September 1, 1964... have been exhausted because at least $300,000 in indemnity has been paid under each of those nine policies," and "Continental has paid defense costs of approximately $4 million and indemnity amounts totaling $2,903,564, an amount which totals in excess of the sum of the aggregate limits of liability for the policies..." Further, the Court notes that Continental provided a chart showing its payments based on date, name of claimant, and the amount paid for each claim. Therefore, the Court affirms the trial court's judgment in favor of Nooter that Continental's policies have been exhausted. However, the Court reverses the trial court's judgment that Nooter has proven the TIG Policy has been exhausted. The summary judgment record contains only sparse evidence to prove the TIG policy was exhausted. Essentially, the Court notes that Nooter relies on its own statements that TIG has paid $550,000 toward settlements of Nooter's asbestos liabilities under the TIG policy No. 3CGB617300, which exceeds its $300,000 limits of liability. However, Nooter did not submit an affidavit to authenticate the documents it included as exhibits to support its Statement of Uncontroverted Material Facts. Additionally, the Court points out that Nooter failed to produce a copy of the TIG Policy. Moreover, even accepting the $300,000 and $550,000 figures as accurate, Nooter fails to identify what the $550,000 in settlement money went towards. Nooter simply notes "TIG paid $550,000" or "TIG has paid $550,000 toward settlements of Nooter's asbestos liabilities." On the other hand, Nooter filed a motion for appellate attorney's fees with our Court, requesting that the Court award attorney's fees for Nooter's defense against Evanston's appeal. Nooter argues that it is entitled to attorney's fees in its defense of its vexatious refusal to pay claim and/or that it is entitled to attorney's fees as damages for Evanston's appeal because it was frivolous or non-meritorious. Pursuant to Section 375.420, "a court may award reasonable attorney's fees where a plaintiff prevails against an insurance company for vexatious refusal to pay under that statute." Because the Court affirms the portion of the trial court's judgment ruling in favor of Nooter on its vexatious refusal to pay claim against Evanston, it is appropriate to award attorney's fees on that issue, as the trial court also did. However, the Court will remand the case to the trial court and direct it to hold a hearing to determine the reasonableness of the requested appellate attorney's fees and enter judgment in accordance with that assessment. A full-text copy of the Judge Dolan's Opinion, dated October 3, 2017, is available at http://tinyurl.com/y9x4yelufrom Leagle.com. Timothy Joseph Ahrenhoersterbaeumer, Thomas Blumeyer Weaver, Robyn Greifzu Fox, Alan K. Goldstein, Theodore Joseph Macdonald Jr., Richard Charles Wuestling IV, J. Michael Balch, Sarah Emile Lynn Baltzell, R. Patrick Bedell, Linda J. Carwile, Susan Marie Dimond, Roderick T. Dunne, Charles Carson Eblen, Maryann Hays, Adam D. Krauss, Gerard Thomas Noce, Bruce David Ryder, Stan Sexton, and Michael Leslie Young, Attorneys for Appellants. Richard A. Wunderlich, David L. Elkind, John A. Gibbons, and Omida Safa, Attorneys for Respondent. ********* 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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